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Supreme Court 27 August 2024

Attorney General of New South Wales v Cooper (Preliminary)

[2024] NSWSC 1083

Sexual offences
MENTAL HEALTH FORENSIC PATIENT EXTENSION OF STATUS AS FORENSIC PATIENT

Citation: Attorney General of New South Wales v Cooper (Preliminary) [2024] NSWSC 1083
Court: Supreme Court of New South Wales
Date: 27 August 2024
Judge: Rigg J

Background

The Attorney General commenced proceedings seeking to extend the forensic patient status of a 52-year-old man with intellectual disability, acquired brain injury, and a long custodial history. The defendant's forensic patient status was due to expire on 4 September 2024, having arisen from qualified findings of guilt made by Ingram SC DCJ in February 2023 following a special hearing after the defendant was found unfit to be tried. A tutor had been appointed for the defendant given his cognitive limitations.

The underlying charges related to contravening a Child Protection Prohibition Order, failing to comply with child sex offender reporting obligations, and offences involving child abuse material found on an undisclosed mobile phone discovered during a routine home visit by police. The defendant received limiting terms rather than a custodial sentence in the ordinary sense, placing him within the forensic patient regime.

The preliminary hearing on 5 August 2024 was not a final determination. The court's task was to assess whether the material before it, if proved, would justify making a final extension order, and whether an interim order was warranted in the meantime.

Legal Issues

  • Whether the supporting documentation, if proved, would justify making a final extension order under s 122 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act), so as to warrant preliminary relief
  • Whether the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient
  • Whether that risk could be adequately managed by less restrictive means than continuation of forensic patient status
  • Whether an interim order extending forensic patient status should be made pending the final hearing

Decision

Preliminary threshold: The court noted that, at the preliminary stage, it must satisfy itself that the matters alleged in the supporting documentation would, if proved, justify making an extension order. The defendant's tutor neither opposed nor consented to the substantive extension orders but consented to the ancillary order for expert reports. The court nonetheless conducted its own assessment of the evidence (at [3], [18]).

Risk of serious harm: Rigg J accepted the opinion of Dr Anna Farrar, forensic psychiatrist, that the defendant presents a high risk of sexual re-offending. On the STATIC-99R actuarial tool, the defendant scored in the "Well Above Average" risk category. Taking Dr Farrar's report at its highest and in combination with other evidence, the court was satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient (at [22]-[23], [32]). The court noted that there may ultimately be a question at the final hearing about the type of harm at risk given the non-contact nature of prior offending (at [32]).

Less restrictive means: The court accepted Dr Farrar's conclusion that no less restrictive alternative would adequately manage the defendant's risk. The defendant does not meet the criteria for classification as an involuntary patient under the Mental Health Act 2007 (NSW) or for a Community Treatment Order. A Guardianship Order alone would not suffice because the defendant requires additional treatment, support and supervision beyond what guardianship provides (at [25]-[26], [32]). The court noted that the ameliorating effect of other regimes, including guardianship and Child Protection Prohibition Orders, may require fuller examination at the final hearing (at [32]).

Interim order: Satisfied that the preliminary criteria were met and identifying no discretionary reason to refuse relief, the court made an interim order extending the defendant's forensic patient status for three months commencing 4 September 2024, together with orders for independent expert examinations (at [33]-[34]).

Orders Made

  • Two qualified psychiatrists, registered psychologists, or medical practitioners appointed to conduct separate examinations of the defendant and furnish reports to the Supreme Court by a date to be fixed
  • The defendant directed to attend those examinations
  • Interim order made extending the defendant's forensic patient status for three months commencing 4 September 2024, upon expiry of the limiting term, pursuant to ss 130 and 131 of the MHCIFP Act
  • Non-party access to the court file restricted: any application requires leave of a judge, with parties to be notified and given an opportunity to be heard
  • Proceedings listed in the High Risk Offenders Callover List on 5 September 2024 at 9:30am

Key Takeaways

  • At the preliminary stage of an application under the MHCIFP Act, the Supreme Court must satisfy itself that the supporting material, if proved, would justify a final extension order; consent or non-opposition by the subject through a tutor does not relieve the court of that obligation (at [3], [18]).

  • A high actuarial risk score combined with multiple contributing diagnoses (intellectual disability, alcohol use disorder, probable paedophilic disorder, and possible antisocial personality disorder) can collectively satisfy the preliminary threshold of unacceptable risk of serious harm (at [23], [32]).

  • A Guardianship Order alone is not sufficient to displace the "less restrictive means" limb of the extension test where the individual requires additional treatment, support and supervision beyond what guardianship provides (at [25]-[26]).

  • The non-contact nature of prior offending is a matter the court flagged as potentially requiring closer examination at the final hearing when assessing the type of harm at risk, indicating that preliminary findings do not foreclose later argument on that issue (at [32]).

  • Under the MHCIFP Act framework, an interim extension order can be made pending the final hearing where the preliminary criteria are satisfied and no discretionary reason exists to withhold relief, allowing continuity of oversight and conditional release planning through the Mental Health Review Tribunal (at [33]-[34]).

Legislation and Cases Referenced

Legislation
- Child Protection ( Offenders Prohibition Orders) Act 2004 (NSW), ss 5, 13(1)
- Child Protection ( Offenders Registration) Act 2000 (NSW), ss 3A, 17(1)
- Crimes Act 1914 (Cth), s 20BA
- Criminal Code (Cth), s 474.22(1). 474.22A(1)
- Mental Health Act 2007 (NSW), ss 4(1), 14
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 69, 121, 122, 126, 126(5), 127( 2), 130, 131

Cases
- Not stated