NSW Minister for Mental Health v Paciocco (No 3) (Final)

1. [1]

   The defendant has been a forensic patient since he was found unfit to plead and to stand trial on 20 April 2015 by Flannery DCJ. The offences for which he was found unfit to plead were one count of reckless wounding and one count of assault police officer in the execution of his duty.

2. [2]

   On 20 July 2016 following a special hearing, Jeffreys DCJ found the defendant guilty of the offences, and on 8 September 2016 his Honour nominated a limiting term of two years and six months which commenced on 20 April 2014 and expired on 19 October 2016.

3. [3]

   Since that time final orders have been made on three occasions extending the defendant’s status as a forensic patient pursuant to the Mental Health (Forensic Provisions) Act 1990 (NSW): Minister for Mental Health v Paciocco [2017] NSWSC 4; NSW Minister for Mental Health v Paciocco (No. 2) [2018] NSWSC 866 (Paciocco (No 2)); Minister for Mental Health v Paciocco (Final) [2020] NSWSC 205 (Pacciocco (Final)). An interim extension order was made by Rothman J on 28 February 2023 which extended the defendant’s status as a forensic patient to 11 June 2023: NSW Minister for Mental Health v Paciocco (Preliminary) [2023] NSWSC 154.

4. [4]

   Pursuant to the summons in respect of which the interim order was made by Rothman J, the plaintiff now seeks an extension of the defendant’s status as a forensic patient for a further five years. The defendant does not oppose the extension but submits that it should be for a period of four years. Notwithstanding the concession by the defendant, the Court must be independently satisfied that the requirements to extend the defendant’s status have been met.

Legislation

1. [5]

   The Act now governing the matter is the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (No 12) (NSW). The provisions governing extension of status as a forensic patient are found within Pt 6 of that Act. Section 122 provides that a forensic patient can be made the subject of an extension order if and only if the Supreme Court is satisfied to a high degree of probability that:

2. [6]

   Section 124 enables an application to be made only if the forensic patient is subject to a limiting term or an existing extension order and the application is made not more than six months before the end of the forensic patient’s limiting term or the expiry of the existing extension order. Those requirements are satisfied, because the summons was filed on 7 December 2022 and the defendant was subject to an existing extension order which expired on 12 March 2023.

3. [7]

   Section 125 provides:

4. [8]

   Section 127(2) provides that the Court must have regard to the following matters in addition to any other matter it considers relevant:

Background

1. [9]

   Extensive details concerning the defendant’s background, offending, and diagnoses have been set out in the earlier judgments to which I have referred, and do not need to be repeated. It is sufficient to set out what was said by Rothman J in his reasons for making an interim order extending the defendant’s status as a forensic patient on 28 February 2023 as follows:

2. [10]

   The index offences occurred on 20 April 2014. On that day, the defendant was at the intersection of Pyrmont Bridge Road and Parramatta Road in Camperdown, when he pulled a Swiss Army knife on two strangers who were waiting for a taxi. He stabbed the female victim and chased the male victim down the road. Both of the victims fled into the nearby 7-Eleven store. When police arrived, he tried to strike one of the officers with his crutches. When he was charged with the offences he admitted to having indulged in drugs and alcohol in the days prior to the offending, and also to overdosing on clozapine on the night before the offences occurred.

The Court’s view when the limiting term was imposed (s 127(2)(h))

1. [11]

   The sentencing judge considered that the offence of wounding with intent to cause grievous bodily harm fell within the lower end of the mid-range of objective seriousness and the offence of assaulting a police officer in the execution of his duty was at the bottom of the low range of objective seriousness. The judge noted that the defendant had been known to the mental health services of Sydney from his late teens, and his primary diagnosis was paranoid schizophrenia. His Honour noted that the accused had a history of poor impulse control with low frustration tolerance levels. He was prone to aggressive outbursts, often with little provocation directed at both himself and others. He had great difficulty in reasonably and rationally dealing with matters, and at times his mind was greatly impaired. His Honour noted that the medical material before him showed that the defendant’s condition was chronic in nature.

The defendant’s diagnosis

1. [12]

   In Paciocco (No 2) at [24] I set out a summary from the judgment of Campbell J (when he made an extension order on 16 January 2017) concerning the defendant’s acts of violence in the community and whilst he had been in custody.

2. [13]

   I also set out portions of reports from Dr Kerri Eagle, Dr Jonathan Adams, Associate Professor John Basson, Dr Kirsty MacDonald and Dr Andrew Ellis. Subsequently, in Paciocco (Final) Beech-Jones CJ at CL set out extracts from later reports of Dr Kerri Eagle and Associate Professor John Basson as well as a report from Dr Adam Martin. A Risk Assessment Report (RAR) was prepared by Dr Gordon Elliott dated 22 August 2022 and reports have been prepared by the appointed experts, Dr Sathish Dayalan and Dr Jeremy O’Dea.

3. [14]

   All of those doctors have at various times diagnosed the defendant as suffering from schizophrenia or, as a differential diagnosis, a schizoaffective disorder (the former diagnosis is the preferred one by most of the doctors). Both Dr Dayalan and Dr O’Dea were also of the opinion that the defendant had borderline intellectual functioning or impairment, and substance abuse, albeit, that condition was in remission in the controlled environment where the defendant was detained. The defendant has also been diagnosed with ADHD from childhood. A comparison between the earlier reports referred to and the reports of the recently engaged doctors discloses the intractable nature of the defendant’s condition.

Mental Health Review Tribunal (s 127(2)(e))

1. [15]

   The latest available report from the Mental Health Review Tribunal (MHRT) is dated 1 December 2022. The Tribunal noted that neither the defendant nor his treating team had asked the Tribunal to consider changing the current order, and the Tribunal did not do so.

2. [16]

   The MHRT noted a treating team report which provided that the defendant had a number of episodes of verbal and physical aggression during the previous six months. It included aggression directed towards a nurse of Asian appearance, and an attempt to slap his then treating psychiatrist, Dr Reznik, on the face. The report also noted that although the defendant had been on a maximal dosage of psychotropic medication for some years, his underlying behaviours had changed little.

3. [17]

   On the positive side, the MHRT noted that the defendant had asked for more books to read, that he had been attending a TAFE course, and had been engaging well in art therapy. Nevertheless, the MHRT noted that the defendant’s assessment demonstrated a high loading of static/historical risk factors. Then current clinical risk factors were problems with violent ideation or intents, symptoms of major mental illness, instability and treatment or supervision response. The authors of the assessment opined that in a less controlled environment, there would be a significant risk of deterioration in his mental state secondary to stress, lack of supports and possible substance abuse, which might lead to a heightened risk of violence.

4. [18]

   The Tribunal noted that the defendant engaged well with the Tribunal, but he appeared to lack a nuanced appreciation of the concerns about his behavioural issues. The Tribunal said that the defendant’s complex mental health and physical needs were currently best met in the Forensic Hospital.

Report from psychiatrist (s 125(b)) and reports from appointed specialists (s 126(5))

1. [19]

   In his RAR, Dr Elliott considered that the defendant fell into a group of offenders considered high risk for violent recidivism. He said that the defendant was resistant to progress through the forensic pathway and continued to display aggressive behaviour. Dr Ellliott considered that if the defendant relapsed into alcohol or cannabis use, or the use of other illicit substances, that would markedly increase his risk of violent recidivism.

2. [20]

   Both Dr Dayalan and Dr O’Dea considered that the defendant was a risk of serious harm to others.

3. [21]

   In his report, Dr Dayalan noted a number of incidents of violence by the defendant directed at staff and patients of the premises where he is being detained. These incidents are consistent with many of those set out by Campbell J in his judgment and which I summarised in Paciocco (No 2) at [24].

4. [22]

   In relation to the risk presented by the defendant, Dr Dayalan said this:

5. [23]

   In relation to risk, Dr O’Dea said:

6. [24]

   In his RAR, Dr Elliott said:

7. [25]

   Dr Elliott reiterated that view in a supplementary report of 24 October 2022.

8. [26]

   Dr Dayalan said this:

9. [27]

   Dr O’Dea said:

Determination

1. [28]

   Having regard to the earlier judgments in relation to the defendant, to the RAR by Dr Elliott and to the reports of Dr Dayalan and Dr O’Dea I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, and that the risk cannot be adequately managed by other less restrictive means. In relation to managing risk by other less restrictive means, I have had particular regard to what was said by Adamson J in Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 at [96]-[129], and to the summary of that analysis by Beech-Jones J in Minister for Mental Health v Paciocco [2016] NSWSC 1530 at [61]-[65].

2. [29]

   It is apparent that the optimism expressed when I considered this matter in 2018 has not been borne out since that time. Although the defendant’s treatment by clozapine appears to have been beneficial to some extent, it does not appear to have stabilised the defendant in the way that had been hoped. The behaviours which he has manifested since that time, particularly to staff and other patients of the facilities, seems to me to be a further indication of the intractable nature of his schizophrenia. I note the opinion of the treating team in its report to the MHRT (above at [16]) that, despite the defendant being on a maximal dose of psychotropic medication, his underlying behaviours had changed little.

3. [30]

   I have also had regard to the Justice Health Records for 2023 which tend to support the conclusion that, overall, little has changed during the period the defendant has been detained.

The length of the order

1. [31]

   The plaintiff seeks an order for five years. The defendant submits that the appropriate duration is an order for four years.

2. [32]

   The defendant submitted that Dr Dayalan’s opinion was that a period of four years would be regarded as a minimum period to facilitate safe transition into the community. That was said to be on the basis that, provided the defendant makes further progress, he might be transferred to a medium secure unit in 12 months with an estimate of staying two to three years.

3. [33]

   The defendant submitted that although Dr O'Dea said that five years was the appropriate period for the order, Dr Dayalan’s opinion should be preferred for three reasons; first, because Dr Dayalan took into account a recent conversation with the defendant's treating psychiatrist on 13 April 2023 in which it was stated that the intended pathway was for the defendant to transition through the Elouera Unit and a medium secure unit before being placed into the community; secondly, that potential progress was supported by the details of the order sought contained in the MHRT Forensic Patient Review Notice of Intent; and thirdly, because Dr Dayalan was an employee of the Forensic Hospital.

4. [34]

   The defendant submitted that the progress notes from January to April 2023 show positive progression on the part of the defendant. Those matters were said to show that the defendant could be compliant and had the capacity to be “future-oriented” in his rehabilitation. In particular, the defendant’s attitude has changed from the time he spoke to Dr Elliott and he has now accepted progression to Elouera in a positive way.

5. [35]

   The defendant submitted that four years is an appropriate period on the basis that there is no bar to the plaintiff making a further application for an extension order at the conclusion of the period if it is required.

6. [36]

   In my opinion, the order should be made for a period of five years. There are a number of reasons for that conclusion.

7. [37]

   First, Dr Dayalan’s statement that four years would be regarded as a minimum period must be read in its context. Dr Dayalan said:

8. [38]

   Dr Dayalan’s view that he “may” be transferred to a medium secure unit in 12 months is put on the basis that the defendant makes further progress and his response to treatment. An examination of the defendant’s response to treatment provides little hope of a significant improvement within a 12 month period to enable a transfer to a medium secure unit by that time. I have referred already to the unsatisfied optimism of those responsible for his treatment in 2018 and, indeed, in this Court’s assessment based on the material available to it - I say that without any criticism because at the time there was some evidence to support that optimism.

9. [39]

   It is not without significance that in 2018 the order was made for an 18 month’ period, but when the matter came back before the Court in early 2020 an order was made for a three year period, seemingly on the basis that there had not been much, if any, change in the defendant’s condition and his response to treatment.

10. [40]

    Ms Khalilizadeh of counsel for the defendant submitted that this was not a case that was without hope. That may be so, but it is a case where experience must take precedence over hope. From having examined the matter closely in 2018 and again at the present time, the evidence appears to me to highlight the intractable nature of the defendant’s condition, and I see little change overall in his behaviour in terms of his expression of aggression and violence towards other people. I am not at all confident that the defendant would be transferred to a medium secure unit within 12 months based on what I perceive to be the lack of progress overall that the defendant has made since he first became a forensic patient.

11. [41]

    Secondly, it may be accepted that there have been positive responses and behaviour from the defendant on the various occasions highlighted in the submissions prepared on his behalf. However, those occasions do not appear to have resulted in any real progress overall as far as the defendant’s behaviour is concerned. He has continued to act aggressively towards staff and other patients as disclosed in the various reports of Dr Elliott, Dr Dayalan and Dr O’Dea. Further, the defendant’s overall attitude appears from the way he dealt with the experts who examined him. Dr O’Dea said:

12. [42]

    Dr Elliott said:

13. [43]

    Thirdly, he told Dr Dayalan a number of times during his assessment that he would reoffend if he was discharged into the community. He reported feeling safer in the hospital and said that if released he would “probably end up doing the same thing eventually”, and his next victim would be a male. He also told Dr O’Dea that he did not want to be in the community and that he might do the same thing again.

14. [44]

    Fourthly, remaining as a forensic patient does not mean that the defendant cannot be eased into the community if that is found by the MHRT to be appropriate. That was the flexibility that Beech-Jones J was speaking of in Paciocco (Final) at [41]. The treating team is clearly looking at progress on a step-down basis; I note in that regard The Notice of Intent for the next assessment to be made by the MHRT on 15 June 2023.

15. [45]

    It will take some time before the defendant is at the stage of being conditionally released into the community, given that he has been detained at a high level of security now for about nine years without a great deal of improvement in his overall behaviour. Dr Dayalan said that the minimum period for a safe transition into the community would be four years. Further time would then be needed to stabilise him while he remains in the community after such a long period under the restrictive conditions he has lived for the past 9 years and the further years in medium security before he is so conditionally released. His position is not dissimilar to a prisoner who has become institutionalised, with all the difficulties that obtain when such a person obtains their freedom. But it is more difficult in this case because he will never be free from the schizophrenia that is the source of his behavioural issues. On the basis of the material before me, I consider that the defendant will need the close supervision accorded by being a forensic patient for some years when and if he is conditionally released.

16. [46]

    Finally, I note the terms of s 133 of the Act which enables the Court to vary or revoke an extension order (inter alia) on the recommendation of the MHRT. In the event of a significant improvement in the defendant’s condition that might justify his being supervised under less restrictive means, I have no doubt that the MHRT would take appropriate steps under this provision.

Conclusion

1. [47]

   I make the following order: