Attorney General for New South Wales v Bragg

Supreme Court of NSW|2024-03-20|Before: Chen J

v Kamm (Final) [2016] NSWSC 1 State of New South Wales v Richardson (Final) [2020] NSWSC 1809 State of New South Wales v Simcock (Final) [2016] NSWSC 1805 State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 Category: Principal judgment Parties: Attorney General for New South Wales (plaintiff) Brendan Bragg (defendant) Representation: Counsel: E Lovell-Jones (plaintiff) C Goodhand (defendant)

Solicitors: NSW Crown Solicitor's Office (plaintiff) Legal Aid NSW (defendant) File Number(s): 2023/00312645

Introduction

By summons filed 29 September 2023, the Attorney General for New South Wales ('the plaintiff') seeks an order, by way of final relief, pursuant to ss 121, 127 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ('the MHCIFP Act') against Brendan Bragg ('the defendant'), who appears by his tutor Ashley Limbury, to extend his status as a forensic patient for a period of three years.

The defendant

The defendant is a 37-year-old Aboriginal man who has been diagnosed as having a mild to moderate intellectual disability as well as a paedophilic-style disorder (the detail of which is covered later in these reasons). He has a significant criminal history, dating back to 2004, which includes multiple child sexual offences, some of which were discharged pursuant to s 32 of the now repealed Mental Health (Forensic Provisions) Act 1990 (NSW) ('the MHFP Act').
The defendant left school when he was in year 11 and thereafter attended TAFE. He has a limited employment history and, since the age of 18, has been in receipt of a disability support pension.
The defendant is also subject to a guardianship order and a financial management order made by the Guardianship Division of the NSW Civil and Administrative Tribunal: the defendant currently has a Public Guardian and receives financial management by the NSW Trustee and Guardian (agreed facts at [20]).
The defendant has, since 8 November 2023, been involuntarily detained at Blacktown Hospital pursuant to an order made by the Mental Health Review Tribunal ('the Tribunal') under s 109 of the MHCIFP Act (agreed facts at [38]).
On 17 November 2023, the Tribunal ordered that the defendant continue to be detained in Blacktown Hospital until the Tribunal orders his discharge and that he be allowed access to escorted and supervised day leave in accordance with the discretion of the Medical Superintendent (agreed facts at [39]).
On 14 February 2024, the Tribunal ordered that the defendant continue to be detained until the Tribunal orders his discharge but that, in addition to escorted and supervised day leave in accordance with the discretion of the Medical Superintendent, the defendant also be allowed access to supervised overnight leave, again at the discretion of the Medical Superintendent (agreed facts at [39]).
The defendant is scheduled to be reviewed by the Tribunal in May 2024.

The defendant's criminal history

The defendant has a criminal history which includes child sexual offences and the breach of his obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) and of child protection prohibition orders made under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW).
The defendant's criminal history is set out in the agreed facts which were tendered in the previous extension order proceedings and referred to by Ierace J in Attorney General for New South Wales v Bragg (Final) [2021] NSWSC 1054 at [13]-[22], and are also the subject of agreed facts in the current proceedings (see agreed facts at [5]-[6]). They were summarised by Ierace J as follows: 13. The defendant's criminal history exclusively comprises child sexual offences or the breach of obligations under the Child Protection (Offenders Registration) Act and Child Protection Prohibition Orders ("CPP Order"). 14. The first entry is in 2004 for four counts of indecent assault on a person aged under 10, contrary to s 61M(2) of the Crimes Act, at which time the defendant was aged 17. The victims were a female aged 8 and her brother aged 6. The allegations were that he pushed the girl's swimming suit to one side, exposing her buttock and vagina, pulled down his boxer shorts and moved his body up and down for about a minute. On another occasion, he put his hand under her dress and over her underwear above her vagina and moved it in circles. In relation to the boy, he placed his hand down the boy's pants and grabbed his penis. The defendant was sentenced to 2 year probation orders pursuant to s 33(1)(e) of the Children (Criminal Proceedings) Act 1987 (NSW) and entered onto the Child Protection Register under the Child Protection (Offenders Registration) Act. 15. In October 2007, the defendant was charged with loitering near a public place while a convicted sex offender, contrary to s 11G(1)(b) of the Summary Offences Act 1998 (NSW) ("loitering"). Police alleged that he was observed making physical contact with a girl aged 11 or 12 at a public pool. He was conditionally discharged pursuant to s 32 of the repealed Act. 16. In December 2010, the defendant was again charged with loitering, the allegation being that he was at a public oval where children aged 10 to 16 and adults were doing athletics. He was observed by police to have an erection. He was sentenced to a 2 year supervised good behaviour bond. 17. In January 2011, a CPP Order was made against the defendant pursuant to the Child Protection (Offenders Prohibition Orders) Act. 18. On 30 October and 19 November 2011, the defendant committed two separate offences of aggravated break and enter with intent to commit a serious indictable offence contrary to s 112(2) of the Crimes Act. On both occasions, he entered the same residence through a bedroom window at night or in the early morning and touched the same male victim, aged 16, who was in his bed. He was sentenced by Berman SC DCJ in February 2013 to 2 years imprisonment, suspended upon entering into a bond with conditions of supervision. 19. In May 2012, whilst on bail for the break and enter offences, the defendant was charged with loitering. Police alleged he was seen in the company of children aged 9 and 11, said to be his mother's cousins, while walking to a shop. He was returned to custody. Whilst in custody, the defendant was sexually assaulted. In October 2012, he was conditionally discharged pursuant to s 32 of the repealed Act. A CPP Order was made for 2 years. 20. In December 2013, the Probation and Parole Service reported that his response to supervision had declined since October 2013, being the time that he commenced cohabitation with his wife, and that he was not obeying directions. In particular, it noted that he had contravened his CPP Order by attending public venues where children were congregating, and police had viewed on his mobile phone material that contained inappropriate age and sex-related applications. No charges were laid in respect of those allegations. 21. In December 2015, the defendant was charged with behaving in an offensive manner near a public place. Police alleged that he had stood behind a woman and her two daughters, aged four and 14, and told them that he was not wearing any underwear. He was convicted and sentenced to a 3 year good behaviour bond. 22. In April 2016, the defendant contacted a 12 year old girl on Facebook and sent her messages stating that he had seen her at the beach and mall. He then sent the girl lewd text messages, which were elicited by the girl's mother pretending to be the girl. He was charged with contravening a CPP Order. In June 2016, a CCP Order was made for 5 years against the defendant in the Local Court. In December 2017, he was discharged in relation to the charge of contravening a CPP Order pursuant to s 32 of the repealed Act.

