Attorney General of New South Wales v Randall (Preliminary) [2023] NSWSC 226

1. [1]

   By summons, filed on 13 December 2022, the Attorney General for New South Wales (plaintiff) seeks a further order against Mr Raymond Randall (defendant) to extend his status as a forensic patient, pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act or the Act).

2. [2]

   The defendant does not oppose the orders sought in prayers 1(a), 1(b), 2 and 4 of the summons, namely:

3. [3]

   The defendant opposes the application sought in prayer 3 of the summons, namely, that the defendant be subject to an order for the extension of his status as a forensic patient for a period of two years from the date of the order. That is not a matter I have to decide on this application. The application before me is limited to an interim order for an extension of the defendant’s status as a forensic patient for a period of three months, commencing at midnight, on 24 March 2023, and the appointment of relevant experts to furnish reports to the Supreme Court. The interim order is not opposed. However, it is incumbent upon me to be satisfied that an interim order is necessary. The Court must be satisfied that the matters alleged in the supporting documentation would, if approved, justify the making of an extension order. The plaintiff bears the onus of proof and persuasion to a high degree of probability. [1]

Background

1. [4]

   In 2019, at the age of 59, the defendant was charged with one count of reckless wounding and one count of wound person with intent to cause grievous bodily harm. He was taken into custody on 6 March 2019. On 10 December 2019, Mr Randall was found unfit to be tried and was referred to the Mental Health Tribunal (Tribunal) under s 14(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act) (now repealed).

2. [5]

   On 13 December 2019, the Tribunal found the defendant unfit, but adjourned the question as to whether he would become fit and ordered his transfer to and detention at Long Bay Hospital within the Long Bay Correctional Complex. [2] On 19 June 2020, the Tribunal determined that the defendant remained unfit and would not become fit to be tried within 12 months. [3]

3. [6]

   On 2 September 2020, Baly SC DCJ conducted a special hearing under the MHFP Act and determined that Mr Randall had committed, on the limited evidence available, the offence of reckless wounding, but was found to be not guilty to the offence of wounding with intent to cause grievous bodily harm. [4] On 2 September 2020, her Honour sentenced Mr Randall to a limiting term of one year and 10 months, commencing on 6 March 2019 and expiring on 5 January 2021. He, consequently, became a forensic patient.

4. [7]

   In her remarks on sentence, her Honour took into account the fact that the offence was a serious assault upon the victim involving the use of a knife as an aggravating factor, but also took into account that:

5. [8]

   Her Honour then referred Mr Randall to the Tribunal to be detained at a mental health facility for the duration of the limiting term. On 20 January 2021, he was transferred from prison to the Forensic Hospital at Malabar. On 1 February 2021, Baly SC DCJ made an order for Mr Randall to be detained at a mental health facility. [6]

6. [9]

   On 16 December 2020, following the preliminary hearing of the Attorney General’s application for an extension order, Button J made orders appointing two experts to examine Mr Randall and furnish their reports to the Court. [7] In making that order, his Honour noted the following:

7. [10]

   On 25 March 2021, following the final hearing of the Attorney General’s application, Johnson J made an order for the extension of Mr Randall’s status as a forensic patient for a period of two years, commencing on 24 March 2021 and expiring on 24 March 2023 [14] . In making that order, his Honour noted:

Legislative Framework

1. [11]

   Section 121 of the MHCIFP Act empowers the Supreme Court to extend a person’s status as a forensic patient. A Minister administering the Act may make an application for an extension order where the forensic patient is subject to either a limiting term, or an existing extension order: see s 124(1).

2. [12]

   The objects of the Act enshrined in s 69 are relevant in that they pertain to the care supervision and treatment of forensic patients. They are as follows:

   1. (1)

      to protect the safety of members of the public;

   2. (2)

      to provide for the care, treatment, and control of persons subject to criminal proceedings who have a mental health impairment or cognitive impairment;

   3. (3)

      to facilitate the care, treatment, and control of any of those persons in correctional centres or detention centres through Community Treatment Orders (CTOs);

   4. (4)

      to facilitate the provision of hospital care, or care in the community through CTOs, for any of those persons who require involuntary treatment;

   5. (5)

      to give an opportunity for those persons to have access to appropriate care; and

   6. (6)

      to protect the safety of victims of forensic patients and acknowledge the harm done to victims.

3. [13]

   Section 122 sets out the test for when an extension order of a person’s status as a forensic patient may be made:

4. [14]

   The application is to be determined in accordance with Division 3 of the Act:

5. [15]

   The Court’s power to make an extension order is discretionary. Section 127(1) of the MHCIFP Act provides that the Supreme Court may determine an application to extend a person’s status as a forensic patient by making the order, or by dismissing the application. If an order is made, it may be for a period not extending five years from the day on which it commences: see s 128(1)(b). Nothing prevents the Supreme Court from making a subsequent extension order against the same forensic patient: see s 129.

6. [16]

   Section 127(2) (as set out above) lists a number of matters that the Court must have regard to in determining whether or not to make an extension order. I note that this list is non-exhaustive, and the Court may also have regard to “any other matter it considers relevant”. I now address the relevant matters in s 127(2) of the Act. It should be noted that the structure and language of the regime has direct parables with the Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act).

Unacceptable Risk Test

1. [17]

   The determination of this application turns on whether the offender poses an “unacceptable risk of causing serious harm to others”, and that risk cannot be adequately managed by less restrictive means. The Court must be satisfied of this to a “high degree of probability”.

2. [18]

   The term “to a high degree of probability” has been held to indicate a higher standard of proof than the normal civil standard, although it requires less than the criminal standard of beyond reasonable doubt. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374, the Court of Appeal observed at [21]:

3. [19]

   It is also appropriate to note the effect of the words “if and only if” in s 122(1). That section provides that a forensic patient can be made the subject of an order extending their status as a forensic patient “if and only if the Supreme Court is satisfied to a high degree of probability” of certain matters. McClellan CJ at CL stated in Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [34] that those words:

4. [20]

   At present, the legislation does not define the term “unacceptable risk”. However, the term has been held to have the same meaning under the MHCIPF Act as it does under the CHRO Act. Some insight into the term is provided by s 5D of the CHRO Act, namely, that in determining risk:

5. [21]

   The expression “unacceptable risk” is to be understood according to its everyday meaning in the context of s 5B(d) and having regard to the objects of the CHRO Act: see Lynn v State of New South Wales (2016) 91 NSWLR 636 (Lynn). Basten JA in Lynn held at [126] that:

6. [22]

   The meaning of an “unacceptable risk” in s 5B(d) and the principles which are to be applied were summarised by Hoeben CJ at CL in State of New South Wales v Holschier (No. 2) [2018] NSWSC 1921 at [23] as follows:

7. [23]

   Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 observed at [71] that: “unacceptability of risk involves consideration of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate”: see also State of New South Wales v Chaplin [2019] NSWSC 471 at [15].

8. [24]

   In State of New South Wales v Loto [2018] NSWSC 1522, Rothman J noted at [14]-[17] that there is a “matrix of considerations” relevant to the risk assessment, and two important matters are “the probability or possibility that the risk will manifest” and “the seriousness of the harm that will ensure if the risk were to manifest.” It is possible that a risk is unacceptable because of the severity of the harm that would be caused by its eventuation rather than because of its likelihood: see State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73]; State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43].

9. [25]

   The determination of whether there is an unacceptable risk is a discretionary exercise. I must make an assessment based on the likelihood of a risk eventuating and the potential consequences if it does eventuate.

10. [26]

    It is apt to note that the right of an offender to his or her personal liberty at the expiry of their sentence is not a relevant consideration in the determination of whether a person poses an “unacceptable risk”. However, consideration of an offender’s circumstances, including the offender’s right to liberty and privacy, may influence the ultimate exercise of discretion as to whether or not to make an order: see Lynn at [44] per Beazley P at [131] and per Basten JA at [149].

11. [27]

    The meaning of “serious harm” has also been considered by this Court extensively. RA Hulme J in Attorney-General (NSW) v Kereopa (No 2) [2017] NSWSC 928 at [16] said that “serious harm” could concern either physical or psychological harm. His Honour accepted the submission that in the event that the harm is physical, it does not have to satisfy the threshold of “grievous bodily harm” but must be more than “actual bodily harm”, while if the harm is psychological, it must be “something more than emotions such as fear or panic”.

12. [28]

    Section 122(1)(b) of the MHCIFP Act requires that the Court consider whether the defendant’s risk to the community may be managed by “less restrictive means”. The plaintiff bears the onus of proving the risk cannot be managed by less restrictive means. This must also be proved to a high degree of probability.

13. [29]

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

14. [30]

    His Honour further noted, at [64]:

15. [31]

    In making this assessment, I will need to consider alternative orders that could be made under the Mental Health Act or the Guardianship Act 1987 (NSW) (Guardianship Act).

16. [32]

    Justice Adamson, in Attorney-General (NSW) v Doolan (by his tutor Jennifer Thompson (No 2)) [2016] NSWSC 107 noted at [96]:

17. [33]

    Her Honour recognised that one such “less restrictive means” of managing the defendant’s risk is their classification as an involuntary patient under the Mental Health Act. Her Honour noted four key differences between the regime that deals with forensic patients and the (less restrictive) regime that deals with involuntary patients. They are as follows:

    1. (1)

       Detention: Forensic patients remain in detention unless certain criteria for release are satisfied, while involuntary patients are not detained unless they are mentally ill or mentally disordered in which case the maximum period of detention is three months following an inquiry (see [109]-[110]);

    2. (2)

       Release from detention: A forensic patient cannot be released without an independent expert risk assessment report, while an involuntary patient must be discharged by the Tribunal “if no longer satisfied on the balance of probabilities that the patient is mentally ill”. No independent risk assessment report is required (see [111]-[113]);

    3. (3)

       Imposition of conditions while patient is living in the community: The Tribunal may impose conditions for a forensic patients’ accommodation, treatment, medication, conduct, case management, and drug-testing, while CTOs for involuntary patients (outlined in more detail below) relate only to the person’s treatment (see [114]-[116]);

    4. (4)

       Consequences of breach of conditions: If a forensic patient breaches a condition of their release, they can be recalled and detained by the Tribunal, while involuntary patients are subject to the oversight of the director of community treatment at the relevant mental health facility (see [117]-[118]).

18. [34]

    Therefore, it is apt for me to consider a CTO as an alternative means of managing the risk of serious harm Mr Randall poses. A CTO is an order made under s 51 of the Mental Health Act authorising the compulsory treatment of a person. Section 53 provides for the circumstances in which a CTO may be made:

19. [35]

    The form and duration of a CTO is provided for in s 56 of the Mental Health Act:

20. [36]

    A person subject to a CTO is required to comply with that order (s 57(1)). The Director of Community Treatment for the declared mental health facility which is implementing a treatment plan under a CTO is also empowered to take all reasonable steps to ensure that medication is administered, and services are provided in accordance with the order, including without the consent of the affected person (s 57(2) and (3)).

21. [37]

    Section 58 of the Mental Health Act deals with breaches of a CTO and s 59 authorises that the Director of Community Treatment to request police assistance in the event that the CTO is breached.

22. [38]

    Another “less restrictive” means of addressing a person’s risk to the community is through the appointment of a Guardian by the New South Wales Civil and Administrative Tribunal (NCAT) under the Guardianship Act.

23. [39]

    Dr Eagle assessed Mr Randall at the Forensic Hospital on 29 July 2022. Dr Eagle also assessed Mr Randall in 2020, as part of the Attorney General’s first application for an extension order. Dr Eagle opined that Mr Randall has schizoaffective disorder which has been resistant to treatment. She states that this is a chronic psychotic illness and neurodevelopmental disorder. Mr Randall was being treated with antipsychotic and mood stabilising medications. His symptoms include psychosis, which encapsulates “thought disorder, grandiose and persecutory delusions, negative symptoms and functional impairment”, with reports of manic symptoms during relapses. [19]

24. [40]

    Dr Eagle notes that Mr Randall’s “compliance with treatment has not been effectively managed in the community, even with the benefit of a CTO” and that “attempts to enforce compliance have frequently required police assistance and revocation resulted in highly volatile siege type situations involving a knife on multiple occasions”. [20]

25. [41]

    Dr Eagle states that Mr Randall may have a substance use disorder in remission in a controlled environment, having previously used cannabis and alcohol. He also appears to have major neurocognitive disorder with evidence of cognitive decline that is not entirely explained by his mental illness, but which interferes with his independence in everyday activities. Dr Eagle also believes that Mr Randall has adult antisocial personality traits. [21]

26. [42]

    Dr Eagle identified that Mr Randall has a moderate to high loading of historical risk factors for future violence and identified a number of clinical risk factors that Mr Randall has displayed over the last six months. [22] These behaviours have included ongoing problems with insight into his mental illness and offending; active symptoms of a major mental disorder; and some persistent problems with treatment or supervision response.

27. [43]

    In terms of future risk management, Dr Eagle acknowledges that Mr Randall’s treating team has developed a carefully considered plan for him to transition from the Forensic Hospital into supported accommodation in the community with mental health support. However, she still identified several potential future problems with his risk management in the community, including:

28. [44]

    Dr Eagle opines that given Mr Randall’s current presentation, he does pose a risk of causing serious harm to others if he ceases to be a forensic patient, with the greatest risk being during his transition out of the community. [28] Dr Eagle recommends that “the least restrictive form of safe and effective management of Mr Randall’s risk of harm would be for the forensic order to continue as he transitions into the community”. [29]

29. [45]

    Dr Jonah Willing and Dr Anna Farrar prepared a report for the Tribunal, dated 16 November 2020. Mr Randall was assessed using the Montreal Cognitive Assessment tool. He scored 12 out of 30, representing a significant impairment including in the areas of executive function and memory.

30. [46]

    Using the HCR-20v3 risk assessment tool, Mr Randall’s treating team concluded that he had a high loading of historical risk factors for future violence, a moderate to high loading dynamic risk factors for future violence, and that he fell into a group of people of high concern with respect to future episodes of violence.

31. [47]

    Ms Demetz assessed the level of care and support that Mr Randall needs. She concluded that he required nursing care, surveillance with severe behavioural and cognitive disability, and assistance and or supervision with basic activities of daily living.

32. [48]

    The authors states that Mr Randall continued to have “persistent paranoid delusions against the victim of the index offence. He remained fixated that the victim had stolen his belongings and that he was left with no choice but to confront him violently”.

33. [49]

    Since receiving treatment in the highly supervised environment of the Forensic Hospital, Mr Randall was compliant with medications and his “violent ideation and instability have been partially ameliorated”. [30] The treating team recommended that Mr Randall required “a further period of treatment in the current inpatient setting to further stabilise his psychotic illness” after which he would benefit from “having stable supported accommodation, where adherence to medications can be supervised” with the support of the community mental health services and the National Disability Insurance Scheme (NDIS). [31]

34. [50]

    Mr Randall remained un-fit. It was concluded that Mr Randall’s safety and that of the public may be severely endangered if he was to be released into the community at this time, and that his placement in the Forensic Hospital represented the least restrictive option for his safe and effective care. [32]

35. [51]

    Mr Randall underwent a cognitive assessment in March 2021 which revealed that his general cognitive functioning was in the ‘Extremely Low’ range, and below what is expected for his diagnosis of schizophrenia, indicating severe memory impairment. He also underwent an MRI brain scan on 31 May 2021 which showed “mild generalised cerebral atrophy but no significant intracranial abnormality”. [33]

36. [52]

    It was noted that Mr Randall was verbally aggressive to staff on 15 May 2021 in connection with receiving his depot injection. His delusional beliefs about the victim of the index offence continued at that time. The authors of the report confirmed that “the safety of Mr Randall and/or public would be severely endangered by his release” and that “there is no less restrictive placement option available that is consistent with safe and effective care at this time”. [34]

37. [53]

    The report was prepared for the Tribunal. At the time of its preparation, Mr Randall remained “actively psychotic, although was not troubled by these symptoms. He displayed little insight into his mental illness or offending behaviour”. [35]

38. [54]

    Dr MacDonald also noted that the treating team had identified suitable accommodation for Mr Randall to transfer to in Mittagong. He was well known to the Bowral Community Mental Health Team and his family were supportive of the proposed NDIS plan. Although escorted leave from the Forensic Hospital to the accommodation being sought, ultimately Dr MacDonald stated that “the safety of Mr Randall and/or the public would be seriously endangered by his release” and that “there is no less restrictive placement option available that is consistent with safe and effective care at this time”. [36]

39. [55]

    Dr MacDonald also prepared a report, dated 7 August 2022, in which she states that Mr Randall remained “actively psychotic”. She noted, however, that Mr Randall had had four episodes of escorted leave to the nominated accommodation and around Malabar where he “had been adherent with directions and there have been no management concerns”. It remained Dr MacDonald’s opinion at that time that “the safety of Mr Randall and/or the public would be seriously endangered by his release” and that “there is no less restrictive placement option available that is consistent with safe and effective care at this time”. [37]

40. [56]

    A summary of the orders made by the Tribunal is helpfully set out in the plaintiff’s written submissions. [38] Mr Randall was reviewed on 11 August 2022. On 18 August 2022, the Tribunal ordered that he be detained at the Forensic Hospital but granted him both escorted and supervised leave. In its reasons dated 12 September 2022, the Tribunal noted that Mr Randall has been assessed as suitable for a NDIS package and that the treating team had located accommodation for him in Mittagong, and that it proposed escorted day leave and supervised leave “to gradually introduce Mr Randall to home caring staff”. [39] The Tribunal confirmed that Mr Randall remained unfit. [40]

41. [57]

    The material presently before the Court suggests that Mr Randall will be eligible for a CTO if he ceases to be a forensic patient, and the Bowral Community Mental Health Service have indicated they would provide case management services for his ongoing treatment. A NDIS package has been prepared and has the support of Mr Randall’s family.

42. [58]

    During the course of today’s proceedings, the Court was informed that one of the developments has been that the Tribunal has granted the defendant supervised overnight leave at the Mittagong accommodation. He spent four nights there between 6 February 2023 and 10 February 2023. In the week commencing 6 March 2023, he spent five nights at the Mittagong accommodation.

43. [59]

    There is an application before the Tribunal tomorrow for conditional release. At this stage, it is uncertain as to what orders will be made by the Tribunal and when they will commence.

44. [60]

    Although a community treatment plan is being prepared, I am satisfied, at this stage, and on the material before me, that the orders sought are necessary. The evidence establishes that Mr Randall requires a more assertive approach to his treatment that only the granting of an extension order can provide to ensure the necessary oversight.

Conclusion

1. [61]

   The task for this Court is an evaluative one, to be undertaken in the overall context of the primary objective of the MHCIFP Act. I am satisfied that Mr Randall poses an unacceptable risk of causing serious harm to others if his status as a forensic patient changes. Mr Randall’s past conduct includes a pattern of criminal offending. There is a gap in his criminal record between 2003 and 2019. However, in 2015 he threatened to pour petrol on the neighbour and set them alight, but was not charged.

2. [62]

   I have also had regard to the likelihood of Mr Randall reoffending if he was no longer a forensic patient, based on the assessment by Dr Eagle and the assessment of his treating team. The gravity of Mr Randall’s reoffending would be moderate to high, having regard to his recent episodes of violence.

3. [63]

   On the material before me on this application, I am satisfied to a high degree of probability that Mr Randall’s risk cannot be adequately managed by less restrictive means.

4. [64]

   Accordingly, I make the following orders:

   1. (1)

      Pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW):

   2. (2)

      Pursuant to ss 130 and 131 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), that the defendant is subject to an Interim Order for the extension of his status as a forensic patient, commencing at midnight, on 24 March 2023, for a period of three months.

   3. (3)

      The proceedings are listed in the High-Risk Offenders Callover List on 16 March 2023, at 9:30am.