Attorney General for NSW v Vakapora (BHT Dr Katherine Johnson) (Final)

Catchwords: MENTAL HEALTH – forensic patient – extension of status as a forensic patient – interim extension order set to expire – where defendant has been diagnosed with intellectual disability and schizophrenia – extension order appropriate – duration of extension order – order that status as a forensic patient be extended for 3 years

Legislation Cited: Crimes Act 1900 (NSW), s 35
Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 26, 69, 72, 81, 83, 121-128, 133

Cases Cited: Attorney General for New South Wales v Bragg (Final) [2024] NSWSC 316
Attorney General for New South Wales v Peterson (bht Rodrigues) [2020] NSWSC 651
Attorney General for New South Wales v RL (by his tutor Ramjan) (Final) [2024] NSWSC 1580
Attorney General for NSW v Vakapora (BHT Dr Katherine Johnson) (Preliminary) [2025] NSWSC 187
Attorney General for NSW v Vakapora (Final) [2021] NSWSC 200
Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928
Attorney General of New South Wales v McGuire [2013] NSWSC 1862
Attorney General of New South Wales v SK (a pseudonym) (by his tutor Dr Katherine Pavlidis Johnson) (Preliminary) [2025] NSWSC 704
Attorney General of New South Wales v Vakapora (Preliminary) [2020] NSWSC 1701)
Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107
Cornwall v Attorney General for NSW [2007] NSWCA 374
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
Minister for Mental Health v Paciocco [2017] NSWSC 4
New South Wales Minister for Mental Health v Brauer [2015] NSWSC 863
State of New South Wales v Grant Michaels (Final) [2025] NSWSC 392
State of New South Wales v Hayter (Final) [2020] NSWSC 1581

Category: Principal judgment

Parties: State of New South Wales (Plaintiff)
Tutaua Vakapora (Defendant)

Representation: Counsel:
E Lovell-Jones (Plaintiff)
S Talbert (Defendant)
Solicitors:
Crown Solicitors Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2024/00430172

JUDGMENT

1. By a summons filed on 19 November 2024, the Attorney General for New South Wales, the plaintiff, sought final, interlocutory, interim and ancillary orders in respect of Tutaua Vakapora, the defendant, concerning extending his status as a forensic patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) *(*the MHCIFP Act). Dr Katherine Johnson has consented to act as the defendant’s tutor in these proceedings.

2. The defendant's status as a forensic patient arose originally from: a finding by the Campbelltown District Court on 25 June 2018 that the defendant was unfit to be tried for offences of recklessly causing grievous bodily harm and intimidation with intent to cause fear of physical harm; the verdict at the special hearing on 4 November 2018 that on the limited evidence available the defendant committed the offences charged; and, the limiting terms imposed in respect of those offences which expired on 27 January 2021. His status as a forensic patient was extended by orders made by Davies J on 9 December 2020 (see Attorney General of New South Wales v Vakapora (Preliminary) [2020] NSWSC 1701) and by Ierace J on 10 March 2021 (see Attorney General for NSW v Vakapora (Final) [2021] NSWSC 200). The extension ordered by Ierace J was due to expire on 26 April 2025.

3. On 11 March 2025, I made an interim order extending the applicant’s status as a forensic patient for 3 months from 26 April 2025: Attorney General for NSW v Vakapora (BHT Dr Katherine Johnson) (Preliminary) [2025] NSWSC 187. That interim extension is set to expire on 26 July 2025. In addition, on 11 March 2025 an order was made pursuant to s 26(5) of the MHCIFP Act in the following terms:

“(a) Two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of any two such persons) be appointed to conduct separate examinations of the defendant and provide reports to the Supreme Court on the results of those examinations by a date to be fixed.

(b) The defendant is directed to attend those examinations.”

4. These examinations were carried out by Dr Carollynne Youssef, clinical and forensic psychologist, and by Ms Lisa Zipparo, senior clinical neuropsychologist. Dr Youssef provided her report to the Court dated 1 May 2025 and Ms Zipparo’s report was dated 28 April 2025.

5. When the matter came before me for hearing on 23 June 2025, only the claim for final relief by way of the extension order remained to be determined.

Factual Circumstances

6. The background and factual circumstances relevant to this matter have been set out in some detail in the previous judgments: Attorney General of New South Wales v Vakapora (Preliminary) [2020] NSWSC 1701; Attorney General for NSW v Vakapora (Final) [2021] NSWSC 200; and, Attorney General for NSW v Vakapora (BHT Dr Katherine Johnson) (Preliminary) [2025] NSWSC 187. I have not repeated all of that material in this judgment on the understanding that this judgment should be read together with the preceding judgments. In addition, the parties helpfully prepared a Joint Statement of Agreed Facts and a Supplementary Joint Statement of Agreed Facts which were supported by a significant volume of documentary material. I have accepted the parties’ agreed facts but, once again, I have not set out their contents in detail in this judgment.

7. The defendant is presently 35 years old. He was born in the Cook Islands. It can be accepted that the defendant is a poor historian, attributable to his mental health conditions and his intellectual and learning disorders. It appears that he is the eldest of five children. He was separated from his parents when he was 12 years old and went to live with his maternal grandfather on another island, because his parents could not afford to care for him. He was often physically disciplined as a child by his father and maternal grandfather. He left school in the equivalent of Year 7 and found work in carpentry as a labourer. The defendant’s family migrated to Sydney when he was about 17 years old and he worked in construction and similar industries for approximately 12 to 18 months. He has not, however, worked since that time. Until the defendant went into custody, he was in receipt of a Disability Support Pension.

