Attorney General for New South Wales v Andrews (by his tutor Johnson) (Preliminary)

1. [1]

   By a summons filed on 16 August 2023, the Attorney General for New South Wales, the plaintiff, sought orders under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act), in relation to the extension of the status of the defendant, Mr Shane Andrews, as a forensic patient. Mr Andrews appeared by his tutor, Dr Katherine Johnson.

2. [2]

   The orders sought included interim and ancillary relief by way of:

   1. (1)

      an interim extension order for three months, under ss 130 and 131 of the MHCIFP Act; and

   2. (2)

      an order for examinations, under s 126(5) of that Act.

3. [3]

   The matter came before the Court on 24 August 2023 for a preliminary hearing as to whether those interim and ancillary orders should be made. On this occasion, the defendant’s counsel made submissions to the effect that while the defendant did not consent to the interim orders sought or concede the underlying factual matters, he did not wish to be heard in opposition to the interim, interlocutory and ancillary relief sought by the plaintiff.

4. [4]

   In addition, the defendant conceded that the application had been brought in compliance with ss 124 and 125 of the MHCIFP Act.

5. [5]

   Having considered the relevant material and the parties’ submissions, I was of the view that the interim, interlocutory and ancillary orders sought should be made. Consequently, on 24 August 2023, I made the following orders:

6. [6]

   At the time of making those orders, I indicated that I would provide my reasons in due course. These are my reasons for making those orders.

7. [7]

   In light of the position adopted by the defendant, referred to above, these reasons may be stated more briefly than would otherwise have been the case.

Relevant statutory provisions

1. [8]

   The relevant statutory provisions are noted in the following paragraphs.

2. [9]

   The care, treatment and control of forensic patients, among others, are dealt with in Pt 5 of the MHCIFP Act. The extension of a person’s status as a forensic patient is governed by Pt 6 of that Act.

3. [10]

   The objects of Pt 5 of the MHCIFP Act are set out in s 69 in the following terms:

4. [11]

   A “forensic patient” is defined in s 72(1) of the Act as follows:

5. [12]

   There was no dispute that the defendant was and is a forensic patient under s 72(1)(b), in that he is a person for whom a limiting term was nominated after a special hearing and who is detained in a mental health facility, correctional centre, detention centre or other place.

6. [13]

   The provisions of Pt 6 of the MHCIFP Act, which are relevant to the present application for an interim extension of the defendant’s status as a forensic patient and for orders for the examination of the defendant, include:

Prerequisites for the making of an application for an extension order

1. [14]

   It can be noted at this point that there was also no dispute that the prerequisites for the making of an application for an extension order were satisfied in the present case. In particular, it was accepted that:

   1. (1)

      the defendant is a forensic patient who is the subject of a limiting term, for the purposes of s 124(1) of the MHCIFP Act;

   2. (2)

      the application was supported by the relevant documentation and the report or reports, as referred to in s 125(a) and (b);

   3. (3)

      the requirements of s 126(1), (2) and (3) had been complied with; and

   4. (4)

      the existing limiting term to which the defendant is subject will expire before the present proceedings are determined, within s 130(a).

The preliminary hearing

1. [15]

   The principal issue that the Court was required to consider on 24 August 2023 was whether the Court was satisfied that “the matters alleged in the supporting documentation would, if proved, justify the making of an extension order” for the purposes of ss 126(5) and 130(b) of the MHCIFP Act. If the Court was so satisfied, this had two consequences:

   1. (1)

      under s 126(5), the Court was required to make orders appointing two qualified psychiatrists, two registered psychologists, or two registered medical practitioners, or any combination of two such persons, to conduct separate examinations of the defendant and to furnish reports to the Court on the results of those examinations; and

   2. (2)

      under ss 130(b) and 131, the Court had a discretion to make an interim extension order for up to three months, if the limiting term to which the defendant is subject will expire before the substantive proceedings are determined.

2. [16]

   There was no dispute as to the applicable principles concerning the making of examination orders and an interim extension order.

