Attorney General of New South Wales v WB (Final)

1. [1]

   HIS HONOUR: The Attorney General of New South Wales (“the plaintiff”) commenced proceedings by summons filed on 3 September 2019 against the defendant, WB, seeking interim and final orders extending the defendant’s status as a forensic patient, pursuant to s 54A and Sch 1 (“the Schedule”) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Act”). The defendant was a forensic patient subject to a limiting term that expired on 29 November 2019.

2. [2]

   The summons sought orders that two psychiatrists be appointed to separately examine the defendant and furnish reports to the Court, that he be ordered to attend the examinations, and that he be subject to an interim extension order (“IEO”) commencing on 29 November 2019. By way of final relief, the summons sought an order extending the defendant’s status as a forensic patient (“an extension order”) for a period of three years and, finally, an order that access only be granted to the Court’s file to a non-party with leave of a judge of this Court and with prior notice to the parties and an opportunity for them to be heard.

3. [3]

   The defendant responds to the application by his court-appointed tutor, Dr Katherine Johnson. The defendant filed written submissions consenting to the IEO being made. At the preliminary hearing of this matter on 19 November 2019, which was before me, the defendant reversed that position and opposed an IEO being made. I made orders for the provision of forensic reports (a psychiatrist and a registered psychologist, rather than two psychiatrists) and limiting access to the Court file. I purported to exercise my discretion to not make an IEO pending the final hearing as to whether an extension order should be made: Attorney General of New South Wales v WB (Preliminary) [2019] NSWSC 1664 (“the preliminary judgment”).

4. [4]

   The plaintiff sought leave to appeal the judgment to the Court of Appeal, submitting, inter alia, that an extension order can only be made if the defendant is currently a forensic patient. The Court of Appeal made an IEO pending the anticipated date of the hearing of the application, which was extended when that hearing was delayed. The hearing of the application occurred on 6 February 2020. The Court handed down judgment on 12 February 2020, granting leave to appeal on that ground and finding in favour of the plaintiff’s submission: Attorney General of New South Wales v WB [2020] NSWCA 7 per Basten JA, Macfarlan JA agreeing, Leeming JA dissenting. The IEO was further extended to 29 February 2020.

5. [5]

   At the outset of the final hearing, the plaintiff sought leave to file in court an amended summons, the amendment being that the order sought by way of final relief is an extension of the defendant’s status as a forensic patient for a period of 12 months, rather than for three years. Leave was granted.

The background to the plaintiff’s application

1. [6]

   The defendant is a 41 year old man with a significant intellectual disability. In the preliminary judgment, I reviewed the material tendered by the plaintiff concerning the index events, the defendant’s background, his psychological history and the services that have been provided to him during his detention and following his conditional release. The essential material on which my review was based is tendered by the plaintiff for the purposes of this final hearing as well, and remains uncontested by the defendant. Accordingly, my assessment of that material remains the same and I adopt those parts of the preliminary judgment for the purposes of this judgment. There are some additional background details that have emerged in the histories given by the defendant to the court-appointed forensic clinicians, which I will relate later in the judgment. My earlier review was as follows:

2. [7]

   In the preliminary judgment, I noted two post-conditional release incidents that had come to the attention of the relevant agencies, one of which was unsubstantiated, and neither of which resulted in any breach action.

3. [8]

   The first incident occurred on 23 August 2019. One of the defendant’s stepdaughters phoned him and asked him to come to her home, which was a 10 minute walk away. She told the defendant that she was upset about a recent death. The defendant was distressed, and felt a need to support his stepdaughter, and complied with her request by going to her home, without organising for someone to accompany him, which was contrary to his “line of sight” condition. The defendant was away from home for 1 hour and 20 minutes. There were no reports of concerns as to the defendant’s activities during his absence (“the stepdaughter incident”).

4. [9]

   The other incident is alleged to have occurred on 11 October 2019. A staff member of the Ascent Group (“Ascent”), which is the NDIS service provider for the defendant, received a report from a fellow client that the defendant had been seen with his wife, “smoking drugs together”. The defendant did not admit the allegation and a drug test that was administered to him on 31 October 2019 found no presence of an illegal drug, including cannabis.

Developments since the preliminary judgment

1. [10]

   A letter dated 17 February 2020 from the Service Manager of Ascent was tendered on behalf of the defendant without objection. The contents were to the effect that the defendant continues to reside at the same address and Ascent is providing up to 32 hours per week of support. Since their involvement with the defendant began in December 2018, Ascent had received no reports of any inappropriate sexual behaviour of the defendant towards children. The Service Manager stated: “The staff consistently report finding [the defendant] to be eager and motivated to engage with support, which has been my personal observation of [him] also”. His activities include attending a men’s shed twice a week where he engages in woodwork and “is building positive relationships with the other men who attend”. He is volunteering in a market garden twice a week and attending a course teaching basic literacy and numeracy, planning and organisational skills and shopping and cooking. The Service Manager further stated:

2. [11]

   At the time of the preliminary hearing, a guardianship application in respect of the defendant was on foot, following a decision by the defendant’s parents to relinquish their role as his carers. On 9 December 2019, the Guardianship Division of the NSW Civil and Administrative Tribunal (“NCAT”) made a guardianship order for a period of 12 months (“the guardianship order”). Dr Ellis is of the opinion that, as the defendant’s condition is not likely to be different in 12 months’ time, the guardianship order is likely to be renewed. The order appointed a Public Guardian as the defendant’s guardian and limited its scope to the extent necessary to carry out three functions: to decide what health care he may receive, what services are to be provided to him, and “to give or withhold consent as to whether [environmental restraint] should be used to influence [the defendant’s] behaviour”. The order included certain conditions, relevantly:

3. [12]

   In their reasons, NCAT explained why it made an environmental restraint order, and that it was intended to provide the guardian with sufficient authority to approve a “line of sight” provision.

4. [13]

   By letter dated 16 December 2019, the National Disability Insurance Agency (“the NDIA”), which is the Commonwealth agency that administers the NDIS, informed the defendant that an NDIS plan for him for 2020 had been approved. It includes $99,927.76 for “core supports” and $35,074.87 for “capacity building supports”, which includes an allocated amount to cover “64 hours of specialist behaviour intervention support and 30 hours of behaviour management plan [and] training in behaviour management strategies”.

5. [14]

   The defendant has tendered material published on the internet by the NDIS that sets out their policy on the use of environmental restraints that restrict a person’s free access to parts of their environment. It states that registered providers who develop behaviour support plans are to comply with a framework of stated principles.

6. [15]

   On 24 January 2020, the defendant met with police for the annual review of his circumstances pursuant to his obligations under s 10 of the Child Protection (Offenders Registration) Act 2000 (NSW). Police advised: “No issues were raised or revealed at this time and he was deemed to be in compliance with his reporting obligations”.

7. [16]

   On 3 February 2020, the defendant’s Public Guardian approved the appointment of a relevantly-experienced co-ordinator of support services for the defendant.

8. [17]

   There have been no reported breaches by the defendant of his conditional release order. He remains subject to a “line of sight” condition when he is outside his residence. He continues to receive a disability support pension.

Relevant statutory provisions

1. [18]

   The defendant became a forensic patient when he received a limiting term (ss 24 and 42(a)(i) of the Act) and remains a forensic patient because he is subject to an IEO (s 42(a1) of the Act). Section 54A, which is in Pt 5 of the Act, provides that a person’s status as a forensic patient may be extended in accordance with the Schedule.

2. [19]

   Clause 1 of the Schedule requires the application to be made under Pt 2 of the Schedule, which sets out time constraints and other compliance requirements for an application, and identifies certain material that must accompany it (cls 3, 4, 5 and 6(1)–(4)). The defendant does not contest that the plaintiff has complied with these requirements and I find that they are satisfied.

3. [20]

   The Court may determine an application by either making the order or by dismissing the application: cl 7(1). The Court may make a second or subsequent extension order against the same forensic patient: cl 8(2). The making of an extension order does not affect the operation of “any order as to the forensic patient’s care, detention, treatment or release from custody to which the forensic patient was subject immediately before the making of the extension order”: cl 9.

4. [21]

   The title of Pt 5 of the Act is “Forensic patients and correctional patients”. The objects of Pt 5 are set out in s 40, as follows:

5. [22]

   The plaintiff submits that ss 40(a), (b), (e) and (f) of the Act are relevant to a determination of the application. However, s 40(b) is relevant only to “persons … who are suffering from a mental illness or mental condition”, and subs (c), (d) and (e) are confined to “those persons”, which refers back to subs (b). The term “mental illness” is undefined in the Act, but “mentally ill person” is defined at s 3 of the Act to have the same meaning as in the Mental Health Act 2007 (NSW). The Mental Health Act states, at s 16, that a person is not a mentally ill person “merely because … the person has an intellectual disability or developmental disability”. The term “mental condition” is defined at s 3 of the Act to exclude “developmental disability of mind”.

6. [23]

   The terms “developmental disability of mind” and “developmental disability”, in the context of the cognate legislation affecting forensic patients, include (and are often used interchangeably with) an intellectual disability: see, for example R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155 per Wood CJ at CL, Spigelman CJ and Greg James J agreeing at [95], concerning the predecessor to the Act, the Mental Health (Criminal Procedure) Act 1990 (NSW) (“the MHCPA”).

7. [24]

   Although this issue was raised in the preliminary judgment, neither party has addressed how s 40 of the Act should be reconciled with an application pursuant to the Schedule, when it is not suggested that the defendant has a mental illness or a mental condition, as defined.

8. [25]

   The Interpretation Act 1987 (NSW) provides in s 33 that:

9. [26]

   In Wacando v The Commonwealth (1981) 148 CLR 1; [1981] HCA 60, the High Court considered the use of statutory preambles in statutory construction. Gibbs CJ said, at 15-16: “… if the words of the section are plain and unambiguous their meaning cannot be cut down by reference to the preamble”. Mason J said, at 23:

10. [27]

    In Re Yanner (2000) 176 ALR 1; [2000] FCA 975, at [95]-[96], Dowsett J adopted this approach when considering how a statutory objects clause is to be utilised in statutory interpretation.

11. [28]

    The nature of the objects in s 40 of the Act aligns with the scope of Pt 5 absent the Schedule, in particular, the care, treatment and control functions of the Tribunal over forensic and correctional patients. The Schedule, however, is exclusively concerned with a qualitatively different issue, being whether a person’s status as a forensic patient should be extended by the Supreme Court, according to a test set out at cl 2 as to the level of risk that would be posed by the person if that status is not extended.

12. [29]

    In my view, the objects that are set out at s 40 of the Act are intended as guidance to the interpretation of Pt 5 of the Act insofar as it concerns the functions of the Tribunal, and must yield to the clear terms of cll 2 and 7(2) of the Schedule.

13. [30]

    The central provision of the Schedule as to the criteria for determining an application is found in cl 2:

Relevant principles

1. [31]

   Two of the key phrases in cl 2 of the Schedule appear in the context of counterpart legislative schemes for continuing supervision and detention in the Crimes (High Risk Offenders) Act 2006 (NSW) and the Terrorism (High Risk Offenders) Act 2017 (NSW), and have been the subject of appellate consideration of their meaning in those contexts. The Court concluded in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]:

2. [32]

   The term “an unacceptable risk” should be given its everyday meaning in the context of the provision in which it appears: see Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [58].

3. [33]

   The level of risk is determined by the Court on the assumption that the defendant would no longer be a forensic patient. In the context of an application where the defendant has already been conditionally released, the question is whether the defendant would pose an unacceptable risk residing in the community if he were no longer subject to the oversight of the Tribunal, with its power to enforce its conditions on pain of being returned to detention.

4. [34]

   If the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others in that circumstance, the Court is then required to evaluate whether that risk is capable of being adequately managed by other less restrictive means. It is for the Attorney General to prove that the risk cannot be so managed. I note that this approach has been adopted previously: see Attorney General of New South Wales v Christian bht Thompson [2018] NSWSC 744 per Rothman J at [92]–[93].

5. [35]

   The term “serious harm to others” is unique in the three legislative schemes, although the notion of “serious harm” (to others or to him or herself) is the basis for a person being made an involuntary patient, pursuant to s 14 of the Mental Health Act, which is a cognate Act: see Mailes at [190]. This was an intentional adoption, as was acknowledged in the second reading speech by the Attorney General the Hon Greg Smith SC for the Mental Health (Forensic Provisions) Amendment Bill 2013 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 November 2013 at 25638). The Attorney General stated:

6. [36]

   In Attorney-General of New South Wales v Kereopa [2017] NSWSC 411, Davies J noted, at [15], that there is no authority on the meaning of the words in the context of the Schedule, although the term has received consideration in the context of s 14 of the Mental Health Act, by White J (as his Honour then was) in Re J (No 2) [2011] NSWSC 1224. In that case, White J considered, at [93], that the term “serious harm” was wider than “serious physical harm” and that there was “much to be said” in favour of it meaning either physical or psychological harm.

