ATTORNEY-GENERAL SEEKS FOR AN EXTENSION ORDER AGAINST THE SEX OFFENDER TO EXTEND THE LATTER’S STATUS AS A FORENSIC PATIENT
Attorney General of NSW v Delmege (Preliminary) [2021] NSWSC 50 (8 February 2021)
Plaintiff seeks for the order to extend the status of the respondent as a forensic patient under the Mental Health (Forensic Provisions) Act 1990.
Facts:
The defendant is a 62 year old man who was born with congenital deafness and has a diagnosis of mild intellectual disability. He has also been diagnosed with alcohol use disorder and cannabis use disorder. Presently, the defendant is a forensic patient
On October 2015, the defendant was found to unfit to be tried on two historical charges of sex offences against a child (one of his daughters) on the basis of his cognitive impairment and deafness. On March 2017, in a special hearing wherein the defendant was found guilty. The defendant’s limiting term, and status as a forensic patient, is due to expire on 9 February 2021.
It is the position of the Attorney General of NSW (the plaintiff), pursuant to cl 7(2) of Schedule 1 to the Mental Health (Forensic Provisions) Act 1990(the Act) that:
(a) the defendant poses an “unacceptable risk” of causing “serious harm” to others if he ceases being a forensic patient; and
(b) that risk cannot be managed by other, less restrictive means.
The plaintiff seeks an extension of the defendant’s status as a forensic patient for a period of 3 months on an interim basis pursuant to Sch 1 of the Act.
Issue: Should the court grant the extension of the defendant’s status as a forensic patient for a period of 3 months as sought by the plaintiff?
Law:
Analysis:
Doctor O’Dea, a qualified psychiatrist interviewed the defendant, as a result of which he prepared a Risk Assessment Report (RAR).
The observations and opinions of Dr O’Dea strongly support the existence of an “unacceptable risk” on the part of the defendant should he cease being a forensic patient.
In particular, Dr O'Dea’s conclusions about the limitations of the defendant’s insight, his continued minimisation and denial of aspects of the index offending and of his substance use suggest a persistence of attitudes on the defendant’s part which contributed to the index offending, and thereby increasing the probability of similar offending occurring again in the future.
These conclusions were reinforced by the defendant’s inability to provide a coherent account of the offending.
The Adaptive Functioning Assessment Report substantially supported Dr O’Dea’s opinion and in particular, the need for access to 24-hour support for the defendant.
On the basis of the material reviewed in the judgment, the court is satisfied to a high degree of probability (although on an assumption that the matters in the supporting documentation have been proved) that the defendant poses an unacceptable risk of causing harm to others if he ceases being a forensic patient.
Conclusion: The Court orders that the defendant be subject to an interim extension order commencing from 9 February 2021 for a period of three months.
