State of NSW v Love

1. [1]

   The State of NSW seeks final orders against Mr Love under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). Mr Love’s detention expires at midnight on 2 March 2020. The plaintiff’s primary position is that I should make a continuing detention order (“CDO”) for a period of 12 months followed by an extended supervision order (“ESO”) for a period of 3 years or in the alternative, an ESO for a period of 3 years commencing 3 March 2020.

2. [2]

   Mr Love resists both proposals.

3. [3]

   For the reasons that follow, I decline to make either order and I dismiss the plaintiff’s application, with costs.

The preliminary hearing and interim orders

1. [4]

   Following a preliminary hearing on 20 November 2019, Walton J made a high-risk offender interim detention order to operate for 28 days from 2 December 2019 together with an order that Mr Love be examined by two court-appointed psychiatrists: State of New South Wales v Love (Preliminary) [2019] NSWSC 1660.

2. [5]

   This order was extended by R.A. Hulme on 23 January 2020 to take effect from 27 January 2020 to 24 February 2020.

3. [6]

   A further extension was granted by Bellew J on 20 February 2020 to take effect from the final moment of 24 February 2020 to expire at the final moment of 2 March 2020.

Evidence at the final hearing

1. [7]

   At the preliminary hearing the plaintiff had relied upon two affidavits of Jonathan Vasiliou sworn 22 October 2019 (together with a volume of material – “JV 1”) and 4 November 2019 as well as an affidavit of Kelli Grabham affirmed 4 November 2019.

2. [8]

   At the final hearing on 26 February 2020 in addition to the affidavits referred to in the paragraph above the plaintiff relied upon:

3. [9]

   Both Dr Furst and Dr O’Dea gave evidence at the final hearing. Dr White, a Senior Career Medical Officer, and the person with oversight of Mr Love’s psychiatric needs in custody for the last five months, also gave oral evidence.

4. [10]

   No evidence was adduced in Mr Love’s case at the final hearing. Evidence regarding the proposed accommodation for Mr Love upon release at the expiry of his sentence was provided in the affidavit of Ms Grabham of 26 February 2020, confirming approval of the proposed residence with Mr Love’s uncle.

The issues at final hearing

1. [11]

   At the final hearing the following issues fell for determination;

2. [12]

   Mr Love conceded that he was a person in respect of whom a CDO or ESO could be made pursuant to sections 5B and 5C of the Act, the threshold conditions having been satisfied.

3. [13]

   The plaintiff bears the onus of proving to a high degree of probability that Mr Love poses an unacceptable risk of committing another serious offence if not kept under supervision under a CDO or ESO.

4. [14]

   Mr Love conceded that if he was not receiving an appropriate therapeutic dose of his medication for schizophrenia, then he would pose an unacceptable risk of committing a further serious violence offence, however the increase in his mental stability brought about by his treatment regime, particularly this year, is relevant to the evaluation of his risk of committing a serious violence offence.

5. [15]

   Mr Love argued that assistance, and if necessary, coercion is available in the community to secure treatment for him under the Mental Health Act 2007 (NSW). A community treatment order (“CTO”) is proposed. This CTO would be similar in terms and effect to the one he is currently being treated under in custody (“F-CTO” - Forensic Community Treatment Order). Police have powers under the Mental Health Act to collect Mr Love and transport him to hospital for enforced treatment if he misses his medication; s 58 of the Mental Health Act. Given all those circumstances, the Court should decline to order a CDO.

6. [16]

   Mr Love argued that an ESO is contraindicated. The proposed conditions have the effect of criminalising non-compliant conduct in the case of a severely mentally ill man who does not have insight. None of the proposed ESO conditions have the potential effect of reducing the risk of serious violent offending in Mr Love’s circumstances. Dr Furst in particular has pointed out in his report why many of the proposed conditions are counter-productive, irrelevant and potentially harmful to Mr Love.

7. [17]

   The plaintiff’s position was that given the lack of insight of Mr Love into his mental illness, and the risk that he will not comply with necessary treatment if released, he will become ill with his schizophrenia – which is currently treated – and he is then at risk of committing a serious violence offence.

8. [18]

   The only way to keep the community safe from this risk is to continue Mr Love’s detention for 12 months, followed by the commencement of an ESO for 3 years.

9. [19]

   It was argued that the Court can make that ESO now on the conditions set out and those conditions can be changed if those supervising Mr Love form the view that they should be changed in 12 months’ time after the expiration of the CDO.

10. [20]

    If the Court will not make a CDO, an ESO in the terms set out is necessary to keep the community safe from the risks posed by Mr Love.

The index offence and threshold issues

1. [21]

   It was accepted by Mr Love that the threshold requirements of s 5C(a)-(c) and s 13B of the Act are satisfied because:

2. [22]

   I am of the view that those concessions are appropriately made. I find that Mr Love satisfies the definition of “violent offender”, which is defined in s 4 of the Act to mean a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction of a serious violence offence.

3. [23]

   “Serious violence offence” is defined in s 5A of the Act to mean, relevantly to the index offence:

4. [24]

   The index offence was described in Hanley SC DCJ’s remarks on sentence:

5. [25]

   Judge Hanley SC DCJ sentenced Mr Love to imprisonment for 3 years and 6 months with a non-parole period of 2 years for that offence. Nothing is said in the remarks on sentence about any mental illness, other than Tourette’s Syndrome.

