Attorney General of New South Wales v McGuire

1. [1]

   HIS HONOUR: On 28 May 2015, the Court made the order sought by the Attorney General of New South Wales, the plaintiff, extending the status of Herbert Robert McGuire, the defendant, as a forensic patient until 10 June 2016, pursuant to cl 1 of Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (“MHFP Act”).

2. [2]

   These are the reasons for judgment in relation to that order.

The history of proceedings

1. [3]

   On 17 August 2006, the defendant was charged with three offences contrary to s 61I of the Crimes Act 1900, namely, that he had sexual intercourse with a person without consent whilst knowing that the person did not consent, and with one offence of aggravated break, enter and commit serious indictable offence, contrary to s 112 of the Crimes Act.

2. [4]

   On 25 August 2008, following an inquiry under s 12 of the MHFP Act, Garling DCJ determined that the defendant was not fit to be tried on the basis that he suffered an intellectual disability. The defendant was referred to the Mental Health Review Tribunal (“Tribunal”) and was remanded in custody.

3. [5]

   On 4 September 2009, following a special hearing under s 21 of the MHFP Act, Murrell DCJ (as her Honour then was) held that, on the limited evidence available, the defendant committed the three rape offences. Her Honour permanently stayed the aggravated break, enter and commit serious indictable offence charge on the ground that the conduct to which it related was the same as that of the rape charges and, accordingly, was an abuse of process. Pursuant to s 23(1)(b) of the MHFP Act, Murrell DCJ imposed an overall effective limiting term of five years in relation to the three rape charges, which term would expire on 31 December 2013. Her Honour also ordered that the defendant again be referred to the Tribunal and that he remain in custody.

4. [6]

   Thereafter, the defendant was detained in a correctional facility and became a forensic patient under s 42 of the MHFP Act.

5. [7]

   On 26 August 2013, the defendant was released by the Tribunal into the community, subject to a comprehensive set of conditions, pursuant to s 47(1)(b) of the Act.

6. [8]

   As a result of the limiting term imposed by Murrell DCJ, the defendant’s status as a forensic patient under the MHFP Act would have expired on 31 December 2013. However, several judges of the Court made interim extension orders so that the defendant’s status as a forensic patient was due to expire on 24 March 2014.

7. [9]

   On 21 March 2014, Garling J made an order under cl 1 of Sch 1 of the MHFP Act extending the defendant’s status as a forensic patient for a further year until 21 March 2015. His Honour held that if he ceased being a forensic patient, the defendant posed an unacceptable risk of causing serious harm to others, which risk could not be adequately managed by less restrictive means, pursuant to cl 2 of Sch 1 of the MHFP Act. Garling J found that the defendant posed a moderate to high risk of causing serious harm to others; that the defendant’s risk factors had not been mitigated by appropriate treatment; that the Tribunal had regularly reviewed the conditions imposed on the defendant in an appropriate manner; and that if the defendant ceased to be a forensic patient, he could not be compelled to take his prescribed medicine or to abstain from alcohol and illicit drugs.

8. [10]

   On 13 February 2015, the Attorney General for New South Wales filed a summons seeking an order for the extension of the defendant’s status as a forensic patient for a further two years. That summons also requested preliminary orders for the appointment of two psychiatrists, psychologists and/or registered medical practitioners to conduct an examination of the defendant and for an interim extension of the defendant’s status as a forensic patient from 21 March 2015 for 28 days.

9. [11]

   On 9 March 2015, Hoeben CJ at CL made those preliminary orders. Further interim extension orders were made by Bellew J and Adams J on 17 April 2015 and 14 May 2015 respectively.

10. [12]

    Accordingly, the substantive two year extension order sought by the Attorney General for New South Wales in the summons filed 13 February 2015 remained outstanding. I made an order dealing with that prayer on 10 June 2015.

The rape offences

1. [13]

   While not directly relevant to the question of whether an extension order should be granted, the facts surrounding the rape offences with which the defendant was charged should be set out for completeness. Murrell DCJ recited these facts in her judgment and they are as follows:

Mr McGuire’s background

1. [14]

   As a final background matter, although again not directly relevant to the question of whether an extension order should be granted, I have set out below the personal background of the defendant, as summarised by Garling J in Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288:

Forensic patients under the MHFP Act

1. [15]

   Part 5 of the MHFP Act relates to forensic patients and correctional patients. The objects of Part 5 are contained in s 40 of the MHFP Act and are as follows:

2. [16]

   Forensic patients are defined in s 42 of the MHFP Act as, relevantly, a person detained in a mental health facility or correctional centre, or released from custody subject to conditions, pursuant to an order under the MHFP Act, or as a person subject to an extension or interim extension order. As the defendant is subject to an interim extension order, he is a forensic patient. The defendant has been a forensic patient since being referred to the Tribunal by Garling DCJ on 25 August 2008.

3. [17]

   The Tribunal must review the case of a forensic patient at least every six months: s 46(1). Following such a review, the Tribunal may make orders regarding the forensic patient’s continued detention, care or treatment in a mental health facility or correctional centre, or regarding the forensic patient’s release, either unconditionally or subject to conditions: s 47(1) of the MHFP Act. When making an order, the Tribunal must have regard to the matters set out in s 74 of the MHFP Act and, if making an order for release, it may impose any of the conditions contained in s 75(1) of the MHFP Act. In this case, the defendant was released from detention by the Tribunal, subject to conditions, on 26 August 2013.

4. [18]

   If a forensic patient breaches a condition of their order for release, the President of the Tribunal may make an order for the apprehension of that patient: s 68(1)(a) of the MHFP Act.

5. [19]

   Section 54A of the MHFP Act provides that a person’s status as a forensic patient may be extended in accordance with Sch 1. Clause 1 of Sch 1 empowers the Court to make an extension order. Clause 2 states the test which the Court must apply in making an extension order and is in the following terms:

6. [20]

   Clause 5 sets out the documentation that must accompany an application for an extension order, which includes documentation that addresses each of the matters in cl 7(2) (set out below) and a report, prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that, essentially, addresses the matters contained in cl 2. At a preliminary hearing, if satisfied on the aforementioned documentation that an extension order should be granted, the Court must order two qualified psychiatrists, registered psychologists or registered medical practitioners to conduct separate examinations of the forensic patient and to furnish reports of the results of those examinations on the Court: cl 6(5) of MHFP Act. In this matter, Hoeben CJ at CL presided over the preliminary hearing and made those orders.

7. [21]

   Clause 7(2) prescribes the matters which the Court must have regard to when determining finally whether to make an extension order. It is necessary to set out the clause in full:

8. [22]

   Clause 8(1) provides that an extension order commences when it is made or when the limiting term or existing extension order expires, whichever is earlier, and that an extension order expires as specified in the order. Significantly for present purposes, the Court is not prevented from making a second or subsequent extension order against the same forensic patient: cl 8(2) Sch 1 of the MHFP Act.

9. [23]

   Clause 9 states that the making of an extension order does not affect the operation of another order regarding the care, detention or release from custody of the forensic patient.

10. [24]

    Finally, cl 12 provides that the Court may at any time vary or revoke an extension order following an application by the Minister or upon the recommendation of the Tribunal.

Applicable Principles

1. [25]

   As stated above, before making an extension order the Court must be satisfied to a high degree of probability that the forensic patient, if he or she were to cease being a forensic patient, poses an unacceptable risk of causing serious harm to others and that such a risk cannot be adequately managed by other less restrictive means: cl 2(1) of Sch 1 of the MHFP Act.

2. [26]

   The phrases ‘high degree of probability’ and ‘unacceptable risk’ are not defined in the MHFP Act and, consequently, their meaning must be and has been ascertained by the courts. At this juncture, there is limited authority directly on the making of extension orders under cl 2 of Sch 1 of the MHFP Act.

3. [27]

   Instead, the relevant authorities concern the meaning of the same phrases under the Crimes (High Risk Offenders) Act 2006 (“HRO Act”). The HRO Act empowers the Court to make continuing detention orders or extended supervision orders against high risk sex offenders and high risk violent offenders if satisfied to a high degree of probability that the offender poses an unacceptable risk of committing, respectively, a serious sex offence or serious violence offence: ss 5B(2), 5E(2) of the HRO Act. The relevance of the authorities on the meaning of these phrases in the HRO Act to cases concerning the same expressions under the MHFP Act has been confirmed in all earlier decisions in this matter: see Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 at [42]-[46]; Attorney General of New South Wales v McGuire [2015] NSWSC 152 at [34]; Attorney General of New South Wales v McGuire [2013] NSWSC 1862 at [7]-[12].

4. [28]

   The meaning of the expression ‘high degree of probability’ is not controversial. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 the Court (Mason P, Giles and Hodgson JJA) held at [21] in relation to the meaning of that expression under the HRO Act that:

5. [29]

   It is now well settled that a high degree of probability is a standard of proof that is higher than the civil standard but lower than the criminal standard: see State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [14] and Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 at [27].

6. [30]

   Unlike the meaning of high degree of probability, the meaning of unacceptable risk has been the subject of some judicial controversy. At present, there are two approaches to the meaning of the latter phrase.

7. [31]

   The first approach is that the phrase ‘unacceptable risk’ is determined by its “everyday meaning, in the context of the provision in which [it] appear[s], and having regard to the objects of the Act”, most particularly the primary object of the HRO Act, namely, to provide for extended supervision and continuing detention of serious sex offenders to ensure the safety and protection of the community: State of New South Wales v Thomas (Final) [2011] NSWSC 307 at [58]; see also State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [19]-[20] per RA Hulme J. This approach has been endorsed, at least, by Hoeben CJ at CL in Attorney General of New South Wales v McGuire [2015] NSWSC 152 at [44] and by Simpson J in State of New South Wales v Conway [2011] NSWSC 588 at [30].

8. [32]

   The second approach is that the determination of an unacceptable risk involves a balancing exercise. In State of New South Wales v Richardson (No. 2) [2011] NSWSC 276, which again concerned the meaning of unacceptable risk under the HRO Act, Davies J held at [90] that:

9. [33]

   In finding that unacceptable risk involves a balancing exercise, Davies J relied on two decisions of the Western Australian Court of Appeal, which concern the meaning of that phrase in Western Australian legislation that is equivalent to the HRO Act: the Dangerous Sexual Offenders Act 2006 (WA) (“DSO Act”). In the first decision, Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 176 A Crim R 110, Wheeler JA held that:

10. [34]

    Meanwhile, in the second decision, Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 198 A Crim R 149, after citing with approval the extract in Wheeler JA’s judgment set out above, Steytler P and Buss JA stated at [27] that:

11. [35]

    In granting the first extension order in this case, Garling J adopted the second approach to the meaning of unacceptable risk. In his judgment, Garling J set out the above extracts of the Western Australian Court of Appeal and also considered the approach favoured by RA Hulme J in State of NSW v Thomas, in particular noting that the objects of the MHFP Act are not as straightforward as those of the HRO Act, since the former act does not establish a singular regime but applies to various types of mental disorders at various stages of the criminal justice system. His Honour then held that:

12. [36]

    In my view, although not necessary to decide the matter, the second approach is to be preferred. In applying the unacceptable risk test the Court must consider a matrix of factors, specifically, the likelihood that the forensic patient will cause serious harm to others, the seriousness of that harm and the consequences for the forensic patient, namely, that his or her liberty will continue to be restrained. These factors clearly weigh the need for protection of the safety of members of the public, which is the primary purpose of the relevant part of the MHFP Act, against the effect of subjecting a person to an extension order.

13. [37]

    The matrix of factors includes the probability or likelihood of serious offending and the outcome if offending were to occur. There is for all members of society some degree of risk, but once there is a high probability of risk in those, who have previously offended in a manner caught by the legislation, the legislature has prescribed that the order may be made. It is for the Court in the exercise of that discretion to balance that risk with the effect of the order.

14. [38]

    In reaching my view, I have given significant weight to the views of the Western Australian Court of Appeal. As set out above, those views support an interpretation of unacceptable risk as involving a balancing exercise. In Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 81 ALJR 1107 at [135] the High Court explicitly commented that:

15. [39]

    While the HRO and DSO Acts are not strictly part of national uniform legislation, the regimes they establish for extended supervision and continuing detention of high risk offenders, whether high risk sex and violent offenders or only high risk sex offenders, are very similar. At the centre of both statutes is the requirement that an extended supervision or continuing detention order may only be imposed when the court is satisfied to a high degree of probability that there is an unacceptable risk that the person will commit another sex or violent offence, if not subject to such an order: see s 5B(2) and s 5E(2) of the HRO Act and s 7(1)-(2) of the DSO Act. The matters which the Court must take into account in determining whether an unacceptable risk arises are also broadly the same, although in different terms: see s 9(3) and s 17(4) of the HRO Act and s 7(3) of the DSO Act.

16. [40]

    Since the regime established by the DSO Act is very similar to that in the HRO Act, the decisions of the Western Australian Court of Appeal on the meaning of unacceptable risk carry, at least, significant weight: see Farah Constructions Pty Ltd v Say-Dee Pty Ltd at [135]. Moreover, the fact that the meaning of unacceptable risk under the HRO Act was the same as that under the MHFP Act was undisputed by the parties before me and has been accepted by this Court in its previous judgments.

17. [41]

    My view that determining whether, if not subject to an extension order, a forensic patient poses an unacceptable risk of causing serious harm to others involves a consideration of a matrix of factors is also based on the consistency of such a view with the concept of risk in other areas in the law. In New South Wales under the statutory regime for granting or refusing bail, an accused must be refused bail if there is an unacceptable risk that he or she will fail to appear at future proceedings, commit a serious offence, endanger the safety of the victims or the community, or interfere with witnesses or evidence: s 19(1)-(2) of the Bail Act 2013. In determining whether an unacceptable risk exists, the Court must consider a range of matters listed in s 18(1) of the Bail Act. Some of these matters, such as the nature and seriousness of the offence, are directed towards the offence that has allegedly been committed, while others are directed towards the needs of the accused, such as a special vulnerability of the accused.

18. [42]

    As is evident from this cursory review of the Bail Act, what is an unacceptable risk under that statute involves a consideration of a matrix of factors. As Bell J stated in Woods v DPP [2014] VSC 1 in relation to the Victorian legislation on bail, which also utilises the concept of unacceptable risk, and as cited by Harrison J in R v Hawi [2014] NSWSC 837:

19. [43]

    Furthermore, in the law of negligence the assessment of risk also requires consideration of a matrix of factors in response to a particular risk and, thereby, whether a defendant has breached their duty of care: see Mason CJ’s judgment in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47. This matrix of factors is now embodied in s 5B(2) of the Civil Liability Act 2002.

20. [44]

    Understanding unacceptable risk as involving a matrix of factors and the analogy with the law of negligence was accepted by McCallum J. The assessment of risk is relevant at various stages in the determination of negligence cases. Yet for present purposes I shall draw on the comments of McCallum J in State of New South Wales v Richard John Darrego [2011] NSWSC 360, in which her Honour stated at [9]-[10] that the approach to unacceptable risk in the HRO Act may be informed by the concept of material risk in medical negligence cases. In particular, McCallum J cited the judgment of Gummow J in Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 in which his Honour held at [69] that the first question in determining whether a medical practitioner has failed to warn their patient of a material risk is to define the material risk “by reference to the circumstances in which the injury can occur, the likelihood of the injury occurring, and the extent or severity of the potential injury if it does occur”.

21. [45]

    I agree with McCallum J’s proposition that the same approach to material risk in medical negligence cases can be applied to unacceptable risk under the HRO and MHFP Acts. Essentially, risk in these differing areas of law is to be assessed by a matrix of factors, such as the likelihood and magnitude of the risk and other factors previously mentioned. In order to promote cohesion in the law, it is, in my opinion, although not necessary to decide the matter, preferable that unacceptable risk is conceptualised as a matrix of factors, which accords with the requirements under the MHFP Act (see cl 7(2) of Sch 1 of the MHFP Act). That is the approach endorsed by the WA Supreme Court (supra).

Expert evidence

1. [46]

   As previously stated, on 9 March 2015 Hoeben CJ at CL ordered that two qualified psychiatrists or psychologists, Professor Susan Hayes and Dr Andrew Ellis, be appointed to conduct separate examinations of the defendant and to furnish reports to the Court following those examinations.

2. [47]

   Accordingly, before the Court are the report of Professor Hayes dated 26 March 2015 and the reports of Dr Ellis dated 30 March 2015, 8 May 2015 and 15 May 2015. Professor Hayes and Dr Ellis also gave evidence at the hearing.

3. [48]

   The defendant attended the experts’ professional premises for the purpose of the examinations. The defendant’s examination with Professor Hayes lasted ninety minutes, during which time the defendant spoke “at length about many aspects of his present situation and past life” (Professor Hayes’ report, p 19). Meanwhile, the examination with Dr Ellis lasted 30 minutes, after which time the defendant terminated the examination. It should also be noted that during the examination with Dr Ellis, the defendant made several “spontaneous” comments that objectified women.

4. [49]

   I accept that the defendant established a better rapport with Professor Hayes. The experts agree, as a general proposition, that the better the rapport established between patient and doctor, the greater the information obtained from the patient and the greater the accuracy of the risk assessments.

5. [50]

   At this juncture it is appropriate to outline the current circumstances of the defendant. The defendant lives alone in a unit in Panania. He receives visits five days per week from staff of New Horizons, a disability support service. Those visits have been part of the conditions for his release from detention since August 2013. The defendant is also required to take antilibidinal medication, as well as anti-craving medication to reduce his desire for alcohol. On the weekends, the defendant visits his sister’s property where he works on fixing cars. Through his sister the defendant receives information about his daughter and grandson in Queensland, which is very important to him.

6. [51]

   In the event that an extension order is not granted and the defendant’s status as a forensic patient ceases, the defendant will not be compelled to take the aforementioned medication, to receive support from New Horizons and attend rehabilitative programs or to undergo tests for alcohol consumption. However, the defendant may continue to do each of these on a voluntary basis.

7. [52]

   The experts largely agree on the diagnosis of the defendant. They agree that the defendant suffers from an intellectual disability and that this disability is chronic. They also agree that the defendant suffers from an alcohol use disorder, although his symptoms have been mild since being prohibited from consuming alcohol as a forensic patient. Finally, Professor Hayes considers that the defendant suffers from an antisocial personality disorder, while Dr Ellis considers that there is sufficient evidence of antisocial personality traits, if not an antisocial personality disorder. I accept that the defendant suffers from these three disorders.

8. [53]

   The experts also agree that the defendant did not suffer from paraphilia, that is, any abnormal sexual desires.

9. [54]

   The experts differ on the level of risk posed by the defendant. Professor Hayes believes that there is a low risk that the defendant will cause serious harm to others if he ceases to be a forensic patient, while Dr Ellis considers the risk to be moderate to high.

10. [55]

    Professor Hayes conducted risk assessment tests on the defendant during her examination. She concluded in her report:

11. [56]

    Meanwhile, Dr Ellis concluded that the defendant posed a moderate to high risk of causing serious harm to others. In his report Dr Ellis stated:

12. [57]

    The essential difference between the two experts was the subject of a question and answer during the examination of Dr Ellis. It is useful to set out the full exchange:

13. [58]

    As is clear from the foregoing, Dr Ellis placed far less weight on the motivations and attitudes expressed by the defendant during his consultation. Unlike Professor Hayes, Dr Ellis remained uncertain about the level of insight the defendant has obtained on his alcohol disorder. He also expressed uncertainly as to whether the defendant would continue voluntarily with the services provided by New Horizons and with the other conditions. Furthermore, Dr Ellis considered that the defendant’s relationship with his family was not yet stable enough to be considered a “protective factor”, but more likely represented an “absence of a risk factor”.

14. [59]

    In the event that an extension order is granted, the experts also disagree as to the duration of that order. Professor Hayes states that an extension order should not be imposed for longer than twelve months, whereas Dr Ellis believes that a two year extension is necessary to “engage with Mr. McGuire around future planning and motivation to adhere to rehabilitation efforts” (Dr Ellis’ report dated 8 May 2015, p 2).

Other evidence

1. [60]

   The other evidence before the Court, upon which counsel relied during the course of submissions, consists of the monthly reports and daily progress notes by New Horizons, the letters from New Horizons to the Tribunal before a hearing concerning the defendant, the Tribunal’s decisions and reports by another psychologist/psychiatrist, Dr Seilder, who has treated the defendant on several occasions.

2. [61]

   There is no need to set out in detail the evidence which was before the Court. However, I shall set out a description from the April 2015 report by New Horizons of an incident which was the subject of questions to Professor Hayes and of submissions before the Court. The incident occurred while the defendant was collecting scrap metal, a task which he regularly undertakes in the company of the New Horizons staff. It is described in the report as follows:

Consideration

1. [62]

   As is obvious from earlier comments, there is a slight conflict between the experts as to the defendant’s probability of offending. The difference, however, is less than might at first appear.

2. [63]

   Each expert accepts that in the absence of the current medication, the risk posed by the defendant rises significantly. The fundamental question is whether the defendant’s insight into his alcohol issues and sex offending is sufficient to remove the supervision and the requirements for medication and allow the defendant the freedom to undertake the medication himself.

3. [64]

   As has been described, the restrictions on the defendant are not draconian. They involve supervision by Corrective Services and the requirement for medication. The defendant lives in the community. The medication is needed to ameliorate the otherwise significant risk.

4. [65]

   The cited comment to staff displays an attitude that is concerning, all the more so for its disclosed lack of insight. The defendant’s relationship with his family has not yet fully stabilised. That relationship has some important stabilising features, but is not sufficiently stable to affect positively the likelihood that the medication will be taken voluntarily and, in that way, improve the risk factors otherwise associated with the defendant’s mental state and previous behaviour.

5. [66]

   On the other hand, there is no doubt there has been some improvement in the defendant. That improvement should continue into the foreseeable future and will, one would expect, result in less risk over the forthcoming period. Given the levels of improvement and the likelihood that the rate of improvement will remain static, if not increase, a shorter rather than longer period of operation for the order is appropriate, so that the unacceptability of the risk of the defendant can be ascertained at shorter intervals.

6. [67]

   Currently, the risk is unacceptable. That is the determination I had made for the reasons set forth in these reasons for judgment. It is for the foregoing reasons that I issued the orders on 10 June 2015.