Attorney General of New South Wales v Skerry (bht Limbury) (Preliminary)

1. [1]

   HIS HONOUR: By summons filed on 16 October 2024, the Attorney General of New South Wales (the plaintiff) seeks interim and final orders pursuant to ss 130 and 131 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act).

2. [2]

   The following interim orders are sought. Firstly, that Michael Skerry’s (the defendant)’s status as a forensic patient be extended for a period of three months commencing upon the expiry of his current extension order on 12 February 2025, known as an interim extension order (IEO). Secondly, an order that, pursuant to s 126(5) of the Act, two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) be appointed to conduct separate examinations of the defendant and furnish reports to the Court on the results of those examinations by a date to be fixed by the Court.

3. [3]

   The final relief sought is that, pursuant to ss 121, 127(1)(a) and 128 of the Act, the defendant’s status as a forensic patient be extended for a period of five years from the date of the order, or for a length to be finally determined following receipt of any Court appointed expert reports.

4. [4]

   An ancillary order is sought restricting access to the Court file to non-parties absent leave of the Court.

5. [5]

   The defendant appears by his tutor, Ashley Limbury. As a forensic patient, the defendant is a “person under a legal incapacity”: Civil Procedure Act 2005 (NSW), s 3; thus, pursuant to r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW), the appointment of a tutor is required to “carry on proceedings”:

6. [6]

   The defendant does not oppose the grant of the interim and ancillary orders, however, he reserves his position in relation to the final relief sought by the plaintiff.

Legislative Framework

1. [7]

   Section 124 of the Act stipulates certain threshold requirements for an application to be made for an IEO, concerning a defendant’s status and the time frame within which the application is made. The parties agree that they have been satisfied and I am so satisfied, as well.

2. [8]

   Section 130 of the Act empowers the Supreme Court to make an interim order to extend a person’s status as a forensic patient:

3. [9]

   Section 130(b) of the Act necessitates regard to the legislative test in s 122 of the Act for the making of an extension order:

4. [10]

   A preliminary hearing is required by s 126(4) of the Act, its purpose being for the Court to determine whether the documentation supporting the application would, if proved, “justify the making of an extension order” (“the preliminary hearing test”). If the Court is so satisfied, it must make orders appointing two psychiatrists, psychologists or medical practitioners, or any combination thereof, to separately examine the forensic patient and furnish reports to the Court: s 126(5) of the Act. If the Court is not so satisfied, it must dismiss the application: s 126(6) of the Act.

The application for an IEO

1. [11]

   A joint statement of agreed facts (the agreed facts) has been tendered, in compliance with cl 26(i) of the Supreme Court Practice Note SC CL 12. The facts are agreed pursuant to s 191 of the Evidence Act 1995 (NSW). I refer to that document by way of background to the application.

2. [12]

   The defendant is presently 57 years old. He has siblings, he is not in a relationship and has no children. He had a close relationship with his mother, who died in early 2024.

3. [13]

   The defendant’s criminal history commenced when he was aged 17. It includes entries for negligent driving, possession of a prohibited drug, contravention of an Apprehended Violence Order, breach of bail conditions, unlawful entry, common assault, goods suspected of being stolen, shoplifting, refusing/failing to pay for meal, aggravated indecent assault of a victim under the age of 16 years, using an offensive weapon to prevent lawful detention, destroy/damage property, aggravated sexual assault, and break and enter.

4. [14]

   As to his sexual offending, I note that on 10 March 2009, the defendant was convicted of common assault. The police facts alleged that he touched and lightly squeezed a 14-year-old girl on her thigh, partially underneath her shorts. On 9 February 2010, he was charged with aggravated sexual assault. The police facts in relation to that offence alleged that he threatened a homeless man, took him into a public bathroom and forced him to perform oral sex, with the defendant ejaculating into his mouth.

5. [15]

   As to his drug and alcohol use, the defendant has a prior history of opiate dependence, alcohol abuse and instances of failing to comply with his medication. In 2015, he reported drinking alcohol on a regular basis, smoking cannabis at the age of 16 or 17 which became a regular occurrence, smoking nicotine cigarettes throughout his life and using crystal methamphetamine and heroin. Recent reports since his conditional release indicate that the defendant has remained abstinent from illicit substances and alcohol. He has been diagnosed with a polysubstance use disorder (in remission in a controlled environment), as well as impaired cognitive function.

6. [16]

   The defendant has a long and complicated mental health history. He was diagnosed with schizophrenia in 1990, when aged 23, and continues to suffer from a severe chronic treatment resistant schizophrenic illness, complicated by polysubstance use disorder, which, as mentioned above, is in remission. His illness is characterised with symptoms such as delusional beliefs, paranoia, and hallucinations.

7. [17]

   The defendant has presented disinhibited behaviour in the community, and has continuously expressed ongoing delusional beliefs that an intruder comes into his bedroom at night to physically harm him and have sex with him/sexually assault him. Reports from the defendant’s support workers have indicated that he believes that members of the public are his “bodyguards”, and he has previously approached people asking whether they were sent to protect him, and whether certain vehicles had been sent for him (for example, a taxi waiting on the street), or that people were wanting to harm him.

8. [18]

   The defendant has been a forensic patient since 6 July 2012, which was the date of the index offence of aggravated sexual assault without consent, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The defendant entered the apartment of a female neighbour uninvited and dragged her by her hair to her bedroom, where he threatened to kill her, forced her to perform oral sex on him and then demanded money from her. At the time, he was subject to a Community Treatment Order (CTO).

9. [19]

   The defendant was found unfit to be tried and on 5 November 2013, after a special hearing in the District Court, it was determined that, on the limited evidence available, he committed the offence charged. A limiting term of 3 years commencing on 6 July 2012, and expiring on 5 July 2015, was nominated.

10. [20]

    The defendant’s status as a forensic patient was extended for a period of 3 years each on three subsequent occasions by this Court; by Adams J on 9 September 2015: Attorney General of New South Wales v CD (Supreme Court (NSW), Adams J, 24 November 2016 unrep); by R A Hulme J on 14 November 2018: Attorney General of New South Wales v Skerry (by his tutor Thompson) (Final) [2018] NSWSC 1711; and by N Adams J on 11 February 2022: Attorney General of New South Wales v Skerry (by his tutor Ramjan) (Final) [2022] NSWSC 99. The last of those extensions is due to expire on 12 February 2025, which is why the plaintiff now seeks an interim order extending the defendant’s status as a forensic patient pending final determination of the extension application.

11. [21]

    On 26 August 2020, the defendant was granted conditional release by the Mental Health Review Tribunal (MHRT) and has been residing in the community in NDIS-funded supported accommodation provided by Challenge Community Services.

12. [22]

    The agreed facts state the following in relation to the defendant’s recent behaviour and compliance:

13. [23]

    The defendant has been reviewed periodically by the MHRT between 19 August 2020 and 28 May 2024. The effect of the review decisions of the MHRT is summarily canvassed below.

14. [24]

    By a determination dated 27 August 2020, the defendant was granted conditional release and discharged from Bloomfield Hospital, subject to conditions, including being subject to line-of-sight supervision whilst in the community. The review decisions broadly reflected that the defendant has maintained compliance with his medication, but has continued to experience ongoing delusional beliefs, and at times, expressed frustration with the restrictions imposed on him. The MHRT decision dated 28 September 2022 had an observation that the defendant:

15. [25]

    The most recent review decision of the MHRT in the material is dated 27 June 2024. More positive findings are made, including that there had been a decrease in the defendant's psychotic symptoms in terms of intensity and frequency, and that he was more settled in his mental state and behaviour. The MHRT observed that although the defendant had been compliant with his medication, he lacked insight into the link between the medication and his improved state, and that he needed to be subject to ongoing monitoring when he accesses the community and engages with others.

16. [26]

    The agreed facts summarise recent mental health assessments of the defendant, including reports by Dr Jeremy O’Dea, forensic psychiatrist, dated 17 June 2024, and 22 August 2024:

Consideration and determination

1. [27]

   It is clear from the recent forensic reports, against the background of the defendant’s history of mental health diagnoses, past drug and alcohol abuse and criminal offending, that if the defendant is not subject to the powers and constraints that accompany his status as a forensic patient, there is a real risk of him causing serious harm to others in the community; in other words, the gravity of the risk is unacceptable and there are no less restrictive means available of managing that risk. If those matters in the material before the Court are proved, it would justify the making of an extension order.

Orders

1. [28]

   I make the following orders.