6. [26]

   Mr Love has now a clear diagnosis of schizophrenia. At the time this offending occurred, it is evident from the material tendered on this application that he was not receiving any treatment for that illness.

The Legislative Scheme and Principles

1. [27]

   The primary object of the Act is stated in s 3(1):

2. [28]

   At the final hearing for a CDO, the Court must first determine whether it is satisfied to “a high degree of probability” that Mr Love poses “an unacceptable risk of committing another serious offence if not kept in detention under a CDO”: s 5C(d); see also the comparable requirements for an ESO under s 5B(d).

3. [29]

   The making of a CDO (or an ESO) requires a state of satisfaction “to a high degree of probability”. This indicates a higher degree than the normal civil standard of proof, although not to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] (Mason P, Giles and Hodgson JJA).

4. [30]

   The expression “unacceptable risk” is to be understood according to its everyday meaning in the context of ss 5B(d) and 5C(d), and having regard to the objects of the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57, at [58], per Beazley P.

5. [31]

   The right of an offender to his or her personal liberty at the expiry of their sentence is not a relevant consideration in the determination of whether a person poses an “unacceptable risk” (at [44] per Beazley P) however consideration of an offender’s circumstances, including the offender’s interest in liberty and privacy may influence the ultimate exercise of discretion as to whether or not to make an order: Lynn at [131] per Basten JA and at [149] per Gleeson JA.

6. [32]

   In State of New South Wales v Simcock (Final) [2016] NSWSC 1805, Wilson J observed at [71] that “unacceptability of risk involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate”; see also State of New South Wales v Chaplin [2019] NSWSC 471 at [15].

Mandatory considerations: ss 9(3) and 17(4)

1. [33]

   Both s 9 and s 17 of the Act reiterate the requirement that the Court, in determining whether or not to make an ESO or CDO, must have as its paramount consideration, the safety of the community.

2. [34]

   The Court is also required to have regard to certain mandatory considerations which include, relevantly to Mr Love, reports from court-appointed experts; assessments prepared by any qualified psychiatrist, psychologist or registered medical practitioners addressing the likelihood of the offender committing a further serious offence; the results of any statistical or other assessment on that issue; any report by Corrective Services NSW as to the extent to which Mr Love can reasonably and practicably be managed in the community; any treatment or rehabilitation programs participated in or offered; options available to the offender that might reduce the likelihood of him reoffending; the likelihood that he would comply with the obligations of an ESO; his criminal history and the views of the sentencing court at the time any sentences of imprisonment were imposed and any other information available as to the likelihood that the offender will commit a further serious offence.

Criminal history

1. [35]

   Mr Love has a long history of offending. Between the ages of 15 and 24, he had a number of convictions for assault officer in the execution of duty, destroying and/or damaging property, stealing, aggravated break and enter, intimidation, common assault and custody of knife in a public place.

2. [36]

   In February 2016 the index offence occurred and he was convicted and punished for recklessly inflict grievous bodily harm. After this offence, Mr Love’s only criminal charges relate to conduct in custody involving spitting on corrections officers and one count of assault in circumstances where it is clear, on the expert psychiatric evidence only now available, that Mr Love was unwell with schizophrenia. More recent offending actually precipitated transfer and assessment, and appropriate treatment for his schizophrenia.

3. [37]

   As correctly pointed out by counsel for Mr Love, the index offence is the only offence that qualifies as a serious violence offence as defined in the Act.

4. [38]

   There is a conviction for one offence of assault occasioning actual bodily harm in 2008 where Mr Love, then aged 18, was sentenced with a co-offender for attacking and then punching and kicking a person unknown to them. The context seems to be an imagined or actual insult being delivered by that person to Mr Love and his co-offender. It is not irrelevant to my consideration, although it does not qualify as a serious violence offence.

Court-appointed expert: Psychiatrists Dr Furst and Dr O’Dea

1. [39]

   In his report dated 12 January 2020, Dr Furst sets out Mr Love’s psychiatric history. A diagnosis made by others of a drug-included psychosis in 2007, given the persistence and recurrence of psychotic symptoms over the last several years, was in Dr Furst’s view more appropriately regarded as an initial or first episode of the now more obvious schizophrenic illness. Mr Love received treatment in 2008 for auditory hallucinations exacerbated by substance abuse and/or substance dependency issues. He was prescribed antipsychotic medication through the Darlinghurst Community Mental Health Team in 2009.

2. [40]

   Dr Furst assessed Mr Love in November 2009 for the purposes of a pre-sentence report. Mr Love had pleaded guilty to 2 counts of aggravated break, enter and steal and one count of malicious damage. Dr Furst noted that Mr Love had ongoing auditory hallucinations; he was confused and worried about the voices and had paranoid feelings and difficulty concentrating. He would feel anxious and depressed, particularly when using drugs or withdrawing from ice. He was prescribed an antidepressant and continued to take Risperidone until several months before his arrest in November 2015 for a domestic matter (malicious damage and resist arrest).

3. [41]

   Dr Furst noted that Mr Love had been unemployed since he was 16 years old and had never been involved in a long-term relationship. He had been drinking alcohol from age 15, smoking cannabis from age 12 (which increased to daily use by the time he was 15), used ecstasy from age 15, and ice from age 16. His ice use had escalated over the following years.

4. [42]

   On interview about the index offence and recent progress with his mental health, Mr Love denied anyone had told him he had a mental illness, saying “no not really… no one told me anything about it” and that he didn’t understand why he was moved to Long Bay Forensic Hospital for treatment although when he got to Long Bay Hospital he said they forced him to have injections, saying, “I guess that’s something they do here”.

5. [43]

   Dr Furst said that Mr Love’s responses demonstrate an ongoing lack of understanding and severe lack of insight into both his chronic mental illness and his violent tendencies, especially when mentally unwell.

6. [44]

   Mr Love told Dr Furst that he would see the Sutherland Community Mental Health Team again if he had to, but that he “wouldn’t be happy”, saying “it’s a waste of time really”. This showed that he was unable to appreciate the benefits of seeing mental health staff in the future. When asked specifically if he would continue to take tablets he said “maybe” and when asked if he would continue to take his injections (his antipsychotic medication Clopixol), he said he would stop that because he “does not like needles”.

7. [45]

   The following observations were made by Dr Furst under the heading “Mental Health/Management Issues”:

8. [46]

   The Mental Health Review Tribunal determined in October 2019 that Mr Love was mentally ill, with appropriate care being available in the Correctional Centre setting under a Forensic Community Treatment Order (F-CTO) pursuant to s 67 of the Mental Health (Forensic Provisions) Act 1990 (NSW). This plan mandates ongoing attendance at psychiatric appointments in custody. The plan made was that this treatment will be transferred to a nominated Community Mental Health Team when Mr Love is released from custody.

9. [47]

   Under the heading “Other relevant issues” Dr Furst noted that in the months after his index offence in 2016, Mr Love was compliant, engaging and cooperative, presumably when he was still taking Risperidone. The aggression, bizzare and disorganised behaviour evident in September 2019 was largely the result of his schizophrenia being poorly controlled, and a relapse of his psychosis from 2017, driving his paranoia, mood instability, aggressive tendencies and disinhibition.

10. [48]

    Dr Furst noted a previous history of failing to accept the supervision and guidance of Community Corrections, and that he breached bail and parole on several occasions and has in the past been non-compliant with treatment recommendations with respect to his mental health and drug and alcohol issues.

11. [49]

    Dr Furst explained that schizophrenia is a chronic and severe mental disorder that affects 20 million people worldwide and is characterised by distortions in thinking, perceptions, emotions, language, sense of self and behaviour. Common symptoms include hallucinations (that is hearing voices or seeing things that are not there), delusions (fixed or false beliefs), mood disturbance, behavioural disturbance, motor abnormalities, negative symptoms and cognitive deficits. Schizophrenia is frequently associated with considerable disability and impairment in psychosocial function, including detrimental effects on educational and occupational performance.

12. [50]

    Treatment generally involves a combination of antipsychotic mediation and psychosocial support including case management and assertive psychiatric follow-up visits, the facilitation of assisted-living supported housing, supported employment and family-based interventions to assist in reducing the impact of illness.

13. [51]

    Dr Furst’s report was prepared at a time when it was thought there would be no post-release accommodation for Mr Love, so if released he would be homeless and this would lead to problems. (This is no longer the case and Mr Love’s uncle’s home has been approved for post-release accommodation). The concern was that there is a high likelihood if he is not supervised and treated, his mental state will deteriorate, and if he does not have a place of residence, his treatment cannot be followed up.

14. [52]

    Dr Furst explained that a Community Treatment Order (CTO) is a feasible option when there is stable accommodation available. The preferred option is for Mr Love to be scheduled under the Mental Health Act and referred to the nearest declared mental health facility. This would probably be Cumberland Hospital or Concord Centre for Mental Health. This would allow for ongoing treatment as an involuntary patient for psychiatric rehabilitation and careful consideration of community-based options.

15. [53]

    On the question of whether Mr Love poses a risk of committing a further serious office, Dr Furst said that there are limitations in the current literature in relation to risk prediction and validation. Risk assessment tools assist in relation to the risk of future violence and aggressive behaviour in broad terms, and/or reoffending rates amongst groups of individuals with clearly defined clinical actuarial profiles, generally based on a collection of empirically defined putative risk factors. Community utilised risk prediction tools in Australia are directed to future violence, rather than the prediction of serious violent offending at an individual level. Therefore, although Dr Furst is of the opinion that Mr Love is at high risk of committing further acts of aggression, violence and/or reoffending, “the future risk of him committing a serious violence offence in the future (as defined in s 5 of the Act) cannot be reliably predicted”. (Emphasis added).

16. [54]

    Utilising one assessment tool, (HCR -20-3), which assesses historical risk factors, Mr Love scored 18/20. Dynamic risk factors are very affected by Mr Love’s problems with insight and his residual paranoid beliefs, but his mood was noted to be much more stable now when compared to 2019, most likely attributable to the beneficial effects of his current antipsychotic medication. Mr Love scored negatively for his failing to take antipsychotic medication as prescribed in August and September 2019. Also relevant is the fact that he continues to voice opposition to ongoing follow-up and psychiatric treatment with medication.

17. [55]

    Problems with future risk management include that Mr Love does not want to see Community Mental Health services because he thinks it is “a waste of time”, although this is obviously tied up with his lack of insight into his illness. He has limited family support. He is more likely than not to disengage from treating agencies and supervising services and may have some adjustment problems with homelessness, stigma, discrimination and victimisation. He has in the past relied on alcohol and drugs when stressed. Given all of this, he is at high risk of future violence.

18. [56]

    Overall, Dr Furst put forward the view, which he maintained in his oral evidence, that the provisions of the Mental Health Act are the most appropriate means with which to manage Mr Love’s chronic mental illness and his future risk of violence and reoffending. There are specific measures available to refer Mr Love to a declared mental health facility for admission as an involuntary patient if he does not cooperate with his CTO.

19. [57]

    Whilst the most appropriate management in the first instance would be referral as an involuntary patient within a declared mental health facility, rather than direct release into the community, it became apparent during the oral evidence that Mr Love’s current response to treatment, as explained by Dr White in the presence of Dr Furst and Dr O’Dea, would not currently justify such a referral.

20. [58]

    On the question of the utility of an ESO, Dr Furst set out in his report eight (persuasive) reasons why the proposed conditions of the ESO sought by the plaintiff were inappropriate, unnecessary and/or unfair to impose on a person with chronic schizophrenia such as Mr Love. Provisions in relation to employment were irrelevant. Provisions in relation to drugs and alcohol were draconian and irrelevant. The use of an electronic monitoring device was not relevant to Mr Love’s risk. There is every likelihood that he would breach the ESO and end up in gaol again, “only to have the same ESO restrictions recommence when released from custody in a cycle of incarceration that would likely exacerbate his schizophrenic illness and would increase his risk of suicide/premature death over the longer term”. [2]

21. [59]

    Dr O’Dea assessed Mr Love on 30 December 2019. He diagnosed severe, chronic, treatment-resistant schizophrenia, characterised by positive symptoms including auditory hallucinations, paranoid delusions as well as negative signs of a blunted affect and limited attention and concentration. He noted significant cognitive impairment, irritability and disinhibited/disorganised, aggressive and violent behaviours. Dr O’Dea said that Mr Love’s schizophrenia is complicated by substance abuse, poor insight and compliance and a limited response to treatment to date.

22. [60]

    Dr O’Dea said that the criminal history, including what he described to be “repeated violent offending”, was likely to be directly related to schizophrenic illness, and, at least when in the community, Mr Love’s substance abuse and his lifestyle. Effective long-term treatment is needed to optimise his response to treatment and to manage and minimise the risk of relapse, and in turn, the risk of engaging in further general and violent offending behaviour.

23. [61]

    Dr O’Dea’s proposal was that it would be best if Mr Love could be admitted to a medium secure, (if not maximum secure) psychiatric facility pursuant to the Mental Health Act where he would be provided with ongoing treatment.

24. [62]

    Dr O’Dea said that there is an association between Mr Love’s psychiatric illness and potential substance abuse and offending behaviour in general. This is particularly so given Mr Love is a young man. There is connection between the history of violent offending and his illness, so if he were released into the community at the present time, there is risk of engaging in further offending behaviours. The risk of Mr Love engaging in further violent offending would be considered to be “significantly high”. [3]

25. [63]

    Dr O’Dea thought that management on a CTO was unlikely to be adequate, even with the addition of conditions such as those suggested in the proposed ESO. [4]

26. [64]

    Like Dr Furst, Dr O’Dea thought that caution should be used in relying on risk assessment tools because they measure the risk of offending generally, rather than the risk of committing a further serious violence offence.

27. [65]

    He concluded that “it would seem reasonable to consider that there would be a high degree of probability that Mr Love would pose a significant risk of committing a further serious violent offence (as defined in s 5A of the Act) in the long-term, if “these above outlined treatment interventions were not successfully implemented”. (Emphasis added).

28. [66]

    In terms of a CDO, Dr O’Dea said that a further extended period in custody under the provisions of the Act, with ongoing psychiatric treatment in custody, may manage Mr Love’s risk of committing a further serious violence offence. However, referral to a suitable psychiatric facility under the provisions of the Mental Health Act would be considered more appropriate and effective from a clinical psychiatric risk-management perspective, in providing care, treatment and control for Mr Love and for managing his risk in the longer term, and could be done whilst adequately and appropriately managing these risks.

29. [67]

    Dr O’Dea concluded:

30. [68]

    Dr Furst and Dr O’Dea gave evidence concurrently. Dr O’Dea explained why he was of the opinion that Mr Love’s schizophrenia was treatment-resistant:

31. [69]

    Dr Furst disagreed stating:

32. [70]

    Dr Furst expressed his concerns regarding potential compliance issues on a CTO:

33. [71]

    Dr O’Dea shared concerns that Mr Love would very likely breach his CTO conditions:

34. [72]

    Dr Furst noted however that there were potential pitfalls with a plan to rely on a hospital to be prepared to admit Mr Love under the Mental Health Act, particularly where his mental state has improved and he does not have active symptoms:

35. [73]

    The evidence of both doctors was to the effect that there is no guarantee that Mr Love, even if kept in custody, would be able to secure admission to a medium level secure unit given availability and waiting lists. [10] This is particularly so based on what Dr White said as to his current stability and the absence of any referral being currently under way.

36. [74]

    The evidence is clear from Dr White that if Mr Love were to remain in custody on a CDO, he would soon be returned to the main prison population. Dr O’Dea agreed that this is something that could impact on Mr Love’s mental health stating:

37. [75]

    Both doctors agreed that if Mr Love’s schizophrenia was adequately treated, that would reduce his risk of future violence.

Reports and assessments of other doctors

1. [76]

   Dr White is a Senior Career Medical Officer. He has been treating Mr Love for the last 5 and a half months. Dr White provided a report dated 23 January 2020 which confirmed that Mr Love had remained compliant with his treatment but that he did not like some of the side effects of Olanzapine, so Dr White changed that to an alternative tablet.

2. [77]

   Mr Love remained on fortnightly injectable medication which Dr White said will remain the mainstay of Mr Love’s treatment.

3. [78]

   Dr White agreed with Dr Furst and Dr O’Dea that despite current denial of active psychotic symptoms, Mr Love still presents as a mentally ill person within the meaning of the Mental Health Act. Dr White also noted that without post-release accommodation, and given the history of non-compliance and the possible use of illicit substances that could exacerbate his schizophrenia, it was highly likely that Mr Love’s condition would deteriorate, leading to him suffering from hallucinations and delusions which would mean that he would pose a significant risk of harm to himself and others.

4. [79]

   For those reasons Dr White was planning to have Mr Love scheduled if he was released from custody, and to attempt to have him admitted to Cumberland Hospital.

5. [80]

   However, in his oral evidence, Dr White revised his position significantly. Cumberland Hospital indicated they would not take Mr Love as he is not acutely mentally ill and they thought that he was potentially being sent there because he did not have anywhere else to live. This is not a reason for admission to a psychiatric hospital. [12] Dr White explained that in his opinion Mr Love met the criteria for a schedule under the Mental Health Act if he had no accommodation, because that would mean community treatment could not be organised and he would be a danger to himself and others. [13]

6. [81]

   Dr White noted that Mr Love was responding well to the injections and tolerating them well and has been continuing to take his medication without concern.

7. [82]

   Dr White explained that if no order was made by the Court and Mr Love was released into the community, the F-CTO would be changed to a CTO and Mr Love would be referred to the Sutherland Mental Health Team who could apply to the Mental Health Tribunal to vary the order. This would produce a community treatment plan which would be similar to the F-CTO.

8. [83]

   Dr White explained that there is a breach process for a CTO if Mr Love is released and the police can bring Mr Love to hospital to be given his injection involuntarily if he does not comply with his medication.

9. [84]

   Dr White thought that there were some ongoing negative symptoms of schizophrenia and so he “guessed” that could be described as treatment-resistance, but in his view the symptoms were reasonably mild and Mr Love does not now have any active symptoms of psychosis.

Reports of psychologists; risk assessments

1. [85]

   Mr Ardasinski prepared a Risk Assessment Report in September 2019. At that time Mr Love was mentally ill and was scheduled under the Mental Health Act and Mr Ardaskinski was not able to carry out an assessment. As a result, his report is entirely based on document review.

2. [86]

   Past problems identified included Mr Love’s history of violence in the context of his unstable mental health. Mr Ardasinski noted a history of refusing treatment. There had been erratic behaviour in custody including compulsive masturbation and excessive nudity. There were also instances where Mr Love had been compliant, engaged and cooperative.

3. [87]

   Mr Ardasinski examined Mr Love’s case notes for the 12 months prior to September 2019. He noted aggressive behaviour towards staff, violent behaviour such as punching a cell door and throwing cups of toilet water at staff, abusing staff, spitting and throwing objects. In August 2019 Mr Love was seen naked in his cell masturbating compulsively. There had been some sexually inappropriate comments to staff around that time.

4. [88]

   Mr Ardasinski noted that periods of compliance and cooperation, in particular at Parklea in 2016, demonstrated that Mr Love was at those times mentally stable. This provides some evidence of the importance of Mr Love accepting psychiatric treatment in order to manage his behavioural dysregulation.

5. [89]

   Whilst Mr Ardasinski identified some programs that may have been helpful for Mr Love, he was resistant to program participation throughout his time in custody saying he “wouldn’t really be willing” and he “didn’t think it would be helpful”. Mr Ardasinski noted that as at September 2019, Mr Love would not be suitable for group programs because he was mentally unwell but he could participate in programs if his mental health stabilised and his behavioural instability dissipated.

6. [90]

   On application of the risk assessment tools Mr Ardasinski assessed Mr Love’s risk of committing further violent offences as being within the high range. He also thought there was an elevated risk category for sexual violence despite no formal charges or convictions for any sexual offending. On application of one of the risk assessment tools addressing historical factors, matters such as Mr Love’s previous criminal history which was interspersed with violence, aggression towards authority figures, emotional dysregulation, capacity for serious violence within custody and animosity towards authority such as correctional staff and police, as well as his impulsivity, were all relevant.

7. [91]

   Mr Ardasinski also noted that Mr Love’s major mental illness (schizophrenia) is a concerning factor particularly given he has no insight into it. There is the additional problem of previous substance abuse, in particular ice, as well as in the past, binge-drinking and other drug use. There is also his paranoia which has, on occasion, led to violence.

8. [92]

   Mr Ardasinski concluded that Mr Love may continue to pose a significant threat to staff and fellow inmates if placed on a CDO, but that risk is manageable and has been managed in his current placement. This approach would guarantee the protection of the wider community from further potential harm because he would be incapacitated from enacting any violence-serious or otherwise-on unsuspecting members of the wider community. [14]

9. [93]

   Mr Ardasinski doubted that a CTO would solve problems because linkages to community mental health services are exceedingly difficult for forensic clients presenting with challenging behaviours. There is also concern that Mr Love may return to problematic drug use. A new violent offence could eventuate from a constellation of risk issues combining at the one time. In terms of overall risk, Mr Ardasinski said that there is a significant risk of impulsive, reactive violence, including serious violence if he were to be released in his current mental state. [15]

10. [94]

    A forensic psychologist, Catherine Wakely, reviewed Mr Love in November 2016 for a court report for the index offence. Her report is of limited use and relevance to the matters I am required to assess, but what the report does show is the inadequacy of mental health related material given to the sentencing judge, and at that time, the absence of an accurate diagnosis. Only incomplete psychometric testing was administered. The focus was on subjective matters to raise at the sentencing hearing. Interestingly, the history that Ms Wakely took is that Mr Love had Risperidone only intermittently, and had not taken it since he was released and was not taking it at the time of her review in November 2016. She observed also that Mr Love does not appear to have had any consistent past treatment. [16]

Correctional services risk management report – Robinson and Grabham dated 30 September 2019

1. [95]

   This report was prepared in September 2019 with a view to supporting and informing the application by the plaintiff for an order under the Act. Obviously this was at a time when Mr Love was acutely unwell and needed to be transferred to the MHSU for full assessment and the necessary drug therapy. Although the report clearly needed to be directed to how an ESO would function if Mr Love was released under the supervision of such an order, this report is prepared, it seems, without a proper understanding of Mr Love’s schizophrenia and those aspects of it that are thus able to respond to medication, as opposed to treating the risks associated with Mr Love as something over which he can exercise control independently of his medication for his mental illness. In stating this I am in no way being critical of its authors. A feature of Mr Love’s history is the lack of proper diagnosis until late 2019. Also, the reports of Dr Furst and Dr O’Dea have provided significant diagnostic clarity not available at the time of the report.

2. [96]

   As a result, the recommendations for management in the community focus on issues such as insight, impulsivity, interpersonal aggression and violent attitudes and historical problems that reflect the situation prior to his mental illness being appropriately diagnosed and treated.

3. [97]

   The report refers to previous periods of unsatisfactory compliance with supervision by Corrective Services New South Wales (CSNSW) noting failure to engage in treatment as directed and having been the subject of breach action resulting in the revocation of Mr Love’s parole and return to custody to serve his full sentence on two earlier occasions.

4. [98]

   Emphasis was also placed on 49 institutional misconduct charges which included disobey direction, intimidation, assault, fight or physical combat, destroy or deface property, damage to cell, throw article and failed to comply with Correctional Centre routine. It was noted that most of these events occurred on a single day on 8 July 2019.

5. [99]

   There are two observations to make about that; the first is that it is clear on the expert psychiatric evidence of Dr Furst and Dr O’Dea that Mr Love was becoming very unwell with his schizophrenia around this time. The second is that there is no pattern of this behaviour being repeated throughout his time in custody.

6. [100]

   Another feature underpinning the report is that it was written at a time when there was no suitable post release accommodation. That situation has changed.

7. [101]

   The risk management plan proposed is based on the risk factors identified by Mr Ardasinski and involves weekly interviews with two CSNSW staff (and, potentially, with police in attendance if deemed necessary). There will be discussion of supervision expectations, intervention, and planning and discussion of readiness to “change lifestyle habits”, weekly movement schedules prepared and reviewed with Mr Love with a view to him discussing potential planning and activities, scheduled and unannounced home visits, field visits and surveillance, weekly contact with forensic psychological services and alcohol and drug intervention services. Somewhat mystifyingly, electronic external monitoring is also proposed.

8. [102]

   A number of limitations of this management strategy have been identified by the authors. The first was the lack of appropriate accommodation (now no longer an issue), as well as an inability for the team to monitor Mr Love 24 hours a day, potential difficulty with untoward behaviour by Mr Love towards staff, the likelihood he will refuse to accept additional referrals and his resistance in the past to participating in substance abuse intervention programs in custody. There are unsurprisingly multiple other problems identified.

Treatment and rehabilitation programs offered in custody

1. [103]

   Mr Love refused participation in programs offered in custody. Based on the evidence of Dr Furst and Dr O’Dea as well as, to a lesser extent, Mr Ardisinski, it is unsurprising given Mr Love’s lack of insight into his condition that he declined such programs. As at September 2019, it is the opinion of Mr Ardasinski that Mr Love was not well enough to attend group programs but he may become fit to do so later.

Available options in the community, whether or not under supervision, that might reduce the likelihood of the offender reoffending over time

1. [104]

   This is a very important consideration in this case. It is clear on the evidence of Dr Furst and Dr O’Dea that Mr Love will need lifetime treatment for schizophrenia. It is also clear that because of the nature of his illness, at times he will need assistance with and perhaps coercion to undergo the necessary administration of fortnightly depot injections and other supportive medication.

2. [105]

   Both psychiatrists were clear in their view that the proper management of the defendant was under the provisions of the Mental Health Act.

3. [106]

   At the moment Mr Love is being treated pursuant to an F-CTO under the Mental Health (Forensic Provisions) Act 1990 (NSW), s 67 which provides:

4. [107]

   This sets out a clear mechanism by which the current F-CTO will convert to a CTO and care continue in the community.

5. [108]

   The current CTO is in place until October this year. There is facility under the Mental Health Act for that CTO to be renewed, enforced and if necessary or appropriate, varied or revoked; Chapter 3, Part 3 Mental Health Act.

6. [109]

   Significantly for Mr Love’s situation, ss 57-61A of the Mental Health Act provide extensively for CTOs including in s 59, enforcement with police assistance, if necessary:

7. [110]

   When viewed through the prism of Mr Love’s schizophrenia diagnosis it is obvious many ESO difficulties will arise if the schizophrenia is not well managed by medication. It is clear on the evidence of Dr Furst and Dr O’Dea and Dr White that what is required to keep the community safe from risk is to have a system in place that mandates, and if necessary enforces, the necessary drug treatment of the kind Mr Love is receiving now. It is frankly unsurprising that the two court-appointed psychiatrists took the view that the proposed ESO constellation of scrutiny, supervision, management and oversight is entirely inappropriate for a man with diagnosed schizophrenia like Mr Love. I share their view as to the irrelevance of many of the elements of the proposed ESO under the Act to an order of this Court - to address the risks associated with Mr Love.

8. [111]

   Given the difficulties posed by his condition, therapeutic interventions that involve him needing to have insight as to why he needs to do them and how he needs to go about them are obviously not useful and are unlikely to reduce risk. Indeed it is easy to see - given the explanation provided by Dr Furst as to the elements and nature of Mr Love’s schizophrenic illness - how the proposed ESO conditions would be counter-productive and lead to distress on the part of Mr Love and conflict with those attempting to enforce it.

Does Mr Love pose an unacceptable risk of committing another serious violence offence if there is no ESO or CDO

1. [112]

   The test for making a CDO or ESO is whether I am satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision or in detention under the order.

2. [113]

   There is only one offence in the record of Mr Love that satisfies the definition of a serious violence offence. That offence occurred in custody at a time when it is clear on the expert psychiatric evidence now available that Mr Love was suffering from undiagnosed and untreated schizophrenia.

3. [114]

   The evidence of both Dr O’Dea and Dr Furst is that whilst Mr Love is receiving appropriate treatment for his schizophrenia, his risk of committing any other offending is reduced.

4. [115]

   Obviously enough, treatment by way of fortnightly compulsory injections together with oral medication can be enforced whilst Mr Love is in custody. It seems clear to me that whilst undergoing appropriate treatment, Mr Love does not pose an unacceptable risk of committing another serious violence offence.

5. [116]

   That position is currently a reality, created by both the availability of proper treatment in DCS custody and the option and ability to make that treatment coercive if necessary, but the evidence of Dr White suggests that coercion has not been required in the 5 ½ months he has been treating Mr Love since his schizophrenia diagnosis was made.

6. [117]

   Dr O’Dea, Dr Furst and Mr Ardasinski are concerned that if Mr Love is released, he may require coercion to keep receiving the necessary fortnightly injections and other necessary treatment. He does not have insight into his condition, does not believe he is mentally ill and does not understand the need for the treatment he has been given. If he does not continue to receive the necessary medication, within a few months the medication will no longer be in his system and that may lead to an increase in his risk of committing an offence, and even a violence offence, but whether this will lead to a risk that he will commit a serious violence offence is very difficult to predict.

7. [118]

   Dr White’s evidence emphasises that there has been no difficulty with Mr Love taking the medication whilst he has been in the forensic hospital, although he too echoes the conclusions of Dr Furst and Dr O’Dea that Mr Love does not understand why he is having the injections and Dr White agrees that Mr Love has no insight into his illness.

8. [119]

   The question I have to answer is whether, bearing in mind the primary object of the Act is to ensure the safety and protection of the community, I am satisfied to a high degree of probability that he poses an unacceptable risk of committing another serious offence if not subjected to a CDO or an ESO.

9. [120]

   The risk - unacceptable or otherwise - associated with Mr Love that he will commit a further serious violence offence is one that attaches to him not receiving appropriate regular treatment of his mental illness rather than anything inherently associated with the need for detention in custody or indeed the need for supervision by corrective services staff in the community.

10. [121]

    This reality underscores the problem with the plaintiff’s application overall.

11. [122]

    In the written submissions on final hearing the plaintiff proposed that if on the day of final hearing the relevant arrangements for detention of Mr Love as an involuntary patient under the Mental Health Act was not finalised, only then should the court make the 12 month CDO sought. However if on the day of final hearing those arrangements were in place, the plaintiff would not press its application for a CDO.

12. [123]

    What this position demonstrates is that what the plaintiff really is seeking is a mechanism for coercive mental health treatment to manage Mr Love’s risk which arises from his schizophrenia.

13. [124]

    In its written submissions the plaintiff asserted that Dr Furst took the view that it was not appropriate for Mr Love to be released into the community on a CTO. Whilst that may have been an interpretation available on a reading of Dr Furst’s report, his views evolved during his oral evidence to a conclusion that release on a CTO was probably a reasonable option. Relying on an involuntary detention based on assessment in a hospital by a person who may well be a junior doctor may result in release with no mental health management at all. A CTO at least has the conditions already set out with potential police enforcement available to apprehend and take Mr Love to a treatment facility if necessary.

14. [125]

    The plaintiff’s written submissions were directed towards using a CDO to “operate in tandem with the regime under the Mental Health Act and so practically a CDO would ensure that the defendant is not released into the community before his transfer to a mental health facility”. [17]

15. [126]

    The plaintiff submitted that its intention was that once arrangements are made for Mr Love to be detained in a suitable mental health facility under the Mental Health Act, the plaintiff will approach the court and apply for a revocation of the CDO. [18]

16. [127]

    This is not a proper use of the circumscribed powers of detention available under the Act. Mr Love is either an unacceptable risk if he is not kept in detention, that is in gaol, or he is not.

17. [128]

    There are similar problems when considering the position with an ESO. I accept the evidence of Dr Furst that there are significant problems with the proposed conditions. As Dr O’Dea agreed, they do little if anything to reduce risk and they are inappropriate to Mr Love’s circumstances.

18. [129]

    Counsel for Mr Love submitted that it is open to find that if Mr Love is not receiving appropriate therapeutic doses of his medication for schizophrenia then he would pose an unacceptable risk of committing a further serious violence offence, however his increased stability in his treatment regime is relevant to the evaluation of his risk of recidivating with a further serious violence offence.

19. [130]

    This is reflective of Dr O’Dea’s view that “it is reasonable to consider that there would be a high degree of probability that Mr Love would pose a significant risk of committing a further serious violence offence in the long-term if the outlined treatment interventions were not successfully implemented”. [19]

20. [131]

    The question I need to consider then, is whether there is an unacceptable risk of the necessary kind, because the treatment interventions, so far reasonably successful, may not continue or will cease to be effective.

21. [132]

    Dr O’Dea referred to Mr Love’s schizophrenia as “treatment-resistant” however I prefer Dr Furst’s evidence on that issue. There are some residual minor symptoms. I take into account on that issue Dr White’s evidence about Mr Love’s response to treatment that he has observed. I am not satisfied that Mr Love’s schizophrenia is treatment resistant.

22. [133]

    There is at least some risk that if released, Mr Love will cease to engage with treatment and this will necessitate enforcement using the CTO provisions of the Mental Health Act. However I do not consider, taking into account the available mechanisms under the Mental Health Act and all the evidence taken and tendered on the application, that I can be satisfied to the necessary standard required that Mr Love poses an unacceptable risk that if not kept under a CDO or an ESO, he will commit a further serious violence offence.

Should an ESO be made?

1. [134]

   Even if I was persuaded that s 5C (4) and s 5D (4) were satisfied, I would exercise my discretion to decline to make a CDO or ESO.

2. [135]

   As submitted by counsel for Mr Love, an available basis to decline to make such orders is if Mr Love’s risks could be appropriately managed under the Mental Health Act: see State of New South Wales v Donovan [2015] NSWCA 280 at [15].

3. [136]

   I am of the view that is the case here and the provisions of Chapter 3, Part 3 of the Mental Health Act provide an appropriate management regime for Mr Love’s relevant risks.

4. [137]

   I also accept the submission of counsel for Mr Love that imposition of a CDO, or an ESO with the constellation of conditions proposed, would not appropriately address the risk of future offending in Mr Love’s case.

5. [138]

   It is clear that in all likelihood, if Mr Love remains in detention pursuant to a CDO he will shortly be returned to the normal prison population. Dr O’Dea made it clear in his oral evidence that it would be an inappropriate action from a psychiatric point of view to keep a patient such as Mr Love in custody because there is “nowhere else for him to go”.

6. [139]

   A collection of persuasive reasons were posed by counsel for Mr Love as to why the facts of the present case do not justify the imposition of either a CDO or an ESO including:

7. [140]

   In addition to these compelling matters, for the reasons I have set out above, it is not appropriate to use a CDO to force or to facilitate a particular mental health treatment pathway, particularly where the act of detaining to do so is considered by reputable senior psychiatrists to be inappropriate.

8. [141]

   On the question of whether I should exercise my discretion to order an ESO, the conditions of ESO proposed are inappropriate and irrelevant. Dr O’Dea’s opinion was that the proposed conditions are unlikely to address any of Mr Love’s risks. Accepting that evidence alone, the ESO sought should not be made. Even more persuasively, Dr Furst’s view was that the proposed conditions serve no purpose at all other than to criminalise the inevitable breaches that would occur given the underlying schizophrenia Mr Love suffers, and so would in all likelihood, lead to a cycle of incarceration that would likely exacerbate his schizophrenic illness, and increase his risk of suicide/premature death over the longer term.

9. [142]

   Given all of those considerations, I refuse to make an ESO.

   1. (1)

      Summons dismissed

   2. (2)

      Plaintiff to pay the defendant’s costs