Attorney General for New South Wales v Kereopa

1. [1]

   HIS HONOUR: By amended summons dated 1 July 2019, the Attorney General for New South Wales seeks a further extension order against Mr Teahu Kereopa under Schedule 1 of the Mental Health (Forensic Provisions) Act 1990, extending his status as a forensic patient under the Act. Mr Kereopa has been the subject of two earlier decisions published by judges of this Court: see Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 per Davies J and Attorney-General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 per R A Hulme J. These reasons for judgment assume a familiarity with each of those decisions.

2. [2]

   For presently relevant purposes, I note that R A Hulme J made an order on 14 July 2017 extending Mr Kereopa’s status as a forensic patient for a further 2 years until 13 July 2019. On 1 July 2019, Fagan J made an interim extension order following a preliminary hearing extending Mr Kereopa’s status as a forensic patient for a further 3 months until 13 October 2019. His Honour also appointed two experts to conduct examinations of Mr Kereopa and to provide their reports to the Court for the final hearing.

3. [3]

   On 29 August 2019 the Mental Health Review Tribunal ordered Mr Kereopa to be detained at Blacktown Hospital’s Bungarribee House. He has been there since that date. A further review of Mr Kereopa was conducted by the Tribunal on 3 September 2019.

4. [4]

   The matters that I am required to consider in these circumstances are whether, having regard to the available material, including expert evidence, Mr Kereopa:

5. [5]

   In examining these questions, I am not required to determine that the risk of Mr Kereopa causing serious harm to others is more likely than not in order to conclude that he poses an unacceptable risk of doing so. I am, however, required to be satisfied of these matters to a high degree of probability: see Cornwall v Attorney-General of NSW [2007] NSWCA 374 at [21]. Neither of the expressions “unacceptable risk” nor “serious harm” is defined in the Act. In assessing these matters, I am also required to take into account at least each of the factors listed in cl 7(2)(a)–(i) of Schedule 1 of the Act. The evidentiary material and counsel’s submissions in support of these factors have all been unambiguously circulated between the parties and have been considered by me in what follows, although I have refrained in those events from what would seem to me to be an unnecessarily formulaic repetition of them in these reasons.

6. [6]

   One of these factors is the safety of the community. In assessing that factor in this case, Mr Kereopa’s criminal history is naturally said to have some importance. It consists of the following things.

7. [7]

   Mr Kereopa was born in July 1991. His criminal history commenced in 2005 when he was about 13 years old. In that year he acquired convictions for being carried in a conveyance taken without consent of the owner, shoplifting and receiving/disposing of stolen property and robbery in company. Mr Kereopa was part of a group that took items from a student and a co-accused threatened the person with a baton. He was also convicted of destroying or damaging property, entering a vehicle or boat without consent of owner/occupier and goods in custody suspected of being stolen, as well as larceny.

8. [8]

   In 2006 Mr Kereopa was convicted of various counts of larceny, being in custody of an offensive implement in a public place, state false name/address to police, graffiti and running rails. He has a conviction for common assault.

9. [9]

   On 12 May 2008, Mr Kereopa was convicted of aggravated break and enter and commit serious indictable offence. Mr Kereopa and a co-accused broke into a house and stole items while the occupant was present. Similar offences were committed on 13 May 2008, 30 May 2008 and 13 June 2008. On one of these occasions, Mr Kereopa was subsequently involved in a high-speed police pursuit before crashing the vehicle into a residence.

10. [10]

    Mr Kereopa was convicted of having committed a robbery in company on 27 August 2008. He was part of a group who bullied and robbed a man at a station, with a co-accused assaulting the victim. He was later convicted of aggravated break and enter with intent knowing people were there and stealing property on 23 November 2008. Mr Kereopa broke into a home at night while a family and four children were sleeping. He assaulted a law officer (not police officer) on 5 December 2008 when he pushed a female youth officer in the face at Baxter Youth Detention Centre. He also poked her in the ribs, threw punches towards her and was verbally abusive.

11. [11]

    Mr Kereopa was convicted of common assault and break and enter on 5 January 2009. He was confronted by an occupant during a break and enter, and punched the man in the face to avoid apprehension.

12. [12]

    These offences were all committed when Mr Kereopa was a juvenile. As an adult, Mr Kereopa has been convicted of:

13. [13]

    A number of other matters that Mr Kereopa has been charged with as an adult have been dealt with under s 32 of the Act.

14. [14]

    On 14 January 2014, when Mr Kereopa was 22 years old, he and a co-offender broke into a home while the residents slept and stole a handbag, purse, car key, house key, $30 cash and two credit cards. On 20 January 2014, Mr Kereopa and a co-accused broke into a home while the residents slept and stole a handbag and purse, $300 in cash, a digital camera, car keys and a car. On 24 January 2014, Mr Kereopa and others broke into a home while the residents slept and stole a phone, handbag, passport, wallet, 100GBP, car keys and a car. The accused then used the credit card to pay for a taxi, three packets of cigarettes and grocery items.

15. [15]

    Mr Kereopa was later convicted of two counts of aggravated break enter and commit serious indictable offence in company and two counts of take and drive conveyance without consent, as well as sixteen counts of dishonestly obtain property by deception and dishonestly obtain financial advantage by deception.

16. [16]

    Mr Kereopa is now 28 years of age.

17. [17]

    There was a considerable degree of evidence and discussion before me during a concurrent session with Drs Furst, Farrar, Ellis and Chew concerning the question of whether or not this history of criminal activity included convictions for offences that continue to inform the question of whether Mr Kereopa poses an unacceptable risk of causing serious harm to others. The opinions expressed by the experts in joint session ultimately aligned with those respectively provided by them in reports tendered in the course of the proceedings. It is efficient to refer to those now.

18. [18]

    Dr Anna Farrar provided a report dated 30 August 2019. For presently relevant purposes it expressed the following opinions:

19. [19]

    Dr Andrew Ellis provided a report dated 31 August 2019. He considered the issue of Mr Kereopa’s risk of serious harm to others in the following terms:

20. [20]

    Dr Richard Furst prepared a series of reports, commencing with his principal report dated 17 April 2019. The following extracts relevantly reflect his current opinions concerning Mr Kereopa:

21. [21]

    Finally, Dr Gerald Chew provided his opinions in a report dated 28 August 2019. Part of that report was as follows:

22. [22]

    I am satisfied to a high degree of probability that Mr Kereopa poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient. All of the specialists who have examined and reported on Mr Kereopa speak with one voice about this issue.

23. [23]

    It is important immediately to observe, however, that none of these specialists has expressed the view that Mr Kereopa is now or is likely to become dangerous in the sense that he will commit serious offences putting members of the public at risk of danger to their personal safety. As the experts have noted, Mr Kereopa is to a considerable extent quite different to individuals regularly dealt with under the legislation dealing with high risk violent offenders. As the details of Mr Kereopa’s offending reveal, his criminal behaviour is of an entirely different order.

24. [24]

    That is not to say that the risk which the experts have identified is not a matter of concern. The authorities make it clear that harm in the context of serious harm to others contemplates non-physical harm such as psychological or emotional damage. It is plain that entering a person’s home in order to steal from them is capable of causing harm of that kind. A determination of whether Mr Kereopa poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient necessarily involves an evaluative task directed to “the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection”: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [61].

25. [25]

    I have also taken account of a Justice Health and Forensic Mental Health Network report prepared as recently as 11 September 2019 upon which Mr Kereopa relied. That report included the following:

26. [26]

    Under the general heading Risk Management Plan, that report also said this:

27. [27]

    It is presumably uncontroversial that the assessment of whether a risk is unacceptable requires a consideration of both the seriousness of the harm associated with the risk eventuating on the one hand and the likelihood of it doing so on the other hand. The concept of serious harm for the purposes of the Mental Health (Forensic Provisions) Act is not limited to a serious violence offences or a serious sexual offence. It is in that sense a concept that appears to extend to cover or to include harm falling short of either of these types of behaviour. So much is clear from what Davies J said in Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 at [19] as follows:

28. [28]

    I emphasise these matters because it is important for Mr Kereopa to understand that in forming the views that I have formed, I am neither concluding nor deciding that he is a violent offender. The relevant risk that Mr Kereopa may cause serious harm to others is a risk that may exist in the absence of a risk of violence of any sort. The scheme of the Mental Health (Forensic Provisions) Act is plainly protective, not punitive. A conclusion that Mr Kereopa poses an unacceptable risk of causing serious harm to others is one formed in a context that significantly includes specialist medical opinion directed to the question of whether he should remain as a forensic patient.

29. [29]

    Similarly, the question of whether the relevant risk can be adequately managed by other less restrictive means is also ultimately a medical issue. Drs Farrar, Ellis and Furst all share the view that the current regime should not be disturbed. They consider that there is a risk that dealing with Mr Kereopa by way of a combination of a Community Treatment Order and a Guardianship Order would be less likely adequately to respond in a timely way to Mr Kereopa’s possible needs should he encounter difficulties with conforming to directives and behavioural standards in the future. They emphasise that even though Mr Kereopa has good prospects of managing his schizophrenia with medication, he suffers from an intellectual disability that is only responsive to behavioural modification requiring constant learning and support. They are also concerned that an expansion or decentralisation of official influences from one to possibly two or more bodies is likely to operate less efficiently than if Mr Kereopa were to remain as a forensic patient. Mr Kereopa’s recent breaches would appear to have been satisfactorily managed in the context of his current status as a forensic patient.

30. [30]

    I acknowledge that Dr Chew takes a different view and has recommended the imposition of a Community Treatment Order providing for ongoing psychiatric treatment and drug screening with recourse for breach available through admission to a declared psychiatric inpatient unit if required. Dr Chew is also of the opinion that the Guardianship Order would be useful, particularly regarding accommodation, in association with the involvement of the Community Justice and Integrated Services Program. In this last respect I note that a Guardianship Order was made for Mr Kereopa on 26 September 2019.

31. [31]

    Additional portions of the Justice Health and Forensic Mental Health Network report referred to earlier should also be noted as follows:

32. [32]

    As counsel for the plaintiff has pointed out in her written submissions, if an extension order is not made, Mr Kereopa will be free to leave his current accommodation on 13 October 2019 and will not be compelled to utilise the services of the Community Justice and Integrated Services Program or the Blacktown Mental Health Team. He will, in short, no longer be subject to the ongoing supervision of the Mental Health Review Tribunal. Dr Ellis considered the possibility of a Community Treatment Order as a less restrictive means of managing Mr Kereopa’s risk but ultimately concluded that an extension of his forensic patient status was to be preferred to relying upon the Mental Health Act provisions. Drs Farrar and Furst were of similar opinions. Only Dr Chew considered that Mr Kereopa could be adequately managed by the imposition of a Community Treatment Order, even though such an order can only be made for a period of 12 months.

33. [33]

    Doing the best I can, I consider that not only can management of the risks Mr Kereopa poses be best achieved if he remains as a forensic patient but also that it is in his own best interests that he does so. No less restrictive approach appears to me to provide the same level of secure and coordinated supervision in the particular circumstances of this case. I accept that Mr Kereopa has opposed the present application and that his opposition is borne of a genuine desire to alter his current status. I foresee the prospect of that occurring in the future if things proceed as he would hope. Moreover, the maintenance of Mr Kereopa’s status as a forensic patient for now seems to me to be likely to be a positive contributor to that prospect. I take comfort from the fact that Mr Kereopa’s recent breaches of conditions attaching to him have been both minor in the scheme of things and very appropriately and satisfactorily resolved under the current regime, which has been demonstrated to provide effective legal oversight of Mr Kereopa’s clinical care.

34. [34]

    The question then arises as to the length of time for which Mr Kereopa’s status as a forensic patient should be extended. The plaintiff has sought an extension for a period of 5 years, which is the maximum period for which the legislation provides. A range of views was provided by the experts.

35. [35]

    In my view, it is appropriate in this case to order an extension for a period of 2 years. Dr Chew has noted that Mr Kereopa’s “insight into his offending, mental disorder and substance abuse appears to be increasing” and that “his psychotic disorder is well treated”. Dr Chew also identified a series of protective factors. It is important in such circumstances not to foreclose the prospect of progress through self-determination, a not insignificant matter to be considered as Mr Kereopa gets older, in order to provide him with ongoing management required “to continue his rehabilitative pathway and [militate] against risk of serious harm”.

Orders

1. [36]

   I make the following orders:

   1. (1)

      Pursuant to cl 7(1)(a) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 the status of Mr Teahu Kereopa as a forensic patient is extended for a period of two years from 13 October 2019.

   2. (2)

      Access to the Court file shall not be granted to a non-party without leave of a Judge of the Court. If any such application for access is made by a non-party, the parties are to be notified by the Registrar so as to be given the opportunity to be heard.