Attorney General of NSW v McGregor (Final)

1. [1]

   By summons filed on 30 April 2021, the Attorney General seeks an order under ss 121, 127 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) extending Mr McGregor’s status as a forensic patient under that Act for a period of 2 years. By his tutor, Dr Katherine Johnson, Mr McGregor neither consents nor objects to the order being made. Mr McGregor is currently subject to an interim order under s 130 of the Act made by Beech-Jones J on 2 June 2021 for a period of 3 months commencing on 10 June 2021: Attorney General for New South Wales v McGregor (Preliminary) [2021] NSWSC 638. Unless otherwise specified, all references to legislative provisions in this judgment are references to the Act.

2. [2]

   The Act came into effect on 24 March 2021 when Mr McGregor was already a forensic patient under the provisions of Mental Health (Forensic Provisions) Act 1990 (NSW) (“the former Act”). This is because he was a person in respect of whom a limiting order had been made under s 24 of the former Act which engaged the provisions of s 42 of that Act. There is no issue, however, that Mr McGregor’s situation is covered by the transitional provision in Schedule 2, Part 2, Clause 9 of the Act which provides:

Important background to the proceedings

1. [3]

   Mr McGregor was charged on indictment that on 12 June 2018 at Parramatta he caused grievous bodily harm to a complainant with intent to cause grievous bodily harm. The short facts are that as he alighted from a bus at Parramatta, he accidentally bumped an elderly lady alighting immediately ahead of him in the back. She took umbrage and remonstrated with him saying, “Don’t ever push me again”. Mr McGregor has been profoundly deaf since the age of 6 months and is unable to communicate verbally. He attempted to communicate in sign language, which the complainant did not understand. She apparently continued to berate him, and Mr McGregor walked towards the complainant and punched her hard to the left side of her face, knocking her to the ground. She landed on her hip. She suffered facial fractures to her left cheek and a displaced complex fracture to the neck of her right femur.

2. [4]

   A question of his fitness to be tried arose and on 2 September 2019 his Honour Judge Grant, in the District Court, held that he was unfit to be tried according to the criteria specified in R v Presser (1958) VR 45 at 48 as adopted by the High Court of Australia in, inter alia, Kesavaraja v The Queen (1994) 181 CLR 230 by reason of a combination of his treatment resistant schizophrenia, his intellectual disability, and his profound deafness and resulting communication difficulties.

3. [5]

   His Honour Judge Craigie QC conducted the Special Hearing on 18 May 2020, following which he recorded a qualified verdict of guilty on the limited evidence available of the available alternative charge of recklessly causing grievous bodily harm. After some delay to accommodate the parties, on 30 November 2020 his Honour nominated a limiting term of 3 years duration expiring on 11 June 2021.

4. [6]

   It is convenient at this stage to refer to some aspects of Judge Craigie’s reasons for imposing the limiting term which he did. I observe, this is also a mandatory consideration for the purpose of s 127(2)(h) when determining whether or not to grant the principal relief sought by the Attorney General.

5. [7]

   His Honour found that the initial contact between Mr McGregor and the complainant while alighting from the bus was inadvertent. He did find, however, that the blow to the complainant’s face was pre-emptive and unreasonable because of what Mr McGregor perceived as a hostile response from the complainant. He also decided that his finding of recklessness “necessarily entails a finding that [Mr McGregor] contemplated the possible outcome of causing grievous bodily harm but proceeded nonetheless, to strike the victim”: (Exhibit SN-1, Tab 7, page 64).

6. [8]

   He was satisfied, however, that Mr McGregor acted “on the spur of the moment and on the basis of a deeply flawed judgment and appreciation of the situation”: (Exhibit SN-1 Tab 7, page 65), but he was both aware of his physical act and its wrongness.

7. [9]

   Given the circumstances that Mr McGregor had at that time been homeless and his schizophrenia untreated, his behaviour was unpredictable creating a risk of the infliction of serious physical injury on other members of the community. He concluded (Exhibit SN-1, Tab 7, pages 66-7):

Legal principles

1. [10]

   A central feature of the legislative scheme for the extension of a person’s status as a forensic patient is found in s 122 which is in the following terms:

2. [11]

   Unlike the 2006 Act, the relevant risk, that of causing serious harm to others, is not defined by reference to the commission of a serious offence. In Attorney General for the State of New South Wales v Kereopa [2017] NSWSC 411 at [19] Davies J posited that the expression “serious harm” extended to physical, psychological and, perhaps, financial harm. So far as physical harm is concerned, something less than grievous bodily harm, defined as really serious injury was sufficient.

