Attorney General of New South Wales v Lane (Final)

1. [1]

   By summons filed on 31 May 2019, the Attorney General of New South Wales, the plaintiff, seeks an order to extend the status of John Paul Lane, the defendant, as a forensic patient for a period of two years from the date on which the order commences pursuant to cl 7(1)(a) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the MHFP Act”).

2. [2]

   On 29 August 2019, following a preliminary hearing, Button J made an order appointing two psychiatrists to conduct separate examinations of the defendant and to furnish those reports to the Court. His Honour also made an order pursuant to cl 10 and cl 11(1) of Schedule 1 of the MHFP Act that the defendant be subject to an interim extension order commencing on 30 August 2019 for a period of 2 months from the date on which the order commences: Attorney General of NSW v Lane [2019] NSWSC 1118. This order expires on 29 October 2019.

3. [3]

   The defendant opposed the orders sought on the preliminary hearing, and opposes the order sought now, submitting that the Court could not be satisfied to the high standard required that the defendant poses an unacceptable risk of serious harm to others if he ceases to be a forensic patient.

4. [4]

   As a fall-back position, the defendant argued that whilst not conceding that he was any risk of serious harm to others, any such risk can adequately be managed by less restrictive means pursuant to the mandatory obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) (“the CPOR Act”) and potentially the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) (“the CPPO Act”).

5. [5]

   The court appointed experts, Dr Furst and Dr Dayalan, both forensic psychiatrists, agree that the defendant does not have a mental illness as defined by s 4 of the MHFP Act. Dr Furst’s opinion is that the defendant does not pose a risk of serious harm if an extension of his forensic order is not made, but Dr Dayalan’s view is to the contrary.

6. [6]

   There was also a lacuna identified in the evidence that the combination of the two psychiatrists reports left up in the air the question of whether there was sufficient evidence for the Court to consider, to the necessary level of detail, whether the risks posed by the defendant can be adequately managed in the community under the requirements and strictures associated with child protection legislation. This was addressed in the oral evidence given jointly by those doctors but it is ultimately a matter for submissions and legal analysis.

The provisions relating to extension orders

1. [7]

   Section 54A of the MHFP Act gives power to the Court to extend a person’s status as a forensic patient in accordance with Sch 1 to the MHFP Act.

2. [8]

   Section 40 sets out the objects of Pt 5 of the MHFP Act which deals with forensic patients:

3. [9]

   The test for making an extension order is set out in cl 2 of Sch 1 as follows:

4. [10]

   I am required to take into account a non-exclusive list of matters set out in cl 7(2) of Sch 1:

Background to the application

1. [11]

   The background to the application is set out by Button J in Attorney General of NSW v Lane [2019] NSWSC 1118 at paragraphs [2]-[15]:

2. [12]

   Dr Eagle, forensic psychiatrist, was retained to express a view based on the papers (without examining the defendant) as to whether an order under the legislation should be sought. Dr Eagle’s views have been summarised in the judgment of Button J in Attorney General of NSW v Lane [2019] NSWSC 1118 at paragraphs [16]-[28], and as the only recent comprehensive document review, her report provided a useful summary in the context of the orders sought:

3. [13]

   Assessments as ordered by Button J took place in August and September with two forensic psychiatrists, Dr Furst and Dr Dayalan, and detailed reports were provided. They reached opposite views both as to the risk presented by the defendant, and on the question of whether his risk could be adequately managed by other less restrictive means.

A preliminary issue: the admissibility or otherwise of evidence in respect of a s 55 transfer decision made by two psychiatrists as a cl 7(2)(i) consideration as “any other information that is available as to the risk that the forensic patient will in future cause serious harm to others”

1. [14]

   Counsel for the plaintiff submitted that I should take into account an assessment by Dr Hearps and Dr Goodenough in September 2019, a few weeks prior to the hearing, as evidence of a s 55 MHFP Act transfer notice. The evidence suggested the transfer was made pursuant to ss 55(2) and 55(3) on the basis that two medical practitioners, one of whom is a psychiatrist, had certified the defendant as mentally ill. Counsel for the plaintiff said that I should receive that material as evidence of the fact that such an order was made, but that the plaintiff did not rely on the documents as to the truth of anything contained in them.

2. [15]

   Apparently the transfer never took place and the plaintiff remained where he was. The defendant objected to this material being tendered pursuant to ss 55, 56 and 135 of the Evidence Act 1995 (NSW).

3. [16]

   In the context of this application where I am required to have regard to a non-exclusive list of matters set out in cl 7(2) of Schedule 1 of the MHFP Act, if the material could rationally affect my assessment of factors, or if it corresponds to the type of report or document identified among those factors, it would likely be admissible, unless s 135 operates to exclude it.