The index offences

In around June 2013, the defendant commenced a relationship with a woman who also has an intellectual disability and who has two children who were then aged 9 and 13. They began co-habiting in around October 2013. By that time, the children had been removed from their mother's care by the Department of Family and Community Services.
In 2015, the defendant and his partner were married.
In June 2016, the defendant and his wife commenced supervised access with her older child (the daughter).
In October 2016, the defendant was arrested in relation to videos and images of his wife's daughter located on his phone which constituted Category 1 child abuse material. The defendant was charged with the following offences - namely, possess child abuse material, contrary to s 91H of the Crimes Act 1900 (NSW) (two counts); incitement to commit sexual offence - produce child abuse material, contrary to s 80G of the Crimes Act (two counts); and contravene prohibition order, contrary to s 13(1) of the Child Protection (Offenders Prohibition Orders) Act (agreed facts at 7 and [8]). These matters were the first index offences.
On 10 January 2018, police discovered an email address for the defendant that had not been previously disclosed, in contravention of the defendant's reporting obligations (agreed facts at [9]).
In February 2018, police discovered that the defendant's wife's daughter had sent sexualised images and videos of herself to the defendant and his wife via Facebook. Police located Facebook accounts and a hidden Wi-Fi modem which had not been previously disclosed, in contravention of the defendant's reporting obligations. The defendant was charged with further offences - namely, two counts of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act without reasonable excuse. This conduct was the basis for the second set of index offences (agreed facts at 7, [9] and [10]).
On 25 September 2018, Ellis DCJ found the defendant unfit to be tried in connection with both sets of charges and made an order rendering him a forensic patient under ss 14 and 42(a)(i) of the MHFP Act (agreed facts at [11]).
On 10 and 11 December 2019, following special hearings in relation to each set of charges, Ellis DCJ made qualified findings of guilt in respect of all charges (agreed facts at [12]).
On 1 May 2020, Ellis DCJ imposed multiple limiting terms under the MHFP Act with a cumulative duration of 3 years and 10 months, commencing on 2 July 2017 and expiring on 1 May 2021 (agreed facts at [13]).

The proceedings extending the defendant's status as a forensic patient

On 2 February 2021, the plaintiff filed an application for an extension order for a period of five years under the MHFP Act. Interim orders were made by Wright J on 29 April 2021, extending the defendant's status as a forensic patient for three months commencing from midnight on 1 May 2021 and expiring on 31 July 2021.
On 28 July 2021, Ierace J made orders under ss 121 and 127 of the MHCIFP Act, extending the defendant's status as a forensic patient for two years and six months, commencing from 31 July 2021 and expiring on 30 January 2024.
On 29 September 2023, the plaintiff filed the current summons.
On 17 November 2023, following a preliminary hearing, Button J made an interim extension order, extending the defendant's status as a forensic patient for three months, commencing from 31 January 2024 and expiring on 30 April 2024.

The defendant: recent history and current circumstances

On 30 November 2020, the defendant was released from custody pursuant to a conditional release order made by the Tribunal on 2 November 2020. The defendant has, since June 2020, been managed by the Community Safety Program ('CSP'). The CSP is described in some detail in the various reports that they have provided (reports that were principally prepared by the defendant's case manager) to the Tribunal and their functions include case management and risk assessment for forensic patients with cognitive impairment as ordered by the Tribunal. The defendant's most recent conditions of release (dated 24 October 2023, prior to his involuntary detention pursuant to an order of the Tribunal made on 7 November 2023) required the defendant to accept a case manager from CSP and the management of his case by them.
The defendant currently has a Public Guardian and receives financial management by the NSW Trustee and Guardian, as I have earlier noted.
The defendant is in receipt of support from the National Disability Insurance Scheme ('NDIS'). The defendant's NDIS plan provides for access to supported accommodation and support staff, support coordination, occupational therapy, speech therapy, positive behaviour support, relationships counselling and psychological support.
Following his release from custody, the defendant was transitioned to support accommodation. Incident reports indicate that, following his placement in supported accommodation in Revesby, in February 2022 the defendant engaged in problematic behaviour including "looking at children and adult females while in a staff vehicle and on public transport during outings. [The defendant] also self-disclosed 'a marked increase in sexual preoccupation', including 'sexually deviant thoughts (e.g. 'touch children')'" (agreed facts at [22]). Given the concerns that arose in consequence of this behaviour, and the proximity of the defendant's accommodation to schools and childcare facilities, the defendant was relocated in May 2022 to supported accommodation in Oxley Park.
On 20 December 2021, the defendant self-disclosed engaging in sexualised behaviour with a stranger in a public bathroom - an incident that the defendant later confirmed to Dr Youssef (a psychologist who had been treating the defendant) did occur.
On 1 December 2022, the Tribunal varied the defendant's conditional release order to allow the defendant to exercise up to two hours unsupervised leave in accordance with an independent community access plan approved by CSP. By that order, the defendant was permitted to consume limited amounts of alcoholic drinks whilst in the company of his support workers in licensed premises (agreed facts at [25]).
In December 2022, the defendant was involved in two incidents of non-compliance with his independent community access plan, following which the plan was suspended before being reinstated on 29 March 2023. The two incidents involved the defendant leaving his supported accommodation with an adult female without support staff - and, on the second of those occasions, the defendant left his accommodation at around 10:00pm and returned at 7:30am the following day (agreed facts at [26]).
In the period February to September 2023, the defendant was involved in a number of episodes of suicidal ideation and self-harm.
On 13 June 2023, a Final Apprehended Domestic Violence Order ('ADVO') was made (without admissions) in relation to the defendant for a period of two years. The application was made based upon an allegation that the person in need of protection had been sexually assaulted by the defendant when he visited her home on 7 May 2023. The defendant, at that time, was permitted to visit that individual unsupervised in accordance with his independent community access plan. The defendant has not been charged in relation to this allegation.
On 27 July 2023 at around 10:30pm, the defendant locked his bedroom door and absconded through a window. The defendant took a staff vehicle, picked up two other adults and returned the vehicle to his accommodation at 4:45am the following morning. A discrepancy of 200 kilometres was noted on the vehicle's odometer. The incident was reported to the Tribunal and a corrective action plan was developed.
The defendant's independent community access plan was suspended in June 2023 following the police investigation and the ADVO. It was reinstated on 25 September 2023.
Following the reinstatement of his independent community access, there were 16 occasions between 26 September and 15 October 2023 when the defendant returned between 30 minutes to 2 hours late from his 2 hours of independent community access. There have also been instances of the defendant failing to comply with condition 10 of his conditions of release - a condition which permitted him to consume no more than two standard alcoholic drinks in the company of his support workers in licensed premises. On one occasion, when the defendant had not returned from his independent community access by 9:00pm in accordance with his conditions, he was located by a staff member who collected him from licensed premises in St Mary's at 1:30am the following morning. The defendant did not answer phone calls or text messages from staff from 9:00pm until 12:30am, at which time the defendant initially declined to being picked up and advised staff that he would be home at 4:00am. Upon being collected, the defendant is reported to have shown signs of intoxication and informed staff that he had made friends who had been buying him drinks (agreed facts at [32]).
On 2 October 2023, the defendant brought an unknown male, who he had apparently met at a supermarket, to his accommodation for "blow job work", with the defendant advising accommodation staff that the unknown male "came for a blow job and was supposed to give me cash for that work but he got uncomfortable and he went away" (agreed facts at [34]).
On 17 October 2023, accommodation staff informed CSP that they had observed the defendant approach and watch girls at Westfield. The defendant admitted to CSP that he has had increased thoughts about sex and that he does stare at women when accessing the community independently, but denied speaking to or approaching women.
Since 7 October 2023, the defendant reported attending St Mary's Church. As the church service exceeds two hours and children are present at it, the defendant was to be accompanied when attending. The defendant is reported to have befriended a family at the church with a 10-year-old daughter. On 27 October 2023, a priest from the church attended the defendant's accommodation and asked the house manager not to send the defendant to church without staff.
The defendant was reviewed by the Tribunal on 24 October 2023. The Tribunal ordered that the defendant should continue to be released, but with some changes to the conditions of release. These conditions were the operative ones but for his involuntary detention - described next.
On 7 November 2023, the Tribunal was notified that the defendant had left his accommodation on 6 November 2023 and had not returned, "despite prompting via mobile phone" (agreed facts at [38]). Accordingly, the Tribunal made an order, under s 109 of the MHCIFP Act, for the defendant to be apprehended and detained at Blacktown Hospital.
Following his return to his accommodation on 8 November 2023, the defendant was taken to Blacktown Hospital pursuant to the order made by the Tribunal. The defendant disclosed to CSP that he had absconded due to "stress" from living with a housemate at his accommodation, and that he knew he was not going to return after his community access. He also reported staying with his cousin at his house and that he "continuously drank alcohol for the two days and also smoked marijuana and ICE" (agreed facts at [38]).
On 16 November 2023, the Tribunal reviewed the defendant. On 17 November 2023, the Tribunal ordered that the defendant continue to be detained in Blacktown Hospital and was not to be discharged until ordered by the Tribunal. The defendant was to be allowed access to escorted and supervised day leave at the discretion of the Medical Superintendent.
On 9 February 2024, the Tribunal reviewed the defendant. On 14 February 2024, the Tribunal made a number of orders, including an order continuing the defendant's detention in Blacktown Hospital until the Tribunal orders his discharge. The orders permitted the defendant, within the discretion of the Medical Superintendent, to be granted escorted and supervised day leave as well as supervised overnight leave.
The Tribunal is scheduled to review the defendant in connection with the s 109 order in May 2024.

An overview

In Attorney General of New South Wales v Beryalay (by his tutor Johnson) (Final) [2022] NSWSC 1274 at [13]-[33] and in Attorney General of NSW v Williams (by his tutor Ainsworth) (Final) [2023] NSWSC 426 at [20]-[34], I set out the relevant statutory provisions under the MHCIFP Act, and identified the organising principles. What follows largely draws upon, and supplements, what I there set out.
The MHCIFP Act came into force on 27 March 2021 and repealed the MHFP Act: see s 2 of the Act, and New South Wales, Commencement Proclamation, 2021 No 116, 19 March 2021 (in relation to the commencement); s 167(a) of the MHCIFP Act (now repealed) and ss 30C(1)(b) and 30C(2) of the Interpretation Act 1987 (NSW) (in relation to the repeal). When compared to the MHFP Act, the MHCIFP Act "does not substantially alter the process or the test to be applied in applications for an extension order, and so the case law relating to applications under the [MHFP Act] remains applicable": Attorney General for New South Wales v Haines (Preliminary) [2022] NSWSC 458 at [15].
The treatment, care and detention of forensic patients is dealt with in Pt 5 of the MHCIFP Act. Section 123 of the MHCIFP Act permits the administering Minister to apply for an extension order against a forensic patient.
Section 121(1) of the MHCIFP Act provides that the Supreme Court may, upon application, "make an order for the extension of a person's status as a forensic patient". An order made under that section is described as "an extension order": s 121(2).
Section 72 of the MHCIFP Act defines "forensic patients". The defendant is accepted by the parties to be, and I find that he is, a "forensic patient".
Section 69 of the MHCIFP Act identifies six objects of that part, which relevantly includes "to protect the safety of members of the public" (s 69(1)(a)); "to provide for the care, treatment and control of persons subject to criminal proceedings who have a mental health impairment or cognitive impairment" (s 69(1)(b)); and "to protect the safety of victims of forensic patients and acknowledge the harm done to victims" (s 69(1)(f)).
Section 122, which provides the grounds for making an extension order, is in the following terms: 122 Forensic patients in respect of whom extension orders may be made (1) A forensic patient can be made the subject of an extension order as provided for by this Part if and only if the Supreme Court is satisfied to a high degree of probability that - (a) the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means. (2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others.
This section has been described as creating two limbs. The first requires demonstration that the defendant "poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient". This involves consideration of, and a comparison with, the identified counter-factual: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [126] ('Lynn'). The second involves consideration of whether the "risk cannot be adequately managed by other less restrictive means" which, as the note to the section provides, will include consideration of whether involuntary detention or treatment under the Mental Health Act 2007 (NSW) adequately manages the risk: Minister for Mental Health v Paciocco [2017] NSWSC 4 at [7] ('Paciocco').
The following further matters should also be noted in connection with s 122 of the Act.
First, the standard of persuasion for each limb is to a "high degree of probability". In this respect, the Court must be satisfied that the existence of the unacceptable risk is higher than the civil standard of proof and thus "beyond more probably than not", but not to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] ('Cornwall'). Although the decision in Cornwall concerned the Crimes (High Risk Offenders) Act 2006 (NSW), this analysis has been held to apply equally to the Act, or its predecessor: Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439 at [18] and [25] (with respect to the Act); Attorney General for New South Wales v Kapeen [2017] NSWSC 685 at [11]-[12] (with respect to the MHFP Act). The parties accepted the correctness of that approach.
Secondly, the plaintiff bears the onus in respect of both limbs, and in respect of the second limb must prove a negative: Paciocco at [8].
Thirdly, the phrase "unacceptable risk" is not defined in the MHCIFP Act, but it has been held to have the same meaning as in the Crimes (High Risk Offenders) Act: Attorney General for the State of New South Wales v Boyce (No. 2) [2017] NSWSC 648 at [30] ('Boyce'). That finding provides the basis for imposing control on the offender (or, more relevantly here, the forensic patient): Lynn at [127].
In the context of high risk offenders, the phrase "unacceptable risk" is given its everyday meaning within its context, having regard to the objects of the Crimes (High Risk Offenders) Act (Lynn at [55]-[58]), 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 at [71]; State of New South Wales v Chaplin [2019] NSWSC 471 at [15]. The nature of the risk "posed [has] to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition": Lynn at [126]. Further, a forensic patient may pose an unacceptable risk, even where the likelihood of causing serious harm to others is low, if the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43]; State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [16]; State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73].
The phrase "serious harm" is not defined by the MHCIFP Act. It has been accepted that it includes physical or psychological harm, albeit conditioned by the requirement that the harm be "serious": see the discussion in Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 at [16]; and Attorney General of New South Wales v Beryalay by his tutor Thompson (Preliminary) [2019] NSWSC 252 at [20]. This analysis was followed by Wright J in Attorney General of New South Wales v Beryalay by his tutor Thompson (Final) [2019] NSWSC 816 at [21].
The phrase "adequately managed" is also not defined by the MHCIFP Act. It has been held to mean "that the unacceptable risk is mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally ill or mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community": Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 at [63]; Boyce at [30].

Further pre-conditions to making orders under s 121

There are a number of statutory provisions required to be satisfied prior to the Court making an order under s 121 of the MHCIFP Act.
Section 123 of the MHCIFP Act permits the relevant Minister (here, the plaintiff) to apply for an extension order "against a forensic patient". However, s 124(1) qualifies this by providing that an order can only be made if the forensic patient is subject to "a limiting term" or "an existing extension order". Section 3 of the MHCIFP Act defines "extension order" to mean "an order for the extension of a person's status as a forensic patient under section 121" and defines "limiting term" to mean "a term nominated for a person under Division 3 of Part 4".
It is an agreed fact, and I find, that the defendant is a forensic patient, and I further find that he is currently subject to an existing extension order (the agreed facts at 2 refer to the defendant as being subject to a limiting term but that term expired in 2021 and the defendant is currently the subject of an extension order).
Relevantly, s 124(2) of the MHCIFP Act provides that an application, made under s 123, may not be made more than six months before the expiry of the existing extension order: s 124(2)(b). It is also an agreed fact that this requirement is satisfied (agreed facts at 2, again referring to the expiry of the defendant's "limiting term"), and I find that it is. The application was therefore compliant with the time stipulated by s 124(2)(b).
A further requirement is that the application for an extension order be accompanied by material which addresses the matters in s 127(2) of the MHCIFP Act to the extent relevant (s 125(a)); and includes a report from a qualified psychiatrist, registered psychologist or registered medical practitioner that "assesses the risk of the forensic patient causing serious harm to others" (s 125(b)(i)) and "addresses the need for ongoing management of the patient as a forensic patient and the reasons why the risk of the forensic patient causing serious harm to others cannot be adequately managed by other less restrictive means" (s 125(b)(ii)).
I am satisfied that the material in the affidavits of Irene De Raya addresses the matters in s 127(2) of the Act, and the defendant did not contend otherwise.
Section 126 of the MHCIFP Act prescribes a number of pre-hearing procedures relating to the making of, and dealing with, an application for an extension order: the application must be served on the forensic patient (the defendant) within two business days after the application is filed, or such further time as the Court may allow (s 126(1)); the Minister must notify the Tribunal as soon as practicable after making the application (s 126(2)); subject to some presently irrelevant exceptions, the Minister must disclose to the forensic patient material relevant to the application (s 126(3)); and the Court is to hold a preliminary hearing within 28 days after the filing of the application, or within such further time as the Court may allow (s 126(4)).
I am satisfied that these pre-hearing procedures have been complied with, and the defendant did not submit to the contrary.

The determination of the application: assessment of risk

Section 127(1) empowers the Court, when determining an application for an extension order, to make such an order (s 127(1)(a)) or to dismiss the application (s 127(1)(b)). If an extension order is made, it is not to exceed 5 years: s 128(1)(b).
In determining whether or not to make an extension order, the Court must take into account - in addition to any other matter the Court considers relevant - the matters in ss 127(2)(a)-(i). If the Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order: s 127(3).
I next outline the considerations that I have taken into account, in accordance with s 127(2) of the MHCIFP Act, in reaching my conclusions.

The safety of the community: s 127(2)(a)

This consideration typically extends to a consideration of the index offence, and any criminal history: Attorney General of New South Wales v Vakapora (Preliminary) [2020] NSWSC 1701 at [38]; Attorney General for New South Wales v Mulipola (Final) [2021] NSWSC 1041 at [34]. It may also extend to consideration of alleged criminal conduct of the defendant that did not result in conviction for any offence: State of New South Wales v French (Final) [2017] NSWSC 1475 at [46], albeit that material of that kind can be considered under s 127(2)(i): Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174 at [24] and [127]; State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 at [14].
I have earlier referred to the index offending: see [15]-[23], above. To the extent that there is material broadly concerning the safety of the community, I have referred to it in my discussion of the defendant's recent history and current circumstances: see [31]-[45], above.
Given the defendant's intellectual functioning, his criminal antecedents (including the index offences), the diagnoses made by each of the Court appointed experts (specifically, their confirmation of the earlier diagnosis of a paedophilic disorder) and his more recent history that resulted in his involuntary detention, in my view, the safety of the community weighs in favour of the order sought by the plaintiff, as the plaintiff submitted.

Reports received by experts appointed under s 126(5) to conduct examinations of the forensic patient: s 127(2)(b)

Following the order made by Button J under s 126(5), the defendant was examined by Dr Calum Smith, consultant forensic psychiatrist (who produced a report dated 9 February 2024), and Lisa Zipparo, consultant forensic psychologist (who produced a report dated 7 February 2024).
The experts were accepted to be - and I accept are - in broad agreement not only as to the defendant's diagnosis, but also that the defendant posed a risk of serious harm to others unless an extension order was made. No doubt because of this, the experts were not called to give evidence, nor were they required to attend for cross-examination.
In relation to Dr Smith, the key points from his report dated 9 February 2024 may be summarised as follows: 1. Dr Smith considered that the defendant had a "clear intellectual disability" and a "sexual drive that leads him to act in such a way [he] has, at least as part of a paraphilic attraction to pre-pubescent or peri-pubescent females", and that the "contribution of cognitive impairment and substance use leads him to act impulsively, such that he cannot prevent sexual acts, including with or toward children": report page 21. 2. In terms of risk assessment, Dr Smith expressed the opinion that the "overall picture is of a person with high risk in the community. This has been the consistent finding of my risk assessment and other risk assessments", and that the defendant's "fundamental risk factors" were required to be managed as they were "not likely to change": report pages 21-22. 3. Dr Smith diagnosed the defendant as meeting the diagnostic criteria for various conditions - namely, an intellectual disability (although he did not define "exactly what level this is", albeit that he noted that it is "accepted to be mild to moderate" and that much of his assessment was in keeping "with a moderate level"); complex trauma; substance use disorder and paraphilia: report pages 22-23. In connection with the diagnosis of paraphilia, Dr Smith noted that the "materials and expert consensus" were that the defendant has that condition and that the defendant's "cognitive impairment contributes in that it undermines any [ability] to think through the consequences of his actions. If he is using substances, then this is especially so": report page 23. 4. In terms of the defendant's risk profile, Dr Smith considered that the defendant "does pose a risk of serious harm", noting that the defendant scored as "well above average" on the actuarial assessment tools "and this has been consistent in all the times he has been assessed": report page 24. 5. Dr Smith expressed the opinion that the defendant's risk had been managed "due to an extremely high level of supervision and oversight that is really only afforded to forensic patients" and that, given what occurred when the defendant's level of supervision "has lifted even slightly", the defendant "needs to continue being managed under this level of supervision": report page 25. Dr Smith noted that there had been "significant ongoing difficulties managing him in the community, and there is significant risk associated with his actions. It is hard to argue that another, less restrictive option than this is available at present": report page 26. Later, Dr Smith expressed the opinion that he did not believe "there is a less restrictive means of managing [the defendant's] risk" or that he could "be managed in a lesser restrictive way": report pages 27- 28. 6. Dr Smith considered that the extension should be for three years - a period that took into account establishment of "safe management in the community" which Dr Smith recognised "often takes some time" and also took into account that the period needs to be of "adequate duration of time" to ensure that the person remains "compliant with the restrictions and requirements": report page 29.
In relation to Ms Zipparo, the key points from her report dated 7 February 2024 may be summarised as follows: 1. Ms Zipparo undertook a neuropsychological assessment, including administering a number of tests on the defendant. That testing identified that the defendant had "intellectual capacities in the impaired range consistent with a Mild to Moderate Intellectual Disability": report page 9. She diagnosed the defendant as satisfying the criteria for Paedophilic Disorder non-exclusive type, which she noted was a lifelong condition, albeit that "the propensity to act out sexually with children may fluctuate (increase or decrease) with age". She also diagnosed the defendant as suffering from Complex Posttraumatic Stress Disorder and an Alcohol and other Substance Use Disorder: report pages 14-15. 2. Ms Zipparo considered that sexual deviance such as paedophilic disorder "is acknowledged as one of the most significant risk factors for sexual offending against children" and that whilst there were some features that mitigated these risks, the defendant's moderate intellectual disability, "inherent poor impulse control" and tendency to use substances such as drugs and alcohol to help him cope with his "emotional dysregulation" increases his impulsivity and thus compounds the risk: report page 15. 3. Ms Zipparo assessed the defendant as having an overall high risk of reoffending, given his "ongoing preoccupation with sex, his high level of impulsivity, recent rule breaches including relapse into substance use, unwillingness to engage with anti-libidinal treatment, poor self-insight, and tendency to emotional dysregulation": report page 16. Further, based on actuarial risk assessments, "the risk of reoffending for [the defendant] is in the highest one percent of sex offenders" and that "[b]ased on his cognitive profile he shows a high tendency to impulsive behaviour and therefore is at the highest risk of reoffending if left unsupervised": report page 16. 4. Ms Zipparo expressed the opinion that, notwithstanding the psychological support and treatment that the defendant has had, the nature of his "very low intellectual capacities mean that impulses will likely override learned skills when he is in an emotionally compromised state" and, further, that despite the support, the defendant "will likely have a high risk of reoffending for the foreseeable future because of immutable factors around his cognitive limitations": report page 17. 5. Ms Zipparo considered that the risk could not be adequately managed by other less restrictive means and that, given the defendant's "most significant risk factors are largely chronic in nature and therefore unlikely to change in the near future", suggested that a "minimum 3-year term" was appropriate: report page 18.

The report provided under s 125(b): s 127(2)(c)

The plaintiff secured a report from Dr Anna Farrar, consultant forensic psychiatrist, dated 30 June 2023. The report was relied upon by the plaintiff to support the making of interim orders at the preliminary hearing.
In relation to this report, the key points may be summarised as follows: 1. Dr Farrar diagnosed the plaintiff as suffering from an intellectual disability "mild to moderate"; an alcohol use disorder "in sustained remission in controlled environment"; and an anxiety disorder: report page 17. Dr Farrar also noted that the defendant had a history of "antisocial behaviour as an adolescent" and a history of symptoms "associated with Borderline Personality Disorder": report page 18. Later, Dr Farrar expressed the opinion that the defendant "may also have a Personality Disorder, namely Borderline Personality Disorder and Antisocial Personality Disorder, requiring further evaluation": report page 23. 2. Dr Farrar also noted that the defendant had been diagnosed with "Paedophilic Disorder, Non-exclusive type". In relation to this diagnosis, the defendant "admitted to sexual interest in children, had a history of child sexual offending (charges and convictions) and his victims were both female and male children" and that, although the defendant told Dr Farrar "that he was no longer sexually attracted to children and he did not have fantasies or sexual thoughts about children… he did not appear to be a credible historian": report page 18. 3. Dr Farrar assessed the defendant's sexual violence risk using an actuarial risk assessment tool and a structured professional judgment assessment tool - the former of which placed the defendant in the "Well Above Average Risk Category" (report page 19) and later remarked that the defendant "had problems in almost all of the domains of the RSVP Risk Assessment" (report page 22). Based upon her assessment of the defendant, and the use of these tools, Dr Farrar expressed the opinion that the defendant had a "high risk of future sexual offending or causing serious harm to others… [The defendant] does pose a risk of causing serious harm to others if he ceases to be a forensic patient": report page 24. 4. Dr Farrar recommended that the defendant's risk be managed by continuation of his forensic patient status as that would allow appropriate treatment, restrictions and oversight "which could not be achieved by any other means": report page 25. 5. Dr Farrar considered that "an appropriate period of time for extension of [the defendant's] limiting term to be 3 years", to allow for ongoing specialist forensic treatment, support monitoring and supervision: report page 26.

Any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner: s 127(2)(d)

As part of the previous application made by the plaintiff to extend the defendant's status as a forensic patient, a number of reports were secured.
The plaintiff obtained reports from Dr Richard Furst, consultant forensic psychiatrist, dated 5 September 2020 and 19 April 2021. These reports were in evidence before Ierace J at the earlier final hearing (and addressed at [59]-[60] of his Honour's judgment) and they are in evidence in the present application.
It is sufficient to note the following matters from Dr Furst's reports.
Dr Furst diagnosed the defendant as having a mild to moderate degree of intellectual disability, an alcohol use disorder (in remission in a controlled environment) and a paedophilic disorder (non-exclusive type): report page 15. Dr Furst considered that, amongst a range of diagnoses, the presence of an intellectual disability was "a well-described risk factor for both general re-offending and sexual re-offending": report page 15.
Dr Furst, although acknowledging intrinsic limitations on predictions of risk of reoffending at the individual level based on the use of actuarial risk assessments, nevertheless noted that the defendant belonged to the "group of male sex offenders considered to be at well above average risk of reoffending": report page 17. Dr Furst also considered that the defendant had a number of dynamic or variable risk factors that correlated with a higher rate of sexual offending and reoffending: report pages 17-18.
Dr Furst considered that continuation of the defendant's status as a forensic patient provided "the most appropriate structure, supervision and review" (report page 21) and that "no other less restrictive means would be appropriate or sufficient to manage [the defendant's] identified risks of sexual offending in relation to his identified clinical profile, i.e. a high risk of reoffending in a sexual matter and causing serious harm to others when released from custody": report page 22.
The following opinion from Dr Furst is also, I consider, of continuing significance (report page 22): Intellectual disabilities and pedophilic disorders are both chronic conditions. [The defendant] has demonstrated his inability to desist from acting/offending in an inappropriate and/or illegal sexual [manner] over the last 16 years. Additionally, his management needs are complex, severe, and chronic. Therefore, his risk of offending, which fall in the top 0.3% of the male sex offender population, will require long-term management, probably lifelong, and five years would be an appropriate extension period in the first instance.
In his report dated 19 April 2021, Dr Furst noted that, since he was assessed in September 2020, the defendant had been released from custody and was living in supervised residential accommodation under oversight and case management by the Tribunal and others: report page 8. Nevertheless, Dr Furst did not alter the opinion that he expressed in his earlier report and he confirmed that he considered that the defendant "needs to continue to be a forensic patient over the long-term…": report page 8.
Orders were also made, following the preliminary hearing, for the defendant to be examined pursuant to s 126(5). Pursuant to those orders, reports were prepared by Dr Andrew Ellis, consultant forensic psychiatrist, dated 27 June 2021 and Patrick Sheehan, consultant forensic psychologist, dated 16 June 2021.
Mr Sheehan diagnosed the defendant as having "Intellectual Disability (Mild-Moderate), Pedophilic Disorder and Alcohol Use Disorder (in sustained remission in a controlled environment)": report page 30. In terms of risk profile, Mr Sheehan considered that the "totality of information supports the view that [the defendant] presents a high risk of reoffending on the risk spectrum" (report page 29) and, later, that the defendant "presents high risk of sexually reoffending, with this risk being towards children of either gender. Were he to reoffend in this manner it would meet the threshold of 'serious harm'" (report page 30).
Dr Ellis diagnosed the defendant as suffering from paedophilia (which Dr Ellis considered was the diagnosis of "primary concern regarding his risk of serious harm to others"); a mild intellectual disability and that there was here limited evidence for an antisocial personality disorder: report pages 12-13. The use of actuarial risk tools and structured professional judgment tools placed the defendant in the "Well Above Average risk category" (using STATIC-99R): report page 14.
Dr Ellis considered that aspects of the defendant's presentation were of particular concern including repeated engagement "in minimisation of sexual offending" and that he had "very little insight into his offending or risk factors… despite this being the focus of twice weekly therapy at the moment. The pattern of his offending is highly suggestive of sexual deviance, and he is diagnosed with a paraphilic disorder as a result. This is the strongest factor associated with repeat sexual offending": report page 15.
Dr Ellis expressed the opinion that, given the defendant's previous pattern of offending, the diagnosis of paedophilia and previously "having access to unsupervised children the most likely behaviour would be sexual activity with a young child… where serious harm to victims [is] foreseeable" and that his profile "shows concern centred around his sexual deviance. The offending indicates opportunism. This may reflect impulsive decision making regarding sexual activity": report page 16.
Each of those experts were called to give evidence, although, as Ierace J noted (at [56]), that was principally to deal with the question as to the appropriate period of an extension order (Dr Ellis had expressed the opinion that a period of five years was appropriate, whereas Mr Sheehan had expressed the opinion that the extension should be for a period of "2-3 years, allowing for longitudinal observation and also for further improvement and consolidation of his stability and his relationships with service providers": report page 32).
The plaintiff also made reference to reports from Dr Carollyne Youssef, a psychologist who had provided the defendant with some treatment, and a report from Dr Jeremy O'Dea, a consultant forensic psychiatrist.
The report of Dr Youssef dated 31 May 2021 was a progress report, and addressed the defendant's needs "for the purposes of ongoing funding". Dr Youssef noted that, since 16 December 2020, the defendant "continues to be seen twice per week". Dr Youssef considered that it was "imperative" that the defendant "continue engaging in therapy" and that any reduction in therapy could "increase risky behaviours, placing him at increased risk".
In a further report dated 28 February 2022, Dr Youssef noted that the defendant "was only granted approval for 12 sessions, which is a gross underestimation of the support he requires, given his disability and needs". This report was also prepared for what Dr Youssef described as "ongoing funding due to an urgent change in circumstances".
Dr Youssef observed that the defendant had an intellectual developmental disorder and was functioning in the "extremely low range". That intellectual disability meant that the defendant functioned "with a decreased ability for understanding new or complex information, has limited ability to learn new skills and deficits in coping independently. In addition, he has difficulty with general self-regulation… These conditions have an impact on [the defendant's] behaviour and ability to behave in a socially appropriate manner and manage his impulses and urges". Dr Youssef also expressed the opinion that the defendant's disability was intricately linked to the "problematic behaviours that have resulted in his contact with the criminal justice system and subsequent status as a [f]orensic [p]atient".
Dr Jeremy O'Dea is a consultant forensic psychiatrist who was requested to assess the defendant and, in particular, to provide an opinion on "the prescription of testosterone lowering/antilibidinal medication, as part of [the defendant's] overall community risk management program on his release from [c]ustody". His report, which is addressed to the Tribunal, is dated 5 May 2022.
The history that the defendant gave to Dr O'Dea included an acknowledgement that "since his release from [c]ustody he had continued to have sexual urges towards children…". The defendant is reported to have agreed to consider resuming testosterone lowering medication.
Dr O'Dea opined that the defendant's "main problems" were that he had a "mild to moderate intellectual disability and ongoing problems with Pedophilic Disorder". Dr O'Dea considered that the defendant's "history of sex offending and ongoing Pedophilic Disorder, in the context of his history of intellectual disability, would point to the prescription of testosterone lowering medication…being indicated". Dr O'Dea noted that he was "awaiting the outcome of the application for the extension of [the defendant's] limiting term prior to further consideration of the prescription of testosterone lowering medication".
The plaintiff, in the written submissions filed, noted that the Tribunal deleted the condition in connection with the defendant's treatment by a psychiatrist on 1 December 2022, following the hearing conducted on 11 November 2022: see the Tribunal reasons at [18]. It was there suggested that these conditions were "redundant as they were concerned with a psychiatric assessment for anti-libidinal medication", and that report had now been completed such that "there is no further need for a psychiatrist". In a report to the Tribunal dated 4 November 2022, the CSP noted that it was their "understanding that the Tribunal has no further request of the psychiatrist".
This part of the evidence was not altogether clear but, in the result, neither the defendant, nor the plaintiff, made much of it. Rather, the defendant emphasised during submissions that there was no evidence to suggest that the lack of use of anti-libidinal medication was a consequence of "some protest by him or lack of consent by him" (T10.19). The defendant pointed out that although Ms Zipparo obtained a history to that effect (see [81(3)], above), no such history was secured by Dr Smith. (For completeness, I would merely add that Dr Farrar noted in her report that the defendant "indicated that he did not want anti-libidinal treatment": report page 16). The plaintiff, in submissions in reply, drew attention to an entry in the CSP records, dated 27 May 2021, where the defendant is reported to have mentioned to Dr Youssef that "he would not like to take medications. She believes he may find ways of declining the treatment". In the end, I consider it unnecessary to make a finding about that particular matter. Ultimately whether treatment of that kind is considered to be reasonably indicated is for others to determine and thereafter implement. And, to the extent that Ms Zipparo obtained a history of the defendant being unwilling to undergo such treatment, it is in context not important and otherwise does not undercut her opinion in any way (nor suggested to by the defendant).

Any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application: s 127(2)(e)

The defendant has been reviewed by the Tribunal following the extension of his status as a forensic patient.
As earlier noted, on 7 November 2023, the Tribunal ordered that the defendant be involuntarily detained at Blacktown Hospital: see [44], above. Following a hearing on 16 November 2023, the Tribunal ordered that the defendant "should remain detained at Blacktown Hospital" and that the order made "was agreed upon by the treating team and [the defendant's] lawyer": order 2 and reasons at [11].
On 14 February 2024, the Tribunal made orders for the continuing detention of the defendant at Blacktown Hospital, but he was permitted supervised overnight leave at the discretion of the Medical Superintendent. The Tribunal noted in its reasons that there was currently no accommodation available for the defendant such that a further extension of the order for his continuing detention was necessary and also that there were issues with the defendant's NDIS funding - particularly in connection with the funding for the "support coordinator" role and the "ratio" of funding: reasons at [25]-[26].

Any report from a department or agency responsible for the detention, care or treatment of the forensic patient: s 127(2)(f)

The CSP prepared reports in advance of the Tribunal hearings. The plaintiff's written submissions referred to the most recent one available - dated 23 October 2023 - prepared in contemplation of the hearing before the Tribunal on 24 October 2023.
The report noted that a risk assessment - described as an ARMIDILO-S Risk Rating and performed between 11 and 18 October 2023 - had been undertaken and it was observed that there "appears to have been an increase in [the defendant's] dynamic risk and reduction in protective factors" since the last review: par 41. The assessment also found that the defendant's STATIC 99R Risk Rating remained "Well Above Average": par 35.

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): s 127(2)(g)

The plaintiff submitted that, although it may be accepted that there were periods when the defendant had been generally compliant with the terms of his conditional release order, there had been serious and repeated non-compliance with the terms of his order (as set out in [31]-[44], above, and more generally in the agreed facts at [19]-[40]). The non-compliance by the defendant ultimately resulted in his involuntary detention in November 2023 pursuant to an order under s 109 of the MHCIFP Act made by the Tribunal on 7 November 2023.

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: s 127(2)(h)

The limiting term was imposed by Ellis DCJ on 1 May 2020. The "views" include the following: (a) his Honour did not consider that there was "any real causal connection" between the defendant's offending and his mental health issues, albeit that the defendant's "lack of personal skills, his learning disability and cognitive functioning may have left him without an appreciation of the appropriateness of conduct of this type toward a child" (remarks on sentence, page 7); and (b) in terms of prospects of rehabilitation, "having regard to his prior offending, it is a little difficult to be entirely positive about it" but that the defendant's experience in custody "is likely to make it clear, even to him, that sexual contact with a person under the age of 16 years is wrong and regarded seriously by the judicial system and the community…" (remarks on sentence, page 8).
The views of Ierace J, when the previous extension order was made, are set out in his Honour's reasons of 25 August 2021, notably at [78]-[83]. His Honour particularly noted Dr Ellis's observation that any non-compliance with the terms of an extension order was likely to manifest within a period of two years and considered that any non-compliance would be "of significance on any further application in respect of the defendant's status": reasons at [83].

Any other information that is available as to the risk that the forensic patient will in future cause serious harm to others: s 127(2)(i)

There is, in the material, reference to an allegation that the defendant sexually assaulted a female on 7 May 2023 - the defendant was, it should be added, permitted to visit her unsupervised in accordance with his independent community access plan - although the defendant has not been charged in connection with this allegation: agreed facts at [28].
The plaintiff also noted that this allegation resulted in the making of an ADVO, although it was accepted that the making of that order was without admissions: agreed facts at [28]. The plaintiff submitted that, notwithstanding that no charges have been brought and that the ADVO was made without admissions, it remained relevant to an assessment of risk of future serious harm to others, but accepted "that the Court would not afford those matters significant weight". Whilst I do not doubt that, in a given case, it may be possible to have regard to conduct that has not resulted in conviction or an individual being charged, it is difficult to see how this material can meaningfully be used in the way submitted or even to give it some, albeit minimal, weight. In my view, the plaintiff's application can be determined without regard to this evidence.

The extension order should be made

Having regard to the matters under s 127(2) referred to above, I am satisfied to a high degree of probability that, unless the defendant's status as a forensic patient is extended, there is an unacceptable risk of him causing serious harm and, further, that that risk cannot be adequately managed by other less restrictive means. Accordingly, I am satisfied that the terms of s 122(1) of the MHCIFP Act are met.
In arriving at that conclusion (and state of satisfaction), I am particularly mindful of the following matters.
First, the defendant has been diagnosed with a range of conditions, two of which I consider to be of particular significance - namely, the diagnosis of mild to moderate intellectual disability and the paedophilic disorder. (There were some variations in how this condition was described in the evidence, as earlier noted, but I am satisfied that the conditions are essentially the same - and neither party suggested to the contrary). In relation to the former, this has manifested itself, relevantly, in a constellation of symptoms including, critically, inherent poor impulse control, superficial insight and poor judgment to name just some; in relation to the latter, this has manifested itself, relevantly, in his sexual interest and attraction to children, him acting upon those interests and attractions, and in what has been described (by Dr Ellis) as his "sexual deviance". The defendant's intellectual disability, I accept, is both pronounced and permanent, and the paedophilic disorder is not only a "chronic, relapsing" condition but a "permanent condition", albeit, as Dr Farrar noted, there remains a prospect that symptoms and behaviours can be improved through anti-libidinal/testosterone-lowering medication and other treatments. The presence of these conditions of themselves, but also in combination and with the other conditions of which the defendant has been diagnosed, not only serve to explain his historical offending, but significantly inform the risk of him reoffending and/or engaging in conduct causing serious harm.
Secondly, the expert evidence, which I accept, is largely uniform in identifying the defendant's risk profile as one that gives rise to a high risk of future sexual offending. Given the defendant's paedophilic disorder, and that the target of his previous offending conduct were children, plainly conduct of that kind, if it were to recur, would be grave and unacceptable. By way of emphasis, it is, I consider, significant that the expert evidence has consistently assessed the defendant as posing an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient.
Thus, by way of illustration (and drawing largely upon what I have previously noted), the defendant's risk profile was described in the following terms: 1. Dr Farrar: the defendant "had a high risk of future sexual offending or causing serious harm to others. Therefore in my opinion, [the defendant] does pose a risk of causing serious harm to others if he ceases to be a forensic patient": report page 24. 2. Ms Zipparo: noted that the defendant's paedophilic disorder "is acknowledged as one of the most significant risk factors for sexual offending against children" - a risk that was compounded by the defendant's moderate intellectual disability and inherent poor impulse control - and also noted that actuarial risk assessments of the risk of reoffending placed the defendant in "the highest one percent of sex offenders… Based on his cognitive profile he shows a high tendency to impulsive behaviour and therefore is at the highest risk of reoffending if left unsupervised": report pages 15-16. 3. Dr Smith: considered that the defendant's presentation and combination of diagnoses - notably including a cognitive impairment, which Dr Smith considered was generally associated with high rates of reoffending - meant that he was of "substantial chronic risk" of reoffending: report pages 24-25.
Thirdly, there is nothing to suggest that, over time, the defendant's risk profile has diminished; rather, in my view, it has essentially remained unaltered. In this respect, it should be noted that the assessments given by the experts appointed as part of the earlier extension hearing in 2021 essentially align with those given in 2024. For example, the opinion from Dr Furst (contained within his report dated 5 September 2020) was that the defendant's risk profile was of a male sex offender with a "well above average risk of reoffending" (report, p 17); Mr Sheehan assessed the defendant as presenting with a "high risk of sexually reoffending, with this risk being towards children of either gender. Were he to reoffend in this manner it would meet the threshold of 'serious harm'" (report dated 16 June 2021, page 30); and Dr Ellis expressed similar views, assessing the defendant in the "Well Above Average Risk Category" (report dated 27 June 2021, page 14).
Fourthly, the defendant's most recent conduct (set out in [31]-[44], above) serves, in my view, to reinforce not only the existence of the unacceptable risk that I have found to exist, but its currency. Further, aspects of that conduct are quite problematic and concerning, and there is evidence that the defendant continues to not only be sexually disinhibited but also display conduct that confirms his ongoing sexual interest in children.
I am also satisfied to the requisite degree that the risk cannot be adequately managed by other less restrictive means. That conclusion, in my view, is supported by the opinions (which I accept) from Dr Farrar, Ms Zipparo and Dr Smith. Each expert considered that there were no less restrictive means to adequately manage the defendant. For example, Dr Smith considered that the defendant's issues with compliance, his overall risk profile together with the brittleness of his presentation were such that he did not consider that the defendant could be managed in a less restrictive way.
Specifically in connection with Ms Zipparo and Dr Smith, each of them had particular regard to the defendant's NDIS funding, and the other support structures in place, but the existence of those matters did not lead either expert to alter their opinion or suggest that the demonstrated risk could be adequately managed by those means alone: see Dr Smith's opinion at pages 25-28 of his report and Ms Zipparo's opinion at page 18 of her report. That was also the opinion from Dr Farrar: see her report at page 25. Each of them more or less expressed the further opinion that an extension of the forensic order was the best means of reducing the risk, in addition to, or in combination with, those other supports.
It is also relevant to note that Ierace J reached the same conclusion at the previous hearing for extension of the defendant's status as a forensic patient. Given the findings that I have made - most relevantly, that the defendant's risk profile has remained unaltered since that hearing - his Honour's conclusion, in my view, lends weight to the conclusion that I have reached.
In relation to adequate management of the risk by other less restrictive means, it was common ground that, as the defendant was not mentally ill, he could not be involuntarily detained or treated under the Mental Health Act 2007 (NSW). Nevertheless, the defendant sought to resist a finding that the risk cannot be adequately managed by other less restrictive means, essentially submitting that the defendant's risk could be adequately managed by the various support structures and other matters in place or likely to be in place.
I do not accept that submission, for the reasons already given - namely, that each of Dr Farrar, Ms Zipparo and Dr Smith did not accept that the defendant could be adequately managed other than by an extension of his status as a forensic patient, and those opinions I accept.
I also do not accept this submission because the support (and other) structures, of themselves or in combination, do not and cannot provide the necessary framework to manage the risk that I consider here to be present. Thus, to the extent that it was submitted that the existence of the guardianship order, on its own or in combination, would be sufficient to find that the risk could be adequately managed by other less restrictive means, I do not accept this to be so. Ultimately, as it happens, the defendant accepted that the existence of that order does not adequately address the risk posed because, at a minimum, the guardian, in performing their functions under the order, would not consider "restrictions or conditions designed only or principally to ensure the safety of the community from serious harm": Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439 at [131] and [132]. In this case, Wright J rejected a similar submission made to resist interim orders in connection with the previous application for an extension of the defendant's status as a forensic patient - reasoning that I consider applies equally here: see the reasons at [133].
Further, to the extent that the defendant is a "registrable person" under the Child Protection (Offenders Registration) Act - and is accepted to have reporting obligations for life under that Act (see s 14A(1)(c)(iii) of that Act) - the existence of those statutory requirements is not, on its own or in conjunction with other matters relied upon by the defendant as less restrictive means, adequate to manage the risk the defendant poses if his status as a forensic patient is not continued. That is because, as was explained by Rothman J in State of New South Wales v Richardson (Final) [2020] NSWSC 1809, that Act is directed towards sexual offenders generally, and is not tailored to deal with those persons, such as the defendant, who present an unacceptable risk of sexual offending against children: at [127]-[128]. That reasoning applies equally here, in my view.
The defendant also placed some emphasis upon the existence of his current NDIS funding and the plans, interim and prospective, developed. I have, earlier, found that I do not consider, based upon the expert evidence, the existence of that funding, and the plans developed in consequence of it, to support a finding that the defendant's risk could be adequately managed by other less restrictive means: my finding, earlier made, was that the risk cannot be adequately managed by other less restrictive means. I would simply add that to the extent that the defendant indirectly sought to submit that, by reason of that funding and the defendant's NDIS plan, there were other less restrictive means to manage the his risk (in fairness, this part of the defendant's written submissions was only included as part of the submissions directed to the considerations required by s 127(2)(i) of the MHCIFP Act), I do not accept the submission. At a minimum, that is because, as the plaintiff pointed out, the Interim Behaviour Support Plan developed on 23 February 2024 (the Comprehensive Behaviour Support Plan is due by 23 July 2024) indicates that a number of restrictive practices have their basis in the conditional release orders made by the Tribunal: thus, as the plaintiff submitted, the identified restrictive practices in that support plan were currently tied to the orders made and the defendant's continuation as a forensic patient. Further, again as the plaintiff submitted, although the defendant secured a report from a psychologist that addressed a number of questions concerning the interplay between NDIS funding and an NDIS participant who also happens to be a forensic patient (or ceases to be one), that report did not seek to address the adequacy of what was then in place, or likely to be in place, to manage the defendant's risk profile and the defendant did not, in written or oral submissions, suggest that it did.
As provided for by s 128(1)(b), the period of an extension order, under s 122, cannot exceed five years. In this case, the plaintiff seeks an extension order for a period of three years. The defendant, as I have earlier noted, accepted that if the Court were otherwise satisfied that it was appropriate to extend the defendant's status as a forensic patient, that he did not oppose an extension for a period of three years.
In my view, the order should be for the period sought by the plaintiff - namely, three years. That period was specifically supported by Dr Farrar (report page 26), Ms Zipparo (her opinion was that it should be a "minimum 3-year term": report page 18) and Dr Smith (report pages 28-29) - and I accept that evidence. The reasoning for each of them was largely the same: that period of time was necessary in order to allow the defendant time to adjust to new support structures and develop stability (what Dr Smith described as "safe management in the community needs to be established") and to ensure that the forensic patient remains compliant with the restrictions and requirements.

Orders

Accordingly, I make the following orders: 1. Order, pursuant to ss 121 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), that the defendant be subject to an order for the extension of his status as a forensic patient for a period of 3 years from 30 April 2024. 2. Direct that the Registrar of the Court notify the Mental Health Review Tribunal of the making of the above extension order.

Amendments 28 March 2024 - Commencing date in order (2) amended 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: 28 March 2024

Mental Health (Forensic Provisions) Act 1990(NSW)

Summary Offences Act 1998(NSW)

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