8. The defendant has a son who is 14 years old, with whom he has recently re-established contact, together with his mother and maternal grandmother. This was the first time the defendant’s mother had visited him since his admission to the Forensic Hospital in 2020.

9. The defendant is currently an involuntary patient at the Elouera Unit of the Forensic Hospital. His applications for the National Disability Insurance Scheme (NDIS) have been rejected and there is a possibility that his visa might be cancelled.

10. As to the defendant’s previous offending, Ierace J summarised his criminal history from 2011 which included violent offending and drug use. Over the period from 2011 until the index offences were committed, the defendant was admitted numerous times to mental health units as an involuntary patient and community treatment orders (CTOs) were imposed on him.

11. The index offences which formed the basis of the defendant's status as a forensic patient related to charges of recklessly causing grievous bodily harm contrary to s 35(1) of the Crimes Act 1900 (NSW) and stalking and intimidation charges contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) committed on 1 August 2016. The victim was a 61 year old man who suffered from a number of disabilities and resided in the same unit block as the defendant. The defendant accused the victim of taking his belongings, specifically a bong. The defendant punched the victim a number of times in the face causing him to fall to the ground. When he was on the ground the defendant kicked him. The victim suffered multiple fractures to his left eye socket and nose and suspected bleeding on the brain. When another 69 year old man attempted to intervene the defendant threatened him with violence. The defendant was eventually chased off by another resident of the unit block.

12. The defendant was found unfit to be tried and, on 4 November 2019 following a special hearing at Campbelltown District Court, English DCJ delivered verdicts that on the limited evidence available the defendant committed the offences charged. On 10 December 2019, English DCJ imposed two limiting terms; the first being 3 months commencing on 28 July 2018 and expiring 23 October 2018 in relation to the intimidation offence and the second being 2 years and 6 months commencing 28 July 2018 and expiring 27 January 2021 in relation the reckless grievous bodily harm offence. As noted above, the defendant’s status as a forensic patient has been extended since 27 January 2021 and is due to expire, unless extended, on 26 July 2025.

13. Since November 2018, the defendant has been reviewed by the Mental Health Review Tribunal (MHRT) on a number of occasions. As noted above, the defendant was admitted as an involuntary patient at the Forensic Hospital in 2020 and he is currently in the Elouera Unit there.

14. A summary of the MHRT’s reviews from 13 May 2021 to 5 December 2024 was included in the agreed facts. These reviews indicated, inter alia, that while medication had improved his aggression and irritability, psychotic symptoms persisted up to December 2024. The Tribunal also noted that he has a “superficial insight” into his mental illness. His continued detention was said to be appropriate given his needs and safety, and the safety of others in the community. The Tribunal also referred to the additional difficulties which arise in the defendant’s case, if treatment in the community were considered to be an appropriate option, because of the unavailability of support from the National Disability Insurance Scheme while the defendant is not an Australian Citizen.

15. More recently, his Justice Health case notes from February to April 2025 indicate that the defendant continues to have limited insight into his mental health issues and the impact of future illicit drug use.

16. In addition, there was a report from Dr Leroux, psychiatric registrar, and Dr Dayalan, consultant psychiatrist, dated 2 June 2025 to the MHRT, to which I shall refer in more detail below.

17. Against the background above and as disclosed in the earlier judgments, it is helpful at this point to review the relevant statutory scheme.

Relevant statutory provisions

18. Parts 5 and 6 of the MHCIFP Act provides for the care, treatment and control of forensic patients. The objects of those Parts are set out in s 69:

“69 Objects

(1) The objects of this Part are as follows:

(a) to protect the safety of members of the public,

(b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental health impairment or cognitive impairment,

(c) to facilitate the care, treatment and control of any of those persons in correctional centres or detention centres through community treatment orders,

(d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment,

(e) to give an opportunity for those persons to have access to appropriate care,

(f) to protect the safety of victims of forensic patients and to acknowledge the harm done to victims.

(2) The objects of this Part extend to the provisions of Part 6.”

19. The term “forensic patient” is defined in s 72:

“72 Forensic patients

(1) The following persons are forensic patients for the purposes of this Act—

(a) a person who is found unfit to be tried for an offence and who is detained in a mental health facility, correctional centre, detention centre or other place,

(b) a person for whom a limiting term has been nominated after a special hearing (including a person who is subsequently subject to an extension order or an interim extension order) and who is detained in a mental health facility, correctional centre, detention centre or other place or who is released from custody subject to conditions under an order made by the Tribunal,

….

(2) To avoid doubt, a person is not a forensic patient if the person has been found unfit to be tried for an offence and has been released on bail.”

20. There was no dispute that the defendant was and is a forensic patient within the meaning of this section.

21. Section 121 of the MHCIFP Act empowers this Court to extend a person’s status as a forensic patient by making an extension order. Under s 122(1), a forensic patient can be made the subject of an extension order if and only if the Supreme Court is satisfied to a high degree of probability that:

22. the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and

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

24. In determining whether it is satisfied of those matters, the 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: s 122(2) of the MHCIFP Act.

25. It was not in dispute in the present case that the preconditions and requirements in relation to an application for an extension order, specified in ss 123, 124 and 125 of the MHCIFP Act, were satisfied. Consequently, it is unnecessary to consider those provisions further in these reasons.

26. Under s 127(1), the Court may determine an application for an extension order either by making the order or dismissing the application. Subsection (2) of s 127 contains a non-exhaustive list of mandatory matters which the Court must consider in determining whether or not to make an extension order. Those mandatory considerations are:

“(a) the safety of the community,

(b) the reports received from the persons appointed under section 126(5) to conduct examinations of the forensic patient,

(c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(b),

(d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient,

(e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application,

(f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice or any other government Department or agency responsible for the detention, care or treatment of the forensic patient,

(g) the level of the forensic patient’s compliance with any obligations to which the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act),

(h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed,

(i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others.”

25. If the Court makes an extension order, the MHRT is to be notified: s 127(3) of the MHCIFP Act.

26. In the present case, if an extension order is made, it will commence when the existing extension order expires on 26 July 2025: s 128(1)(a) of the MHCIFP Act. The maximum period for which an extension order may be made is 5 years: s 128(1)(b) of the MHCIFP Act.

27. The Court may, at any time, vary or revoke an extension order on the application of a Minister administering the Act or the forensic patient or on the recommendation of the MHRT: s 133 of the MHCIFP Act.

Relevant principles

28. As to the relevant principles which relate to the application of these statutory provisions, I considered these principles in a similar case in 2024, Attorney General for New South Wales v RL (by his tutor Ramjan) (Final) [2024] NSWSC 1580 at [74]-[85]. There, I said that, given the similarity in structure and language of the statutory regime set out in Pt 6 the MHCIFP Act with that established by the CHRO Act, it is appropriate to look to authorities in relation to High Risk Offender legislation for assistance in understanding the relevant provisions of the MHCIFP Act: Attorney General of New South Wales v McGuire [2013] NSWSC 1862 at [12] (Davies J) and New South Wales Minister for Mental Health v Brauer [2015] NSWSC 863 (Adamson J).

29. It was also noted that, unlike the High Risk Offender legislation, the MHCIFP Act does not empower the Court to make specific orders about, or impose as part of an extension order conditions concerning, the care, treatment, supervision or control of a forensic patient.

30. Section 122(1) provides that the standard of proof, for the purposes of determining whether an extension order should be made, is satisfaction to "a high degree of probability". This is a standard of proof which is higher than the civil standard but lower than the criminal standard: State of New South Wales v Hayter (Final) [2020] NSWSC 1581 at [25] (Johnson J). In Cornwall v Attorney General for NSW [2007] NSWCA 374, the Court of Appeal (Mason P, Giles and Hodgson JJA) held at [21]:

"The expression ‘a high degree of probability’ indicates something ‘beyond more probably than not’; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt."

31. This standard of satisfaction "to a high degree of probability" applies to both central questions posed by s 122(1) namely:

32. does the defendant pose an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient; and

33. can that risk be adequately managed by other less restrictive means:

Minister for Mental Health v Paciocco [2017] NSWSC 4 at [8] (Campbell J).

32. The "unacceptable risk" of causing serious harm to others if the forensic patient ceases to have that status is to be given its ordinary meaning in the context of the provision in which it appears and having regard to the objects of Pt 6 of the MHCIFP Act and involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Lynn) at [58]; Attorney General of New South Wales v SK (a pseudonym) (by his tutor Dr Katherine Pavlidis Johnson) (Preliminary) [2025] NSWSC 704 at [19] (N Adams J).

33. The right of a person to be at personal liberty at the expiry of a limiting term is not a relevant consideration in the evaluative task of determining of whether a person poses such an "unacceptable risk": Lynn at [44], [127] and [148]; State of New South Wales v Grant Michaels (Final) [2025] NSWSC 392 at [17] (McNaughton J).

34. In assessing the nature of this risk, the following comments of Basten JA in Lynn at [126] are relevant:

"The nature of the risk he posed had 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. The assessment must be based on an absence of protective measures."

35. The Court is to assess whether the risk rises to the level of being unacceptable in the context of making the community secure from harm as opposed to guaranteeing its safety and protection: Lynn at [61]; *Attorney General for New South Wales v Peterson (*bht Rodrigues) [2020] NSWSC 651 at [92]. The assessment of unacceptability of risk is to be undertaken 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]. 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: Attorney General for New South Wales v Bragg (Final) [2024] NSWSC 316 at [61].

36. The second aspect of s 122(1)(a) for consideration concerns "serious harm" which is not defined in the Act but has been held to include both physical and psychological harm. In examining the level of such harm and whether or not it rises to the point of being "serious", R A Hulme J said in Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 at [16]:

"… [serious harm] may concern physical or psychological harm. In terms of physical harm it does not require a concern about harm to the level of 'grievous bodily harm' (defined in the criminal law as really serious bodily harm). … it contemplates something more than would satisfy the minimum threshold for 'actual bodily harm' under the criminal law. I also accept the submission that psychological harm must be something more than emotions such as fear or panic. Such things are not 'serious harm'."

37. If the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of serious harm to others if he ceases to be a forensic patient, the Court must then consider s 122(1)(b) and whether such an unacceptable risk can be managed by other less restrictive means.

38. An assessment of whether the unacceptable risk of causing serious harm to others can be adequately managed by other less restrictive means involves determining, in respect of relevant alternatives:

39. whether the risk can be adequately managed by each alternative proposed; and

40. whether each alternative is less restrictive than if an extension order were made.

41. The relative restrictiveness of an alternative is to be judged by reference to, inter alia, the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance: Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 at [96] (Adamson J). 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: Note to s 122 of the MHCIFP Act.

The positions of the parties in this case

40. The plaintiff's position was, in effect, that the material in the evidence supported the conclusion that the Court should be satisfied to the requisite standard that the two matters in s 122(1) of the MHCIFP Act were made out, namely that:

41. the defendant poses an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient and were to be released into the community whilst not subject to supervision by the MHRT, and

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

43. In addition, the plaintiff contended that the extension order should be made for a period of three years to enable the defendant to transition to the community and to provide an adequate period of supervision once that occurs.

44. The defendant's overall position was set out in his written submissions and included that the threshold requirements for the making of orders were satisfied in the present case and:

"8. Considering the available evidence, the defendant does not oppose the making of an extension order and accepts that the evidence would permit the court to conclude that such an order is justified.

9. However, the defendant opposes the duration of the order being 3 years and submits that the duration of the order should be 2 years.”

43. Consequently, the area of real contest between the parties was effectively confined to the length of the term of the Extension Order.

Should an extension order be made?

44. As noted above, in considering whether I am satisfied to a high degree of probability of the two matters in s 122(1) and whether an extension order should be made, I am required to have regard to the matters identified in s 127(2) of the MHCIFP Act. In my judgment in respect of the interim order some of these matters were considered on the assumption that the matters alleged in the documentation were proved. At the final hearing, none of those relevant matters was effectively challenged. Consequently, the analysis in the interim judgment continues to be applicable and it is not necessary to repeat it in detail here. In addition, a number of the matters relevant under s 127(2) were considered by Davies J and Ierace J when the earlier extension orders were made. Where they continue to be relevant, I respectfully adopt their Honours’ consideration and conclusions and have not repeated that material in this judgment. The most significant new material are the reports of Dr Youssef and Ms Zippora obtained under s 126(5), together with more up to date Justice Health records and report to the MHRT.

45. I shall address the matters referred to in s 127(2)(a) to (i), where relevant, in turn.

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

46. The evidence concerning the safety of the community was essentially consistent. It was reflected in the report provided by Dr Bert and Dr Peng dated 27 November 2024 to the MHRT for the purposes of the review hearing by the Tribunal on 5 December 2024. That report noted that the defendant’s mental health had continued gradually to improve and he had had no reported incidents during the relevant reporting period. It was said that he reported ongoing mild psychotic symptoms in the form of auditory hallucinations. Although he was compliant with medication, the defendant’s insight into his mental illness was said to remain superficial and, more specifically, he had limited insight into how his psychotic symptoms contributed to his violent behaviour or into the potential harm his ceasing medication might have. The report concluded that the defendant had a demonstrated risk to others in the community as a result of his mental illness and he required continued detention for the protection of himself and others from serious harm as the least restrictive management option consistent with safe and effective care.

47. The more up to date Justice Health notes contain observations on 13 and 17 February 2025 which are consistent with Dr Bert’s and Dr Peng’s opinions. On 10 March 2025 Dr Dayalan, psychiatrist, recorded that the defendant stated that he did not believe he had schizophrenia, did not know what schizophrenia was and did not believe he needed medication.

48. The opinions in this regard of Dr Youssef and Ms Zippora, obtained as a result of the examination orders made earlier in 2025, and the latest psychiatric report to the MHRT by Drs Leroux and Dayalan will be considered in more detail in the following sections. It is sufficient to note here that they are consistent with the earlier material referred to.

49. In all the circumstances as disclosed in the material before the Court, the safety of the community weighs substantially in favour of an extension order being made.

Reports received from the persons appointed under s 126(5) - s 127(2)(b)

50. As noted above, the defendant was examined by a forensic psychologist, Dr Youssef, and a registered neuropsychologist, Ms Zippora, who were appointed under s 126(5). Their opinions were unchallenged.

Dr Youssef’s report

51. Dr Youssef’s report of 1 May 2025 referred to her clinical interview with the defendant on 11 April 2025 in which the defendant reported that a female ghost was present who whispered in his right ear. On this occasion, the defendant said that he did not believe he had schizophrenia and considered ongoing treatment unnecessary. He also stated that he did not believe prohibited substances impacted his mental health and that, on release into the community, he intended to use alcohol to “take the edge off”, as well as using cannabis and ice (methylamphetamine) and he did not believe he would require any ongoing contact with a doctor or psychologist in the community. Dr Youssef observed that the defendant reported experiencing perceptual disturbances, seeing and hearing things that others do not, including three or four female visions, which he identified as “ghosts”. His interpretation of those experiences fluctuated from being not disturbing to dangerous.

52. Dr Youssef diagnosed the defendant as suffering from schizophrenia and substance use disorder (alcohol, cannabis and stimulant) which was in sustained remission in a controlled environment. The absence of prominent or prolonged mood disturbance made a diagnosis of schizoaffective disorder, rather than schizophrenia, inappropriate.

53. Dr Youssef included risk assessments in respect of the defendant, although the limitations inherent in these assessments was noted. Using the Violence Risk Appraisal Guide – Revised (VRAG-R) actuarial risk assessment tool, Dr Youssef found that the defendant was in the eighth of nine “bins” for violent recidivism, and 58% of those in that category are expected to meet the criteria for violent recidivism within five years and 78% within 12 years. Utilising the Historical Clinical Risk Management-20, Version 3 (HCR-20) tool, Dr Youssef assessed the defendant as a “High” priority for violence specific treatment, with his risk for serious harm being “Moderate” and his immanence of violence being “Low” given his current stability in the Forensic Hospital, but it would be likely to be higher if he were not in a highly structured environment or was without “robust support”.

54. Dr Youssef noted that the defendant’s previous victims had a broad profile and violence was often unprovoked and driven by delusional misinterpretation. The possible future risk scenarios may, in her opinion, include the defendant becoming increasingly paranoid following a period of medication non-compliance, deteriorating mental health, and/or relapse into substance use. In such circumstances, the defendant may misinterpret the actions or presence of others resulting in sudden and high intensity assault. In her opinion, the defendant was unlikely to be deterred by the presence of witnesses and would struggle to de-escalate without external intervention thus making physical injuries likely.

55. As to the defendant’s ongoing management, Dr Youssef was of the opinion that:

“if [the defendant] were no longer subject to a forensic patient order, he would pose a risk of causing serious harm to others, due to the removal of important external management, oversight, and support system that currently help contain and manage his risk.

…

“[were the defendant] to disengage from treatment or cease to be under structured forensic care, the likelihood of serious harm occurring would increase significantly”.

56. Extending the defendant’s status as a forensic patient was, in Dr Youssef’s opinion, the most effective way of managing his risk as it ensured the ongoing oversight of the defendant by the MHRT, which includes regular review of his progress, treatment and supervision. Without the extension, it was in her view unlikely that the defendant would receive or comply with the necessary level of treatment and supervision. Dr Youssef considered alternative forms of management, including a CTO or standard involuntary hospital admission, voluntary care in the community, guardianship and financial management orders, and the Housing and Accommodation Support Initiative (HASI) Plus scheme but was of the view that his complex needs, risk formulation, prior lack of adherence to medication and the inability to enforce treatment or compel engagement rendered each alternative insufficient or inappropriate. This was especially so, since the defendant is ineligible for the NDIS.

57. In relation to the appropriate length of any extension of the defendant’s status as a forensic patient, Dr Youssef noted that there was no “known literature in relation to the recommended timeframes for such orders”. Nonetheless, given the defendant’s risk of reoffending, his dynamic risk factors, and the chronicity and severity of his mental health condition, Dr Youssef recommended an extension for three years.

Ms Zipparo’s report

58. The report of Ms Zipparo, a neuropsychologist, was dated 28 April 2025. She had interviewed the defendant by AVL from the Elouera Unit of the Forensic Hospital. In the interview, the defendant said that he had not heard voices for about six months, but he also said that he did not mind them as they gave him something to listen to. He indicated that he was looking forward to being able to drink alcohol and said that he would probably use cannabis because he liked it, and would use ice (methylamphetamine) again because it helped his memory. In relation to ice, he explained to Ms Zipparo that he was learning about budgeting and managing his money “so he ‘can afford it’”.

59. Ms Ziparro undertook various forms of neuropsychological testing and formed the opinion that the defendant had severe impairments in verbal comprehension, verbal learning and memory, and in aspects of executive functioning. Overall, his intellectual capacities were in the bottom 0.1% of the population for his age. Ms Zipparo diagnosed the defendant with “Intellectual Developmental Disorder of Moderate severity” as well as a “Specific Learning Disorder in the verbal domain, indicating impairments of language over and above that which would be expected as a result of his overall intellectual disability”. In addition, it was said that his level of cognitive impairment was over and above that which would be attributable to a major mental illness.

60. As to his diagnoses, Ms Zipparo’s opinion was that the defendant suffered from schizoaffective disorder, substance use disorder (in sustained remission in a controlled environment), intellectual developmental disorder (intellectual disability – moderate) and specific learning disorder. In addition, it was noted in relation to substance use that the defendant has no insight and he stated that he would resume cannabis, ice and alcohol use when he returns to the community.

61. In order to assess the defendant’s risk, Ms Zipparo utilised the HCR-20 risk assessment took and noted that this suggested that the defendant posed an “Above Average risk of reoffending compared with other forensic psychiatric offenders based on existing risk factors”, having high loadings on Historical, Clinical and Risk Management scales. In relation to the clinical scales, Ms Zipparo observed that the defendant continued to demonstrate poor insight into his mental illness, the benefit of treatment and the role of drugs in exacerbation of his symptoms.

62. It was noted that the defendant’s symptoms of schizophrenia were currently well controlled with Clozapine but his ability to learn and change behaviours without ongoing support and supervision was significantly limited by his intellectual disability.

63. It was Ms Zipparo’s opinion in summary that when he returns to the community the defendant will require 24 hour support 7 days per week but NDIS support is not available. It was also observed that the defendant had no known stable relationship or social networks nor was there any indication of sufficient insight or understanding of his illness or need for treatment. In these circumstances, it was in effect concluded by Ms Zipparo that there was no reason to expect that he would remain treatment compliant or abstain from substance use once the current supervision was removed.

64. Ms Zipparo recommended continuation of his status as a forensic patient on the basis that:

“[the defendant] demonstrates no insight into his mental condition or his need for treatment. He has been treatment compliant whilst under supervision but given his lack of insight and poor decision-making capacities, there is a significant risk of [the defendant] discontinuing treatment if uncompelled as he has on all previous occasions when under CTOs. His risk of violence is unacceptably high should he cease to comply with his treatment and therefore he requires enforcement of treatment compliance with 24-hour supervision.”

65. Ms Zipparo considered alternative and less restrictive means of managing the risk posed by the defendant including voluntary care and treatment, a CTO, guardianship and financial management orders, NDIS support and funding, and HASI Plus support. In relation to HASI Plus, Ms Zipparo noted that this scheme was designed for people with severe mental illness but was not necessarily designed for people with intellectual disability and an assessment of suitability would be required. In short, Ms Zipparo was of the view that there is currently no less restrictive alternative means of managing the risk posed by the defendant than continuation of his status as a forensic patient.

66. More generally, Ms Zipparo said:

“Because of [the defendant’s] complex needs, when [he] ceased to be a forensic patient, he will require a combination of all of the above [alternatives] to enable a safe transition to the community. However, he is currently not eligible for NDIS funding which is critical to enable the level of support and supervision he requires in the community, and therefore continuation of his status as a forensic patient is the safest option until matters of funding and supervision in the community can be resolved.”

67. As to the duration of any extension order, Ms Zipparo opined that an extension should be for “a minimum of two years” but noted that the defendant would then require “an extended period of transition and monitoring in the community”.

Reconciling Dr Youssef’s and Ms Zipparo’s diagnosis

68. The evidence of Dr Youssef and Ms Zipparo was in large measure consistent. There was, however, one divergence of views between them. Dr Youssef diagnosed the defendant with schizophrenia rather than schizoaffective disorder, whereas Ms Zipparo was of the opinion that the defendant met the criteria for a diagnosis of schizoaffective disorder. Dr Youssef explained her reasoning in this regard. There was no cross examination on this topic. Overall, it did not appear to me that the different diagnoses materially changed the assessment of the risk posed by the defendant, how that risk might be managed or any other relevant aspect of the present case. Were it necessary for me to reach a view, I would accept the opinion of Dr Youssef for the reasons she gave and noting that the psychiatrists Dr Leroux and Dr Dayalan also diagnosed schizophrenia and not schizoaffective disorder.

Other matters under s 127(2)

69. Other matters identified in s 127(d) to (i) were covered in the agreed facts and I have taken them into account.

70. In addition, a number of these matters under s 127(2) have already been considered by Ierace J in his 2021 judgment and by me in the interim judgment published earlier this year. Where those considerations remain relevant, I adopt without repeating those matters and the analysis relating to them. In short, none of these matters was inconsistent with, or provided any grounds for not accepting, the opinions of Dr Youssef and Ms Zipparo, which I have outlined above and which constituted in substance the most recent information available.

71. In addition to the reports of Dr Youssef and Ms Zipparo, the most recent material includes the report to the MHRT of Dr Leroux and Dr Dayalan of 2 June 2025. Dr Leroux and Dr Dayalan noted in their report as follows concerning his visa status and NDIS support:

“In February 2024, [the defendant] was referred to the Medium Secure Units (MSU) for assessment. [The defendant] was assessed by the MSU panel and was deemed not suitable for transfer due to concern from the panel around his immigration/visa status and resultant ineligibility for NDIS. [The defendant] is a New Zealand citizen and currently holds a 444 Special Category Visa that allows him to live in Australia indefinitely. He is currently on a limiting term and there has not yet been any indication that his visa will be revoked. Holders of a 444 Special Category visa are able to apply for Australian citizenship, however advice obtained from an immigration lawyer is that in order to do so the individual must be living in the community for a period of 5 years before applying. [The defendant] is therefore unable to gain citizenship whilst he is a patient in a forensic unit, and is therefore unable to access NDIS funding. The MSU panel have stated this is of significant concern as [the defendant] has high care needs and will likely require supported independent living (SIL) accommodation and ongoing support in the community.

The MSU panel also requested clarification regarding a previous sexual assault allegation which, if substantiated, would in their view preclude [the defendant] from being accepted to Bunya given it is a mixed-gender unit. Whilst the MDT continued to work towards clarifying the concerns of the MSU panel, [the defendant] was referred to the Elouera Rehabilitation Unit.”

72. Dr Leroux and Dr Dayalan noted that the defendant was transferred to the Elouera unit in December 2024 and that over the following six months he had continually engaged well with others and staff and was usually bright, jovial and euthymic. Nonetheless, he continued to have ongoing psychotic phenomena, including hearing voices. Based on those ongoing psychotic symptoms, his level of clozapine was being tested and there was a plan to increase his dose further if required. The doctors reported that the defendant continued to attend the Narcotics Anonymous and Alcoholic Anonymous during the past six months and noted that in February 2025, he reported that his voices did not get worse when using drugs.

73. Dr Leroux and Dr Dayalan confirmed the defendant’s diagnoses of:

74. treatment resistant schizophrenia with evidence of functional impairment and poor insight despite treatment;

75. substance use disorder in remission within the restricted environment of the Forensic Hospital but with consistently demonstrated poor insight into the negative impacts of substance use which may be an issue in a less restrictive environment; and,

76. intellectual disability but this had not been formally assessed and diagnosed by the doctors.

77. Dr Leroux and Dr Dayalan assessed the defendant’s risk of future violence utilising the HCR – 20 (version 3) tool and were of the opinion that the defendant has a “high loading of historical/static risk factors for violence, which are chronic and unlikely to be changed” but the absence of antisocial personality disorder and violent ideation were absent. It was also noted that he has ”a moderate loading of dynamic factors, including poor insight, evidence of cognitive instability and partial treatment response” but it was noted that there appeared to be improvement in his behavioural stability. Finally it was recorded that the defendant has “a moderate loading of future risk factors, including likely future problems with professional services plans, personal support, and stress or coping”, with the absence of NDIS funding being noted. It was said that the defendant would likely need high levels of support when discharged into the community and therefore alternative service pathways would need to be explored. It was said that overall the defendant psychotic symptoms appeared to be partially controlled on clozapine and there had been no significant acts of violence or aggression recorded for an extended period.

78. Under the heading “3.3 Treatment Plan”, the doctors expressed the opinions that:

“Given his risk formulation, [the defendant] will require graded transition into the community via a medium secure unit.

The plan is for [the defendant] to remain in the Elouera unit whilst waiting decision of court in relation to his limiting term and until he is accepted into a medium secure facility.

Re-: Future treatment

The treating team plan to continue to work with [the defendant] in addressing the dynamic risk factors relevant to his risk of causing serious harm to others and achieving his recovery goals. This will include ongoing monitoring and optimisation of his medication regimen and, interventions to improve insight and compliance with treatment, reduces risk of relapse into substance use and improve social skills. The treating team also intends to explore options for support services that can support [the defendant] in the community to allay concerns raised by MSU and alternative pathways for securing citizenship.”

76. The doctors’ recommendations in their 2 June 2025 report included:

“The nature of [the defendant]’s presentation requires continued detention as a mentally ill person for protection of himself and/or others from serious harm, as the least restrictive management option, consistent with safe and effective care.

[The defendant] is a forensic patient and is currently detained as an involuntary patient at the Forensic Hospital. The treating team respectfully recommend this order continues. It is the team’s opinion that there is no alternative care option that is less restrictive at this time.

An order for escorted day leave is sought as the team is of the opinion that the safety of [the defendant] or the community would not be seriously endangered by having periods of leave from the Forensic Hospital. [The defendant] has had multiple periods of leave for medical appointments and there have been no concerns regarding any risks posed during the leave period. If granted escorted day leave, [the defendant] will be always escorted by two VPM trained staff members. Successful periods of escorted day leave could further assist with his acceptance for admission by the MSU panel.”

Conclusion on extension order

77. Having regard to the material I have referred to above, in particular, the defendant's past offending and conduct, his mental health diagnoses, the risk of his reoffending as determined by the various clinicians who have assessed him most recently, including Dr Youssef and Ms Zipparo as well as Drs Leroux and Dayalan, together with the nature and potential seriousness of any likely reoffending, I am satisfied to a high degree of probability that, if he ceased to be a forensic patient and was consequently released into the community without supervision, the defendant would pose an unacceptable risk of causing serious harm to others. Consequently, the first limb of the test in s 122(1) of the MHCIFP Act has been satisfied.

78. As to the second limb, the evidence of Dr Youssef and Ms Zipparo, which I accept, established that the risk posed by the defendant could not currently be adequately managed by any of the other less restrictive means, which each of them identified and considered. Substantially the same conclusion was reached by Dr Leroux and Dr Dayalan. There was no material suggesting a contrary view.

79. In light of all this material, which I accept, I am satisfied to a high degree of probability that the risk posed by the defendant cannot be adequately managed by other less restrictive means. Consequently, the second limb of the test in s 122(1) has also been met.

80. There were not submitted to be any other reasons why it would not be appropriate to extend the defendant’s status as a forensic patient. Having regard to all the defendant's circumstances referred to above, I accept that his status as a forensic patient should be extended and I shall make such an order.

81. The only remaining issue is the duration of that extension.

Duration of the extension order

82. The defendant submitted that the extension should be for only two years. It was contended that he was showing improvement, recently being observed with no overt psychotic symptoms, clam and settled, being well controlled on medication. It was noted that he had recently reconnected with his son.

83. Noting the types of support said to be required by Dr Youssef, it was submitted that the difficulty for the defendant was his inability to apply for citizenship until he had been living for five years in the community and the availability of NDIS funding was said to depend on his visa and citizenship status. The defendant also referred to Ms Zipparo’s evidence that the extension order should be for a “minimum of two years to enable the resolution of his Visa status and to allow appropriate levels of funding and supervision to be secured” with a subsequent “extended period of transition and monitoring in the community”. It was also noted that Dr White (whose evidence I referred to in some detail in the judgment in relation to the interim extension order) had earlier said that an extension for two to three years would be appropriate.

