Citation: Attorney General for NSW v Peckham (Final) [2019] NSWSC 1775
Court: Supreme Court of NSW
Date: 12 December 2019
Judge(s): Cavanagh J
Background
The Attorney General applied to extend the forensic patient status of a 60-year-old man, referred to here as the defendant, for a further two years under Schedule 1 to the Mental Health (Forensic Provisions) Act 1990 (NSW). The defendant had been found unfit to stand trial following a 2016 incident in which he held knives at an apartment and slashed the face of the victim, a male companion of his former partner, resulting in a charge of reckless wounding causing actual bodily harm. He was subject to a three-year limiting term commencing 17 September 2016, and an interim extension order was in place pending the final hearing.
The defendant opposed the extension. His limiting term was approaching expiry, and without an extension order he would cease to be a forensic patient and be entitled to discharge from detention. The Tribunal was separately scheduled to consider his application for conditional release in February 2020.
The central dispute was not whether the defendant should remain in physical detention, but whether he should continue to be subject to the Mental Health Review Tribunal's oversight as a forensic patient once released into the community, rather than being managed through his already-arranged community support network.
Legal Issues
- Whether the defendant posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient, as required by Schedule 1, clause 2(1)(a) of the Act.
- Whether any such risk could not be adequately managed by less restrictive means, as required by clause 2(1)(b).
- Whether, even if both criteria were established, the court should exercise its discretion under Schedule 1, clause 7 to decline to make the order.
- What "less restrictive means" means for the purposes of clause 2(1)(b), and how the comparison should be drawn.
Decision
Issue 1: Unacceptable risk of serious harm
The court was not satisfied to a high degree of probability that the defendant posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient (at [105]). The evidence from the court-appointed psychiatrists was not compelling on this point. Dr Rodriguez described the risk as moderate in his written report but accepted in cross-examination that it would be low if the support package were adequately implemented. Dr Eagle declined to categorise the risk level at all, and neither expert's oral evidence squarely established the risk as unacceptable (at [107]). The court noted that in any psychiatric risk assessment there is always some risk, and the identification of some risk does not automatically satisfy the first criterion (at [111]).
The index offence was characterised by all experts as particularly focused, arising from a specific and unusual combination of circumstances tied to the defendant's relationship breakdown, misuse of prescription medication, and emotional instability at the time. A repeat of that combination was considered unlikely (at [109]). The defendant had no violence-related offending in the 17 years before the index offence, had demonstrated compliance with medication and treatment throughout his detention, and did not suffer from mental illness, violent ideation, or delusional thinking (at [113]-[114]).
Issue 2: Whether risk could be managed by less restrictive means
Even setting aside the finding on the first criterion, the court was not satisfied that Tribunal oversight would reduce any risk to others in a meaningful way (at [101]). The defendant did not have a mental illness and was not suitable for a community treatment order. The conditions the Tribunal might impose on release, such as medication compliance, would not address his emotional instability, which the evidence linked to personality disorder rather than depression (at [114]). The court found that the practical support available through the NDIS package, St Vincent de Paul Society, and the Community Restorative Centre would operate independently of any Tribunal oversight, and there was no clear mechanism by which the Tribunal's recall powers or conditions would reduce the identified risks (at [101], [119]).
The court also observed that if "less restrictive means" compared the defendant's current detained status to community living without forensic oversight, the criterion was plainly not satisfied in the plaintiff's favour in any event (at [120]).
Discretion under Schedule 1, clause 7
Although the court's findings on the two criteria made it unnecessary to exercise the discretion, Cavanagh J noted that ongoing detention beyond the limiting term's expiry was deleterious to the defendant's mental health, and the expert evidence did not support continued detention on community safety grounds. These matters would have been relevant to the exercise of the discretion had the criteria been established (at [122]).
Orders Made
- Summons dismissed.
- The plaintiff is to pay the defendant's costs.
Key Takeaways
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Under Schedule 1, clause 2(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW), an extension order requires the plaintiff to establish, to a high degree of probability, both that the forensic patient poses an unacceptable risk of serious harm to others and that the risk cannot be adequately managed by less restrictive means. Both elements must be satisfied; failure on either is fatal to the application (at [12], [90]).
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The fact that a psychiatrist identifies some level of risk does not automatically satisfy the "unacceptable risk" criterion. The court must evaluate the evidence as a whole, including the likelihood of the risk eventuating and the gravity of any potential harm, rather than treating any psychiatric opinion of risk as determinative (at [111]).
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Where an offence is particularly focused and arose from a specific, unusual combination of circumstances unlikely to recur, that character of the offending is a material consideration in the risk evaluation (at [109]).
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For the purposes of clause 2(1)(b), the relevant comparison is between Tribunal oversight and the less restrictive alternative actually available, not merely detention versus community living. Where practical community supports would operate independently of any Tribunal oversight, and where conditions the Tribunal might impose would not meaningfully address the identified risk factors, the plaintiff will struggle to establish that the risk cannot be managed by less restrictive means (at [101], [119]).
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A forensic patient's ongoing detention beyond the expiry of a limiting term, in circumstances where evidence shows it is harmful to the patient's mental health and where community safety does not require it, is a relevant factor in the exercise of the court's discretion under Schedule 1, clause 7, even if that discretion ultimately need not be exercised (at [122]).
Legislation and Cases Referenced
Legislation
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Mental Health Act 2007 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW), Pt 5 div 2 sub-div 3, ss 16, 40, 42, 43, 52, 54A, Sch 1 cls 1, 2, 6, 7
Cases
- Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928
- Attorney General of New South Wales v Kereopa (No. 2) [2017] NSWSC 928
- Attorney General of New South Wales v McGuire [2013] NSWSC 1862
- Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107
- Attorney-General of New South Wales v Kereopa [2017] NSWSC 411
- Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288
- Cornwall v Attorney-General for NSW [2007] NSWCA 374
- Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
- New South Wales v Thomas (Preliminary) [2011] NSWSC 118
- State of New South Wales v Peckham (Preliminary) [2019] NSWSC 1150
- State of New South Wales v Thomas (Final) [2011] NSWSC 307