Attorney General for New South Wales v Wright (by his tutor Johnson) (Preliminary)

1. [1]

   By a summons filed on 17 March 2022, the Attorney General for New South Wales, the plaintiff, sought orders under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act), in relation to the extension of the status of defendant, Mr Matthew Wright, as a forensic patient. Mr Wright appeared by his tutor, Dr Katherine Johnson.

2. [2]

   The orders sought included interim and ancillary relief by way of:

   1. (1)

      an interim extension order for three months, under ss 130 and 131 of the MHCIFP Act; and

   2. (2)

      an order for examinations, under s 126(5) of that Act.

3. [3]

   The matter came before the Court on 26 April 2022 for a preliminary hearing as to whether those interim and ancillary orders should be made.

Relevant statutory provisions

1. [4]

   The relevant statutory provisions are set out in the paragraphs which follow.

2. [5]

   The care, treatment and control of forensic patients, among others, are dealt with in Pt 5 of the MHCIFP Act. The extension of a person’s status as a forensic patient is governed by Pt 6 of that Act.

3. [6]

   The objects of Pt 5 of the MHCIFP Act are set out in s 69 in the following terms:

4. [7]

   A “forensic patient” is defined in s 72(1) of the Act as follows:

5. [8]

   There was no dispute that the defendant was and is a forensic patient within the meaning of par (b) of the definition of “forensic patient” in s 72(1), in that he is a person for whom a limiting term was nominated after a special hearing and who is detained in a mental health facility, correctional centre, detention centre or other place.

6. [9]

   The provisions of Pt 6 of the MHCIFP Act, which are relevant to the present application for an interim extension of the defendant’s status as a forensic patient and for orders for the examination of the defendant, include:

Prerequisites for the making of an application for an extension order

1. [10]

   It can be noted at this point that there was also no dispute that the prerequisites for the making of an application for an extension order were satisfied in the present case. In particular, it was accepted that:

   1. (1)

      the defendant is a forensic patient who is the subject of a limiting term, for the purposes of s 124(1) of the MHCIFP Act;

   2. (2)

      the application was supported by the relevant documentation and the report or reports, as referred to in s 125(a) and (b);

   3. (3)

      the requirements of s 126(1), (2) and (3) had been complied with; and

   4. (4)

      the existing limiting term to which the defendant is subject will expire before the proceedings are determined, within the meaning of s 130(a).

The preliminary hearing

1. [11]

   The principal issue at the preliminary hearing on 26 April 2022 was whether the Court was satisfied that “the matters alleged in the supporting documentation would, if proved, justify the making of an extension order”: ss 126(5) and 130(b) of the MHCIFP Act. If the Court is so satisfied, this has two consequences:

   1. (1)

      under s 126(5), the Court must make orders appointing two qualified psychiatrists, two registered psychologists, or two registered medical practitioners, or any combination of two such persons, to conduct separate examinations of the defendant and to furnish reports to the Court on the results of those examinations; and

   2. (2)

      under ss 130(b) and 131, the Court may make an interim extension order for up to three months, if the limiting term to which the defendant is subject will expire before the substantive proceedings are determined.

2. [12]

   The statutory provisions concerning preliminary hearings and interim orders under the MHCIFP Act are essentially the same as the previous provisions found s 54A and Sch 1 of in the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act) and do not differ in presently material respects from the provisions in the Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act) and cognate legislation concerning extended and interim supervision orders. Consequently, the authorities concerning the corresponding provisions of the MHFP Act and the CHRO Act are of substantial assistance in applying the provisions of the MHCIFP Act. Nonetheless, the different circumstances in which the MHCIFP Act operates and the different legislative regime which applies to forensic patients as opposed to high risk offenders must always be borne in mind.

3. [13]

   In considering the application of ss 126(5) and 130(b) of the MHCIFP Act in an application for interim and ancillary orders, the Court is required to address the question of whether “the matters alleged in the supporting documentation would, if proved, justify the making of an extension order”. Thus, it is necessary: to identify the “supporting documentation”; to identify what matters are alleged in that documentation; and to determine, on the assumption that those matters are proved, whether they would “justify” the making of an order extending the defendant’s status as a forensic patient.

4. [14]

   The words “supporting documentation” in ss 126(5) and 130(b) in both cases clearly refer back to the “documentation” mentioned in s 125. That latter section states, “[a]n application for an extension order [by the Attorney General] must be supported by documentation” that:

   1. (1)

      addresses each of the matters in referred to in s 127(2), to the extent relevant; and

   2. (2)

      includes a report from a psychiatrist, psychologist or medical practitioner assessing the risk of the forensic patient causing serious harm to others and the need for ongoing management and why the risk cannot be adequately managed by other less restrictive means.

5. [15]

   Thus, the “supporting documentation” is to be understood as referring to the documentation provided by the Attorney General in support of his application and does not include evidence provided by the defendant in opposition to the application for an interim order.

6. [16]

   The matters alleged in the supporting documentation, which are to be assumed to be proved for the purposes of ss 126(5) and 130(b), are the factual matters and the opinions on matters of fact set out in that documentation: Attorney General for New South Wales v Kapeen [2017] NSWSC 226 at [15] (Beech-Jones J).

7. [17]

   The general nature of the task to be undertaken for the purposes of ss 126(5) and 130(b) was considered by the Court of Appeal in relation to similar provisions in earlier high risk offender legislation in Attorney General for New South Wales v Tillman [2007] NSWCA 119 (Tillman). Mason P, Santow and Tobias JJA said at [98]:

8. [18]

   This approach is equally applicable in the present case. Accordingly, my task is not to weigh or assess the matters alleged in the documentation or to attempt to predict what would be the result on the final hearing of the matter. I am not required to consider what evidence might be called by the defendant at the final hearing or the evidence called by the defendant in relation to whether the discretion to make an interim extension order under s 130 should be exercised, if the power to make such an order is enlivened.

9. [19]

   Whether the making of an extension order would be “justified” depends, in part, upon s 122, which specifies when an extension order may be made. It also depends on the proper construction of “justify” in ss 126(5) and 130.

10. [20]

    Section 122 of the MHCIFP Act establishes that an extension order may be made if, and only if, the Court is satisfied to a high degree of probability that:

    1. (1)

       the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient; and

    2. (2)

       the risk cannot be adequately managed by other less restrictive means.

11. [21]

    It is well established that the expression “high degree of probability” indicates, in this context, that the existence of the risk in question must be proved to a higher degree than the normal civil standard of proof of “more probable than not”, but does not have to be proved to the criminal standard of “beyond reasonable doubt”: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]; State of New South Wales v Hackett (Preliminary) [2022] NSWSC 417 at [80] (N Adams J).

12. [22]

    Furthermore, in relation to the requirements of s 122(1), it is to be borne in mind that it is not necessary for the Court to be satisfied that the risk of a person causing serious harm to others is more likely than not, in order to determine that the risk posed by the person is unacceptable: s 122(2) of the MHCIFP Act.

13. [23]

    The “risk of causing serious harm to others” referred to in s 122(1)(a) involves consideration of both physical and psychological harm: Attorney General of New South Wales v Kereopa (No. 2) [2017] NSWSC 928 (Kereopa (No 2)) at [16] (R A Hulme J). As a matter of construction, whether such harm is “serious” within the meaning of s 122(1) will depend on whether it is such harm as should attract the operation of provisions of the MHCIFP Act given the objects, scope and terms of Pts 5 and 6 of that Act. In this context, it has been held in relation to physical harm, that “serious harm” does not require the harm to amount to “grievous bodily harm”, but it must be something more than would satisfy the minimum threshold for “actual bodily harm”, under the criminal law: Attorney General for New South Wales v Randall (Final) [2021] NSWSC 275 at [33] (Johnson J). In that case, it was noted that the threshold for “actual bodily harm” is relatively low and injury need not be permanent. It must, however, be more than merely transient or trifling, with bruises and scratches to a victim being typical examples of injuries which constitute “actual bodily harm”.

14. [24]

    The issue of whether the risk of causing serious harm to others is “unacceptable” within the meaning of s 122(1)(a) is to be judged according to the ordinary or everyday meaning of that term. The right of a person to his or her personal liberty at the expiry of a limiting term is not a relevant consideration in the determination of whether the person poses an unacceptable risk: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Lynn) at [44] (Beazley P), [127] (Basten JA) and [148] (Gleeson JA); Attorney-General for the State of New South Wales v McGuire by his tutor Thompson [2019] NSWSC 76 at [24] (Wright J).

15. [25]

    The nature and extent of the risk to the community is to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition and is to be based on an absence of protective measures, and the assessment of the risk should involve, to the extent that the evidence permits, a comparison with the background level of risk to the community from violent offenders: Lynn at [126].

16. [26]

    Consideration of whether the risk can be adequately managed by other less restrictive means, for the purposes of s 122(1)(b) involves an assessment of:

    1. (1)

       whether the means proposed are less restrictive; and

    2. (2)

       whether the less restrictive means adequately manage the risk.

17. [27]

    Whether means are more or less restrictive is to be judged by the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance: Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 (Doolan (No. 2)) at [96] (Adamson J); Attorney General for New South Wales v Randall (Final) [2021] NSWSC 275 at [73] (Johnson J).

18. [28]

    The note to s 122 of the MHCIFP Act states:

19. [29]

    In addition to being involuntarily detained or treated by way of a community treatment order, under the Mental Health Act 2007 (NSW), another means of managing the risk posed by forensic patient might be a Guardianship order made by the Civil and Administrative Tribunal of New South Wales under the Guardianship Act 1987 (NSW).

20. [30]

    Garling J considered the meaning of “adequately managed” in Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 at [63]–[64]:

21. [31]

    In making an assessment under s 122(1), the Court must have regard to the matters listed in s 127(2)(a) to (i) of the MHCIFP Act.

22. [32]

    The proper construction of “justify” in ss 126(5) and 130(b) is informed by consideration of what has been held in the context of high risk offender legislation where the same wording and structure are used in relation to the making of interim orders. In that context, it has been said that the words “would … justify the making” of a final order of the relevant type are to be construed as imposing a lower standard than that which applies to the making of the final order itself: State of New South Wales v Naaman (No 2) [2018] NSWCA 328 at [17] (Basten, Macfarlan and Leeming JJA). Given their function in determining whether an order for the examination of the defendant or a short-term interim order should be made, those words are properly construed as only requiring the Court to be satisfied that the making of a final order would be justified, in the sense of being reasonably open, in the light of the matters alleged in the supporting documentation, assuming those matters are proved: State of New South Wales v Sturgeon [2019] NSWSC 559 at [6] (Garling J); State of New South Wales v BP (Preliminary) [2019] NSWSC 699 at [59] (Wright J).

23. [33]

    The “supporting documentation” in this case included:

    1. (1)

       the affidavit of David Yang affirmed on 17 March 2022 and the documents in exhibit DY-1 to that affidavit including:

    2. (2)

       the affidavit of David Yang affirmed 21 April 2022 annexing a report prepared for the MHRT by Dr Matthew Gullotta, psychologist, in relation to the defendant.

24. [34]

    The defendant did not adduce any substantive evidence in relation to this application.

25. [35]

    Although in considering this application for an interim extension order and for examinations, I was required by ss 126(5) and 130 of the MHCIFP Act to proceed on the assumption that the matters alleged in the Attorney General’s supporting documentation were proved, I did permit Mr Spohr, solicitor, who appeared for the defendant to cross-examine Dr Smith on topics relevant to whether the discretion to make an interim extension order should be exercised, if the power to do so was enlivened.

26. [36]

    Before turning to consider the matters set out in s 127(2), I shall first deal with the defendant’s background and previous offending, including the index offences, on the basis that the matters alleged in the supporting documentation are proved.

The defendant’s background and offending prior to the index offences

1. [37]

   The defendant was born in Gosford in 1994 and has a number of half siblings. He lived with his parents on the Central Coast until they separated when he was about two years old. He subsequently moved to live with his father and grandmother. His mother, who had a history of substance abuse, remained on the Central Coast and died from a heroin overdose when the defendant was about 16 or 17 years old. The defendant also described a history of physical abuse from his father.

2. [38]

   The defendant reported attending a number of schools and said that he had been diagnosed with dyslexia and was illiterate. Justice Health records indicate he was expelled from school in year seven but returned and finished year 10. He said he was awarded a year 10 certificate “on attendance only”.

3. [39]

   The defendant reported commencing to smoke cannabis when he was aged seven and daily cannabis use from eight years of age. This apparently continued until he was 10 or 11 when he “started to schiz out, [and] got real paranoid”. He also said that at the age of 16 he was using methamphetamine, or ice, “as often as I could” and “a bit of heroin”.

4. [40]

   After school, the defendant said he obtained casual employment including lawn mowing and work as a labourer but found it difficult to stick to anything for a prolonged period.

5. [41]

   The defendant’s offending commenced in late 2012 and early 2013, when he was 18 years old, with what appear to be minor property and driving offences. In late 2013, the defendant was convicted of having custody of a knife in a public place and fined.

6. [42]

   In July 2014, the defendant committed an offence of assault occasioning actual bodily harm when he and another person visited an acquaintance. When the other person refused to leave when requested by the acquaintance, the acquaintance grabbed the other person by the arm and the defendant stepped in and punched the acquaintance in the head several times with a closed fist before pushing him into the television. The melee continued and the defendant pushed the acquaintance into a glass cabinet in the kitchen causing the glass to shatter. While the acquaintance was recovering, the defendant attempted unsuccessfully to remove two wheels from the premises. The acquaintance suffered a bloodied mouth, a scratched nose, a cut to his left buttock, soreness to the right temple and soreness behind the left ear due to the assault. The defendant was fined and made subject to a section 9 bond for two years supervised by the New South Wales Probation Service with a condition that he attend programs as directed.

7. [43]

   In early 2015, the defendant had custody of a knife in a public place. Later in 2015 there were offences of driving in a dangerous manner, resisting an officer in the execution of his duty and common assault in a domestic context which resulted eventually in the defendant being sentenced to imprisonment for 12 months with a non-parole period of six months. The common assault offending involved verbal abuse, throwing a can of drink at the victim, pulling the victim off a fence as she tried to get away and using his arm to wrap around the victim’s neck while standing behind her and pulling the victim into a laneway while he held her in the chokehold. The defendant’s offending continued in 2015 with a conviction for having custody of a knife in a public place and contravening an apprehended domestic violence order.

8. [44]

   In January 2016, the defendant committed offences of intimidation and assault occasioning actual bodily harm. The defendant and the victim had been in a relationship and had a daughter together. By the time of the offending the relationship had ended. The magistrate found that the defendant punched the victim in the face and kicked her while she was on the ground, as a result of the defendant’s jealousy about the victim being in another relationship. It was also found that the defendant made a statement to the victim about him either getting someone or coming back himself “to fix her up”. The defendant was eventually sentenced to 14 months’ imprisonment with a non-parole period of six months in respect of that offending.

9. [45]

   In April 2017, the defendant committed offences of possessing a prohibited drug and destroying or damaging property in relation to which a section 9 bond was imposed. The bond included a condition that he obey all reasonable directions for counselling, educational development and drug and alcohol rehabilitation.

10. [46]

    In September 2018, the defendant committed offences of possessing a prohibited drug and resisting officers in the execution of their duty. The latter involved the defendant throwing his body around, kicking out and rolling in an attempt to avoid restraint. It took five officers to restrain him. The defendant was sentenced to 10 months’ imprisonment with a non-parole period of six months.

The index offences

1. [47]

   The index offences in this case were dealt with on two separate occasions, after the defendant had been found by Bright DCJ on 1 May 2020 to be unfit to be tried: R v Wright [2020] NSWDC 162, and, on 13 August 2020 and 11 February 2021, the MHRT had determined that he would not become fit within 12 months.

2. [48]

   First, between 8 and 16 March 2021, Harris DCJ conducted a special hearing in respect of a charge of assault with intent to rob with a dangerous weapon. At the conclusion of that hearing, it was found that, on the limited evidence available, the defendant had committed the offence. In his Honour’s remarks when nominating a limiting term in respect of that offending, the circumstances of the offending, which occurred on 11 September 2018, were described as follows:

3. [49]

   In relation to the defendant’s progress while in custody, Harris DCJ said:

4. [50]

   The limiting term nominated by Harris DCJ was, after allowing a discount of 25%, three years and four months, expiring on 16 April 2022.

5. [51]

   Secondly, Norton SC DCJ conducted a special hearing at the end of which her Honour concluded that, on the limited evidence available, the defendant had committed two offences of aggravated breaking and entering. The circumstances of the offending were recorded in her Honour’s remarks when nominating a limiting term made on 9 September 2021 as follows:

6. [52]

   The sequence 1 offence was found by her Honour to be “between low range and mid-range” in terms of the objective seriousness and the sequence 2 offence was found to be “just below mid-range”.

7. [53]

   In relation to the defendant’s behaviour in custody, Norton SC DCJ noted:

8. [54]

   Her Honour imposed, in effect, an aggregate limiting term of three years and two months, noting that she had allowed a discount of 25% in respect of the sequence 2 offending and 20% in respect of the sequence 1 offending. That limiting term is due to expire on 16 May 2022.

Relevant matters under s 127(2)

1. [55]

   When determining whether to make an extension order, the Court must have regard to the matters identified in s 127(2) of the MHCIFP Act in addition to any other matters it considers relevant. I shall deal with each of those matters in turn.

2. [56]

   The concepts encapsulated by the expression “safety of the community” in s 127(2)(a) are informed by a consideration of other provisions of the MHCIFP Act. The object set out in s 69(a) and the test in s 122(1)(a) of the MHCIFP Act indicate that the safety of the community includes protection of members of the public generally as well as prevention of serious harm to other persons.

3. [57]

   The defendant’s commission of the index offences, and prior offences in a number of cases, involved the violent infliction of physical harm which was more than trivial and was significantly well above the minimum threshold for “actual bodily harm”. The offending on 11 September 2018 appeared so violent to one witness that it was thought that the victim was going to be beaten to death. The fact that only relatively minor injuries were suffered was said to have occurred “by luck and not design”. Similarly, the defendant’s use of a hammer in the offending on the next day involved the potential for very serious injury and it was fortunate that serious injury did not actually occur. The index offending, unlike some of the earlier offending, did not involve only those with whom the defendant had some previous association.

4. [58]

   In these circumstances and in light of the psychiatric and psychological assessments and reports referred to elsewhere in these reasons, the safety of the community requires, in the defendant’s case, that effective steps be taken, at least in the short term, with a view to ensuring that the defendant:

   1. (1)

      remains abstinent from prohibited drugs;

   2. (2)

      is compliant with his medication; and

   3. (3)

      receives appropriate supervision and support in these regards and in relation to vocational training, employment and developing skills for managing everyday life.

5. [59]

   As this was a preliminary hearing, there were no such reports at this stage.

6. [60]

   The supporting documentation provided by the Attorney General in satisfaction of the requirement in s 125(b) included three reports of Dr Callum Smith, which have been mentioned above.

7. [61]

   Dr Smith’s reports allege the matters set out in the paragraphs which follow.

8. [62]

   After reviewing the comprehensive documentation referred to in his report of 13 December 2021, Dr Smith diagnosed the defendant as suffering from:

   1. (1)

      complex post-traumatic stress disorder resulting from his experiences during his formative years including physical abuse, pre-birth exposure to drugs, poverty, neglect, drug abuse from a young age and emotional abuse;

   2. (2)

      substance use disorder reflecting his multiple and long-standing issues with prohibited substances over the years. It was noted that his apparent abstinence, since starting buprenorphine while in custody, represented progress in this regard but may only represent abatement due to external circumstances;

   3. (3)

      cognitive impairment based upon previous diagnoses of intellectual disability which were consistent with Dr Smith’s clinical impression on interview; and

   4. (4)

      attention deficit hyperactivity disorder.

9. [63]

   Dr Smith did not see any compelling evidence that the defendant had schizophrenia, a major depressive disorder or bipolar disorder. His understanding of these was that they were best understood as symptoms of psychosis in the presence of substance use that may indicate a substance induced psychotic disorder that is in remission. Dr Smith said that the importance of this was not to be minimised because studies established that a significant number of people diagnosed as “drug induced psychosis” progress to schizophrenia at follow-up over time and any re-emergence, or worsening, of the symptoms needed to be carefully monitored.

10. [64]

    It was noted that the potential cognitive impairment, complex trauma and likely ADHD were all life long conditions. As to the substance abuse disorder, it was noted that prognoses could vary but relapse rates for crystal methamphetamine use were high and given the period and extent of his substance abuse, his disorder was likely to be a chronic condition in the defendant’s case.

11. [65]

    As to the likelihood of the defendant reoffending, Dr Smith opined:

12. [66]

    Dr Smith was also of the view that the defendant did not at the time of his report suffer from a mental illness within the meaning of the Mental Health Act 2007 (NSW) nor did he qualify as a mentally ill person under that Act. The doctor continued:

13. [67]

    In relation to the question of whether the defendant posed a risk of causing serious harm to others if he ceased to be a forensic patient, Dr Smith said as follows:

14. [68]

    Addressing the issue of his recommendations for the least restrictive form of management of the defendant’s risk of harm to others, Dr Smith indicated that:

    1. (1)

       his treatment for post-traumatic stress disorder should include appropriate medication in addition to psychological intervention, by way of a form of trauma focused talking therapy;

    2. (2)

       his long-standing substance abuse would make him a candidate for residential drug rehabilitation programs and his being on long-acting injectable buprenorphine meant that a transitional plan to the community which linked into the mental health plan and rehabilitation unit that he would be attending would need to be established; and

    3. (3)

       in the community, the defendant would need a significant amount of support around him that would be best provided through the NDIS and that he would likely need significantly more NDIS funding than the amount already allocated to him. This support would include occupational educational opportunities adapted to his level of cognitive functioning, stable housing and a structure around him to help manage his multiple and complex needs, and ongoing physical health follow-up.

15. [69]

    Dr Smith was of the opinion that the defendant would be unlikely to be classified as an involuntary patient and similarly would be unlikely to qualify for a community treatment order, unless circumstances changed.

16. [70]

    Although his cognitive impairment and his being illiterate, innumerate and unable to remember important dates might make him suitable to be managed under a financial management order there did not appear to be any aspects in relation to accepting medical or dental treatment which would need to be managed under a guardianship order.

17. [71]

    Dr Smith’s ultimate conclusion was as follows:

18. [72]

    In his second report dated 13 February 2022, Dr Smith clarified his opinion that there is a risk of “serious harm” if the defendant’s forensic status is not extended. The doctor went on to explain that it is notable that the defendant had previously failed under community custodial management in the sense that he continued to behave in the same way and ended up arrested and re-incarcerated. In effect, Dr Smith was of the view that persons such as the defendant, who have complicated and intersecting needs, are best dealt with by continuing or extending their forensics status, at least initially, so as to allow a detailed, bespoke, management plan to be put in place to deal with the various risk factors and to ensure that the defendant does not return to previous behaviours which present a risk of serious harm as he transitions to the community.

19. [73]

    Dr Smith’s third report dated 27 February 2022 noted the progress that the defendant had made in decreasing markedly or stopping entirely his use of illicit substances. On that basis Dr Smith was of the view that his original suggestion of residential rehabilitation was unnecessary given his established abstinence but he would like to see some clear linking in to drug and alcohol services prior to release, not when being released. In particular, it was noted that the “window of concern” is always that shortly after discharge, when the highly containing structures of prison have been left behind.

20. [74]

    The doctor explained the basis for his opinion as follows:

21. [75]

    Dr Smith also was of the view that, in relation to management of the defendant’s ADHD, it would be preferable if some form of psychiatric review were arranged prior to discharge. The doctor’s ultimate conclusion was:

22. [76]

    In his written submissions, the defendant contended in substance that the reports of Dr Smith did not provide substantial support, even if the matters alleged were assumed to be true, for the conclusion that the making of an extension order would be justified. The three main reasons were said to be that:

    1. (1)

       Dr Smith “approached the question in part by starting with an unwarranted presumption (that extension is typically or ordinarily warranted)” rather than considering the defendant’s specific position as required by the statute;

    2. (2)

       Dr Smith “applied an artificially-low standard of harm” in that he did not in his first report address the risk of serious harm; and

    3. (3)

       “many of the key ‘opinions’ offered by Dr Smith are in truth not within his training, study, or expertise, and are therefore inadmissible” and his risk assessment did not explain the significance of any of the identified factors to the question of “serious harm”.

23. [77]

    It was submitted that, taken together, these reasons meant that there was an insufficient evidentiary basis for the plaintiff’s application.

24. [78]

    Although Dr Smith did make some comments in a generalised form to the effect that persons such as the defendant, with complicated and intersecting needs, were best dealt with by continuing or extending their forensics status, Dr Smith’s opinions were nonetheless specifically directed to the defendant’s particular circumstances and were not addressing irrelevant issues.

25. [79]

    In addition, while the first report from Dr Smith may not have expressly focused on the concept of “serious harm”, his second report did so. I did not form the view that he addressed an artificially low standard of harm when his three reports are read as a whole.

26. [80]

    Finally, I did not accept that Dr Smith’s opinions were outside his specialised knowledge as a psychiatrist especially when he was addressing the risk posed by the defendant to others if he ceased to be a forensic patient and how that risk might be effectively addressed so as to render it acceptable if he was released into the community.

27. [81]

    For these reasons, I did not accept the defendant’s submission that the matters alleged in Dr Smith’s report, assuming they were proved, did not provide significant support for the Attorney General’s application.

28. [82]

    A number of reports from psychiatrists, a clinical nurse consultant and psychologists were included in the supporting material provided by the Attorney General. There were a number of reports from 2015 and more recent reports including those of:

    1. (1)

       Dr Chew, psychiatrist, dated 5 November 2019 which included a diagnosis of bi-polar affective disorder. This appeared to be based solely on the defendant’s self reporting of such a diagnosis and was not accepted by Dr Callum Smith for the reasons stated in his first report. Otherwise, Dr Chew’s views were generally consistent with those of Dr Smith;

    2. (2)

       Dr Pulman, forensic psychologist, dated 30 March 2020 and 10 August 2021 whose opinions are, in my view, consistent with those of Dr Smith;

    3. (3)

       pyschologists prepared for and considered by the MHRT which did not contain information that called into question in any significant way Dr Smith’s opinions; and

    4. (4)

       Dr Elliott, psychiatrist, dated 29 November 2021 prepared for and considered by the MHRT which also did not call into question any of Dr Smith’s opinions.

29. [83]

    On 13 August 2020, the MHRT reviewed the defendant and ordered that he be detained at a correctional centre for care and treatment. A further such order was made by the MHRT on 12 August 2021.

30. [84]

    In November and December 2021, the MHRT reviewed the defendant and on 14 December 2021 made no change to the then current order.

31. [85]

    The Court was informed that an application for the defendant’s supervised release into the community was due to be heard by the MHRT on 6 May 2022.

32. [86]

    There were a number of reports and documents from Justice Health and Corrective Services NSW concerning the defendant. These were included in the material reviewed by Dr Smith and were taken into account in his reports. They did not contain material which in my view called into question, or was inconsistent to any significant extent with, Dr Smith’s opinions.

33. [87]

    As disclosed in the Corrective Services NSW records and documents, it appears that between April 2016 and April 2021, there were a number of incidents while the defendant has been in custody which have resulted in punishment. These are most clearly set out in the defendant’s custodial history dated 10 February 2022. It appears that since April 2021, the defendant has not engaged in any conduct in the custodial setting which has attracted punishment.

34. [88]

    The views of Harris DCJ and Norton SC DCJ, being the judges who nominated the limiting terms in respect of the defendant have been set out above when the index offending was dealt with.

35. [89]

    To the extent that there was any other significant information available as to the risk that the defendant would in the future cause serious harm to others, it did not appear to me to be at odds with the views expressed by Dr Smith.

Unacceptable risk

1. [90]

   Assuming the matters alleged in the supporting documentation, which I have referred to or summarised above including when considering the matters to which s 127(2) directs attention, are proved, if the defendant ceases to be a forensic patient when his limiting term expires on 16 May 2022, he will not be subject to the supervision of the MHRT and would be likely to be in the community without the planning and support described by Dr Smith as being necessary to ensure, as far as possible, the defendant’s continued abstinence from illicit drugs and participation in the opioid treatment program, his receipt of appropriate treatment and support in relation his ADHD and other mental and physical health issues, and his having sufficient support to manage his significant cognitive impairment and precarious social situation.

2. [91]

   If this occurred, I am satisfied, assuming that the allegations as to the defendant’s criminal history, the index offences, the circumstances surrounding those offences and the opinions of, and material reviewed by, Dr Smith and the other psychiatrists and psychologists who have assessed the defendant are proved, that it is well open to the Court to be satisfied to a high degree of probability that the defendant posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient.

3. [92]

   Further and in any event, it can be noted that Dr Smith was of the opinion in his supplementary report dated 13 February 2022 that “there is a risk of serious harm if [the defendant’s] forensic status is not extended” on the basis that the risk could be managed by putting in place a comprehensive plan to address the defendant’s complex needs but this would have to occur while he was still a forensic patient. Assuming these matters to be proved, it would follow that the Court would be satisfied to the requisite standard that the defendant posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient when his limiting term expired.

Adequate management by other less restrictive means

1. [93]

   On the same assumptions and having particular regard to the opinions of Dr Smith on what was required to manage, in an effective manner in the future, the defendant’s behaviour given his cognitive impairment, substance abuse disorder, ADHD and other circumstances, I also concluded that it was clearly open to the Court to be satisfied to the requisite standard that the risk posed by the defendant could not be adequately managed by other less restrictive means in the short term.

2. [94]

   Since he does not suffer from a relevant mental illness and is not a mentally ill person, the defendant could not be dealt with as an involuntary patient or have a community treatment order imposed, under the Mental Health Act.

3. [95]

   Furthermore, although a guardianship order might allow decisions to be made as to the defendant’s accommodation, treatment and similar matters and would be likely to be less restrictive than continuation of the defendant’s status as a forensic patient, it would not be sufficient, in my view, adequately to manage the risk of serious harm to others that would be posed by the defendant if he ceased to be a forensic patient and was released into the community without a comprehensive, bespoke plan providing the level of supervision and support outlined by Dr Smith.

Would the making of an extension order be justified?

1. [96]

   On the assumptions and for the reasons set out above, it appeared to me that the making of an extension order would be “justified”, in the sense of being reasonably open to the Court in the circumstances of the present case having regard to the matters in s 122(a) and (b).

2. [97]

   Consequently:

   1. (1)

      under s 126(5), the Court was required to make the examination orders sought by the Attorney General; and

   2. (2)

      under s 130(1), the Court’s power to make an interim extension order was enlivened.

Should an interim extension order be made?

1. [98]

   As I understood the defendant’s position, it was in effect that:

   1. (1)

      since about April 2021 and while on the opioid treatment program he has been abstinent from prohibited drugs; and

   2. (2)

      if his status as a forensic patient is not extended, on the expiration of his limiting term:

2. [99]

   In these circumstances, it was said that the risk posed by the defendant will be adequately managed by those means so that, even if it was concluded that an extension order “would be justified”, an interim extension order should not be made, as a discretionary matter in this case.

3. [100]

   In light of Dr Smith’s evidence, in particular, and the other circumstances identified in the supporting documentation more generally, however, I do not accept that the circumstances identified by the defendant are sufficient to lead me to refuse to exercise my discretion to make an interim extension order.

4. [101]

   It appeared to me that the defendant’s status as a forensic patient should be extended, on an interim basis, for three months, given:

   1. (1)

      the limited three month duration of the interim extension of the defendant’s status as a forensic patient;

   2. (2)

      the likelihood that the level of support and supervision envisaged by Dr Smith would not be in place by the time the defendant’s limiting term expired;

   3. (3)

      the protection of the community in the short term and in the longer term that would be likely to be achieved if the defendant’s status as a forensic patient were extended for three months so as to allow the support and supervision envisaged by Dr Smith to be put in place; and

   4. (4)

      the risk posed by the defendant if he ceased to be a forensic patient without the support and supervision envisaged by Dr Smith because of his cognitive impairment, his prior offending, his mental health diagnoses and the other circumstances identified in more detail above.

5. [102]

   I was confirmed in this view by Dr Smith’s evidence in cross examination that, if the defendant were released into the community without the support and supervision by way of a comprehensive and bespoke plan, Dr Smith envisaged likely relapse into drug use within weeks rather than months. Relapsing into drug use would involve the concomitant likelihood of violent behaviour leading to a risk of serious harm to others due to the defendant’s history of drug-related offending. Even if that risk were marginally less than 50%, as Dr Smith estimated, given the nature of the likely serious harm, it appeared to me that the risk was unacceptable.

6. [103]

   As I understood the evidence, the comprehensive and bespoke plan envisaged by Dr Smith would not be in place for the defendant, if he were to be released into the community immediately at the end of his limiting term. Such a plan would involve:

   1. (1)

      NDIS support twice a week to ensure that he accessed occupational and vocational opportunities, completed required paperwork, was reminded to attend and was taken to appointments for his physical and mental health and drug and alcohol treatment;

   2. (2)

      drug and alcohol assessment and management by a general practitioner with referral to appropriate services as required and continuation on the opioid treatment program, such as injections of buprenorphine;

   3. (3)

      psychiatric assessment and management by a general practitioner with referral to appropriate an appropriate specialist for development of a treatment plan;

   4. (4)

      continuation on other medication for mental health and physical health issues; and

   5. (5)

      emergency support in case the defendant’s sister becomes unable to provide required support or some other emergency or unforeseen circumstance arises.

7. [104]

   Extending the defendant’s status as a forensic patient for three months will allow:

   1. (1)

      the defendant to be examined under s 126(5) and reports to be prepared so that a final hearing in this matter can be conducted on a properly informed basis;

   2. (2)

      proper planning and implementation of the support and supervision as envisaged by Dr Smith to be undertaken;

   3. (3)

      consideration by the MHRT in the relatively near future of the nature and extent of support and supervision required in the defendant’s case in order to ensure his safe and supported release into the community; and

   4. (4)

      evidence to be prepared and put before the Court concerning the planning and implementation of the support and supervision as envisaged by Dr Smith so that the Court can make a properly informed decision at a final hearing as to whether the risk posed by the defendant can be adequately managed by other less restrictive means than an extension of his status as a forensic patient,

8. [105]

   In the present case, it also appeared to me that there was potentially significant benefit for the defendant, as well as protection of the community, if his status as a forensic patient were extended by way of an interim order for three months so as to enable the steps outlined above to be taken. This was, in my view, another factor which weighed in favour of making the interim extension order having regard to the objects of the MHCIFP Act.

9. [106]

   In oral submissions, Mr Ng of counsel, who appeared for the plaintiff, referred to the judgment of the Court of Appeal in Attorney General of New South Wales v WB [2020] NSWCA 7, and drew attention to the comment of Basten JA at [52] which indicated that if an interim extension order was not made and the defendant’s limiting term expired with the consequence that he ceased to be a forensic patient, the Court could not make a final extension order after the expiration of the limiting term. In addition, in such a circumstance, the examination orders made under s 126(5) would serve no purpose. Mr Spohr did not contend to the contrary. This was a further consideration in favour of making an interim extension order in the present case.

Orders

1. [107]

   For these reasons, the Court must make an examination order under s 126(5) of the MHCIFP Act and, in my view, it is appropriate in this case to make an order extending the defendant’s status as a forensic patient for three months. In addition and having regard to the terms of s 127(3) of the MHCIFP Act, the Court is required to notify the MHRT of the making of the extension order.

2. [108]

   Accordingly, the Court:

   1. (1)

      Makes an order pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) that:

   2. (2)

      Makes an order pursuant to ss 130 and 131 of the Mental Health and Cognitive Impairment Forensic Provisions Act, that the defendant is subject to an interim extension of his status as a forensic patient commencing from midnight at the end of 16 May 2022, for a period of 3 months.

   3. (3)

      Grants liberty to the parties to apply on two days’ notice in relation to order (1) if the parties cannot reach agreement for the purposes of either paragraph of that order.

   4. (4)

      Directs the Registrar pursuant to s 127(3) of the Mental Health and Cognitive Impairment Forensic Provisions Act to inform the Mental Health Review Tribunal of the making of the extension order referred to in order (2) by providing to the Tribunal a copy of the orders and the judgment in this matter.