4. [17]

   The material does not correspond with subclauses (b) to (h) in my view but it could conceivably correspond with subclause (i), which is a “catch all”: “any other information that is available as to the risk that the forensic patient will in future cause serious harm to others.”

5. [18]

   The material sought to be tendered is not in a reasoned report form and is somewhat opaque to analysis. In particular it does not identify the “mental illness” alleged, nor does the material in issue address in any relevant way the test for this application. The fact that the transfer documents were prepared could be considered tangentially relevant, however I exercise my discretion pursuant to s 135 of the Evidence Act to exclude it because its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendant, and I disregard it for the purposes of the determination of this application.

Statutory considerations

1. [19]

   The plaintiff’s written submissions focussed on the defendant’s criminal history of charges 16 years apart. Emphasis was placed on the acts of indecency committed by the defendant in January 1996, involving a person under 10 years of age, and a person under 16 years of age. The details of that offending is set out by Button J in Attorney General of NSW v Lane [2019] NSWSC 1118 at paragraphs [6]-[7], reproduced in paragraph [11] of this judgment. The plaintiff’s written submissions drew attention to that fact that despite pleading guilty to the charges, the pre-sentence report prepared for the severity appeal included a note as follows:

2. [20]

   The other offending occurred in August and September 2013 – dissemination of child abuse material – which was described as 5,890 child pornography images and 54 videos on his iPhone saved in various albums including “Boys naked”, “Boys sucking boys”, “Boys erection”, “Boys fucking boys”, and “Wanting to be fucked”. The material depicted images of children between 18 months and 15 years old, predominantly male. Investigating police estimated there are about 3,000 different victims within the classified material. There was an additional count of dissemination by MMS of one pornographic image.

3. [21]

   The plaintiff’s written submissions also mentioned an investigation by police for sexual misconduct at Lithgow Greyhound and Harness Racing Track in January 2007 where it is alleged that the defendant had a pornographic magazine visible and said to a 12 year old boy whom he paid for helping him, “Can I fuck you up the arse?”.

4. [22]

   Mention was also made of a case note dated April 1999 made by a probation and parole officer recording that the defendant had numerous pictures of children associated with his charity work and that was a concern because the defendant had been overseas on several occasions.

5. [23]

   On behalf of the defendant it was submitted that the community could be adequately protected if the defendant were released to reside in his father’s house with counselling arranged in the community. There needs to be a careful distinction between what would be optimum and what is the least restrictive means of adequately managing the defendant’s unacceptable risk of serious harm.

6. [24]

   Dr Furst concluded that the defendant fell into the moderate, or average range of risk of sexual reoffending and possibly lower, and that the risk of recidivism was much more likely to be in the form of accessing child abuse material rather than “hands on” or more serious offending against a child. [1] The plaintiff argued that this analysis seems to have fed in to the conclusion by Dr Furst that the defendant did not pose a risk of causing serious harm to others if he ceases to be a forensic patient, because child pornography was not thought by Dr Furst to qualify as “serious harm”. I do not accept that that is the only way to read Dr Furst’s conclusions. It was argued that it is open to this Court to find that “serious harm” for the purposes of the statute could include accessing child abuse material, given such material is never a victimless crime. I will return to this issue later in this judgment.

7. [25]

   Dr Furst says that the defendant does not have a mental illness and is not mentally ill. Dr Furst also ventured the view that an extension of his forensic status is “not warranted”. In his second report, Dr Furst reiterated that view. Dr Furst also emphasised that there are no grounds for imposing a community treatment order, there are no grounds for imposing a guardianship order, and that risks identified of sexual reoffending, especially in relation to accessing child abuse material can probably be effectively managed with psychological support being offered on a voluntary basis as well as the measures and restrictions contained in child protection legislation. Dr Furst explained in his oral evidence this support would focus on working through the defendant’s preoccupation with injustices “so that he can cope from day to day and get back to work and function, essentially, as a normal citizen of the community.” [2]

8. [26]

   Significantly Dr Furst, both in his report and in his oral evidence emphasised that the defendant’s reoffending relative to other sex offenders is “moderate” and he sets out the literature that supports that opinion. Dr Furst explained in his oral evidence the limitations of the risk assessment tools used and that reoffending for sex offenders is a small risk in terms of likelihood of it occurring:

9. [27]

   Dr Furst referred to unusual aspects of the defendant’s presentation including a slight speech impediment, a somewhat odd affect, that he is obsessive and eccentric and has some autistic traits. Dr Furst thought that the defendant may be on the autism spectrum, however this does not qualify as a psychiatric diagnosis. Dr Furst excluded depression, mania and psychosis and noted there was no indication of excessive alcohol consumption or use of illicit drugs.

10. [28]

    Dr Furst disagreed with the opinion expressed by Dr Eagle as to the defendant meeting the criteria for paedophilic disorder and explained his basis for this further in his oral evidence: [5]

11. [29]

    Dr Furst disagreed with Dr Eagle’s conclusion that the defendant posed an above average risk of sexual reoffending if he ceases to be a forensic patient.

12. [30]

    On another testing parameter, the Level of Service Inventory-Revised (“LSI-R”), Dr Furst said that the defendant’s score fell in the low/medium risk/needs range for general and violent recidivism and that this accords with Dr Furst’s own clinical impressions that the defendant is not a high risk offender and has a relatively low risk of violent or general offending.

13. [31]

    Dr Furst also made the point that there is no clear treatment for the defendant: [6]

14. [32]

    Dr Dayalan concluded, (utilising actuarial assessment tools), that the defendant is in the above average category of risk, with a high level of stable dynamic risks and needs. [7] Dr Dayalan said that the defendant had not rehabilitated to a satisfactory extent and therefore an “argument could be made” that his risk of sexual offending has not significantly reduced from the time that the charges were laid. [8]

15. [33]

    Dr Dayalan said that in his view the defendant “would pose a serious risk of sexual reoffending if released without any supervision or treatment”, [9] and observed that he is unlikely to voluntarily accept any treatment or supervision.

16. [34]

    Having said that, Dr Dayalan agreed that the defendant does not present as a mentally ill or mentally disordered person and therefore does not come within detention provisions under the Mental Health Act 2007 (NSW). Dr Dayalan also agreed with Dr Furst that there is no potential for a community treatment order and that the defendant does not need a guardian.

17. [35]

    Dr Dayalan said in his oral evidence that he was aware of the obligations in place under child protection legislation for a sex offender although he did not refer to them in his reports. Dr Dayalan made the point that being “on the Register” would not allow for any treatment to be mandated for the defendant and so did not believe that would directly address the dynamic risk variables identified in his report. [10]

18. [36]

    Dr Dayalan expressed a view that the defendant’s fixation on the previous legal proceedings and grievances associated with being found unfit to be tried would probably increase the risk relevant to his reoffending [11] but he does not explain how or why that is the case.

19. [37]

    When pressed on the issue of availability of “treatment” as a reason to keep the defendant under the order, Dr Dayalan said that there is “some evidence” as to usefulness of treatment of individuals like the defendant, but that it was “not strong evidence.” [12] Dr Dayalan described potential treatment as “exploration into the option of medication” and “some form of cognitive behavioural therapy”. [13]

20. [38]

    Dr Eagle, forensic psychiatrist, carried out a document review but did not personally assess the defendant. She noted the defendant’s diagnosis was complex and she could not resolve the diagnostic complexity on the basis of the information she had. Dr Eagle did however conclude that the defendant does not clearly meet the diagnostic criteria for any psychological or psychiatric condition.

21. [39]

    Dr Eagle formed the view that the defendant “likely” has a paraphilic disorder, paedophilia, because: [14]

22. [40]

    Dr Eagle scored him in the above average risk category on the Static 99-R assessment instrument. There were limits in using the Stable 2007 scoring instrument because Dr Eagle had not conducted a clinical assessment of the defendant. Dr Eagle identified various risk factors including the defendant’s negative attitude to supervision and treatment, his poor problem solving skills, his feelings of social rejection, his possible identification with children, his limited prosocial supports, his negative emotionality (particularly in relation to his charges and legal authorities), some evidence of sexual preoccupation and drive, and likely a deviant sexual preference given the nature of his offending. [15]

23. [41]

    The plaintiff’s written submissions emphasised that Dr Eagle considered the defendant’s likely paraphilia disorder is a significant risk factor for sexual reoffending and if inadequately assessed, treated or managed, will significantly increase the defendant’s risk of sexual reoffending. [16] In essence Dr Eagle’s conclusion is that the defendant poses an “above average risk” of sexual reoffending if he ceases to be a forensic patient. [17]

24. [42]

    The defendant argued that this Court should give very little weight to Dr Eagle’s opinion because she did not assess the defendant and her report amounts to nothing more than a document review. Counsel for the plaintiff conceded there is some limit on the weight Dr Eagle’s report should be given.

25. [43]

    I am persuaded by the defendant’s submission that Dr Eagle’s report, whilst in my view carefully reasoned and thorough, has to be given little weight as she has not assessed the defendant. One matter I can take into account from that report, and this is common to the reports of Dr Dayalan and Dr Furst, is that the defendant does not meet any diagnostic criteria for any psychological or psychiatric condition. Another matter I can draw from Dr Eagle’s report is that because there is an absence of material that would allow longitudinal assessment with the benefit of collateral information by a treating psychiatrist, [18] and it does seem most unlikely this will ever be obtained, diagnostic clarity remains unlikely.

26. [44]

    The plaintiff’s written submissions emphasised psychologists’ and psychiatrists’ reports back to 1996. Given for the purposes of these proceedings I am assessing the risk that the defendant presents now there is limited relevance to those older reports, although I certainly do not disregard them.

27. [45]

    An assessment by Mr Robinson psychologist in 1996 and 1998 included the observation that the defendant vehemently denied any sexual interest in children and that in his view this obviously “is troubling” in the context of the charges and convictions.

28. [46]

    In 2014 Ms Robilliard, a forensic psychologist, observed that the defendant was difficult to interview, had an inappropriate manner, and had cognitive rigidity and fixed thinking consistent with autism spectrum disorder. The defendant was also not prepared to discuss the charges and professed the belief that “the 1997 charges remained unresolved.”

29. [47]

    Dr Martin, forensic psychiatrist, reviewed the defendant in 2014 and noted preoccupation with the legal proceedings from the 1990s, including that the defendant’s view was that documents had been forged and that he was never convicted – “someone forged the Judge’s signature.” [19] Whilst Dr Martin raised the possibility of an underlying psychotic disorder such as schizophrenia, he did not conclude that way but noted an impression that the defendant had an underlying paraphilic disorder such as paedophilia.

30. [48]

    Dr Allnutt, forensic psychiatrist, in March 2015 noted the defendant’s pathological fixation regarding the previous proceedings. Dr Allnutt thought autism spectrum disorder was a reasonable differential diagnosis, but did not have an adequate developmental history to confirm that.

31. [49]

    Dr Cheung, forensic psychologist, in March 2017 observed on risk assessment tools that the defendant was in the above average risk category.

32. [50]

    Dr Gubarewski, psychologist, in March 2018, noted difficulty confirming autism spectrum disorder because of the absence of information and the defendant’s continued refusal to give consent for contact with his family to obtain that information.

33. [51]

    Dr Chew, psychiatrist, in April and May 2018 found the defendant very paranoid and noted that the defendant denied suffering from a mental illness, maintaining that it was “a legal issue not a mental issue.”

34. [52]

    The confusion diagnostically continues with Dr Keating, a psychiatric registrar, in May 2018 noting possible features of autism spectrum disorder or an underlying diagnosis of psychotic illness.

35. [53]

    Dr Nguy, psychiatrist, in June 2018 noted autism spectrum disorder and a lack of insight into his offences.

36. [54]

    Dr Spencer, forensic psychiatrist in July 2018 concluded that the defendant did not have a psychotic illness but did have a presentation consistent with autism spectrum disorder.

37. [55]

    Ms Brunette, psychologist, assessed the defendant on three occasions between June 2018 and February 2019 and noted that the defendant had refused to do a sex offender program stating he wanted to “go to trial”. He also denied that he had a disability and so would not consent to referral to the NDIS.

38. [56]

    I conclude that all these varying assessments and reports simply reinforce the fact that the defendant has an odd manner, likely from autism spectrum disorder, that he is obsessed with the conclusions reached regarding his offending in the 1990s, he does not have any other diagnosed psychiatric disorder although possibly meets a paedophilia diagnosis, but highly qualified experts do not agree on that issue.

39. [57]

    The plaintiff’s written submissions trace through the history of multiple assessments and findings by the Tribunal however in my view the most relevant one is the most recent assessment in August 2019 which was focussed on the ongoing question mark over fitness to plead and/or be tried and concluded that he remained presently unfit to be tried.

40. [58]

    A person’s fitness to plead or otherwise, particularly in this case where there is an issue surrounding obsessive thinking about earlier interface with the justice system against a background of probable autism spectrum disorder and low cognitive ability, is a very different question to the question of whether the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient.

41. [59]

    It must be an unusual situation where a defendant has remained under the supervision of the Mental Health Tribunal as a result of a particular combination of circumstances that have prevented, and continue to prevent, his full engagement with the criminal justice system, yet he is not someone who possesses a diagnosable psychiatric disorder.

42. [60]

    The plaintiff’s written submissions make it clear that there is no reliance on material that falls within clauses 7(2)(f) or 7(2)(g).

43. [61]

    In respect of cl 7(2)(h), the plaintiff draws attention to the fact that when he imposed the limiting term for the possession and the dissemination of child abuse material offences in 2013, Judge Mahony SC regarded the objective seriousness of the defendant’s possession offences as “high or towards the higher end of the mid-range.” [20]

Whether serious harm to others can include possession and/or dissemination of child abuse material

1. [62]

   Counsel for the plaintiff argued that “serious harm” included possession and/or dissemination of child abuse material. It was submitted that where Button J in Attorney General of NSW v Lane [2019] NSWSC 1118 at paragraph [55] said this:

2. [63]

   In my opinion, Button J does not decide the issue, but in the context of a preliminary hearing indicates a preliminary view, relying upon Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 and Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 where Davies J and R A Hulme J indicated psychological harm could comprise “serious harm” under the MHFP Act. Button J then demurs, concluding that he does not need to determine that question at that time because in his view there is here a risk of “hands on” offending on the part of the defendant.

3. [64]

   In Attorney-General of New South Wales v Kereopa [2017] NSWSC 411, Davies J at paragraph [14] stated:

4. [65]

   In Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928, R A Hulme J at paragraph [16] stated:

5. [66]

   In my view “serious harm” in the context of this legislation can include psychological harm to children who are made the subject of child abuse material. Whether access and dissemination of that material amounts to fresh “serious harm” is an issue that would require more nuanced evidence and debate to determine than what I have available here.

Plaintiff’s submissions

1. [67]

   The plaintiff submitted that in determining the first limb, unacceptable risk, an evaluative task is required considering past conduct, the likelihood of reoffending and the gravity of reoffending, and that in the context of “making the community secure from harm”, this Court should take into account the following matters:

2. [68]

   Emphasis was placed on Dr Eagle’s reference to the seriousness of offending against children because it causes serious psychological harm to those children, and Dr Dayalan’s opinion that the defendant poses a serious risk of sexual reoffending if released without supervision or treatment. It was submitted that Dr Furst’s views should be viewed with circumspection because Dr Furst’s report contains a sub-text that accessing child abuse material does not amount to “serious harm” for the purposes of the MHFP Act.

3. [69]

   Also the defendant has not participated in a sex offender program or therapeutic intervention, (although I observe that Dr Furst says that this does not necessarily inflate his risk, and research shows programs do not necessarily decrease the risk of reoffending).

4. [70]

   The substantial weight of the evidence supports a conclusion that the defendant poses an unacceptable risk of causing serious harm.

Defendant’s submissions

1. [71]

   The material does not support to the high standard required that the defendant poses an unacceptable risk of serious harm to others.

Decision

1. [72]

   Having carefully analysed all of the available evidence, I am of the view that the first limb of the test has not been met. Whilst there is some risk, it does not reach the standard required to reach the statutory threshold. In reaching this view I observe that many would regard any risk of abuse to a child to be unacceptable, but the evidence does not persuade me to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient.

2. [73]

   I do not accept that Dr Furst’s opinion is undermined by any assumption on his part that harm to children used in child abuse material does not qualify as “serious harm”.

3. [74]

   I was unpersuaded by Dr Dayalan’s heavily qualified view about the reality of treatment, and this being any basis to keep the defendant under an order and supervision by the Tribunal.

4. [75]

   Whilst given my decision on the first limb, I do not need to consider the second limb of the test as to whether the risk cannot be managed by other less restrictive means, even if the first limb was satisfied, I am persuaded that far more appropriate and useful management of any risks presented by the defendant is to be in the community under the child protection legislation to which he is subject. This is much more directed towards the obligations, orders and management likely to reduce the potential risk to children posed by the defendant and persons like him.

5. [76]

   Annexed to the defendant’s submissions was a very useful schedule of comparison between the respective legislative regimes, and this schedule is annexed to this judgment.

6. [77]

   This comparison demonstrates in this particular defendant’s case the likely lack of utility involved with a number of the MHFP Act’s potential powers, conditions and orders to manage the defendant’s risk, when compared with those available under child protection legislation.

7. [78]

   Whilst this will not always be the case, in the unusual circumstances of this case, where a defendant was found unfit to plead because of obsessive preoccupations with his previous interface with the justice system (made more pronounced and difficult due to his likely underlying autism spectrum disorder), but he does not have a mental illness, the provisions of the child protection legislation present as more relevant and more useful, and are less restrictive and will adequately manage his risk.

   1. (1)

      The plaintiff’s summons is dismissed.

   2. (2)

      The plaintiff is to pay the defendant’s costs.