3. [12]

   In Attorney General for the State of New South Wales v Kereopa (No 2) [2017] NSWSC 928 at [16] RA Hulme J said:

4. [13]

   I agree with his Honour’s analysis, but I would add that transient emotions such as fear or panic are not serious harm.

5. [14]

   Adamson J closely considered the import of the second limb of s 122(1) in Attorney General for New South Wales v Doolan (No 2) [2016] NSWSC 107 at [97]–[127]. Although concerned with the cognate provision found in Schedule 2, Clause 2 of the former Act, her Honour’s analysis remains very pertinent, with respect. As her Honour pointed out by reference to the alternative protective regimes provided by the Guardianship Act 1987 (NSW) and Mental Health Act 2007 (NSW), the primary emphasis of the Act is upon community safety (s 127(2)), while the statutory alternatives are concerned with the least restrictive means of management consistent with the liberty of the individual. The risk of serious harm to others is a relevant consideration, but it is less prominent in the alternative statutory schemes. `Under the Act, it occupies central position. It is not necessary at this stage to say more about the second limb.

6. [15]

   As I have said, s 122(1) creates a statutory pre-condition to the exercise of the power to make an extension order under s 127. Section 122 does not involve the exercise of a discretionary power. Rather, it involves the formation of an evaluative judgment. For the purpose of making the judgment, the Court is entitled to have regard to all relevant evidence, bearing in mind the enhanced standard of proof.

7. [16]

   Section 127 confers a discretionary power, it provides, “the Supreme Court may determine an application … for an extension order” (my emphasis) by making the order or dismissing the application. The use of the word may indicates that whatever judgment the Court has made about the statutory pre-condition, there remains a question of whether or not in the exercise of the Court’s discretion an extension order should be made. That discretionary decision is to be made by having regard to the mandatory considerations established by s 127(2).

8. [17]

   The s 127(2) considerations are not mandatory for the purpose of the s 122(1) judgment. However, they are manifestly relevant to the questions posed by paragraphs (a) and (b) of s 122(1). It is usually convenient to consider them for the purpose of both aspects of the judicial task conferred on the Supreme Court by Part 6 of the Act. Obviously, if the Court is not satisfied to a high degree of probability that either limb of s 122(1) has been established, the application must be dismissed because then the Court will have no power to make an order under s 127.

9. [18]

   While perhaps not directly relevant to s 122, obviously community safety feeds into the meaning of “unacceptable risk of causing serious harm to others”. I have borne this consideration in mind.

10. [19]

    Pursuant to the orders made by Beech-Jones J on 2 June 2021, Dr Yolisha Singh and Dr Calum Smith were appointed to examine and report on Mr McGregor’s condition and other matters relevant to the assessment of risk. Each expert is a forensic psychiatrist. Dr Smith’s reports of 16 July 2021 and 4 August 2021 together were admitted as Exhibit A, and Dr Singh’s report of 16 July 2021, as Exhibit B.

11. [20]

    Dr Smith conducted a psychiatric examination of Mr McGregor of 1 hour and 30 minutes duration on 5 July 2021. He reviewed a large volume of relevant clinical and other material. He had the assistance of both an Auslan and a deaf relay interpreter. Dr Smith, by reference to the clinical material and from his examination of Mr McGregor’s mental state, received a history of schizophrenic illness dating back at least to March 2003 when Mr McGregor was an inpatient at Cumberland Hospital. Mr McGregor’s history as relayed directly to Dr Smith was consistent in some respects with the events reported in the clinical material. He was born in Dunedin, New Zealand. His family migrated to Australia when he was one year old, settling in Sydney. Due to his profound disability, he attended a special school for deaf children at North Rocks from the ages of three until 15. After school he attended TAFE, apparently undertaking a cabinet making course and later commencing an apprenticeship with a French polisher. He said he obtained his licence in that trade. He lived at home until his 21st birthday when, “There was a fight”. That was the last time he saw his family.

12. [21]

    He formed a domestic relationship with a young woman and they had a son named Samuel. He believes his son has not grown up, remaining of pre-school age. He later had another female partner when he was around the age of 32.

13. [22]

    He claims to have given up drinking alcohol at the age of 27. He used Marijuana for a while before “switching” to crystal methamphetamine, which he used on a daily basis until his arrest for the index offending. He had lived in social housing accommodation until about 2017, but at the time of the index offending he had been evicted for causing damage to the property and was effectively living on the street.

14. [23]

    On mental state examination, Mr McGregor described “feeling good”. Dr Smith thought there was a lack of energy and volition which were negative symptoms of his schizophrenia. He assessed Mr McGregor as being mildly to moderately thought disordered. He exhibited features of ongoing psychotic thought content. And while he gave an inconsistent account of experiencing ongoing hallucinations, eventually the history was of experiencing visual hallucinations. Dr Smith assessed Mr McGregor’s IQ as according with the formal assessment carried out by corrective services psychologists or in the low/border line range for cognitive impairment. Dr Smith assessed Mr McGregor as having good insight into his illness and his need for treatment.

15. [24]

    Dr Smith assessed Mr McGregor’s risk of future violence using Historical Clinical and Risk Management 20, version 3 (“HCR-20 v3”), a very established and widely used structured professional judgment tool. He acknowledged that there are limitations inherent in all risk assessments and that assessment of risk is not predictive of future conduct.

16. [25]

    Dr Smith diagnosed Mr McGregor as suffering from chronic Paranoid Schizophrenia, Substance Use Disorder (currently in remission), Epilepsy following an initial seizure in custody in 2019 and Borderline Cognitive Impairment.

17. [26]

    His profound deafness is also relevant because of his inability to communicate with others when anxious.

18. [27]

    Dr Smith assessed Mr McGregor as presenting a high risk for future violence. The three main relevant factors relate to secure and stable accommodation, compliance with treatment for his schizophrenia, and abstinence from drugs and alcohol. If appropriately treated, Mr McGregor’s risk “is modulated and can … be comfortably managed in the community”. Currently under his conditional release regime, Mr McGregor’s risk is “attenuated”.

19. [28]

    Mr McGregor “possibly” qualifies for a mental illness under the Mental Health Act 2007 (NSW), but he does not meet the criteria as a mentally ill person because of his good current management and treatment. However, a “small change in mental state, or shortfall in care delivery, [could] be associated with a significant escalation of risk”. Dr Smith believes Mr McGregor requires ongoing management as a forensic patient. If this status continues, he will continue to be reviewed by the Community Forensic Mental Health Service and by the Mental Health Review Tribunal (“MHRT”). This will monitor and maintain his treatment and accommodation status, and his progress towards rehabilitation. Dr Smith believes that this is “the least restrictive safe and effective framework to manage his mental health and disability co-morbidities”. He regards a community treatment order as being appropriate, but only as part of the current “legal framework”.

20. [29]

    Dr Smith does not regard a Guardianship Order as being necessary. In his view, the current conditional release plan is “working”. Its continuation ought to strike a balance between the current condition and avoidance of arrangements which are “unduly restrictive”. He recommends a two-year extension.

21. [30]

    In his second report, Dr Smith expressed the following opinion (Exhibit A, Second Report, page 4):

22. [31]

    Dr Singh’s report of 6 July 2021 was admitted as Exhibit B. The history that Dr Singh received of the development of Mr McGregor’s mental illness and his involvement with the criminal justice system was not materially different from that of Dr Smith. She too assessed his risk of future violence by application of the HCR-20 v3 structured professional tool. She also employed the Structured Assessment of Protective Factors for Violence Risk, second edition (SAPROF). Acknowledging the limitations inherent in these tools, Dr Singh formed the opinion that Mr McGregor fell into a high-risk category of people with an elevated risk of violence. SAPROF indicated “a paucity of protective factors” and such protective factors as were evident all depended upon “his continued involuntary treatment”. She regarded his current living circumstances where he was under the conditional release order and intensely supervised by professionals with external control as “key critical protective items for Mr McGregor”

23. [32]

    In her opinion, like Dr Smith, she regarded Mr McGregor as having developed the serious mental illness of schizophrenia in his thirties; lifelong cognitive impairment and deafness; substance abuse and the onset of epilepsy which has contributed to increase his symptoms of impulsivity, deficits in executive functioning and general cognitive functioning. His substance use disorder which appears to be in early remission, apart from his use of alcohol.

24. [33]

    Of his various conditions, his schizophrenia is an independent risk factor for sexual and violent offending behaviour. The combination of matters carries the risk of non-compliance with treatment if left to his own devices in the community. In particular, the negative symptoms of his schizophrenia reduce his capacity to engage in meaningful pro-social activities, which compounds his risk of re-offending.

25. [34]

    Dr Singh was of the view that Mr McGregor did suffer from a mental illness within the meaning of the Mental Health Act, when acutely unwell he would be assessed as being a mentally ill person under that legislation. Dr Singh is of the opinion that Mr McGregor poses a risk of causing serious harm to others. Dr Singh believes that Mr McGregor requires ongoing management as a forensic patient. Given his symptoms are presently controlled, he is unlikely to qualify as an involuntary treatment under the Mental Health Act and a community treatment order, on its own, is likely to be insufficient to effectively manage his risk. Dr Singh said (Exhibit B; page 34):

26. [35]

    So far as the duration of an extension order is concerned, Dr Singh is of the view that a period of two to three years would be reasonable, although there is no empirical way of determining an appropriate period.

27. [36]

    The s 125(b) Risk Assessment Report was provided Dr Andrew Ellis and is dated 31 March 2021, with a supplementary report provided on 26 May 2021. Dr Ellis had the advantage of seeing Mr McGregor on a number of occasions and, with respect, his opinion is well explained by Beech-Jones J in his preliminary judgment at [18]–[28]. I agree with his Honour’s analysis and I will repeat it for the purpose of my judgment:

28. [37]

    Dr Ellis placed some emphasis upon the MHRT’s power of recall. This is because recall to prison or hospital may need to be exercised promptly in response to a deterioration in Mr McGregor’s clinical state. Moreover, management as a forensic patient better provides for external review and consultation before Mr McGregor is released from community accommodation.

29. [38]

    The evidence contained a number of psychiatric and psychological reports commencing with Dr Ellis’s report of 1 December 2018. In my opinion, it’s not necessary for me to refer to all of them. Of some particular interest is the report of Dr Christina Mathews of 30 January 2021. Dr Mathews, a forensic psychiatrist, was qualified by the solicitor acting for Mr McGregor in proceedings before the MHRT to express an opinion concerning Mr McGregor’s suitability for conditional release. Like the other experts to whose opinion reference has been made, Dr Mathews employed the HCR-20 v3 professional judgment tool to assess Mr McGregor. She summarised her risk assessment as follows (Exhibit SN-1; Tab 22; page 152):

30. [39]

    In the exercise of its statutory powers, the MHRT has reviewed Mr McGregor on a number of occasions since 3 December 2020. At its review on 6 January 2021, the Tribunal was satisfied that the treatment received by Mr McGregor as a forensic patient was of considerable benefit to him and he had made progress which was regarded as “most pleasing”. His solicitor foreshadowed an early application for conditional release. That application was made and considered at a hearing on 25 February 2021 by a tribunal constituted by his Honour Judge Lakatos SC, President, Dr Rob McMurdo, psychiatrist and Ms Vanessa Robb. In its reasons, the Tribunal noted that the results in relation to Mr McGregor’s cognitive functioning may have been affected by his hearing difficulties. Notwithstanding ongoing positive and negative symptoms of schizophrenia, Mr McGregor was found to accept that he had the mental illness of schizophrenia and that he required treatment to minimise his symptoms. His judgment was considered to be “reasonable”. Mr McGregor appreciated his current medication was beneficial in reducing his symptoms. He has been compliant with his prescribed medications and has engaged appropriately with psychology staff. The Tribunal found (Exhibit SN-1; Tab 27; page 197):

31. [40]

    The Tribunal essentially accepted Dr Matthews’ assessment of risk. It reviewed the plan of Mr McGregor’s management in the community which would be provided with NDIS support through funds which would become available upon Mr McGregor’s release from custody. It was proposed he would go into a supported residence staffed on a 24/7 basis. In its reasons, the Tribunal concluded:

32. [41]

    There was no report of any government department or agency responsible for the detention, care and treatment of Mr McGregor while he has been a forensic patient over and above the matters to which I have referred to. Neither party referred to any such document.

33. [42]

    The Attorney General accepts that “from all reports”, Mr McGregor has been a compliant forensic patient, he has continued his pattern of compliance in the community under his Conditional Release Order. Each of the court-appointed experts confirmed that Mr McGregor had been compliant and co-operative with them during their examinations. Mr McGregor reported to Dr Singh that he was happy with the current living arrangements in the community, he was much better with “rules” and he felt the arrangements under the Conditional Release Order helped him remain “safe and well”.

34. [43]

    I have dealt with the views of the sentencing judge above and I have taken them into account for the purpose of s 127. Additionally, it should be borne in mind that Mr McGregor’s present position in the community is in no small measure funded by the National Disability Insurance Agency. For that agency’s purposes, his disability has been classified as longstanding and permanent. He has been assessed as requiring assistance from other persons: he is unable to use public transport unsupervised; he is vulnerable to exploitation from others in the community; and needs supervision to access shopping centres, recreational or vocational activities, and medical appointments. He requires assistance to communicate effectively because of his profound deafness. It will be recalled that an influential factor in leaving the MHRT to make the Conditional Release Order was the financial support he would receive in the community from the NDIS. Dr Anna Farrar, forensic psychiatrist of Justice Health, prepared a report (undated) for the NDIS. She pointed out that he has suffered schizophrenia for many years, has a neurocognitive disorder and congenital deafness. She pointed out that in the past Mr McGregor’s condition has been complicated by “homelessness, non-compliance with medication and follow-up and drug misuse”. She pointed out that Mr McGregor requires assistance with mobility, communication, social interaction, learning, self-care, and self-management, including assistance from the Office of Trustee and Guardian to manage his financial affairs.

Assessment

1. [44]

   I am satisfied to a high degree of probability that Mr McGregor poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. It is clear from his history and from the opinions of the experts to which I have referred that the risk of serious, violent physical harm to others is closely related to the nature of his mental illness, neurocognitive deficits and deafness. I am satisfied to that high degree that if he were left to his own devices to support himself in the community, the co-morbidities affecting him could once again descend into homelessness, non-compliance with treatment and substance abuse. As the circumstances of the index offending demonstrate, minor negative social interactions can quickly escalate, not the least because of Mr McGregor’s complete inability to communicate with others for the purpose of defusing the situation. His lack of insight means that in those circumstances his awareness of the possible harmful consequences of his actions are unlikely to operate as any effective brake upon a sudden violent impulse.

2. [45]

   I am also satisfied to the high degree of probability that the risk cannot be adequately managed by other less restrictive means. I am left with the overwhelming impression, from virtually the whole of the expert evidence in the case, that even the combination of a Guardianship Order and a CTO of themselves would be insufficient to manage the risk. Mr McGregor has been previously been subject to a CTO, before the index offending and, as it were, seemed to fall “off the radar”. The evidence does not establish that, absent the Conditional Release Order as a forensic patient, the whole suite of conditions to which he is subject and by which he appears to be managing so well in the community in a supervised way can be replicated by other less restrictive means.

3. [46]

   Given my finding in relation to s 122, it’s necessary to consider whether, in the exercise of my discretion, I should make an extension order or dismiss the application. Given my findings as to the s 122 conditions and my analysis of the matters relevant to my determination, I am satisfied that an extension order should be made.

4. [47]

   Under s 128 the Court has the power to make an extension order not exceeding 5 years in duration from the date of its commencement. However, the evidence in the case, in particular, from the court-appointed experts, suggests that at this stage a duration of 2 years is appropriate. This shorter period is more consistent with leaving open the prospect of Mr McGregor achieving a position where he may be able to enjoy his right to be at liberty. I propose to make an order of 2 years duration.

Orders

1. [48]

   My orders are:

   1. (1)

      Under s 127 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) the defendant is subject to an order for the extension of his status as a forensic patient for a period of 2 years commencing at midnight on 10 September 2021.

   2. (2)

      I direct the Registrar to inform the Mental Health Review Tribunal of the making of this order, providing a copy of these reasons and of the reports of Dr Smith and Dr Singh.

   3. (3)

      Any application for access by a third party to the Court’s file in these proceedings is to be referred to a judge of the Court.