NSW Minister for Mental Health v BB

By a summons filed on 24 June 2015 the plaintiff, the Minister for Mental Health of NSW, seeks an order pursuant to Clause 7 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (“the Act”) extending the status of the defendant as a forensic patient. Although the summons seeks an extension of 5 years, counsel for the plaintiff informed me at the hearing that an extension of 2 years was now sought.

The matter initially came before Adamson J on 30 June 2015 when, following a preliminary hearing, her Honour made an order appointing medical practitioners to conduct examinations of the defendant and furnish reports to the Court. Her Honour also made an Interim Extension Order for a period of 28 days from 1 July 2015. The matter again came before her Honour on 21 July 2015, at which time the Interim Extension Order was renewed for a further period of 28 days from 29 July 2015. The order was then renewed by her Honour for a further period of 28 days from 25 August 2015.

At the commencement of the hearing before me, counsel for the defendant made application for an order that there be no publication of the name of the defendant. The plaintiff neither consented to, nor opposed, that application. My attention was drawn to s. 162 of the Mental Health Act 2007 (“the MHA”) which is in the following terms:

Section 21 of the Interpretation Act 1987 (NSW) is in (inter alia) the following terms:

I was referred by counsel for the plaintiff to the decision in Kizon v Palmer (1998) 82 FCR 310. In that case the Full Court of the Federal Court of Australia upheld a conclusion of the primary Judge that the word “person” where it was used in provisions of the Telecommunications Interception Act 1979 (Cth) which prohibited the disclosure of material did not apply to, or include, a Court hearing a public interest immunity claim, such that the Judge hearing the claim could examine affidavit material which contained prohibited information.

In Attorney-General (NSW) v XY [2014] NSWCA 466, McColl JA concluded (at [186]-[187]) that the making of an order under the Court Suppression and Non-publication Orders Act 2010 prohibiting the publication of the name of the defendant was not necessary in light of s. 162 of the MHA which, her Honour accepted, applied to proceedings in the Court of Appeal. In those circumstances her Honour concluded that it was appropriate that the Court’s judgment not use the Respondent’s name.

More recently in Sarah White v Local Health Authority [2015] NSWSC 417, Slattery J noted (at [3]) that some of the parties to the proceedings before the Court were parties to proceedings before the Mental Health Review Tribunal (“the Tribunal”). His Honour concluded:

Although I have not had the benefit of full argument in relation to this issue, the judgments in XY and White clearly support the proposition that s. 162 of the Act applies to a Court. In these circumstances I propose to refer to the defendant as “BB”.

In support of the application the plaintiff read the following affidavits:

The plaintiff also tendered:

The defendant read the affidavit of Joanna Kwan of 9 September 2015.

Dr Allnutt, Associate Professor Woods and Ms Howell all gave oral evidence before me in the course of the hearing. I have referred to aspects of their evidence in more detail below. Ms Judy Hunt, a Principal Guardian at the Office of the Public Guardian in Sydney also gave evidence to which I have referred below.

There is no dispute as to the factual background which gives rise to the defendant’s present status as a forensic patient. That background may be summarised as follows.

The defendant’s status as a forensic patient arises out of his commission of an offence of sexual intercourse with a child under 10, contrary to s. 66A of the Crimes Act 1900 (NSW). The facts prepared in relation to that offending state that in the late afternoon of 1 January 2011 several young children, ranging in ages from 2 to 12 years, were playing in a bus which was parked in the rear yard area of a unit block in the township of Inverell in NSW. The yard area was shared between the residents of the block. The bus was used by the victim’s mother. The victim was 4 years old at the time.

The defendant walked towards the bus. He had removed most of his clothing and was wearing only a pair of blue boxer shorts. He took hold of the victim by her body and arms and pulled her through the window, and out of the bus. He dragged her towards his premises within the unit block. In the course of doing so, he placed her on the ground and inserted his penis into her mouth, to the point that she was observed to have trouble breathing. Another child intervened and removed the victim, taking her to her parents.

On the following day the defendant was arrested by police. He was observed to be highly intoxicated and was described as being slow and unsteady on his feet. Ultimately, police made a determination not to interview him due to his level of intoxication.

On 30 April 2012 in the District Court at Armidale, Judge Toner found that the defendant was unfit to be tried. His Honour remanded the defendant in custody and referred him to the Tribunal. On 28 June 2012 the Tribunal ordered that the defendant be detained at the Long Bay Correctional Centre for care and treatment. On 23 August 2012 the Tribunal confirmed that the defendant remained unfit to be tried and, on the balance of probabilities, would not become fit within 12 months.

On 5 November 2013 the defendant appeared before his Honour Judge King in the District Court. Having held a special hearing pursuant to the provisions of the Act, his Honour was satisfied that on the limited evidence available, the defendant committed the offence to which I previously referred. In the course of his judgment (at T7) his Honour noted that at the time of his arrest, the defendant was assessed by police to be so affected by alcohol that it was inappropriate to try to conduct an interview with him.

The matter again came before Judge King on 5 December 2013. On that occasion, having noted his previous conclusions, his Honour imposed a limiting term of 4½ years commencing on 2 January 2011 and expiring on 1 July 2015. The defendant was referred to the Tribunal pursuant to s. 24(1)(a) of the Act. His Honour further ordered, pursuant to s. 24(1)(b) of the Act, that the defendant be detained in such place as directed by the Tribunal. The defendant thereby became a Forensic Patient by reason of s. 42 of the Act.

In the course of his judgment, his Honour observed (at T9) that on 3 January 2011, following his arrest on the previous day, the defendant was noted to suffer a seizure (secondary to alcohol withdrawal). His Honour went on to say:

His Honour recounted the defendant’s criminal history as follows (at T10):

His Honour then observed (at T11):

His Honour then said (at T13):

In the course of the limiting term imposed by Judge King, the defendant was reviewed by the Tribunal in accordance with s. 46(1) of the Act. Whilst I do not propose to recount the entirety of the material which relates to those various reviews, there are aspects of it to which I was specifically taken in the course of argument, and to which I should refer.

The defendant was reviewed by the Tribunal on 12 December 2013. On that occasion Dr Anna Farrer reported that he had alcohol induced dementia, characterised by deficits in memory, attention, concentration and executive function. Dr Farrer noted that the defendant had a history of alcohol dependence over a period of at least 20 years and that his cognitive function appeared to have deteriorated mildly over the preceding 6 months. She expressed an expectation that the defendant’s cognitive function would continue to deteriorate slowly, and she concluded that he presented in a manner which was consistent with a person suffering a borderline intellectual impairment. Dr Farrer concluded (at page 5):

A further review took place on 17 July 2014. On that occasion, the Tribunal concluded that the defendant should be detained in the aged care rehabilitation unit at Long Bay Hospital. The reasons of the Tribunal set out (at page 5) an extract of a report of Dr Morgan, Psychiatry Registrar, of 17 July 2014 in which the following was stated:

A further review was undertaken on 5 February 2015. On that occasion, the Tribunal’s report stated:

The Tribunal’s report noted that no risk assessment had been proffered by the defendant’s treating medical practitioners and that his risk was therefore assumed to be low. The report also noted that in the opinion of Dr Kheng Chan, the Psychiatry Registrar at Long Bay Hospital, no Community Treatment Order would be needed if appropriate accommodation could be found, but that if this was not the case there would be concerns about supervision of the defendant’s living arrangements, particularly from the perspective of alcohol abuse. The report also noted that Dr Wilkee Sim, a Geriatrician, had suggested that if all else failed, the defendant should be placed on a Community Treatment Order in Department of Housing accommodation.

On 22 January 2015, Dr Chan provided a report to the Tribunal in which he stated (inter alia):

A further review was undertaken by the Tribunal on 14 May 2015. On that occasion the Tribunal reported:

It is noted that Dr Bhattacharrya is the defendant’s treating psychiatrist.

On 29 April 2015, Dr Lee wrote to the Tribunal on behalf of Dr Bhattacharrya. He expressed the view that the defendant’s depressive illness had significantly improved and that he no longer suffered from persistent low mood or psychotic symptoms. He reported that the defendant suffered from alcohol-related cognitive impairment which was progressive, and which was not likely to improve in the near future. He noted that the defendant’s treating doctors were of the opinion that the defendant had ceased to become a mentally ill person within the meaning of the MHA. In terms of the defendant’s ongoing placement Dr Lee said the following:

On 30 April 2015, bearing in mind the opinions expressed by Dr Lee in the passage set out above as to the defendant’s placement in an appropriate aged care facility, the Manager of the Bexley Care Centre (“the Centre”) confirmed that a bed had been booked at that Centre for the defendant which would be available for him following his discharge from Long Bay Hospital.

Associate Professor Woods provided two reports. The first was dated 24 August 2015 and followed an assessment of the defendant undertaken on 14 August 2015. In the course of that assessment, Prof. Woods administered testing for the purposes of assessing the defendant’s level of cognitive functioning. He concluded (at p.12) that the results were consistent with impaired executive functioning, and he expressed the view that although there appeared to have been some improvement in that regard, the defendant’s level of cognitive functioning would rapidly decline in the absence of continued treatment. In expressing these views, Prof. Woods stressed the importance of bearing in mind that the defendant had been diagnosed with alcohol and vascular dementia. He considered that one factor relevant to the risk of re-offending was the expectation that the defendant’s level of cognitive function would continue to decline, regardless of whether symptoms of his mental illness were controlled by appropriate medication.

For the purposes of preparing his report, Prof. Woods spoke with Ms Twomey, the Nurse Unit Manager at Long Bay Hospital. He noted that Ms Twomey supported the defendant’s proposed transfer to the Centre and had advised that:

Prof. Woods also spoke with Dr Sim, who expressed the opinion that the defendant could be safely managed at the Centre. That expression of opinion is consistent with the report of Dr Sim which is annexed to the affidavit of Ms Kwan, and in which Dr Sim offered to work closely with any medical practitioner(s) at the Centre. Prof. Woods noted that Dr Sim expressly rejected the possibility, suggested by Ms Howell in her report of 22 June 2015, that the defendant would be capable of “scaling walls and gates” in order to abscond from the Centre. Prof. Woods further noted that Dr Sim had made specific comment about the defendant’s reduced level of mobility.

Prof. Woods himself visited the Centre and documented the following (commencing at p.16 of his first report):

Prof. Woods accepted that the defendant had a disturbing history of alcohol abuse and dependence, and that he satisfied the criteria for:

He concluded that the defendant’s dementia, even in the absence resumed use of alcohol, would continue to deteriorate.

In terms of the management of any risk which was found to be posed by the defendant, Prof. Woods said the following (at p.23):

Prof Woods summarised his conclusions as follows:

Prof. Woods provided a supplementary report of 21 September 2015 after having the benefit of reading the reports of Dr Allnutt and Ms Howell. In the course of that supplementary report (commencing at p.5) he again addressed the level of risk that the defendant might pose in the event that he ceased to be a forensic patient. In that regard he said the following:

Prof. Woods gave oral evidence before me. He confirmed (at T11 L5-7) that his view about the suitability of the Bexley Care Centre was contingent upon the defendant remaining subject to guardianship with coercive powers which, as he understood it, permitted a guardian to (for example) authorise police to return him to their place of accommodation. As I have set out further below when considering the evidence of Ms Hunt, there are presently no coercive powers in force, although steps have been taken to ensure that an application for such powers can be made at short notice if necessary.

Prof. Woods confirmed (commencing at T11 L15) that he did not believe that the defendant should be placed in the community with the “normal freedoms” that members of the community enjoy. He expressed the view that it would be necessary for the defendant to be subject to some degree of control, particularly with respect to factors such as his living arrangements and the acceptance of ongoing treatment. He was then asked (at T11 L23):

Prof. Woods had incorrectly assumed that coercive powers were already in place in association with the defendant’s guardianship. In bringing this to his attention, counsel for the plaintiff asked (at T11 L45):

Prof. Woods confirmed (commencing at T 12 L7) that in his opinion the defendant would not be adequately managed in the wider community, or in a low security aged care facility where he did not have the benefit of a high level of care. He said (commencing at T12 L15) that the Centre was, as he understood it, able to provide close supervision and monitoring throughout the day. He agreed that in the case of the defendant, close supervision would necessarily have to include:

Importantly, Prof. Woods confirmed (commencing at T17 L5) that in his opinion the defendant’s level of cognitive functioning would continue to decline. He agreed that a person’s cognitive functioning affected his or her capacity to control behaviour and make decisions. He also agreed that as the defendant’s cognitive functioning declined, so too would his ability to inhibit any anti-social behaviour. He was then asked by counsel for the plaintiff (commencing at T17 L40):

Importantly, Prof. Woods also gave the following evidence (commencing at T21 L30):

Dr Allnutt provided two reports, the first dated 21 August 2015 and the second dated 21 September 2015. The second report was effectively an amended version of the first and in those circumstances it is the second report to which I will refer.

Dr Allnutt assessed the defendant on 13 August 2015. In his opinion, the defendant met diagnostic criteria for (inter alia):

Dr Allnutt had been asked to specifically address the question of whether the defendant posed a risk of causing serious harm to others if he ceased being a forensic patient. He addressed that issue as follows (at p. 13):

Having recounted a summary of the evidence, Dr Allnutt said (at p. 17):

In response to being asked whether, if the defendant posed such a risk, it could be adequately managed by other less restrictive means, Dr Allnutt said (at p. 17):

Ultimately, Dr Allnutt expressed the view (at p.18) that the defendant required ongoing management as a forensic patient. He made a series of recommendations for a risk management plan incorporating medication and counselling. In terms of an appropriate placement Dr Allnutt said (at p.18):

Finally, in response to being asked whether, in the event that the defendant ceased to be a forensic patient, he would be able to understand and comply management conditions and directions imposed by his guardian, doctors and carers in light of his cognitive functioning, Dr Allnutt stated (at p. 19):

Dr Allnutt gave evidence before me. He confirmed (commencing at T27 L28) that management of the defendant’s risk required the adoption of what was described as a “multipronged” approach. He then gave the following evidence (commencing at T27 L28):

Dr Allnutt noted (commencing at T 28 L22) that the defendant’s offending which resulted in the implementation of the limiting term was alcohol related and said (commencing at T28 L23):

When asked (commencing at T28 L41) about the decline in the defendant’s cognitive functioning, and its impact upon his risk of re-offending, Dr Allnutt said:

In terms of the defendant’s consumption of alcohol constituting or contributing to a risk, Dr Allnutt said (commencing at T29 L15):

Ms Howell, a Forensic Psychologist, provided an affidavit of 25 June 2015 annexed to which was (inter alia) a report of 22 June 2015, which was prepared following her assessment of the defendant conducted on 12 June 2015.

Ms Howell expressed the view that the defendant posed an unacceptable risk of causing serious harm to others if he ceased being a forensic patient. In this regard she said (at p.21):

Ms Howell expressed the view that the defendant’s continuing abstinence from drinking alcohol was a factor of critical importance to any assessment of risk because his chronic problems with alcohol had underpinned the offending. She concluded that the defendant’s alcohol related dementia was a permanent condition, and that he required ongoing management as a forensic patient.

Ms Howell specifically addressed the adequacy of the Centre as a facility for managing the risk as follows (at p.22):

Ms Howell also gave evidence before me. She agreed (at T44 L1-5) that in her observation, and on the basis of the entirety of the available evidence, the defendant had always been compliant with requests made of him. However she was not moved from her stated view that the defendant should remain a forensic patient.

Oral evidence was also given before me by Judy Ann Hunt, a Principal Guardian at the Office of the NSW Public Guardian. Ms Hunt has the carriage, within the Public Guardian’s office, of matters pertaining to the defendant.

Ms Hunt confirmed that the defendant is currently the subject of a Guardianship Order which does not include coercive powers. She confirmed that an application for an order for such powers was ready to be filed and that the effect of powers is that the Public Guardian is given “the legal right to ask police and ambulance to retrieve and return anybody who has left their place of residence that we have provided consent to” (at T49 L16-19). Ms Hunt gave evidence (at T49 L26-28) that she anticipated, given the fact that there would be a “very strong recommendation” for the making of an order (at T50 L5-8) that if sought, coercive powers would be granted.

Clauses 1 and 2 of Schedule 1 of the Act are in the following terms:

Clauses 7 to 9 of Schedule 1 are in the following terms:

Counsel for the plaintiff emphasised the medical evidence which, it was submitted, justified the making of the order sought. Counsel relied generally upon Dr Allnutt’s opinion that the defendant posed a risk of causing serious harm to others if he ceased being a forensic patient. In particular, counsel relied on Dr Allnutt’s opinion that the defendant:

Counsel for the plaintiff also relied upon the opinion of Ms Howell in support of a conclusion that the defendant posed an unacceptable risk if he ceased to be a forensic patient and was released into the community. In particular, counsel pointed to the fact that Ms Howell had:

Counsel for the plaintiff pointed out that although Prof. Woods had expressed the view that there was no necessity for the defendant to remain a forensic patient, he nevertheless did not believe that the defendant could be adequately managed in the wider community, or in a low security aged care facility, in circumstances where he was not subject to close supervision and not provided with a high level of care.

Counsel for the plaintiff also pointed to the fact that the defendant’s treating psychiatrist, Dr Bhattacharrya, had expressed serious concern about the possibility of the defendant having any contact with children in light of the risk which would be posed. It was submitted that in circumstances where the defendant’s risk factors had not been mitigated, and given the preponderance of expert opinion, the test in cl. 2(1)(a) of Schedule 1 was satisfied.

As to the provisions of cl. 2(1)(b), counsel for the plaintiff submitted that the relevant focus was upon the question of adequately managing the risk, rather than upon identifying, or attempting to identify, whether one proposed regime was more or less restrictive than another: Attorney General of New South Wales v Skerry [2015] NSWSC 859 at [54] per R A Hulme J. It was submitted that there was no adequate alternative pathway through which the defendant could be compulsorily supervised or treated other than as a forensic patient, and that involuntary patient status and/or guardianship would not be adequate to manage the risk that he continued to pose.

Counsel for the plaintiff submitted that in circumstances where the defendant remained cognitively impaired, there were no grounds upon which to conclude that his risk could be managed by classification as an involuntary patient. It was submitted, in particular, that in circumstances where the Tribunal, at its most recent review, had stated that the defendant was not mentally ill, classification as an involuntary patient was not relevant. It was submitted that whether or not the defendant was a mentally ill person under s. 14(2) of the Mental Health Act was a speculative exercise, and that in the absence of any proposal or intention on the part of the Tribunal that he be classified as an involuntary patient, the management of his risk by the civil mental health system was neither available nor relevant to my consideration of cl. 2(1)(b).

Counsel for the plaintiff acknowledged that:

However counsel pointed out that at present, there were no coercive orders in place. Counsel also pointed to the opinion of Dr Allnutt that a guardianship order alone, absent restriction as to the defendant’s access to children, and absent supervision which included 24 hour monitoring, would be insufficient to manage the identified risk. It was submitted that even if the evidence of Ms Hunt were accepted and coercive powers were implemented, and even allowing for the fact that such powers would provide some capacity to determine placement in a secure facility, guardianship did not incorporate the same degree of supervision as that which applied to a forensic patient.

Counsel also pointed out that the need to protect the community was not a relevant principle under the Guardianship Act 1987 and that accordingly, reliance solely upon guardianship arrangements to manage and/or detain a person who presents a risk of serious harm to the community may not be sufficient. Counsel further submitted that even if it were assumed that coercive powers could be implemented, there remained important differences between the powers of the Tribunal (exercisable in the event that the defendant remained a forensic patient) and the powers of the Public Guardian.

It was further submitted that in any event, the risk that the defendant continued to pose could not be adequately managed by his unconditional discharge into any community setting, be it at the Centre or some other similar facility. Counsel pointed out that although it was proposed, in the event that the defendant was placed at the Centre, to restrict him from using alcohol and to supervise him and monitor his medication regime, his engagement in, and compliance with, any such placement was voluntary, such that he was under no legal obligation to reside or remain at the Centre, and was under no obligation to abide by any instructions of staff in any relevant respect.

Counsel for the plaintiff also relied upon the opinion of Dr Allnutt that even if the defendant was placed at the Centre, he should nevertheless remain a forensic patient until the Tribunal determined otherwise. Counsel also pointed to the fact that Dr Allnutt’s clear preference was that any move to the Centre should only occur, if at all, after a period of placement in a medium security unit so as to allow for the testing of alternative placements.

Ultimately, Counsel for the plaintiff submitted that the focus of the forensic mental health system is upon risk avoidance and that there was no legislative provision or regime available which was capable of addressing the defendant’s ongoing risk other than Schedule 1 of the Act. It was submitted that the defendant’s continued status as a forensic patient was necessary in order to meet his needs for psychiatric treatment, supervision and monitoring, as well as to ensure his safe reintegration into the community. It was submitted that a placement which relied, in effect, upon his voluntary compliance was not adequate for that purpose.

It was submitted that in these circumstances, it was appropriate that the defendant be the subject of continued supervision and monitoring by the Tribunal, with the potential, at some time in the future, for the implementation of a structured regime of conditions, in the event that the defendant was able to meet the threshold for release.

Counsel for the defendant submitted that I would find that the defendant did not pose an unacceptable risk of causing serious harm to others if he ceased being a forensic patient. If such a risk were established, counsel submitted that it could be adequately managed by other, less restrictive, means.

As to the issue of whether the defendant posed an unacceptable risk of harm to others, counsel submitted that given his personal circumstances and his incapacity, the conditions under which the defendant would live meant that there was little likelihood that he would commit any offence. In this regard, counsel pointed to a number of factors, including that the defendant:

Counsel submitted that in these circumstances, the conditions under which the defendant would live meant that there was little likelihood that he would commit any offence, providing he was medicated, alcohol free and in a secure facility. Counsel submitted that the consequences of the defendant’s state of health were such that he is gradually losing the ability to function and will deteriorate further over time, such that it is in his interests to be integrated into a secure facility in the community.

Counsel for the defendant stressed the necessity to have proper regard to the fact that the defendant had completed the limiting term fixed by Judge King in the District Court. It was submitted that in these circumstances he should be allowed to live his life in a way which enabled him to exercise the liberty which would be exercised by any other member of society who was in a similar position.

Counsel for the defendant emphasised the views of Dr Allnutt that any expert opinion which might be expressed as to a risk of recidivism was more professional than scientific. It was submitted that this observation should operate to temper the use of professional opinion in determining whether an unacceptable risk existed.

Counsel stressed the opinion of Prof. Woods that the defendant’s medical conditions, and in his deteriorating cognitive functioning, could be safely managed at the Centre. Counsel also pointed out, relevant to an assessment of the defendant’s risk of relapsing into substance abuse, that there was no evidence that there was an opportunity to drink alcohol at the Centre.

Counsel further submitted that the defendant’s criminal history, in the context of a long standing cognitive disability, added little to the assessment of the risk which had been described by the expert witnesses. It was pointed out that the vast majority of the defendant’s convictions occurred more than two decades ago and that in any event, none of those convictions involved significant violence or the commission of any sexual offence.

For all of these reasons, it was submitted that I would not be satisfied that the defendant posed an unacceptable risk of causing serious harm to others.

In support of the proposition that any identified risk could be adequately managed by other less restrictive means, counsel for the defendant submitted that in essence, Dr Allnutt had not expressed a definitive view that placement at the Centre was not suitable. It was submitted that an identified risk was capable of adequate management at the Centre, and that such management would meet the behavioural, physical and psychiatric needs of the defendant.

Counsel for the defendant made lengthy submissions as to the nature of any placement at the Centre including the availability of experienced support staff, the level of security provided, and the fact that there was medical assistance available which included the capacity to provide psychiatric and psychological treatment and counselling. It was submitted that any suggestion that an identified risk could not be adequately managed by other less restrictive means ignored the powers of the Public Guardian, Community Treatment Management, and the skills and resources of the Centre.

Counsel further submitted that a guardianship arrangement may provide an alternative means of intervention for a forensic patient who has been released at the end of his or her limiting term. It was pointed out, in particular, that Prof. Woods considered guardianship appropriate subject to the implementation of relevant coercive powers which, on the evidence of Ms Hunt, were available. It was submitted that associated placement at the Centre, including the imposition of constraints which restricted the defendant’s access to alcohol, allowed him to be supervised, and permitted monitoring of his medication regime, would ensure that any risk was adequately and appropriately managed.

The provisions of cl. 2(1) of Schedule 1 confer a discretionary power to make an extension order if, but only if, I am satisfied to a high degree of probability of two matters, namely that:

The term “high degree of probability” in cl. 2(1) was considered by Garling J in Attorney-General for NSW v McGuire (No 2) [2013] NSWSC 288. His Honour cited (at [47]) the judgment of the Court of Appeal (Mason P, Giles and Hodgson JJA) in Cornwall v Attorney-General for NSW [2007] NSWCA 374 where the following was observed (at [21]):

Garling J went on to observe (at [48]) that an applicant for an order under cl. 2(1) carries the onus. In Attorney-General of NSW v McGuire [2015] NSWSC 152 Hoeben CJ at CL took the same approach (at [37]).

There are differing views as to the approach to be taken to a consideration of whether or not there is an “unacceptable risk” within the meaning of cl. 2(1)(a). The first is the “everyday meaning approach” under which the test of unacceptable risk will be satisfied if a risk is present to a sufficient degree that the safety and protection of the community cannot be ensured unless an order is made: State of NSW v Thomas [2011] NSWSC 118 at [20]; State of NSW v Thomas [2011] NSWSC 308 at [28] (per RA Hulme J in each case).

The alternative is the “balancing exercise approach”, which involves balancing the likelihood of committing a further serious offence, the gravity of such an offence, and the consequences of an order on the offender: State of NSW v Richardson (No 2) [2011] NSWSC 276; (2011) 210 A Crim R 220 at [90].

In the circumstances of the present case, it is unnecessary for me to resolve such conflict which might exist as to the appropriate approach to be taken. Irrespective of which of the two tests is applied, I am satisfied to a high degree of probability on the evidence that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient.

As counsel for the defendant pointed out, Dr Allnutt emphasised that the “quality” of expert opinion as to risk of recidivism was limited. However even when appropriate allowance in made for that limitation, Dr Allnutt’s unequivocal opinion was that the defendant poses a risk of causing serious harm to others. In expressing that view, Dr Allnutt took into account the nature of the defendant’s offending and the deterioration in the defendant’s cognitive state in the years which have passed since that offending occurred. That cognitive deterioration is, in my view, of particular importance. The evidence satisfies me that it has resulted in the defendant having an impaired executive function. It has also seen a reduction in his problem solving abilities and an impaired degree of social judgment. Even allowing for the fact that his criminal history is comparatively limited, and includes no history of sexual offending, the consequences of the deterioration in the defendant’s cognitive state, coupled with the nature of the offending, support the conclusion that the relevant risk exists. Also of importance is the fact that Dr Allnutt identified that as a result of the deterioration in the defendant’s cognitive state, he suffers from a difficulty in understanding and complying with directions given to him.

The opinion of Ms Howell provides further support for this conclusion that the defendant poses an unacceptable risk of harm to others if he ceases being a forensic patient. She too cited the deterioration in the defendant’s cognitive state as a relevant factor in reaching that conclusion.

Prof. Woods also identified the deteriorating level of the defendant’s cognitive functioning as a factor which was relevant to an assessment of his risk of re-offending. Like Dr Allnutt, he concluded that the defendant’s already impaired level of cognitive function would further decline in the future. Importantly, although he expressed the opinion that the defendant could be properly treated in a secure aged care facility (an issue which I have addressed further below), Prof. Woods expressly accepted that absent an appropriate degree of control, the defendant posed a risk to others and that such risk arose principally from the potential for him to consume alcohol, along with the potential for a lack of compliance with prescribed medication.

I have had regard, in determining the question of risk, to the fact that the defendant’s criminal history is both limited and dated. However, as Dr Allnutt has pointed out, the bizarre nature of the offending, and perhaps more importantly its unpredictability, along with the other factors he identified, support a conclusion that the defendant poses an unacceptable risk to others if he ceases to be a forensic patient. The evidence to which I have referred satisfies me of that fact to a high degree of probability.

Having reached the conclusion that an unacceptable risk is posed, I must proceed to consider the question of whether I am satisfied, to a similarly high degree of probability, that such risk cannot be adequately managed by other, less restrictive means. In McGuire (No. 2) Garling J observed (at [60]-[63]) that the term “adequately managed” means that “the unacceptable risk is mitigated by the proposed management regime so that the community’s interest in being kept safe is outweighed by the community’s interest in not having mentally ill or mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community”.

In the context of the present case, the suggested less restrictive means essentially comprise:

As to the first of those means, I accept the submission of counsel for the plaintiff that in circumstances where the defendant is not, according to the most recent assessment of the Tribunal, mentally ill, issues of the defendant being classified as an involuntary patient do not arise. In considering the remaining two issues, it is again necessary to turn to the expert evidence.

Prof. Woods expressed the view that a guardianship arrangement which saw the defendant placed at the Centre would be an appropriate alternative, and one which would adequately control the risk that I have identified. In expressing that view, Prof. Woods was under the misapprehension that the present Guardianship arrangements included coercive powers. Clearly, that is not the case. Prof. Woods expressly conceded that in the absence of such powers the defendant should remain a forensic patient.

The evidence of Ms Hunt, which I accept, establishes that an application for the implementation of coercive powers can be made at short notice. Whilst the granting of such power could not be regarded as certain, I have noted the evidence of Ms Hunt that such powers would be recommended, and that this recommendation would necessarily carry considerable weight. I am prepared, in these circumstances, to proceed on the basis that it is more likely than not that if application were made, coercive powers would be granted. However even if this is so, I am not satisfied, for the reasons that follow, that the identified risk can be appropriately managed by other less restrictive means of the kind suggested.

Dr Allnutt expressed the view that the various factors which give rise to the identified risk meant that the defendant required ongoing treatment and rehabilitation which was preferably carried out in a clinical environment, and where those having the requisite expertise in the medical management of a person such as the defendant were able to treat him. In this respect, Dr Allnutt again emphasised the defendant’s cognitive impairment which, he pointed out, rendered the defendant more resistant to responding to rehabilitation. Dr Allnutt also stressed the necessity for the ongoing management of the defendant’s condition to involve a multi-factorial approach which, in his view, was more appropriately administered under the purview of the Tribunal.

Ms Howell was prepared to accept that the Centre had the potential to manage the defendant on a day to day basis. However she expressed concern at what would occur in the event that at some future time, the defendant determined to leave the Centre and consume alcohol, a circumstance which, in her view, would accelerate the risk of sexual offending.

Prof. Woods visited the Centre and provided a comprehensive overview of its functions, administration and capabilities. Clearly, if the defendant were placed at the Centre, he would be monitored, although perhaps not on a 24 hour basis. The facility is also secure. The defendant would not, absent anything unforseen or out of the ordinary, have access to alcohol. Residents of the Centre have access to medical treatment from a General Practitioner, as well as access to medical facilities at the St George Hospital which is only a short distance away. A psychiatrist attends regularly.

Whilst all of these factors are obviously relevant considerations, I am persuaded that the risk that I have identified cannot be adequately managed by that particular means, or indeed any means other that the defendant remaining a forensic patient. I have reached that conclusion for a number of reasons.

To begin with, even when full weight is given to the facilities and set-up which is available at the Centre, the defendant, in the opinion of Dr Allnutt, would have difficulty understanding and complying with management conditions and directions in that type of setting. This difficulty comes about as a consequence of his impaired cognitive state, an issue about which all of the experts are generally agreed.

Further, whilst access to medical assistance and treatment is obviously available at the Centre, such access in comparatively limited. The Centre is staffed essentially by registered nurses. Access is available to a General Practitioner. Access to a special psychiatrist is also available through weekly visits. Any further treatment required is seemingly accessed through the St George Hospital. On any view of the evidence, appropriate treatment is essential to the management of the defendant’s condition generally, and to the management of the identified risk in particular. I have no doubt that the level of care and treatment available through the Centre is administered by properly qualified and caring professionals. However, it cannot compare with that which would be provided in the clinical setting envisaged, and regarded as necessary, by Dr Allnutt, under the purview of the Tribunal. On the evidence, the ongoing treatment, management, and monitoring of the defendant’s condition will be carried out at a substantially higher level if he were to remain a forensic patient.

Importantly, in his risk management plan, Dr Allnutt made specific reference to the defendant’s need for ongoing treatment and counselling of a kind which not only managed the defendant, but which monitored him. Although, as counsel for the defendant pointed out, Dr Allnutt accepted that the environment provided by the Centre “could” be appropriate, his clearly expressed preference was that any move to a facility of that kind occur at a time following the carrying of appropriate testing directed towards assessing the adequacy of alternative solutions.

I am satisfied that the defendant’s physical movements would, in all probability, be monitored (and appropriately restrained) at the centre. In these circumstances, even though it is theoretically possible, it would be unlikely that he would have access to alcohol which, as outlined by the experts, has a direct bearing on his condition. However, as Dr Allnutt pointed out in his evidence, managing the relevant risk requires a multi-factorial approach. That approach extends substantially beyond the imposition of physical control. It involves the administration of appropriate treatment and the monitoring of its effect. Significantly, and as I have previously noted, Prof. Woods took the view that the defendant would not be adequately managed in a setting where he did not have the benefit of a high level of care. Care and treatment administered under the purview of the Mental Health Tribunal, which as Dr Allnutt pointed out provides essentially immediate access to a variety of expertise, cannot be compared to the limited availability of such care and treatment which is available at the Centre.

For all of these reasons, I am satisfied to the requisite standard that the identified risk cannot be adequately managed by other less restrictive means.

For the reasons that follow I make the following order: