Attorney General for New South Wales v Kapeen

At around 7:45pm on 12 September 2014 Robert Steven Kapeen, who I will refer to as "the defendant", was arrested and charged with an offence that allegedly occurred a couple of hours earlier. It is alleged that at around 4:30 or 5pm that afternoon, he sexually assaulted a six year old child. The allegation was that he approached the child who was walking with his eight year old brother and removed the child's pants. He then removed his own pants and lay on the ground, causing the child to straddle him. It is alleged that the defendant had penile-anal sexual intercourse with the child for several minutes.

A female witness came upon the scene and observed that the child was facing the accused whilst sitting on his crotch. The witness yelled out and the defendant jumped up. The witness observed that his penis was erect. The defendant ran off. DNA evidence was subsequently obtained which connected the defendant to the underpants worn by the child. The witness reported the incident to the child's parents, who in turn reported the incident to the defendant's brother. The child’s parents contacted the police and the defendant's brother arranged for the defendant to attend the local police station. It seems that the various parties were known to each other. They all live in the same small community in northern New South Wales. The defendant was charged with the offence and the criminal process began.

The facts sheet created by the police at the time of the arrest and, in the hours following, as well as the criminal history, demonstrate that the defendant was known to the police and that he admitted suffering from schizophrenia. The facts sheet also provides an opinion that he appeared to have some kind of learning disorder as well.

The matter came before her Honour Judge Yehia in the District Court sitting in Coffs Harbour on Monday 26 October 2015. Her Honour found that the defendant was not fit to be tried. [1] There was no application for bail. Her Honour directed the Registry to provide copies of the relevant reports to the Mental Health Review Tribunal.

On 30 November 2016 there was a special hearing before Judge Bennett in the District Court sitting at Grafton. [2] His Honour reached a verdict pursuant to s 22(1)(c) that "on the limited evidence available, the accused committed the offence charged". That was an offence of aggravated indecent assault. On 1 December 2016 Judge Bennett made a determination under s 23 of the Act that if the defendant had been tried in the normal way, he would have been subject to a term of imprisonment. His Honour set a "limiting term" of two years and six months commencing 13 September 2014 and expiring 12 March 2017. In accordance with s 24 of the Act, Judge Bennett referred the defendant to the Mental Health Review Tribunal. Since that time the defendant has been a "forensic patient".

The limiting term was due to expire, or did expire, on 12 March 2017. By summons filed 1 March 2017 the Attorney General for New South Wales sought a number of orders, including the appointment of experts to examine the defendant and extension orders under s 54A and Schedule 1 of the Act. The matter came before His Honour Justice Beech-Jones on 9 March 2017. [3] His Honour made orders appointing experts to furnish reports to the Court for the final hearing of the matter and made an interim extension order for a period of 28 days from 12 March 2017. That last order extended the period under which the defendant would be, and would remain, a forensic patient.

The Attorney General seeks a two year extension of the order and the matter is listed for final hearing on 24 April 2017. In the meantime, the interim extension order made by Beech-Jones J will expire on 9 April 2017. The matter is before me today on the Attorney General's application to make a further interim extension order that will mean that the defendant's status as a forensic patient will be extended at least until the final hearing of the matter on 24 April 2017.

Beech-Jones J explained the operation of the relevant provisions in his earlier judgment in this case and also in a case known as Minister for Health v Paciocco [2016] NSWSC 1530. His Honour also discussed the differences between an order under the Act and orders concerning involuntary patients under the Mental Health Act. It is unnecessary to go into any detail, other than to note that the decision is governed by the operation of clause 10 in Schedule 1 of the Act.

I am required to determine whether the supporting documentation would, if proved, justify the making of an extension order. That determination requires me to consider the circumstances in which the Court may make an extension order. Those are set out in clause 2, which is in the following terms:

Clause 7 sets out a number of criteria which might guide the Court in coming to the decisions required under clause 2:

Two affidavits have been read by the Attorney General in the hearing today. The order – according to an email dated 3 April 2017 at 2:28pm from a Mr David Norman, solicitor of the Mental Health Advocacy Service with the Legal Aid Commission of New South Wales – is not opposed. In fact it is consented to. Nevertheless, the Act requires me to be satisfied of the matters set out in clause 10 of Schedule 1 and by reference to clauses 2 and 7, which are the matters guiding the outcome of the final hearing.

I have considered a volume of material in those affidavits and particularly the contents of an exhibit referred to as KAS 1, which includes a number of psychiatric reports. These establish on their face, and if proved, that the accused has schizophrenia and residual symptoms of psychosis and remains, or at least remained in January of this year, unfit to be tried. He remains a "significant risk of harm to himself" and, at least in the opinion of one psychiatrist, a moderate risk of committing further sexual offences. The evidence on its face is also capable of establishing that there is no less restrictive placement available for him.

The defendant’s criminal history before 2014 did not include any offences of violence or any sexual offences and it is no doubt arguable on the final hearing that the evidence does not justify the defendant's continued detention as a forensic patient. However, the making of an interim order does not require me, or for that matter permit me, to come to any final conclusions as to the matters in clause 2, based on the criteria in clause 7 subclause (2).

For the purpose of the present application, I must assume the matters asserted in the documentation will be proved. On that basis, I am satisfied that the limiting term has expired and that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order; that is, the material, if proved, may establish that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient and the risk cannot be adequately managed by other less restrictive means.

Accordingly, and by consent, I make the orders in the short minutes of order helpfully provided by those appearing for the plaintiff. Pursuant to clauses 10 and 11 of Schedule 1 to the Mental Health (Forensic Provisions) Act 1990, I make an interim extension order for a period of 28 days from 9 April 2017.