Attorney General of New South Wales v Wright (Final)

1. [1]

   By summons filed on 17 March 2022, the Attorney General for New South Wales (“the plaintiff”) commenced proceedings against Mr Matthew Wright (“the defendant”), seeking an order extending the defendant’s status as a forensic patient, pursuant to s 121 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the “MHCIFP Act” or “the Act”).

2. [2]

   The summons sought an order pursuant to s 126(5) of the Act for the appointment of two qualified psychiatrists or registered psychologists to conduct separate examinations of the defendant and furnish reports to the Supreme Court. It also sought that the defendant be directed to attend those examinations, and that he be subject to an interim order for the extension of his status as a forensic patient (an “interim extension order” or an “IEO”) commencing at midnight on 16 May 2022 and expiring three months after that date.

3. [3]

   By way of final relief, the summons sought an order extending the defendant’s status as a forensic patient (“an extension order”) for a period of one year. Finally, the summons sought ancillary relief by way of an order that access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

4. [4]

   On 5 May 2022, Justice Wright made orders for the appointment of experts and that the defendant be subject to an IEO extending his status as a forensic patient, commencing at midnight on 16 May 2022 and expiring three months later, on 15 August 2022. His Honour also ordered, pursuant to s 126(5) of the Act, that the defendant attend examinations by two Court appointed psychiatrists or registered psychologists, and for those experts to furnish reports to the Court.

5. [5]

   The final hearing of the plaintiff’s application for an extension order, pursuant to s 121 of the Act, was listed before me on 1 August 2022. Mr Ng of Counsel appeared for the Attorney General for New South Wales, and Mr Spohr, Solicitor Advocate, appeared for Mr Wright.

6. [6]

   I have been provided with a great deal of material in support of the application made by the plaintiff. That material includes reports from several experts. In particular, I have been assisted by the reports of the two Court appointed experts: the report of Dr Kerri Eagle, dated 1 July 2022, and the report of Dr Katie Seidler, dated 1 July 2022. Two supplementary expert reports have been filed: the supplementary reports of Dr Kerri Eagle, dated 26 July 2022, and the supplementary report of Dr Katie Seidler, dated 27 July 2022.

Background to the Plaintiff’s Application

1. [7]

   The defendant is a 28-year-old man, with the status of a forensic patient. Since his Honour Justice Wright imposed the IEO on 5 May, the defendant was reviewed by the Mental Health Review Tribunal (“the Tribunal”). On 24 June 2022, the Tribunal made orders for the defendant to be released subject to conditions.

2. [8]

   The defendant was so released on 1 July 2022, exactly one month prior to the date on which this final hearing was heard in this Court.

3. [9]

   The defendant’s criminal history dates to April 2013, when he was 19 years of age and was charged with certain dishonesty offences for which he received a bond without conviction. His history of violent offending dates to June 2014.

4. [10]

   In March 2015, the defendant was convicted of an offence of assault occasioning actual bodily harm. The circumstances giving rise to that offending conduct are contained in a police fact sheet relating to an incident that took place on 29 July 2014. The defendant had attended the victim’s home in the company of a female, referred to as the “witness”. The witness was intoxicated. The victim asked the witness to leave on several occasions, and grabbed the witness’s arm to get her off the couch. It was then that the defendant intervened and punched the victim. He proceeded to push the victim into a television and a glass cabinet in the kitchen. The victim suffered several injuries, and the defendant was charged with assault occasioning actual bodily harm. The defendant received a fine and was placed on a good behaviour bond for two years.

5. [11]

   On 27 August 2015, the defendant reacted violently when police attempted to exercise search powers, suspecting he was in the possession of a prohibited drug. When searched, the defendant in fact had no drugs in his possession but was charged with resisting police in the exercise of their duty. On the same day, the defendant committed an assault against his then partner, Ms Davies. In the context of an argument between the defendant and Ms Davies, he yelled at her, threatened to confront her, threw a can of drink at her, and pulled her by the throat using a t-shirt.

6. [12]

   An apprehended violence order (“AVO”) was issued following this offence. On 1 September 2015, the defendant contravened that AVO. The defendant was again granted bail, but, in January 2015, breached the conditions of that bail when he committed an assault against his previous partner, Ms Brown, who he punched and kicked several times in the course of an argument.

7. [13]

   On 10 February 2016, the defendant received his first term of full-time imprisonment in respect of resisting an officer in execution of their duty, common assault, and contravening the aforementioned AVO. While serving those concurrent sentences (each 12 months’ imprisonment, with a non-parole period of 6 months), he was found guilty of assault occasioning actual bodily harm and intimidation of Ms Brown.

8. [14]

   The index offending comprises of three offences committed by the defendant in 2018.

9. [15]

   The first index offence occurred on 11 September 2018, when the defendant and a juvenile approached the victim and asked to borrow his phone. The victim obliged, following which the defendant produced an imitation firearm and threatened the victim. He demanded money and that the victim’s phone passcode be changed. A fight between the defendant and the victim ensued, during which the victim was punched and suffered cuts and bruising. The defendant and the juvenile both fled the scene.

10. [16]

    On 12 September 2018, at about 9.30am, the defendant entered the garage of the victim and unsuccessfully attempted to start two motorbikes. He took one motorbike from the garage to the driveway, and again attempted to start it. He was unsuccessful and left without taking anything.

11. [17]

    About 15 minutes later, at approximately 9.45am, the defendant broke into the garage of a home, confronted the occupant, and demanded the drug ice. He took two motorcycles from the garage, which he could not start.

12. [18]

    The defendant was armed with a hammer and used it to strike the victim causing bruising. There was a struggle over possession of the bike, but the defendant left the scene without taking anything.

13. [19]

    On 28 April 2020, her Honour Judge Bright held an inquiry in respect of the defendant’s fitness to be tried, finding that the defendant was unfit to be tried for the offences. He was referred to the Tribunal. On 24 August 2020, the Tribunal determined that the defendant was unfit to be tried and would not become fit within 12 months of the Court’s finding of unfitness. Three special hearings followed this determination. The second of those special hearings will not be discussed in this judgment, as the defendant was acquitted of the charge.

14. [20]

    On 30 April 2021, her Honour Judge Harris made a finding that the defendant had committed the assault with intent to rob whilst armed with a dangerous weapon (a black imitation firearm). Her Honour imposed a limiting term of 3 years and 4 months, commencing on 17 December 2017, and expiring on 16 April 2022.

15. [21]

    The third special hearing dealt with the two break and enter offences. Her Honour Judge Norton found that the defendant committed each of those offences, and imposed a limiting term for a period of 3 years and 2 months, commencing on 17 March 2019 and expiring on 16 May 2022.

16. [22]

    The defendant has served his limiting terms. As indicated above, on 26 April 2022, a preliminary hearing of the plaintiff’s summons was heard before his Honour Justice Wright, and on 5 May 2022, his Honour granted the plaintiff interim relief.

17. [23]

    The plaintiff now seeks a final order, pursuant to ss 121 and 128 of the Act, that the defendant be subject to an order for the extension of his status as a forensic patient for a period of one year from the date of the order.

Legislative Framework

1. [24]

   A “forensic patient” is defined in s 72(1) of the Act as follows:

2. [25]

   The defendant became a forensic patient after a special hearing when he received a limiting term and was “detained in a mental health facility, correctional centre or other place” (s 72(1)(b)). The effect of the interim extension order, made by Justice Wright on 16 May 2022, was that the defendant retained his status as a forensic patient beyond the expiry of that limiting term. He, therefore, remains a forensic patient for the purpose of the Act.

3. [26]

   Section 121 of the MHCIFP Act empowers the Court to extend a person’s status as a forensic patient. Section 124(1) provides that a Minister administering the Act may make an application for an extension order where the forensic patient is subject to either a limiting term, or an existing extension order. The defendant is encompassed in that section by virtue of being subject to an interim extension order.

4. [27]

   In determining whether an order extending Mr Wright’s status as a forensic patient should be made, regard must be had to the objects enunciated in s 69 of the Act. They are as follows:

   1. (1)

      to protect the safety of members of the public;

   2. (2)

      to provide for the care, treatment and control of persons subject to criminal proceedings who have a mental health impairment or cognitive impairment;

   3. (3)

      to facilitate the care, treatment and control of any of those persons in correctional centres or detention centres through CTOs;

   4. (4)

      to facilitate the provision of hospital care or care in the community through CTOs for any of those persons who require involuntary treatment;

   5. (5)

      to give an opportunity for those persons to have access to appropriate care; and

   6. (6)

      to protect the safety of victims of forensic patients and acknowledge the harm done to victims.

5. [28]

   Section 122 sets out the test for when an extension order of a person’s status as a forensic patient may be made:

6. [29]

   The application is to be determined in accordance with Division 3 of the Act:

7. [30]

   The Court’s power to make an extension order is discretionary. Section 127(1) of the Act provides that the Court may determine an application to extend a person’s status as a forensic patient by making the order, or by dismissing the application. If an order is made, it may be for a period not exceeding five years from the day on which it commences (s 128(1)(b)). Nothing prevents the Court from making a subsequent extension order against the same forensic patient (s 129). In the present case, the duration of the extension order sought is a period of one year.

8. [31]

   Section 127(2) (as set out above) lists a number of matters that the Court “must” have regard to in determining whether or not to make an extension order. I note that this list is non-exhaustive, and the Court may also have regard to “any other matter it considers relevant”. I will now address the relevant matters in s 127(2) of the Act.

Unacceptable Risk Test

1. [32]

   As stated earlier, the determination of this application turns on whether the offender poses an “unacceptable risk of causing serious harm to others”. The Court must be satisfied of this to a “high degree of probability”.

2. [33]

   The term “to a high degree of probability” has been held to indicate a higher standard of proof than the normal civil standard, although it requires less than the criminal standard of beyond reasonable doubt. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374, the Court of Appeal observed at [21]:

3. [34]

   Section 122 of the Act provides that a forensic patient can be made the subject of an order extending their status as a forensic patient “if and only if the Supreme Court is satisfied to a high degree of probability” of certain matters. It is also appropriate to refer to the caution expressed that an order may be made “if and only if” the Court is relevantly satisfied. McClellan CJ at CL stated in Attorney General v Gallagher [2006] NSWSC 340 that those words “emphasise the care with which the Court must approach the question of whether to make orders imposing continuing restrictions, in whatever form, on a person’s liberty”.

4. [35]

   At present, the legislation does not define the term “unacceptable risk”. However, the term has been held to have the same meaning under the MHCIPF Act as it does under the Crimes (High Risk Offenders) Act 2006 (NSW) (“HRO Act”). Some insight into the term is provided by s 5D of the HRO Act, namely, that in determining risk:

5. [36]

   The expression “unacceptable risk” is to be understood according to its everyday meaning in the context of s 5B(d) and having regard to the objects of the HRO Act. Basten JA stated in Lynn v State of New South Wales (2016) 91 NSWLR 636 at [126] that:

6. [37]

   The meaning of an “unacceptable risk” in s 5B(d), and the principles which are to be applied, were summarised by Hoeben CJ at CL in State of New South Wales v Holschier (No. 2) [2018] NSWSC 1921 at [23] as follows:

7. [38]

   Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 observed at [71] that “unacceptability of risk involves consideration of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate” (see also State of New South Wales v Chaplin [2019] NSWSC 471 at [15]).

8. [39]

   In State of New South Wales v Loto [2018] NSWSC 1522, Rothman J noted at [14]-[17] that there is a “matrix of considerations” relevant to the risk assessment, and two important matters are “the probability or possibility that the risk will manifest” and “the seriousness of the harm that will ensure if the risk were to manifest.” It is possible that a risk is unacceptable because of the severity of the harm that would be caused by its eventuation, rather than because of its likelihood: see State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73]; State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43].

9. [40]

   The determination of whether there is an unacceptable risk is a discretionary exercise. I must make an assessment based on the likelihood of a risk eventuating, and the potential consequences if it does eventuate.

10. [41]

    It is apt to note that the right of an offender to his or her personal liberty at the expiry of their sentence is not a relevant consideration in the determination of whether a person poses an “unacceptable risk”. However, consideration of an offender’s circumstances, including the offender’s right to liberty and privacy, may influence the ultimate exercise of discretion as to whether or not to make an order: see Lynn at [44] per Beazley P, at [131] per Basten JA and at [149] per Gleeson JA.

11. [42]

    The meaning of “serious harm” has also been considered by this Court extensively. RA Hulme J in Attorney-General (NSW) v Kereopa (No 2) [2017] NSWSC 928 said that “serious harm” could concern either physical or psychological harm (at [16]). His Honour accepted the submission that in the event that the harm is physical, it does not have to satisfy the threshold of “grievous bodily harm” but must be more than “actual bodily harm”, while if the harm is psychological, it must be “something more than emotions such as fear or panic”.

12. [43]

    Section 122(1)(b) of the MHCIFP Act requires that the Court consider whether the defendant’s risk to the community may be managed by “less restrictive means”. The plaintiff bears the onus of proving the risk cannot be managed by less restrictive means. This must also be proved to a high degree of probability.

13. [44]

    In light of the respective positions of the parties, it is not necessary to deal with the second limb in any great detail. The real issue in these proceedings is whether the plaintiff can establish, to the requisite standard, that the applicant presents an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient.

14. [45]

    The plaintiff submitted that if the Court is indeed satisfied that there is an unacceptable risk, then that unacceptable risk cannot be adequately managed by other less restrictive means. The plaintiff further submitted that any reference by the Court appointed experts to consideration of a Guardianship Order for the defendant should be understood as a “wise” additional measure that could be considered in the management of the defendant in a global sense; it should not be considered as an alternative, less restrictive, means of managing the risk.

Expert Evidence

1. [46]

   Two Court appointed experts, Dr Katie Seidler and Dr Kerri Eagle, reviewed the defendant and provided expert reports, including supplementary reports, to the Court. In addition, there was a volume of psychological and psychiatric material tendered, including the reports of Dr Calum Smith, who gave evidence during the proceedings for the interim extension order.

2. [47]

   The defendant had not at that stage been released to the community. Dr Smith agreed that the defendant’s risk of reoffending could significantly reduce if an appropriate set of resources were at his disposal upon his release.

3. [48]

   Dr Eagle interviewed the defendant over two sessions, on 20 June 2022 and 27 June 2022. The opinions she presented in her report are based on those interviews as well as the documents she was provided in conducting her assessment.

4. [49]

   Dr Eagle asked the defendant about the index offences, and recorded his response as follows:

5. [50]

   When asked about the factors of his offending in the second interview, the defendant responded as follows:

6. [51]

   In respect of the aggravated break and enter offence, Dr Eagle recorded that the defendant stated:

7. [52]

   Dr Eagle determined that the defendant did not appear to have signs of a major mental illness, but opined that he:

8. [53]

   In developing the defendant’s “enduring trauma” and “psychological vulnerabilities”, Dr Eagle opined that his presentation was “consistent” with the syndrome known as complex post-traumatic stress disorder (“PTSD”), and, in particular, stated:

9. [54]

   Dr Eagle also recorded that the defendant has a mild intellectual disability, as well as a “substance use disorder” which was in remission on maintenance therapy in a controlled environment. Dr Eagle opined that the defendant has engaged in “problematic use of alcohol”, and that “[h]is substance use would exacerbate his psychological vulnerabilities, impair his judgment and has contributed to his offending behaviours.”

10. [55]

    Dr Eagle concluded that the defendant would “satisfy the criteria” for antisocial personality disorder:

11. [56]

    Against that background and formulation, Dr Eagle conducted an assessment of the defendant’s generalised risk of violent offending. Dr Eagle noted in her report that the defendant had a “high loading of historical risk factors”, and a “moderate” loading of “clinical factors” which are potentially changeable or modifiable by intervention. Furthermore, Dr Eagle considered the likely challenges the defendant would face in responding to any risk management plans, but in particular noted that:

12. [57]

    When Dr Eagle was asked to specifically opine as to the nature of the defendant’s risk, and whether he posed a risk of causing “serious harm” to others, she stated:

13. [58]

    Dr Eagle provided a supplementary report intended to be read in conjunction with her report dated 1 July 2022. The purpose of the report was to address whether supplementary material provided altered her opinion as evidenced in her 1 July 2022 report.

14. [59]

    Importantly, the supplementary information provided to her included:

15. [60]

    Dr Eagle noted that the opinions provided in her previous report were unchanged, and she remained “of the opinion that [the defendant] would benefit from the continuation of his forensic order for a period of 12 months to ensure he is able to engage with supports, avoid substance use and establish a prosocial lifestyle”.

16. [61]

    Dr Eagle noted that the defendant was released into the community on 1 July 2022 on conditions set by the MHRT. She remained of the view that given the defendant’s previous experience of supervision, he would benefit from external oversight of the MHRT during his transition to the community. Dr Eagle was concerned that the defendant would be at an increased risk of disengaging from supports, relapsing into substance use and “reoffending” in the absence of those conditions, particularly during his early release.

17. [62]

    Dr Seidler’s opinions were formed from the documentation provided to her and from an interview she conducted with the defendant by means of AVL on 20 June 2022.

18. [63]

    Dr Seidler noted that in that interview that the defendant was guarded, and:

19. [64]

    Dr Seidler recorded that the defendant:

20. [65]

    The defendant was also asked about his use of alcohol and illicit drugs:

21. [66]

    The defendant was also invited by Dr Seidler to identify his own understanding of his “risk/triggers” for relapse into drug abuse:

22. [67]

    In relation to his offending behaviour in general, and the index offending in particular, Dr Seidler recorded the following:

23. [68]

    Dr Seidler stated that:

24. [69]

    Dr Seidler opined that:

25. [70]

    Dr Seidler also directly addressed the question of the “nature and level of risk” that the defendant poses:

26. [71]

    Dr Seidler provided a supplementary report on 27 July 2022, to be read alongside the above report dated 1 July 2022.

27. [72]

    The purpose of the supplementary report was for Dr Seidler to review a number of documents and determine whether they altered her original assessment or recommendations. Dr Seidler noted that at the time of her 1 July 2022 report, the defendant was in prison, and, at that point, she was concerned about the lack of information before her as to his post-release plans from prison. She was “of the view that the quality, scope and integrity of these plans would be crucial in understanding the degree to which [the defendant’s] risk could be managed in the community.” In her supplementary report, she comments that it was “heartening” to see the comprehensive plans that have been developed for the defendant.

28. [73]

    She opined that:

29. [74]

    She stated:

Submissions

1. [75]

   In written submissions, Counsel for the plaintiff put the “ultimate submission” as follows:

2. [76]

   The plaintiff acknowledged that there is a “level of generality” to the risk assessment conducted by the experts, and that the test in s 122 of the Act is not one of generalised reoffending, but is one of causing “serious harm”.

3. [77]

   The plaintiff submitted, however, that the defendant poses a risk of serious physical or psychological harm. Judge Harris noted that the fact that the defendant’s use of a hammer in the index offending did not result in “serious harm” was a result of “luck and not design”. The plaintiff adopted this language, submitting that the defendant, particularly when using drugs, poses a risk of serious harm to others, even if that serious harm did not eventuate in the previous offending.

4. [78]

   It was also submitted that the defendant’s prior use of an imitation firearm could “give rise to an unacceptable risk of causing serious harm in a psychological sense”. The plaintiff has a further offence on his criminal record of unlawfully possessing knives; however, it was conceded in oral submissions that details of this offence are not before me, and there is no suggestion that he used a knife, or knives, to threaten or harm others. Nevertheless, the plaintiff submitted that this offence evidences a willingness to use implements such as knives, and in combination with his prior offence involving a hammer, points to the risk he poses to the community.

5. [79]

   The defendant submitted that while there can be little doubt that the defendant’s risk of any reoffending is related to the risk of his relapse into drug use, the risk analysis is an imperfect science, the limitations of which are recognised by the experts.

6. [80]

   It was submitted that the expert opinions, expressed on the basis of a number of contingencies, would not be sufficient to satisfy the Court to the high degree of probability required that the defendant poses an unacceptable risk of causing serious harm to another person.

7. [81]

   The defendant made submissions against placing disproportionate weight on the treatment plan that has been formulated to assist the defendant’s return to the community. It was submitted that the fact the risk posed by the defendant would be further reduced by implementing a treatment plan, does not itself resolve the question of whether there is at present an unacceptable risk of the defendant causing serious harm to another person.

8. [82]

   The defendant submitted that to decide whether a risk is unacceptable based on the fact that an offender may benefit from supervision, is to somewhat misstate the applicable question. The question is whether or not, in the absence of such supervision, he is an unacceptable risk of causing serious harm to another person.

Consideration

1. [83]

   A determination as to whether something is unacceptable is an evaluative task undertaken within the context of the objects and purposes of the Act. The objects and purposes of the Act include the safety and protection of the community.

2. [84]

   The expert evidence clearly establishes that the defendant poses a risk of generalised reoffending. The question is whether the plaintiff has discharged its onus by establishing that the defendant poses an unacceptable risk that he will cause serious harm to others if he ceases to be a forensic patient.

3. [85]

   Dr Eagle acknowledged that the tools available to assess the defendant’s risk of “future offending” were designed to assist in the assessment of “actual, attempted or threatened infliction of actual bodily harm on another person”. In applying the most recent version of the professional judgment tool, the Historical Clinical Risk Management-20, Dr Eagle noted that the defendant had a “high loading of historical risk factors” and a “moderate” loading of “clinical factors”, which are potentially changeable or modifiable by intervention.

4. [86]

   In providing a risk formulation, Dr Eagle had regard to the defendant’s previous violent offending, the fact that the violence occurred in the context of intoxication with illicit substances, and the fact that the defendant’s violent offending behaviour arose against the background of a significantly disadvantaged childhood.

5. [87]

   It was accepted that the defendant’s violent offending did not result in lethal, or potentially lethal, harm to others. However, Dr Eagle had regard to the fact that the defendant’s use of weapons “significantly increases the risk of [him] causing serious harm to others”. The plaintiff relies upon the risk of serious physical, as well as psychological, harm.

6. [88]

   It is undisputed that the defendant has a criminal record which includes matters of violence. The index offences involved the use of a weapon to intimidate and assault his victims. On one occasion, he was in possession of a replica firearm and, on another occasion, a hammer. Although the implements had the potential to cause serious physical and psychological harm, serious harm was not occasioned.

7. [89]

   In so far as his history of possessing knives is relied upon by the plaintiff in the assessment of risk, little weight can be placed on this factor given that the defendant did not use the knives to threaten or intimidate anyone. In respect of two of the offences he was dealt with by way of conviction with no other penalty, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). On the third occasion, he was dealt with by way of a fine of $200.

8. [90]

   The defendant did not impress as a particularly reflective or insightful individual when interviewed by the experts. That observation must be considered in the context of his intellectual disability and the various impacts it has had on his functioning. The defendant identified a number of strategies that, although unsophisticated, he could use to cope with high-risk situations so as to maintain abstinence. He identified the following strategies when interviewed by Dr Seidler: “stay away from people who use drugs”; “remain on Bivudal treatment”; and “use his will power”. The defendant identified being homeless as a trigger for relapse into drug abuse.

9. [91]

   Dr Eagle observed that the defendant’s primary risk factors for violence include his substance use disorder, emotional instability, cognitive deficits, peer influence and relationship difficulties. Dr Eagle opined that “if [the defendant] is able to achieve a stable prosocial lifestyle involving employment, positive family relationships, a stable living situation and engage with professional supports, his risk of relapse into substance abuse and reoffending would reduce. In the absence of any external control, I am of the view that [the defendant] is unlikely to be able to achieve a stable prosocial lifestyle”.

10. [92]

    The defendant was released into the community on 1 July 2022. He resides with his sister and her family. He is employed as a labourer at a scaffolding company, working at least three days per week. The defendant has remained abstinent. Importantly, the terms of the NDIS plan are not contingent upon his status as a forensic patient. Over $144,000 of NDIS funding for core and capacity supports, including a number of hours of support during the working week and on the weekend, has been secured.

11. [93]

    The Tender Loving Care Pty Ltd (“TLC”) Support Service Agreement, dated 2 June 2022, sets out the proposed services and supports. A document entitled “Matthew Wright Progress Report”, dated 27 July 2022, and a roster which identifies the allocated support worker and hours of support for each day in July, provides some further detail about the defendant’s progress. Ms Lisa Baron, TLC support worker, reports that the defendant has made some progress including obtaining his driver’s licence and birth certificate. He is working towards maintaining his fitness and improving his literacy.

12. [94]

    I accept, as submitted by the defendant, that a consideration of whether the risk would be further reduced by the imposition of mandatory conditions, does not resolve the question of whether the defendant is an unacceptable risk of causing serious harm to another person. However, an examination of the strategies that have been put in place since the defendant’s release to the community is relevant to an assessment of the level of risk.

13. [95]

    The opinions of each of the experts is heavily contingent. Each expert appears to reason that if the defendant relapses into drug use, he is highly likely to relapse into offending, and that offending may include violent offences. Dr Seidler opines that the defendant poses a high risk of future offending, and it is “possible that any such offending may reach the threshold to be considered a serious offence under the Act” (emphasis added).

14. [96]

    A fundamental consideration in determining whether the plaintiff has discharged its onus, is whether the material establishes that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. A risk of generalised offending does not satisfy the statutory test.

15. [97]

    In considering the question of whether the defendant poses an unacceptable risk of causing serious harm to others, I give the words “unacceptable risk” their ordinary meaning. I have also had regard to the observations of Harrison J concerning the question of “unacceptable risk” in State of New South Wales v Pacey [2015] NSWSC 1983 at [43] as follows:

16. [98]

    Taking all of the material before me at its highest, I am satisfied that the defendant poses a risk of engaging in further general criminal activity if not supervised. Despite this, I am not satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be forensic patient.

17. [99]

    Although the Tribunal has a monitoring role and can enforce the supervisory conditions attached to the defendant’s status as a forensic patient, the defendant’s supports in the community are provided primarily through the NDIS plan and his family.

18. [100]

    It is regrettable that the defendant was not afforded a period of supervision in the community prior to the expiration of his limiting term. Such supervision would have allowed for monitoring of the defendant’s progress in the context of positive family relationships, employment, stable accommodation and engaging with professional supports.

19. [101]

    There is no statutory basis to extend the defendant’s status as a forensic patient unless I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others. I am not so satisfied.

Orders

1. [102]

   Accordingly, I make the following orders:

   1. (1)

      The plaintiff’s summons is dismissed; and

   2. (2)

      Access to the Court file in this proceeding is restricted such as that access would be permitted to a non-party only with the leave of a Judge of this Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.