Attorney General of New South Wales v Skerry (bht Limbury) (Final)

1. [1]

   HIS HONOUR: By summons filed on 16 October 2024, the Attorney General of New South Wales (the plaintiff) sought interim and final orders pursuant to ss 130 and 131 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act). The defendant appeared by his tutor, Ashley Limbury. As a forensic patient, the defendant is a “person under a legal incapacity”: Civil Procedure Act 2005 (NSW) s 3; thus, pursuant to r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW), the appointment of a tutor is required to “carry on proceedings”.

2. [2]

   Interim orders were made by me on 28 November 2024: Attorney General of New South Wales v Skerry (bht Limbury) (Preliminary) [2024] NSWSC 1520. Pursuant to ss 130 and 131 of the Act, the defendant was made subject to an interim order for the extension of his status as a forensic patient commencing upon the expiry of his previous extension order on 12 February 2025, for a period of three months, which was subsequently extended.

3. [3]

   The defendant did not oppose that order and reserved his position in respect of the final order sought, which was for an extension of his status as a forensic patient for a period of five years from the date of the order, or for a length to be finally determined following receipt of any Court-appointed experts. That order was sought pursuant to ss 121, 127(1)(a) and 128 of the Act.

4. [4]

   I ordered that two forensic experts be appointed pursuant to s 126(5) of the Act, and that their reports be furnished to the Court. Reports have been received from Dr Carollyne Youssef, who is a clinical and forensic psychologist, dated 12 February 2025, and from Dr Calum Smith, who is a forensic psychiatrist, dated 13 February 2025. In view of their opinions, the plaintiff has modified the order sought to an extension for four years. The defendant did not oppose an extension order, but submitted that it should be for a period of three years.

5. [5]

   The hearing of the application concerning the final orders sought occurred on 27 March 2025. On 7 May 2025, I made an order that the defendant’s status as a forensic patient be extended for a period of three years from the date of the order, which means that it will expire on 6 May 2028, together with an ancillary order restricting access to the Supreme Court file in the matter. These are my reasons for that order.

The legislative framework

1. [6]

   The relevant part of the Act is Pt 6, “Extension of status as a forensic patient”. The objects of Pt 5, which are stated to apply to Pt 6 as well, are outlined in s 69(1) as follows:

2. [7]

   Section 122 of the Act provides the criteria for determining an application for an extension order:

3. [8]

   Section 127(2) of the Act sets out a non-exclusive list of matters that the Court must have regard to in determining whether to make an extension order:

The defendant’s background

1. [9]

   The parties have jointly agreed to a summary of facts, which is an updated version of a statement of agreed facts that was tendered at the preliminary hearing. It is to the following effect and, for that reason, most of this summary is in the same terms as my summary of the agreed facts in the preliminary judgment.

2. [10]

   The defendant is presently 57 years old. He has siblings, he is not in a relationship and has no children. He had a close relationship with his mother, who died in early 2024.

3. [11]

   The defendant’s criminal history commenced when he was aged 17. It includes entries for negligent driving, possession of a prohibited drug, contravention of an Apprehended Violence Order, breach of bail conditions, unlawful entry, common assault, goods suspected of being stolen, shoplifting, refusing/failing to pay for meal, aggravated indecent assault of a victim under the age of 16 years, using an offensive weapon to prevent lawful detention, destroy/damage property, aggravated sexual assault, and break and enter.

4. [12]

   As to his sexual offending, I note that on 10 March 2009, the defendant was convicted of common assault. The police facts alleged that he touched and lightly squeezed a 14-year-old girl on her thigh, partially underneath her shorts. On 9 February 2010, he was charged with aggravated sexual assault. The police facts in relation to that offence alleged that he threatened a homeless man, took him into a public bathroom and forced him to perform oral sex, with the defendant ejaculating into his mouth.

5. [13]

   As to his drug and alcohol use, the defendant has a prior history of opiate dependence, alcohol abuse and instances of failing to comply with his medication. In 2015, he reported drinking alcohol on a regular basis, smoking cannabis at the age of 16 or 17 which became a regular occurrence, smoking nicotine cigarettes throughout his life and using crystal methamphetamine and heroin. Reports since his conditional release indicate that the defendant has remained abstinent from illicit substances and alcohol. He has been diagnosed with a polysubstance use disorder (in remission in a controlled environment), as well as impaired cognitive function.

The defendant’s mental health history

1. [14]

   The defendant has a long and complicated mental health history. He was diagnosed with schizophrenia in 1990, when aged 23, and continues to suffer from a severe chronic treatment resistant schizophrenic illness, complicated by his polysubstance use disorder, which, as mentioned above, is in remission. His illness is characterised with symptoms such as delusional beliefs, paranoia, and hallucinations.

2. [15]

   The defendant has presented with disinhibited behaviour in the community and has continuously expressed ongoing delusional beliefs that an intruder comes into his bedroom at night to physically harm him and have sex with him/sexually assault him. Reports from the defendant’s support workers have indicated that he believes that members of the public are his “bodyguards”, and he has previously approached people asking whether they were sent to protect him, and whether certain vehicles had been sent for him (for example, a taxi waiting on the street), or that people were wanting to harm him.

3. [16]

   The defendant has been a forensic patient since 6 July 2012, which was the date of the index offence of aggravated sexual assault without consent, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The defendant entered the apartment of a female neighbour uninvited and dragged her by her hair to her bedroom, where he threatened to kill her, forced her to perform oral sex on him and then demanded money from her. At the time, he was subject to a Community Treatment Order (CTO).

4. [17]

   The defendant was found unfit to be tried and on 5 November 2013, after a special hearing in the District Court, it was determined that, on the limited evidence available, he committed the offence charged. A limiting term of 3 years commencing on 6 July 2012, and expiring on 5 July 2015, was nominated by Acting Judge Madgwick. Having regard to s 127(2(h) of the Act, I note that in his remarks, the sentencing judge referred to the offence:

5. [18]

   The defendant’s status as a forensic patient was extended for a period of 3 years each on three subsequent occasions by this Court; by Adams J on 9 September 2015: Attorney General of New South Wales v CD (Supreme Court (NSW), N Adams J, 24 November 2016, unrep); by R A Hulme J on 14 November 2018: Attorney General of New South Wales v Skerry (by his tutor Thompson) (Final) [2018] NSWSC 1711; and by N Adams J on 11 February 2022: Attorney General of New South Wales v Skerry (by his tutor Ramjan) (Final) [2022] NSWSC 99.

6. [19]

   On 26 August 2020, the defendant was granted conditional release by the Mental Health Review Tribunal (MHRT) and has been residing in the community in NDIS-funded supported accommodation provided by Challenge Community Services.

7. [20]

   The agreed facts refer to occasions since 2021 when the defendant’s behaviour has raised concerns:

8. [21]

   The agreed facts also refer to occasions since 2024 when the defendant may have been experiencing delusional beliefs and hallucinations:

9. [22]

   The defendant has been reviewed periodically by the MHRT between 19 August 2020 and 13 December 2024. The effect of the review decisions of the MHRT is summarily canvassed below.

10. [23]

    By a determination dated 27 August 2020, the defendant was granted conditional release and discharged from Bloomfield Hospital, subject to conditions, including being subject to line-of-sight supervision whilst in the community. The review decisions broadly reflected that the defendant has maintained compliance with his medication, but has continued to experience ongoing delusional beliefs, and at times, expressed frustration with the restrictions imposed on him. The MHRT decision dated 28 September 2022 had an observation that the defendant:

11. [24]

    The review decision of the MHRT dated 27 June 2024 contained more positive findings, including that there had been a decrease in the defendant's psychotic symptoms in terms of intensity and frequency, and that he was more settled in his mental state and behaviour. The MHRT observed that although the defendant had been compliant with his medication, he lacked insight into the link between the medication and his improved state, and that he needed to be subject to ongoing monitoring when he accesses the community and engages with others.

12. [25]

    The most recent review hearing, as of the time of the final hearing, occurred on 13 December 2024. The MHRT continued to leave in place the conditions requiring line of sight supervision in the community. The MHRT noted that according to the progress notes, the defendant’s treating team report that his behaviour is the best it has been for some time, although he continues to exhibit behaviour reflecting delusional symptoms, and he has little insight into his illness and need for care and treatment.

13. [26]

    The agreed facts summarise recent mental health assessments of the defendant, including reports by Dr Jeremy O’Dea, forensic psychiatrist, dated 17 June 2024 and 22 August 2024:

14. [27]

    The history taken by Dr Youssef from the defendant included his recollections as a child of witnessing domestic violence by his father against his mother, sometimes fuelled by alcohol, and an allegation of sexual assault when he was aged 17 or, according to records viewed by Dr Youssef, when he was aged 13 or 14. She noted file information to the effect that the defendant suffered a fractured skull when aged 16 and was unconscious for four hours. He had problems with memory and migraines for five days thereafter, which qualified him for a diagnosis of a “Complicated Mild Traumatic Brain Injury”. He had been hospitalised twice for heroin overdoses.

15. [28]

    Dr Youssef noted that the defendant did not accept that he had schizophrenia and therefore that he should not be taking medication. She related conversations with him which, it seems, were floridly delusionary. This appeared to be consistent with file information:

16. [29]

    Dr Youssef noted concerning reports as to the defendant’s social interactions:

17. [30]

    Dr Youssef reported that the defendant’s adaptive functioning has been assessed as “extremely low”; he requires assistance with “communication, functional academics, self-direction, leisure, social, community use, health and safety, home living, self-care and motor skills”. He requires substantial support with activities of daily living, he has impaired functioning in the kitchen and behaves inappropriately within units and on outings.

18. [31]

    The defendant’s cognitive functioning was previously assessed as being in the “extremely low” to “borderline” range, which impacts on his ability to process and retain information. Dr Youssef said:

19. [32]

    Dr Youssef questioned the defendant about his long-standing abuse of alcohol and a range of prohibited and non-prescribed drugs, including cannabis, heroin, oxycontin tablets and methylamphetamine. His answers to her questions, to my mind, demonstrated little insight into that behaviour.

20. [33]

    Dr Youssef was of the opinion that the defendant qualified for diagnoses of schizophrenia and Substance Use Disorders (stimulant, opiate, alcohol, and cannabis, in sustained remission in a controlled environment). Although the defendant is presently abstinent from the use of drugs and alcohol, this was likely due to his restricted access rather than of his own volition.

21. [34]

    Dr Youssef assessed the defendant’s level of risk of recidivism of sexual offending utilising the Static-99R, which placed him in the “Well Above Average” risk category relative to other male offenders. Dr Youssef qualified the reliability of the tool, particularly in view of the defendant’s cognitive limitations.

22. [35]

    Dr Youssef also applied the STABLE-2007 to assist in the identification of stable dynamic risk factors that have been found to be related to sexual reoffending. As to the results, Dr Youssef said:

23. [36]

    Dr Youssef utilised the Risk of Sexual Violence Protocol-Version 2 (RSVP-V2) to obtain a more comprehensive evaluation of the defendant’s risk level, which she canvassed in some detail in her report. For an assessment of protective factors, Dr Youssef applied the Structured Assessment of Protective Factors for Violence risk – Sexual Offence Version (SAPROF-SO). Dr Youssef summarised the defendant’s level of risk as follows:

24. [37]

    Dr Youssef considered that the defendant’s continued status as a forensic patient is managing his risk of harm to others:

25. [38]

    A sexual assault reoffence scenario was addressed:

26. [39]

    As to the ideal length of an extension order, Dr Youssef considered that an extension of three to four years was warranted, based on the applicant’s risk of reoffending, his dynamic risk factors, the level of support he is currently receiving and his response to community-based supervision. She added:

27. [40]

    Dr Smith’s report was based on an assessment of the defendant on two dates, 23 January and 7 February 2025. Dr Smith referred to his “previous report” of the defendant, although this was not supplied. On the January date, Dr Smith encountered the defendant’s absence of insight into his mental illness and consequent reluctance to take his prescribed anti-psychotic medication, and resistance to the order being continued. The purpose of the February interview was to clarify some concerns that arose from his first assessment, however, the defendant effectively ended the second assessment before it was completed.

28. [41]

    Dr Smith did not outline the defendant’s personal, drug and alcohol or forensic history, since they were covered in documentation or his earlier report. His report generally was less useful than that of Dr Youssef, perhaps because it needed to be read in conjunction with his earlier report. In broad terms, his opinions coincided with those in earlier mental health assessments. He diagnosed the defendant as having “Treatment resistant schizophrenia, substance use disorder (currently in remission) and cognitive impairment”.

29. [42]

    As to the length of an extension order, Dr Smith said:

Consideration

1. [43]

   I am inclined to give particular weight to the report and opinions of Dr Youssef. In my view, a cessation of the defendant’s status of a forensic patient and the consequent loss of the oversight of the MHRT would jeopardise the defendant’s medication regime and close supervision with the inevitable consequence that his behaviour would in due course pose a danger of serious harm to others, in particular, in the form of sexual offending against females.

2. [44]

   As to the length of an extension, I note the expert opinions of Dr O’Dea (“indefinite, and of at least 5 years duration”), Dr Youssef (“three or four years”) and Dr Smith (“three years”). Mr Dalla-Pozza, on behalf of the plaintiff, submits that four years is the appropriate length. If the defendant progresses to a point that the order is no longer required, it is open to the MHRT to recommend a reduction of the period or a revocation of the order. I am of the view that the order should specify the minimum period that is reasonably necessary; I determine that three years is the appropriate period.

3. [45]

   Finally, I note the following observation by Dr Youssef at [95.9.3] of her report, which I suggest should be brought to the attention of the MHRT:

Orders

1. [46]

   For the above reasons, I made the following orders on 7 May 2025: