Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 3) (Preliminary)

1. [1]

   HIS HONOUR:

Nature of proceedings

1. [2]

   At the preliminary hearing, the Attorney sought the relief set out in prayers 1a, 1b and 3 of the Summons, namely:

2. [3]

   At any final hearing, it is the intention of the Attorney to seek the relief sought in prayer 2 of the Summons:

3. [4]

   The defendant opposes the order sought in prayer 2 of the Summons.

4. [5]

   The defendant does not oppose the orders sought in prayers 1a, 1b and 3 of the Summons, i.e. an order pursuant to cl 10 and 11(1) of Sch 1 to the Act that the defendant be subject to an interim extension order commencing on and from 22 February 2021 for a period of three months.

5. [6]

   The defendant was conditionally released on 20 January 2021 from the Forensic Hospital to approved 24 hour supported accommodation, which is under the case management of the Granville Assertive Response Team. The defendant’s NDIS service provider, “Health Care Request”, is responsible for the provision of the accommodation and supervision. The defendant is to be accompanied by a staff member from the Community Mental Health Team (CMHT) or from Health Care Request when accessing the community.

6. [7]

   It was accepted that a person’s status as a forensic patient may be extended in accordance with Sch 1 of the Act. An extension order of Adamson J pursuant to cl 7(1)(a) of Schedule 1 of the Act, directed to the defendant, is due to expire on 22 February 2021. It was also accepted that the court must still satisfy itself that an interim extension order is necessary on the material before it, notwithstanding the defendant’s lack of opposition to the making of such an order.

Overview and background

1. [8]

   In support of the present application, the Attorney relies upon the affidavit of Ms Lucy Nichols, affirmed 3 December 2020, together with Exhibit “LN-1” to that affidavit and the affidavit of Ms Nichols, affirmed 23 December 2020. On 14 December 2020, Ms Jennifer Thompson agreed to act as tutor for the defendant. The defendant relied upon an affidavit of Agnes Dalumpines, affirmed 21 January 2021. The effect of that affidavit was to identify an error in the defendant’s criminal history in relation to the 2010 charges, heard by Keleman DCJ. The verdicts recorded for counts 1 and 2 of “not guilty by reason of mental illness” were incorrect. The verdicts for counts 1 and 2 should have been recorded as “not guilty” with the verdict for count 3 recorded as “guilty”.

2. [9]

   The defendant is aged 39 and is of Aboriginal descent. He has been diagnosed with schizophrenia, a neurocognitive disorder, a substance use disorder and an antisocial personality disorder.

3. [10]

   The defendant has a criminal history that dates back to 1994 as a juvenile. He was subject to control and community orders as a juvenile, the first of which was imposed when he was 13. As an adult, he has a criminal record involving mostly property charges with convictions including larceny, break and enter offences, goods in custody and shoplifting. He faced charges involving threatening conduct of a sexual nature (stalking/intimidating, committing an act of indecency and behaving in an offensive manner in a public place) relating to events which took place in April 2010 in an apartment block in Waterloo and were dealt with by the Local Court under s 32 of the Act.

4. [11]

   The defendant came before this Court on two occasions (Attorney General of NSW v Doolan [2015] NSWSC 1773 (Doolan (No 1)) and (Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 (Doolan (No 2)). In Doolan (No 1) Adamson J heard an application for an interim extension order under the Act and made the order sought by the Attorney. In Doolan (No 2) Adamson J heard an application for an extension order by the Attorney and found that a final order should be made to extend his status as a forensic patient for five years. It is this order which ceases to have effect on 22 February 2021.

5. [12]

   In those decisions, Adamson J analysed the evidence before her relating to the defendant up to and including 22 February 2016. In those circumstances, I have concluded that no useful purpose is to be served by me once again summarising the effect of relevant evidence when this has so effectively been done by her Honour in those earlier decisions. I have accordingly included in this judgment substantial extracts of her Honour’s findings on the evidence and their applicability to the present application.

6. [13]

   In relation to the applicant’s criminal history, Adamson J made the following findings (Doolan (No 2) at [3]-[61]):

7. [14]

   The defendant has recently been made the subject of a Conditional Release Order by the Tribunal (dated 12 November 2020). The conditions of release require that he reside in 24/7 secure accommodation which will be staffed at all times. The defendant was made the subject of a guardianship order on 8 September 2020.

8. [15]

   In its most recent review, the Tribunal conditionally released the defendant pursuant to ss 43, 46, 47 and 75 of the Act. The order of the Tribunal requires the defendant’s discharge within three months (otherwise a further review will be held in relation to the reasons for the delay). The conditions imposed by the Tribunal are extensive and include a requirement that the defendant live at a specified address. The reasons of the Tribunal record that this was the 19th Tribunal review of the defendant.

9. [16]

   The Tribunal noted the expert reports and their opinions, recognised that the defendant presented a risk of harm to himself, and others, and that there was also a significant risk of absconding. However, the Tribunal accepted the evidence as to the rigorous monitoring and supervision to be provided at the proposed accommodation. The Tribunal stated that the defendant “undoubtedly presents risks if not properly monitored”, but was satisfied that the risk to his safety or that of other members of the community, would not be unacceptable if the proposed level of monitoring and supervision took place.

10. [17]

    Adamson J conducted a comprehensive review of the cl 7(2) matters as follows (Doolan (No 2) at [62]):

Reports provided by experts pursuant to cl 5(b) and cl 7(2)(c)

1. [18]

   Dr Yolisha Singh provided a Risk Assessment Report (RAR), dated 2 November 2020, for the purposes of cl 5(b). Dr Singh assessed the defendant on 23 November 2020 for approximately 90 minutes. His thought form was disordered and his thought content on that day included grandiose and religious delusions. He also described auditory hallucinations. She described his insight into his mental illness as "extremely limited" and suggested that he did not believe he needed antipsychotic medication to treat his symptoms.

2. [19]

   Dr Singh noted that he was unable to provide a clear and coherent psychiatric history but she was able to glean such a history from documents provided to her. The defendant did not provide an accurate account of his substance use history, but stated that he began drinking alcohol at age seven and increased his use over time to drinking daily. He reported first smoking cannabis at the age of seven and increasing his use to approximately ¼ of an ounce daily.

3. [20]

   Dr Singh diagnosed the defendant with schizophrenia (of a treatment-resistant kind, meaning that symptoms were likely to remain throughout his life), moderate intellectual disability, major neurocognitive disorder due to traumatic brain injury, multiple substance use disorders and traits of anti-social personality disorder. Dr Singh was of the opinion that the defendant posed a risk of causing serious harm to others due to the detrimental impact of his mental illness on his mental state and attendant aggressive behaviours. This was a risk which remained whether he was a forensic patient or not. He falls into the high risk category of people with an elevated future risk of violence and had a moderate loading of risk factors for sexual violence. Treatment approaches were limited by Clozapine induced myocarditis and while his aggressive behaviours, violence and sexual inhibition appeared to have attenuated in frequency and intensity, Dr Singh opined that his risk of violence was likely to remain high in the short to medium term.

4. [21]

   Dr Singh summarised the defendant’s recent progress in hospital. She noted that in January 2019, he presented with an increase in sexually inappropriate behaviours, including masturbating in the presence of staff. This relapse occurred in the context of suspected non-compliance and diversion of his medication after which he was transferred from the Dee Why Ward to the Bronte Ward on 1 February 2019. He continued to invite female staff into his room and to linger around the nursing station looking at female staff. The frequency of these behaviours decreased and he was transferred back to the Clovelly Ward in August/September 2019. There was an overall reduction in his sexually inappropriate behaviours. He was involved in two separate instances of aggression in August and September 2020,. In one of those he was the victim. Dr Singh noted the treating team's opinion that he had reached his rehabilitation potential, as well as the proposal for his conditional release (Dr Singh's report predated the Tribunal’s latest orders).

5. [22]

   Dr Singh appraised the defendant’s violence risk using the HCR-20 v 3 structured professional judgment tool. She assessed the defendant as having a high loading of historical risk factors associated with violence in the longer term, noting amongst other things, that he suffered from a severe and enduring mental illness. He also had an adolescent conduct disorder which was an antecedent for an anti-social personality disorder. Although this diagnosis could not be established due to his protracted and acute psychotic symptoms. While he no longer wished to engage in anti-social behaviours, his history suggested he was likely to hold violent attitudes and to struggle to generate pro-social responses in stressful situations, as evidenced by his response to aggression from a fellow patient. Dr Singh also identified a failure to respond satisfactorily to, or engage with, supervision, as documented in his institutional record and Tribunal reports.

6. [23]

   Dr Singh identified a high loading of modifiable clinical risk factors for violence in the short to medium term, including severe instability of mental state with positive symptoms of chronic psychosis, as well as a problematic level of irritability and impulsivity, despite assertive management in a highly regulated environment. A future risk management factor includes, in Dr Singh’s view, the provision of professional service input intensity commensurate with the defendant’s current level of risk. She concurred with the opinion that the defendant could be transferred to a community placement “with stringent supervision”.

7. [24]

   Dr Singh assessed the defendant’s risk of committing further sexual offences using the Risk for Sexual Violence Protocol (RSVP). She concluded that he presented with a moderate loading of risk factors for sexual violence but she found no evidence of deviant sexual arousal. She opined that his sexual offending risk was likely to be mitigated by assertive treatment of his psychosis, behavioural management of his impulsivity and environmental restrictions. She added that his symptoms mean that he presented as unpredictable. Given his cognitive deficits, his risk of sexual violence could increase if he was afforded a window of opportunity to abstain from treatment and/or relapse into substance use.

8. [25]

   Dr Singh used the Structured Assessment of Protective Factors for Violence Risk, which involved a set of 17 factors. Of those, Dr Singh identified only three (all in the domain of external items), as relevant to the defendant, namely professional care, supervision of living circumstances (as a forensic patient in a highly secure facility) and external control (in the form of an order under the Act). Protective factors lacking in the domain of motivational items, included a lack of motivation for the effective use of medication, which was identified as a critical item. As to external protective items, supervised living circumstances were identified as a critical item, with Dr Singh stating that should the defendant cease to be nursed in the Forensic Hospital as an involuntary patient and be transferred to the community on a Community Treatment Order (CTO), these external protective factors would be only partially present.

9. [26]

   Dr Singh regarded the symptoms of each of the defendant’s numerous current psychiatric conditions as contributing to his overall risk formulation. She opined that he presented a “complex clinical picture”, with his risk of re-offending primarily due to the severity of his psychiatric symptoms. She added that his limited insight, which might lead to noncompliance with treatment, his level of disorganisation and impaired psycho-social functioning, also increased his risk of reoffending. The latter impairment combined with his learned behaviours through exposure to violence in childhood and repeated periods of incarceration, coupled with cognitive rigidity, likely impaired his ability to generate alternative responses in situations which he assessed as hostile or stressful.

10. [27]

    In providing her opinion on the need for ongoing management of the defendant as a forensic patient, Dr Singh stated that continuation of his status as a forensic patient could help contain his risks (and would remove oversight from individual clinicians to the forensic arm of the Tribunal), particularly if he was transferred to the community with lower levels of security in comparison to the Forensic Hospital. She suggested that more stringent oversight and intensive support might be required during the initial phases of his transition to community-based care.

11. [28]

    Dr Singh noted that based on the course of his history and symptoms, the defendant was assessed as a mentally ill person as defined under the Mental Health Act 2007 (NSW) (MH Act) and that he could be classified as an involuntary patient under that Act by the Tribunal. However, if he was transferred to the community, he would cease to be an involuntary patient and an application for a CTO would likely be made. It was Dr Singh's opinion that a CTO would not adequately manage the defendant’s current risks. She stated that assertive psychiatric treatment alone was unlikely to contain his violence risks, and that he was unlikely to adhere to a proposed treatment plan, especially if such an order cannot mandate him remaining in secure, supported accommodation. She suggested that in the absence of an extension of the current forensic order, should the defendant’s mental health deteriorate in the community and his risks escalate, transfer back to the highly secure Forensic Hospital is likely to be more difficult to achieve.

12. [29]

    Dr Singh was of the view that a guardianship order was not sufficient to contain the defendant’s current risks, because despite the potential to include coercive powers in a guardianship order, there were limits to the way such powers can be enforced (as evident from the course of events when the defendant was under a guardianship order in 2012).

13. [30]

    On the assumption that the restrictive practices and supports detailed in Dr MacDonald’s 28 September 2020 report were provided, Dr Singh agreed with the treating team that the defendant’s risks and needs could be managed in supported accommodation. She was not aware of any other less restrictive means of managing the defendant’s current risks.

14. [31]

    Dr Singh suggested that an extension of two to three years to the defendant’s forensic status would be reasonable, based on his current symptoms, response to treatment and the proposed plan that he be discharged into the community.

Any other expert reports: cl 7(2)(d)

1. [32]

   Dr Kirsty MacDonald is the defendant’s treating psychiatrist who has been treating him since June 2020. She prepared a report for the Tribunal dated 28 September 2020. She stated that the defendant had a diagnosis of treatment-resistant schizophrenia, an intellectual disability and a major neurocognitive disorder due to traumatic brain injury as well as poly-substance use disorder (currently in remission in a controlled environment). He also had a significant history of deliberate self-harm behaviour and suicide attempts. His schizophrenia was characterised by grandiose and religious delusions, thought disorder and at times, bizarre behaviour. The most longstanding and persistent symptom appears to be his delusion that he has fathered hundreds of children and is able to impregnate women in multiple ways. His preoccupation with women has been longstanding and is a key feature of his illness.

2. [33]

   Dr MacDonald noted the defendant’s history of violence in custody, in particular threatening to take educational staff hostage in 2008, allegedly punching a fellow inmate on 23 April 2014, making threats of violence to staff on 8 June 2014, fighting with a fellow inmate on 13 June 2014 and throwing coffee on staff in July 2015. The defendant was also documented as engaging in a number of inappropriate sexual behaviours in custody as well as other institutional breaches.

3. [34]

   Dr MacDonald summarised his progress in the Forensic hospital, noting that he had continued to display some sexually disinhibited behaviour following his re-admission to the Clovelly Ward in September 2019, but that this was significantly reduced compared to previously, and his last inappropriate behaviour was in late 2019 when he touched a nursing student's leg. She noted that since the last Tribunal hearing, his sertraline dose had been increased and there had not been any suspicion or concern that he had been diverting medication. Dr MacDonald explained that the defendant had not completed any “psychoeducation about his illness, index offence or psychosexual counselling”, due to his cognitive impairment and limited attention span.

4. [35]

   Dr MacDonald stated that the defendant’s substance use had been closely linked with his decline in mental state historically and exacerbations of psychosis. He had ongoing grandiose and bizarre delusions, very poor insight into his mental illness and need for treatment and the effect that his illness has on his behaviour. She added that he has suffered from serious cardiac side effects to clozapine and subsequent medication regimes have been "limited in effectiveness for the remission of psychotic symptoms and sexually disinhibited behaviour".

5. [36]

   Using the HCR-20 tool, Dr MacDonald identified a high loading of historical risk factors for future violence and demonstrated instability potentially indicating a chaotic and unsupported milieu which might predispose to violence. She noted that he demonstrated some difficulty in adhering to supervision protocols, as well as cognitive and affective instability if his needs are not immediately met. The defendant’s DUNDRUM quartet scores also indicated ongoing areas of clinical need and the appropriateness of transfer to a similarly secure environment. Dr MacDonald noted that the defendant would not be accepted into Medium Secure Units due to his sexual offending history and that further rehabilitation was not possible given his significant cognitive impairments.

6. [37]

   Dr MacDonald was of the opinion that the defendant required a highly structured and supervised setting. His condition was unlikely to alter and was likely to deteriorate with the passage of time. He presented as a moderate to high absconding risk. He would require ongoing assertive management with antipsychotic medication. Dr MacDonald recommended that he be managed under a CTO should he cease to be a forensic patient, and that he should continue with supervised medications given his history of non-adherence. She believed that the proposed management plan for supported accommodation was the least restrictive option consistent with safe and effective care.

7. [38]

   Dr Paul Read (consultant forensic psychiatrist) and Dr Macelo Rodriguez (psychologist) prepared an initial risk management report for the Tribunal dated 21 September 2020. Drs Read and Rodriguez referred to the same psychiatric diagnoses as Dr MacDonald, though they also noted that the defendant could meet DSM-5 criteria for Antisocial Personality Disorder. They identified a number of risk factors associated with reactive aggression and sexual violence, noting that he was predisposed to reactive aggression and his risk is increased by his proneness to use weapons (knives). They stated that the defendant presented with a low-moderate loading of risks for inappropriate sexual behaviour, he seemed to be largely unpredictable and his risk could increase if afforded a window of opportunity.

8. [39]

   Drs Read and Rodriguez opined that care, treatment and control was necessary for the protection of the defendant and others from serious harm. For the purposes of s 43(a) of the Act, they stated that the safety of the defendant and members of the public was unlikely to be seriously endangered by his conditional release to a secure, supervised and highly structured setting such as was proposed, provided the defendant adhered to the risk management plan recommended. For the purposes of s 43(b), they stated that this was the least restrictive regime consistent with safe and effective care. They stated that less supervised/contained accommodation would not be viewed as appropriate in the future. They added that he should not be left unsupervised in the presence of female staff, other females or the wider community.

9. [40]

   A number of earlier (but still relatively recent) reports to the Tribunal from the defendant’s treating forensic psychiatrists expressed the view that for the purposes of s 43 of the Act that the safety of the public was likely to be seriously endangered by the defendant’s release.

Compliance with obligations while a forensic patient: cl 7(2)(g)

1. [41]

   As noted by Adamson J, the defendant has ten custodial charges for indecency, involving sexually inappropriate behaviour (including masturbation) in front of or towards female officers. He also had a history of violence in gaol, as noted in Dr MacDonald's report. Dr MacDonald's report indicated that the defendant demonstrates some difficulty in adhering to supervision protocols as well as cognitive and affective instability if his needs are not immediately met. His progress in the Forensic Hospital indicates periods of non-adherence to aspects of his care, resulting in his transfer from the Dee Why Ward to the Bronte Ward on 1 February 2019, after an increase in sexually inappropriate behaviours and concern from staff about medication diversion. He appeared to have been adherent toward rules in the Bronte Ward and subsequently the Clovelly Ward from September 2019, although he had continued to display some sexually disinhibited behaviour.

2. [42]

   Adamson J in Doolan (No 2) set out in detail the differences between the legal regimes for forensic and civil patients as follows:

Unacceptable risk of causing serious harm to others: cl 2(l)(a)

1. [43]

   Having regard to cl 2(1)(a), bearing in mind the limited inquiry for the purposes of cl 10 of Sch 1 in an interim hearing and noting that Adamson J found that the case on this limb was a “strong one”: (Doolan (No 2) at [91]) the following considerations are relevant:

2. [44]

   When the totality of this material is taken into account, including the most recent reports of Drs Singh and MacDonald and the psychologists involved in his treatment, the matters set out in that material would if proved, demonstrate that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient. The consequences of that risk, should further offences of this kind occur, are potentially very serious.

Whether the risk can be adequately managed by other less restrictive means: cl 2(1)(b)

1. [45]

   In her Honour’s decision on the previous application for an extension order in Doolan (No 2), Adamson J considered that the question of whether “means” are more or less restrictive was to be judged by the legal power of others to control the defendant’s actions, locations, treatment and other matters, as well as the practical question of how such power might be exercised in a particular instance. That analysis is set out [100]-[125] of Doolan (No 2) and is replicated in these reasons.

2. [46]

   It follows that the primary analysis required by cl 2(1)(b) is a comparison between the risk of the defendant continuing to be managed as a forensic patients and the risk posed if he is managed as a civil patient in the community. In addition to the differences in the objects of Pt 5 of the Act by comparison with those of the MH Act and the Guardianship Act 1987 (NSW), the following factors should be taken into account for the purposes of that comparison:

3. [47]

   It should be noted that the defendant’s guardianship order (made 8 September 2020) does include coercive powers (e.g. to authorise police to take him to a place approved by the Guardian and return him to that place should he leave it). It also includes a power “to give or withhold consent as to whether an “environmental restraint” should be used to influence the defendant’s behaviour. This power is subject to condition 6 of the order which provides that such environmental restraints may only be used as a last resort to prevent the defendant harming himself or others and in accordance with a behaviour support plan. In other cases, the Court has had regard to NCAT’s reasons for an environmental restraint order of this kind. In Attorney General of New South Wales v WB (Final) [2020] NSWSC 152 at [12] (WB) such a condition was intended to provide the Guardian with sufficient authority to approve a “line of sight” provision.

4. [48]

   There is a significant difference between the facts in WB and those in this case. In WB the defendant had a longstanding attitude of co-operation and compliance (although he had opposed the “line of sight” provision) and there was “no suggestion that, if the sanction available to the Tribunal was removed by him ceasing to be a forensic patient, he would undergo a marked change of behaviour and resist the guidance of his disability workers”. In WB the defendant’s level of risk was also assessed as being moderate to low. It was in this context that Ierace J was of the opinion that the second limb of the test in cl 2(1) of Sch 1 to the Act was not satisfied and that the “line of sight” provision in the guardianship order was sufficient to ensure supervision of the defendant.

5. [49]

   The same conclusion could not be reached in relation to the defendant because of his risk of absconding, as identified by the Tribunal. It should also be noted that the defendant remains untested in the community. Even if the defendant did not leave his residence unaccompanied, there might be practical difficulties in maintaining the “line of sight” provision at all times while the defendant is out in the community, leading to opportunities to abscond which the defendant appears quite likely to take advantage of, having regard to his identified risks and past difficulties with compliance with supervision.

6. [50]

   The Attorney accepted that the Tribunal had conditionally released the defendant as an inpatient in psychiatric hospital care, having determined that his release did not pose an unacceptable risk to either his own safety or the safety of other members of the community. The Attorney accepted that he had not made submissions to the Tribunal opposing the defendant’s conditional release. It seems implicit in the Tribunal decision that it assumed that the proposed level of supervision and monitoring that would be provided for the defendant included a requirement that he comply with the conditions imposed under s 75 of the Act. What was made clear by the Tribunal’s decision is the difference between the risk assessment carried out by it for the purposes of making its conditional release order and the risk assessment required to be carried out by this Court for the purposes of cl 2(1)(b).

7. [51]

   Given the defendant’s history there remains a significant risk that management of him under a CTO and the guardianship order made on 8 September 2020 would not be adequate to address the unacceptable risk he poses of causing serious harm to others. Given the extensive analysis of his background and offending by Adamson J, and in the more recent medical opinion obtained, there remains a significant risk that notwithstanding the best efforts of the NDIS support workers and the Public Guardian, the defendant would find himself in a similar position to that which developed when he was last released from custody. That was an occasion when he was in supported accommodation under the care of the Community Justice Program (CJP) and under a guardianship order with coercive powers. On that occasion, he did not comply with his medication regime, was not maintaining abstinence from alcohol and drugs and was not residing where he was supposed to.

8. [52]

   While the Tribunal regarded the NDIS package approved for the defendant as sufficient to address his complex needs (and his guardianship order enables a “line of sight” provision, which does afford a high level of supervision), both Dr Singh and Dr MacDonald have identified the defendant’s difficulties in complying with supervision in the past. Those difficulties do not seem likely to diminish in the future should he be supervised outside the highly controlled environment of the Forensic Hospital.

9. [53]

   The discretionary character of the enforcement of a CTO and the limited forms of compulsion available to the Public Guardian caused problems in the past. In the case of the guardianship order, sufficiently serious problems arose when the defendant was last at liberty in 2012. Before the Tribunal the Attorney accepted that much more careful transition planning had taken place in 2020 for the purpose of reducing the risk posed by the defendant’s release to the community. Notwithstanding that planning work, Dr Singh’s opinion is that a CTO is unlikely to be sufficient to manage the defendant’s risks, including that he is unlikely to adhere to a proposed treatment plan. His risk of absconding and risks associated with the consumption of alcohol and drugs are clearly more capable of being managed by him being subject to forensic patient status, because that status enables those risks to be compulsorily supervised via the imposition of conditions under s 75 of the Act. Those conditions have the benefit of a threat of a strict sanction should they not be complied with.

10. [54]

    The conditions that may be imposed under s 75 of the Act (and have been imposed by the Tribunal in the defendant’s case) are intended to be closely responsive to both his treatment and criminogenic needs. They are more extensive than may be provided under a CTO and will be monitored in a “conscientious and assiduous” fashion by the Tribunal if the defendant remains a forensic patient. Having regard to both Dr Singh’s opinion as to the inadequacy of management under a CTO and the risk factors identified by other experts in relation to the defendant’s difficulties in complying with supervision and his consumption of alcohol and drugs, I am of the opinion that in accordance with cl 10 of Sch 1 that the matters alleged in the supporting documentation would, if proved, justify a finding that the defendant’s risk cannot be adequately managed by less restrictive means for the purposes of cl 2(1)(b).

11. [55]

    In my view, the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. On the facts of this case, I am persuaded to a high degree of probability that it is appropriate to make an interim extension order. In reaching that conclusion, I note that this is a preliminary hearing. My view that an interim extension order is appropriate is not intended to foreclose a contrary view being reached at a later interim application or at the final hearing in the context of further evidence.

Orders

1. [56]

   I make the following orders:

   1. (1)

      Pursuant to cl 6(5) of Sch 1 of the Act:

   2. (2)

      Pursuant to cll 10 and 11(1) of Sch 1 to the Act the defendant be subject to an interim extension order commencing on and from 22 February 2021 for a period of three months.

   3. (3)

      I appoint Jennifer Thompson as the defendant’s tutor in these proceedings.