3. [17]

   The “supporting documentation” referred to in ss 126(5) and 130(b) refers back to the “documentation” mentioned in s 125. Section 125 states, “[a]n application for an extension order [by the Attorney General] must be supported by documentation” that:

   1. (1)

      addresses each of the matters in referred to in s 127(2), to the extent relevant; and

   2. (2)

      includes a report from a psychiatrist, psychologist or medical practitioner assessing the risk of the forensic patient causing serious harm to others, the need for ongoing management and why the risk cannot be adequately managed by other less restrictive means.

4. [18]

   The matters alleged in the supporting documentation, which are to be assumed to be proved for the purposes of ss 126(5) and 130(b), are the factual matters and the opinions on matters of fact set out in that documentation: Attorney General for New South Wales v Kapeen [2017] NSWSC 226 at [15] (Beech-Jones J as his Honour then was).

5. [19]

   The general nature of the task to be undertaken for the purposes of ss 126(5) and 130(b) does not involve weighing or assessing the matters alleged in the documentation or attempting to predict what would be the result on the final hearing of the matter. It was also not necessary to consider what evidence might be called by the defendant at the final hearing.

6. [20]

   Whether the making of an extension order would be “justified” depended, in part, upon s 122, which establishes that an extension order may be made if, and only if, the Court is satisfied to a high degree of probability that:

   1. (1)

      the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient; and

   2. (2)

      the risk cannot be adequately managed by other less restrictive means.

7. [21]

   The expression “high degree of probability” indicates, in this context, that the existence of the risk in question must be proved to a higher degree than the normal civil standard of proof of “more probable than not”, but does not have to be proved to the criminal standard of “beyond reasonable doubt”: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]; State of New South Wales v Hackett (Preliminary) [2022] NSWSC 417 at [80] (N Adams J).

8. [22]

   Furthermore, for the purposes of s 122(1), it is not necessary for the Court to determine that the risk of a person causing serious harm to others is more likely than not, in order to determine that the risk posed by the person is unacceptable: s 122(2) of the MHCIFP Act.

9. [23]

   The “risk of causing serious harm to others” referred to in s 122(1)(a) can involve consideration of both physical and psychological harm: Attorney General of New South Wales v Kereopa (No. 2) [2017] NSWSC 928 (Kereopa (No 2)) at [16] (R A Hulme J).

10. [24]

    The issue of whether the risk of causing serious harm to others is “unacceptable” within the meaning of s 122(1)(a) is to be judged according to the ordinary or everyday meaning of that term. The right of a person to his or her personal liberty at the expiry of a limiting term is not a relevant consideration in the determination of whether the person poses an unacceptable risk: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Lynn) at [44] (Beazley P), [127] (Basten JA) and [148] (Gleeson JA); Attorney-General for the State of New South Wales v McGuire by his tutor Thompson [2019] NSWSC 76 at [24] (Wright J).

11. [25]

    The nature and extent of the risk to the community is to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. It is to be based on an absence of protective measures, and should involve, to the extent that the evidence permits, a comparison with the background level of risk to the community from violent offenders: Lynn at [126].

12. [26]

    Consideration of whether the risk can be adequately managed by other less restrictive means, for the purposes of s 122(1)(b) involves an assessment of:

    1. (1)

       whether the means proposed are less restrictive; and

    2. (2)

       whether the less restrictive means adequately manage the risk.

13. [27]

    Whether means are more or less restrictive is 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 operation of how that power might be exercised in a particular instance: Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 (Doolan (No. 2)) at [96] (Adamson J as her Honour then was); Attorney General for New South Wales v Randall (Final) [2021] NSWSC 275 at [73] (Johnson J).

14. [28]

    The note to s 122 of the MHCIFP Act states:

15. [29]

    In addition to being involuntarily detained or treated by way of a community treatment order, under the Mental Health Act 2007 (NSW), another means of managing the risk posed by forensic patient might be a Guardianship order made by the Civil and Administrative Tribunal of New South Wales under the Guardianship Act 1987 (NSW).

16. [30]

    Garling J considered the meaning of “adequately managed” in Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 at [63]–[64]:

17. [31]

    In making an assessment under s 122(1), the Court must have regard to the matters listed in s 127(2)(a) to (i) of the MHCIFP Act.

18. [32]

    For the purposes of ss 126(5) and 130(b), the words “would … justify the making” of a final order of the relevant type are to be construed as imposing a lower standard than that which applies to the making of the final order itself: State of New South Wales v Naaman (No 2) [2018] NSWCA 328 at [17] (Basten, Macfarlan and Leeming JJA). Those words only require the Court to be satisfied that the making of a final order would be justified, in the sense of being reasonably open, in the light of the matters alleged in the supporting documentation, assuming those matters are proved: State of New South Wales v Sturgeon [2019] NSWSC 559 at [6] (Garling J); State of New South Wales v BP (Preliminary) [2019] NSWSC 699 at [59] (Wright J).

19. [33]

    The “supporting documentation” in this case most relevantly included:

    1. (1)

       the reports of Dr Carollyne Youssef, Forensic Psychologist, dated 6 August 2023 and 30 August 2023, provided pursuant to s 125(b) of the MHCIFP Act;

    2. (2)

       the expert report of Dr Richard Woods dated 6 August 2023 in relation to potential harm caused by deliberately set fires in semi-rural areas of Western Sydney;

    3. (3)

       the defendant’s criminal history and documents relating to his previous offending and the index offences;

    4. (4)

       other material in relation to the defendant’s mental health and cognitive impairment including orders and reasons of the Mental Health Review Tribunal (MHRT) concerning the defendant.

20. [34]

    Before turning to consider the matters set out in s 127(2), I shall first deal with the defendant’s status as a forensic patient, background and previous offending, including the index offences, on the assumption that the matters alleged in the supporting documentation are proved.

The defendant’s status as a forensic patient

1. [35]

   The defendant’s status as a forensic patient arose only recently as a result of limiting terms imposed on him under s 63(2) of the MHCIFP Act by Coleman SC DCJ on 13 July 2023. The last of those limiting terms expired on 30 August 2023. The defendant has filed a notice of intention to appeal against the finding on the limited evidence available that the defendant committed the offences.

2. [36]

   The limiting terms were imposed as a result of the defendant being found at a special hearing, on the limited evidence, to have committed the five offences charged on the indictment of intentionally causing a fire being reckless as to its spread contrary to s 203E of the Crimes Act 1900 (NSW). The defendant had been found to be unfit to stand trial in 2021 by the District Court.

3. [37]

   I shall deal with these index offences later in these reasons.

The defendant’s circumstances

1. [38]

   The defendant is a 43-year-old man who was born in April 1980 and sustained a hypoxic brain injury at birth, leaving him cognitively impaired. The defendant’s limited cognitive abilities were identified early in his childhood. He has been diagnosed with Mild Intellectual Disability and Attention Deficit Hyperactivity Disorder (ADHD).

2. [39]

   He is the youngest of two children. His recall of his childhood is poor. His parents separated in 2009. The defendant denied any physical, sexual or emotional abuse in childhood. As the defendant became older, he was often at home unsupervised as both parents worked and he had few friends.

3. [40]

   He first drank alcohol when he was 15 to 16 years of age and acknowledged drinking to excess. He engaged in binge-drinking behaviour and was assaulted at a club. At the time of the index offences he was drinking 15 cans of pre-mixed spirits daily but by the time of his assessment in January 2023, he was only consuming 5 to 6 cans of premixed spirits every second day.

4. [41]

   The defendant left school mid-way through Year 11 and file information suggested he was expelled due to sexually inappropriate behaviour. Psychological reports from 1993-1995 noted that, from a young age, the defendant “had behavioural, social and emotional difficulties, including being uncontrollable, aggressive and abusive, having poor self-esteem, and getting into trouble with police”.

5. [42]

   The defendant has only lived independently for a period of 4-5 months in between custodial sentences. During that period, he had a National Disability Insurance Scheme (NDIS) support worker attending his house five days a week, six hours a day. He has had NDIS support since 2020. The defendant has been on the Disability Support Pensions (DSP) since he was 16 years old and worked as a turf layer for “eleven years on and off”.

The defendant’s offending prior to the index offences

1. [43]

   The defendant’s criminal history included the following.

2. [44]

   [Redacted]

3. [45]

   In July 2001, the defendant was convicted of having goods in custody reasonably suspected of having been stolen and contravening an apprehended domestic violence order, for which he received a fine and a s 9 bond. Subsequently, in 2003, he was charged with two further contraventions of apprehended domestic violence orders but these were dealt with by way of dismissal under s 32 of the Mental Health (Forensic Provisions) Act and he was released without conditions.

4. [46]

   Later in 2003, the defendant was convicted of driving with a mid-range prescribed concentration of alcohol and being an unaccompanied learner for which he received a s 9 bond and a fine. In 2006 there were further similar offences which led to a periodic detention order and a s 9 bond. Further similar driving offences in April 2007 led to the defendant being re-sentenced to imprisonment for 12 months with a non-parole period of 3 months, on appeal.

5. [47]

   In July 2007, the defendant committed offences of aggravated break and enter and assault with an act of indecency for which he was sentenced to five years’ imprisonment with a non-parole period of two years and six months. The defendant appealed to the Court of Criminal Appeal and the appeal was, in substance, dismissed: Andrews v R [2011] NSWCCA 24. Hall J, with whom Beazley JA and James J agreed, said at [23]-[24]:

6. [48]

   That sentence, the commencement date of which was slightly varied by the Court of Criminal Appeal, expired in August 2014.

7. [49]

   In 2016, five charges of indecent assault of a person under 16 years alleged to have occurred in 2014 were dismissed under s 32(3)(a) of the Mental Health (Forensic Provisions) Act.

8. [50]

   In February 2018, the defendant was charged with entering enclosed land without lawful excuse and peeping or prying. The peeping or prying charge was later withdrawn and a fine was imposed for the entering enclosed land offence.

The index offences

1. [51]

   As noted above, the index offences were five offences of intentionally causing a fire being reckless as to its spread contrary to s 203E of the Crimes Act. The facts and circumstances of the offending were set out in Coleman SC DCJ’s judgment, R v Andrews [2022] NSWDC 743 and it is not necessary to repeat them here although I have taken them into account.

2. [52]

   In Coleman SC DCJ’s remarks on the imposition of the limiting terms, it was noted that the first three fires were lit in the afternoon of 3 December 2019 between approximately 2:33 PM on 3:07 PM. They were all started on land very close to the side of roads and the surrounding terrain was semi-rural and close to high-risk urban areas. On this day there was a very high fire danger rating. As to the last two fires, these were lit between 11:30 PM and 11:45 PM on the same day in bushland terrain close to the side of a road. Within half an hour of one of the fires being lit an area of an acre and a half of land had been damaged and the other fire was lit very close to the Richmond RAAF base. The objective seriousness of the offences was found to fall just below the mid-range. The lighting of the fires was found to have posed a risk to property, people (including emergency services personnel who had to respond), livestock and infrastructure.

3. [53]

   As to the defendant’s risk of reoffending, his Honour said:

Relevant matters under s 127(2)

1. [54]

   When considering whether to make an extension order, I had regard to the matters identified in s 127(2) of the MHCIFP Act as disclosed in the supporting documentation. It is not necessary to refer in detail to that material, beyond what has been referred to above and the following most relevant aspects of the matters alleged.

2. [55]

   The “safety of the community” includes protection of all members of the community from physical or psychological harm as well as the prevention of serious harm to their property.

3. [56]

   The defendant’s commission of the index offences involved the risk of very significant physical harm to members of the community including members of the emergency services responding to the fires but also inhabitants of the relevant areas and persons driving along the roads affected, as well as the risk of serious harm to property. The fact that the risk did not eventuate in the present case was not attributable to any action on the part of the defendant but rather to the prompt action of witnesses and other responders.

4. [57]

   The earlier offending involved harm which flows from being a victim of sexual offences which, even when physical violence is not involved, often includes very significant psychological harm.

5. [58]

   In these circumstances and in light of the psychological assessments and reports referred to elsewhere in these reasons, the safety of the community required, in the defendant’s case, that effective steps be taken with a view to ensuring that the defendant:

   1. (1)

      remained abstinent from alcohol;

   2. (2)

      received appropriate supervision and support to ensure that opportunities for offending of the various types in which the defendant has previously engaged are minimised; and

   3. (3)

      received very substantial support and training in developing skills for managing everyday life.

6. [59]

   I was of the view that, in the absence of the steps being taken and appropriate supervision and support being provided, it would be extremely difficult to ensure the safety of the community given the defendant’s risk of reoffending.

7. [60]

   The supporting documentation provided by the Attorney General in satisfaction of the requirement in s 125(b) included two reports provided by a registered psychologist, Dr Carolyne Youssef.

8. [61]

   I have taken all of the material in Dr Youssef’s reports into account but for present purposes it can be noted that the most relevant matters alleged in those reports are the matters set out in the paragraphs which follow.

9. [62]

   The defendant met the diagnostic criteria for Intellectual Developmental Disorder – Intellectual Disability (Mild) related to a hypoxic brain injury during or around birth. Such a disability impairs abstract thinking, executive functioning and short-term memory. In addition, this tends to cause a difficulty in accurately perceiving others’ social cues and communication, and conversation and language tend to be more concrete or immature. Practically, persons with such a disability need support with complex daily living tasks such as grocery shopping, financial management, healthcare, legal decisions and learning new skills. Such a disability is a lifelong disorder and is not treatable per se.

10. [63]

    The defendant also meets the diagnostic criteria for Alcohol Use Disorder (moderate).

11. [64]

    The defendant’s disability has predisposed him to poor coping mechanisms and poor self-regulation (e.g. poor problem-solving and impulsivity) which can further increase his risk of recidivism, whether that be a general, sexual or fire setting risk, or a combination of the three. Furthermore, since his offending has generally occurred whilst he has been intoxicated, alcohol use is a risk factor for his offending behaviour.

12. [65]

    The defendant is not suffering from a mental illness and he is not a “mentally ill person” as defined under the Mental Health Act 2007 (NSW).

13. [66]

    According to the Static-99R risk assessment tool, the defendant falls within the “Well Above Average” risk’s category for sexual recidivism. With respect to the risk of setting fires, his current assessment reflects a moderate degree of outstanding risk factors. In this regard, it was noted that the harm can potentially be catastrophic and tragic depending on external and environmental conditions.

14. [67]

    Whilst the defendant appears to have a rudimentary understanding of right from wrong, he struggles with consequential thinking, problem-solving, conflict resolution, self-regulation, he has difficulties with judgement, and his executive functioning is severely compromised. He also struggles to learn from previous and adverse consequences such as imprisonment or fines.

15. [68]

    Dr Youssef was of the view that the defendant’s risk could be adequately managed as a forensic patient with an extended period of supervision and monitoring in the community under the oversight of the Mental Health Review Tribunal (MHRT). As part of that approach, she recommended psychological intervention, accommodation by way of Supported Independent Living, supervision and monitoring together with the support of the Community Safety Program. It was noted that the defendant currently has an NDIS package.

16. [69]

    As to potentially less restrictive alternatives, Dr Youssef opined that:

    1. (1)

       the defendant does not have a major mental illness and is not a mentally ill person and consequently classification as an involuntary patient was not an option for him;

    2. (2)

       for similar reasons, a Community Treatment Order is not a viable option for the defendant;

    3. (3)

       a guardian under a Guardianship Order by itself would not give the Guardian sufficient authority and control to manage someone with the defendant’s risk and needs at present; and

    4. (4)

       in summary, given the defendant’s risk profile and needs, there do not appear to be any other less restrictive means available to manage his risks and needs at this stage.

17. [70]

    In her second report, Dr Youssef expressed the opinion that the risk of physical harm arising from to the nature of the defendant’s sexual offending would be considered on the “low-mid end” of the harm scale. By way of contrast, the risk of psychological harm had the potential to be significant, depending on the circumstances and the vulnerability of the victim. In addition, Dr Youssef noted that the report of the wildfire expert, Mr Woods, was congruent with her opinion as to the potentially devastating and catastrophic effects of a deliberately lit fire.

18. [71]

    The wild fire expert, Mr Woods, provided a report dated 6 August 2023. Mr Woods was of the opinion that every unplanned wildfire had the potential to injure and even kill members of the public or firefighters and even a “small” roadside wildfire can result in death or serious injury to members of the public. In addition he noted that a wildfire even involving a relatively small area can cause injury and property damage.

19. [72]

    Mr Woods was of the opinion that the defendant’s fire lighting behaviour resembled “spree arson” which posed a significant risk to a community, particularly when ignition occurred within minutes or hours of multiple files. The defendant’s behaviour led to firefighting resources being stretched and multiple fires being very difficult to suppress and contain. For all of these reasons, Mr Woods was of the opinion that the risk posed to the community and emergency services by deliberately lit wildfires was significant.

20. [73]

    Since the limiting terms were only imposed on the defendant on 13 July 2023 but were to expire on 30 August 2023 and the defendant was to be reviewed by the MHRT on 24 August 2023, the day of the hearing, it appeared that there were no relevant orders or decisions made by the Tribunal to be considered, nor were there any significant reports from agencies responsible for the detention, care or treatment of the defendant as a forensic patient.

21. [74]

    The views of the court that imposed the limiting terms have been referred to above.

22. [75]

    To the extent that there was any other significant information available as to the risk that the defendant would, in the future, cause serious harm to others, it did not appear to me to be at odds with the views expressed by Dr Youssef.

Unacceptable risk

1. [76]

   Assuming the matters alleged in the supporting documentation, some of which I have referred to or summarised above, are proved, if the defendant ceased to be a forensic patient when his limiting term expired on 30 August 2023, he would not be subject to the supervision of the MHRT and would be likely to be in the community without the planning and support described by Dr Youssef as being necessary to ensure, as far as possible, the defendant’s continued abstinence from alcohol, his receipt of appropriate treatment and support in relation his disability and other mental health issues, and his having sufficient support to manage his significant cognitive impairment and precarious social situation.

2. [77]

   If this occurred, I was satisfied, assuming that the allegations as to the defendant’s criminal history, the index offences, the circumstances surrounding those offences and the opinions of, and material reviewed by, Dr Youssef, that it was open to the Court to be satisfied to a high degree of probability that the defendant posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient.

3. [78]

   Further, in light of Dr Youssef’s opinion concerning alternative means of addressing the risk posed by the defendant, it did not appear that the risk could be adequately managed by putting in place any of the available alternatives.

Would the making of an extension order be justified?

1. [79]

   Therefore, on the assumption that the matters alleged in the supporting documentation were proved and for the reasons set out above, it appeared to me that the making of an extension order would be “justified”, in the sense of being reasonably open to the Court in the circumstances of the present case having regard to the matters in s 122(a) and (b) of the MHCIFP.

2. [80]

   Consequently:

   1. (1)

      under s 126(5), the Court was required to make the examination orders sought by the Attorney General; and

   2. (2)

      under s 130(1), the Court’s power to make an interim extension order was enlivened.

3. [81]

   As noted above, while the defendant did not consent to an interim extension order being made, he did not wish to be heard in opposition to the making of such an order.

4. [82]

   In light of the lack of opposition from the defendant, Dr Youssef’s evidence and the other matters alleged in the supporting documentation, I was of the view that the circumstances of the present case made it appropriate for me to exercise my discretion to make an interim extension order for three months.

Orders

1. [83]

   For these reasons, I made the orders set out above on 24 August 2023.

2. [84]

   It should be noted that s 127(3) of the Mental Health and Cognitive Impairment Forensic Provisions Act required the Court to notify the Mental Health Review Tribunal of the making of the extension order. Accordingly, and in addition to, the orders made on 24 August 2023, the Court directed the Registrar pursuant to s 127(3) of the Mental Health and Cognitive Impairment Forensic Provisions Act to inform the Mental Health Review Tribunal of the making of the extension order referred to in order (2) made on 24 August 2023 by providing to the Tribunal a copy of the orders and of these reasons for judgment.