7. [37]

   In Kereopa, Davies J concluded, at [19], as to the term’s contextual meaning in the Act:

8. [38]

   In Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928, R A Hulme J, referring to Davies J’s conclusion in Kereopa, said, at [16]:

9. [39]

   I agree with R A Hulme J’s understanding of the term “serious harm”. In the context of this application, the focus of the plaintiff’s submissions is whether the defendant would engage in behaviour similar to that involved in the index events, which clearly would constitute “serious harm”.

Clause 7(2) matters

1. [40]

   Clause 7(2) of the Schedule sets out a non-exclusive list of matters that the Court must have regard to when deciding whether to make an extension order. These matters are now separately considered.

2. [41]

   Although differently drafted, this is essentially the same consideration as expressed in s 40(a) of the Act: “to protect the safety of members of the public”.

3. [42]

   Forensic psychologist Patrick Sheehan interviewed the defendant on 6 February 2020, for about two and a half hours. The history that the defendant gave Mr Sheehan follows those he had provided to forensic professionals and others previously, although he included for the first time an allegation that when he was below the age of ten years, he was sexually abused by a close male family member. The defendant was too embarrassed to go into details and said it had continued to trouble him. Mr Sheehan also noted a report to the effect that the defendant had been suspended from high school in 1994, when he would have been aged about 15, for “sexually inappropriate behaviour towards female peers”.

4. [43]

   The defendant told Mr Sheehan that with the support of his caseworker, he had recently ended the relationship with his wife, because her behaviour left him insecure and angry. Mr Sheehan said that he saw “no evidence that he identifies as antisocial or naturally seeks the company of antisocial peers”.

5. [44]

   Mr Sheehan considered that the defendant’s degree of intellectual disability was “mild to moderate”. Mr Sheehan said:

6. [45]

   Mr Sheehan considered the defendant’s substance use history, and suggested that the defendant met the criteria for Polysubstance Use Disorder, although in the context of there being no recent use, the condition is “[m]ild, in sustained remission”. Mr Sheehan noted that the index events were not alleged to be substance-related.

7. [46]

   Mr Sheehan reported that:

8. [47]

   Mr Sheehan deferred a diagnosis of paraphilia, stating that although the two index events were:

9. [48]

   Mr Sheehan concluded that the defendant had a depressive disorder, though was currently in remission for that, as well as an unspecified personality disorder:

10. [49]

    Mr Sheehan related that when detained, which was in a prison, the defendant was pro-active in seeking treatment and was, effectively, a model detainee. Mr Sheehan said:

11. [50]

    Mr Sheehan assessed how the difficulties the defendant experienced in 2019 with his accommodation and the breakdown in his family’s support impacted on his mental health, and how the improvement in resources that have been allocated to the defendant impacted on him positively, although he feels burdened by the “line of sight” restriction:

12. [51]

    As to the defendant’s compliance with conditions, Mr Sheehan noted the stepdaughter incident and the unsubstantiated allegation that he had been seen smoking drugs. He related another incident (“the neighbour incident”):

13. [52]

    Mr Sheehan concluded that the defendant’s “only significant pathway to serious harm to others [would] be through his sexual behaviour”. He administered two tools intended to assess an alleged or convicted sex offender’s risk of future sexual offending, although emphasising that a scientific prediction of whether an offender will re-offend is not possible, and that such tools have only moderate predictive accuracy.

14. [53]

    One such tool was the Static-99R which, as its name suggests, is based exclusively on static factors. Further limitations on the Static-99R are, as Mr Sheehan discussed, that it “is not sensitive to changes in the patient’s circumstances … [and it is] not specifically normed on intellectually impaired offender populations”. This tool yielded a response of the defendant’s risk being either below average or average, relative to other male sexual offenders, depending on whether he had previously resided with a partner for two years or more; Mr Sheehan was not confident of the defendant’s reliability as an historian on that fact.

15. [54]

    The other test Mr Sheehan administered was the “Risk of Sexual Violence Protocol” (“RSVP”) which assesses dynamic risk factors. He described it as a structured professional judgement tool that assesses the person against a list of 22 dynamic factors relating to five domains; sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. Mr Sheehan considered his observations and the defendant’s history in each category, noting factors that affected risk assessment, both positively and negatively.

16. [55]

    Mr Sheehan referred to a third test. He noted that in February 2018, officers of the Community Justice Program (“CJP”) had administered the “Assessment of Risk and Manageability of Individuals with Developmental and Intellectual Limitation who Offend – Sexually” (“ARMIDILO-S”). This test takes into account specific environmental factors that are considered to have a significant influence on the risk of recidivism for sex offenders with an intellectual disability, as well as specialist services. When the ARMIDILO-S was administered on the defendant, he was assessed as being in the “low to medium” category of sexual re-offending.

17. [56]

    Overall, Mr Sheehan concluded as follows:

18. [57]

    In evidence, Mr Sheehan clarified the first sentence of this paragraph to refer to the defendant’s level of risk if he was removed from the “framework” of his current supervision. Mr Sheehan summarised the framework and its suitability for purpose as follows:

19. [58]

    As noted earlier, the Court is obliged by cl 2 of the Schedule to consider whether there are “less restrictive means” of managing a risk that the defendant would cause “serious harm to others”, which would otherwise be at an unacceptable level.

20. [59]

    In this context, Mr Sheehan considered whether guardianship would suffice to contain what he considers to be a moderate risk of sexual re-offending, and set out the way forward for the defendant, as he sees it, as follows:

21. [60]

    Mr Sheehan explained in evidence that the “deniers program” is one designed for sex offenders who maintain their innocence. He said:

22. [61]

    Dr Andrew Ellis is a forensic psychiatrist who has particular expertise in relation to the treatment of sex offenders. He prepared a report dated 16 February 2020, having interviewed the defendant for two hours on 7 February 2020. Dr Ellis related the relevant features of the history taken from the defendant which generally accorded with that provided to Mr Sheehan, two notable exceptions being that the defendant denied any experience of sexual abuse as a child and he gave a different account of his sexual libido, placing it at a significantly lower level than what he told Mr Sheehan.

23. [62]

    Dr Ellis spoke with the defendant’s disability worker, who said he had known the defendant since his release into the community in December 2018. He reported that the defendant:

24. [63]

    Dr Ellis was of the opinion that the defendant has a moderate degree of intellectual disability. He considered, and rejected, diagnoses of substance abuse disorder and personality disorder. He stated that the defendant has a mental illness in the form of depression, but it would not come within the definition of “mentally ill person” in the Mental Health Act. He elaborated on the diagnosis:

25. [64]

    Dr Ellis regarded the evidence as to whether the defendant had a psychosexual disorder, such as a paraphilic disorder, as “equivocal”, and recommended that clinicians continue to monitor his attitudes and observe for behaviours that might indicate a pattern of arousal.

26. [65]

    Dr Ellis noted that:

27. [66]

    Dr Ellis was of the opinion that the defendant’s level of risk of “physical endangerment to others … is very low in a supervised environment”. The defendant’s score on the Static-99R placed him as having an average level of risk of re-offending, which I note is at the top of the range found to apply by Mr Sheehan on that same test. Dr Ellis commented that this level of risk is effectively managed by current circumstances and that there was no need for him to partake in risk-reduction programs:

28. [67]

    In evidence, Dr Ellis elaborated on this approach:

29. [68]

    Overall, Dr Ellis concluded that he was of the opinion that if the defendant’s status as a forensic patient is not continued, he nevertheless would be safely and effectively managed under his guardianship order and his obligations under the Child Protection Register:

30. [69]

    Ms Amanda White, psychologist, prepared a report dated 14 May 2019. I considered her report in the preliminary judgment at [31], [47]–[51] and [66]–[67].

31. [70]

    Ms White administered the Static-99R test, which yielded the result of the defendant having a “below average” risk level of sexual recidivism. She also administered the Questionnaire on Attitudes Consistent with Sexual Offending (“QACSO”), which is intended to assess attitudes and cognitive distortions consistent with sexual offending in men who have an intellectual disability. She concluded:

32. [71]

    Ms White also applied the RSVP test. Overall, she made the following conclusions:

33. [72]

    In the preliminary judgment, I referred to a report prepared by Ms Jenny Howell, who is a clinical psychologist, dated 26 October 2018. Ms Howell assessed the defendant’s static, dynamic and protective factors using various assessment tools and concluded that:

34. [73]

    However, she concluded her report by stating that “[c]linical assessment suggests [the defendant’s] risk of re-offending falls within the Average Risk range”. Ms Howell did not attempt to reconcile her different conclusions.

35. [74]

    I also referred to a risk manageability assessment report, dated 7 November 2018, which was prepared by Natasha Phong and James Wu, who are respectively a clinical consultant and a team leader with the Community Justice Program. They considered that if the defendant lived with his family and received “drop in support”, he had an overall risk rating within the “low to medium range”.

36. [75]

    Section 46(1) of the Act provides:

37. [76]

    At the final hearing, the plaintiff advised that the Tribunal’s most recent review of the defendant was in October 2019. I referred to the formal determination following that review (which was dated 12 November 2019) in the preliminary hearing. It referred to the stepdaughter incident and the alleged incident involving the use of drugs but not to the negative drug test, as the test result post-dated that review. The Tribunal was satisfied that the present arrangements in place for the defendant were “necessary and sufficient for the protection of [the defendant] from serious harm and/or the protection of others from serious harm”. In the absence of a more up to date review, I assume this to be essentially the current position of the Tribunal.

38. [77]

    The plaintiff has tendered numerous reports that come within this description, many of which are of limited relevance due to their age and the availability of subsequent, more comprehensive, reports. Without intending to be critical of the parties and in the interests of reducing the paperwork in such applications in the future, I suggest that many could have been summarised in an agreed document. I will refer to three reports that have some relevance, insofar as they demonstrate that the defendant’s low-risk rating according to accepted assessment tools is long-standing and that when he was detained in custody, he was precluded from treatment programs because his level of risk was low.

39. [78]

    A report dated 9 May 2017 by Olivia Munn, who was a senior psychologist at the time with Statewide Disability Services, which is an agency of the Department of Justice, referred to her assessment of the defendant using the LSI-R as having a low to medium risk of general recidivism, which was too low for him to qualify to partake in programs of the Department of Corrective Services (“DCS”) addressing general recidivism. She assessed him with the Static-99R assessment tool, which placed him in the low risk category for sexual re-offending.

40. [79]

    A report dated 30 April 2018 by Monika Gubarewski, who also was then a senior psychologist with the DCS, noted that the defendant had been found unsuitable for the Sex Offender Treatment Program because his Static-99R score was too low for him to qualify.

41. [80]

    A report dated 31 May 2018 by another senior psychologist of DCS, Meagan Donaldson, was to the effect that the defendant’s low Static-99R score also precluded him from participating in a DCS program that specifically designed for child sex offenders who have an intellectual disability, known as the “Self-Regulation Program: Sexual Offending” (“the SRP:SO”). It is only offered to moderate to high and high-risk offenders.

42. [81]

    The defendant had no disciplinary matters against him when he was detained in prison. He has not been dealt with for breaching his conditions of release and there are no breaches of his obligations by reason of being on the Child Protection Register. In my view, the stepdaughter incident and the neighbour incident, which were contrary to the “line of sight” obligation imposed by the Tribunal, were minor. It is relevant that the affected agencies deemed it appropriate to take no further action in relation to them.

43. [82]

    In the preliminary judgment I observed that when Payne DCJ imposed the limiting term on the defendant, she said that, pursuant to s 23(1)(b) of the Act, it is the equivalent of the sentence that would have been imposed if the person had been convicted at a normal trial. Although it is without the benefit of a non-parole period, it is intended to ensure that a person is not detained for a longer period than he or she would have been, if convicted following a normal trial. Her Honour found that considerations of general deterrence were inappropriate, in view of the defendant’s intellectual disability; that his moral culpability was “considerably reduced”; that time in custody would be particularly onerous for him; and that he had a supportive family and friends. In relation to his prospects of rehabilitation, her Honour found that it was pertinent that the alleged offences at that stage were eight to ten years old and that he had not come under attention in the intervening period.

44. [83]

    There are two other matters which are relevant to the determination of the application.

45. [84]

    The defendant has certain obligations as a “registrable person” pursuant to s 3A of the Child Protection (Offenders Registration) Act 2000 (NSW). He will remain on the Child Protection Register, and thus remain subject to these obligations, until 2033. Because of the nature of the charges which are the basis of the index events, he is obliged by s 9(1) of the Child Protection (Offenders Registration) Act to provide and update certain information to the Commissioner of Police, including the name and date of birth of each child who generally resides in the same household as that in which he generally resides (s 9(1)(e)), and details of any phone or internet service he uses or intends to use, including the types of internet connection, any email addresses and/or other usernames of the internet including social media (ss 9(1)(m)–(p)).

46. [85]

    Of particular relevance to this application are ss 9(1A) and (1B) of the Child Protection (Offenders Registration) Act, which provide:

47. [86]

    All of the information required by s 9 is to be reported each year: s 10(1). Any changes to the relevant information are to be provided: s 11(1)(a). The maximum penalty for failure to comply with a reporting obligation is 5 years imprisonment: s 17(1).

48. [87]

    A report dated 17 October 2019 by Sinead Corcoran, who is a Senior Clinical Consultant with the CJ&ISP, was attached to an affidavit of a solicitor from the Crown Solicitor’s Office. The report was read by the plaintiff in the preliminary hearing and the final hearing. It stated that “[The defendant] has been compliant with his Child Protection Order”. I was advised by the plaintiff at the final hearing that the report was incorrect; the defendant is not subject to a Child Protection Order.

49. [88]

    However, the fact that the defendant is a “registrable person” pursuant to the Child Protection (Offenders Registration) Act allows the Commissioner of Police to apply to the Local Court, pursuant to s 4 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), for an order prohibiting him from engaging in specified conduct (“a child protection prohibition order”). Pursuant to s 5(1) of the Child Protection (Offenders Prohibition Orders) Act, the Local Court may make the order if it is satisfied, on the balance of probabilities, that:

50. [89]

    The type of conduct that may be the subject of such orders is set out at s 8 of the Child Protection (Offenders Prohibition Orders) Act, and includes the persons, or kinds of persons, with whom the person may associate, locations and kinds of locations the person may go to, and specified behaviours he may not engage in.

51. [90]

    In relation to behaviour by the defendant that falls short of criminal offending or warranting mandatory reporting, the Ascent support workers are required to watch out for ten specific concerning behaviours by the defendant, concerning his behaviour with or towards children, certain sexual behaviour and compliance with conditions. If there is a relevant observation, there is a reporting procedure which involves immediate verbal advice to the Ascent Service Manager or CEO and making a documentary record of the observation. The observation is also reported to the CJ&ISP, the Tribunal, the defendant’s Guardian and his psychotherapist, Dr Joseph Bowers.

52. [91]

    The involvement of the CJ&ISP is tied to a person’s status as a forensic patient, and ceases when that status concluded. Ascent’s Service Manager has indicated that when that occurs, any such behaviour will still be reported to his guardian and psychotherapist, and perhaps to the NDIS support co-ordinator:

The submissions of the parties

1. [92]

   The plaintiff submits that the risk “has over time remained at a moderate level” and that I would be satisfied to a high degree of probability that that there is an unacceptable risk of the defendant causing serious harm to others if he is no longer a forensic patient. In the context of the evidence, that is a risk established to the requisite degree that the defendant would commit a child sexual offence, if he does not remain a forensic patient.

2. [93]

   The plaintiff further submits that, if I am so satisfied, the degree of risk cannot be reduced to an acceptable level by the framework that otherwise would apply to the defendant, namely, his on-going support funded under the NDIS which is provided through Ascent, his status as a registered person on the Child Protection Register, and the appointment of a guardian with powers to restrict his movements. The plaintiff particularly notes that decisions made by a guardian, unlike those made by the Tribunal, are required to be made in the best interests of the defendant, rather than from the perspective of the safety of the community.

3. [94]

   The defendant submits that, in view of the defendant’s assessed low to moderate level of risk of re-offending, his open attitude to accepting supervision and the provision of services, the stability that he now has in his lifestyle and the restrictions of guardianship and the Child Protection Register, the level of risk does not reach the point of being “unacceptable” and, in any event, it can be “adequately managed” by the latter constraints.

Consideration

1. [95]

   Although forensic assessments have consistently gauged the defendant’s level of risk as being moderate or low (or average and below average), even a low level of risk does not necessarily equate to an acceptable level of risk, for the purposes of cl 2 of the Schedule.

2. [96]

   I agree with the observations of R A Hulme J in State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041, which concerned an application made pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW). At [16], his Honour adopted the reasoning of Harrison J in State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [43]:

3. [97]

   There are significant differences of opinion between Mr Sheehan and Dr Ellis concerning the relevant diagnoses (whether the defendant has a personality disorder or a substance abuse disorder), the nature of any further treatment (a variation of the “deniers program” or behavioural reinforcement through his disability workers) and whether a guardianship order, together with the guidance and services of his disability workers and his obligations as a person on the Child Protection Register, would provide sufficient oversight and protection of the community to warrant him being removed from the status of forensic patient in the short term, as opposed to in 12 months’ time.

4. [98]

   More fundamentally, whereas Mr Sheehan has assessed the defendant as having a moderate or medium level of risk of sexual offending, Dr Ellis is of the view that if the defendant is in a supervised environment, his risk of any form of “physical endangerment” is “very low”.

5. [99]

   In the context of the evidence, the only realistic risk of the defendant occasioning “serious harm to others” is by him sexually offending against children. Mr Sheehan and Dr Ellis agree on the type of unsupervised scenarios in which that danger could emerge, which essentially would involve impulsive sexual behaviour towards children he meets or supervises, through relationships with women who have children, family or boarders with children. I am satisfied to a high degree of probability that, if the defendant is unsupervised, he would pose an unacceptable risk of causing serious harm to others.

6. [100]

   However, the alternative to the defendant being a forensic patient nevertheless entails a high degree of supervision, through him being registered on the Child Protection Register, having the support of the disability workers from Ascent funded by the NDIS, and being subject to the conditions imposed by the guardianship order.

7. [101]

   According to s 4(a) of the Guardianship Act 1987 (NSW), “the welfare and interests of [persons who have disabilities] should be given paramount consideration” when determinations are made regarding the exercise of guardianship. That is one of a number of “general principles” in that Act that apply to persons who have a disability and are subject to a guardianship order. It is apparent from the terms of s 4 of that Act that, in relation to guardianship decisions affecting a person’s “freedom of decision and … action” and any impact of decisions on living “a normal life in the community”, the “views of such persons in relation to the exercise of those functions should be taken into consideration”. Implicit in those words and, indeed, the scheme of that Act, is an understanding that guardianship decisions, although made in the interests of the person, will not necessarily reflect the wishes of the person subject to the guardianship order.

8. [102]

   The guardianship order explicitly provides for a “line of sight” power to the guardian. In their reasons, the Guardianship Tribunal explained that the purpose of this power was to supplant the release condition of the Tribunal, if the defendant’s status as a forensic patient is terminated. The guardian will be able to authorise Ascent to maintain the “line of sight” requirement, if needed.

9. [103]

   The defendant has not been charged with any other offences since the index events, which are alleged to have occurred between 12 and 14 years ago. He has complied with the directions and advice provided to him by the service and enforcement agencies that provide the social framework for his life in the community. This attitude of co-operation and compliance is long-standing, dating back to the defendant’s time in detention, when he tried to access treatment programs in prison (although he has always maintained his innocence in relation to the index events). There is no suggestion that, if the sanction available to the Tribunal is removed by him ceasing to be a forensic patient, he will undergo a marked change of behaviour and resist the guidance of his disability workers. His only expression of resistance has been to the “line of sight” condition, which prevents him from leaving his residence at all unless accompanied by an approved person.

10. [104]

    Pursuant to cl 2(1)(b) of the Schedule, I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing harm to others, if he ceases to be a forensic patient in six months’ time and is then managed by the combination of guardianship and being on the Child Protection Register, which I regard as “other less restrictive means”. I consider that, on the evidence before me, a period longer than six months is unnecessary in terms of cl 2 of the Schedule. On that issue I prefer the evidence of Dr Ellis to that of Mr Sheehan.

11. [105]

    A period of 6 months, rather than a shorter period, would allow the Tribunal and the other agencies involved in the defendant’s management, supervision and provision of services to ensure a smooth transition. It would also allow the Tribunal the opportunity, should it decide to do so, to start the process of lessening the “line of sight” condition with the benefit of the threat of a strict sanction, if the defendant does not respond appropriately to the greater degree of freedom.

12. [106]

    If there is a major disruptive event in the defendant’s circumstances over the next six months that impedes his progress, as occurred in mid-2019, the plaintiff may bring a further application for an extension order pursuant to cl 8(2) of the Schedule. However, in view of the co-ordinated services he now receives, which are described as “optimum” by Mr Sheehan, that seems unlikely.

Orders

1. [107]

   I make the following orders: