Attorney-General for New South Wales v Aller [2023] NSWSC 1409

Supreme Court New South Wales

Medium Neutral Citation: Attorney-General for New South Wales v Aller [2023] NSWSC 1409 Hearing dates: 16 November 2023 Date of orders: 20 November 2023 Decision date: 20 November 2023 Jurisdiction: Common Law Before: Walton J Decision: (1) An order pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020: (a) Appointing two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and (b) Directing the defendant to attend those examinations. (2) An order pursuant to ss 130 and 131 of the Act, that the defendant be subject to an interim order for the extension of his status as a forensic patient commencing on 1 February 2024 for a period of three months. (3) I direct that the Registrar forward a copy of the report of Dr Andrew Ellis dated 2 July 2023 to the Mental Health Review Tribunal. Catchwords: HIGH RISK OFFENDER – preliminary hearing – application for interim orders sought to extend the status of defendant as a forensic patient – application to appoint two psychiatrists, registered psychologists or medical practitioners to conduct separate examinations of the defendant – substance abuse disorder – interim orders not opposed– orders made Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) (High Risk Offenders) Act 2006 (NSW) Mental Health Act 2007 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 72(1)(b), 83(2) 121, 122, 126(4), 126(5), 127(1)(a), 128, 130, 131 Mental Health (Forensic Provisions) Act 1990 (NSW), ss 19, 23 Cases Cited: Attorney General for NSW v McGuire [2013] NSWSC 1862 Lynn v State of NSW (2016) A Crim R 196; [2016] NSWCA 57 State of New South Wales v Simcock (Final) [2016] NSWSC 1805 Category: Principal judgment Parties: Attorney-General for New South Wales (Plaintiff) Michael John Aller (Defendant) Representation: Counsel: S Love (Plaintiff) S Fraser (Defendant)

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2023/310068

JUDGMENT 1. By a Summons filed 28 September 2023 ("the Summons"), the Attorney General for New South Wales ("the plaintiff"), sought final orders in the form an extension of Mr Michael John Aller's ("the defendant") status as a forensic patient pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the MHCIFP Act") for a period of three years. 2. In accordance with s 126(4) MHCIFP Act, a preliminary hearing has been conducted. At that hearing the plaintiff sought interim relief in the form of (1) the appointment of two qualified psychiatrists or psychologists (or a combination of the two) who are to conduct an examination of the defendant and a direction that the defendant attends those examinations and (2) an Interim extension of the defendant's status as a forensic patient for a period of 3 months, s 130 MHCIFP Act. 3. This judgment concerns those applications for interim relief were under consideration. 4. The defendant was 57 years old. He had a lengthy criminal record. His first offence dated back to 1984. His offending comprised multiple convictions for assault (primarily against current and former girlfriends), breaches of apprehended violence orders, offences involving threats of violence, one escape from custody and multiple driving offences. 5. On 2 August 2012, the defendant was arrested by police and charged with the offence of murder following his involvement in the death of a woman with whom he had been in a relationship for a period of about 2 months. The defendant was committed to stand trial on that charge. 6. On 27 March 2014, an inquiry into the defendant's fitness to stand trial was held pursuant to the relevant provisions of the now repealed Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Former Act"). Johnson J determined that the defendant was unfit to stand trial. 7. Between 1 and 4 December 2014, a special hearing was conducted pursuant to s 19 of the Former Act. On 24 February 2014 Hidden J delivered a judgment on the special hearing. His Honour found that, whilst the defendant had killed the victim, he was at the time substantially impaired by an abnormality of the mind sufficient to warrant the reduction in the charge from murder to manslaughter. The defendant was accordingly acquitted of the offence of murder, but the defendant was found to be, on the limited evidence available, guilty of the offence of manslaughter. 8. Following a separate hearing, Hidden J imposed a limiting term of 11.5 years pursuant to s 23 of the Former Act. The limiting term was to date from 1 August 2012 and would have expired on 31 January 2024. However, as a result of a subsequent absence without leave, the Mental Health Review Tribunal ("the Tribunal") extended the period of the limiting term by one day such that it now expires on 1 February 2024. 9. A "forensic patient" includes, relevantly, a person who has been given a limiting term after a special hearing and who is released from custody subject to conditions under an order made by the Tribunal: s 72(1)(b) of the MHCIFP Act. The defendant's status as a forensic patient continued following enactment of the MHCIFP Act, Sch 2 Cl 9. He was a forensic patient at the time of the preliminary hearing. 10. Section 121 of the MHCIFP Act empowers the Supreme Court to extend a person's status as a forensic patient ("extension order"). The objects of the MHCIFP Act require the courts to consider, relevantly, the protection of the safety of members of the public and any victims of the forensic patient and acknowledge the harm done to them: s 69. 11. In these circumstances, in my view, the defendant properly accepted that the application is made in accordance with the formal requirements of the MHCIFP Act (Div 2 of Pt 6). Similarly, the defendant was correct to accept that, in those circumstances, the Court's power pursuant to ss 127 and 128 of the MHCIFP Act to make orders of the type sought by the plaintiff has been enlivened. 12. The threshold pre-conditions having been met, the Court is required to determine whether "the matters alleged in the supporting documentation would, if proved, justify the making of an extension order" (s 126(5) of the MHCIFP Act) and, if so satisfied, the Court must make orders appointing two qualified psychiatrists or psychologists (or a combination of the two), to conduct an examination of the defendant (and a corresponding direction that the defendant attend those examinations). As it is likely that the current order may expire prior to the final hearing, the Court may make interim orders extending the defendant's status as a forensic patient. 13. The making of an extension order would be justified in the event the Court was "satisfied to a high degree of probability that": 1. the defendant poses an unacceptable risk of committing serious harm to others if he ceases to be a forensic patient, and 2. the risk cannot be adequately managed by other less restrictive means. 1. I do not canvas the relevant principles in determining this application which appear to be adequately set out in the submissions for the plaintiff. I do accept, however, that the Court has observed that the terminology, used by the MHCIFP Act, "mirrors very closely" the terminology for applications for extension orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) ("the HRO Act"), and as such the 'learning that has grown up in relation to the HRO Act should be applied to applications of the present type: Attorney General for NSW v McGuire [2013] NSWSC 1862, at [7] and [12]. 2. The question of whether the defendant poses an 'unacceptable risk' is an evaluative determination (Lynn v State of NSW [2016] NSWCA 57 per Beazley P (at [61], Gleeson JA and Basten JA (in separate reasons, agreeing)), and, "involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate": State of New South Wales v Simcock (Final) [2016] NSWSC 1805 (Wilson J at [71]).

The Position of the Defendant 1. The overall position of the defendant was that provided the Court was independently satisfied to the requisite standard that such orders should be made, the defendant did not resist the making of orders of the type sought by way of interim relief. In doing so the defendant reserved his right to oppose orders as sought in prayer 3 of the Summons at any subsequent final hearing.

Assessment of risk 1. Both parties relied upon various matters referred to in s 127(2) of the MHCIFP Act. I followed the same course but with much greater brevity than the detailed submissions provided by the parties given their concurrence.

Safety of the community 1. As earlier mentioned, the defendant had an extensive criminal history, which included numerous acts, or threats of, violence against women. That offending was often characterised by harassment, intimidation and threats as well as actual physical violence against the defendant's partner at the time or to others associated with her. The threats made by the defendant included threats to kill. 2. It is of note that the majority of the offending appears to have occurred when the defendant was in a state of intoxication. In that regard, it is noted that the defendant has been diagnosed as having a substance abuse disorder currently in sustained remission. The conditions of the current supervised release order include that he is to abstain from all use of alcohol and illicit substances. 3. The index offending occurred in 2012 when the defendant was 46 years old. 4. On 31 July 2012, the defendant stabbed his girlfriend repeatedly with a kitchen knife during an argument. She was 31 years old. She had a pre-existing disability which meant she was paralysed in her left arm.

Risk assessment report of registered psychiatrist 1. A Risk Assessment Report was provided by Dr Andrew Ellis, Forensic Psychiatrist, dated 2 July 2023. He also provided a follow up email, after reviewing some more recent evidence, on 22 July 2023. 2. Dr Ellis assessed the defendant at the Community Mental Health Service in Orange on 7 June 2023 for 2.5 hours. Dr Ellis also spoke with Ms Jeanette Prior, a Registered Nurse Consultant, who has known the defendant since 2019. Ms Prior reported that the defendant's discharge had been going well and that his urine drug screens have all been clear since his release. However, she stated that "he would benefit from further supervision under the forensic order" as his diagnosis is not necessarily clear and that if he ceased being a forensic patient, it was unlikely that the local health district would be able to provide him with the same level of service that he is currently receiving. 3. Dr Ellis noted that there had been differing opinions as to the defendant's diagnosis in the past but that, by September 2014, the defendant was considered to have treatment resistant psychotic symptoms of schizophrenia. Dr Ellis then detailed the treatment of the defendant with anti-psychotic mediation which had in recent times been reduced and/or discontinued. 4. The defendant's history of substance abuse was noted which included his stated consumption of one bottle of bourbon and 12 bottles of beer on a daily basis at the time of the index offence. The defendant had subsequently completed treatment programs with regards to substance abuse. 5. Dr Ellis also considered the observations of those treating the defendant. 6. Dr Ellis opined that the defendant met the criteria for substance use disorder in sustained remission. With regards to other conditions, he indicated that it was most likely that the defendant suffered from both a personality disorder and a cyclical mental disorder such as bipolar disorder. Dr Ellis expressed concerns that there had been a recent onset of what he called "hyper-religious concerns" which had not been evaluated by other clinicians. 7. Having considered all information available to him, Dr Ellis expressed the following by way of opinion: 1. The defendant was currently experiencing incipient symptoms of mental illness (hyper-religiosity), limited insight into his mental function and its relationship to prior violence. On the other hand, he had no current problems with stability in his affect, was accepting of supervision and was not expressing concerning violent attitudes. 2. The defendant's insight is impacted by his unclear diagnosis and evidenced by not talking about his religious ideas until asked (Dr Ellis did not think the defendant was being deliberately deceptive). The defendant's limited insight would mean that without careful monitoring he would be unlikely to report changes to carers. 3. "In the absence of any treatment or supervision, [the defendant] would fall into a group of persons with a risk of offending and serious harm that is high, and greater than a theoretical average offender, forensic patient or psychiatric patient". His current treatment and supports moderated his risk "making it now low" but there were grounds to continue intervention since the risk "would likely fluctuate quickly without his current living circumstances and support". 4. The "mainstay of effective risk management" was forensic mental health care which "could only be offered in an effective way in Orange if he remains on a forensic order". Dr Ellis noted the greater level of oversight provided by the Tribunal as opposed to other modes of treatment and supervision.

Any other report of a qualified practitioner provided in support of the application 1. In the plaintiffs written submissions a detailed summary of various reports of psychologists, psychiatrists and case managers was provided, including reports of: 1. Dr Pieter van Rensburg dated 12 April 2022; 2. The NSW Community Forensic Mental Health Service ("CFMHS") dated 28 April 2022 and 12 April 2023 (Mr Jordan Rivkin, Clinical Psychologist, and Dr Paul Read, Forensic Psychiatrist); 3. Dr Nicholas Burns dated 9 September 2022 and 29 March 2023; 4. Christopher Bromley, Acting Case Manager, dated 30 September 2022 and Mental Health Risk Assessment dated 9 September 2022; 5. Dr Jordan Rivkin dated 6 October 2022 (CFMHS), and; 6. Janette Prior, Registered Nurse and Forensic Mental Health Nurse, dated 5 April 2023. 1. As a general proposition, the defendant's submission regarding these reports, namely, that the defendant was compliant with and actively engaged in treatment, may be accepted. However, those assessments are made in the context of the defendant's current treatment regime and particular attention needs to be given to the significant possibility of an allegation of risk should the present level of treatment cease.

Any order or decision made by the Tribunal relevant to the application 1. The plaintiff's submission in this respect was not the subject of dispute and provides a detailed and useful account of the relevant history after March 2014. That history, without footnotes, is as follows: 84. For example, on 12 June 2014, the Tribunal found Mr Aller unfit to be tried for the index offence. The Tribunal also ordered that he be detained at the Long Bay Hospital for care and treatment, rather than at the MRRC. He was transferred to the Long Bay Hospital on 24 June 2014. 85. On 4 January 2016, the Tribunal ordered that Mr Aller be transferred to the Forensic Hospital in Sydney when a bed became available. On 22 November 2016, Mr Aller was transferred to the Forensic Hospital. 86. On 21 August 2019, the Tribunal ordered that Mr Aller be transferred to the Macquarie Unit, a MSU in Bloomfield Hospital in Orange, as soon as a bed became available. He was also granted escorted day leave from that facility. He was transferred to the Macquarie Unit shortly afterwards. 87. The Tribunal noted that Mr Aller had been diagnosed with schizophrenia, alcohol and cannabis use disorder (in remission), cognitive impairment and dependant and borderline personality traits. His treating team reported that his mental state behaviour had stabilised, although he still presented a moderate risk of violence if he suffered a relapse of mental illness or returned to substance misuse. The Tribunal determined that he was still unfit to be tried. 88. On 12 March 2020, the Tribunal granted Mr Aller unsupervised day leave from the MSU. The Tribunal noted that his treating team had conducted significant psychological and cognitive testing of Mr Aller and reported that he had significant issues encoding and storing information and that these impairments were irreversible. 89. On 15 June 2020, the Tribunal issued a breach order against Mr Aller for failing to return to the MSU after being given unsupervised leave to go into Orange. The Tribunal then issued an order for his apprehension and detention at Bloomfield Hospital. Instead of going into Orange, Mr Aller caught a taxi to Canowindra and then Cowra, drank a bottle of bourbon and obtained a hotel room. On 16 June 2020, Mr Aller made his way to his mother's house and contacted the MSU to report where he was. He was apprehended and returned to the MSU. Mr Aller told the Tribunal that he breached his order because he was concerned that he had cancer. 90. On 20 July 2020, the Tribunal reinstated Mr Aller's escorted day leave. He used this to go shopping in Orange. 91. On 25 November 2020, the Tribunal granted Mr Aller supervised day leave with his NDIS support workers so he could attend structured activities in the community. 92. On 16 June 2021, the Tribunal granted Mr Aller unsupervised day leave. The Tribunal noted that his diagnosis was now mixed personality disorder with dependant anxious and borderline traits and alcohol dependence disorder (in remission). His treating team stated that Mr Aller has made "huge leaps forward" in the previous 6 months after completing a 26-week Violence Reduction course with a psychologist and ceasing Clozapine. His treating psychiatrist described him "as a model patient". 93. On 15 November 2021, the Tribunal granted Mr Aller unsupervised overnight leave so that he could stay in supported accommodation in Orange. Mr Aller had recently obtained a lease for the unit and was in the process of furnishing it. The NDIS supported him in the transition period. Mr Aller was also doing volunteer work at the RSPCA and was managing his own finances. He was also studying at TAFE, attending AA and was hoping to obtain his driving licence. 94. On 15 July 2022, the Tribunal granted Mr Aller conditional release to reside at his unit in Orange, where he remains today, subject to regular consideration by the Tribunal in relation to his care, supervision and treatment. Conditions of his release were that he be supervised by the Orange Community Mental Health Service, attend appointments with a psychiatrist and accept whatever medication or treatment is prescribed, that he not take any illegal drugs or substances and he is only to consume alcohol in accordance with his case manager's directions. He must also submit to random drug and alcohol testing. Mr Aller is also prohibited from going to the Central Coast or the area around Mudgee and is not to associate with the family of his victim. 95. In making this decision, the Tribunal noted that Mr Aller now had a diagnosis of mixed personality disorder with dependant, anxious and borderline traits and of alcohol dependence disorder (in remission).It noted that Mr Aller had furnished his unit and obtained his driver's licence. He had completed a 3-week intensive drug and alcohol course in December 2021 and was employed doing garden maintenance for a period of time although he found that too physically demanding. Although, he continued to volunteer at the RSPCA and was attending AA once a week. He was also already spending 6 nights a week of unsupervised leave at his unit and had returned negative drug and alcohol tests. 96. The Tribunal was "satisfied that Mr Aller's risk could be appropriately managed in the context of his proposed conditional release to supported accommodation in Orange and this would present no serious danger to himself or others". He also held that he remained unfit to be tried. 97. On 20 October 2022, the Tribunal amended Mr Aller's conditional release order slightly so that he could attend a new psychiatrist. The Tribunal noted that Mr Aller was working as a kitchen hand at a bakery and still living in his unit with his dog. He was still attending AA and seeing his psychologist and psychiatrist and returning negative drugs tests. He continued to manage his own finances. 98. On 3 March 2023, Mr Aller's case manager, Chris Bromley, filed a Notice of Intent with the Tribunal requesting that no changes be made to Mr Aller's conditions of release. On 4 May 2023, the Tribunal amended Mr Aller's conditional release order to require that he remain abstinent from alcohol to better reflect his management plan. Mr Aller confirmed that he has been maintaining abstinence from alcohol and did not object to this condition being added to the order. The Tribunal also found that he remains unfit for trial. 99. His next Tribunal review will be on 25 October 2023. 1. I note additionally, in this respect, the reliance by the defendant upon the fact that the Tribunal must not make an order for the release (including conditional release) of a forensic patient, unless it is satisfied that the safety of the patient or any member of the public will not be seriously endangered by the patients release, s 84(2) MHCIFP Act.

Level of compliance with obligations while a forensic patient 1. The defendant has been a forensic patient since 2015. 2. As noted above, the defendant absconded from the MSU on 15 June 2020 when he was on unsupervised leave in Orange. He went to Cowra, drank a bottle of bourbon and stayed overnight in a hotel. He was apprehended the next day and returned to the MSU. 3. Otherwise, the defendant has been consistently reported as being compliant with and actively engaged in treatment.

The views of the court that imposed the limiting term at the time the limiting term was imposed 1. In his verdict at the special hearing, Hidden J described the offending [at 5] in the following terms: "[5] There were numerous injuries to the heart and lungs. The pathologist who conducted the examination concluded that the attack was of a very violent nature, possibly occurring over several minutes, and that severe force would have been required to inflict some of the injuries, particularly where a number of ribs had been penetrated. Defence injuries were located on Ms Aiton's arms and hands, leading the pathologist to conclude that she was conscious during the attack and had tried to defend herself." 1. When imposing the limiting term his Honour said at [14]: "[14] Manslaughter, being the unlawful killing of a person, is an inherently serious offence. Nevertheless, it is one which can embrace a very wide variety and degree of criminality. This case falls into the more serious category of that crime. So much is apparent from the nature of the accused's attack upon Ms Aiton. The Crown prosecutor submitted that I should find that he intended to kill her. I am not so satisfied. However, there is force in the Crown prosecutor's submission that, in the circumstances of this offence, whether he intended to kill or inflict grievous bodily harm makes little difference to its objective criminality. While his consumption of alcohol on the day in question was not decisive of the issue of substantial impairment, I accept that it was a factor in his behaviour. That in no way excuses his conduct. Moreover, as the Crown prosecutor rightly pointed out, he was a man with a history of domestic violence when he was affected by alcohol and must be taken to have been aware of his propensity for violence in that state. Indeed, as I have said, he was on bail for offences involving domestic violence at the time. That breach of conditional liberty, of course, is also an aggravating feature to which I must have regard in arriving at the limiting term." 1. Plainly, the index offence is very serious and must have implications for the assessment of risk.

Assessment of first limb: unacceptable risk 1. The defendant's past conduct included a consistent pattern of violence against his intimate partners. 2. I agree with the submission of the plaintiff that the defendant's past conduct indicates that the risk of harm that the defendant poses to others is the risk of him committing violence against female partners. 3. Dr Ellis stated that the defendant suffered from a substance use disorder, personality disorder and bipolar disorder. Dr Ellis also believed that the defendant "would fall into a group of persons with a risk offending and serious harm that is high, and greater than a theoretical average offender, forensic patient or psychiatric patient". 4. It is true that Dr Ellis agreed with the defendant's treating team and the psychiatrists from the CFMHS that the likelihood of the defendant's committing future episodes of reactive aggression against partners is currently low due to his current treatment and supports. However, Dr Ellis and the defendants treating team agree that there could be a rapid elevation of risk without his current living circumstances and support or if he engages in any other destabilising activities. 5. In the absence of protective measures, I accept the submission of the plaintiff that the gravity of the defendant causing violence against any female partners would be high, based on his index offending. The consequences would be severe. 6. I am satisfied to the requisite standard for the purposes of the preliminary hearing, and based upon the material before the Court, that the defendant would, if that evidence was sustained, pose an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient.

Assessment of second limb: adequate management by less restrictive means 1. Dr Ellis states that the defendant is ineligible to be treated as an involuntarily patient under the Mental Health Act 2007 (NSW) as he is not a "mentally ill person". He is also not subject to any guardianship orders. 2. If the defendant were no longer a forensic patient, then the only form of supervision that could remain is the compulsory treatment orders that can be made under a Community Treatment Order, but Dr Ellis does not think that would be sufficient to manage his risk. 3. Dr Ellis considered that the defendant needs indefinite outpatient treatment with hospitalisation at times and careful monitoring by experienced forensic mental health staff and that the most effective way of achieving this and managing his risk is if he remains a forensic patient. 4. The defendant's treating team agree that he should continue to be managed in the community under the conditional release order – which is only possible if he remains a forensic patient. 5. Again, for the purposes of the preliminary hearing, and so far as the evidence presently permits, there is a proper basis for concluding there is no less restrictive means of adequately managing the defendant's risks at this time, save for an extension order resulting in the defendant remaining a forensic patient. This should ensure that his treatment is properly managed.

Conclusion 1. In the circumstances, I am satisfied that the evidence, if proved, would meet the test in s 122 of the MHCIFP Act and thereby justify the making of a further extension order. An interim order should be made. 2. To promote the objects of the MHCIFP Act (s 69) and, in particular, to facilitate the ongoing care and treatment of the defendant, I direct that the Registrar forward a copy of the report of Dr Andrew Ellis dated 2 July 2023 to the Tribunal.

Orders 1. The Court makes the following orders: 1. An order pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020: 1. Appointing two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. Directing the defendant to attend those examinations. 1. An order pursuant to ss 130 and 131 of the Act, that the defendant be subject to an interim order for the extension of his status as a forensic patient commencing on 1 February 2024 for a period of three months. 2. I direct that the Registrar forward a copy of the report of Dr Andrew Ellis dated 2 July 2023 to the Tribunal.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 November 2023