Attorney General for New South Wales v Bragg (Final)

1. [1]

   HIS HONOUR: The Attorney General of New South Wales (“the plaintiff”) commenced proceedings by summons filed on 2 February 2021 seeking an order that the status of the defendant as a forensic patient be extended (“an extension order”) for a period of 5 years. The application was made pursuant to Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), which was repealed on 27 March 2021 (“the repealed Act”) by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”). The summons was amended accordingly and filed in Court at the preliminary hearing on 22 April 2021.

2. [2]

   In 2016, the defendant was arrested and subsequently charged with four offences involving the possession or production of, and incitement to produce, child abuse material contrary to ss 91H and 80G of the Crimes Act 1900 (NSW), and an offence of contravening a prohibition order contrary to s 13(1) of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). In 2018, he was separately charged with two offences of failing to comply with reporting obligations arising from the Child Protection (Offenders Registration) Act 2000 (NSW), without a reasonable excuse (“the index offences”). Consequent to a significant intellectual disability, on 25 September 2018 the defendant was found unfit to be tried in respect of both sets of charges, a finding which automatically rendered him a forensic patient (ss 14 and 42(a)(i) of the repealed Act) and thus subject to the supervision of the Mental Health Review Tribunal (“the Tribunal”). At special hearings in respect of each set of charges, on 19 December 2019 Ellis DCJ returned qualified findings of guilt in respect of all charges. On 1 May 2020, his Honour imposed partly concurrent limiting terms for each of the seven offences, resulting in an overall detention of 3 years and 10 months, commencing on 2 July 2017 and ending on 1 May 2021. On 2 November 2020, the Tribunal made a conditional release order and on 30 November 2020, the defendant was released from custody.

3. [3]

   The defendant remained a forensic patient until the expiration of the limiting terms on 1 May 2021: ss 24 and 42(a)(i) of the repealed Act. As sought in the amended summons and pursuant to s 130 of the Act, Wright J made an interim extension order on 29 April 2021 extending the defendant’s status as a forensic patient for three months, until 1 August 2021: Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439.

4. [4]

   The final hearing of the plaintiff’s application occurred on 28 July 2021. In view of the pending expiration of the interim extension order, I made orders on that date, as follows:

Background to the application

1. [5]

   The defendant is a 35 year old Indigenous man who has a mild to moderate degree of intellectual disability. According to a 2020 report to the Tribunal by psychologist Emily Higgins, in 2004, when the defendant was aged 17, he was administered the Wechsler Intelligence Scale for Children (“WISC”) which indicated he had a moderate degree of intellectual disability. In 2012, he was administered the Wechsler Abbreviated Scale of Intelligence (“WASI”) and scored a similar result. In 2018, clinical neuropsychologist Dr Ilana Hepner administered the Wechsler Adult Intelligence Scale-IV (“WAIS-IV”), resulting in a score of a full-scale IQ of 52. Dr Hepner concluded that when the defendant is released into the community, he will likely need long term and intensive support, therapy and supervision.

2. [6]

   Some significant details of the defendant’s background differ between reports, doubtless due to the defendant’s difficulties as an historian. The defendant was born in Bega, one of three or four children of his parents, both of whom were Indigenous. His parents separated when he was either three months old or aged between 13 and 15 (file information suggests this occurred when he was aged 13), and he was thereafter cared for by his father. When aged about 14, his father moved with him and another sibling to the Newcastle area. According to some reports, he was the subject of penetrative sexual abuse by a male member of his extended family when he was aged either 13, 14 or 15. His sisters were abused by the same relative. The family moved back to the Bega area when he was in Year 11, following the defendant having to leave school because he was “touching” female students and otherwise misbehaving.

3. [7]

   In Bega, the defendant attended a literacy course at TAFE and, intermittently, some other courses. He found employment with the Community Development Employment Program for three months, mowing lawns and chopping wood, and for four months he collected shopping trolleys.

4. [8]

   The defendant reported that he started drinking alcohol at age 19, drinking every day to the point of drunkenness and, as a result, losing his employment. At about age 20, he moved back to Newcastle, finding some employment for about a year with a company involved with canvas. He continued to binge-drink at weekends. He has been in receipt of the Disability Support Pension since he was aged 18.

5. [9]

   In about June 2013, the defendant commenced a relationship with a woman who also has an intellectual disability. She has two children who at that time were aged nine and 13. By October 2013, she and the defendant were cohabiting. The children had by then been removed from their mother’s care by the Department of Family and Community Services, as it was then known. In 2015, the couple were married. His wife was also charged with offences arising from the same incidents as the first group of index offences and found unfit to be tried. They were co-accused in the special hearing concerning the first batch of charges and she also was the subject of qualified findings of guilt. Since his arrest he has had no contact with her, other than at joint court appearances.

6. [10]

   In 2019, the defendant’s father relocated to Victoria. The defendant states that he has weekly phone contact with his father.

7. [11]

   On 19 November 2020, a guardianship order was made, appointing the Public Guardian as the defendant’s guardian for a period of 12 months to carry out the following functions: to decide where the defendant may reside, what health care he may receive and what services may be provided to him. On 16 March 2021, a further order was made appointing the Public Guardian for a period of 1 year from 25 March 2021. On 26 March 2021, the guardianship order was amended to include an additional authority for the guardian to consent to the use of restrictive practices by the implementation of camera and motion sensor devices installed at the defendant’s place of supported accommodation.

The defendant’s criminal history

1. [12]

   Pursuant to s 191 of the Evidence Act 1995 (NSW), the parties agreed certain facts as to the defendant’s criminal history. Those facts may be summarised as follows.

2. [13]

   The defendant’s criminal history exclusively comprises child sexual offences or the breach of obligations under the Child Protection (Offenders Registration) Act and Child Protection Prohibition Orders (“CPP Order”).

3. [14]

   The first entry is in 2004 for four counts of indecent assault on a person aged under 10, contrary to s 61M(2) of the Crimes Act, at which time the defendant was aged 17. The victims were a female aged 8 and her brother aged 6. The allegations were that he pushed the girl’s swimming suit to one side, exposing her buttock and vagina, pulled down his boxer shorts and moved his body up and down for about a minute. On another occasion, he put his hand under her dress and over her underwear above her vagina and moved it in circles. In relation to the boy, he placed his hand down the boy’s pants and grabbed his penis. The defendant was sentenced to 2 year probation orders pursuant to s 33(1)(e) of the Children (Criminal Proceedings) Act 1987 (NSW) and entered onto the Child Protection Register under the Child Protection (Offenders Registration) Act.

4. [15]

   In October 2007, the defendant was charged with loitering near a public place while a convicted sex offender, contrary to s 11G(1)(b) of the Summary Offences Act 1998 (NSW) (“loitering”). Police alleged that he was observed making physical contact with a girl aged 11 or 12 at a public pool. He was conditionally discharged pursuant to s 32 of the repealed Act.

5. [16]

   In December 2010, the defendant was again charged with loitering, the allegation being that he was at a public oval where children aged 10 to 16 and adults were doing athletics. He was observed by police to have an erection. He was sentenced to a 2 year supervised good behaviour bond.

6. [17]

   In January 2011, a CPP Order was made against the defendant pursuant to the Child Protection (Offenders Prohibition Orders) Act.

7. [18]

   On 30 October and 19 November 2011, the defendant committed two separate offences of aggravated break and enter with intent to commit a serious indictable offence contrary to s 112(2) of the Crimes Act. On both occasions, he entered the same residence through a bedroom window at night or in the early morning and touched the same male victim, aged 16, who was in his bed. He was sentenced by Berman SC DCJ in February 2013 to 2 years imprisonment, suspended upon entering into a bond with conditions of supervision.

8. [19]

   In May 2012, whilst on bail for the break and enter offences, the defendant was charged with loitering. Police alleged he was seen in the company of children aged 9 and 11, said to be his mother’s cousins, while walking to a shop. He was returned to custody. Whilst in custody, the defendant was sexually assaulted. In October 2012, he was conditionally discharged pursuant to s 32 of the repealed Act. A CPP Order was made for 2 years.

9. [20]

   In December 2013, the Probation and Parole Service reported that his response to supervision had declined since October 2013, being the time that he commenced cohabitation with his wife, and that he was not obeying directions. In particular, it noted that he had contravened his CPP Order by attending public venues where children were congregating, and police had viewed on his mobile phone material that contained inappropriate age and sex-related applications. No charges were laid in respect of those allegations.

10. [21]

    In December 2015, the defendant was charged with behaving in an offensive manner near a public place. Police alleged that he had stood behind a woman and her two daughters, aged four and 14, and told them that he was not wearing any underwear. He was convicted and sentenced to a 3 year good behaviour bond.

11. [22]

    In April 2016, the defendant contacted a 12 year old girl on Facebook and sent her messages stating that he had seen her at the beach and mall. He then sent the girl lewd text messages, which were elicited by the girl’s mother pretending to be the girl. He was charged with contravening a CPP Order. In June 2016, a CCP Order was made for 5 years against the defendant in the Local Court. In December 2017, he was discharged in relation to the charge of contravening a CPP Order pursuant to s 32 of the repealed Act.

12. [23]

    In June 2016, the defendant and his wife commenced supervised access with her older child. In October 2016, the defendant was arrested and subsequently charged with the first group of index offences, which involved images of that child. He received Supreme Court bail in May 2017.

13. [24]

    In January 2018, police discovered an email address for the defendant that had not previously been disclosed, in contravention of his reporting obligations.

14. [25]

    In February 2018, police discovered that his wife’s older child had sent sexualised images and videos of herself to the defendant and her mother via Facebook. Police located a Wi-Fi modem that was hidden at his residence. His Facebook accounts and the modem had not been reported to police, constituting breaches of his reporting obligations. These matters were the basis of the second set of index offences.

15. [26]

    The defendant has had no visits whilst in custody. He has not been the subject of any prison disciplinary charges. In 2019, he was assaulted in prison. According to medical records, he suffered a fractured cheekbone that required surgery.

The defendant’s current circumstances

1. [27]

   As noted, the defendant was released on 30 November 2020 pursuant to a conditional release order made by the Tribunal. There were 33 conditions to his release, including as to where he was to reside, the identities of his health care and therapy providers, constraints on his behaviour, movements, associations, communication and his access to electronic devices. The defendant’s place of residence is supported accommodation with two other residents which is staffed 24 hours a day, and which is operated by an agency known as “Love 2 Care”. The defendant has expressed satisfaction with his current living arrangements.

2. [28]

   The defendant has been treated with antidepressant medication (Duloxetine) since the age of 20. As to physical ailments, he has type II diabetes and high cholesterol. He receives medication for both ailments.

The relevant legislation

1. [29]

   Section 54A of the repealed Act provided that a person’s status as a forensic patient may be extended in accordance with Pt 1 of Sch 1, which was titled “Extension of status as forensic patient”. The legislative provisions allowing an extension of a person’s status as a forensic patient are in Pt 6 of the Act which has the same title and replicates the structure of Sch 1 of the repealed Act.

2. [30]

   Section 121(1) of the Act requires the application to extend a person’s status as a forensic patient to be made under Div 2 of Pt 6, which sets out time constraints and other compliance requirements for an application, and identifies certain material that must accompany it: ss 124, 125 and 126(1)–(3). The defendant does not contest that the plaintiff has complied with these requirements and I find that they are satisfied.

3. [31]

   The Court determines an application by either making the order (not necessarily for the period sought) or by dismissing the application: s 127(1). The Court may make a second or subsequent extension order against the same forensic patient: s 128(2). Pursuant to s 129, the making of an extension order does not affect the operation of:

4. [32]

   A difference between an application for an extension order made pursuant to the repealed Act and the Act, is that Sch 1 of the repealed Act was subject to an objects clause, whereas there is no objects clause applicable to Pt 6 of the Act. The operation of Sch 1 was activated by s 54A (“A person’s status as a forensic patient may be extended in accordance with Schedule 1”), which was within Pt 5 of the repealed Act. Section 40 of the repealed Act set out the objects of Pt 5, as follows:

5. [33]

   The counterpart of Pt 5 of the repealed Act in the Act, also titled Pt 5, reproduces at s 69 the objects that are applicable to that Part in virtually identical terms to s 40 of the repealed Act. However, Pt 6 of the Act does not have an objects clause.

6. [34]

   Section 122 of the Act sets out the criteria for determining an application for an extension order:

Relevant principles

1. [35]

   Section 122 is in identical terms to cl 2 of Sch 1 of the repealed Act. In Attorney General of New South Wales v WB (Final) [2020] NSWSC 152, I considered the operation of cl 2, as follows:

2. [36]

   As to the meaning of the phrase “adequately managed”, in Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288, Garling J said:

3. [37]

   In Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107, Adamson J said, at [96]:

Section 127(2) matters

1. [38]

   Section 127(2) of the Act sets out a non-exclusive list of matters that the Court must have regard to in determining whether to make an extension order. These matters are now separately considered.

2. [39]

   This is essentially the same consideration as previously expressed in s 40(a) of the repealed Act: “to protect the safety of members of the public”.

3. [40]

   Pursuant to preliminary orders made by Wright J, reports were prepared by Dr Andrew Ellis, forensic psychiatrist, dated 27 June 2021, and Patrick Sheehan, forensic psychologist, dated 16 June 2021.

4. [41]

   Dr Ellis reviewed earlier reports of the defendant and concluded:

5. [42]

   Dr Ellis spoke with the defendant’s caseworker as to how the defendant has settled into his supervised accommodation:

6. [43]

   Dr Ellis made the following diagnoses:

7. [44]

   Dr Ellis considered and rejected certain additional diagnoses:

8. [45]

   As to the defendant’s risk of serious harm to others, including threatening behaviour that could lead to psychological injury or harm, Dr Ellis concluded:

9. [46]

   As to treatment, Dr Ellis stated that there is limited evidence that cognitive behavioural programs geared at sexual offending reduce recidivism, even less so for cognitively impaired persons. He continued:

10. [47]

    Dr Ellis observed that the defendant would not be considered to be a “mentally ill person” for the purposes of the Mental Health Act 2007 (NSW), as he does not have a mental illness and has not ever displayed delusions, hallucinations, thought disorder or bizarre behaviour indicative of those symptoms. Accordingly, he would not qualify for involuntary admission or a community treatment order under the Mental Health Act. For the same reason, public mental health services are unlikely to become involved in his care. I note these are relevant considerations in terms of available alternative care.

11. [48]

    Dr Ellis contemplated whether a combination of a continuing guardianship order, anti-libidinal medication and the oversight of the Child Protection Register might provide an alternative, but recommended against it, given the level of uncertainty as to the defendant’s motivations and the lack of clarity of long term community plans. He concluded:

Patrick Sheehan, forensic psychologist

1. [49]

   Mr Sheehan noted past diagnoses of post traumatic stress disorder (“PTSD”):

2. [50]

   Mr Sheehan noted that past assessments of the defendant’s degree of intellectual disability varied between “mild” and “moderate”. He administered the second edition of the WASI, which gauged the defendant as being in the bottom 0.3 percentile, or “extremely low” level, which Mr Sheehan said was consistent with past assessments of the degree of disability being “mild-moderate”. He also diagnosed the defendant as having a paedophilic disorder and alcohol use disorder (in sustained remission in a controlled environment).

3. [51]

   Mr Sheehan made the following observations of the relationship between the defendant’s intellectual disability and sexual offending, and how various government services have sought to address his treatment needs:

4. [52]

   I note that the defendant’s case manager for the Community Safety Program (“the CSP”), as appointed by the Tribunal, is Ms Subhasree Roy. In an affidavit affirmed on 24 March 2021 and read at the hearing, Ms Roy explained that the CSP is an agency within the NSW Department of Communities and Justice, and described its role as follows:

5. [53]

   Mr Sheehan assessed the defendant’s current treatment services and expressed an opinion as to an alternative approach that I think aligns with Dr Ellis’s opinion that the preferred strategy for modifying the defendant’s behaviour is through daily guidance by the supported accommodation staff:

6. [54]

   Mr Sheehan cautioned against over-reliance on assessment tools in assessing a person’s risk of serious offending. He assessed the defendant’s risk by the administration of a static risk factor test (“the Static-99R”) and a tool utilised to assess his dynamic risk factors; the Risk of Sexual Violence Protocol (“the RSVP”). Mr Sheehan concluded, as to the defendant’s level of risk:

7. [55]

   As to how that level of risk is best managed, and whether an extension order should be made, Mr Sheehan stated:

The evidence of Dr Ellis and Mr Sheehan at the final hearing

1. [56]

   Dr Ellis and Mr Sheehan gave evidence jointly at the final hearing. The central issue in dispute between the parties was as to the length of an extension order. Accordingly, the questioning of the forensic experts focused on their differing views as to the appropriate period of an extension order. When each witness was asked for their view of the other’s opinion as to the appropriate length, each agreed that there was no right or wrong opinion on that matter. Rather, their opinions were an estimate which was as valid as that made by the other expert.

2. [57]

   Dr Ellis explained that his estimate of five years was based on the length of previous offending and that the diagnosis of paedophilia is not likely to change in the short term. Dr Ellis elaborated:

3. [58]

   Consistently with their opinions in their reports, in view of the defendant’s significant intellectual disability, both forensic experts placed considerable weight on the therapeutic benefit of the daily supervisory support that the defendant received, as opposed to any insight he might gain from insight-based cognitive behaviour therapy sessions.

4. [59]

   In support of the plaintiff’s summons, a report was commissioned from Dr Richard Furst, forensic psychiatrist, dated 5 September 2020. Dr Furst diagnosed the defendant as having a mild to moderate degree of intellectual disability, an alcohol use disorder (in remission in a controlled environment) and a paedophilic disorder (non-exclusive type). Dr Furst was asked for his opinion as to the least restrictive means for the defendant’s risk to be managed. His response was to the effect that continuation of his forensic patient status was the most appropriate structure:

5. [60]

   In a follow-up report dated 19 April 2021, Dr Furst reviewed documentation setting out the defendant’s current accommodation and treatment arrangements, and concluded:

6. [61]

   There are no other reports that have been prepared expressly for the purpose of the plaintiff’s application, although the plaintiff has tendered numerous other reports that have been prepared over the years for courts and the Tribunal. Those prepared since 2018 include reports by Dr Ilana Hepner, clinical neuropsychologist, dated 14 June 2018; Dr Kerri Eagle, forensic psychiatrist, dated 14 August 2018; Professor Emeritus Susan Hayes, forensic psychologist, dated 3 April 2020 and 8 August 2020; and Emily Higgins, psychologist, dated 13 October 2020. The reports prepared by Drs Eagle and Hepner primarily concerned the defendant’s fitness to be tried and were of limited application to the matter before this Court. I have read those reports and, in my view, it is unnecessary to relate their contents, as they do not add to the reports of Dr Ellis and Mr Sheehan.

7. [62]

   Section 46(1) of the repealed Act provided:

8. [63]

   Following the Tribunal’s conditional release order made on 2 November 2020, the Tribunal next reviewed the defendant on 12 February 2021. The Tribunal made minor variations to the conditions attached to the conditional release order which had been proposed by the CSP and agreed by the defendant. The Tribunal expressed satisfaction with the current arrangements for the defendant.

9. [64]

   As noted, the plaintiff tendered forensic reports that were prepared over many years in relation to the defendant that do not relevantly add to the material that has been prepared expressly in support of the application. Much of this material comprises early assessments of the defendant’s intellectual disability.

10. [65]

    The defendant had a poor record of compliance with his obligations pursuant to the Child Protection (Offenders Registration) Act and CPP Orders. However, whilst detained in prison as a forensic patient following the finding that he was unfit to be tried, and since his conditional release into supported accommodation in the community, his compliance with prison discipline and the conditions of release imposed by the Tribunal has been excellent.

11. [66]

    Judge Ellis noted that the defendant was on bail at the time he committed the later offences and that he was subject to a bond at the time that all of the offences were committed.

12. [67]

    Judge Ellis acknowledged the defendant’s significant intellectual disability and the absence of ongoing support for him from family and other support personnel in his early adult years, as well as his limited capacity for compliance with conditions of liberty without support. His Honour stated:

13. [68]

    Conformably with expert forensic opinions, Judge Ellis rejected any causal connection between the defendant’s intellectual disability and the commission of the offences:

14. [69]

    His Honour nevertheless found that the defendant’s mental condition was relevant to the sentencing exercise in a number of ways. Although his Honour did not articulate what these were, he indicated that he took into account what was said by the Court of Criminal Appeal in Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.

15. [70]

    His Honour expressed reservations as to the defendant’s prospects of rehabilitation, although noting that his experience of being in custody for almost four years would likely have a deterrent effect upon him. His Honour took into account that upon release the defendant would have the benefit of services funded through the NDIS scheme.

16. [71]

    At the time that the limiting terms were imposed by Judge Ellis, Covid-19 restrictions applied in prison, meaning that for the entire period of the limiting terms, the defendant would be the subject of harsher custodial circumstances, including the loss of any opportunity to participate in courses. Judge Ellis noted that the defendant had been assaulted and bullied in custody and that he remained vulnerable in prison in that sense.

17. [72]

    The plaintiff read three affidavits by Ms Roy who, as noted earlier, is the defendant’s case manager. Her affidavits were affirmed on 24 March 2021, 20 April 2021 and 7 July 2021 and set out in some detail the services and treatment that the defendant is currently receiving. The plaintiff also tendered a report that Ms Roy had prepared for the Tribunal’s review of the defendant on 5 February 2021.

18. [73]

    Ms Roy gave evidence at the hearing. She confirmed that there is no suggestion of inappropriate behaviour by the defendant since he has been released into supported accommodation. Ms Roy explained that a behaviour support plan (“a BSP”) for a period of 12 months commencing on 30 November 2020 was prepared in relation to the defendant’s risk management therapeutic needs by an agency known as “Ability Consultants”.

19. [74]

    The defendant’s material included an affidavit affirmed by Rachael Henderson on 27 July 2021 that was read at the hearing. Ms Henderson is the defendant’s NDIS specialist support coordinator. She stated that the defendant has been granted funding for an NDIS plan that was approved on 27 November 2020 and will be reviewed on 27 November 2021. That review process involves a comprehensive overview of how he has progressed towards his plan goals, and the formulation of new goals and new budgets to achieve those goals.

The submissions of the parties

1. [75]

   The defendant conceded that it was open to the Court to determine that an extension order was appropriate, but disputed that it was necessary for it to be for a period as long as 5 years.

2. [76]

   In essence, the plaintiff’s submission was that, in the absence of an extension order, the defendant would lose the oversight of the Tribunal and, through it, the services that proactively manage his risk of causing serious harm.

3. [77]

   The defendant submitted that, absent an extension order, the defendant would still have the benefit of the clinical and accommodation services funded through the NDIS which address the issues addressed in his BSP and thus his ongoing treatment.

Consideration

1. [78]

   Having regard to the matters identified in s 127(2) of the Act, I am satisfied to a high degree of probability that if the defendant is not subject to an extension order, he poses an unacceptable risk of causing serious harm to others.

2. [79]

   I am also satisfied that the risk cannot be managed by other less restrictive means than by him remaining as a forensic patient, and thus subject to the supervision of the Tribunal.

3. [80]

   The operation of the Tribunal is nuanced and responsive to the on-going progress of the defendant in the community. Whereas a breach of a CPP Order would automatically constitute an offence and, potentially, further incarceration by way of punishment, that does not necessarily follow if the defendant breaches a condition of his release order made by the Tribunal. In my opinion, the Tribunal is ideally placed to manage the defendant since it has the institutional expertise of the management of persons who have a significant degree of intellectual disability and also a paedophilic disorder.

4. [81]

   I accept the evidence of Dr Ellis and Mr Sheehan that the defendant is benefitting in a therapeutic way from the daily supervision he presently receives. The staff ensure his compliance with the comprehensive conditions that have been imposed by the Tribunal as to his use of electronic devices and potential contact with children as he moves in the broader community, outside his supported accommodation. If he slips up, the Tribunal is ideally placed to modify, if needed, his conditions or treatment. The essence of that control would be lost if he was no longer a forensic patient, although he would continue to have available to him a high level of support.

5. [82]

   As noted, the Act does not limit the number of applications that may be made for an extension order. That being so, a lesser period of an extension order has the benefit of encouraging compliance by the defendant and enabling a timely review of the necessity or otherwise of the defendant’s status as a forensic patient.

6. [83]

   In determining the length of the extension order, I note Mr Sheehan’s opinion and Dr Ellis’ view as to the absolute minimum period, of 12 months. I particularly note Dr Ellis’ observation that non-compliance is likely to manifest within a period of two years. If that occurs, it would of course be of significance on any further application in respect of the defendant’s status.

7. [84]

   Taking into account all of those matters, I regard it appropriate to order that the status of the defendant as a forensic patient be extended for a period of two years and six months.