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Supreme Court 29 May 2020

Attorney General for New South Wales v Peterson (bht Rodrigues)

[2020] NSWSC 651

Other
MENTAL HEALTH FORENSIC PATIENT EXTENSION OF STATUS AS FORENSIC PATIENT LESS RESTRICTIVE MEANS

Citation: Attorney General for New South Wales v Peterson (bht Rodrigues) [2020] NSWSC 651
Court: Supreme Court of New South Wales
Date: 29 May 2020
Judge(s): Cavanagh J

Background

The Attorney-General applied to extend the forensic patient status of a 67-year-old man with a moderate intellectual disability whose limiting term was about to expire. The defendant had been found not guilty of murder but guilty of manslaughter following a special hearing in 2014, after Campbell J accepted a partial defence of substantial impairment by abnormality of mind. A limiting term of eight years was imposed, running from 31 May 2012.

The defendant had been conditionally released from custody on 28 April 2017 and had lived in supported accommodation at Penshurst since that date. He received a comprehensive NDIS support package and daily assistance from staff. In the three years since his release, there had been no breaches of his conditions and no reports of adverse or aggressive behaviour.

The matter came before Cavanagh J as a preliminary hearing, at which the plaintiff sought an interim extension order and an order for examination. The question was whether the supporting documentation, if proved, would justify the making of a two-year extension order.

Legal Issues

  • Whether the matters alleged in the supporting documentation would, if proved, justify the making of an extension order under sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW)
  • Whether the defendant posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient
  • Whether any such risk could be adequately managed by less restrictive means, including a guardianship order under the Guardianship Act 1987 (NSW)

Decision

Issue 1: The preliminary hearing threshold

At the preliminary stage, the court is not required to be satisfied that the matters alleged in the supporting documentation will be proved. It need only be satisfied that, if proved, those matters would justify the making of an extension order. The court is not weighing competing evidence or resolving conflicts at this stage (at [17]-[18]). However, a threshold remains: the plaintiff must still establish an entitlement to the interim order (at [19]).

Issue 2: Whether an unacceptable risk of serious harm was established

The court concluded that the supporting documentation, even if proved, would not justify the making of an extension order (at [113]). The forensic psychiatrist, Dr Singh, assessed the defendant as falling into a low-risk category with a relatively low likelihood of offending provided his current support continued (at [70]). There was no current alcohol or substance abuse, no aggressive behaviour, and no breaches of conditions in three years of community living (at [85]). The court found that historical risk factors, including impulsivity and alcohol-related violence, appeared to have reduced, and any impulsivity in reacting to conflict tended to be more verbal than physical (at [104]-[105]). The court declined to assume a future relapse into alcohol abuse when nothing in the supporting documentation provided a basis for that assumption (at [110]).

The court also found that the coercive power of the Tribunal was unlikely to alter the defendant's behaviour in any meaningful way. The defendant did not know he was subject to Tribunal supervision; he complied with conditions because he treated them as the house rules of his accommodation (at [108]-[109]). The comparison required by the legislation was between living in the community as a forensic patient and living in the community without Tribunal oversight, and on the evidence that distinction carried little practical weight (at [96]).

Issue 3: Less restrictive means

Having concluded that no unacceptable risk was established, it was unnecessary to resolve this issue fully (at [122]). However, the court observed that a guardianship order under the Guardianship Act 1987 (NSW) does not have as one of its purposes the management of risk of serious harm to others, and doubted it could constitute an adequate less restrictive means for that purpose (at [120]-[121]).

Orders Made

  • The summons is dismissed.
  • The plaintiff is to pay the defendant's costs.

Key Takeaways

  • An extension of forensic patient status under sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) requires satisfaction to a high degree of probability that the patient poses an unacceptable risk of causing serious harm to others and that the risk cannot be adequately managed by less restrictive means (at [14]-[15], [113]).

  • Where supporting documentation includes expert opinion that a defendant falls into a low-risk category and where three years of incident-free community living have followed conditional release, those matters may be insufficient to meet even the preliminary hearing threshold for an interim extension order (at [70], [85], [113]).

  • A patient's unawareness of Tribunal supervision, combined with compliance driven by familiarity with institutional structure rather than awareness of legal obligations, is a relevant consideration in assessing whether ongoing Tribunal oversight would have any protective effect (at [108]-[109]).

  • Courts assessing risk at the preliminary stage cannot assume that destabilising events, such as a relapse into alcohol abuse, will occur unless the supporting documentation provides a factual basis for that assumption (at [110]).

  • A guardianship order under the Guardianship Act 1987 (NSW) is directed at the welfare and decision-making needs of a person with a disability; Cavanagh J expressed doubt that such an order constitutes a means of managing the risk of a person causing serious harm to others within the meaning of the extension order regime (at [120]-[121]).

Legislation and Cases Referenced

Legislation
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Guardianship Act 1987 (NSW), s 4
- Mental Health Act 2007 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW), Pt 5, ss 14, 19, 40, 42, 43, 47, 52, 54A, Sch 1 cls 1, 2, 5, 6, 7, 10, 11
- National Disability Insurance Scheme Act 2013 (Cth)

Cases
- Attorney General for NSW v Peckham (Final) [2019] NSWSC 1775
- Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107
- Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144
- Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
- R v John Francis Peterson [2013] NSWSC 1002
- R v Peterson (No. 4) [2014] NSWSC 1056
- R v Peterson (No. 5) [2014] NSWSC 1080
- State of New South Wales v Sturgeon [2019] NSWSC 559
- State of New South Wales v Thomas (Final) [2011] NSWSC 307
- State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776
- State of NSW v Holschier (No 2) [2018] NSWSC 1921