Attorney General of New South Wales v Vakapora (Preliminary)

1. [1]

   This is an application made under Sch 1 to the Mental Health (Forensic Provisions) Act 1990 (NSW) (“MHFPA”) for an extension order in respect of the defendant. Such an application may be made in respect of a forensic patient only if the forensic patient is subject to a limiting term or an existing extension order: cl 4(1).

2. [2]

   On 1 August 2016 the defendant was arrested and charged with two offences:

3. [3]

   The offence of recklessly cause grievous bodily harm was a sudden, unprovoked attack on a male victim aged 61. He was punched to the face and knocked down by the defendant. He was then kicked to the face numerous times by the defendant whilst the defendant was wearing boots. The victim suffered multiple left sided facial bone fractures involving his left eye, sinus, nasal bone and septum, and there was a suspected focus of blood collection inside the right anterior skull cavity.

4. [4]

   The offence of intimidation occurred because another person attempted to intervene to prevent the assault on the victim of the defendant’s attack.

5. [5]

   On 25 June 2018 Judge English in the District Court found that the defendant was unfit to plead. Her Honour noted that the defendant had a long history of psychotic illness and polysubstance abuse. Her Honour referred the defendant to the Mental Health Review Tribunal (the “Tribunal”) for assessment.

6. [6]

   Subsequently a special hearing took place on 4 November 2019 where the defendant was found to have committed the offences charged. On 10 December 2019 Judge English imposed a limiting term for the offence of recklessly cause grievous bodily harm for a period of two years and six months commencing 28 July 2018 and expiring 27 January 2021. She imposed a limiting term of three months for the offence of stalk and intimidate commencing 24 July 2018 and expiring 23 October 2018.

7. [7]

   At the time Judge English imposed the limiting term, she had a report of Dr Richard Furst of 1 December 2019. Dr Furst diagnosed the defendant as suffering from the following diagnoses:

8. [8]

   It is in the circumstances of the imminent expiry of the limiting term on 27 January 2021 that the Attorney General now seeks an order that the defendant be subject to an interim extension order under the Act, and for the appointment of two qualified psychiatrists, psychologists and/or registered medical practitioners to conduct separate examinations of the defendant and to furnish reports to the Court.

9. [9]

   The orders are not opposed by the defendant, but without prejudice to the defendant to argue at the final hearing that an extension order should not be made.

Legal principles

1. [10]

   Clause 2 of the MHFPA provides:

2. [11]

   Clause 10 of Sch 1 provides:

3. [12]

   Clause 11 provides that an interim extension order commences on the day fixed in the order for its commencement and expires at the end of such period not exceeding three months from the day on which it commences as is specified in the order: cf. ss10C(1)(a) and 18C(1)(a) Crimes (High Risk Offenders) Act 2006 (NSW) (“CHROA”).

4. [13]

   Because the defendant is the subject of a limiting term and was detained in custody pursuant to an order under s 24 of the MHFPA he is a “forensic patient” within the meaning of the definition of that term in s 42 of the MHFPA.. Section 54A gives power to the Court to extend a person’s status as a forensic patient in accordance with Schedule 1 to the Act.

5. [14]

   Section 40 sets out the objects of Pt 5 of the Act which deals with forensic patients. The first of such objects is the protection of the safety of members of the public. The remaining four objects are directed towards the care and rehabilitation of the forensic patient.

6. [15]

   In Attorney General of New South Wales v McGuire [2013] NSWSC 1862, I said that the learning that has grown up in relation to the CHROA should be appropriately applied to Sch 1 of the MHFPA. However, in Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 I accepted that the net is cast wider for forensic patients particularly because the unacceptable risk for a forensic patient is “causing serious harm to others” whereas under the CHROA the unacceptable risk was committing either a serious sex offence or a serious violence offence, both of which are defined in that Act. In relation to a serious violence offence, at a minimum, grievous bodily harm is required. In the present case, the offence in respect of which a limiting term was ultimately imposed was one that involved grievous bodily harm.

7. [16]

   The term “serious harm” is not defined in the MHFPA or Sch 1 but its meaning was discussed by White J (as his Honour then was) in Re J (No. 2) [2011] NSWSC 1224 in the context of s 14 of the Mental Health Act 2007 (NSW).

8. [17]

   As with applications under the CHROA, the task of the Court when dealing with an application under Sch 1 of the MHFPA is not to predict the ultimate result. Rather, the test is said to be one similar to the prima facie test applied by magistrates in committal proceedings: Attorney General for New South Wales v Tillman [2007] NSWCA 119; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]; Attorney General for New South Wales v Boyce [2017] NSWSC 144 at [10].

Evidence

1. [18]

   The defendant was born in the Cook Islands in 1990. He moved to Sydney when he was 17. Shortly after the move his mother said that he became unwell. He was diagnosed with schizophrenia at the age of 20. He had auditory hallucinations and was paranoid about other people’s intentions towards him.

2. [19]

   In 2011 he was admitted to Liverpool Hospital following a suicide attempt. At about the same time he cut off his left index finger to “stop spirits marking my right arm”.

3. [20]

   Dr Furst in a report date 4 March 2017 recorded that the defendant used cannabis from the age of 7 years, and up to 7gms per day in his teenage years. In a later report by Dr Anderson (see [25] below), Dr Anderson said his cannabis use started when he was 11. This only tends to highlight what other doctors had noted, that the defendant was a poor historian. In 2014 he started taking methamphetamine which resulted in a significant deterioration of his precarious mental state.

4. [21]

   In his report of 1 December 2019, Dr Furst said:

5. [22]

   In a report prepared for the Mental Health Review Tribunal, Dr Andrew White on 17 July 2020 said that there was no doubt the defendant suffered from a severe and persistent mental illness. He said the only question was whether his diagnosis was schizophrenia or schizoaffective disorder. He said the defendant’s illness had been complicated by severe and persistent substance use, but the illness had persisted throughout lengthy incarcerations and hospitalisations. In that way, Dr White did not think that drug induced psychosis was a possible diagnosis. He said although there was a significant history of adult antisocial behaviour, in the presence of severe mental illness and in the absence of significant evidence of juvenile conduct disorder, he would not make a diagnosis of antisocial personality disorder.

6. [23]

   Dr White said that it was the opinion of the treating team that the defendant required admission to a forensic rehabilitation facility for thorough assessment of his needs and the development of a comprehensive management plan. His long history of behavioural disturbance in hospital would strongly suggest that he needed, at least initially, to be treated in an environment of high therapeutic security.

7. [24]

   In a report dated 13 October 2020 for the Mental Health Review Tribunal, Dr Reece Anderson echoed Dr White’s diagnosis of a severe and persistent mental illness with some uncertainty as to whether it was schizophrenia or schizoaffective disorder. He was not prepared to diagnose antisocial personality disorder for the same reasons as Dr White.

8. [25]

   Of some significance, Dr Anderson carried out a risk assessment under the HCR-20 Protocol. He said this:

9. [26]

   Dr Anderson considered that the defendant had some insight in that he took medication most of the time and accepted that he has a mental illness. Dr Anderson said, however, that the defendant had a very limited understanding of his illness, the symptoms associated with his illness and the impact of his substance use on his illness.

10. [27]

    The defendant was reviewed by the Tribunal on 5 November 2020. It issued its determination on 16 November 2020.

11. [28]

    The Tribunal noted that the defendant’s illness had persisted throughout lengthy incarcerations and hospitalisation since being taken into custody on the day of the index offence. It referred to Dr Anderson’s report where he said that the defendant’s illness had been complicated by a variety of factors, including severe and persistent substance use, non-compliance with medication and poor engagement with treatment clinicians. The Tribunal noted that the defendant had settled well since being admitted to the Forensic Hospital. He had been compliant with medication, following staff directions and managing well with other patients in the Unit. The defendant through his solicitor informed the Tribunal that he was glad to be in the Forensic Hospital receiving treatment.

12. [29]

    In relation to risk assessment the Tribunal said that the defendant had a high loading of historical risk factors. He had a history of violence and other antisocial behaviour. Over the prior six months the defendant had experienced problems with insight, symptoms of a major mental disorder, and treatment or supervision responses. He continued to experience persecutory delusions. Although he denied hallucinations, staff observations tended to the view that the defendant did experience hallucinations.

13. [30]

    The Tribunal said the defendant appeared to have limited adaptive coping strategies. It was anticipated by the treating team that he would experience ongoing problems with treatment and/or supervision, given his poor insight and his propensity to minimise and deny ongoing symptoms, which limited his capacity to engage in meaningful discussion and treatment for his illness.

14. [31]

    The Tribunal concluded as follows:

15. [32]

    The Tribunal made an order confirming the current arrangements for care, treatment and detention at the Forensic Hospital.

16. [33]

    The Attorney General engaged Dr Jeremy O’Dea to prepare a report for the purpose of the present application. Dr O’Dea saw the defendant on 28 September 2020 and prepared his report on 22 October 2020.

17. [34]

    Dr O’Dea’s conclusions were these:

18. [35]

    I note, in terms of paragraph 71 of Dr O’Dea’s report that the defendant was admitted to the Forensic Hospital on 29 September 2020, the day after Dr O’Dea saw the defendant.

Determination

1. [36]

   The test in cl 2 of Sch 1 is twofold. At a final hearing the Court must be satisfied to a high degree of probability that:

2. [37]

   My task on an application for an interim order is to consider whether if the material provided to me was proved at a final hearing that would justify the making of an extension order, noting that the Court at a final hearing must be satisfied to a high degree of probability of the two matters identified. At a final hearing the Court must have regard to the matters set out in cl 7(2).

3. [38]

   As to the question of whether the defendant is an unacceptable risk of causing serious harm to others, I consider that the Court must have regard to the principal index offence. That arises because two of the considerations in cl 7(2) are the safety of the community and the views of the court which imposed the limiting term. A further relevant matter is the defendant’s criminal history.

4. [39]

   The victim of the index offence involving grievous bodily harm was brutally attacked because the defendant wrongly believed (as he subsequently told Dr O’Dea) that the victim had taken his bong. The interaction between the defendant’s mental illness and his Substance Use Disorder is clear.

5. [40]

   I have further concerns arising from the level of the violence inflicted on the victim. The offence of recklessly causing grievous bodily harm was not the first offence of violence on the defendant’s record but it is certainly the most serious. There have been a number of other offences including assault occasioning actual bodily harm, common assault, and stalk/intimidate. These were directed both to family members (offences of 7 February 2011 and 10 December 2015) and to strangers (the index offences and the offence of 16 March 2016).

6. [41]

   Dr O’Dea said that if he was to be released into the community without supervision there would be a significant risk that his condition would deteriorate, that he would pose a risk of causing serious harm to others, and in particular would engage further violent offending behaviours. That is entirely consistent with what Dr White said when he carried out his risk assessment.

7. [42]

   The likelihood of further offences of violence is increased by the defendant’s lack of insight into his mental condition, his substance use, and his non-compliance with his prescribed medication regime when in the community. Those matters make the risk of serious harm to others unacceptable, noting that the words “unacceptable risk” should be given their everyday meaning in the context of the provision in which they appear: State of New south Wales v Thomas (Final) [2011] NSWSC 307 at [58]; Lynn v State of New South Wales [2016] NSWCA 57 at [58].

8. [43]

   In my opinion, the evidence, if proved, demonstrates clearly and to a high degree of probability that if the defendant does not remain a forensic patient he is an unacceptable risk of causing serious harm to others.

9. [44]

   The second issue is whether the risk can be adequately managed by less restrictive means.

10. [45]

    In Attorney General of NSW v McGuire (No. 2) [2014] NSWSC 288 Garling J said at [63]:

11. [46]

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

12. [47]

    Justice Adamson also analysed at [97] – [129] in some detail the differences between management under the MHFPA and under the Mental Health Act 2007 (NSW). That analysis was summarised by Beech-Jones J in Minister for Mental Health v Paciocco [2016] NSWSC 1530 as follows:

13. [48]

    Dr O’Dea was clear in his report (at paragraph 69) that he did not consider that there was currently care of a less restrictive kind that was consistent with safe and effective care. He said that the defendant required ongoing structured and supervised psychiatric treatment in a secure psychiatric facility at the present time to bring his schizophrenic illness under adequate control and in order to manage adequately and appropriately the significant risk of the defendant causing serious harm to others.

14. [49]

    In October 2020, shortly after the defendant went to the Forensic Hospital, Dr White was concerned to ensure that the treatment with Clozapine was established before he could recommend a step-down approach and consider his referral for assessment in a less intensive unit. The Tribunal agreed with that assessment, saying that the present arrangements with the defendant at the Forensic Hospital were necessary and sufficient to protect both the defendant and others from serious harm.

15. [50]

    At the present time, and on the evidence that I have, I consider that the risk of serious harm to others cannot be adequately managed by other less restrictive means.

16. [51]

    The issue for the Court under the MHFPA is not, however, to determine whether any order made is one for detention or one for supervision within the community. The question is only whether an extension order should be made for the defendant’s designation as a forensic patient. It is for the Mental Health Review Tribunal to determine what flows from the making of an order, and that will determine whether the defendant remains in the Forensic Hospital or whether some of the alternative treatments available identified in paragraphs 78 and 79 of Dr O’Dea’s report should be implemented by way of a step-down.

Conclusion

1. [52]

   In those circumstances, the following orders should be made: