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Cases Cited: Attorney General for the State of New South Wales v Boyce (No. 2) [2017] NSWSC 648
Attorney General for the State of New South Wales v Boyce [2017] NSWSC 144
Attorney General of New South Wales v Boyce (by his tutor Johnson) (Final) [2022] NSWSC 1124
State of NSW v Rosenburg (Preliminary) [2025] NSWSC 191

Category: Principal judgment

Parties: Attorney General for New South Wales (Plaintiff)
Warren Boyce (Defendant)

Representation: Counsel:
C Palmer (Plaintiff)
S Talbert (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2026/00204038

Publication restriction: Nil

REVISED EX TEMPORE JUDGMENT

Introduction

1. By summons filed on 15 May 2026, the Attorney General for New South Wales (the plaintiff) seeks orders under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”) in respect of the defendant, Mr Warren Boyce.

2. The final relief sought is an order extending the defendant’s status as a forensic patient for a period of 5 years pursuant to ss 121, 127(1) and 128 of the Act.

3. At the hearing today, the plaintiff seeks interlocutory and interim relief in the form of an interim order extending the defendant’s status as a forensic patient for a period of 3 months pursuant to ss 130 and 131 of the Act, and an interlocutory order appointing two qualified practitioners to prepare reports for the Court pursuant to s 126(5) of the Act.

4. The interlocutory and interim orders sought are not formally opposed by the defendant who appears in these proceedings by his tutor, Dr Katherine Johnson (who was appointed to act as his tutor on 20 May 2026), represented by counsel.

5. The material before the Court includes a working folder containing formal documents enumerated in an index. The plaintiff tenders two exhibits: Exhibit MT-1 to the affidavit of Michael Tanazefti affirmed 14 May 2026, and Exhibit JT-1 to the affidavit of Jennifer Tsui affirmed 22 June 2026. The defendant read an affidavit of Joanna Kwan affirmed 20 July 2026, annexing the most recent guardianship order in respect of the defendant made 9 June 2026.

Background

6. The defendant is a 70-year-old Aboriginal man who is presently living at a supported independent living facility in Springside, Orange, NSW, pursuant to an order made by the Mental Health Review Tribunal (“the Tribunal”) on 8 April 2026. The defendant is the subject of an extension order made by Hamill J on 17 August 2022 which will expire on 16 August 2026. The defendant participated in the proceedings today by observation by audio visual link with his tutor, Dr Johnson.

7. The defendant has a mild to moderate intellectual disability with poor cognitive reasoning and adaptive functioning. He has previously been assessed as meeting the diagnostic criteria for paedophilic disorder and antisocial personality disorder. He is currently on a disability support pension and has received compensation from the Stolen Generations Reparation Scheme for trauma he experienced in his early life. He has been living in the supported independent living facility previously mentioned since he was conditionally released in April 2017.

8. In September 2013, the defendant was alleged to have committed an act of indecency against a 5-year-old boy at a caravan park where he had been allegedly living in a tent without having provided that address to police in accordance with his reporting obligations as a sex offender on the Child Protection Register. In July 2014, the defendant was found unfit to be tried, and on 12 December 2014, the Tribunal determined he was unlikely to become fit for trial within 12 months.

9. Following a special hearing at Newcastle District Court on 6 October 2015, a qualified finding of guilt was made for offences of:

10. committing an act of indecency with a victim under 10 years contrary to s 61O(2) of the Crimes Act 1900 (NSW) and;

11. failing to comply with reporting obligations contrary to s 17 of the Child Protection (Offenders Registration) Act 2000 (NSW).

12. In brief, the facts alleged were that the defendant was found by the victim’s mother in front of the victim masturbating while the child had his pants down and genitals exposed.

13. An overall limiting term of 3 years and 6 months was imposed, which expired on 4 March 2017. The defendant became a forensic patient. On 12 October 2015, the Tribunal determined under s 24 of the former Mental Health (Forensic Provisions) Act 1990 (NSW) (“MHFP Act”) that the defendant was suffering from an intellectual disability but with no evidence of a mental illness. It was then ordered then that he be detained at Long Bay Prison.

14. On 24 February 2017, Davies J made an interim extension order extending the defendant’s status as a forensic patient for a period of 3 months under the MHFP Act: Attorney General for the State of New South Wales v Boyce [2017] NSWSC 144. This was followed by an extension order made by Wilson J on 26 May 2017 for a period of 5 years under the same Act: Attorney General fo**r the State of New South Wales v Boyce (No. 2) [2017] NSWSC 648.

15. On 17 August 2022, following interim orders made by Fagan J in May of that year, Hamill J imposed a 4-year extension order pursuant to the Act commencing on 17 August 2022 and expiring on 16 August 2026: Attorney General of New South Wales v Boyce (by his tutor Johnson) (Final) [2022] NSWSC 1124. In making those orders, Hamill J found that “[b]ased on all of the evidence, it is abundantly clear that Mr Boyce remains a risk to the community, particularly to children.” His Honour further stated at [26] that:

“It is clear and consistent throughout the material that there is nothing upon which a finding could be made that Mr Boyce’s intellectual disability will ever abate. It is also clear that his paraphilia is being managed rather than cured. […]”

Legal principles

14. Turning to the legal principles, the defendant accepts that the Court’s power to make orders of the type sought by the plaintiff has been enlivened. This is because the defendant is a forensic patient within s 72(1)(b) of the Act, and the plaintiff’s application for the extension order has been made in accordance with the formal requirements of the Act.

15. If, following the preliminary hearing, the Supreme Court is “satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order”, it must make orders in the nature of the interlocutory orders sought in the summons: s 126(5) of the Act. If the Court is not so satisfied, it must dismiss the application: s 126(6). If so satisfied, the Court may also make an order in the nature of the interim extension order provided for, so long as it appears to the Court that the limiting term or existing extension order to which the forensic patient is subject will expire before the final proceedings are determined: s 130.

16. Section 127(2) of the Act provides a list of matters to which the Court must have regard in determining whether or not to make an extension order as follows:

(a) the safety of the community, (b) the reports received from the persons appointed under section 126(5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(b), (d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient, (e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application, (f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice or any other government Department or agency responsible for the detention, care or treatment of the forensic patient, (g) the level of the forensic patient’s compliance with any obligations to which the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act), (h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed, (i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others.

Issues for determination

17. The making of a final extension order would be justified in the event that the Court was “satisfied to a high degree of probability that”:

18. the defendant poses an unacceptable risk of committing serious harm to others if he ceases to be a forensic patient, and

19. that the risk cannot be adequately managed by other less restrictive means.

20. The test in s 122 requires satisfaction to a “high degree of probability” in respect of both limbs. As already stated, the interim and the interlocutory orders are not opposed. However, the position of the defendant is made clear by Ms Talbert, who appears on his behalf, that it does not amount to a concession that the relevant statutory test has been met or will be met in the final hearing. In any event, it is necessary for the Court to be so satisfied.

21. A detailed agreed statement of facts and issues is before the Court. As already explained, at this preliminary stage, I am being asked to conclude that the matters relied upon, if proved or established, would satisfy the statutory test. In the context of the very similar statutory regime for high-risk offenders under the Crimes (High Risk Offenders) Act 2006 (NSW), the test has been described as akin to a prima facie case test on committal: State of NSW v Rosenburg (Preliminary) [2025] NSWSC 191 at [21]. The relevant evidence before the Court may be summarised as follows.

Relevant evidence

Criminal history

20. A summary of the defendant’s prior offences is included in the agreed facts. The defendant has a criminal history with periods in custody on multiple occasions dating back to 1989. His criminal history includes sexual offences committed against both male and female children. The available material, so it is submitted by the plaintiff, indicates a pattern of chronic sexual offending behaviour involving both intra-familial and extra-familial complainants. It includes convictions for indecent assault with a female under the age of 16 years, sexual assault of a person under 16 years, sexual intercourse with a male aged over 10 and under 18 years, and an act of indecency with a complainant under 10 years of age, alongside other offences including property offences and breaches of conditional liberty.

Reports of qualified psychiatrists and psychologists under s 126(5)

21. Reports from qualified psychiatrists and psychologists were received in the first and second extension order proceedings and have been summarised in the agreed facts and in the plaintiff’s statement of case. It is unnecessary in these preliminary proceedings to do more than observe that all opinions were that the defendant presented with significant risk factors for sexual reoffending and presented with a risk of causing serious harm if he did not remain a forensic patient.

22. One relevant matter noted in the report of court-appointed expert, Dr Yolisha Singh, dated 14 June 2022, was that while it is generally accepted that a longer period without offending correlates with a lower risk of reoffending, in this defendant’s case, his level of risk remained largely unchanged “given the high loading of static risk factors, Mr Boyce’s chronic conditions of both paedophilic disorder, intellectual disability and possible antisocial traits”.

The report of Dr Marcelo Rodriguez under section 125(b)

23. On 31 December 2025, Dr Marcelo Rodriguez, Senior Psychologist, prepared a Risk Assessment Report pursuant to s 6(3)(b) of the Act. The defendant participated in the assessment with Dr Rodriguez on 17 December 2025. Dr Rodriguez expressed the following opinions in his report:

24. The defendant has been assessed as having a mild intellectual disability. He also meets the DSM-5 criteria for a diagnosis of paedophilic disorder and antisocial personality disorder.

25. The defendant falls into a group of individuals who pose a “moderate to high” risk of violence and a group of offenders who are at a “high” risk for sexual reoffending. The defendant presents with multiple historical and dynamic risk factors associated with sexual reoffending, particularly against children. The defendant’s risk is likely to be elevated in the absence of supervision and structured controls.

26. Given the combination of his chronic sexual offending, paraphilic interests, intellectual disability and poor insight, the defendant should not be in the company of children without supervision.

27. The least restrictive appropriate form of management is the continuation of the defendant’s status as a forensic patient. The forensic patient framework is integral to ensuring safe placement, treatment, monitoring and supervision of the defendant including the structured system of oversight and recall powers that would not exist in the same form if the defendant ceased to be a forensic patient.

28. The defendant should be reviewed every 12 months by the Tribunal (unless there are significant changes in his personal or clinical factors which might warrant sooner review).

29. The appropriate duration for an extension order would be 5 years. This period is appropriate in circumstances where the defendant’s intellectual disability and cognitive limitations will not change, and his paedophilic disorder is a relapse in condition which will not change. The defendant requires secure placement, ongoing treatment, monitoring and supervision to mitigate risk to vulnerable individuals.

30. Dr Rodriguez opined that an extension of the forensic order is the least restrictive means of care. Dr Rodriguez identified the following benefits of a forensic order, including: providing safe accommodation options, assistance with the provision of NDIS services, ensuring behavioural management strategies, ensuring no access to potential victims, and providing regular oversight of the defendant’s medical treatment.

31. Dr Rodriguez observed that the defendant does not currently meet the criteria for mental illness requiring involuntary admission and is not eligible for treatment as an involuntary patient under the Mental Health Act 2007 (NSW) nor at this time would he be eligible for a community treatment order. In Dr Rodriguez’ opinion, a guardianship order would not effectively manage the defendant’s risk of recidivism.

Additional reports

26. The additional reports before the Court include a psychologist’s report for the NDIS, and a report from the Community Safety Program professionals, advance and address additional matters concerning the defendant’s care and supervision. None deviated from an opinion that the defendant requires supervision and restriction and intensive services for risk management.

27. A Community Safety Program report dated 23 March 2026 was prepared by Matt Lindshield, Senior Clinical Consultant in the Community Safety Program. At [10], Mr Lindshield states:

“Since Mr. Boyce’s release from custody into the current model of support in the community (June 2017), the available information (e.g., incident reports) does not suggest gravitation towards risky situations [i.e. situations in which Mr. Boyce has access to or the opportunity to be alone with a child]. [1] Instead, Mr. Boyce’s incident reports suggest interpersonal challenges with co-residents and inappropriate sexualised behaviour (e.g., masturbation behaviour and exposure of his genitals in the common areas) and other challenging behaviours […]. It is important to note that these challenging behaviours tend to occur in his living environment [… rather] than in the community. (As noted in CSP’s previous reports to the Tribunal, most of the behaviours that Mr. Boyce has exhibited in the community occur when staff are present, such as public masturbation when travelling in the staff vehicle, making sexualised comments towards staff in a public setting, etc.” (Footnote added)

Tribunal orders or decisions

28. The defendant has been periodically reviewed by the Tribunal since the previous extension of his status as a forensic patient in August 2022. At the most recent review hearing in April 2026, the Tribunal determined that there were reasonable grounds for believing that the care, treatment or control of the defendant was necessary for his own protection from serious harm or the protection of others from serious harm.

Compliance with obligations while a forensic patient

29. The defendant has had reasonable compliance as a forensic patient. As already observed, several incidents have been reported covering a range of behavioural concerns. The plaintiff emphasises a recent increase in the frequency of incidents including sexualised or exposure-related incidents in late 2025. These matters are enumerated in far more detail in the supporting materials but is unnecessary to set them out for the purposes of these reasons.

Consideration

30. On behalf of the defendant in these preliminary proceedings, Ms Talbert made three points for consideration.

31. First, that a number of the assessments, in particular the statistical risk assessment tests, are dated from 2016 and do not appear to have been recently updated.

32. Second, that there have not only been no criminal offences since the defendant’s conditional release in April 2017, but also, the defendant has not breached his conditional release conditions. The identified behavioural incidents, while obviously relevant, do not amount to breaches of the conditions.

33. Third, the material in the Community Safety Program report (a portion of which is extracted above) suggests that the defendant’s sexualised and inappropriate behaviour has been confined to his immediate living environment and with staff members with whom he is familiar.

34. In response to that latter point, the plaintiff emphasised that the defendant is presently very closely supervised, and that plays of itself a significant role in modifying or restricting the defendant’s behaviour. In addition, with respect to the statistical risk assessments, it is the case that a number of the factors that are taken into account in such assessments are factors which do remain unchanged.

35. Ms Talbert helpfully observed that further expert opinion is likely to assist the Court with understanding whether and how each of these matters or other matters may impact upon the necessary risk assessment concerning the defendant. I agree.

36. In conclusion, having considered the material before the Court, I am satisfied that the matters alleged would, if proved, justify the making of an extension order.

37. I make the following orders:

38. An order pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”):

(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 order for the interim extension of his status as a forensic patient commencing upon the expiry of his current extension order on 16 August 2026 for a period of three (3) months.

**********

Endnote

The explanation of “risky situations” was provided by the parties rather than the report author.