Attorney General for New South Wales v McGuire (Preliminary)

1. [1]

   By summons filed on 15 June 2021, the Attorney General for New South Wales (“the plaintiff”) sought a 2 year extension order (“EO”) pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”) in relation to Mr Herbert McGuire (“the defendant”).

2. [2]

   The matter was listed for preliminary hearing on 4 August 2021. The following material, filed in support of the application brought by the plaintiff, was before the Court:

   1. (1)

      Risk Assessment Report of Professor Susan Hayes, forensic psychologist, dated 16 April 2021 (“the RAR”);

   2. (2)

      Affidavit of Elizabeth Blomfield, solicitor for the plaintiff, sworn on 11 June 2021, together with exhibit EB-1;

   3. (3)

      Affidavit of Ms Blomfield, sworn 29 July 2021, together with exhibit EB-2;

   4. (4)

      Psychiatric Report of Dr Kerri Eagle, forensic psychiatrist, dated 21 January 2021;

   5. (5)

      Psychological Report of Ms Jenny Howell, psychologist, dated 21 January 2021;

   6. (6)

      determinations of the Mental Health Review Tribunal (“MHRT”) and NSW Civil and Administrative Tribunal (“NCAT”), dated between 17 September 2019 and 13 November 2020;

   7. (7)

      documents regarding the provision of support services to the defendant by the Community Safety Program (“CSP”) and New Horizons, dated between 7 January 2019 and 18 February 2021; and

   8. (8)

      documents received from the Department of Communities and Justice, dated between 25 September 2020 and 9 July 2021.

3. [3]

   The defendant did not tender any material on the application, save for the provision of an aide memoire entitled “Comparative Table of Supports and Restrictions for Herbert McGuire”. That document was treated as forming part of the defendant’s written submissions.

4. [4]

   On 12 August 2021, the Court made the following orders:

5. [5]

   The Court indicated that its reasons for decision would be published in short order. These are those reasons.

THE PRELIMINARY HEARING

1. [6]

   Pursuant to s 126(4) of the Act, a preliminary hearing was required. The Court must be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an EO (s 126(5) of the Act) (hereinafter that test shall be referred to as “the preliminary hearing test”).

2. [7]

   If the Court is so satisfied, the Court must make the orders sought by the plaintiff in prayer 1(a) and (b) of the summons, namely, an order appointing a psychiatrist and/or psychologist to conduct separate examinations of the defendant and furnish their reports to the Court and an order directing the defendant to attend those examinations (required under s 126(5)(a) and (b) of the Act).

3. [8]

   The plaintiff bears the onus of proof, including at the interim stage: Attorney General of New South Wales v Blanks [2021] NSWSC 303 (“Blanks”) at [75].

4. [9]

   Counsel for the defendant, Dr J Lucy, developed two contentions as to the applicable principles governing a preliminary hearing.

5. [10]

   First, it was contended the preliminary hearing test does not apply in the same way as a Magistrate would approach the prima facie test in committal proceedings. In support of that position the defendant submitted:

   1. (1)

      It may be accepted that this Court has, on numerous occasions, compared the tests at a preliminary hearing under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the CHROA”), the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the THROA”), or the former Mental Health (Forensic Provisions) Act 1990 (NSW) (“the former Act”) to the “prima facie case” test under the Criminal Procedure Act 1986 (NSW). However, this is only an analogy and, as has been judicially recognised, although there may be some similarities between the tests, there are also significant differences. Reference in that respect was made to the authorities of State of New South Wales v Loto [2018] NSWSC 1522 (“Loto”) at [20]-[21] (per Rothman J); State of New South Wales v Elomar (No 2) [2018] NSWSC 1034 (“Elomar (No 2)”) at [7] (per Rothman J); State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [18]-[19] (per R A Hulme J); State of New South Wales v DK (Preliminary) [2018] NSWSC 1947 at [11] (per Fullerton J); State of New South Wales v McGee (Preliminary) [2019] NSWSC 53 at [10] (per Fullerton J).

   2. (2)

      Significantly, it was contended, unlike with a prima facie case test, under the Act there is no different or lesser standard of proof in preliminary proceedings as compared to at a final hearing. The only difference is that the Court must accept certain of the plaintiff’s allegations as being proven. As Cavanagh J observed in Blanks at [79], “[i]n practical terms, the only difference between what must be established on a preliminary application rather than a final application is that for the purposes of interim orders, it is not necessary that the plaintiff prove the matters alleged in the supporting documentation”.

   3. (3)

      In this case, there is little dispute between the parties as to matters of fact. It is accepted that the defendant committed the index offences, that he has an intellectual disability, that he had problems with alcohol but now does not consume it, that he began living with his brother in Young in July 2020, and that he now lives mainly on a property he purchased nearby. In other words, in general, the factual matters which are alleged in the supporting documentation are not in dispute. It was contended that:

   4. (4)

      The plaintiff has the burden of persuading the Court that the defendant does pose such a risk and the plaintiff must do so to a standard of proof which is higher than the civil standard. A finding that the defendant poses such a risk is not one to be made lightly.

6. [11]

   Secondly, emphasis was placed by the defendant upon the construction of “matters alleged in the supporting documentation” in s 126(5) of the Act and, in particular, why the Court would not accept the opinion of Professor Hayes as constituting a “matter alleged”. Turning first to construction, generally, the defendant advanced the following submissions in support of that proposition:

   1. (1)

      Only the “matters alleged in the supporting documentation” are directly the subject of the Court’s consideration, namely, matters of fact and “not the content of the plaintiff’s submissions”: Blanks at [81].

   2. (2)

      The term “supporting documentation” is not defined in the Act (whereas that term is defined in both the CHROA and the THROA). It should, therefore, be given its ordinary meaning. In Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439 (“Bragg”) at [20], Wright J observed: the “supporting documentation” is “the documentation provided by the Attorney General in support of his application and does not include evidence provided by the defendant in opposition”.

   3. (3)

      The plaintiff is obliged to identify certain facts in the supporting documentation which, if proved, would lead to a conclusion that would justify the making of an EO: Elomar (No 2) at [9]; State of New South Wales v Barez (Preliminary) [2019] NSWSC 1589 at [34]. The reference to “matters alleged” is to “matters of fact, not mere allegations”; that is, to “matters of fact that, if proved, would be open to lead to a particular conclusion”: Loto at [20]; State of New South Wales v Chaplin [2019] NSWSC 471 (“Chaplin”) at [19]. That submission was supported by reference to applications made under the THROA:

7. [12]

   Building upon those contentions with respect to the construction of s 126(5) of the Act, the defendant turned to contentions specifically concerning the opinion of Professor Hayes; particularly, her opinion expressed in the RAR that the defendant poses a “moderate risk” of causing serious harm to others if he ceases to be a forensic patient (“the opinion of Professor Hayes”). It was contended:

   1. (1)

      There is a question as to whether an opinion of an expert, such as Professor Hayes, is a “matter alleged”. Some judges have expressed a view that “matters” may include “reports” and opinions (see, for example, State of New South Wales v Sturgeon [2019] NSWSC 559 at [11]; Attorney General of New South Wales v WB (Preliminary) [2019] NSWSC 1664 at [75]). The opinion of Professor Hayes, however, is not a “matter alleged”. Rather, it is a conclusion. Therefore, it is not a “matter of fact that, if proved, would be open to lead to a particular conclusion”: Loto at [20]; Chaplin at [19]. It is an expression of opinion about the very matter of which the Court must be satisfied before making an EO (see ss 122(1)(a) and 130(b) of the Act).

   2. (2)

      The Court should not accept the opinion of Professor Hayes as a “matter alleged” in the supporting documentation for the following reasons:

   3. (3)

      Those contentions as to the limits of the use of the opinion of Professor Hayes (vis-à-vis risk) did not extend to the entirety of the expert’s opinion expressed throughout the RAR. In that light it was submitted:

   4. (4)

      The preliminary hearing test does not require the Court to simply accept the opinion of Professor Hayes as its own “because it is not a matter alleged”. In oral submissions, counsel for the defendant supplemented that submission with the following:

   5. (5)

      During oral submissions, it was also accepted that the opinion of Professor Hayes is properly before the Court and is “a matter that the court would have regard to in the assessment required under 122(1) and, in that respect, the consideration of whether the requisite degree of probability had been established”. However, turning to the test under s 130, it was contended that “the court's task is to look at all the factual matters alleged and see whether that would justify the making of an order” and the opinion of Professor Hayes is not a factual matter. As such, the Court cannot be bound by the opinion of Professor Hayes as to risk.

8. [13]

   I now turn to my consideration of the defendant’s contentions.

The First Contention

1. [14]

   The plaintiff relied upon the judgment of Davies J in Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144 (“Boyce”). His Honour stated (at [9]-[12]):

2. [15]

   It may be observed, his Honour did not propose that the test was identical to a prima facie test applied in committal proceedings but there are some common elements.

3. [16]

   I propose to apply the principles in State of New South Wales v Love (Preliminary) [2019] NSWSC 1660 (“Love”) at [31]-[33], in this respect, which were accepted by counsel for the defendant. The relevant passages are extracted below:

4. [17]

   Whilst those principles were stated in the context of a preliminary hearing under the CHROA, there is no relevant distinction in the respective statutory schemes (between the Act and the CHROA) as would warrant the adoption of a different approach.

5. [18]

   Reference might also be made to the further observation in Love at [34]:

6. [19]

   Dr Lucy was correct to emphasise that the legislature does not produce any different test as to unacceptable risk as between preliminary or final hearing, both apply the provision of s 122 of the Act.

7. [20]

   However, that does not warrant a preliminary hearing being treated as if it were a final hearing. To do so would be productive of error, even if the comparison was largely theoretical. The statutory requirement is that, at the preliminary hearing stage, the Court considers whether the matters alleged would, if proved, satisfy the Court that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient and the risk cannot be adequately managed by other less restrictive means.

8. [21]

   Nor does an acceptance of the operation of s 122 of the Act in the context of a preliminary hearing diminish the practical force of the observation of Hoeben CJ at CL with respect to cl 6(5)(a) of Sch 1 of the former Act in Attorney General for New South Wales v Rohan (Preliminary) [2020] NSWSC 1610 (“Rohan”).

9. [22]

   At [49], Hoeben CJ at CL observed that cl 6(5)(a) of Sch 1 of the former Act is to be applied without considering what evidence might be called by the defendant at the final hearing, or any evidence called by the defendant at the interim hearing. His Honour also observed that one purpose of the preliminary hearing stage is to allow the Court to filter out unmeritorious applications at an early stage: Rohan at [47]. I adopt those principles with respect to s 126(5)(a).

The Second Contention

1. [23]

   The defendant’s second contention, namely, that the Court was not required to adopt the expert opinion bearing upon the question of unacceptable risk because the Court would need to weigh that opinion in the light of all the material before the Court in the preliminary hearing and form its own independent judgment, needs to be approached with some care, consistent with the requirements of ss 126(5) and 130 of the Act

2. [24]

   Section 126(5) does not require the Court to analyse the material in the supporting documentation in terms of assessing whether or not the Court accepts the opinions given by the authors' various reports. Instead, it requires a narrower inquiry as to whether what is alleged in that supporting documentation would, if proved, justify the making of an EO. A test for whether an EO may ultimately be made is that specified in s 122(1), namely, satisfaction to a high degree of probability that the forensic patient poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient and the risk cannot be adequately managed by other less restrictive means. If, following the preliminary hearing, the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an EO, the Court must dismiss the application. (See also State of New South Wales v Lynn [2013] NSWSC 1346 at [17] (per Beech-Jones J); Love at [30]).

3. [25]

   The defendant also contended that the opinion of Professor Hayes, namely, that the defendant posed a “moderate risk of causing serious harm to others if he ceased to be a forensic patient” in the RAR, did not constitute a matter “alleged in supporting documentation” for the purposes of ss 126(5) and 130(b) of the Act because, inter alia, it is a conclusion and not a matter of fact.

4. [26]

   I do not accept that submission for the following reasons:

   1. (1)

      The words “in the supporting documentation” in the expression “the matters alleged in supporting documentation” is, in my view, a reference to the documentation referred to in s 125. Apart from the inclusion of the wording “supporting” and “supported” in the respective provisions (the former being situated in ss 126(5) and 130), the expression “the” in “the supporting documentation” in s 126(5) signifies a cohesive use, drawing a link with the counterpart expression where previously used (in this instance, s 125). There is a connection to that earlier referred to. Further, the rule of construction is that words are assumed to be used consistently in a statute is applicable here, particularly where the words are used in the same division of Pt 6 of the Act: McMillan v Pryce (1997) 115 NTR 19 at 23.

   2. (2)

      The provisions of s 125 specify the documentation which is required to support the application. Given the cohesive relationship between ss 125 and 126(5) (and s 130) as discussed above, “the matters” referred to in s 126(5) must include those expressly identified in s 125(a) and (b). It follows that the matters alleged in the supporting documentation include “the matters” referred to in s 127(2) (per s 125(a)) and the reports referred to in s 125(b), namely, a “report” prepared by a qualified psychologist, registered psychologist or registered medical practitioner (also corresponding to the provisions of s 127(2)(b) (and s 127(2)(c)). That is consistent with Professor Hayes’ report and the opinions therein constituted matters alleged in supporting documentation.

   3. (3)

      The defendant contended that the Court exercising “its independent judgment in determining whether the facts alleged by the plaintiff would, if proved, justify the making of an extension order” (emphasis added). However, the provisions of ss 126(5) and 130(b) refer to the Court’s determination being made with respect to “the matters alleged in supporting documentation”. When those considerations are brought to bear upon the issue raised with respect to Professor Hayes’ report, the assessment as to whether to make an interim extension order (or to make orders appointing relevant practitioners to undertake an examination) will be made “having regard to” the views expressed in the RAR.

   4. (4)

      Thus, ss 126(5) and 130 direct attention to the matters referred to in s 127(2). A report of a qualified psychologist is a matter the Court “must have regard to” under s 127(2)(c). The phrase “have regard to” is not, on its natural meaning, exclusive or exhaustive. When used in collocation with a list of matters to be taken into account, as appears in s 127(2), the phrase has been construed as an expression which is mandatory but not exhaustive: see Owen v Woolworths Properties Ltd (1956) 96 CLR 154 at 160 (per Dixon CJ, Williams, Fullagar, Kitto and Taylor JJ). This is consistent with the natural meaning of the phrase, namely, “to consider”.

   5. (5)

      The adoption of this approach, and thus the rejection the approach contended for by the defendant, does not “usurp” the Court’s role which is governed by the statute and requires a consideration of all of the material produced in support of the application, in the manner earlier discussed, on the preliminary hearing.

INDEX OFFENCES

1. [27]

   On 17 August 2006, the defendant was charged with three offences contrary to s 61I of the Crimes Act 1900 (NSW), namely, that he had sexual intercourse with a person without consent knowing that the person did not consent (“the index offences), and with one offence of aggravated break and enter and commit serious indictable offence, contrary to s 112 of the Crimes Act.

2. [28]

   On 3 September 2009, following a special hearing, Murrell SC DCJ found that, on the limited evidence available, the defendant committed the index offences: R v McGuire [2009] NSWDC 245 at [42]. Her Honour described the index offending at [21]-[25]:

3. [29]

   Murrell SC DCJ imposed a limiting term of 5 years, which commenced on 1 January 2009 and expired on 31 December 2013.

4. [30]

   Since 31 December 2013, the defendant has been the subject of five EOs, ordered by this Court (each of them 1 year in length, save for the EO immediately preceding the order made by the Court as presently constituted, which had a duration of 2.5 years).

LEGISLATIVE REQUIREMENTS

1. [31]

   An application for an EO can only be filed if, inter alia, the defendant is on an existing EO (s 124(1)(b)). Any such application must be filed within the last 6 months of the expiry of the existing EO (s 126(2)(b)). These requirements were met. As at the time of the preliminary hearing, the defendant was on a 2.5 year EO ordered by Wright J on 13 February 2019. It expired on 13 August 2021.

2. [32]

   The application also meets the requirements in s 125(a) and (b) as it is supported by documentation that addresses the factors in 127(2) (as set out at the outset of this judgment), which documentation included the RAR prepared by Professor Hayes.

3. [33]

   There are further requirements of s 122(1)(a) and (b), which will be discussed below.

RELEVANT PRINCIPLES

1. [34]

   I now turn to a summary of the principles governing preliminary hearings of this kind, which, notwithstanding the relatively new legislation, are well settled. At the outset, it may be noted that the relevant provisions of the Act substantially repeat the wording of the former Act. As such, the principles governing the application of the provisions of the former Act remain relevant and applicable in the context of the new Act.

2. [35]

   Comparatively, there is no difference between Sch 1 (cll 1 to 22) of the former Act and Pt 6 (ss 121 to 144) of the Act. Accordingly, the settled law that considered the former Act applies: Bragg; Attorney General for New South Wales v Mulipola (Preliminary) [2021] NSWSC 790.

Unacceptable Risk

1. [36]

   An EO may only be granted if the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient and the risk cannot be adequately managed by other less restrictive means: s 122(1)(a) and (b) of the Act (cl 2(1) of the former Act being the equivalent provision).

2. [37]

   Section 122 provides:

3. [38]

   The Court is not required to determine that the risk of the person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm: s 122(2). The risk is to be assessed on the assumption that the defendant is not a forensic patient or an involuntary patient: Rohan at [26] (considering cl 2(1)(a) of the former Act).

4. [39]

   Assessing whether a forensic patient would pose an unacceptable risk of causing serious harm to others is an evaluative exercise, and involves considering both the likelihood of the risk of harm eventuating as well as the gravity of the risk that may eventuate: Attorney General for NSW v MZ [2017] NSWSC 1773 (“MZ”) at [11] (per Fullerton J). The assessment is to be made in the context of the objects of the forensic patient scheme – which includes protecting the safety of members of the public, ensuring the appropriate care of forensic patients, and protecting the victims of forensic patients – but acknowledging that the Court’s obligation is to secure the community from harm to a reasonable or adequate degree as opposed to guaranteeing its safety and protection: MZ at [11]; see also Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288 at [59] (per Garling J).

5. [40]

   Under the Act, the relevant objects of Pt 5 appear at s 69 (with slight alteration to the objects that appeared at s 40 of the former Act). Section 69 is extracted below:

6. [41]

   The following principles, with respect to “serious harm” referred to in cl 2(1)(a) of the former Act, apply to “serious harm” as referred to in s 122(1)(a) of the Act:

   1. (1)

      The “unacceptable risk” is that of “causing serious harm to others”.

   2. (2)

      The “serious harm” referred to in cl 2(1)(a) encompasses a broader range of conduct than the concept of “serious sex offences” or “serious violence offences” under the CHROA: Rohan at [35].

   3. (3)

      The “serious harm” which must be considered is not limited to physical harm and it may include psychological harm: Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 (“Kereopa No 2”) at [16] (per R A Hulme J).

   4. (4)

      “Serious harm” need not be “grievous bodily harm” but involves “something more than would satisfy the minimum threshold for ‘actual bodily harm’ under the criminal law… [and] psychological harm must be something more than emotions such as fear or panic”: Kereopa No 2 at [16], cited approvingly in Rohan at [36]. See also Bragg at [26].

7. [42]

   The expression “high degree of probability” indicates something “beyond more probably than not”, so that the existence of the risk does have to be proved to a higher degree than the normal civil standard of proof, but not to the criminal standard of beyond reasonable doubt: Rohan at [22], citing Cornwall v Attorney General of New South Wales [2007] NSWCA 374 at [21] (in the context of the CHROA); Attorney General for New South Wales v Huckstadt [2017] NSWSC 441.

8. [43]

   The right of a forensic patient to his or her personal liberty at the expiry of the limiting term is not a relevant consideration in the determination of whether they pose an unacceptable risk for the purposes of s 122(1)(a): Rohan at [33] (per Hoeben CJ at CL, citing Boyce and Lynn v State of New South Wales [2016] NSWCA 57, with respect to cl 2(1)(a) of the former Act).

9. [44]

   In considering whether or not to make an extension order, the Court must have regard to the matters in s 127 of the Act.

10. [45]

    Section 127 provides:

Management of Risk

1. [46]

   Evaluating whether the defendant’s risk can be adequately managed by other less restrictive means involves more than considering the defendant’s proposed treatment regime and care: Attorney General of NSW v Doolan (No 2) [2016] NSWSC 107 at [96] (per Adamson J).

2. [47]

   In Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859, R A Hulme J stated (at [54]): “the focus should be more on the question of adequately managing the risk, rather than identifying whether one regime is more or less restrictive than the other”.

3. [48]

   In Attorney General of New South Wales v McGuire (No 2) at [63], Garling J said that the phrase “adequately managed” means that:

4. [49]

   In Attorney General for New South Wales v McGuire by his tutor Thompson [2019] NSWSC 76 (“the 2019 EO decision”), Wright J stated that the process for assessing whether the risk can be adequately managed by other less restrictive means involves the following (at [28]-[29] and [33]):

5. [50]

   “Adequate management of risk” is more holistic than treatment and may involve considerations such as managing how the defendant may be reviewed, who can discharge him, monitoring risk, the ability to quickly respond to elevations of risk or deterioration of mental health, what is considered before the defendant is released and how he may be reintegrated in the community.

6. [51]

   As the defendant is not mentally ill he cannot be managed under the Mental Health Act 2007 (“the MHA”). The Guardianship Order is limited and cannot provide the oversight of monitoring for drug and alcohol use.

7. [52]

   I now turn to the factors under s 127(2).

The Defendant

1. [53]

   The defendant is a 48-year-old man and the youngest of nine siblings. Born and initially raised in Ballarat, Victoria, the family moved to Katoomba and then to Department of Housing accommodation in Mt Druitt. The defendant did not finish high school (being expelled in Year 8). When the defendant was 17, he lived with his sister and held a job as a painter’s labourer. Later in life, the defendant lived with his parents who had since moved to Young. He was in a romantic relationship from 1993 to 2014, and he had a daughter with this partner. He then moved to Richmond and lived with one of his brothers. Prior to the index offence, the defendant was homeless and heavily drinking alcohol.

2. [54]

   The defendant has mild to borderline intellectual disability which affects his verbal intellect, executive functioning and behaviour. He requires assistance with life skills, problem solving and emotional regulation. The defendant has also been diagnosed with substance use disorder (in remission) and has anti-social traits.

3. [55]

   In 2013 (after the limiting term expired), the defendant re-commenced contact with his daughter who had given birth to a baby boy. In 2015, that contact ceased. The RAR suggested that, presently, the defendant may be having occasional contact with his daughter (enough to suggest they are not estranged).

4. [56]

   The defendant is on a limited Guardianship Order dated 13 November 2020 for a period of 1 year. The Public Guardian can make decisions about provisions of and access to services to be provided to the defendant. The defendant is receiving Disability Support Pension (“DSP”) and the National Disability Insurance Scheme (“NDIS”) funds supports services for him. The defendant’s finances are managed by the NSW Trustee and Guardian.

5. [57]

   In 2020 and 2021, the defendant lived with one of his brothers in Young, helping that brother with the scrap metal business.

6. [58]

   In 2020, the defendant had received a driver’s licence but in 2021, due to a number of speeding infringements, his licence had been suspended. The defendant’s driver’s license was reinstated in April 2021.

7. [59]

   The defendant has been subjected to mandatory drug and alcohol testing whilst on the EO and his results are consistently negative.

Criminal History

1. [60]

   A review of the defendant’s criminal history shows that he has caused serious harm, including the index offences, violence arising from dangerous driving and violence occasioning grievous bodily harm to a police officer. A repeat of any these offences is “unacceptable” noting the potentially damaging consequences (emotionally or physically) to a potential victim.

2. [61]

   The defendant’s criminal history commenced in 1996, when he was 24 years old. He has been sentenced to terms of imprisonment and/or fined for offences including, breaching an apprehended violence order, dangerous driving, stealing, assault, driving under the influence, destroying property, and driving recklessly. Prior to the index offences, his criminal history predominantly involved driving related offences.

3. [62]

   Relevantly, on 26 October 2007, while on bail for the index offences, the defendant was charged with, inter alia, assaulting an officer in the execution of duty, resisting an officer in the execution of duty, assaulting a police officer in the execution of duty causing actual bodily harm and inflicting grievous bodily harm on a police officer executing duty. The defendant was taken into custody. On 19 June 2009, the defendant was convicted for those offences and sentenced to 2 years 6 months’ imprisonment, which commenced on 26 January 2008 (non-parole period of 1 year 6 months 18 days).

Mental Health Practitioner Reports: s 127(2)(c) and (d)

1. [63]

   On this application the Court had before it the following reports:

   1. (1)

      the RAR;

   2. (2)

      Dr Eagle’s report, dated 21 January 2019; and

   3. (3)

      Ms Howell’s report, dated 21 January 2019.

2. [64]

   The RAR was produced in relation to the application presently before the Court. The reports of Dr Eagle and Ms Howell were before Wright J in the 2019 EO decision. Both practitioners were previously appointed as independent experts pursuant to the orders of Button J: Attorney General of NSW v McGuire [2018] NSWSC 1795.

3. [65]

   Professor Hayes diagnosed the defendant with the following:

   1. (1)

      mild to borderline intellectual disability, noting the defendant functions well below his chronological age in all domains. She also opined that the defendant lacks executive functioning, an ability to control impulses and emotions, and a capacity to plan and foresee his consequences; and

   2. (2)

      substance use disorder (alcohol and cannabis), which was once chronic but now in remission. She noted, in that respect, the defendant was using alcohol at the time of the index offences but for at least 18 months he has not had any alcohol or illicit substances. Notwithstanding that fact, Professor Hayes commented that there is always a risk of relapse.

4. [66]

   Professor Hayes opined that because of the defendant’s intellectual disability, he is:

5. [67]

   Professor Hayes opined that the defendant presents a moderate risk of causing harm to others if he ceases to be on an EO. Professor Hayes opined that:

   1. (1)

      the defendant’s intellectual disability may contribute to his risk of sexual reoffending (for example, because he lacks the capacity to foresee the consequences) but it is not necessarily a causal factor;

   2. (2)

      alcohol use elevates the defendant’s risk, and it was a direct causal factor to the defendant’s sexual offending. Professor Hayes advises that this factor must be monitored to reduce the defendant’s risk;

   3. (3)

      any deterioration in family relationship would elevate the defendant’s risk of reoffending;

   4. (4)

      the defendant has little insight into his risks and limited strategies for responding to stress; and

   5. (5)

      any decreases in support and supervision would increase the defendant’s likelihood of reoffending.

6. [68]

   Professor Hayes noted that other psychiatrists have diagnosed the defendant with anti-social and paranoid personality traits and commented that anti-social traits elevates the defendant’s risk of reoffending and “[the defendant’s] psychiatric state needs to be monitored”.

7. [69]

   During the interview, Professor Hayes found some of the defendant’s remarks about women noteworthy and of concern. She stated:

8. [70]

   Professor Hayes opined that “the externally imposed structures and conditions inherent in [the defendant’s] forensic patient status have been highly significant in controlling the anti-social behaviours which would otherwise contribute to the risk of causing serious harm to others”.

9. [71]

   Professor Hayes commented that the treatment and management strategies provided to the defendant have contributed to the defendant’s alcohol abstinence, establishment of a daily routine, acceptance of some level of responsibility for the offences, some involvement of family members, and motivation to adhere to the conditions (because of concern about consequences).

10. [72]

    Professor Hayes opined that the static variables reflect “the high probability of having been the victim of child sexual abuse, and a history of previous offences involving violence”. Professor Hayes invited consideration of psychological intervention for child sexual abuse and family violence and psychotherapy that may assist the defendant with emotional regulation and cognitive restructuring.

11. [73]

    Professor Hayes administered the Kaufman Brief Intelligence Test Second edition (“KBIT- 2”). The results of that test were the same as that administered in 2014, suggesting that the defendant’s mental health impairment is not amenable to change but it also means that there has been no deterioration.

12. [74]

    The scores on the KBIT-2 indicated to Professor Hayes that the defendant functions in the “range of borderline intellectual disability at a level lower than 95% of his age peers”:

    1. (1)

       the defendant’s verbal score was less than his non-verbal, indicating that the defendant has difficulties solving problems in the verbal arena and understanding verbal instruction; and

    2. (2)

       the defendant’s functional age is similar to the reasoning skills of a child in Year 4 at school.

13. [75]

    Professor Hayes administered the Vineland Adaptive Behavior Scales Second edition (“the Scales”). This tool assesses adaptive behaviour in three major domain areas: communication, daily living skills and socialisation. The Scales assess the degree to which the patient is able to function and maintain himself independently and the degree to which he meets the culturally imposed demands of personal and social responsibility

14. [76]

    The results placed the defendant in the range of mild intellectual disability at a level lower than 99% of his age peers. The table in the RAR indicates scores similar to children between 5 and13 years of age.

15. [77]

    The STATIC 99-R and STATIC 2002-R predict recidivism based on static risk factors. This is an actuarial assessment tool that assigns a score to historical risk factors to provide an assessment of risk. It has moderate predictive accuracy and best practice shows that considering actuarial and professional judgment tools (that consider dynamic risk factors) can provide a better overall assessment of risk, than any one tool alone.

16. [78]

    The defendant’s earlier scores have categorised him in the Moderate-High risk, owing to convictions for prior non-sexual violence, an offence committed against an unrelated stranger victim and prior sentences. However, as the defendant has not reoffended since 2013, Professor Hayes rescored the defendant and categorised him in the “average” risk category.

17. [79]

    Professor Hayes commented that the static risk assessment tools do not take into consideration the fact the defendant has had treatment and management since 2013, which have reduced his risk of reoffending and that there has been noticed change in the defendant’s life.

18. [80]

    The Assessment and Risk Manageability of Individuals with Developmental and Intellectual Limitations who Offend – Sexually (“ARMIDILO-S”) is an assessment tool that considers dynamic risk factors relevant to the patient and the patient’s environment.

19. [81]

    Applying the ARMIDILO-S, Professor Hayes categorised the defendant in the moderate risk category and made the following observations:

    1. (1)

       the defendant “does not exhibit a tendency towards sexual deviance or sexual preoccupation/sexual drive”;

    2. (2)

       stable client factors include engagement with relationships, lack of sex drive and compliance with conditions. However, Professor Hayes also commented on the “tenuous” nature of the defendant’s compliance (for example, when the defendant travelled to Queensland); and

    3. (3)

       whilst there are some stable environment factors (such as having good support workers who have a good knowledge of the defendant), Professor Hayes was concerned about the uncertainty with the defendant’s accommodation, the fact he will be getting a new behaviour management plan, and the possible reduction in support structures/services.

20. [82]

    Professor Hayes opined that “classification as an involuntary patient under the [MHA] would not be feasible because the defendant does not meet the conditions and there are less restrictive alternatives available”.

21. [83]

    The RAR noted that the NDIS plan review in February 2021 suggested the defendant may receive increased support services. However, as at the time the RAR was written, the support services were not being provided.

22. [84]

    Professor Hayes opined:

23. [85]

    Whilst not a final hearing, as to duration it may be noted that Professor Hayes opined a period of 2 years would provide time for a clear response plan. She commented on the many uncertainties in the defendant’s present situation and observes the “slow progress” in relation to the support and interventions he has received. This includes lack of clarity as to actual support hours he received, uncertainty regarding his accommodation, uncertainty regarding his future support workers and behaviour management plan and uncertainty regarding the level of support the NDIS will provide.

24. [86]

    Dr Eagle conducted a face-to-face psychiatric assessment of the defendant on 12 December 2018. The assessment was conducted over a period of about 45 minutes. She had conducted psychiatric assessments of the defendant on at least two prior occasions for the purpose of expert psychiatrist reports as a Court appointed expert.

25. [87]

    As to previous assessments, Dr Eagle reported:

26. [88]

    Under the heading “Mental State Examination as at 12 December 2018”, Dr Eagle opined:

27. [89]

    Dr Eagle noted an incident report produced by CJP, dated 12 November 2017. She stated:

28. [90]

    Dr Eagle diagnosed the defendant with the following:

    1. (1)

       mild to borderline intellectual disability; and

    2. (2)

       alcohol use disorder, in remission.

29. [91]

    She also opined that the defendant displayed “adult antisocial personality traits”, but noted there was insufficient information of conduct disorder before the age of 15 to form a diagnosis of antisocial personality disorder.

30. [92]

    Turning to risk assessment, Dr Eagle opined:

31. [93]

    Dr Eagle made the following observations with respect to the defendant’s risk of violent reoffending:

    1. (1)

       The defendant’s historical risk factors for violent reoffending have not changed and he has had problems with violent offending, antisocial behaviours, substance use, relationships, employment, major mental disorder and treatment or supervision response. He manifests a moderate to high loading of historical risk factors and these correlate with an increased risk of violence in the longer term. She opined “[t]hese risk factors will not decrease in number and reflect an elevated baseline level of risk”.

    2. (2)

       The defendant has continued to exhibit clinical risk factors for violence including problems with insight; affective and cognitive instability; and treatment or supervision response (reported non-compliance with androcur). He has a moderately high loading of clinical factors and these place him at an increased risk of general violent reoffending in the short to medium term. It should be noted that his emotional stability and voluntary engagement with services appears to have improved despite a reduction in the level of mandatory support to be provided.

    3. (3)

       The defendant’s historical and clinical risk factors for violence continue to be adequately managed under the current forensic order and with the benefit of the psychosocial supports in place in combination with prescription of a lower dose of androcur. The defendant had remained stable with no emergence of violent or problematic sexual behaviours despite the lessening of formal support from the CJP and a reduction in his dose of androcur. (It may be noted, following this assessment by Dr Eagle two incidents occurred, which will be returned to in the context of the 2019 EO decision, below).

32. [94]

    As to sexual reoffending, Dr Eagle opined:

    1. (1)

       The defendant’s score on the Static 99R is 4 placing him in the above average risk. He scored:

    2. (2)

       On the basis of the Stable 2007, the defendant demonstrated:

    3. (3)

       The defendant’s score on the ARMIDILO-S has scored low to moderate on the most recent risk assessment (at the time of Dr Eagle’s report) in the context of the current support service model (and, as mentioned, moderate by Professor Hayes in the RAR).

33. [95]

    Dr Eagle also answered specific questions put to her, an extract appears below:

34. [96]

    Ms Howell assessed the defendant in a semi-structured clinical interview for 2.5 hours on 15 January 2019. She described his appearance as “untidy and wearing somewhat dirty clothing and did not appear to have showered”.

35. [97]

    Ms Howell conducted psychological risk assessments using the Static 99-R and the Risk for Sexual Violence Protocol (“RSVP”). She opined:

    1. (1)

       Using the Sexual Violence Scale, the defendant does not score on chronicity, diversity or escalation of sexual offending behaviour. There appears to be no psychological coercion involved in the index offence, however the index offence involved physical violence.

    2. (2)

       Using the Psychological Adjustment Scale, the defendant does not accept responsibility for the index offence. Problems with self-awareness reflect a lack of appreciation for the factors and processes that placed him at risk of sexual violence.

    3. (3)

       Using the Mental Disorder Scale, there is no evidence that the defendant has a stable pattern of deviant sexual arousal nor a psychopathic personality disorder. He is diagnosed with an intellectual disability with associated impairment of cognition, affect and behaviour. She also noted the defendant has had a history of alcohol problems.

    4. (4)

       Using the Social Adjustment Scale, the following was noted about the defendant:

    5. (5)

       Using the Manageability Scale, the defendant requires support with planning and assistance in meeting appointments at the current time.

36. [98]

    As to whether the defendant needs ongoing management, Ms Howell opined:

37. [99]

    Ms Howell further opined:

38. [100]

    In considering whether the defendant could, at that time, be managed by less restrictive means, Ms Howell said:

39. [101]

    At this juncture, I interpose to note the conclusions reached by Dr Eagle and Ms Howell that were accepted by Wright J in the 2019 EO decision.

40. [102]

    Wright J accepted the evidence and conclusions of Dr Eagle, save for “those opinions of Dr Eagle based on an assumption that there has been no problematic sexualized or other conduct after the reduction in the dose of Androcur”: at [63]. As to the factors supportive of a conclusion that the defendant posed a risk of causing serious harm to others if he ceased to be a forensic patient, without adequate monitoring and support in place, Wright J found that Dr Eagle identified the following (at [64]):

41. [103]

    His Honour also stated (at [66]):

42. [104]

    Based upon the evidence of Ms Howell, Wright J was satisfied as to, inter alia, the following (at [70(8)]-[70(10)]):

    1. (1)

       On the Static 99-R scale, the defendant was placed in the Above Average Risk level for being charged with, or convicted of, a further sexual offence.

    2. (2)

       Applying the Risk of Sexual Violence Protocol, consideration of the dynamic risk factors indicated they are in the Moderate range. The dynamic factors associated with the defendant’s risk of sexually reoffending fall across five scales: the Sexual Violence Scale (use of physical coercion); Psychological Adjustment Scale (problems with minimisation, problems with self-awareness and stress and coping); Mental Disorder Scale (intellectual disability, and history of substance abuse and alcohol problems); Social Adjustment Scale (problems with intimate and non-intimate relationships); Manageability Scale (problems with treatment, planning and supervision).

    3. (3)

       The defendant’s risk of reoffending could escalate if he did not receive appropriate support to reintegrate into the community, or if his family relationships deteriorate. He stated that “everything will change after he gets his driver’s licence” but was unable to say how.

    4. (4)

       The defendant is unable to discuss his thoughts prior to, during and following the index offences. He did not demonstrate any insight into the inappropriateness of his conduct and denied that his behaviour harmed the victim.

Any relevant order or decision made by the MHRT with respect to the defendant

1. [105]

   On 4 March 2020, the MHRT conducted a review under s 46(1) of the former Act. On 2 March 2020, having regard to the evidence before it and the relevant provisions of that Act, the MHRT held that “the present arrangements for care, treatment and control of [the defendant] [were] necessary and sufficient for the protection of [the defendant] from serious harm and/or for the protection of others from serious harm”.

2. [106]

   Relevantly, the decision noted various circumstances, which included, inter alia, the following:

   1. (1)

      that the defendant travelled to Queensland from 9 to 12 January 2020 to see his daughter, without notifying CSP and/or obtaining permission which was a breach of his conditions of release;

   2. (2)

      that the defendant was not residing at Panania and he had not notified his case manager, another breach of his conditions of release;

   3. (3)

      that the defendant at times resided with his brother or sister or was living in his car in front of a sibling’s home, being an unstable accommodation environment;

   4. (4)

      there had been no recent objective testing of the defendant for alcohol or drug consumption (and that the testing that occurred had been ordered by his treating psychiatrist, Dr Jeremy O’Dea, and not his case manager); and

   5. (5)

      that there had been a reduction in services provided by CSP and New Horizons.

3. [107]

   By way of explanation, the CSP is an initiative of the NSW Department of Communities and Justice that provides interim and referral-based services to individuals with cognitive impairment, complex support needs and serious and/or persistent challenging behaviours and/or offending behaviour who are NDIS eligible and are experiencing provision issues. The predecessor to the CSP was the Community Justice and Integrated Service Program (“CJ & ISP”, also referred to throughout the proceedings as “Communities and Justice”); the name change occurred in June 2018.

4. [108]

   As to “significant developments since the last review”, the MHRT noted the following:

   1. (1)

      the defendant had obtained his driver’s licence;

   2. (2)

      he was refusing support from his designated support workers, “in part on the basis that he no longer needs assistance with his transport”; and

   3. (3)

      he has failed to comply with conditions of his release “on at least two recent occasions”.

5. [109]

   Following that review the MHRT “declined to make any changes to the present conditions of release” for the defendant.

6. [110]

   On 25 August 2020, the MHRT conducted a review under s 46(1) of the former Act. On 16 September 2020, having regard to the evidence before it and the relevant provision of that Act, the MHRT held that “the present arrangements for care, treatment and control of [the defendant] [were] necessary and sufficient for the protection of [the defendant] from serious harm and/or for the protection of others from serious harm”.

7. [111]

   The determination of the MHRT, relevantly, noted:

   1. (1)

      The defendant had been with CSP since April 2010.

   2. (2)

      The CSP provides the defendant with services to help him in the community. A drop-in support service called New Horizons was provided to the defendant from December 2013 until May 2020. New Horizons is funded through NDIS. In March 2020, New Horizons told the NDIA that the defendant was no longer under any order and did not require support. New Horizons ceased providing the defendant its services from 19 May 2020. I accept the submission made by the plaintiff that this is an example of the uncertainty of relying on NDIA/NDIS to manage the defendant’s risks.

   3. (3)

      On 25 May 2020, CSP, organised a case conference with relevant stakeholders in relation to the defendant’s NDIS funding being reinstated. On 10 June 2020, the Public Guardian agreed to new support coordinators from the agency Ability Options, which provides behavioural support, clinical services, and housing.

   4. (4)

      On 30 July 2020, because the defendant had received threats where he was living, the defendant left the accommodation at Panania to live with his brother in Young.

   5. (5)

      The MHRT commented that the defendant’s loading of dynamic risk factors had increased recently because of changes in service provision, absence of support staff, the change in living arrangements and observed “emotionally reactive” responses to these stressors and COVID-19 restrictions.

8. [112]

   The MHRT confirmed or continued conditions of the defendant’s release, including:

   1. (1)

      to remain managed by the CSP;

   2. (2)

      to see Dr O’Dea once a month or as Dr O’Dea considers necessary;

   3. (3)

      abstinence from alcohol and illicit drugs and submit to testing;

   4. (4)

      not to gamble;

   5. (5)

      residential condition; and

   6. (6)

      approval to travel interstate.

9. [113]

   Annexure A to the MHRT determination noted the following matters of relevance:

   1. (1)

      around June 2014, the defendant moved to accommodation in Panania. Aside from periods of detention in Nepean Hospital, the defendant had resided in Panania until he received the threatening letter in July 2020, when he had to leave this accommodation;

   2. (2)

      in August 2015, the CJP treating team was concerned that the defendant was not medication compliant, failed to attend scheduled appointments with his treating psychiatrist and may have recommenced gambling. Consequently, the CJP increased its monitoring and support of the defendant;

   3. (3)

      on 8 January 2016, the MHRT issued an order for the apprehension and detention of the defendant consequent to the defendant being absent from accommodation without permission, admissions to using alcohol and failing to attend mental health appointments. New Horizons staff also raised concerns about inappropriate sexualised comments from the defendant (it does not set out the particulars of this allegation). The defendant was detained in Nepean Hospital. This detention enabled doctors to have the time and access to the defendant to assess him for the presence of any psychotic illness and guard against risk to the community;

   4. (4)

      in May 2017, the MHRT varied a condition of the defendant’s release, reducing his supervision hours from 25 to 12 hours per week and to include regular urine drug screens and attendance at appointments with Dr O’Dea;

   5. (5)

      in May 2018, Dr O’Dea told the MHRT that he had ceased prescribing Acamprosate medication since around February 2018 and there had been no reports of the defendant relapsing into alcohol use;

   6. (6)

      in March 2019, the MHRT removed the condition that the defendant take anti-libidinal medication, to trial the defendant in the community without it and observe his behaviour; and

   7. (7)

      on 27 August 2019, the MHRT heard that there had been no reports of sexualised behaviour or deviant interests since the defendant ceased the Androcur and the defendant had remained abstinent from alcohol.

10. [114]

    Annexure A also included the following summaries of reports produced by Dr Andrew Ellis in 2014 and 2016:

    1. (1)

       As to Dr Ellis’ report dated 13 January 2014, which was provided to the Court in 2014, the following summary was provided:

    2. (2)

       Dr Ellis also provided a report in April 2016 for the MHRT to assess the defendant’s risk consequent to his detention in Nepean Hospital (as a result of concerns about elevated risk of reoffending). Dr Ellis re-commenced the defendant on anti-libidinal medication. The MHRT, when summarising Dr Ellis’ report, stated that although the defendant did not need to remain at Nepean Hospital, “it was seen as a useful initial placement identifying and setting out community risks in a safe environment… the admission had, according to Dr Ellis, acted to re-orient motivation for participation and rehabilitation, abstinence from substances and medication compliance”.

11. [115]

    On 23 February 2021, the MHRT conducted a review under s 46(1) of the former Act. On 9 March 2021, the MHRT held that “the present arrangements for care, treatment and control of [the defendant] are necessary and sufficient for the protection of [the defendant] from serious harm and/or for the protection of other from serious harm”.

12. [116]

    The MHRT noted that “a number of protective factors… appear to be managing his risk currently”. Those factors were identified as follows:

    1. (1)

       rapport and engagement with his treat team;

    2. (2)

       engagement in meaningful activity;

    3. (3)

       support from family and others; and

    4. (4)

       abstinence from alcohol.

13. [117]

    As to significant developments since the last review, the MHRT noted that the defendant had his driver’s licence suspended “which imposes a significant burden on him as he lives in western NSW”. It was also noted that additional support had been made available to him.

Any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice or any other government Department or agency responsible for the detention, care or treatment of the defendant

1. [118]

   Prior to turning to the relevant reports, I provide an outline of the relevant stakeholders mentioned in various documents relating to the defendant’s support provided by CSP and/or under the NDIS Plan:

   1. (1)

      James Wu, Assessment Team Leader and Forensic Psychologist at the CSP;

   2. (2)

      Sue Roy, Case Manager at the CSP;

   3. (3)

      Sarsha Costigan, Public Guardian;

   4. (4)

      Katie Hancock, Specialist Support Coordinator at Ability Options;

   5. (5)

      Michael Earl, Support Worker;

   6. (6)

      Jeanette Gorman, Support Worker;

   7. (7)

      Rick Groth, Support Worker;

   8. (8)

      Kirsty Courbois, Behaviour Support Practitioner; and

   9. (9)

      Celeste Cari, Behaviour Support Practitioner.

2. [119]

   On 25 September 2020, Mr Wu sent a communication to the Department of Health titled: “Information to the Tribunal about [the defendant] … incident dated 24 September 2020”. The communication refers to an altercation between the police and the defendant regarding the defendant’s conduct toward a young girl at a lunch shop.

3. [120]

   Mr Wu provided the following summary of the incident:

4. [121]

   As to the conduct of CSP after the incident, Mr Wu reported:

5. [122]

   The communication also summarised the response strategies being implemented by the CSP, which included:

   1. (1)

      changing the meeting spot for the defendant’s meeting with his support worker;

   2. (2)

      sourcing a suitable relationship councilor/therapist to address areas related to establishing and maintaining relationships, and associated challenges (such as consent, boundaries and unhelpful attitudes); and

   3. (3)

      vigilant monitoring of the defendant’s presentation and behaviour by the support worker, as well as reporting to CSP.

6. [123]

   It was also noted that CSP would continue to provide information to the MHRT “as appropriate and necessary”.

7. [124]

   For consideration of the MHRT, Mr Wu stated:

8. [125]

   Ms Gorman is the defendant’s support worker. She commenced that role with the defendant on 5 January 2021.

9. [126]

   In a report dated 18 February 2021, Ms Gorman, relevantly, noted:

   1. (1)

      The defendant’s “nomadic lifestyle has made it a little difficult to meet up”. However, when they did meet up “he is always polite and courteous, he is always well presented and clean even if he has been working, he makes an effort to present himself well”.

   2. (2)

      The defendant has, on occasion, become “agitated”, wanting greater independence with his finances. Ms Gorman comments that the defendant’s driver’s licence had been suspended and he was “agitated” by this as well.

   3. (3)

      The defendant processed his agitation by talking and exploring options with her to make positive choices for himself.

10. [127]

    The accommodation at the time of that report was still unknown and Ms Gorman had been trying to find him a place to live.

11. [128]

    On 29 March 2021, the defendant travelled to Sydney from Quandialla for an appointment with Professor Hayes on 30 March 2021. His transport was facilitated by Ms Gorman. In Sydney, motel accommodation had been arranged.

12. [129]

    In the incident report, Ms Gorman reported:

    1. (1)

       Throughout the two days, the defendant made “numerous sexualised comments about women”.

    2. (2)

       The defendant “asked me if I could find him 5 girlfriends, I asked what he would do with so many girlfriends and he stated ‘you known I’d find em, f…er em, then f..k em’ [quote as recorded by Ms Gorman]. I explained to [the defendant] that was not a nice way to talk about women and not appropriate way to speak to me”. The defendant “laughed this off stating he was joking”.

    3. (3)

       A conversation was had about “employing the service of a professional to give him a massage”, which included reference to inappropriate comments he said to his nephews which referred to massages and “other” services. The defendant said “if he gave me $100.00 could I give him the service”. After explaining the inappropriateness of the comments, the defendant “laughing this off stat[ed] he was joking which he had done for all sexual comments made”.

    4. (4)

       In another conversation the defendant expressed he wanted “to sleep in my motel room. I stated that was inappropriate [and] explain[ed] boundaries again”.

    5. (5)

       “I directed a conversation with [the defendant] about what he thought would happen on the trip away. He stated he thought he would have some female company on the drive and in the motel room. I explained to [the defendant] that was not the case and asked if he remembered previous conversations we had about separate rooms and our professional relationship. [He] stated he did but still thought we would sleep together”.

    6. (6)

       “On another occasion [the defendant] made a statement about the size of my breasts and stated he ‘wouldn’t mind doing a bigger woman’”. The defendant, again, “laughed this off [and] stat[ed] he was joking”.

13. [130]

    On 31 March 2021, Ms Gorman had a conversation with Kirsty Courbois about the above behaviours displayed by the defendant. It was noted that Ms Courbois “will be including these behaviours and strategies [Ms Gorman] can use in an Implementation Plan to work with [the defendant] in the future”.

14. [131]

    As mentioned, the defendant has been a client of the CSP since April 2010.

15. [132]

    On 22 August 2019, Mr Wu produced a report to the MHRT, which was endorsed by Larissa Lawson, Manager at CJ & ISP. The report was produced for the defendant’s hearing before the MHRT on 27 August 2019. It aimed to inform the MHRT about changes in the defendant’s current situation since the last hearing, provide an opinion regarding his risk and to make recommendations regarding risk manageability.

16. [133]

    Under the heading, “Risk Considerations”, Mr Wu provided a risk assessment supportive of an overall risk rating of “very low or below average risk rating”. In providing that rating, he noted that “there is no zero risk rating”. I will now turn to aspects of that assessment.

17. [134]

    As to treatment compliance, he reported that the defendant had been mandated to take anti-libidinal medication and had, overall, been compliant and not missed an appointment with his treating psychiatrist without reason in the past year. Whilst it was noted that the defendant expressed a reluctance to attend his appointment and his “participation has been low”, Mr Wu reported that “[t]his can be attributable to his limited understanding and insight into the utility of his treatment”.

18. [135]

    As to protective factors, Mr Wu provided the following opinion as to self-management of risk:

19. [136]

    As to other protective factors, Mr Wu observations included:

20. [137]

    In summary, Mr Wu reported that the defendant “presents with a number of dynamic protective factors that may further reduce his risk of reoffending in the community”.

21. [138]

    On 17 January 2020, Ms Roy produced a report to the MHRT, which was endorsed by Mr Wu. The report was produced for the defendant’s review on 4 February 2020. It aimed to inform the MHRT about the defendant’s progress since the last hearing on 27 August 2019, indicate his current situation, evaluation his risk and needs with recommendations for his supports in the community.

22. [139]

    In addition to reviewing static and dynamic risk factors, Ms Roy identified “protective factors that [were] present and relevant” which may be associated with reduced risk. The relevant passage is extracted below:

23. [140]

    Following a consideration of the static and dynamic risk factors, Ms Roy opined that the defendant’s risk, at that time, “falls within the Low risk range for sexual recidivism”. She also observed “his risk does not appear to be associated with sexual deviancy and/or preoccupation”. Ms Roy considered the defendant’s risk “is more related to alcohol misuse to self-regulate due to limited emotional coping skills, association with peers of negative influence and abundance of idle time, which is also complicated by his cognitive impairment” (for example, poor insight, planning, problem solving, vulnerability to peer exploitation).

24. [141]

    On 11 August 2020, Ms Roy produced a report to the MHRT, which was endorsed by Mr Wu. The report was produced for the defendant’s review on 25 August 2020. It aimed to inform the MHRT about the defendant’s progress since the last hearing on 4 February 2020, indicated the current situation regarding re-establishing the support service and evaluate the defendant’s risk and needs.

25. [142]

    As to a consideration of risk factors, Ms Roy identified the following risk factors:

    1. (1)

       changes in service provision and monitoring related to absence of support staff;

    2. (2)

       client specific knowledge;

    3. (3)

       emotional coping ability; and

    4. (4)

       increased idle time relating to COVID-19 restrictions to community access and services, and absence of support staff to assist the defendant maintain a weekly planner to establish a level of structure and routine.

26. [143]

    As to those risk factors, Ms Roy made the following, inter alia, observations:

    1. (1)

       The defendant’s transition to reside with his brother in Young “may be associated with increased informal support and access to scrap metal related activities and reduced social isolation and possibly idle time”. The defendant “reports that he enjoys working on scrap metal with his brother in the Young area”.

    2. (2)

       The defendant has been observed to be “emotionally reactive in response to the current stressors”. The stressors noted included “accommodation, support service, quality of life associated with COVID-19 restrictions”. However, as to the risk of “emotional coping ability”, Ms Roy said “this risk factor’s presence is partial and its relevance is more likely associated with increased risk of reactive aggression (verbal aggression) than increased risk of inappropriate sexualized behaviour (eg, sex to cope)”.

    3. (3)

       As to the risk factor of “increased idle time”, Ms Roy said “[t]his factor’s presence is partial and its relevance is unclear given the limitations in data collection”. Positive remarks were made as to the defendant’s overall maintenance of his usual activities where possible.

    4. (4)

       Whilst noting increased contact with his brother and sister is beneficial to the defendant’s goal for family connection, it was observed “the subsequent increased reliance may affect their relationship and the sustainability of their support in the long-term. Outside of his family network, [the defendant] appears socially isolated”.

27. [144]

    On 17 February 2021, Ms Roy produced a report to the MHRT, which was endorsed by Mr Wu. The report was produced for the defendant’s review on 23 February 2021. It aimed to inform the MHRT about the defendant’s current support situation, progress and risk considerations. It also made recommendations.

28. [145]

    As to service provision and accommodation, Ms Roy reported:

    1. (1)

       Between June and December 2020, there had been a breakdown of support between the CSP and the defendant.

    2. (2)

       From January 2021, that support re-commenced with Ms Gorman being the defendant’s support worker. It was noted that correspondence between the defendant and Ms Gorman “suggests a positive progress with rapport and engagement”.

    3. (3)

       In August 2020, the defendant had been allocated a behaviour support practitioner from NDIS funded service provider, ORS Group. However, at the time of this report, a behaviour support plan had not been finalised (but the process had commenced).

    4. (4)

       The defendant resides with his brother in Quandialia NSW.

    5. (5)

       In August 2020, the defendant had been billed $6000 for cleaning costs associated with his place at Panania. He is on a repayment plan managed by the NSW Trustee and Guardian.

    6. (6)

       The defendant’s support work and support coordinators are “currently assisting [the defendant] to source a suitable long-term accommodation option”.

    7. (7)

       There is a planned NDIS plan review in February 2021. It was also noted, prior to that review, there had been an increase in the defendant’s funding, which included:

29. [146]

    As to compliance to conditional release order, Ms Roy reported:

    1. (1)

       Since the defendant’s move to Sydney, contact has been primarily via telephone. It was also noted that whilst face-to-face meetings are presently restricted due to COVID-19, weekly video conferences are held between case manager and the defendant’s support worker. Behaviour support practitioner and support coordinator to gather information on the current situation of the defendant.

    2. (2)

       The defendant’s daily schedule remains stable.

    3. (3)

       The defendant continued to engage in scrap metal activities, repair/maintain his vehicle/trailer and assist his brother with domestic activities.

    4. (4)

       Random tests for alcohol and other drugs on September 2020 and February 2021 indicate nil detection of such substances.

    5. (5)

       Since the last hearing, there had been no information to suggest that the defendant had been non-compliant with the conditions of his order.

30. [147]

    Turning to consideration of risk factors, Ms Roy reported:

    1. (1)

       There was no available information or reports at the time of the CSP report to indicate changes to the defendant’s static factors. As such, for the purpose of the CSP report, “his loading on static risk factors has remained the same as last assessment dated May 2018, namely Average risk range on the Static-99R”.

    2. (2)

       The defendant may require further support with problem-solving his stressors for improved emotional coping, and interpersonal skills develop for improved management of relationship difficulties. It was noted, in that respect, that the defendant “was recently allocated NDIS funding to access the required services… However, the challenge is how best to develop [the defendant’s] motivation, insight and engagement with service providers”.

31. [148]

    On 9 July 2021, Ms Roy produced a report to the MHRT, which was endorsed by Mr Wu. The report was produced for the defendant’s review on 3 August 2021. It aimed to inform the MHRT about the defendant’s current support situation, evaluate his current risk and needs and to make recommendations for his current supports in the community.

32. [149]

    Ms Roy reported that as per the defendant’s conditional release order dated 25 August 2020, the CSP continues to provide the defendant with “complex case management and risk assessment services while he remains a forensic patient under the Tribunal”. She noted that should the defendant’s forensic patient status discontinue “a referral can be made to CSP for time-limited/interim services”.

33. [150]

    As to service provision and accommodation, Mr Roy reported:

    1. (1)

       The defendant’s NDIS Plan was reviewed on 15 February 2021, which funding enables the defendant to access core supports and capacity building support.

    2. (2)

       The defendant also accesses “mainstream services” that are not funded by NDIS, which include, inter alia, the following:

34. [151]

    Turning to compliance issues, Ms Roy reported:

    1. (1)

       Since the defendant’s relocation, his support workers have expressed concerns about the Telstra network in the Quandialla area, which impacts upon their ability to contact the defendant over the phone. There is no other network available in that area.

    2. (2)

       Currently support workers make telephone contact and conduct face-to-face meetings with the defendant 1-2 times per week, respectively.

    3. (3)

       Since the defendant’s relocation, she is only able to make phone contact with the defendant. Due to the pandemic, face-to-face meetings are restricted. She last met with the defendant on 31 May 2021. She continues to hold stakeholder meetings with the defendant’s support workers, Behaviour Support Consultant, Forensic Psychiatrist and Support Coordinator for discussing any areas of concern and/or to get updates on the defendant’s movements, accommodation, medical, dental and financial needs.

    4. (4)

       The defendant’s driver’s license was reinstated in April 2021. He is now maintaining his usual active lifestyle in scrap metal activities, assisting his brother and/or maintaining activities of daily living such as grocery shopping.

    5. (5)

       Random urine tests for drug and alcohol done in July 2021 came back with “nil detection”.

35. [152]

    Overall, Ms Roy reported that the defendant had been compliant with his conditional order. She said:

36. [153]

    Before the Court was a series of progress notes compiled by the CSP, relating to the defendant, dated between March and July 2021.

37. [154]

    On 26 March 2021, the topic of therapeutic intervention planning was addressed by Mr Wu to the various stakeholders providing support to the defendant, including Ms Gorman, Ms Courbois and Ms Roy, with respect to the introduction of a new support provider. Reference was made the following:

    1. (1)

       Ms Gorman’s finding that the defendant values his independence, being self-reliant and exhibits a tendency to avoid others.

    2. (2)

       It is “very tricky to build a working relationship with him and introduce new staff/services”.

    3. (3)

       The introductions needs to be “carefully planned so as to not reinforce his existing belief about others, which may perpetuate his preference to be alone and distrustful of others”.

38. [155]

    On 30 March 2021, Ms Gorman provided the following information about the defendant to Mr Wu:

    1. (1)

       Understanding that the defendant is “fiercely independent and not wishing for more support from service”. As such, the “benefit to him” of the additional support/service needs to be explained and “he needs time to discuss benefits and to make positive choices for himself”. It was noted this may take time.

    2. (2)

       The defendant was approached by someone other than his case manager last week but “I was unable to give him answers” about that person. This situations “stressed” the defendant “as he did not know what it was about”. She inquired if this person was “Alicia”.

    3. (3)

       “I believe since I commenced [the defendant’s] support he had progressed well, moving forward in a positive way and complying to his mandatory conditions set by the Tribunal. I would like to continue this patten with [the defendant] as he is building confidence in himself and the support networks around him.”

39. [156]

    On 30 March 2021, Mr Wu updated the various stakeholders as to the status of the situation:

    1. (1)

       In light of Ms Gorman’s communication about the defendant’s recent reaction of “stress” to the idea of a new person being involved with his support/treatment, Mr Wu opined that “reinforces our understanding about his approach to meeting new people”. As such, he advised that “the flooding of new people will likely trigger him to further push people away. This may also impact his relationship with current supports”.

    2. (2)

       A strategy was devised, which was to be carried out by Ms Gorman. Prior to any introduction, she will communicate with the defendant about who this new person/service is and what will be happening, together with explaining the defendant’s options with respect to the same.

40. [157]

    On 9 April 2021, Mr Wu wrote to the stakeholders within the defendant’s support team. The update referred to recent incident reports that were being analysed in order to determine any triggers. Mr Wu identified the following, inter alia, items as possibilities:

    1. (1)

       social isolation and feelings of loneliness;

    2. (2)

       increased stressors from attending assessment; and

    3. (3)

       increased idle time and boredom from not being able to drive and engage in scrap metal work.

41. [158]

    On 16 April 2021, a communication was sent from Mr Wu to the Ministry of Health. Referring to the incident reports produced with respect to the defendant, he reported “there appears to be an escalation of risk towards the support worker”. Mr Wu summarised the behaviour supportive of that conclusion:

    1. (1)

       the inappropriately sexualised comments about and towards the support worker;

    2. (2)

       persistent attempts to obtain the support workers personal information; and

    3. (3)

       possibly seeking opportunity to be alone and in a secluded space with the support worker.

42. [159]

    As a result of those incidents, the relevant support worker ceased one-on-one face-to-face meetings with the defendant, save for telephone support. Additionally, future face-to-face meetings are to occur in the company of another support worker.

43. [160]

    On 10 May 2021, Ms Gorman noted that Dr O’Dea directed the defendant to take medication “with the effect of managing his behaviour and risks”. That direction was described as “a risk management strategy as well as a form of restrictive practice”.

44. [161]

    On 30 May 2021, Ms Roy provided an update to Ms Gorman, copying in Mr Wu, with respect to Dr O’Dea and the implementation of treatment plan. It was noted that Dr O’Dea would be contacting the defendant to obtain his consent for the plan.

Additional Documents Relevant to the Defendant’s Current Support

1. [162]

   An overview of the Behaviour Support Services prepared for the defendant was provided by Ms Cari, Provisional Psychologist and Behaviour Support Practitioner employed at ORS. This service, together with the Behaviour Support Plan set out below, is provided under the defendant’s NDIS Plan.

2. [163]

   The document, relevantly, noted the following:

   1. (1)

      The defendant does not wish to meet with a Behaviour Support Practitioner and prefers the service to be provided via his current support workers. As such, Ms Cari has never met with the defendant. Instead, her services include: “fortnightly consultations with [the defendant’s] Support Workers, Jeanette Gorman and Rick Groth, [and] the development of a Behaviour Support Plan”. Ms Cari is also involved in monthly case conferences with the defendant’s CSP staff and support staff.

   2. (2)

      Ms Cari identified the primary challenging behaviours being focused on included the defendant’s refusal to engage with services/support, and his inappropriate sexualising comments and inappropriateness towards females.

   3. (3)

      Four strategies were identified and discussed:

   4. (4)

      As to the reiteration and reinforcement of appropriate boundaries, Ms Cari noted the following:

   5. (5)

      As to the defendant’s refusal of supports and his inappropriate sexualising comments towards (and ideas about) Ms Gorman, Ms Cari identified those factors as “barriers to implementing support”. She opined:

3. [164]

   On 15 June 2021, a Behaviour Support Plan was prepared for the defendant by the ORS Group (“the Plan”). The defendant was referred to the Plan by Katie Hancock, Specialist Support Coordinator at Ability Options. The Plan was implemented by Local Health Services Australia (“LHSA”). Ms Cari was noted as the defendant’s Behaviour Support Practitioner.

4. [165]

   The reason for the assessment was to provide guidelines for managing the defendant’s challenging behaviours, which included:

   1. (1)

      refusing/avoiding support or hesitancy to engage in support;

   2. (2)

      making sexualising comments/inappropriateness towards women;

   3. (3)

      verbal aggression;

   4. (4)

      physical aggression/violence towards others;

   5. (5)

      impulsivity, impulsive decision making; and

   6. (6)

      dangerous driving.

5. [166]

   The Plan noted:

6. [167]

   The Plan also had regard to various incident reports produced by CSP spanning from 2015-2018. Those incidents reported were summarised as follows: gambling, attempting to avoid services, making sexualising comments about women including Support Workers, sexualised comments and behaviours towards his daughter, i.e spanking her and commenting on her breasts, and failing to take his medication. Particular mention was also made of the incident report completed by Ms Gorman relating to conduct on 29 and 30 March 2021 (summarised earlier in this judgment).

7. [168]

   Whilst noting the above instances, the author of the Plan also recorded:

8. [169]

   As to the defendant’s diagnosis of alcohol use disorder, the Plan noted:

9. [170]

   The Plan also included a summary of the defendant’s present treatment:

10. [171]

    A concern was also raised with respect to the defendant’s transportation:

11. [172]

    In previous reports, the defendant’s goals included:

    1. (1)

       moving closer to family;

    2. (2)

       getting his licence and driving;

    3. (3)

       having his own place;

    4. (4)

       abstaining from consuming drugs and alcohol and gambling; and

    5. (5)

       finding a partner.

12. [173]

    The Plan included a functional behaviour assessment of two behaviours of concern:

    1. (1)

       refusing the assistance of supports and hesitancy to engage in support; and

    2. (2)

       making sexualising comments and inappropriateness towards women.

13. [174]

    As to the frequency of the latter, it was noted that since the incident reported by Ms Gorman in March 2021, “[the defendant] has not made further comments towards Jeanette and has apologised to Jeanette for this behaviour”.

14. [175]

    For the purpose of the Plan, as to those behaviours, three goals were identified:

    1. (1)

       to improve the defendant’s engagement with support within the next 12 months;

    2. (2)

       to reduce the frequency and intensity of the defendant’s sexualising comments and inappropriate behaviour; and

    3. (3)

       to improve the defendant’s independent living skills.

15. [176]

    In a CSP meeting note dated 24 June 2021, it was noted that Dr O’Dea recommended that the defendant see another forensic psychiatrist that is in close proximity to the defendant’s place of residence. However, the meeting note recorded: “Current NDIS funding doesn’t allow for this arrangement to continue on an ongoing basis”.

16. [177]

    In an earlier meeting note dated 10 May 2021, it was recorded that CSP met with Dr O’Dea to discuss “the incident”. The note recorded:

The level of the defendant’s compliance with any obligations to which the defendant is or has been subject

1. [178]

   The defendant’s compliance with conditions and obligations, such as meetings with his case manager and treating psychiatrist, has been consistently noted across reports produced by CSP for the MHRT and New Horizons. There are limited instances of the defendant having breached conditions of his release relating to taking conduct with respect to travel and/or accommodation without notification to his case manager. As earlier mentioned, examples include:

   1. (1)

      travelling to Queensland from 9 to 12 January 2020 to see his daughter; and

   2. (2)

      not residing at Panania owing to a change in accommodation arrangements.

2. [179]

   Those breaches, however, do not suggest defiance on the part of the defendant but rather suggest a desire for independence. The plaintiff submitted that such breaches “could also be attributed to his intellectual disability and failing to understand how to respond to changes in circumstances”. Whilst it is not necessary to determine the motivation for the breaches, I accept they were not driven by an active resistance on part of the defendant to comply with the conditions of his release.

The Views of the Court that Imposed the Limiting Term or Existing Extension Order on the Defendant at the Time the Limiting Term or Extension order was Imposed

1. [180]

   The Court notes the following decisions of this Court with respect to the defendant:

   1. (1)

      the 2019 EO decision (per Wright J);

   2. (2)

      Attorney-General of New South Wales v McGuire [2017] NSWSC 1572 (“the 2017 EO decision”) (per Bellew J); and

   3. (3)

      Attorney General of NSW v HRM [2016] NSWSC 1189 (“the 2016 EO decision”) (per Campbell J).

2. [181]

   On 24 August 2016, Campbell J gave an ex tempore judgment and made the following orders:

3. [182]

   His Honour made the following finding (at [26]):

4. [183]

   On 23 November 2017, Bellew J made the following orders (at [77]):

5. [184]

   At the outset of the 2017 EO decision, in the context of summarising the respective cases of the parties, Bellew J said (at [23]-[24]):

6. [185]

   His Honour made the following, relevant, findings (at [71]-[73]):

7. [186]

   As earlier mentioned, on 13 February 2019, Wright J made the following orders (at [138]):

8. [187]

   Wright J found the defendant’s history of sex offending, driving related offence history, episodes of violence and breaches of an AVO all relevant to assessing whether the defendant posed a risk to the safety of the community: at [59] and [121].

9. [188]

   As mentioned, the expert reports of both Dr Eagle and Ms Howell were before Wright J. I have earlier set out his Honour’s views in that respect. In light of the expert evidence before the Court, Wright J held (at [120]):

10. [189]

    In the 2019 EO decision, Wright J also considered two incidents that occurred since the production of the expert reports and at a time when the defendant’s dose of androcur had been reduced. His Honour summarised the incidents as follows (at [101]-[104]):

11. [190]

    As to those incidents, Wright J stated (at [105]-[107]):

12. [191]

    As to the defendant’s abstinence from alcohol “for several years”, his Honour found (at [111]):

13. [192]

    His Honour also made findings with respect to the defendant’s integration into the community and the “therapeutic effect of the scrap metal work” upon his risk (at [114]-[115]):

14. [193]

    As to the views of the court imposing the limiting term or existing EO, counsel for the defendant advanced the following submissions:

15. [194]

    Whilst I will return to my conclusion as to the appropriateness of the EO in the circumstances of the defendant following a consideration of all s 127 factors, in light of the submissions advanced by the defendant, the following observations may be made with respect to the judgments of Wright and Bellew JJ, respectively:

    1. (1)

       It is true that Bellew J observed a reduction in the defendant’s assessed risk overtime (at [23]), however, his Honour also found the weight of the medical evidence was “overwhelmingly in support of the conclusion that the defendant continues to pose an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient” and that, on the whole of the evidence, that risk was “a moderate one” (at [71]). It may also be noted, counsel for the defendant in the proceedings before Bellew J conceded that the threshold vis-à-vis unacceptable risk (including the unavailability of adequate less restrictive means of management of the risk) had been met and that an EO should be made.

    2. (2)

       As to the Wright J’s finding vis-à-vis the appropriateness of an EO for the duration of the defendant undertaking a trial of ceasing to take anti-libidinal medication, it is true that his Honour had regard to the unanimous opinion of that experts that such a factor “significantly raised” the risk of harm to the community. However, the Court’s assessment of risk was also informed by the defendant’s history of sex offending, driving related offence history, episodes of violence and breaches of an AVO: at [59] and [121]. The defendant’s present treatment regime remains relevant but in conjunction with each of the s 127(2) factors; the absence of a recent change and/or trial with respect to his treatment does not in and of itself mitigate against a finding of unacceptable risk.

Safety of the community

1. [195]

   Section 127(2)(a) provides that the safety of the community is a relevant consideration of the Court when determining whether an EO should be granted. In considering this factor, attention may be given to the defendant’s history of sex and violent offending set out earlier in this judgment. The plaintiff contended that the defendant’s criminal history, in that respect, is of “significant concern” and that an EO is, accordingly, “protective”.

2. [196]

   Counsel for the defendant contended that, whilst an EO may be “protective in that regard”, it is not a proper basis upon which to make an EO. The following submissions were advanced in support of that contention:

3. [197]

   For the reasons I will further develop below, I do not accept the submission of the defendant that the absence of serious offending in the community since 2013 simpliciter sustains a conclusion that the defendant, absent an EO, poses no risk of harm to the community. The period of absence from serious offending corresponds, in substantial measure, with the period in which the applicant was under supervision. Further, I accept the submission of the plaintiff that the defendant’s criminal history, nonetheless, remains relevant to this assessment, which is considered in combination with the effect of the factors under s 127(2).

The Plaintiff

1. [198]

   The plaintiff contended that the Court can be satisfied that the preliminary hearing test has been met based upon six primary contentions:

   1. (1)

      The defendant’s intellectual disability means he requires assistance with living in the community. When those support structures are absent, the lack of daily routine and instability in his life elevates his risk of relapse to alcohol and his risk of sexual or physical violence.

   2. (2)

      The defendant’s intellectual disability and anti-social traits suggests that the defendant lacks the capacity for moral reasoning, and problem solving. The defendant has borderline verbal IQ and his risk factors include reacting emotionally and aggressively to stressors.

   3. (3)

      The defendant’s intellectual disability means he misreads cues from women and responds inappropriately.

   4. (4)

      The likelihood of these risks eventuating without support structures is evidenced by the defendant’s criminal history. The defendant abused alcohol and committed serious sex offences and violent offences in such circumstances.

   5. (5)

      Other than the defendant’s family, the defendant does not have relationships as a protective factor in his life. Any deterioration in family relationships could readily elevate the defendant’s risks.

   6. (6)

      Professor Hayes opined that if the defendant ceases to be a forensic patient then he poses a risk of serious harm to others.

2. [199]

   In support of the primary contentions the plaintiff relied upon the following conclusions said to be available in light of the material before the Court:

   1. (1)

      The experts opined that decreases in support and supervision would elevate the defendant’s risk of causing serious harm to others.

   2. (2)

      The nature of the defendant’s intellectual disability means he responds to treatment when directed to adhere to conditions and knows there are consequences for breaching them (an intrinsic measure of motivation for the defendant); put simply, his risks are managed by rules. The MHRT is the effective conduit for that oversight.

   3. (3)

      The defendant lacks the capability to reason right from wrong and lacks insight into consequences of his behaviour. The defendant’s antisocial traits elevates the risk of reoffending as he may react aggressively and emotionally to external stressors. The defendant may have an unaddressed sexual abuse history and, although he heavily relies on family relationships, he is otherwise isolated.

   4. (4)

      The defendant is somewhat nomadic at the moment although living with his brother, and he was homeless when he committed the index offence.

   5. (5)

      The defendant’s risk must be considered in the absence of an EO and the experts all opined that, absent these structures, there is a significant concern of relapse to alcohol and an inability to live in the community without assistance which would have the consequence of elevating his risks.

   6. (6)

      The defendant’s family is a protective factor in his life but should that deteriorate, and given the defendant does not have stable accommodation, the Court may readily find his dynamic risk factors would elevate. This suggests the defendant poses an unacceptable risk of causing serious harm to others.

   7. (7)

      As to the management of risk, the material before the Court points strongly toward the success of the EO managing the defendant’s risk. It has enabled him to live in the community but address risk and motivate the defendant to remain abstinent from alcohol.

   8. (8)

      As the defendant is intellectually impaired, he cannot be managed under the MHA.

   9. (9)

      A behaviour management plan under the NDIS has the capacity to manage some of the defendant’s risks but it does not have the ability to monitor the defendant’s alcohol use and to readily respond to deterioration in the defendant’s circumstances or mental health. The EO has in the past readily responded to the defendant’s elevated risks which has ensured the protection of the community.

   10. (10)

       The NDIS therefore is too unpredictable a measure, governed by funding, to be the only way of managing the defendant’s risk. Further it was submitted the Court cannot be confident that the NDIS could provide ongoing support or management of the defendant. The NDIS is dependent on funding and not guided by public interest oversight to the extent that the MHRT provides.

   11. (11)

       Equally, a Guardianship Order cannot provide the support, treatment needs and monitoring of alcohol and illicit substance use that the EO provides to manage the defendant’s risk.

The Defendant

1. [200]

   In lengthy written submissions the defendant provided contentions as to why the plaintiff has not established that the defendant poses an unacceptable risk, in particular, disputing the six contentions advanced by the plaintiff (those submissions appear at paras 41-70). Those submissions were also supplemented with oral submissions at the preliminary hearing. In summary, in reply to the primary contentions advanced by the plaintiff, the defendant submitted:

   1. (1)

      In answer to the plaintiff’s first contention vis-à-vis the intellectual disability of the defendant and its connection to risk, reliance was placed upon evidence of periods of time in which the defendant’s support structures were either absent or diminished and the defendant did not relapse into alcohol use or engage in sexual or physical violence. Reference was made two examples:

   2. (2)

      As to the second contention, namely, the suggested connection between the defendant’s intellectual disability, together with anti-social traits, that he lacks “moral reasoning” and problem solving skills, the defendant’s intellectual disability may impact to some extent upon his moral reasoning, but there is no evidence that it makes him incapable of reasoning morally. This was supported by the following further submissions:

   3. (3)

      Turning to the third contention, that the defendant’s intellectual disability means he misreads cues from women and responds inappropriately, the following was submitted:

   4. (4)

      At the preliminary hearing, further submissions were advanced with respect to third contention:

   5. (5)

      Additionally, whilst acknowledging the sexualised comments made, counsel for the defendant placed significant reliance upon the following:

   6. (6)

      As to the fourth contention, reference was made to the fact that the defendant’s last violent offence occurred about 14 years ago and the index offences occurred over 15 years ago. Since the defendant committed those offences, he has given up alcohol. He has also recognised that drinking alcohol detracts from the independence he wants. Further, he has many support structures in place which are not dependent upon his status as a forensic patient.

   7. (7)

      Turning to the fifth contention, the Court should not accept the plaintiff’s submission concerning the deterioration in family relationships and its potential to elevate the defendant’s risk, which submission was advanced “without any evidentiary basis”. Reference was made the following:

   8. (8)

      Further, in that respect, it was submitted, deterioration in his relationships with them is unlikely to occur in the next two years. The plaintiff has not established that the supporting documentation provides a sound evidentiary basis for concluding that a deterioration in the relationship with the defendant’s siblings is likely to occur. Even if the defendant’s relationship with one of his siblings deteriorated, that would not necessarily mean that the relationship with the other would also do so. Further, a decline in the quality of those relationships would not necessarily lead to reoffending.

   9. (9)

      Finally, as to the plaintiff’s reliance on Professor Hayes’ opinion that “if the defendant ceases to be a forensic patient then he poses a risk of serious harm to others”. The defendant advanced the following submissions:

   10. (10)

       Additionally, as to Professor Hayes’ opinion concerning the relevance of “recent breaches of conditions” being a factor heightening risk, the defendant submitted:

2. [201]

   The defendant submitted the plaintiff has the onus of persuading the Court that the defendant poses an unacceptable risk of causing serious harm to others if the Court declined to make a further EO. The defendant contended that the plaintiff has not discharged that onus, in the following circumstances:

   1. (1)

      The index offences occurred over fifteen years ago, when the defendant was thirty-three. He is now forty-eight.

   2. (2)

      The defendant has not committed any violent offences since 2007 (about fourteen years ago).

   3. (3)

      The defendant has not caused any harm since his conditional release in 2013, despite a lack of supervision.

   4. (4)

      The index offences occurred whilst the defendant was intoxicated. As Campbell J found, “dis-inhibition brought about by intoxication was a significant factor in what occurred”. A behaviour support plan in June 2019 described alcohol and cannabis as “a major contributor” to the defendant’s past “aggressive and sexual offence behaviour”. In other words, alcohol was a significant causal factor in the offending.

   5. (5)

      The defendant no longer consumes alcohol and has not been required to take medication for alcohol addiction since March 2018. His drug and alcohol testing has consistently been negative (that is, it has shown he has not consumed drugs or alcohol). The defendant told Ms Howell that he did not have any cravings for alcohol. In August 2019, he told the MHRT that he drinks Coca-Cola when the rest of his family consumed alcohol and did not find that difficult. The defendant has insight into the risks of alcohol consumption, stating that he tends to make irrational decisions when under the influence of drugs and alcohol and that his stops him from being more independent. Dr Eagle recognised that he had improved in his awareness of some of his risk factors, such as alcohol use. As a report of Communities and Justice stated, the defendant’s self-management of risk in respect of alcohol is a protective factor.

   6. (6)

      The defendant has denied any desire to offend again and has expressed remorse for the offences. He stated, in relation to the index offences, “I don’t think I’m mental enough to do that again” and “I never want to do something like that again”. Dr Eagle commented in 2019 that the defendant “displayed some insight into his previous sexual offending and reported never wanting to engage in such behaviour again”. He has also said that he regrets hurting others and would like to move forward with his life. The defendant told Professor Hayes that he is a “changed person” and “couldn’t do that”. Those statements should be accepted. The Court would be wary of taking a paternalistic approach to the defendant’s statements and disbelieving them, on the basis that the defendant has an intellectual disability.

   7. (7)

      The defendant has not been required to take anti-libidinal medication since March 2019 and he has not committed any sexual offences in that time, despite a lack of supervision. In August 2019, a Communities and Justice report stated that the defendant “has been reported to not demonstrate deviant sexual interest” and that there is “no evidence to suggests that Mr McGuire presents with a preoccupation in sexual thoughts and behaviours”. A report in early 2020 stated that support staff had continued to report that the defendant had not been observed to exhibit any behaviour or presentation suggestive of sexual deviancy. It was noted that this “has been a consistent finding in past CJ&ISP risk assessments and reports”. Professor Hayes is also of the view that the defendant “does not exhibit a tendency towards sexual deviance, or sexual preoccupation/sexual drive”.

   8. (8)

      The defendant is occupied with scrap metal collecting, which also provides him with a source of income. It is “a very important hobby for [the defendant] and gives him purpose”. This is a protective factor.

   9. (9)

      The defendant has significant family support. He resided with his brother in Young for some time and now lives near his brother and visits him and his family on the weekends. He also visits his father who lives nearby. Another brother also lives in the area and “his brothers and their friends are his major source of social interaction”. He also provides money to his daughter and grandchildren when he is able to do so. His goals include to live close to family and he has identified that maintaining positive contact with his family is something important to him. He identifies the most important people in his life as being his daughter, his brother and sister.

   10. (10)

       The defendant identifies his strengths as including his family, living independently and not breaching the MHRT conditions.

   11. (11)

       The defendant’s goals are inconsistent with reoffending. They include to have autonomy and control over his life, which he understands to mean to be able to make decisions without others having control. He also wants to have an intimate, romantic relationship and to maintain good health and wellbeing. To achieve this, he recognises he needs to be away from people who are on drugs and alcohol. Reference made to the CSP Report to the MHRT dated 17 January 2020, which reported that the defendant “has actioned his goals in relation to independence, increased family connection, which can be perceived as protective”.

   12. (12)

       The defendant has significant support through the NDIS including an NDIS Plan approved in June 2020 and increased funding in February 2021. This support is not dependent upon the existence of an EO.

   13. (13)

       According to a Communities and Justice report in August 2019, the defendant “has been reported by staff to demonstrate use of effective risk strategies (e.g., avoids anti-social peers, abstinent from AOD, occupied with scrap metal work) in situation where he might be at risk without prompting by staff”.

   14. (14)

       Even in circumstances where there have been reductions in the defendant’s contact with support staff, the defendant “does not appear to have gravitated towards situations that may place him at risk”.

3. [202]

   In further opposition to the application before the Court, the defendant relied upon the following submissions:

4. [203]

   Finally, with respect to the Court’s consideration of the degree of probability that the defendant poses an unacceptable risk of causing serious harm, the defendant submitted:

5. [204]

   As to the consideration of less restrictive means, the defendant advanced the following submissions:

6. [205]

   At the preliminary hearing, the defendant also tendered a comparative table of supports and restrictions for the defendant, which illustrated the supports would continue and/or cease in the event the defendant’s forensic status was continued or brought to an end. It is extracted below (together with references provided by the defendant):

7. [206]

   In light of those submissions, it was contended, the plaintiff has not discharged his onus of establishing, to a high degree of probability, that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, or that any risk he does pose cannot be adequately managed by other less restrictive means.

CONCLUSION

1. [207]

   Having considered the supporting material before the Court, in particular, the expert reports and the material prepared by the CSP, together with the respective submissions of the parties, the Court is satisfied that the plaintiff has met the statutory requirements for the making of the orders sought on the present application. In particular, I am satisfied that on the material before the Court that the defendant poses an unacceptable risk of causing serious harm to others having regard to the provisions of s 122 of the Act. I also note, in that respect, the submissions of the plaintiff that the risk may not be adequately managed by a less restrictive means.

2. [208]

   In coming to that conclusion, the Court had particular regard to the following:

   1. (1)

      In the RAR, Professor Hayes assessed the defendant as posing a moderate risk of causing harm to others in the community, commenting that the structures provided in earlier EOs have successfully reduced his risk. Professor Hayes opined that the possible reduction in support structures may elevate the defendant’s risks. The RAR also stated that the EOs in the past have been “highly significant in controlling the anti-social behaviours which would otherwise contribute to the risk of causing serious harm to others”. It may be noted that both Dr Eagle and Ms Howell had earlier opined that decreases in support and supervision would elevate the defendant’s risk of causing serious harm to others.

   2. (2)

      The RAR, together with the reports and progress notes by the CSP, indicate that the defendant continues to demonstrate a limited capacity for moral reasoning and problem solving. His risk factors, in that respect, include reacting emotionally and aggressively to stressors.

   3. (3)

      Professor Hayes opined that there is no other less restrictive means of managing the defendant’s risk, other than an EO. That opinion is also supported by the earlier reports of Dr Eagle and Ms Howell. It may also be noted that both Professor Hayes and Dr Eagle opined that if the defendant ceases to be a forensic patient then he poses a risk of serious harm to others.

   4. (4)

      The experts unanimously opined that, absent the existing support structures, there is a significant concern of relapse to alcohol and an inability to live in the community without assistance which would have the consequence of elevating his risks. As to the management of risk, the material before the Court points strongly toward the success of the EO managing the defendant’s risk. It has enabled him to live in the community and address risk as well as motivate the defendant to remain abstinent from alcohol. Thus, whilst it is commendable that the defendant was able to refrain from consumption of alcohol (as well as aggressive conduct) in an incident involving a fight at a pub, that isolated incident does not diminish the recognised risk associated with relapse in the case of the defendant. It may also be noted, in that respect, that Dr Eagle recognised the positive aspects of the defendant’s conduct in that respect, but still found, after taking in to account all the matters before her, the defendant posed a risk of causing serious harm to others if he ceased to be a forensic patient; she formed an opinion based on the material before her that he was still a risk.

   5. (5)

      The defendant’s intellectual disability means he requires assistance with living in the community. When those support structures are absent, the lack of daily routine and instability in his life elevates his risk of relapse to alcohol and his risk of sexual or physical violence. Each of the experts identified the risks associated with relapse. This risk is also consistently addressed by the CSP. It may also be noted, in that respect, that as the defendant is not mentally ill he cannot be managed under the MHA and the Guardianship Order cannot provide the oversight of monitoring for drug and alcohol use.

   6. (6)

      The likelihood of the defendant’s risks eventuating without support structures is evidenced by the defendant’s criminal history. The defendant abused alcohol and committed serious sex offences and violent offences in such circumstances. Whilst it is true the defendant has not re-committed a serious offence since the index offending, as has been observed by this Court, there is a need for caution with respect to ceasing the defendant’s EO, particularly in the present circumstances where the defendant has shown increased sexualised comments and the experts, together with the CSP and his support workers, acknowledge this elevates the risk posed by the defendant. To remove such support could render the risk inadequately managed and endanger the community.

   7. (7)

      It is true that the CSP and the MHRT have recognised the numerous protective factors operating with respect to the defendant, in particular his improved relationship with his family. However, other than the defendant’s family, the defendant does not have relationships as a protective factor in his life. I accept the opinion of Professor Hayes that any deterioration in family relationships could readily elevate the defendant’s risks. I have also had regard to the recent comments of the MHRT, namely, that the defendant’s loading of dynamic risk factors had increased recently because of changes in service provision, absence of support staff, the change in living arrangements and observed “emotionally reactive” responses to these stressors and COVID-19 restrictions.

   8. (8)

      The defendant’s intellectual disability means he misreads cues from women and responds inappropriately. Further, his lack of perception, in this respect, is not confined to his understanding of his relationship with female support workers. The incident of the sexualised comments towards Ms Gorman was not an isolated incident. Mr Wu has also noted an incident in a public lunch area in which police intervention was required. Following both incidents, the CSP re-assessed the risk and implemented strategies in consultation with relevant stakeholders and support services. Counsel for the defendant also accepted that the defendant’s incidents with respect to sexualised comments have been documented since around 2015. The CSP, in conjunction with relevant stakeholders providing support of the defendant such as Dr O’Dea and the defendant’s Behaviour Support Practitioner, work together to manage this risk. Additionally, even though the defendant has made commendable progress with respect to achieving goals, which have been documented by the CSP, Mr Wu recorded “his insight into what constitutes a high risk situation is also an area that has yet to be thoroughly explored".

   9. (9)

      Following the incident with Ms Gorman on 30 March 2021, the CSP progress notes acknowledge an escalation of risk in the current climate as at April 2021. The CSP developed a plan to manage that risk. In a subsequent progress note, consideration of a referral to Dr O’Dea is noted. This is significant, as whilst subject to an EO the defendant “would be required to take that medication to manage his risks”.

   10. (10)

       As to the defendant’s concern that "the restriction of the defendant's liberty cannot simply be extended for many decades, perhaps until his death, based on one incident that occurred over 15 years ago", reference may be made to the remarks of Button J in Attorney General of NSW v McGuire [2018] NSWSC 1795 at [9], [29] and [30]. Notwithstanding the positive remarks of his Honour that conditions may “gradually” become less onerous and slowly reduced, his Honour had regard for a recent incidence of non-compliance that was a matter of concern (at [9]). Similarly, on the material before the Court, the defendant’s recent increase in making inappropriate sexualised comments is cause for concern. His Honour also had regard for the fact that “for the past five years, judges of this Court have been prepared to make an extension order, in my assessment of whether or not a judge could be prepared to do so again in the future" (at [29]). There is a need for caution with respect to ceasing the defendant’s conditional liberty, which, as Button J observed, “could lead rapidly to isolation, a return to alcohol abuse, an unwillingness or inability on the part of this intellectually disabled man to get help, and a real risk serious offending, not least in a sexual way, thereby endangering the community. And it is not unimportant, I think, that the reasonably recent period of deterioration showed hints of a return to sexual dysfunction” (at [30]).

   11. (11)

       Finally, whilst the support provided on the NDIS Plan is beneficial, it does not include the support of a forensic psychiatrist nor does it include the CSP. This is because NDIS is not a mental health service, it is a service that provides support for those with disabilities. The material before the Court from the experts, the CSP and the MHRT all acknowledge the benefit of the support provided by Dr O’Dea, in particular with respect to the risk associated with sexual offending. Whilst the increase in sexual comments has not resulted in a serious sexual offence, it has elevated the risk and required the implementation of strategies to manage it. Additionally, the CSP have worked with the defendant since 2010 and have documented his progress and setbacks. In the absence of an EO, the current CSP services would have expired on 13 August 2021.

   12. (12)

       In light of the significant role the CSP service provides in management of the defendant’s risk, it would have been inappropriate to allow the support to be cancelled at the expiration date on 13 August 2021 upon the basis of an option and/or possibility of a referral, in particular, when regard is had to the level of risk identified by Professor Hayes and the potential adverse impact upon the defendant’s progress and the endangerment of the community. There was no roadmap before the Court to enable any satisfaction as to that opaque course. It follows, in my view, the support provided by the NDIS Plan, together with a possible referral to the CSP, is insufficient to mitigate the risk. Thus, the risk cannot be adequately managed by less restrictive means.

3. [209]

   The Court confirms its orders made 12 August 2021.