Attorney General for New South Wales v MM (a pseudonym) (bht Ramjan) (Final)

Catchwords: MENTAL HEALTH — Forensic patient — Extension of status as forensic patient — Whether Court is satisfied to a “high degree of probability” that defendant poses unacceptable risk of causing serious harm — Whether risk cannot be adequately managed by other less restrictive means — Where risk dependent upon whether defendant maintains sobriety — Where pattern of alcohol-related offending

Legislation Cited: Crimes Act 1900 (NSW), ss 61, 61J(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
Civil Procedure Act 2005 (NSW), s 3
Mental Health Act 2007 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Pt 6, 121, 122, 124, 125, 126, 126(5), 127(1), 127(1)(a), 127(2), 128, 130, 131
Uniform Civil Procedure Rules 2005 (NSW) r 7.14

Cases Cited: Attorney General of New South Wales v MM (a pseudonym) (bht Ramjam) (Preliminary) [2025] NSWSC 941
Attorney General for New South Wales v MM (a pseudonym) (bht Johnson) (Final) [2024] NSWSC 1030
Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439
Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27

Texts Cited: Supreme Court Practice Note SC CL 12, cl 26(i)

Category: Principal judgment

Parties: Attorney General for New South Wales (Plaintiff)
MM (a pseudonym) (bht Barbara Ramjan) (Defendant)

Representation: Counsel:
M Dalla-Pozza (Plaintiff)
T Spohr (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2025/188399

JUDGMENT

1. HIS HONOUR: By a summons filed on 16 May 2025, the Attorney General for New South Wales (the plaintiff) sought interim and final orders pursuant to Pt 6 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act). As a forensic patient, the defendant is a “person under a legal incapacity”: Civil Procedure Act 2005 (NSW) s 3; thus, pursuant to r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW), the appointment of a tutor is required to “carry on proceedings”. Accordingly, the defendant appeared by a person who was appointed to be his tutor, Barbara Ramjam. The defendant is identified in these proceedings by the pseudonym “MM”, pursuant to an order made by Yehia J on 22 May 2025 to that effect.

2. Interim orders were made by me on 31 July 2025: Attorney General of New South Wales v MM (a pseudonym) (bht Ramjam) (Preliminary) [2025] NSWSC 941 (the preliminary judgment). Pursuant to ss 130 and 131 of the Act, the defendant was made subject to an interim order for the extension of his status as a forensic patient commencing upon the expiry of his previous extension order on 16 August 2025, for a period of three months, which expired on Sunday 16 November.

3. The defendant did not oppose that order and reserved his position in respect of the final order sought, which was for an extension of his status as a forensic patient (an extension order) for a period of 12 months from the date of the order. That order was sought pursuant to ss 121, 127(1)(a) and 128 of the Act.

4. I ordered that two forensic experts be appointed pursuant to s 126(5) of the Act, and that their reports be furnished to the Court. Reports have been received from Dr Carollyne Youssef, who is a Clinical and Forensic Psychologist, dated 7 September 2025, and from Dr Gordon Elliott, who is a Forensic Psychiatrist, dated 2 September 2025.

5. The final hearing, at which the defendant opposed the making of an extension order, occurred on 7 November 2025. Drs Youssef and Elliott were examined as to their opinions in their reports. On Friday 14 November 2025, I made the final order sought by the plaintiff. These are my reasons for doing so.

Background to the application

6. At the time of the hearing, the defendant was subject to an extended order made by Dhanji J for a period of 12 months that expired on 16 November 2025: *Attorney General for New South Wales v MM (a pseudonym) (*bht Johnson) (Final) [2024] NSWSC 1030 (the 2024 final hearing).

The agreed facts

7. A joint statement of agreed facts (the agreed facts) was tendered, in accordance with cl 26(i) of the Supreme Court Practice Note SC CL 12. The following is a summary of the agreed facts absent the summaries of the recent reports, with additional facts taken from some of the other material before the Court.

8. The defendant is a 57 year old Aboriginal man who resides in a North-Western New South Wales town in a property leased from a community housing provider. Pursuant to a condition imposed by the Mental Health Review Tribunal (the Tribunal), the defendant receives services funded by the National Disability Insurance Scheme (NDIS). His current NDIS plan is valid until 22 May 2026.

The defendant’s criminal record

9. The defendant has an extensive criminal history dating back to 1984 when he was aged 16. Other than the index offence, the matters of violence are relatively minor, although there is a constant theme of the abuse of alcohol and violence directed against partners, to which I will return at the end of this judgment.

10. His first matter involving violence was an assault (s 61 of the Crimes Act 1900 (NSW)) in 1995, when he was aged 26. Other entries are for further assaults and an assault occasioning actual bodily harm, contravention of Apprehended Domestic Violence Orders (ADVO), destroying or damaging property, stalk/intimidate, stealing offences and drug offences. The defendant has a poor history of compliance with court orders, including breaching a recognizance order in 2000 and conditions of good behaviour bonds in 2002, 2005 and 2018.

11. As to offences committed while subject to his current extension order, on 11 February 2025, the defendant was charged with two offences that were committed on 21 January 2025, namely, driving a motor vehicle while his licence was suspended (first offence), and driving a motor vehicle while an illicit drug was present in his blood (first offence). The drug in question was methylamphetamine (the January 2025 offence). On 29 July 2025, at Tamworth Local Court, the defendant was dealt with by way of a finding of a conviction with no other penalty being imposed, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

12. On 8 August 2025, the defendant was charged with driving a motor vehicle while disqualified (prior offence), which has not been finalised.

The index offence

13. On 28 May 2020, the defendant was charged with aggravated sexual assault of a person under his authority, contrary to s 61J(1) of the Crimes Act (the index offence). The allegation, briefly stated, was that the defendant’s 16-year-old stepdaughter stayed the night at his house on 27 May 2020. She woke in the early hours of 28 May 2020 to the defendant having penile-vaginal intercourse with her.

14. The defendant was found unfit to be tried. A special hearing took place on 1 December 2021 before her Honour Trail DCJ in which the defendant maintained that he was drunk at the time and denied that he penetrated the complainant’s vagina. Her Honour Trail DCJ returned a qualified finding of guilt on the limited evidence available, and fixed a limiting term of 4 years, commencing on 28 May 2020, which was the date that he was remanded in custody, and expiring on 27 May 2024.

15. In her remarks, her Honour noted that the defendant was intoxicated at the time he committed the offence and he said that he did not recall it. Her Honour found the offence was opportunistic and accepted that the defendant was genuinely remorseful (although he maintained his innocence) and that the offence had impacted on his relationships with his family generally. Her Honour applied the principles of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 27 in formulating sentence in view of evidence of childhood deprivation.

16. The defendant experienced “movement within, and between, correctional centres”, primarily due to behavioural concerns including him bullying and intimidating other inmates, although no institutional or disciplinary breaches were incurred by him during his detention in prison.

The defendant’s progress since his release

17. On 3 November 2023, the Tribunal ordered the defendant’s conditional release from custody. He was released, pursuant to the order, on 8 November 2023.

18. The conditions of the defendant’s release from detention were: that he reside with his mother in the town where he presently resides; that he accepted Mr Glenn Williams of the Community Safety Program (the CSP) as his case manager; that he attended the Drug and Alcohol program run by the local Aboriginal Medical Service and Centacare Men’s Behavioural Change Program (the Centacare program); that he abstain from using illegal drugs and alcohol; and that he submit to weekly testing to detect the use of alcohol.

19. On 12 February 2024, the frequency of alcohol testing was varied by the Tribunal from weekly testing to only when it was requested by his case manager. No alcohol has been detected from this testing. In early August 2024, the Tribunal approved him moving from his mother’s residence into one leased with a community housing provider.

The first extension of the defendant’s status as a forensic patient

20. Dhanji J made favourable findings of fact as to the defendant’s determination to address his criminogenic factors, in particular, his past use of alcohol, and his progress generally since his release from custody. His Honour expressed concern that the defendant had not had the benefit of therapeutic psychological services that previously had been recommended to address his drug and alcohol use and his childhood trauma.

21. On 16 April 2025, a review conducted by the Tribunal noted that the defendant was not complying with a condition that he meet with his case manager face to face at least once a month. The Tribunal found that the defendant was disengaged during the hearing and seemed to be falling asleep. A further review took place on 7 May 2025. His conditions were amended, such that: in-person contact with his case manager would be “twice within a six-month period”; he would have contact (whether face to face or by video) with his case manager at least once a month; and he would have weekly contact with his case manager by any means.

22. The Tribunal declined to take action following the January 2025 offence, taking into account that his case manager had observed that the defendant “has displayed no behaviours of concern or an increase in level of risk” between the time of the offending and its deliberation on 27 June 2025.

23. The defendant has had a relationship since his limitation term was extended. He told Dr Elliott that he is presently not in a relationship, although he told Dr Youssef that he is. The agreed facts also note that he has been doing volunteer lawn-mowing and gardening for elderly members of his community and that he has been participating in various skill and therapy programs.

24. In October 2024, the Centacare program refused admission to the defendant due to “his consistent denial of violence, high level of resistance and lack of accountability”, and because he “does not seem to have the capacity nor the willingness to undertake the content or group work … require[d]”. In April 2025, he told his case manager that he was “not ready” to speak to a psychologist about his childhood trauma history. The agreed facts refer to concerns that were expressed by the director of the defendant’s NDIS provider to the defendant’s case manager in December 2024 and January 2025, which the defendant does not admit:

“• That the Defendant was ‘not behaving in public’ with multiple accounts being noted that he was ‘wolf whistling young girls’ and making comments to women such as ‘hey pretty one’;

• That [the director of the defendant’s NDIS provider] has never known the Defendant to attend drug or alcohol counselling;

• That the Defendant had been evading staff for a period of two weeks (during which he had been driving himself around independently despite being the holder only of a learner’s driver’s licence);

• That the Defendant’s accommodation was in a state of disrepair; and

• That the Defendant ‘doesn’t want to engage in any men’s groups, men’s sports, drug and alcohol counselling, NDIS groups for men or anything.’”

25. The defendant has since changed his NDIS provider. The new service commenced on 26 June 2025.

A risk assessment report

26. Dr Sathish Dayalan, Forensic Psychiatrist, assessed the defendant via audio video link (AVL) on 16 December 2024 and provided a risk assessment report dated 13 January 2025. Dr Dayalan previously assessed the defendant in 2023. Dr Dayalan observed the defendant to be irritable; he refused to answer questions about his current sexual functioning or about a wound he was observed to have to his arm and became angry when Dr Dayalan attempted to explore psychotic symptoms with him. He told Dr Dayalan that he did not believe that he suffered from a mental health condition and did not wish to engage in treatment or rehabilitation.

27. Dr Dayalan noted in his report that the disability support worker who accompanied the defendant at the time of the assessment told him that the defendant “smelt of alcohol”. Dr Dayalan added that the defendant was falling asleep during the assessment. These matters are not included in the agreed facts, and therefore I assume that they are contested by the defendant.

28. Dr Dayalan was of the view that the defendant’s intellectual capacities were in the extremely low range. Deficits in memory and executive functioning have contributed to impairment of his psychosocial functioning.

29. Adverse experiences and trauma experienced by the defendant in his childhood have adversely impacted on his personality development and contributed to a propensity for emotional and behavioural dysregulation. Dr Dayalan was of the opinion that the defendant exhibited traits of borderline personality disorder and that he was predisposed to anxiety and depressive disorders which he “could have minimised … given his intent to present as mentally well”. He had a mild Neurocognitive Disorder due to substance use, consistently with the diagnostic criteria in the Diagnostic and Statistical Manual for Mental Disorders Version 5 (DSM-V), and an Alcohol Use Disorder which was chronic in nature. It was unclear to Dr Dayalan whether the defendant was in remission or if he had had a recent relapse. Dr Dayalan said:

“Given the chronicity of the condition, [the defendant’s] personality vulnerabilities and his limited willingness to engage in rehabilitation, the risk of relapse is high.”

30. Dr Dayalan did not believe that the defendant suffers from a “mental illness” or is a “mentally ill person”, as defined by the Mental Health Act 2007 (NSW). As to the defendant’s level of risk, Dr Dayalan deployed the Historical Clinical and Risk Management – 20 Version 3 (HCR-20 V3). He noted that in his 2023 report, he found that the defendant had “a high loading of historical risk factors” and that little had changed:

“He has ongoing problems with insight into his substance use and violence, affective and behavioural instability and problems with supervision and treatment response. He has a moderate loading of clinical risk factors.”

31. Dr Dayalan deployed the STABLE 2007 to assess dynamic risk factors. He found:

“The risk factors of significance to [the defendant’s] recidivism risk are significant social influences, impulsive acts, poor cognitive problem solving, negative emotionality and cooperation with supervision. The risk factors that are of some relevance to his risk are capacity for relationship stability and hostility towards women. Overall, [the defendant] presents with a moderate level of dynamic risk and needs.”

32. Dr Dayalan concluded as follows:

“In regard to [the defendant’s] risk of violence, he presents with a high loading of historical risk factors and a moderate loading of clinical risk factors. The risk management variables remain of concern despite the forensic patient status. [The defendant] has not been charged with a violent offence in the 12 months he has remained in the community, though he has been involved in physical altercations with family members. There are conflicting accounts of his use of substances in the community and a recent relapse into substance use will escalate his risk of violence and thereby his risk of causing serious harm to others.

The risk of sexual recidivism is directly related to his use of alcohol. Some inappropriate behaviour has been observed by disability support workers but the reported behaviours were not suggestive of deviant sexual interests.

Management of [the defendant’s] risk of causing serious harm will involve a well coordinated approach by multiple agencies that will need to prioritise on establishing a therapeutic relationship with [the defendant]. A structured approach to managing the various risk factors in a sequential manner may be preferable as [the defendant] appears to get overwhelmed and frustrated with multiple obligations. Incentives for engagement in treatment may assist as opposed to threats of punishment for non-compliance.

Engagement in a culture specific substance use rehabilitation program should be prioritised given the significance of alcohol misuse to his risk of causing serious harm to others. Random breath alcohol concentration tests are recommended to monitor his use/abstinence.

Psychological treatment should target emotional regulation, problem solving and impulse control. Encouragement in healthy leisure activities and vocational pursuits will assist with his rehabilitation. Engagement of family members including his current partner in the treatment can improve the prospects of engaging [the defendant].”

33. Of particular significance to the present exercise, Dr Dayalan noted the following:

“The risk assessment indicates that [the defendant] poses a risk of violent behaviour in the long term. The risk of violence becomes imminent when there is an escalation in the dynamic risk factors such as substance use, psychosocial stresses, interpersonal conflicts especially in romantic relationships, lack of supervision and decline in mental state. These factors need to be effectively controlled to manage [the defendant’s] risk of causing serious harm to others.

The forensic patient status has allowed for increased monitoring of [the defendant] and facilitated contact with disability support services. However, the forensic patient status has not been effective in facilitating [the defendant’s] engagement in treatment and rehabilitation to address the dynamic risk factors in the long term. The clinical risk factors associated with risk of violence appear to be largely unchanged since my initial review.

If [the defendant] were to cease to be a forensic patient, he is very likely to disengage from the various services and agencies given his limited insight into his treatment needs and violence risk. He would not be subject to any monitoring and he would relapse into or increase substance use.

The forensic patient status does not fully negate the risk of [the defendant] causing serious harm to others but the risk is likely to escalate significantly if he were to cease being a forensic patient.

The pattern of past offending behaviour and the risk assessment instruments suggest that the nature of risk posed is more likely to result in physical harm than sexual harm. His partners are most likely to be the victims. The level of risk posed is dynamic and will fluctuate depending upon factors such as substance use, relationship status, psychosocial circumstances, engagement with professional services and level of monitoring.”

Relevant legislative provisions

34. An application for an extension order is governed by Pt 6 of the Act. Section 124 stipulates that an application may only be made if the forensic patient is subject to a limiting term or an existing extension order and it is made within six months of the expiration of that term or order. I am satisfied that the application was made within six months of the expiration of the extension order made by Dhanji J. There are certain other preliminary matters required by ss 125 and 126. It is not suggested by either party that there is non-compliance with those provisions.

35. Section 122 of the Act provides the test by which the Court may make an extension order:

“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.

Note.

Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007.”

36. The expression, “high degree of probability”, denotes a standard of proof that is higher than the civil standard but lower than the criminal standard. The term “unacceptable risk” is a term which should be given its everyday meaning in the context of the provision in which it appears and having regard to the objects of the Act: Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 at [14]. The meaning of “serious harm” may include psychological harm that is more than fear or panic, and physical harm that is more than the minimum threshold for actual bodily harm: Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439 at [26].

37. Section 127(1) of the Act provides that the Court “may” either make the order sought or dismiss the application, thereby providing that the making of an order is discretionary. Section 127(2) sets out the matters that the Court must take into account in its determination, which are as follows:

“127 Determination of application for extension orders

(1) The Supreme Court may determine an application under this Division for an extension order—

(a) by making the order, or

(b) by dismissing the application.

(2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant—

(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 hat 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.”

38. I have earlier referred to the remarks by Traill DCJ in imposing the limiting term on the defendant. I have had regard to the material generally that has been tendered, including selections of daily monitoring reports by the defendant’s supervisors. I now consider the reports of the Court-appointed forensic experts.

S 127(b) the Court-appointed forensic experts

Dr Gordon Elliott

39. Dr Elliott assessed the defendant in person on 27 August 2025. He found the defendant to be “only partially cooperative” with the assessment. While in the early stages of obtaining a personal history, Dr Elliott noted:

“It was already evident at this early stage of the interview that [the defendant] was cognitively impaired and that he wished to control the interview. He was uncomfortable being questioned.”

40. The defendant said he had “close to thirty children,” including three sets of twins. I note that he has previously claimed to have about 17 children and about 30 children, and one set of twins.

41. The defendant made “repeated and insistent statements” that he did not need assistance from the NDIS. Dr Elliott continued:

“By this point, the interview had established a pattern that remained throughout until [the defendant] got up and left at the end. He controlled the interview with repeated claims that he does things of his own initiative, is respectful and helpful towards others and he does not require anyone’s assistance. He told me he goes to the Salvation Army regularly and asks for, ‘Programs or anything I can do.’ I asked him how he would spend the time at the Salvation Army and he said, ‘We just sit down and talk about any problems. With people, I just call ‘em cuz, brother, aunt, rather than their names. By me doing that, I’m showing respect.’ Later in the interview, he admitted he struggles to recall people’s names. He told me he declines payment for any of the work that he does at the Salvation Army and instead asks for a coffee. He repeated that he likes to help people in the community.

I asked [the defendant] whether he has friends he sees regularly. He replied, ‘I don’t have time for friends anymore. I just want to get on and do some work.’ He told me things are different for him now and that, ‘I do things for myself, not asking for help, whereas before I was anxious and scared and didn’t know how to ask for help.’ He did not appear to recognise the internal contradiction in this statement or in similar ones he made later in the assessment.”

42. Dr Elliott noted other contradictory statements made by the defendant, apparently unwittingly. The defendant offered that he smokes cannabis, “but I don’t do anything else”. Later, he said: “I hardly smoke it. I don’t really need it” and later again, that it helps with his back pain and would like to have medically prescribed cannabis. Dr Elliott described the defendant’s history of alcohol abuse as unreliable, being both “boastful at times and inconsistent at others”.

43. The defendant told Dr Elliott that he did his own cooking, cleaning and laundry, but his care coordinator later informed Dr Elliott that NDIS did most of the defendant’s cleaning and other daily living activities. In evidence, Dr Elliott said that material subsequently made available to him suggested that the defendant was “perhaps a little bit more independent” than he had thought.

44. The defendant told Dr Elliott that he avoids his family when they are drinking alcohol and insisted that he was able to remain abstinent. He claimed that he was breathalysed up to two to three times a week for alcohol consumption by his “probation and parole officer”. When asked when he last had a drink of alcohol, he said: “well over twelve and a half, I think it’s since 2024. It does get me down when people say I’m drinking when I know I’m not”. He said that when he used to drink, for most of that period he would sometimes consume 4.5 litres of bourbon whisky a day. Dr Elliott stated: “He did not smell of alcohol and did not appear acutely intoxicated, although I suspected he was using his sunglasses to hide the condition of his eyes”.

45. As to his conviction for driving with the presence of methylamphetamine, the defendant said it was the result of him being exposed to passive inhalation of methylamphetamine being smoked by family members. He denied any history of opiate use, even though he had a reported history of using oxycontin.

46. Dr Elliott asked the defendant about his driver’s licence, noting:

“He proved more reserved on this but said he remains on his ‘L’ plates. He then added that he still needs to, ‘Sit some test, knowledge test on the computer.’”

The assessment occurred three weeks after the defendant was charged with driving while disqualified. He told Dr Elliott that it was a charge of driving without a licence, and that he was driving his mother to hospital.

47. The defendant told Dr Elliott that he was living alone and was not presently in a relationship.

48. The defendant terminated the assessment before Dr Elliott was able to ask him about his criminal history or his psychosexual history. Dr Elliott wrote: “I suspected that he appeared to recognise that the interview was headed in this direction”.

49. Dr Elliott stated:

“He was clearly cognitively impaired. I did not formally test him but he struggled with timeframes, frequently and unwittingly contradicted himself, and he tended to guess at many of his replies. He was contemptuous of his forensic patient status and referred to it as, ‘All this shit.’”

50. Dr Elliott diagnosed the defendant as having a mild neurocognitive disorder, which is “likely multifactorial in origin with the key contributing factors being a deprived educational experience and his years of severe alcohol abuse”. He also satisfied the criteria for a severe Alcohol Use Disorder and a mild Cannabis Use Disorder.

51. Dr Elliott noted that on the application of the HCR-20 Version 3 test, the defendant had a high loading of historical factors for violence:

“He has a history of violence and other antisocial behaviour. His relationships have been marked by conflict and domestic violence. He has an extremely limited employment history, a history of substance use, of traumatic experiences and of problems with supervision. He does have antisocial personality traits without manifesting the full features of this personality disorder. He does not have a major mental illness and he does not have a history of violent attitudes as measured by the instrument. He has a low to moderate loading with regards clinical and risk management items. He displays no real insight into his substance use problems and he continues to exhibit problems with supervision given how strenuously he opposes it. On risk management, he has unrealistic expectations of his ability to live independently and remain sober without support. Although his living situation is much improved over that prior to his incarceration for the index offence, he remains exposed to substance use amongst family members, there remains a risk he will continue to experience problems with personal support should he reject his NDIS assistance and similarly there are concerns regarding his willingness to comply with future supervision attempts and he remains extremely vulnerable to stress in the form of relationship conflict.

Overall, [the defendant] would be considered to fall within a group of offenders at moderate risk of violent reoffending.”

52. As to likely risk scenarios and factors that may elevate risk, Dr Elliott stated:

“[The defendant’s] key risk is of acting violently to a potential future intimate partner. This has been his characteristic pattern of offending behaviour and remains his foremost risk. Relationship conflict is a key stressor for him. It also remains a key potential pathway for relapse into alcohol use and then that alcohol use dramatically increasing the risk of him acting violently within the relationship. I would also add a cautionary note here that if comes to be influenced by those around him into using methamphetamines, then his risk of violent recidivism will rise dramatically.”

53. Although Dr Elliott was of the opinion that the defendant poses “a risk of serious harm to others” if he ceases to be a forensic patient, he also stated: “I am not convinced it rises to the level of ‘unacceptable risk’ as required by the Act”. He referred to the defendant’s relatively minor criminal history for non-sexual violent offending and concluded that a serious injury that results from an assault of a partner would likely be “during an episode of alcohol fuelled domestic violence, albeit without him having intent of inflicting grievous bodily harm or worse”. He did not consider that the defendant posed a risk of serious sexual reoffending as required by the phrase, “unacceptable risk”. His opinion was strengthened by the defendant’s score on the STATIC-99R, that placed the defendant in the average risk group for sexual reoffending.

54. Dr Elliott thought the primary protective benefit from an extension order would be the pressure placed upon him to be alcohol and drug-free by random testing, although even that would likely not avoid an act of serious harm in a domestic violence context: “the mechanism of breaching him may be too protracted to intervene early enough.”

55. Dr Elliott saw little point in mandatory alcohol and other drug (AOD) rehabilitation programs in view of the defendant’s hostility to them. He did not think there was a less-restrictive means of containing the defendant’s risk. He did not have a mental illness and therefore did not qualify for a Community Treatment Order. A Guardianship Order or Financial Management Order would not block his access to alcohol and drugs and only further antagonise him.

56. Dr Elliott saw considerable merit in the defendant continuing to be a recipient of NDIS support and doubted that the defendant would terminate it if he was no longer a forensic patient, in spite of his insistence that he disliked it:

“The combination of forensic patient status and continued NDIS support would appear the most likely combination of means of managing [the defendant’s] risk but it is debatable how much extra his forensic patient status adds to this combination. On one hand [the defendant] is obviously antagonised by the order and perceives everything associated with it as belittling and unnecessary. It may be that he would accept NDIS support more readily if he were not compelled to. The continued oversight of his progress by his [CSP], Mr Williams, along with Mr Williams’ supervision of drug screening, is the other element of his forensic patient status that adds to the management of his risk, but once again comes at the cost of provoking him.

…

On balance, I consider the least restrictive means of managing his risk to be continued NDIS support alone.”

Dr Youssef

57. Dr Youssef was one of the two Court-appointed forensic experts for the 2024 final hearing, producing a report dated 11 July 2024. In her current report, she referred extensively to her earlier report, partly because there was little or no change in the history or her opinions since then.

58. This assessment was via AVL over about two and a half hours. The defendant’s attitude to his forensic patient status was similar to how he presented to Dr Elliott:

“[The defendant] attempted to answer all questions put to him, though seemed preoccupied with making a point that there was ‘nothing wrong with’ him and that he does ‘not need any help’. He was also repeatedly questioning why he was ‘under the mental health tribunal’ and this concern recurred throughout the assessment.”

59. As to his personal history, the defendant recalled his six previous partners. Dr Youssef noted:

“[The defendant] noted that all his previous partners have accused him of perpetrating IPV (interpersonal violence) towards them. Consistent with the initial assessment, [the defendant] maintained that he was the victim of assaults by his partners and categorically denied any involvement in the perpetration of IPV. However, during the interview, he made several statements suggesting a shift in attitude, including the comment, ‘I no longer see violence as an answer … I’ve changed my ways’. It was unclear, however, what specific type of violence he was referring to, as he continued to deny having engaged in any violent behaviour when questioned further. As with the initial assessment [the defendant] emphasised that his role in the relationships was as the caretaker to his 30 children.”

60. The defendant told Dr Youssef he has been in a relationship with a woman he met through one of his sisters since his release from prison. Dr Youssef noted:

“[The defendant] reported that [his partner] drinks alcohol to excess at times, however he ‘walk[s] away’ whenever she does as he knows that this is not helpful for him; ‘tell her she needs to control [her alcohol use] … trying to wean her away’. He noted that she does not work, and they stay at each other’s place regularly. Whilst denying he has assaulted her, [the defendant] noted that she often assaults him when she is frustrated with him about money as she usually asks him for money. [The defendant] estimated that he has loaned her $5000-$6000 since he has been out of prison: ‘big dollars, she has not paid back a cent … I won’t see a cent’. [The defendant] acknowledged that this angers him however ‘what can I do?’. He noted that they do argue frequently, usually about money.”

61. The defendant said he had about 30 children, although Dr Youssef noted file reports that he had between 15 and 17 children. He described a difficult relationship with his family. He felt rejected, abandoned, disrespected and victimised by them:

“He described multiple and regular instances of violence towards him, including being kicked and assaulted with poles and wooden planks. He said that he is often put down with no one coming to his defence.”

62. He reported that some of his children used methamphetamine and that he had been successful in keeping them off it over the previous two months. One of his sons who had been using methamphetamine had recently stabbed him, over a money issue. Dr Youssef wrote:

“[The defendant] said his family members continue to consume alcohol and illicit substances in his presence and continue to offer him these substances, which he reports he declines. These claims are also listed in file information reflecting that [the defendant’s] family consume alcohol and illicit substances, do not recognise [the defendant] as ‘true kin’, and reflect that [the defendant] has also disclosed the same treatment from his family to his CSP case worker. It appears [the defendant] has been subject to this treatment for well over a year.

[The defendant] said he no longer wants to see his family and wants to move … so he is far away from them; ‘I wanna get the fuck away from them … they keep hitting me … I don’t want to get violent anymore, those days are behind me now … all I wanted was family, come looking for my family, fucken hell, worst thing I’ve ever done … I’m over it’. At one point [the defendant] suggested that his family’s treatment of him was punishment for his offence. He estimated that the last time he was assaulted by his family was three days before the assessment.”

63. The defendant maintained with Dr Youssef as well that he believed he did not require assistance through the NDIS:

“[The defendant] has been noted as having difficulty with activities of daily living (ADLS) with poor self-care and personal hygiene and difficulties with financial management, relationships, and meal preparation. In the current interview, he was adamant that he does not receive, nor does he require support for ADLS noting he cooks, cleans, attends appointments and manages his finances on his own.”

64. As to the defendant’s alcohol consumption, Dr Youssef noted:

“When asked about the reasons for his alcohol use, [the defendant] said it was to help him cope with his childhood trauma and other adverse emotional states. He noted that he now copes differently, though was unable to explain how. He denied being concerned about relapsing though was unable to provide any relapse prevention strategies. [The defendant] said he has no need for drug and alcohol counselling as he is the only one who can control his drinking and no longer deems this to be a problem for him. He did say that when he attends [Tribunal] hearings or receives a ‘particularly bad flogging’ from a family member, he can be tempted to drink, however, does not carry through. [The defendant] has previously blamed his partners for his alcohol use, saying that they would drink together, or he would drink in response to stress about their drug use or other stressors related to them.”

65. The defendant confirmed his current use of cannabis, saying he used it daily because “it assists him with his stress as well as his physical aches and pain from both his arthritis as well as the beatings he endures from his family”. He denied using other illicit substances, explaining the January 2025 offence came about because he was in a room where one of his children was smoking methamphetamine.

66. The defendant did not think he required assistance in the form of programs, “though [he] said he would sign up for any program that he had to”. He did not trust that others could be there for him:

“… no one supports me, I deal with it myself, deal with shit myself, my way, not to turn me back to violence … no help, doing everything on my own, never ask people for help … there is nothing wrong with me, I don’t need help … I don’t need any programs, no drug and alcohol … why am I with the NDIS and the Tribunal?!”

67. Dr Youssef noted that, following the Centrecare program’s rejection of the defendant’s participation in October 2024, the defendant did engage with counselling through the Salvation Army, although no information was available on it. As to the defendant’s participation in treatment otherwise, Dr Youssef noted:

“Records from his previous NDIS provider, ‘Little Blue Wren’ reflects that [the defendant] often missed appointments, needed assistance with problem-solving and anger management and that he required a public guardian. In April 2025, [the defendant] advised his case manager that he was ‘not ready’ to speak with a psychologist about his childhood trauma.”

68. Dr Youssef summarised the defendant’s living situation since his release back into the community on 8 November 2023, living with his mother:

“In early August 2024, [the defendant] moved from his mother’s residence into a community housing property … The accommodation with his mother had become unsustainable after family members started to use alcohol and illicit substances at the family home; [the defendant] maintained his sobriety according to his case manager. It is noted that [the defendant’s] abstinence continues to further alienate him from his family, further perpetuating a sense of social rejection. He is yet to develop connections with prosocial others and ‘has yet to buy into the attempts to introduce him to community-based activities that may foster such connections (e.g., employment, education classes, structure[d] leisure activities’.

…

[The defendant] currently resides in his own accommodation … which he said he has been in for a couple of months now, however he wants to relocate further away from his family, becoming distressed as he spoke about how his family frequently break into his house, stealing his food, money and other items. He said that he would like to move … if he can.

[The defendant] had acquired his learner’s driver’s license and had been transporting his mother to and from her medical appointments. He lives walking distance from his mother whom he sees almost daily to care for her. He said he also sees his partner almost daily, as well as various family members. [The defendant] noted that he also searches ‘for work every day’.”

69. I note that that aspect of the history is at odds with his driving history in 2025, driving while suspended and, in August, driving while disqualified. Dr Youssef continued:

“[The defendant] is reported to engage well with his CSP case worker, never refusing a meeting or phone call. Furthermore, [the defendant] has complied with all requests for him to be breathalysed, with negative results on each occasion. In interview, when asked if he was aware of what his conditions are, he said he did not know and denied that anyone had explained them to him. He did not seem to recognise that using cannabis was against his orders. He also noted that he at times stays with his children in Coonamble over the weekend for days at a time, it seems without his case manager’s prior approval.

[The defendant] said he currently has NDIS support three days a week on Mondays, Wednesdays and Thursdays for two hours at a time. He expressed his dissatisfaction with having support workers, noting that he uses them purely as a transport service to take him to appointments, otherwise they do not support him with any other tasks, ‘I don’t need the NDIS, I can do this on my own … I’m not asking them for help’. This is consistent with file information outlining that ‘lately [the defendant] has disengaged from his support services, really just using them as a taxi service’. [The defendant] acknowledged that he is often terse with them, as he finds their presence frustrating. He said that he plans to cease NDIS services upon the expiration of his order or as soon as he can as he sees no need for their services. He was keen to emphasise that he can look after himself and his needs. He expressed confusion throughout the assessment about why people tell him he has a disability and said he is unsure upon what grounds he was granted NDIS funding.

[The defendant] said he is not currently engaging with any other formal services and expressed adamantly that there was no need for any services. Much like his previous assessment, he emphasised that any change he has made to date is due to his ‘own hard work’ and not from the support of others, be that professional services or otherwise. [The defendant’s] goals for the future were the same as what he expressed during the initial assessment, noting it is to reconnect with his children. He said his focus is now on supporting his sons with remaining abstinent; ‘help my kids, my two sons, turned to needles, drugs … have to help them’.”

70. Dr Youssef considered that the defendant met the diagnostic criteria in the Diagnostic and Statistical Manual of Mental Disorder – 5th Edition Text Revision (DSM-5-TR) for the following conditions: Alcohol-Induced Mild Neurocognitive Disorder (NCD; persistent) and Alcohol Use Disorder (severe). In addition, he also met the criteria for Cannabis Use Disorders (moderate). An assessment of his cognitive functioning in 2024, using a Wechsler Adult Intelligence Scale (WAIS-IV), found his overall intellectual abilities to be in the ‘Extremely Low’ range, indicating ongoing severe impairment of intellectual capacities. He did not have a “mental illness” and is not a “mentally ill person” as defined in the Mental Health Act*.*

71. Dr Youssef administered various assessment tools as a partial basis for her opinion as to the defendant’s level of risk of causing serious harm, noting that there are unique challenges and considerations when the subject has a cognitive impairment or a mental health condition. Dr Youssef administered the STATC-99 which by itself, unsurprisingly, yielded the same result as it did for Dr Elliott, namely, that the defendant was in the average risk category for sexual recidivism. The STABLE-2007 is intended to identify stable dynamic risk factors for sexual reoffending, which placed him in the above average category. Taken together, they may produce a combined score which, in the defendant’s case, placed him in the “above average” category of sexual reoffending.

72. The Risk of Sexual Violence Protocol (RSVP-V2) includes a total of 23 static and dynamic factors grouped into two primary domains: “Nature of Sexual Violence”, which was not relevant to the defendant, and “Perpetrator Characteristics”. The Perpetrator Characteristics are divided into four not mutually exclusive sub-domains: ‘Psychological Adjustment’, ‘Mental Health’, ‘Social Adjustment’, and ‘Manageability’. Dr Youssef considered the defendant’s profile through these four sub-domains.

73. Dr Youssef administered a test that is intended to assess the risk of recidivism in family violence offenders, known as the Ontario Domestic Assault Risk Assessment (ODARA). The defendant scored in the highest category for risk of reoffending. Dr Youssef administered other tests, which I do not propose to summarise. The Spousal Assault Risk Assessment Guide, Version 3 (SARA-V3) is designed to assess risk of IPV and to identify risk strategies. It yielded a score that was consistent with his score on the ODARA, namely, his risk is a “High” priority for IPV specific treatment, his risk for physical harm is considered “Moderate-High” and his imminence of violence is considered “Moderate”. The Structured Assessment of Protective Factors for Violence Risk – Sexual Offence Version (SAPROF-SO) is intended to provide a structured way for clinicians to assess hypothesised protective factors alongside commonly used sexual recidivism assessment tools, as I understand it, by examining whether some protective factors may be more mitigatory of risk than others.

74. In summary, Dr Youssef concluded that the defendant’s level of risk for sexual offending was “Average” to “Above average”, and his risk for IPV was “High”. Dr Youssef identified potential risk scenarios, mindful that “risk assessments, including scenario planning, involve inherent uncertainties, and predictions about the severity of a future sexual or violent reoffence cannot be guaranteed”:

“The risk scenarios identified in the initial report, remain current: ‘Were [the defendant] to reoffend, it is likely to be an IPV offence, against a partner whom he perceives has slighted or disrespected him, feels jealous of, is concerned about being abandoned by, or feels challenged by in some manner. [The defendant] is likely to be intoxicated and may offend on his own, at home, however he may also offend out in public, and he is unlikely to be deterred by the presence of witnesses. The assault may involve punching, slapping, choking, or kicking with only a brief forewarning, if one at all. [The defendant] is likely to cause physical injuries to his victims ... The victim is most likely someone whom he is in an intimate relationship with, and he is likely to be residing with them … [The defendant] is unlikely to be deterred by an (Apprehended Domestic Violence Order: ADVO). In the less likely event of a sexual reoffence, [the defendant may] [1] offend against a pubescent or adult female known to him. He is likely to be intoxicated, the offence is likely to occur in an enclosed space, such as his home and likely to be intrusive in nature, involving penetration. [The defendant] is less likely to use aggression during the commission of a sexual offence’.

In addition to the above, I would also add that considering the volatile and violent interactions he is having with family members, should [the defendant] resume drinking, there is a possibility that these interactions could result in a violent reaction. Whilst [the defendant] denies violent reactivity on his part towards family members, he attributes this to his current abstinence from alcohol. Should he resume alcohol use, particularly within the context of ongoing familial tension, the potential for escalation to violence cannot be ruled out. While the likelihood of violence in this context appears lower than in the context of an intimate partner relationship, it remains a relevant consideration in the overall risk formulation. Overall, as noted in the initial report, the most significant factor contributing to a potential escalation in [the defendant’s] risk of reoffending is his alcohol use, which appears to underpin and exacerbate other risk areas. Additional contributing factors include being in an intimate relationship, experiencing feelings of being undermined, encountering interpersonal difficulties, struggling with coping and problem-solving, and leading an unstructured or unstable lifestyle.”

75. Dr Youssef repeated her opinion from her 2024 report as to case formulation:

[The defendant’s] IPV offending behaviour is typically precipitated by some perceived betrayal, slight, insult or challenge by his partner. His offending is perpetuated by his poor coping strategies, alcohol use, a ruminative tendency, a negative attribution bias and a sense of entitlement. These factors all occur against a backdrop of several predisposing factors including an insecure attachment style, defectiveness and mis-trust schemas, and a fear of abandonment. Whilst [the defendant] has some awareness of the role alcohol has played in his problematic behaviours, his insight with respect to his offending behaviour specifically remains absent. [The defendant] will require substantial therapeutic support if he is to commence another relationship. Concerningly, [the defendant] does not acknowledge his proclivity for aggression in his intimate relationships, the entirety of which cannot be attributed to his alcohol misuse. There are deep-seated schemas, cognitive biases and complex attachment systems that will need to be worked through with [the defendant], if his risk of IPV is to be mitigated. With respect to his sexual offending behaviour, this appears to have been an instance of disinhibition resultant of his excessive alcohol consumption. [The defendant] has not acknowledged this offending behaviour and clearly has not addressed it therapeutically. Whilst [the defendant] appears more likely to commit an IPV related offence as compared to a sexual offence, the dynamics that led to his recent offence nevertheless should be addressed with him.”

76. Dr Youssef was of the opinion that the risk posed by the defendant could not be adequately managed by a Guardianship or a Financial Management Order and he did not qualify for a Community Treatment Order. Ongoing NDIS support could be helpful, but if the defendant is not a forensic patient, he could terminate it. There is a high likelihood that he would terminate the NDIS if an extension order was not made.

77. Dr Youssef recommended that the order be extended for a period of 12 months:

“Considering [the defendant’s] outstanding treatment needs remain unaddressed and current instability, in conjunction with the risk he poses, an extended order that allows for supervision, support, treatment, and monitoring is the least restrictive form of management. An extended order offers [the defendant] the chance to address his unresolved dynamic risk factors while enhancing his protective factors. It will also provide an opportunity for the continued implementation of conditions and management provisions (e.g., alcohol abstinence, attendance at intervention programs, monitoring, and support for intimate relationships). Regular reviews will ensure that adjustments can be made as needed, provided that [the Tribunal] are promptly made aware of all issues of concern as they arise. I have also considered the likelihood of [the defendant] engaging voluntarily in the recommended interventions, and without an order in place, it is unlikely he will voluntarily comply. An extension order of at least 12 months provides an opportunity for [the defendant] to engage in intervention and continue to receive the necessary support in the community.”

The forensic experts’ oral evidence

78. In oral evidence, Dr Elliott sought to encapsulate the difference between his opinion and that of Dr Youssef on the issue of whether the defendant would cancel his NDIS-funded services, if he was no longer a forensic patient:

“I would suggest that avenues by which [the defendant] could speak to prosocial people, such as those at the Salvation Army, will give a structured, well, give him structure to his week, where he is able to engage with someone in a much more informal manner, I would be putting it.

Forcing him to do that, however, is where I differ from Dr Youssef. I think it's only likely to cause him to dig his heels in and to resent it, whereas I think he goes to the Salvos of his own volition and has a cup of tea and a coffee, and those more informal measures are probably useful in helping him stop drinking.”

79. Drs Elliott and Youssef also disagreed as to whether the defendant had the cognitive capacity to ensure that he was not alcohol-affected at scheduled breathalyser tests, to which he was then subject. Dr Youssef thought he was, whereas Dr Elliott thought he was not.

The parties’ submissions

80. The difference between the positions of the parties in their final address could be succinctly stated as turning on the differences in the opinions of Dr Elliott, which was the position of the defendant, and the opinion of Dr Youssef, with which the plaintiff aligned. The defendant submitted that Dr Elliott’s opinion carried more weight because of his familiarity over decades with individuals such as the defendant, who are Aboriginal and live on the social fringes.

Consideration

81. At the time of the 2024 final hearing, there were positive indicators for the defendant’s rehabilitation, at least to a point that he did not pose an unacceptable risk of causing serious harm. As noted by Dhanji J and also by Dr Youssef in her report, the defendant’s release from detention to reside with his mother proved to be unsuitable, in part because of the attitude of family members towards his commitment to abstinence. The defendant moved into public housing a matter of days before the 2024 final hearing.

82. Dhanji J noted:

“[Dr Youssef] also accepted any risk, presented by the defendant, was lower should he abstain from alcohol and have stable accommodation. She accepted that, with the defendant having moved into his own accommodation, receiving support with respect to day-to-day living and with engagement in psychological treatment and occupational therapy, his risk was reduced. She, however, raised a concern that the defendant continue to engage with these supports noting that the defendant could not be compelled to utilise such services provided through the NDIS.”

83. Although the defendant has now been residing in a different location for about 16 months, it has proved to be no safer or less destabilising for him. There has been little relief from his family’s belligerence, rejection of him and their confronting alcohol and drug consumption. The defendant now proposes to move again, this time to a different area. As well, he has had a difficult relationship with his earlier NDIS service provider and while his relationship with his current services provider is positive, he has expressed a strong desire to terminate NDIS services altogether if an extension order is not made.

84. Another promising development at the time of the 2024 final hearing was the availability of culturally appropriate counselling and treatment for underlying criminogenic factors. His Honour expressed concern, at [35], at the lack of counselling opportunities that had been provided to the defendant:

“There is no evidence that any counselling has been put in place beyond one session with a psychologist arranged through [the Tamworth Aboriginal Medical Service]. This is despite the plaintiff’s application being based on the need for such treatment.”

85. His Honour found as a fact that the defendant had not consumed alcohol since his release from prison and noted that he had been accepted by the Tamworth Aboriginal Medical Service to access their alcohol, tobacco and other drugs support service, and by the Centrecare program, which was intended for men who use abusive and controlling behaviour towards women. The defendant had attended the first session in January 2024. His Honour concluded, at [53]-[54]:

“While significant progress has been made it must be borne in mind that he has had only one session with a psychologist. Proposed occupational therapy has not yet commenced. There does not appear to be regular drug and alcohol counselling in place.

It is highly regrettable that this application should be made by the plaintiff, in large measure on the basis of these needs, in circumstances where the supports said to be required have not been put in place over the nine months the defendant has been in the community. There is some force in the defendant’s submission that extension of the order to mitigate risk is not warranted as no inference can be drawn that the making of an order will result in the provision of therapy for past trauma and drug and alcohol counselling. Against this, however, is the fact that, perhaps somewhat belatedly, psychological counselling has commenced. While there are concerns that it may not be sufficiently specialised, it is a start. While drug and alcohol and psychological support might be thought to be obvious interventions in a case such as this, and perhaps should have been commenced earlier, I would expect that the opinions of the court appointed experts and these reasons will have the effect of causing these measures to be put in place within a relatively short time.”

86. As noted above, the defendant was ultimately rejected by the men’s behavioural change program because of his denial of the index offence and resistance to treatment and has steadfastly maintained to Dr Dayalan in December 2024 and Drs Elliott and Youssef in August 2025 that he believes he does not need treatment for his issues. As well, there is some evidence that the defendant had consumed alcohol before his assessment by Dr Dayalan on 16 December 2024 and had consumed methamphetamine, some of which remained in his blood, leading to the January 2025 offence.

87. There is considerable agreement between the opinions of Drs Dayalan, Elliott and Youssef to the effect that the defendant’s risk of causing serious harm by committing an offence of serious violence is dependent upon whether he is able to maintain sobriety from alcohol and other substances; in particular, in the opinions of Drs Elliott and Youssef, methamphetamine. All three forensic experts note the defendant’s need for assistance in maintaining sobriety by way of therapeutic intervention.

88. To the extent that Dr Elliott’s view differs from that of Drs Dayalan and Youssef, it is as to whether, firstly, an insistence upon therapy would be pointless and counterproductive in view of the defendant’s attitude to it; secondly, whether serious harm would likely be intended by the defendant’s deliberate act of violence (for example, the defendant intending injury confined to a punch but causing the victim to fall and hit their head, occasioning a very serious injury); and thirdly, whether the defendant would cancel his NDIS-funded services if he was no longer subject to a forensic patient order.

89. I accept the defendant’s submission that Dr Elliott’s opinion warrants particular weight in view of his long experience within and outside the prison system with patients facing the issues that the defendant faces.

90. A review of some aspects of the defendant’s criminal offending over his life, to which I now turn, provides some force to the opinion of all three experts that the defendant’s primary criminogenic factor is his consumption of alcohol, but also to Dr Elliot’s contention that the defendant would not comply with treatment conditions.

The defendant’s pattern of alcohol-related offending

91. As noted, the defendant’s first matter involving violence was an assault in 1995, when he was aged 26. The police facts were that the defendant and his “de facto” drank heavily one night and had an argument in the early hours of the following morning: “the defendant punched the victim to the face and kicked her on the leg … the defendant admitted to punching the victim to the left side of her face”.

92. In February 1998, the defendant received a three-year recognizance order for a break, enter and steal. A condition of the 1998 good behaviour bond was that he “enter a residential rehabilitation programme as may be arranged”. In a subsequent breach report dated 5 September 2000, the author, who was a Probation and Parole officer, noted:

“However, attempts by this service since October 1999 to have [the defendant] address his alcohol dependency via a residential rehabilitation centre have not been successful, with the Probationer leaving on two occasions after only a matter of days.”

93. And later:

“Furthermore, despite being aware of community based Alcohol and Other Drug counselling services, [the defendant] has made no attempt to commit to any intervention plan.

During this period of supervision [the defendant] has employed a variety of avoidance strategies such as arriving late for appointments with community based agencies, thereby hindering the preparation of a comprehensive assessment, to proclaiming prior to Court that he was committed rehabilitation, and later, following adjournment, refusing to comply with these undertakings.”

94. In August 1999, he was convicted in absentia for assault and contravening an ADVO. The prosecutor informed the Court that the assault was a threat to stab the defendant’s partner.

95. In May 2000, the defendant received a good behaviour bond for 18 months for the offences of driving while disqualified, failing to appear and goods in custody.

96. On 20 December 2000, the defendant was convicted of assault and failing to quit premises, both committed on 26 July 2000. For the assault he received a 12 month good behaviour bond, conditional on regularly attending Alcoholics Anonymous. A subsequent breach report noted that the defendant was unable to provide any confirmation with having attended Alcoholics Anonymous meetings.

97. In August 2001, the defendant was sentenced in the Local Court for three offences: larceny, intimidation and assault. For each offence he received wholly concurrent sentences to imprisonment for four months.

98. The police facts on the assault were that on the morning of 15 June 2001, the defendant’s partner had arrived at their home to find the defendant intoxicated. He accused her of sleeping with other men and punched her four times to her face. She contacted police who attended their residence 30 minutes later. The defendant decamped and was arrested shortly afterwards, smelling “strongly of intoxicating liquor”. It was noted that the defendant had been bailed on 23 May 2001 with a condition that he not consume intoxicating liquor.

99. The defendant appealed the sentence to the District Court. On 3 October 2001, he came before Black QC DCJ, who accepted evidence to the effect that the defendant wished to finally address his problem of alcohol consumption by participating in a residential rehabilitation program at Bennelong Haven. His Honour varied the sentence of imprisonment by imposing a bond for a period of 12 months with conditions that included that he attend the Bennelong Haven program within 14 days of the date of his appeal, and obey the reasonable directions of the Probation and Parole Service.

100. The defendant did not attend Bennelong Haven. He was breached and called up, but failed to appear. On 22 April 2002, he received a further bond for a period of 12 months with a condition to undertake anger management counselling.

101. On 5 March 2003, the defendant was convicted of destroying or damaging property, for which he received a bond for a period of 12 months, conditional upon him complying with reasonable directions of the Probation Service concerning, amongst other matters, AOD rehabilitation. The property was that of his partner. He was drunk and broke a window with a shoe when she asked him to “Go to bed or go”.

102. In 2006, the defendant was convicted of breaching an ADVO by approaching his partner while intoxicated and threatening to kill her. He received a two year bond with supervision.

103. In 2008, the defendant was convicted of the offence of assault occasioning actual bodily harm, for which he received a suspended sentence of imprisonment for 15 months, conditional upon him complying with reasonable directions of the probation service concerning, amongst other matters, drug and alcohol rehabilitation and continuing to attend named Indigenous agencies for counselling. The police facts were to the effect that around 11.50am on the day of the incident, police were driving along a public street and observed the defendant to walk to a taxi. His partner exited the driver’s seat and he punched her to her face with a closed fist, causing her to stumble backwards and fall to the ground. Police stopped and arrested the defendant. His partner informed police that in the early hours of that morning the defendant had repeatedly punched her to the face and “grabbed her by the throat with his hands causing pain and bruising to her throat and neck area”. That was the assault that was the subject of the charge.

104. In 2014, the defendant received a 12 month good behaviour bond for assault, with a condition to attend AOD counselling.

105. On 23 February 2015, the defendant was convicted of common assault in a domestic violence context committed on August 2014. He received a bond for a period of three years, subject to supervision. The essence of the facts was that he grabbed his wife by her throat and forced her against a wall. According to a transcript of the Court sentence hearing, the defendants’ legal representative informed the Court that the defendant “realises he does have an issue with alcohol”.

106. Two months and one week after that offence, the defendant again committed an assault in a domestic violence context and received another 12 month good behaviour bond.

107. On 21 June 2018, the defendant was convicted of intimidation in a domestic violence context, for which he received a two year good behaviour bond conditional upon him attending counselling for, amongst other matters, drug or alcohol rehabilitation. The facts were to the effect that while “highly intoxicated” he threatened serious violence against a woman who was the carer of a six-year old daughter of the defendant.

Conclusion and determination

108. Although this is not a comprehensive summary of the defendant’s criminal record, it suffices to place the defendant’s current situation in the context of his life-long struggles with AOD abuse. It underscores the strength of likely scenarios of future offending as opined by Drs Elliott and Youssef, which are particularly troubling in view of the defendant’s current relationship with a partner who drinks heavily. This material includes repeated instances of insight by the defendant into his alcohol issue, commitments by him to accept outside help to tackle it and usually (but not always) failing to follow through with the counselling and therapy that has repeatedly been made available to him.

109. I made the following findings of fact:

110. I am satisfied that if the defendant resumes consuming alcohol and/or consumes methamphetamine, he will engage in acts of violence with others while under the influence of those substances, that would cause serious psychological and emotional harm and have the potential to cause (likely unintended) serious physical harm or death.

111. I am not satisfied that the defendant has not used alcohol or methamphetamine over the duration of his most recently extended order. However, I do find that he has built on his earlier significant period of sobriety with an impressive further effort.

112. It is likely that the defendant will resist attempts to engage him with AOD treatment if his forensic patient order is extended.

113. The NDIS and other services provided directly and indirectly through the defendant’s extension order and the Tribunal’s conditions (such as random AOD testing) are necessary in order to both assist and constrain the defendant in respect of his AOD issues and to achieve pro-social objectives such as changing his place of residence.

114. With due respect to Dr Elliott, I consider it is likely that the defendant would follow through with his stated intention to cancel his NDIS-funded services if he is not a forensic patient.

115. For these reasons, I was satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, and that the risk could not be managed by other less restrictive means.

116. The type of harm that the defendant poses is non-sexual violence. I accept the opinions of the forensic experts that the risk of the defendant committing an offence of sexual violence does not constitute an unacceptable level.

117. The defendant’s record of relatively minor assaults, his partial success in remaining sober and his resistance to AOD treatment activate consideration of exercising the discretion to not extend the order. I determined not to do so, because in my view, the practical impact of the Tribunal’s supervision will significantly reduce the defendant’s level of risk by ensuring that he maintains support services and does not relapse.

Order

113. Accordingly, I made the following order on 14 November 2025:

(1) Order pursuant to ss 121, 127(1)(a) 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 12 months from the date of this order, 14 November 2025.

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Endnote

In oral evidence, Dr Youssef corrected her original qualification, which was “is likely to”, to “may”.