84. The defendant submitted that the extension order should be for no longer than was required to allow the options for reintegration to be further investigated, that is two years. In addition, it was in effect submitted on the defendant’s behalf that extension for two years was required “to put appropriate pressure on finding a solution for the defendant to these issues which are outside his control”. These “issues” apparently referred to the resolution of the defendant’s visa status and access to funding for support and supervision in the community.

85. The plaintiff submitted that a three year extension was appropriate to allow “a graded transition to the community via a MSU [medium secure unit]” as explained in the 2 June 2025 report to the MHRT by the defendant’s treating team, Drs Leroux and Dayalan. On this basis, the three year period was said to be required so that there was sufficient time for the defendant to engage successfully with periods of escorted day leave, be accepted by the MSU panel, transition from the MSU to the community and then demonstrate a sustained period of compliance in the community while subject to supervision and monitoring.

86. The plaintiff contended that it was not necessary to “put pressure on” to ensure resolution of the defendant’s funding issues resulting from his visa and citizenship status. Furthermore, the plaintiff submitted that if an extension were only granted for two years, the defendant’s circumstance may well necessitate a further application for an extension in about 18 months’ time.

87. An extension for three years was also submitted to be consistent with the expert evidence of Dr Youssef and Ms Zipparo.

Consideration

88. In my view, the reports of both Dr Youssef and Ms Zipparo support a three year duration for the extension order.

89. Dr Youssef recommended an extension for three years. This period was based on the following reasoning:

“An extended period [of three years] under a forensic patient order would provide [the defendant] with the time and structure need to implement community supports, build essential skills, develop routine, and engage in meaningful activities, fostering self-management and stability. Given his past reluctance to engage with treatment voluntarily and his limited insight, it unlikely he would willingly comply with recommended interventions without the external oversight of an order in place. This extension ensures continued support and maximises the likelihood of sustained engagement in his rehabilitation, which, ultimately, mitigates risk."

90. Although, Ms Zipparo mentioned a period of two years, properly understood, her opinion on the duration of any extension order was not that two years was the appropriate length or the minimum length. Her evidence was as follows:

“An extension of [the defendant’s] forensic patient status should be made for a minimum of two years to enable resolution of his Visa status to allow appropriate levels of funding and supervision to be secured. He will then require an extended period of transition and monitoring in the community. Consideration of his removal of his forensic patient status should only be made if [the defendant] develops some insight and demonstrates some capacity to adhere to treatment regimes.”

91. This paragraph of Ms Zipparo’s report suggests that an extension of his status as a forensic patient should be made up of two years, in order to allow funding for support to be secured, plus “an extended period of transition and monitoring in the community … [during which the defendant] develops some insight and demonstrates some capacity to adhere to treatment regimes”. The “extended period of transition and monitoring” appeared to me to be a reference to what Drs Leroux and Dayalan described in their 2 June report as a “graded transition into the community via a medium secure unit [or MSU]” and reflected the fact that the MHRT may order a forensic patient’s conditional release (as opposed to unconditional release) into the community under ss 81(b) and 83(1) and (3) of the MHCIFP Act. Ms Zipparo does not indicate how long that “extended period of transition and monitoring” might be. Nonetheless, in light of the defendant’s current complex needs, lack of insight and the expressed intentions regarding drugs, alcohol and medication identified by Ms Zipparo, this “extended period” may well be in the order of one year. There did not appear to me to be a proper basis for concluding that the “extended period” referred to by Ms Zipparo would be significantly less than one year. Understood in this way, Ms Zipparo’s position on the duration of any extension order is not inconsistent with Dr Youssef’s opinion that the extension should be for three years.

92. Nothing in Dr Leroux and Dr Dayalan’s report suggested that an extension for three years would be inappropriately or unnecessarily long or that the appropriate duration would be only two years. The doctors envisaged exploring options for support for the defendant as well as escorted day leave which might allay the concerns of the MSU panel and thus assist to achieve a “graded transition into the community via a medium secure unit”.

93. Furthermore, there is, in my view, no need for an extension of only two years in order “to put appropriate pressure on finding a solution for the defendant to these issues which are outside his control” as was submitted. The report of Dr Leroux and Dr Dalayan indicates that his treating team is well aware of the issues concerning the defendant’s visa status and having been pursuing those issues appropriately. There is no basis for any implicit criticism of the defendant’s treating team in the Forensic Hospital or of the MHRT, which such a submission might involve.

94. A short period for an extension order such as two years would not, in light of the evidence as a whole, be sufficient having regard not only to the safety of the community but also to the needs of, and support required by, the defendant by way of a graded transition through a medium secure unit into the community. In addition, if a significantly shorter extension than three years were ordered, the plaintiff might well be required to seek a further extension in about 18 months’ time in order to ensure that the defendant is reviewed and supervised by the MHRT while in the community. By way of contrast, if the defendant’s condition continues to be stable and he progresses well through the graded transition by way of a medium secure unit into the community, a further extension of his status as a forensic patient at the end of three years might be unnecessary.

95. Accordingly, I propose to order that the defendant’s status as a forensic patient be extended for a period of three years.

Orders

96. For these reasons, the orders of the Court are:

97. An 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 3 years from when his current interim extension order expires.

98. The Registrar is directed to inform the Mental Health Review Tribunal of the making of the extension order referred to in order (1) and is to provide to the Tribunal a copy of these orders and the judgment in this matter.

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