Citation: Attorney General of New South Wales v Randall (Preliminary) [2023] NSWSC 226
Court: Supreme Court of New South Wales
Date: 15 March 2023
Judge(s): Yehia J
Background
The defendant became a forensic patient following a special hearing in 2020, at which he was found to have committed an offence of reckless wounding involving a knife, while unfit to be tried. He was sentenced to a limiting term expiring in January 2021 and transferred to the Forensic Hospital at Malabar. In March 2021, Johnson J extended his forensic patient status for two years, expiring on 24 March 2023.
The Attorney General filed a summons in December 2022 seeking a further extension of the defendant's forensic patient status, ultimately for a period of two years. The defendant did not oppose the interim orders but contested the prospect of a two-year final extension order.
The hearing before Yehia J was limited to whether an interim order extending forensic patient status for three months should be made, pending the preparation of independent expert reports for the final hearing.
Legal Issues
- Whether the supporting material, if proved, would justify making an extension order under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act)
- Whether the defendant poses an unacceptable risk of causing serious harm to others if his forensic patient status is not extended
- Whether that risk can be adequately managed by less restrictive means, including a Community Treatment Order (CTO) or guardianship arrangement
Decision
Issue 1: The applicable test
The court applied s 122(1) of the MHCIFP Act, which permits an extension order to be made "if and only if" the court is satisfied to a high degree of probability that the forensic patient poses an unacceptable risk of causing serious harm to others, and that the risk cannot be adequately managed by less restrictive means. That standard sits above the ordinary civil balance of probabilities but below the criminal standard of beyond reasonable doubt. At the interim stage, the court must be satisfied that the material would, if proved, justify making an extension order (at [3], [17]-[18]).
Issue 2: Unacceptable risk of serious harm
Yehia J was satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if his forensic patient status changes (at [61]). The defendant has treatment-resistant schizoaffective disorder, with active psychosis, persistent paranoid delusions directed at the victim of the index offence, severe cognitive impairment, and antisocial personality traits (at [39], [48], [51]). His historical and dynamic risk factors for violence were assessed as moderate to high, and the gravity of potential reoffending was assessed as moderate to high (at [42], [62]). His past conduct included not only the index knife offence but also a 2015 threat to pour petrol on a neighbour and set them alight (at [61]).
Issue 3: Less restrictive means
The court was satisfied to a high degree of probability that the defendant's risk cannot be adequately managed by less restrictive means (at [63]). Even with a CTO previously in place, compliance in the community had not been effectively managed and enforcement had repeatedly required police assistance, including volatile siege-type situations involving a knife (at [40]). Although a community transition plan was being developed, including supported accommodation, NDIS funding, and potential conditional release by the Tribunal, the court found that only the continuation of a forensic order could provide the necessary level of oversight and assertive treatment at this stage (at [60]).
Orders Made
- Two qualified psychiatrists, registered psychologists, or medical practitioners appointed to conduct separate examinations of the defendant and report to the Supreme Court by a date to be fixed
- The defendant directed to attend those examinations
- An interim order made extending the defendant's status as a forensic patient for three months, commencing at midnight on 24 March 2023
- Proceedings listed in the High-Risk Offenders Callover List on 16 March 2023
Key Takeaways
- Under s 122(1) of the MHCIFP Act, an extension order may be made "if and only if" the court is satisfied to a high degree of probability of both unacceptable risk and the absence of less restrictive alternatives. That dual requirement applies with equal force at the interim stage, where the court must be satisfied the supporting material would justify a final order if proved (at [3], [17]).
- "Unacceptable risk" involves an evaluative judgment about both the likelihood of harm eventuating and its potential gravity. A risk may be unacceptable because of the severity of the harm it would cause, even where its probability is not high (at [24]-[25]).
- The Supreme Court confirmed that a prior failure to manage risk under a CTO, including repeated police enforcement and volatile knife-related incidents, is directly relevant to whether a less restrictive alternative can adequately manage ongoing risk (at [40], [63]).
- Treatment-resistant mental illness combined with severe cognitive impairment, persistent delusions targeting a specific victim, and a pattern of violent conduct can together satisfy the unacceptable risk threshold to a high degree of probability (at [39], [42], [48], [51], [61]).
- Progress toward community transition, including escorted and supervised leave and Tribunal consideration of conditional release, does not automatically preclude an interim extension order where independent expert assessment has not yet been completed and the treating evidence still identifies serious risk (at [58]-[60]).
Legislation and Cases Referenced
Legislation
- Crimes (High Risk Offenders) Act 2006 (NSW) ss 5B (d), 5D
- Guardianship Act 1987 (NSW)
- Mental Health Act 2007 (NSW) ss 51, 53, 56, 57 (1), 57(2), 57(3)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 121, 122, 122(1)(b) 124(1), 126(5), 127, 127(1), 127(2), 127(2)(d), 127(2), 130, 131
- Mental Health (Forensic Provisions) Act 1990 (NSW) ss 14 (b)
Cases
- Attorney General for the State of New South Wales v Gallagher [2006] NSWSC 340
- Attorney-General (NSW) v Doolan (by his tutor Jennifer Thompson (No 2)) [2016] NSWSC 107
- Attorney-General (NSW) v Kereopa (No 2) [2017] NSWSC 928
- Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288
- Cornwall v Attorney General for New South Wales [2007] NSWCA 374
- Lynn v State of New South Wales (2016) 91 NSWLR 636
- New South Wales v Simcock (Final) [2016] NSWSC 1805
- State of New South Wales v Chaplin [2019] NSWSC 471
- State of New South Wales v Devaney (Final) [2022] NSWSC 60
- State of New South Wales v Holschier (No. 2) [2018] NSWSC 1921
- State of New South Wales v Kamm (Final) [2016] NSWSC 1
- State of New South Wales v Loto [2018] NSWSC 1522