Attorney General v Huckstadt by his tutor Rodrigues

1. [1]

   HER HONOUR: By amended summons, filed in Court today with leave, the Attorney General for the State of New South Wales seeks an order pursuant to the Mental Health (Forensic Provisions) Act 1990, subjecting the defendant to an extension order for a period of six months from the date on which the order is made, that being prayer 3 of the amended summons.

2. [2]

   The matter is today before the Court at a preliminary stage, with the Court asked to make the orders sought by prayers 1 and 2 only of the amended summons. That is, the Court is asked to make an order appointing two qualified experts to separately examine the defendant and provide reports to the Court as to those examinations, and directing the defendant to attend the examinations, that being prayer 1; and to make an interim extension order for a period not exceeding three months from the date on which a current extension order expires, that being prayer 2. The extension order to which the defendant is presently subject will expire at midnight on 16 January 2019. The defendant, through his tutor, opposes the making of the interim orders, arguing that the Court cannot be satisfied that an extension order is justified.

3. [3]

   The matter has some history in that the defendant is, as I have noted, presently the subject of an extension order. That order will expire in six days’ time. On 19 April 2017, her Honour Adamson J determined an application by the Attorney General for preliminary orders, preparatory to the determination of the first application of this nature relating to the defendant. Her Honour made orders appointing Dr Andrew Ellis and Professor Susan Hayes to separately examine the defendant and report to the Court, and requiring the defendant to attend those examinations. She also made orders subjecting the defendant to an interim extension order for a period of 28 days: Attorney General for the State of New South Wales v Huckstadt [2017] NSWSC 441.

4. [4]

   The interim extension order was itself extended prior to her Honour Schmidt J hearing the application for final orders. Her Honour's decision as to final orders is cited as Attorney General for the State of New South Wales v Huckstadt (No 3) [2017] NSWSC 944. This judgment should be read in conjunction with the 2017 decisions. The earlier judgments set out the defendant's general background and circumstances, information that is of direct relevance to this decision.

5. [5]

   As in the earlier cases, because of the defendant's incapacity, a tutor has been appointed to assist him in these proceedings.

6. [6]

   The Attorney's application is made pursuant to the Mental Health (Forensic Provisions) Act. There is now a considerable body of authority that relates to the interpretation and application of the Act with respect to applications such as this. Consideration of the relevant provisions and case law may be found in both of the 2017 decisions to which have I have already referred, decisions which, for present purposes, I gratefully adopt.

7. [7]

   There are a number of preliminary statutory requirements that the Attorney General's application must meet. The defendant takes no issue with the satisfaction of those requirements, which might broadly be categorised as administrative and evidentiary, and I am satisfied that the application meets them.

8. [8]

   The real issue here is can the Court be satisfied that the matters alleged in the application and supporting documentation would, if proved, justify the making of an extension order. If the Court is so satisfied, independent appropriately qualified experts must be appointed. If not, the application must be dismissed, thus disposing of unmeritorious applications at an early stage. The Court may make an interim extension order pursuant to cl 10 of sch 1 to the Act if the limiting term will expire prior to determination of the matter, and if satisfied that the matters alleged in the supporting documentation, if proved, would justify the making of an order. That is, the Court must be satisfied that the supporting documentation is capable of satisfying it at a final hearing, to a high degree of probability, of two matters, being that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient; and that the risk cannot be adequately managed by other less restrictive means, including classification as an involuntary patient under s 53 of the Mental Health (Forensic Provisions) Act.

9. [9]

   In considering whether that is a conclusion which can be reached here, the Court has had regard to the affidavits of Greta Bromwich, affirmed on 30 November 2018 and 14 December 2018, respectively, together with the annexures to the affidavits. The annexures include what I understand to be much of the evidence which was placed before her Honour Adamson J and her Honour Schmidt J in 2017, together with some material relevant to events after July 2017.

10. [10]

    The 2017 decisions of the Court helpfully and comprehensively summarise the facts and circumstances of the case until July 2017 and I gratefully rely upon them without intending to repeat what was there said. As to more recent events, the evidence relied upon by the Attorney General is limited to some extent at this preliminary stage because, in part, of an anomaly in cl 17 of sch 1 of the Act in the form it took until the proclamation of amending legislation on 28 November 2018 and, further, by the defendant's refusal to be examined by Dr Ellis for the purposes of the present application.

11. [11]

    The defendant has filed and tendered a volume of documentary evidence and I will come to that evidence shortly.

12. [12]

    The Court has before it two reports from Dr Ellis, written without benefit of a recent consultation with the defendant; his oral evidence taken by telephone today; material obtained from the Mental Health Review Tribunal; and various medical, ambulance, and progress notes related to the defendant. There is nothing in the material to suggest that the defendant has conducted himself in such a way as to elevate the level of risk he is said to pose to the community as that risk was assessed by her Honour Schmidt J in 2017. Rather the risk identified relates to cessation of the current supervisory regime and, as a consequence, elevation of risk in circumstances where the defendant has frequently declared his intention of living independently when not subject to an order.

13. [13]

    Although the defendant's present living and support regime can continue in the absence of an order, there is a prospect it may not do so without an order. This, to some extent, became the focus of the hearing before me today.

14. [14]

    The Attorney argued that, if not subject to an order, the defendant may leave his present accommodation and either become homeless, or drift into potentially highly unsuitable share or family accommodation, where he is at risk of committing opportunistic child sexual assault offences. There is some support for that in the evidence, if the evidence is proved.

15. [15]

    Dr Ellis has prepared a report dated 11 November 2018, together with a second report prepared later in November 2018. In his first report Dr Ellis noted the limitations of a risk assessment conducted on the basis of documentary material, although without concluding that such an assessment was impossible. He said:

16. [16]

    Having reviewed a large volume of documentary material and having regard to his own earlier assessments in 2010 and 2017, assessments of the defendant in person, Dr Ellis concluded that the clinical care which the defendant requires and which should be provided to him even without an order should be adequate to manage risk.

17. [17]

    Dr Ellis provided information from the records as to the defendant's current circumstances. Dr Ellis set out that the defendant is a man of 60 years of age who is not married. He resides as a forensic patient at an intensive residential support site in Tarlo, which is near Goulburn. He is provided services by the Ageing, Disability and Home Care Service, part of the Department of Family and Community Services. The accommodation facility is operated by a non-government disability service provider. Mr Huckstadt has case management and psychiatric review conducted on a regular basis by the Southern New South Wales Local Health District. He is presently medicated to address, and assist in the treatment of, a number of medical issues, including prescription of an antidepressant medication, an anticonvulsant medication, and medication for chronic pain. The defendant is also subject to a financial management order. A previous guardianship order has expired.

18. [18]

    Dr Ellis set out the current clinical issues with respect to Mr Huckstadt and noted his current psychiatric status, together with an updated medical history. The doctor notes that there have been no recent behaviours of concern from the defendant to staff. He has contact with his sister and he has been cooperative with all appointments. The defendant is provided support with medication administration, the preparation of his meals, shopping, and transport.

19. [19]

    In his accommodation he is active in gardening, lawn mowing, and caring for animals that live within the residence. When away from the accommodation he has what is referred to as "line of sight supervision". Mr Huckstadt has never been observed by staff to be aggressive or to engage in inappropriate sexual behaviour. He has sometimes been irritable about his circumstances, but he is regarded as pleasant in his interactions. No mood or psychotic symptoms have been noted by staff.

20. [20]

    Mr Huckstadt sees a psychogeriatrician, Dr Raymond. There have been no changes to his diagnosis or treatment since he was released from custody, and nothing to contradict Mr Huckstadt's previous history as it was before the Court in 2017, and as known to Dr Ellis. Dr Ellis summarises that the defendant is consistently diagnosed with a neurocognitive disorder, an intellectual disability and, historically, substance abuse disorders. He has been and, it would appear, continues to be treated for depression. Dr Ellis notes that a psychosexual disorder has never been formally diagnosed as the defendant has never discussed the offences which he was found to have committed on the available evidence. His more recent cognitive decline is likely, in the doctor's opinion, to conclude any formal diagnosis of psychosexual disorder.

21. [21]

    Dr Ellis records that since the defendant was released from custody he has taken up tobacco smoking, something which he also did prior to his entry into custody. In the past the defendant had a history of cannabis and alcohol misuse, but there is no evidence that the defendant is currently using either substance in his present accommodation. The most recent medical information available to Dr Ellis set out a number of recent cerebrovascular accidents which occurred in 2017, with a further problem of seizures. That is, no doubt, the condition to which the prescribed anticonvulsants are directed. Mr Huckstadt receives regular medical reviews. Other medical conditions which Mr Huckstadt suffers are chronic headaches, ischaemic heart disease, hypertension, and emphysema.

22. [22]

    In terms of a psychiatric diagnosis, Dr Ellis opines that the defendant would meet criteria for a major neurocognitive disorder and that that is his primary diagnosis of concern. Dr Ellis considered that that diagnosis is secondary to a head injury which the defendant suffered at a young age, and also more recently to the cerebrovascular disease from which he suffers and which has progressed. Underlying this is an intellectual disability which has been present since the childhood head injury, to which I have referred. Dr Ellis noted the defendant to present clinically with memory and executive function deficits when he last saw him in 2017, with similar deficits noted at reviews by clinical staff since his release from custody. Dr Ellis considers that the full extent of any cognitive deficit would require extensive neuropsychometric measurement and MRI neuroimaging.

23. [23]

    In terms of any risk to others, at page 7 of his first report of 11 November 2018, Dr Ellis notes that risk assessment techniques do not permit a determination as to whether an individual person will re-offend by the commission of a serious sexual or violent offence that would cause harm. He has referred to a number of actuarial measurements; tools such as the STATIC 99R test, and other structured professional judgment tools designed to assess risk, insofar as that is possible. He does, however, note the limitations which are attached to such actuarial measurement tools.

24. [24]

    Dr Ellis notes that, on the information currently provided, the defendant presents as someone with very limited insight into his mental function and no insight into its relationship to his prior offending conduct. He suggests that that is not likely to change, given the defendant's cognitive limitations, and it will require ongoing supervision to manage. There are presently no acute symptoms of any mental illness such as delusions or hallucinations; the defendant's psychiatric condition is regarded by Dr Ellis as stable. The defendant displays no negative attitudes and he is cooperative with most aspects of the current care and supervision to which he is subjected. The doctor notes that when the defendant is not cooperative, he is persuadable by staff. He is no longer impulsive and he requires considerable support and direction for his ordinary daily activities.

25. [25]

    Presently, professional support to the defendant is extensive and, in Dr Ellis's view, appropriate. He notes that it is not likely that the defendant would be exposed to stress in supported accommodation, and in that accommodation he has coped adequately with his new medical conditions, including the stroke and seizure episodes. The doctor regards the current management regime as well addressing risking factors.

26. [26]

    Dr Ellis refers to the defendant's age. As I understand it, he is presently 60 with a birthday later this month. Dr Ellis says that age is a relevant consideration here because re offending in persons over the age of 60 is "very uncommon for sexual and violent offences". In the defendant's case, the doctor says that reduction in concern is warranted because ageing has also been associated with physical and cognitive decline. The doctor suggests that the primary concern for future offending would be the return of paraphilic behaviour directed to young females, coupled with unsupervised access to such children. He notes that that risk factor is controlled in the current accommodation setting.

27. [27]

    Dr Ellis opines that the defendant benefits from the current supported and supervised accommodation arrangements. He has high needs for daily living but they are met by his current placement, and he has access to 24 hour a day supervision in an area which is remote from town and remote from other people, other than residents and staff. Presently the defendant only goes to town when supervised. The doctor has concluded that that is a strategy that works well in managing any risk.

28. [28]

    Dr Ellis observes that the defendant is currently compliant with current supervision and he shows no sign that that compliance would not continue if he were to be subject to an order. Staff would be in a position to quickly intervene if the defendant were, for example, to seek to abscond from the accommodation at which he is currently required to live.

29. [29]

    The doctor notes the defendant would not be considered to be a mentally ill person, according to the Mental Health Act 2007, something which has consequences in terms of potentially being made an involuntary patient. Dr Ellis considers that the clinical care provided to the defendant will manage the risk associated with his various conditions and probably do so rather than a specific type of legal order. He refers to the defendant's physical decline since the last review in 2017 and the impact that that has on the level of risk that the defendant might be concluded to pose to the community.

30. [30]

    Some qualification of his initial opinion was given by Dr Ellis in his second report. In that report Dr Ellis noted that the underlying assumption of his earlier opinion was that the defendant would remain in supervised accommodation, as is currently the case. Dr Ellis opines that the defendant requires accommodation with 24 hour staff, where residents could only leave the facility with staff supervision and where any children visiting would be monitored. If not able to have access to such accommodation, Dr Ellis thought it likely that the defendant would end up homeless. The risk of opportunistic offending against a young and vulnerable child would be present in such circumstances. The doctor considered the involvement of clinical staff in the defendant's daily living to be necessary to him.

31. [31]

    In evidence taken this morning by telephone, Dr Ellis was referred to documentary material tendered by the defendant which suggests that Mr Huckstadt's physical frailty has increased and his mobility decreased to the point where it may be physically impossible for him to commit a serious offence, even opportunistically. On the basis of the evidence put to him, Dr Ellis accepted that in circumstances where the defendant is largely confined to his room in his present place of residence, the risk of the commission of an offence is much reduced and can be adequately addressed by a guardianship order, coupled by the legislative restrictions placed upon the defendant as a registrable person under child sex offender registration legislation.

32. [32]

    Other evidence in the Attorney's case establishes, if accepted, that the defendant resides in stable, supported accommodation where he is supervised and assisted by staff 24 hours a day. That accommodation is regarded as necessary, not only for the purposes of risk management but also, and perhaps more significantly, to assist Mr Huckstadt, having regard to his physical disabilities. There is no suggestion but that Mr Huckstadt has conducted himself appropriately at all times since he was last before the Court. He has not shown any inclination to sexually offend, nor has he conducted himself in an overtly sexual way at any time. His progress has been such that those with the task of supervising the defendant, including the Mental Health Review Tribunal, have expression an intention to "step down" his supervision and give him more freedom that he has hitherto had.

33. [33]

    The time able to be spent by the defendant out of “line of sight supervision" has been increased in recent times and is likely to be increased further even if an order is imposed upon Mr Huckstadt. The real risk, on the Attorney's case, is that that the defendant, despite his accommodation being the best for him, given his physical disabilities, could leave it if he were not subject to the restriction that an order, or some other form of comparable supervision, would impose.

34. [34]

    I turn now to the defendant's case. The defendant has tendered and relies upon three affidavits from his solicitor, annexing a quantity of documentary evidence, together with the contents of exhibit 1. In the first affidavit of Mr Huckstadt's solicitor, Callum Hair of 8 January 2019, Mr Hair produces a volume of material obtained on subpoena relevant to the defendant's present circumstances.

35. [35]

    The documentary material points to the defendant's increasing physical frailty. In recent months the defendant has had a number of admissions to Goulburn Base Hospital with cardiovascular and other incidents. Records from Goulburn Base Hospital and from outpatient facilities show that the defendant has demonstrated symptoms consistent with stroke and has further suffered from seizures. He now has significant weakness in his limbs and reduced vision. There are records from August 2017 showing hospital admissions and outpatient review in which the defendant is noted as presenting with weakness and deteriorating function. Reports to the Mental Health Review Tribunal also refer to his increasing physical frailty.

36. [36]

    A report of 17 April 2018 describes the defendant's then circumstances, noting his accommodation at Tarlo and his deteriorating mobility. The defendant's wish to leave his group home accommodation is referred to, as are some of the activities he engages in, such as gardening, drawing, and the care of animals living at his home. That report concludes:

37. [37]

    A later progress report dated 9 November 2018 records the same stated wish to leave the Tarlo accommodation. The author says that the defendant

38. [38]

    Later in the same report the author notes that the defendant is well-placed at the group home and seems to be happy there at present, though says that he will move out if his orders are ceased. He is not currently suffering from any acute mental health issues but does, I interpolate, have degenerative mobility issues that are likely the result of a number of CVAs or cardiovascular accidents that he has suffered in more recent years.

39. [39]

    A progress report of 16 November 2018 refers to the defendant's reduced mobility noting his need for an aid such as a stick or a walking frame to walk. Reference was again made to future accommodation with the author noting,

40. [40]

    The same report noted that the defendant lacked insight into his future needs.

41. [41]

    Cardiovascular incidents continued throughout 2018. A record of 30 November 2018 recorded the defendant as presenting with "possibly another seizure" and being more confused than previously. He suffered another apparent seizure on 1 December 2018 with a 24 hour admission to hospital as a consequence. He is regarded as at high risk of falls.

42. [42]

    Mr Hair has also produced a copy of an application to the New South Wales Civil and Administrative Tribunal for a guardianship order filed with the Tribunal on 19 December 2018. That application is yet to be determined.

43. [43]

    The defendant has been granted a funded plan under the National Disability Insurance Scheme evidenced by both documents produced by Mr Hair as part of his affidavits, and by the contents of exhibit 1. In an annexure, “W”, to the affidavit of 8 January 2019, an evaluation of the defendant's situation is recorded as follows:

44. [44]

    The defendant's disabilities are summarised, it appears, as at May 2017, as including lower limb weakness and subsequent impaired balance, pain in his lower limbs which is occasionally considerable, weakness in the left upper limb, and unilateral vision loss. More recent information contained in exhibit 1 confirms the approval of a funded National Disability Insurance Plan which specified accommodation in his present supported residence. Dated 23 October 2018, it records the defendant as living at Tarlo with two other people, with the assistance of staff. The defendant is recorded as having an intellectual disability, a brain injury, and vascular dementia. He is said to be a keen gardener who, when feeling well, is able to mow lawns and maintain gardens. He is self-reliant in personal care and assists with domestic tasks and in the care of animals living at the residence. His reduced mobility is referred to. A wheelchair is said to be of likely benefit to him if obtained.

45. [45]

    Recent staff reports relevant to Mr Huckstadt, also part of exhibit 1, record the defendant as expressing the wish to go out, but not the will. He has, as recently as during December 2018, been offered the opportunity of "alone time" but not taken that opportunity up, preferring to stay at home or go out with the support of staff. A report to the Mental Health Review Tribunal for its scheduled review hearing tomorrow, 11 December 2018, being annexure A to the affidavit of Mr Hair of 8 January 2019, records similar information.

46. [46]

    As to his current situation it is noted that,

47. [47]

    During a current mental state examination the defendant referred to his wish to leave the group home, with the report to the Mental Health Review Tribunal noting:

48. [48]

    The final evidence relied upon by the defendant is produced by Mr Hair in his affidavit of 9 January 2019 as annexure A. Annexure A is a report written by staff of the Community Justice Program which has been prepared as a Risk Assessment Report for the upcoming hearing of the Mental Health Review Tribunal. It appears that the defendant was not personally interviewed by the authors as they do not refer to consultation with him as a source of information. The report notes the following as to Mr Huckstadt's current circumstances, the authors say:

49. [49]

    The report refers to concerning behaviours being child sexual abuse, theft related behaviour, violent behaviour and alcohol and drug abuse. Those behaviours are referred to on the basis of historical factors. Actuarial tests being the STATIC-99 and the ARMIDILO-S were used to assess current risk, with the latter being regarded as potentially more reliable because of its capacity to assess dynamic factors, a greater capacity than is so for the STATIC-99 test. Although some risks are identified in the report they are regarded, as a general summary, as low, according to the ARMIDILO assessment. The prospect of reoffending is regarded as limited or reduced by the defendant's lack of any expressed interest in or exhibition of sexual behaviour, by his compliance with the requirements of the current order, his good relationships with staff at his accommodation, and his physical deterioration and dependence on staff.

50. [50]

    The risk is summarised thus:

51. [51]

    That noted, a risk scenario postulated as one of high risk would likely arise if Mr Huckstadt disengaged from support services or absconded from his accommodation.

Consideration

1. [52]

   The issue at this preliminary stage is whether the Court can be satisfied to a high degree of probability that the supporting documentation is capable of satisfying the Court at the final hearing of the following matters to that high degree of probability: that the defendant poses an unacceptable risk of causing serious harm to others if not a forensic patient; and that the risk cannot be adequately managed by other less restrictive means.

2. [53]

   In the State of New South Wales v Tillman [2007] NSWCA 119, similar wording in the (High Risk Offenders) Act to the test to be applied by the Court in this matter was discussed in the following way, at [98];

3. [54]

   In his submissions the defendant challenges that the Court can be satisfied to a high degree of probability that he poses an unacceptable risk of causing harm and that the risk cannot be adequately managed by other less restrictive means. His contention is that, having regard to his exemplary conduct over time, his stable accommodation, and his physical frailties, the Court could not be so satisfied.

4. [55]

   It may be that if a guardianship order is made by the New South Wales Civil and Administrative Tribunal giving authority to a guardian to determine where the defendant will live, that that will be so. However, I am concerned at this preliminary stage, and taking the Attorney's case on the basis that it will be proved, that there is evidence of the defendant's intention to leave his present supported accommodation as soon as his obligations as a forensic patient are at an end. That could mean he moved to reside with his sister or it could, as Dr Ellis speculated, lead to homelessness. It would certainly lead to a cessation of all controls over the defendant's access to children and all monitoring of any such access he did have. If the evidence of the defendant's oft and recently stated intention of leaving the group home if he can is accepted, there would be a risk to the community, in my view.

5. [56]

   The Court does not have to be satisfied to a high degree of probability that an unacceptable risk will manifest; it has to be satisfied to a high degree of probability that the defendant would pose an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. Although the probability that the defendant would actually have access to a child and sexually assault that child must be relatively low having regard to his physical frailties, that does not alter my satisfaction to a high degree of probability that he poses an unacceptable risk of causing serious harm. There could be no doubt that if a child were to be sexually assaulted by the defendant, serious harm would be occasioned.

6. [57]

   At present I cannot conclude that there are less restrictive means of managing the risk. That would not have been my conclusion had there been a guardianship order as to accommodation, but that is not presently the case. It seems likely that a guardianship order could provide a less restrictive and entirely appropriate means of mitigating such risk as is posed by the defendant by giving a guardian the power to determine where Mr Huckstadt is to live. If he continues to live in his present accommodation, or something similar to it, in my view there would be little or no risk to the community. However, as I have observed, there is no current guardianship order and whether such an order is granted cannot, at the present time, be predicted beyond concluding that it appears likely on all of the information available to this Court. That is, however, a matter for another body. If a guardianship order is in fact granted in the near future, that will be a matter for either the Attorney General to consider in determining whether it is appropriate to proceed to seek final orders in this matter, or for the Court hearing an application for a final determination of the Attorney's application to consider.

7. [58]

   On all of the available material, and viewing it in the way that the legislation and the authorities direct that the Court must, I conclude that there is a risk of the nature the legislation seeks to regulate and that it is appropriate in all of the circumstances at this preliminary and interim stage to grant the interim relief sought.

8. [59]

   Although I propose to make the orders sought by prayer 2, I intend to make an Interim Extension Order for a period of only two months from 17 January 2019 to 16 March 2019 rather than for three months. A period of two months should be sufficient for the New South Wales Civil and Administrative Tribunal to determine the guardianship order application currently before it and for experts to examine the defendant and report to the Court. Having regard to all of the evidence I do not intend to subject the defendant to a longer Interim Extension Order than is mandated on all of the evidence, and in the circumstances of this case.

9. [60]

   The Court makes the following orders: