Attorney General of New South Wales v McGuire

HIS HONOUR:

This judgment relates to the preliminary hearing in which the plaintiff sought that Orders 1 and 2 be made. Should those orders be made, the plaintiff will seek Order 3 at a subsequent final hearing.

The defendant opposes the making of all three orders.

The defendant was born in November 1972 and is now aged 42. His criminal history commenced in 1996 when he was aged 24. Convictions exist for breach of an apprehended violence order, malicious damage, unlawfully use conveyance, stealing, drive in dangerous manner, take conveyance without consent, assault with intent, larceny, destroy or damage property, behave in offensive manner, having custody of offensive implement in a public place, drive under the influence of alcohol or drugs, drive recklessly or furiously or speed in dangerous manner, use unregistered and uninsured vehicle, drive while unlicensed, having an unauthorised number plate, possess or use prohibited weapon, disobey request to stop for breath test and drive while disqualified.

On 17 August 2006, the defendant was charged with three offences contrary to s61I of the Crimes Act 1900, namely that he had sexual intercourse without consent, knowing that the victim was not consenting (the index offences). He was also charged with one offence of aggravated break and enter, and commit a serious indictable offence. The facts of the three index offences were as follows.

At midday on 4 April 2006 the defendant was drinking alcohol with two acquaintances at premises adjacent to the victim’s residence. During the course of the afternoon, the defendant consumed at least 8 stubbies of beer (probably more) and observed the victim in the next door premises. He remarked that “she would be all right for a girlfriend”.

Thereafter the defendant went to the victim’s residence, asked if he could come in for a drink and spoke of “wanting to be with [the victim] and wanting to be [her] friend”. The victim refused his request. The defendant then went into the backyard of the house and played with the victim’s young daughter. When the defendant followed the victim’s daughter into the house, the victim asked him to leave. The defendant refused.

The victim walked to the front of the house and successfully enticed the defendant outside. Having done so, the victim secured the latch on the front door and went further inside the house to obtain the key to lock the front door. While she was standing in the living room, the defendant entered the house and committed a series of sexual assaults upon her.

The conduct forming the first count involved forced penile/vaginal intercourse that extended between five to fifteen minutes and caused the victim to feel some pain. The victim struggled and even managed to hit the defendant over the head with a telephone but he continued undeterred.

The conduct forming the second count involved forced penile/anal intercourse that continued for some five to ten minutes.

The conduct involving the third count involved forced penile/vaginal intercourse, although by this time with a "soft" penis which the victim succeeded in yanking. After words were exchanged, the defendant left the house saying he would "come back next week to finish the job".

The sexual assaults were witnessed by the victim's five year old daughter.

In October 2007, subsequent to the index offences, the defendant was charged with inflicting grievous bodily harm on a police officer, assaulting a police officer and resisting an officer in the performance of his duty. He was convicted of the inflict grievous bodily harm offence on 19 June 2009 with the other two offences taken into account on a Form 1. The circumstances were that a police officer suffered a fractured hand requiring surgery when the defendant was resisting arrest. At the time he was arrested, he was too intoxicated and violent to be interviewed.

On 25 August 2008 in the District Court at Nowra, Garling DCJ determined, after an inquiry conducted in accordance with the MHFP Act, that the defendant was not fit to be tried. The existence of an intellectual disability provided the basis of the finding. The defendant, who was then in custody, was referred to the Mental Health Review Tribunal (the Tribunal), and was remanded in custody.

On 4 September 2009, Murrell DCJ held that on the limited evidence available, the defendant had committed each of the index offences charged. Her Honour ordered, under s23(1)(b) of the MHFP Act, that the defendant be subject to a limiting term of five years for the offences, which would expire on 31 December 2013.

Under s24 of the MHFP Act the defendant became a forensic patient, subject to regular review by the Mental Health Review Tribunal (the Tribunal).

Under s24 of the MHFP Act, the defendant was referred to the Tribunal together with an order that he be detained in custody as a forensic patient.

On 26 August 2013, the Tribunal, pursuant to s47(1)(b) of the MHFP Act, released the defendant into the community subject to a comprehensive set of conditions.

By reason of the expiration of the limiting term on 31 December 2013, the defendant's status as a forensic patient was to cease. However, following an application made by the plaintiff (Attorney General of NSW v McGuire [2013] NSWSC 1862) Davies J made an interim extension order under cl 10 of Sch 1 of the MHFP Act (the preliminary hearing). This extended the defendant’s status as a forensic patient from 31 December 2013 for a period of 28 days. Other interim orders were subsequently made, such that the order was ultimately set to expire on 25 March 2014.

A final hearing of the application by the plaintiff for an extension order was held on 4 - 5 March 2014 before Garling J (Attorney General of NSW v McGuire (No 2) [2014] NSWSC 288 (McGuire No 2 [2014])). The plaintiff had initially sought an order for a period of five years, however, this was varied at the hearing to a period of two and a half years. The Court handed down its decision on 21 March 2014, making an order for an extension order for a period of 12 months.

The defendant’s current extension order expires on 21 March 2015.

On 21 March 2014 the Tribunal concluded that the previous conditions of release were necessary and should continue. It amended the existing orders for the defendant’s release from 70 hours of supervision to 35 hours.

On 3 June 2014 the Tribunal determined that the conditions were necessary and should continue.

On 2 August 2014 the Tribunal determined that the existing orders were necessary and should continue.

On 11 December 2014 and 17 February 2015 Dr Lennings, psychologist, provided reports to the plaintiff in this application.

Applications for extension orders may only be made in relation to forensic patients (MHFP Act – Schedule 1, clause 3). A forensic patient is defined within the MHFP Act at s42. There is no issue that the defendant is currently a forensic patient.

Section 40 of the MHFP Act sets out the objects of Pt 5 as follows:

The objects which relate to Pt 5 extend to Schedule 1 by virtue of s54A (within Pt 5) which provides as follows:

Under Schedule 1 of the MHFP Act, the test to be applied by the Court in relation to the making of an extension order is set out in clause 2:

Clause 5 of Schedule 1 sets out the requirements with respect to applications for an extension order:

A preliminary hearing into the application for an extension order is to be conducted by the Supreme Court within 28 days after the application is filed or within such further time as the Court may allow (clause 6(4)). The task of the Court is:

Matters to be considered by the Court are set out in clause 7(2) of Schedule 1:

Clause 10 of Schedule 1 makes provision for an interim extension order:

The test to be applied by the Court in determining whether a forensic patient “can” be made the subject of an extension order is set out in clause 2 of schedule 1. A number of the phrases used in that clause are identical to those found in the Crimes (High Risk Offenders) Act 2006 (HRO Act). It was accepted by the parties that judicial consideration of those phrases in the context of the HRO Act has relevance to the meaning of those same provisions as found in the MHFP Act.

Clause 2 of Schedule 1, provides that a forensic patient can only be made the subject of an order “if and only if” the Court is satisfied on a number of issues. Of this phrase McClellan CJ at CL in Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 said at [34]:

Clause 2 further requires the Court to be satisfied to a “high degree of probability” in relation to its satisfaction as to the provisions of clauses 2(1)(a) and (b). This constitutes a standard of proof which is higher than the civil standard but lower than the criminal standard.

In Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 at [21] the Court of Appeal (Mason P, Giles JA and Hodgson JA at 1) observed that:

The position is further clarified by the terms of clause 2(2) which provides that the Court:

In State of NSW v Colin John Fisk [2009] NSWSC 778 Howie J said at [27] that the prediction the Court undertakes as to the risk of committing a further offence is concerned with the period in which it can make an order – i.e. a period of 5 years (citing Mason P in Tillman v Attorney-General for the State of NSW [2007] NSWCA 327; 70 NSWLR 448 at [8]).

The Court’s task at the preliminary hearing stage was stated by Johnson J in State of NSW v Manners [2008] NSWSC 1242 at [8] as follows:

The phrase “unacceptable risk” is not defined by the MHFP Act. In first instance decisions in New South Wales, a difference of opinion has emerged. The current position may be summarised as follows. In State of NSW v Thomas (Preliminary) [2011] NSWSC 118 R A Hulme J set out his preliminary view that an “unacceptable risk” is one where “the safety and protection of the community cannot be ensured unless an order is made” (at [20]). In his final decision in relation to the same application (State of NSW v Thomas (Final) [2011] NSWSC 308 at [28]) R A Hulme J indicated that the words “unacceptable risk” ought to be given their everyday meaning in the context of the provision in which they appear and having regard to the objects of the Act (at [58]). This approach has been followed by Fullerton J and McCallum J.

In contrast, Davies J has applied a “balancing exercise” approach which he took from two decisions of the Western Australian Court of Appeal (Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; 176 A Crim R 110 per Wheeler JA, with whom Le Miere AJA agreed) at [63]; Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; 198 A Crim R 149 at [27]). In this approach the test for “unacceptable risk” involves a balancing exercise of the following factors. First, the likelihood of committing a further serious offence; second, the gravity of such an offence; and third, the consequences of an order on the offender.

In State of NSW v Graeme Allan Reed (Preliminary) [2011] NSWSC 625 McCallum J noted the two approaches and cited the submissions of the State “that it may be appropriate to treat the interstate authorities (and implicitly the decision of Davies J to the extent his Honour relied upon those authorities) with caution”. Her Honour observed “the impact of an order on the offender is not a factor in the relevant balancing exercise, which focuses rather on the assessment of factors relevant to the content of the risk itself (such as the degree of risk and likely consequences if an offence is committed)” (at [15]). Otherwise her Honour did not consider that it was necessary to resolve the issue.

There are thus two approaches which have been taken by first instance decisions in NSW as to what factors the Court ought have regard to in considering what will constitute an “unacceptable risk”. The issue as to which of these approaches is correct remains to be resolved. I am of the opinion that the preferable approach is that adopted by R A Hulme J and I propose to apply it in this case.

At the time of the first extension order application, the Court was provided with expert assessment evidence from a psychiatrist, Dr Andrew Ellis, and a psychologist, Professor Susan Hayes.

Dr Ellis concluded that the defendant met the criteria (DSM 5) for intellectual disability. Dr Ellis said that the defendant’s level of function showed consistent requirements for assistance in literacy, life skills, problem solving and emotional regulation. He also identified an alcohol use disorder, but noted that in the defendant’s partially controlled environment, this disorder was in remission. He also noted that the defendant had been assessed at various times as suffering from a personality disorder and that there was sufficient information to conclude that he had adult anti-social personality traits.

In relation to ongoing risk factors for future offending, Dr Ellis stated:

Professor Hayes, who appears to have had a good rapport with the defendant, confirmed that he suffered from an intellectual disability citing performance on a number of psychometric tests to confirm this. In keeping with the opinion of Dr Ellis, she concluded that the defendant met three sets of DSM 5 criteria: intellectual disability, anti-social personality disorder and alcohol use disorder. Professor Hayes had additionally carried out risk assessments on the Static-99 test which showed that the defendant fell into the category of moderate-high risk (of sexual re-offending). Professor Hayes noted, however, that this instrument did not include populations of individuals with disabilities. She also noted that the static-2002R test had included a small sample of sex offenders with intellectual disabilities and that on that instrument the defendant was placed in the high risk category.

Professor Hayes assessed the defendant on an instrument specifically designed for assessing risk in intellectually disabled sex offenders, the ARMIDILO-S (Assessment and Risk Manageability of Individuals with Developmental and Intellectual Limitations who offend – sexually). She concluded that the defendant presented an overall convergent risk to a moderate level and identified a similar range of risk factors for future offences as set out by Dr Ellis. Overall, she was of the opinion that the defendant posed a moderate to high risk of causing serious harm to others which could be significantly reduced by risk management strategies.

There was evidence in the form of reports of personnel from New Horizons who provide some supervision for the defendant. He continues to live alone in the community in a house in Panania. To occupy himself he works on a car he is restoring and collects and sells scrap metal. He continues to receive supervision and support from a case manager from New Horizons as part of the Community Justice Program of no less than 35 hours per week. He remains subject to all of the other conditions attached to the order for his conditional release.

The most recent review under s46 of the MHFP Act occurred on 2 December 2014. On that occasion the Tribunal was satisfied that there were reasonable grounds for believing that the present arrangement for care, treatment and release of the defendant were necessary and sufficient for the protection of him from serious harm and for the protection of others from serious harm. The Tribunal did not vary any of the conditions already in place.

On behalf of the defendant, a number of reports have been obtained from a psychologist, Dr Seidler. Her most recent reports advise as follows:

For this preliminary application, two reports were obtained by the plaintiff from Dr Lennings, psychologist, dated 11 November 2014 and 17 February 2015. In the November 2014 report, Dr Lennings had this to say about “risk assessment”:

Dr Lennings set out his conclusions as follows:

Dr Lennings’ report of 17 February 2015 was based on a review by him of the records of New Horizons’ contact with the defendant between October 2014 and February 2015. Dr Lennings described the results of his documentary review as follows:

On behalf of the defendant it was submitted that the following matters were of primary consideration:

It was submitted by reference to the reports of Dr Ellis, Dr Hayes and Dr Lennings that the defendant’s responses were not indicative of sexual deviancy or a desire to inflict violence or pain for his own enjoyment within a sexual context.

It was submitted that the risk of the commission of further sexual offences or the infliction of sexual violence was low, given the relatively low level of supervision which the defendant was receiving. It was submitted that since 10 January 2014 he was receiving 35 hours of supervision per week, between the hours of 8.30am and 2.30pm Monday to Friday. He was not monitored at night or on weekends. The supervision provided does not include treatment by psychiatrists or psychologists but by intellectual disability health workers. It was submitted that the extent of the supervision was effectively to drive the defendant around to medical appointments and to assist him collect scrap metal. It was submitted that the supervision by New Horizons provides no other value than a regular structure for the defendant.

In relation to the risk of further serious offences or harm occurring generally, it was submitted that Dr Lennings’ conclusion as to supervision was incorrect. It was submitted that Dr Lennings’ conclusion was based on the assumption that if an extension order was not continued, the defendant would lose the structure and support that has been carefully built around him. It was submitted that even without the assistance of New Horizons, the defendant retained strong family support, particularly from his sister. There was an offer of support from his brother David who lives at Young.

It was submitted that should an extension order not be made, the defendant would not lose the support of the Community Justice Program, which could continue to provide services for him. It was submitted that the extent of that supervision at the present time was modest and principally involved providing transportation.

It was submitted that, if without supervision the prospects of the defendant relapsing into further serious offences or the commission of harm was low, the NSW Trustee and Guardian as the financial manager of his affairs would reduce the amount of alcohol and drug consumption available to him. It was submitted that the bulk of medical opinion was to the effect that no further psychological treatment was required by the defendant.

In summary, the submissions put on behalf of the defendant were:

In having regard to the requirements of the MHFP Act, and in particular Schedule 1, it needs to be kept in mind that the task of the Court is not to weigh up the documentation or to predict the ultimate result, but to consider the material globally and be satisfied on a prima facie basis that the relevant matters have been established. The submissions on behalf of the defendant are more appropriate to a final order rather than to a preliminary hearing.

By reference to Clause 7(2) matters, the safety of the community remains an important consideration. This is the first stated object of Part 5 of the MHFP Act. A matter which supports the making of the order sought by the plaintiff is the defendant’s criminal history involving as it does episodes of violence. While there is no evidence of sexual deviancy, the defendant’s relatively good behaviour since his release into the community is adequately explained by the very caring supervision of the New Horizons personnel who perform a function which goes far beyond that of the provision of transportation. They not only provide structure to the defendant’s life, but companionship which would be otherwise lacking. As appears from their reports, they are also able to divert the defendant from potential episodes of aggression.

The medical evidence, at least insofar as the preliminary hearing is concerned, is all one way. While the psychologists and psychiatrists have not identified any propensity towards sexual offending, all have confirmed the need for continuing supervision to prevent a lapse into alcohol and other substance abuse with consequent episodes of violence. The recent reports of Dr Lennings consistently emphasise that fact. He is blunt in his assessment that without the current level of supervision, the risk of the defendant relapsing into violent conduct is high.

The assessment of the medical practitioners is consistent with the various decisions of the Tribunal, to which reference has been made elsewhere in this judgment.

There is nothing in the orders sought by the plaintiff which runs counter to the judgment of Garling J when imposing the existing extension order (Attorney General of NSW v McGuire (No 2)).

Not only the medical evidence, but also the regular reports of the New Horizons personnel, make it clear that it is their presence and their ability to distract or divert the defendant from aggressive behaviour which have played a significant part in preventing offending during the operation of the current extension order. There is nothing in the reports of Dr Seidler to contrary effect.

It is not without significance that the following issues have arisen from time to time since the defendant was released into the community:

It follows that I am satisfied to the standard relevant to a preliminary hearing, that the requirements of Clause 7(2) of Schedule 1 have been made out by the plaintiff.

Given the complexity of the material which is before the Court, and which will form part of the matters to be considered at the final hearing, I have concluded that it is appropriate to appoint two health professionals to examine the defendant and to provide a report. I am also satisfied that the existing extension order, to which the defendant is subject, will expire before the proceedings are determined.

For the purpose of the preliminary hearing, I am satisfied to a high degree of probability, that the defendant poses an unacceptable risk of causing serious harm if he ceases to be a forensic patient for the following reasons.

I am also satisfied on the basis of the material above to a high degree of probability, that the risk which has been identified cannot be adequately managed by other less restrictive means. While there has been some (albeit sparse) evidence of voluntary assistance which can be provided to the defendant should supervision cease, I am not persuaded that the defendant would participate in any voluntary programs. The effect of the evidence is that it is the punitive element which ensures his compliance with supervision and the conditions which have been imposed on his liberty.

For the above reasons, I make the following orders which have been agreed between the parties.