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[2025] NSWSC 1482
General information, not legal advice.
Supreme Court of NSW
2025-12-10
Chen J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Attorney General of New South Wales v Beryalay (by his tutor Ramjan) [2025] NSWSC 1482
Hearing dates: 9 December 2025
Date of orders: 10 December 2025
Decision date: 10 December 2025
Jurisdiction: Common Law
Before: Chen J
Decision: (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 3 years from 10 December 2025.
(2) Direct that the Registrar of the Court notify the Tribunal of the making of the above extension order.
Catchwords: MENTAL HEALTH – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – forensic patient – extension of status as forensic patient – final hearing – whether unacceptable risk of causing serious harm if status as forensic patient ceases – whether risk can be managed adequately by less restrictive means
Legislation Cited: Crimes Act 1900 (NSW)
Mental Health Act 2007 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited: Attorney General for New South Wales v Beryalay (by his tutor Ramjan) (Preliminary) [2025] NSWSC 1022
Attorney General for New South Wales v Bragg (Final) [2024] NSWSC 316
Attorney General for New South Wales v Mulipola (Final) [2021] NSWSC 1041
Attorney General for New South Wales v RL (by his tutor Ramjan) (Final) [2024] NSWSC 1580
Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174
Attorney General of New South Wales v Beryalay by his tutor Jennifer Thompson (Preliminary) [2019] NSWSC 252
Attorney General of New South Wales v Beryalay (by his tutor Johnson) (Final) [2022] NSWSC 1274
Attorney General of New South Wales v Beryalay by his tutor Thompson (Final) [2019] NSWSC 816
Attorney General of New South Wales v Vakapora (Preliminary) [2020] NSWSC 1701
Minister for Mental Health v Paciocco [2017] NSWSC 4
State of New South Wales v Calhoun (a pseudonym) (Preliminary) [2024] NSWSC 1311
State of New South Wales v French (Final) [2017] NSWSC 1475
State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562
State of NSW v Tiggelen [2018] NSWSC 1399
Category: Principal judgment
Parties: Attorney General of New South Wales (Plaintiff)
Mustaba Beryalay (Defendant)
Representation: Counsel:
J Wilcox (Plaintiff)
E James (Defendant)
Solicitors:
Crown Solicitors Office (Plaintiff)
Kathy Bagot Law Pty Ltd (Defendant)
File Number(s): 2025/00240399
Publication restriction: Nil
By summons filed 23 June 2025, the Attorney General for New South Wales (‘the plaintiff’) seeks an order, by way of final relief, pursuant to ss 121, 127 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (‘the MHCIFP Act’) against Mustaba Beryalay (‘the defendant’), who appears by his tutor (Barbara Ramjan), to extend his status as a forensic patient for a period of three years. Unless a further order is made confirming that status, it will cease once the interim order made by Wright J expires at midnight on 20 December 2025.
The plaintiff read, in support of the final orders, the affidavits of Dylan Swanborough affirmed 20 June 2025 and 21 July 2025 and the affidavits of James Palmer affirmed 27 November 2025 and 4 December 2025.
The parties also prepared a Joint Memorandum of Facts and Issues, dated 4 December 2025, in accordance with Supreme Court Practice Note SC CL 12 (‘the agreed facts’).
All references to legislative provisions in these reasons are, unless otherwise specified, references to the MHCIFP Act.
The parties accepted the defendant’s background as set out in Attorney General of New South Wales v Beryalay by his tutor Jennifer Thompson (Preliminary) [2019] NSWSC 252 at [5]-[7], which I adopt (agreed facts at [10]). The following is a brief summary of what is there set out.
The defendant was born in Afghanistan in 1991. In 1997, the defendant and his family travelled to Australia as refugees. The defendant has a history, based on familial recollections, of neonatal asphyxia and intermittent bouts of oxygen deprivation in the course of his upbringing. As a child, the defendant’s intellectual functioning was assessed, and his overall cognitive abilities were reported, to be in the “borderline mildly intellectually disabled range” and his adaptive behaviour functioning was in the “mildly intellectually disabled range”.
During his adolescence, the defendant exhibited behavioural issues which brought him to the attention of Juvenile Justice. When aged 15, the defendant was diagnosed with frontal lobe syndrome, a condition causing executive dysfunction. At this time, the defendant was also diagnosed with an underlying anxiety disorder, attention deficit hyperactivity disorder (‘ADHD’) and depression.
By age 16, the defendant was abusing illicit drugs.
The offending that resulted in a limiting term being imposed under s 23 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the ‘MHFP Act’) was summarised by me in Attorney General of New South Wales v Beryalay (by his tutor Johnson) (Final) [2022] NSWSC 1274 at [7]-[12] (‘Beryalay 2022’), which I adopt (see also agreed facts at [17]-[21]). The following is a summary of what is there set out.
On 12 April 2012, the defendant was (relevantly) charged with an offence of shooting at a person, with intent to commit murder, pursuant to s 29 of the Crimes Act 1900 (NSW) and, in the alternative, with causing grievous bodily harm with intent, pursuant to s 33(1)(b) of the Crimes Act (the ‘index offence’: agreed facts at [18]-[19]).
The offending occurred subsequent to a police pursuit during which the defendant was the driver and the victim a passenger. The victim was subsequently arrested and confirmed the defendant’s identity to police. The defendant was arrested shortly after this and became aware that the victim had provided information to police. The defendant was granted bail. Following his release, the defendant, in the company of others, confronted the victim and shot him as he tried to flee.
On 17 April 2013, Sides QC DCJ found the defendant unfit to be tried under s 14 of the MHFP Act. The effect of this finding meant that the defendant became a forensic patient under the jurisdiction of the Mental Health Review Tribunal (‘the Tribunal’): ss 14(a) and (b)(iii) and s 42 of the MHFP Act.
On 6 June 2013, the Tribunal determined that the defendant did not have a mental illness but that he had an intellectual disability; antisocial personality disorder; and a history of polysubstance abuse. Due to these factors, the Tribunal considered that the defendant was unfit to be tried for the index offence.
On 5 February 2014, a special hearing was conducted before Bennett SC DCJ, following which, on 28 February 2014, the defendant was found not guilty of the first charge but had a “qualified finding of guilt” made against him in respect of the index offence: being that “on the limited evidence available … [the defendant] committed the [index] offence”, which was one of four verdicts available pursuant to s 22(1) of the MHFP Act. On 28 March 2014, Bennett SC DCJ nominated, under s 23(1)(b) of the MHFP Act, a limiting term of seven years in respect of that offence, backdated to 12 April 2012 when the defendant was arrested and detained. His Honour also made an order under s 24 of the MHFP Act referring the defendant to the Tribunal.
The limiting term nominated by Bennett SC DCJ expired on 11 April 2019.
The defendant’s status as a forensic patient has been extended by final orders made on two occasions – on 1 July 2019 (Attorney General of New South Wales v Beryalay by his tutor Thompson (Final) [2019] NSWSC 816 (‘Beryalay 2019’)) and on 21 September 2022 (Beryalay 2022).
On 8 September 2025, following a preliminary hearing, Wright J made an interim order extending the defendant’s status as a forensic patient “commencing from the expiry of the existing extension order on 21 September 2025 for a period of three months”: Attorney General for New South Wales v Beryalay (by his tutor Ramjan) (Preliminary) [2025] NSWSC 1022 at [46](2). As noted, the interim order made by Wright J expires at midnight on 20 December 2025.
The defendant, after being charged with the alleged offending on 9 October 2025 (see [39](7), below), was refused bail and has been in custody since 14 October 2025.
On 13 October 2025, the Tribunal made an order, under s 109(2), for the apprehension and detention of the defendant following the alleged offending.
Section 121(1) provides that the Supreme Court may, upon application, “make an order for the extension of a person’s status as a forensic patient”. An order made under that section is described as “an extension order”: s 121(2).
Section 72 defines “forensic patients” and the parties accepted that he was within this definition.
Section 122, which provides the grounds for making an extension order, is in the following terms:
122 Forensic patients in respect of whom extension orders may be made
(1) A forensic patient can be made the subject of an extension order as provided for by this Part if and only if the Supreme Court is satisfied to a high degree of probability that—
(a) the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and
(b) the risk cannot be adequately managed by other less restrictive means.
(2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others.
This section has been described as creating two limbs. The first requires demonstration that the defendant “poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient”: s 122(1)(a). The second involves consideration of whether the “risk cannot be adequately managed by other less restrictive means” which, as the note to the section provides, will include consideration of whether involuntary detention or treatment under the Mental Health Act 2007 (NSW) adequately manages the risk: s 122(1)(b); Minister for Mental Health v Paciocco [2017] NSWSC 4 at [7] (‘Paciocco’).
In Attorney General for New South Wales v Bragg (Final) [2024] NSWSC 316 at [58]-[63], the following summary of the background principles relating to s 122, was provided:
“58. First, the standard of persuasion for each limb is to a ‘high degree of probability’. In this respect, the Court must be satisfied that the existence of the unacceptable risk is higher than the civil standard of proof and thus ‘beyond more probably than not’, but not to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] (‘Cornwall’). Although the decision in Cornwall concerned the Crimes (High Risk Offenders) Act 2006 (NSW), this analysis has been held to apply equally to the Act, or its predecessor: Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439 at [18] and [25] (with respect to the Act); Attorney General for New South Wales v Kapeen [2017] NSWSC 685 at [11]-[12] (with respect to the MHFP Act). The parties accepted the correctness of that approach.
- Secondly, the plaintiff bears the onus in respect of both limbs, and in respect of the second limb must prove a negative: Paciocco at [8].
- Thirdly, the phrase ‘unacceptable risk’ is not defined in the MHCIFP Act, but it has been held to have the same meaning as in the Crimes (High Risk Offenders) Act: Attorney General for the State of New South Wales v Boyce (No. 2) [2017] NSWSC 648 at [30] (‘Boyce’). That finding provides the basis for imposing control on the offender (or, more relevantly here, the forensic patient): Lynn at [127].
- In the context of high risk offenders, the phrase ‘unacceptable risk’ is given its everyday meaning within its context, having regard to the objects of the Crimes (High Risk Offenders) Act (Lynn at [55]-[58]), and ‘involves considerations of both [the] likelihood of the risk eventuating, and the gravity of the risk that may eventuate’: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]; State of New South Wales v Chaplin [2019] NSWSC 471 at [15]. The nature of the risk ‘posed [has] to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition’: Lynn at [126]. Further, a forensic patient may pose an unacceptable risk, even where the likelihood of causing serious harm to others is low, if the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43]; State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [16]; State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73].
- The phrase ‘serious harm’ is not defined by the MHCIFP Act. It has been accepted that it includes physical or psychological harm, albeit conditioned by the requirement that the harm be ‘serious’: see the discussion in Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 at [16]; and Attorney General of New South Wales v Beryalay by his tutor Thompson (Preliminary) [2019] NSWSC 252 at [20]. This analysis was followed by Wright J in Attorney General of New South Wales v Beryalay by his tutor Thompson (Final) [2019] NSWSC 816 at [21].
- The phrase ‘adequately managed’ is also not defined by the MHCIFP Act. It has been held to mean ‘that the unacceptable risk is mitigated by the proposed management regime so that the community’s interest in being kept safe is outweighed by the community’s interest in not having mentally ill or mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community’: Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 at [63]; Boyce at [30].”
There are a number of statutory provisions required to be satisfied prior to the Court making an order under s 121.
Section 123 permits the relevant Minister (here, the plaintiff) to apply for an extension order “against a forensic patient”. However, s 124(1) qualifies this by providing that an order can only be made if the forensic patient is subject to “a limiting term” or “an existing extension order”: ss 124(1)(a) and (b). Section 3 defines “extension order” to mean “an order for the extension of a person’s status as a forensic patient under section 121” and defines “limiting term” to mean “a term nominated for a person under Division 3 of Part 4”.
It is an agreed fact, and I find, that the defendant is a forensic patient and I further find that he is currently subject to an existing extension order (agreed facts at [3]).
Relevantly, s 124(2) provides that an application made under s 123 may not be made more than six months before the expiry of the existing extension order: s 124(2)(b). It is also an agreed fact that this requirement is satisfied (agreed facts at [3]) and I find that it is. The application was therefore compliant with the time stipulated by s 124(2)(b).
A further requirement is that the application for an extension order be accompanied by material which addresses the matters in s 127(2), to the extent relevant (s 125(a)), and includes a report from a qualified psychiatrist, registered psychologist or registered medical practitioner that “assesses the risk of the forensic patient causing serious harm to others” (s 125(b)(i)) and “addresses the need for ongoing management of the patient as a forensic patient and the reasons why the risk of the forensic patient causing serious harm to others cannot be adequately managed by other less restrictive means” (s 125(b)(ii)).
I am satisfied that the material in the affidavits relied upon by the plaintiff addresses the matters in s 127(2) and the defendant did not contend otherwise.
Section 126 prescribes a number of pre-hearing procedures relating to the making of, and dealing with, an application for an extension order: the application must be served on the forensic patient (the defendant) within two business days after the application is filed, or such further time as the Court may allow (s 126(1)); the Minister must notify the Tribunal as soon as practicable after making the application (s 126(2)); subject to some presently irrelevant exceptions, the Minister must disclose to the forensic patient material relevant to the application (s 126(3)); and the Court is to hold a preliminary hearing within 28 days after the filing of the application, or within such further time as the Court may allow (s 126(4)).
I am satisfied that these pre-hearing procedures have been complied with and the defendant did not submit to the contrary.
Section 127(1) empowers the Court, when determining an application for an extension order, to make such an order (s 127(1)(a)) or to dismiss the application (s 127(1)(b)). If an extension order is made, it is not to exceed 5 years: s 128(1)(b).
In determining whether or not to make an extension order, the Court must have regard to – in addition to any other matters the Court considers relevant – the matters in ss 127(2)(a)-(i). If the Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order: s 127(3).
I next outline the considerations that I have taken into account, in accordance with s 127(2), in reaching my conclusions.
This matter typically extends to a consideration of the index offence and any criminal history: Attorney General of New South Wales v Vakapora (Preliminary) [2020] NSWSC 1701 at [38]; Attorney General for New South Wales v Mulipola (Final*)* [2021] NSWSC 1041 at [34]. It may also extend to consideration of alleged criminal conduct of the defendant that did not result in conviction for any offence (State of New South Wales v French (Final) [2017] NSWSC 1475 at [46]; State of New South Wales v Calhoun (a pseudonym) (Preliminary) [2024] NSWSC 1311 at [48]), albeit material of that kind can be considered under s 127(2)(i): Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174 at [24], [127]; State of New South Wales v Sleeman (Preliminary*)* [2018] NSWSC 562 at [14]. The plaintiff also referred to decisions in State of NSW v Tiggelen [2018] NSWSC 1399 at [102] and Attorney General for New South Wales v RL (by his tutor Ramjan) (Final) [2024] NSWSC 1580 at [11]-[12] which were broadly to the same effect.
I have considered and made findings about the index offence: see [9]-[15], above.
The plaintiff emphasised three matters relevant to the safety of the community: the defendant’s offending and alleged offending; his ongoing drug use; and the existence of the defendant’s psychiatric and neurocognitive disorders.
In relation to the defendant’s offending and alleged offending up to the time of the previous hearing, this was summarised by me in Beryalay 2022 at [39]-[43] and in the chronology attached to my reasons. I adopt that summary and have considered it in the present application. The plaintiff emphasised, based upon the defendant’s NSW Criminal History, that since the last extension order was imposed on 21 September 2022, the defendant had been charged with a range of offences – which can be summarised as follows:
7 February 2023 (H…2636): allegedly contravene an AVO (domestic), intentionally choke etc person without consent (domestic) and assault occasioning actual bodily harm (domestic). Those charges were subsequently withdrawn.
15 November 2023 (H…9835; agreed facts at [30]): the defendant was observed making various purchases with a recently stolen bank card and was driving a vehicle, his licence having been suspended, with stolen number plates. Those charges were dismissed under s 14(1)(b).
26-27 November 2023 (H…9973; H…3351; H…2918; agreed facts at [27]-[29]): the defendant was charged with a range of offences including driving a conveyance taken without the consent of the owner, driving with an illicit drug present in his blood and possessing a prohibited drug (methylamphetamine). Those charges were variously dealt with by a fine, community correction order or dismissed under s 14(1)(b).
21 February 2024 (H…2591; agreed facts at [26]): the defendant was charged with possessing a prohibited drug, driving a conveyance taken without the consent of the owner, driving whilst disqualified, engaging in a police pursuit. Those charges were dismissed under s 14(1)(b).
31 December 2024 (H…5852; agreed facts at [25]): the defendant was charged with intimidation (domestic), which is alleged to have involved the defendant at his parents’ home, without provocation, repeatedly yelling at his sister, “I am going to kill you”, while allegedly trying to “swing at her” during which she was afraid for herself and her unborn child. Those charges were dismissed under s 14(1)(b).
1 and 7 January 2025 (H…3109; agreed facts at [35]): the defendant was charged with driving a conveyance taken without the consent of the owner, unlicenced driving, unlawfully possessed number plates and property offences. These charges remain before the courts and are said to be “listed” on 12 December 2025.
9 October 2025 (H…0134; agreed facts at [36]): the defendant was charged with assault occasioning actual bodily harm (domestic), following allegations that, after the defendant and complainant had “smoked a small amount of ice over several hours”, the defendant allegedly spat in the complainant’s face and punched her multiple times in the face and jaw. The facts underpinning this alleged offending are supported by the police facts sheet. These charges remain before the courts: the defendant has entered a not guilty plea and the matter is listed for hearing on 18 March 2026.
I accept that, as the plaintiff submitted, consistent with the authorities referred to, it remains relevant to consider the conduct and behaviour of the defendant, which I have done so in connection with the matters relied upon (with the exception of those where the charges were withdrawn).
In relation to the defendant’s ongoing drug use, there is consistent evidence, which I accept, that the defendant continues to abuse illicit substances. For example, in a Sentencing Assessment Report dated 5 April 2024, the defendant reported to a community corrections officer that he had been using methamphetamines and cannabis daily for the past 18 months (exhibit DS1, tab 24, 387). The defendant has also failed drug testing, including on 30 and 31 July 2024 and 8 March 2025 (agreed facts at [40.1] and [40.5]).
In relation to the drug tests conducted on 30 August and 8, 11 and 26 September 2025, the plaintiff noted that the defendant returned positive results to amphetamine-type substances. Subsequent inquiry suggested that these may be false positives and secondary testing was ordered – which confirmed the negative results.
It is also relevant to note that the defendant conceded that “on the material … the court could not help but find that the [d]efendant currently struggles with drug usage and addiction” (defendant’s submissions at [11]). The defendant nevertheless emphasised that his current position “in relation to drug misuse” was less clear, pointing out that the more recent failed drug tests (referred to immediately above and later: see [70], below) recommended secondary testing to exclude the possibility of false positives. It may be accepted that those test results did not establish the continuing drug abuse in terms, however, given the concession made, the chronicity of his substance use disorder and the absence of any suggestion that any treatment has abated his drug abuse, I am satisfied that it continues, and is likely to subsist, absent significant treatment and intervention. The position most likely is, I consider, as expressed by Associate Professor Darjee in his report dated 1 April 2025 (‘Darjee report dated 1 April 2025’) – namely, that the defendant’s substance use disorder is long-standing “with periods of abstinence in controlled settings”: Darjee report dated 1 April 2025, par 88.
It is an agreed fact that the defendant has been diagnosed with a range of conditions and disorders, including complex post-traumatic stress disorder (‘CPTSD’), an antisocial personality disorder, a mild to moderate intellectual disability with severe memory impairments and impaired executive functioning, substance use disorder, major depressive disorder and frontal lobe syndrome (agreed facts at [11]). These conditions and disorders are important matters, significantly informing the defendant’s risk profile.
In relation to the defendant’s psychiatric and neurocognitive disorders, the plaintiff emphasised the nature and extent of them, and that it included a diagnosis of an antisocial personality disorder – a disorder that, as later explained, is thought to be (and I accept is) a significant contributor to his risk profile.
I accept that each of the matters relied upon by the plaintiff contribute to the defendant’s risk profile and, in consequence, the safety of the community. The most recent alleged offending – which occurred shortly after his release by the Tribunal – I regard as contextually significant.
Following the orders made by Wright J on 8 September 2025, the defendant was assessed by Dr Calum Smith, consultant forensic psychiatrist (who produced a report dated 15 November 2025 – ‘Smith report’) and Lisa Zipparo, consultant forensic psychologist (who produced a report dated 11 November 2025 – ‘Zipparo report’).
Dr Smith, it should be noted, assessed the defendant following orders made under s 126(5) by Walton J on 15 June 2022, and provided a report to the Court dated 3 August 2022.
The experts were accepted to be – and I accept are – in broad agreement, not only as to the defendant’s diagnosis, but also in determining that the defendant posed a risk of serious harm to others unless an extension order was made (subject to one argument made by the defendant: see [51], below). No doubt because of this, the experts were not called to give evidence, nor were they required to attend for cross-examination.
In relation to Dr Smith, the key points from his report dated 15 November 2025 may be summarised as follows:
Based upon a mental state examination, Dr Smith considered that the defendant’s “insight and judgement had significant shortfalls”: Smith report, page 17.
Dr Smith assessed the defendant’s risk of future violence using the structured professional judgement tool HCR-20 v3 and expressed the opinion that a comparison between the risk formulation expressed in his earlier report dated 3 August 2022 and the current one was notable given “how much … is unchanged”: Smith report, page 21. Dr Smith also noted that whilst the historical factors relevant to this assessment remained, the “specific updated part of the risk assessment”, dealing with what has happened since the earlier one, “continues to display similar issues with the previous risk assessment”: Smith report, page 21.
Dr Smith’s assessment was that “there remained a significant patchiness to [the defendant’s] insight and judgement” and that it was “difficult to see much change in the risk profile” since the last review: Smith report, page 22. Further, whilst usually “there is some degree of progress” – namely, amelioration of the risk factors – Dr Smith expressed the opinion that he did “not realistically think this can be argued in this case”: Smith report, page 22.
Dr Smith’s opinion was that the defendant’s “overall risk of violence and serious violence remains high, with multiple breaches of his order, which have had elements of violence and aggression, since the last hearing”: Smith report, page 22 (emphasis in original). Later, he also expressed the opinion that the defendant posed “a risk of causing serious harm to others and/or to re-offend” and that the primary contributor to his risk profile was the presence of his antisocial personality disorder, albeit that his other conditions – intellectual disability, CPTSD and substance use disorder – all contributed to make “the presentation as a whole, and therefore [make] [the defendant’s] progress problematic”: Smith report, pages 23-24.
Dr Smith attempted to quantify the likelihood of the harm occurring, considering it to be “difficult to put a specific number on exactly how elevated the risk of [harm] would be”, but assessed it as “high in [his] risk formulation. This is based on the past history”, as well as the risk assessments that he (and others) had performed.
Dr Smith noted that the defendant’s conditions – that is, his intellectual disability, CPTSD and substance use disorder – contributed to the defendant’s risk profile, and that whilst the defendant had been receiving treatment for them “the progress he has made is limited. Therefore, these risk[] factors continue to be present, and relevant”: Smith report, page 25. Later, Dr Smith expressed the opinion that the defendant’s “risk is chronic”: Smith report, page 26.
Dr Smith recommended continuation of the defendant’s status as a forensic patient given what he considered to be “the risk of serious harm by violent offence” and that there had been “significant difficulties managing him in the community since his last extension”: Smith report, page 26. Further, Dr Smith considered that the defendant was “not even established in the community, let alone safely” and that there was no other, less restrictive, option available at present: Smith report, pages 26-27.
In terms of the duration of any extension order made, Dr Smith considered that, given “how complex and longstanding the issues are”, it was not likely the defendant would reach the stage “where he could not be managed without forensic status within even five years”, but, nevertheless, expressed the opinion that three years was appropriate: Smith report, page 29.
In relation to Ms Zipparo, the key points from her report dated 11 November 2025 may be summarised as follows:
Ms Zipparo assessed the defendant’s risk of future violence using the structured professional judgement tool HCR-20 v3 and assessed that his “overall score for risk of future violent reoffending indicated a [h]igh risk of reoffending based on existing risk factors”: Zipparo report, page 11.
Ms Zipparo noted that the defendant “shows ongoing abuse of methamphetamine which is known to contribute to aggressive behaviour” and that he continued “to show a limited capacity to accept responsibility for his offending and shows limited empathy for his victims, consistent with Antisocial personality traits”: Zipparo report, page 16. She considered that these “personality vulnerabilities … remain a pertinent and difficult to treat clinical risk factor to reoffending”: Zipparo report, page 16.
In terms of the defendant’s risk profile, Ms Zipparo considered that the defendant would continue “to pose a serious risk of harm to others if he cease[d] to be a forensic patient. The risks are underpinned by clinical risk factors including significant and ongoing emotional dysregulation and regular substance abuse. The risk of this harm occurring is [h]igh”: Zipparo report, page 17.
Ms Zipparo recommended the continuation of the defendant’s status as a forensic patient, expressing the opinion that it would provide “the most effective means of ensuring that [he] will comply with recommended treatments … which, if successful, should reduce his risks of reoffending in the long term”: Zipparo report, page 18. She did not think that there were any other less restrictive means of managing his risk: Zipparo report, page 18.
In terms of the duration of any extension order recommended, Ms Zipparo considered that, as the defendant’s clinical risk factors required “long term treatment to yield positive change” – for example, trauma therapy required a minimum of three years in order to yield therapeutic benefits – “an extension period of two to three years is recommended”: Zipparo report, page 19.
The defendant, whilst not seeking to directly challenge the opinions of each of the Court appointed experts nevertheless submitted that the Court should approach those opinions “carefully” given the outcome of many of the charges (defendant’s submissions at [10]-[12]). I accept, to a point, the need to approach the defendant’s involvement in the criminal justice system with a degree of caution. I do not, however, think that the use of the defendant’s criminal background (including the alleged offending) materially undercuts the opinion of either expert given the background – including the consistent and long-term views expressed by multiple experts about the defendant’s risk profile. In any event, the material remains relevant, and capable of use – consistent with the authorities referred to in [36], above.
The plaintiff relied upon the opinions expressed by the Court appointed experts in relation to the defendant’s risk profile.
The plaintiff’s submissions (Annexure A) referred to the reports secured for use as part of the earlier proceedings – namely, the:
report from Mr Patrick Sheehan, forensic psychologist, dated 31 July 2022;
report from Dr Calum Smith dated 3 August 2022;
reports from Dr Richard Furst, forensic psychiatrist, dated 28 April 2019 and 10 February 2022; and
report from Dr Kerri Eagle, forensic psychiatrist, dated 20 April 2019.
No party made any specific submissions about content of these reports.
In Beryalay 2022, I summarised the key findings and conclusions expressed by the authors of those reports: at [53] (Mr Sheehan); at [54] (Dr Smith’s report); at [55]-[57] (Dr Furst’s reports); and at [67]-[70] (Dr Eagle). I have not, in the interests of economy, sought to do so again (I merely adopt what I there said), but have considered the reports again in the present application.
A risk assessment report from Associate Professor Rajan Darjee dated 1 April 2025 and a supplementary report 12 April 2025 (‘Darjee report dated 12 April 2025’) was secured for the purposes of the application.
In relation to his report dated 1 April 2025, Associate Professor Darjee diagnosed the defendant as suffering from an intellectual disability, executive dysfunction (or frontal lobe syndrome), ADHD, CPTSD, substance use disorder and assessed that the criteria were met for the diagnosis of antisocial personality disorder: Darjee report dated 1 April 2025, par 55. He assessed the defendant’s risk of future violence using the structured professional judgement tool HCR-20 v3, expressing the opinion that, overall, the defendant had a “very high level of historical … risk factors”, his dynamic risk factors were “a little reduced compared to when he has been at his most volatile and risky” and his management factors “are such that risk is barely contained as a forensic patient currently, and would not be contained if he was no longer a forensic patient”: Darjee report dated 1 April 2025, par 67.
Associate Professor Darjee expressed the opinion that the defendant posed a high risk of serious harm if the defendant was not a forensic patient but that, even if he were to remain one, the risk would be less imminent and the defendant would be less likely to cause serious harm: Darjee report dated 1 April 2025, par 77. He considered that the defendant required a high level of risk management to prevent further violent offending, that there were no less restrictive means to adequately manage his risk other than through a forensic order and that he should remain a forensic patient, supporting a three-year extension order: Darjee report dated 1 April 2025, pars 78, 84 and 94.
Associate Professor Darjee’s report dated 12 April 2025 expanded upon his reasons for recommending a three-year extension order. He also expanded upon the defendant’s risk profile, expressing the following opinions:
In terms of the risk of further serious offending, the defendant’s “risk is a chronic one, and recent behaviour, in 2024 and 2025, shows that this risk is ongoing. There has not been a significant change in the level of risk he poses since he was made a forensic patient” and that the defendant’s underlying factors had not been ameliorated with time, or through treatment: Darjee report dated 12 April 2025, par 7.
In the absence of any “marked change in how he is treated and managed”, it is likely that in the future “the risk will be the same as it is now”: Darjee report dated 12 April 2025, par 7.
The defendant’s management “over the last four to five years has not been likely to ameliorate the risk he poses” and that the defendant had not received “responsive or effective treatment or management either in prison or in hospital. He has not received appropriate and comprehensive forensic disability supports or treatment in the community”: Darjee report dated 12 April 2025, par 8.
The plaintiff’s submissions (Annexure A) referred to the report secured under s 125(b) for the previous hearings – namely, the report from Dr Richard Furst dated 10 February 2022 and a report from Caroline Hare, psychologist, dated 23 November 2018.
Dr Furst’s report has been earlier addressed.
I summarised the key findings and conclusions expressed by Ms Hare in her report dated 23 November 2018 in Beryalay 2022 at [64]-[66]. I will not, in the interests of economy, do so again (I merely adopt what I there said), but I have considered the report again in the present application.
Aside from referring to aspects of the report from Associate Professor Darjee, principally, as I have summarised, in connection with the defendant’s risk profile, no party made any submissions about the opinions expressed by Dr Furst and Ms Hare.
The parties made no submissions about any report of this kind, albeit they referred to the agreed facts, which contained summaries of them.
Neither party sought findings about what was contained – by opinion or otherwise – within any of these reports.
The plaintiff noted that the defendant had, since the last extension order was imposed, cycled between detention at Liverpool Hospital, correctional centres (often when bail refused) and conditional release.
On 16 March 2023, the Tribunal ordered that the defendant be apprehended and detained at Liverpool Hospital (agreed facts at [38]). On 28 July 2023, the Tribunal ordered that the defendant remain detained at Liverpool Hospital (agreed facts at [37.11]). By order made on 8 September 2023, the Tribunal reinstated the defendant’s conditional release (agreed facts at [37.10]).
The Tribunal ordered the defendant’s detention at Liverpool Hospital for periods during 2024 but, on several occasions, whilst on leave or escorted day leave, the defendant absconded (agreed facts at [37.6]-[37.8]).
On 31 January 2025, the Tribunal ordered the defendant’s conditional release be reinstated, effective no earlier than 28 February 2025. The Tribunal identified that any relapse into drug use and criminality had the potential for serious harm to others and therefore a low threshold for breach would apply (agreed facts at [37.5]). On 14 February 2025, the Tribunal reviewed the defendant as an apprehended person and ordered his detention at Liverpool Hospital, with access to escorted day leave on hospital grounds only and supervised day leave for up to seven hours per day (agreed facts at [37.4]).
On 8 July 2025, the Tribunal heard an application for reinstatement of the defendant’s conditional release but, on 9 July 2025, made orders adjourning that review for three months and granting unsupervised overnight leave to the defendant’s parents’ house (agreed facts at [37.3]). The Tribunal also permitted other forms of restricted leave. It also made the following determinations and findings: first, that the defendant had a mental health impairment, namely “intellectual disability, complex PTSD, antisocial personality disorder, severe substance abuse disorder and major depressive disorder”; secondly, that the Tribunal considered that care, treatment or control of the defendant was necessary for his “own protection from serious harm or/and the protection of others from serious harm”; and, thirdly, that the defendant’s release was subject to the conditions made by them.
On 8 October 2025, the Tribunal ordered the defendant’s conditional release from Liverpool Hospital to live at his parents’ address (agreed facts at [37.2]). The order was subject to a suite of conditions, made on 10 October 2025, including that the defendant was to accept Dr Carollyne Youssef as his treating psychologist and to attend upon her, as advised by his case manager or Dr Youssef (condition 13); that the defendant was not to take any illegal drugs (condition 15); that the defendant was to submit to drug testing from time to time (condition 17); and that the defendant was not to engage in unlawful conduct or “conduct that could give rise to a reasonable apprehension that the safety of himself or of any member of the public is, or could be, seriously endangered” (condition 25).
On 13 October 2025, the Tribunal made an order for the defendant's apprehension and detention at Liverpool Hospital in light of information regarding the recent assault charge (H…0134: see [39](7), above; agreed facts at [37.1]). On that day, police contacted the Community Safety Program informing them that the defendant had been involved “in a domestic violence incident on the evening of 9 October 2025” and that police were “actively investigating the incident”. The basis for the order was the Tribunal being satisfied that the defendant had breached condition 25.
The plaintiff’s submissions, which cross-reference the plaintiff’s submissions made at the preliminary hearing, noted that a number of reports of this kind had been included in the evidence and it was not proposed to summarise, or to refer to, those reports, other than as follows.
The plaintiff referred to several incident reports indicating that the defendant exhibited aggression in the presence of the plaintiff’s NDIS providers (or directed towards them) on 1 and 6 June 2025 and 2 July 2025.
The plaintiff’s submissions also referred to, but did not make any particular submissions about, some material in September 2025, as well as a report from Liverpool Hospital dated 2 October 2025 provided to the Tribunal – wherein the treating team recommended that the defendant be conditionally released, noting his stability and the lack of rehabilitation which could be offered to him whilst in an inpatient mental health unit (plaintiff’s submissions at [62]).
Neither party sought any particular finding about this consideration.
During the sentencing hearing on 28 March 2014 for the index offence, his Honour Judge Bennett SC found the defendant to be “significantly impaired” and “a mentally ill person”. His Honour further remarked: “… it does seem to me that there is little I can do to stop him from committing crime[s] which seem to be ever increasing in [their] seriousness”.
Bennett SC DCJ accepted the Crown’s submission that the defendant’s antecedents:
“… reflect ongoing and substantial problematic behaviour in the face of efforts by the Court to deal with matters so as to assist him, even in cases where he had breached conditional liberty, extending it once again rather than impose punishment upon him. Moreover, he was living in a controlled environment at the time of the commission of this offence. His offending does not confine itself to the discharge of the weapon on this occasion; he beforehand had possession of the weapon and the ammunition with which to discharge it …”
The findings and conclusions of Wright J, in connection with the defendant’s criminal history at that time, accord with the views expressed by Bennett SC DCJ.
In relation to the extension order made by Wright J on 1 July 2019, the plaintiff emphasised (plaintiff’s submissions at [78]-[80]):
Wright J found that the defendant’s intellectual disability may have played a part in his offending and his lack of ability to understand the consequences of his actions, thereby increasing the risk he posed: Beryalay 2019 at [40].
Wright J, who accepted the opinions of the Court appointed experts and the evidence from Ms Hare, found that the likelihood of reoffending if not kept on an extension order and the likely gravity of the consequences of that reoffending led to the “inevitable” conclusion that the defendant posed an unacceptable risk of causing serious harm to others if not deemed a forensic patient: Beryalay 2019 at [91].
In relation to the extension order I made on 21 September 2022, the plaintiff emphasised (plaintiff’s submissions at [73]-[77]):
The finding made that the defendant’s intellectual/cognitive impairments and psychiatric/psychological disorders were such that the defendant lacked the appropriate internal mechanisms to regulate his conduct: Beryalay 2022 at [94]-[95].
The finding that, not only had there been no favourable change from the assessment of the defendant’s risk made by Bennett SC DCJ when imposing the limiting term in 2014, the defendant’s risk profile, over time, was suggestive of deterioration and his risk may have increased over time: Beryalay 2022 at [96]-[97].
The acceptance of the Court appointed experts’ characterisation of the defendant’s risk – namely, that he posed a risk to himself, and to others, through acts of aggression, weapons use, driving or breaking into occupied residences and that he presented with a high risk of violence, especially in the absence of an extension order: Beryalay 2022 at [99].
That there was “no doubt” that, unless the defendant’s status as a forensic patient was extended, there was an unacceptable risk of him causing serious harm and that risk could not be adequately managed by other less restrictive means: Beryalay 2022 at [92].
The plaintiff submitted that there is some cause for optimism that the defendant will not have to remain a forensic patient for many years to come. Recently, it appears – from around June/July 2025 – that the defendant has been seeing a clinical and forensic psychologist (Dr Carollyne Youssef, as ordered by the Tribunal: see [70], above) every three weeks as well as engaging in other activities, with a support network around him. As the parties confirmed during submissions, there was not, however, any material available relating to that treatment (including its actual frequency), nor was there a report from Dr Youssef in evidence. Further, the extent to which the defendant “engaged” in a pro-social way was not the subject of any detailed evidence that would permit precise findings to be made about such engagement.
Whilst I accept that the matters referred to by the plaintiff are small, but positive, steps (subject to the caveats expressed above), given the defendant’s background generally and the opinion from Dr Smith about the brittleness of the defendant’s personality and the complex and long-standing issues that are present (which I accept), my assessment is that the defendant’s risk profile is unlikely to materially change in the foreseeable future.
Having regard to the matters under s 127(2) referred to above, I am satisfied to a high degree of probability that, unless the defendant’s status as a forensic patient is extended, there is an unacceptable risk of him causing serious harm and, further, that that risk cannot be adequately managed by other less restrictive means. Accordingly, I am satisfied that the terms of s 122(1) are met.
In arriving at that conclusion (and state of satisfaction), I am particularly mindful of the following matters.
First, the defendant’s risk of future violence was assessed by Dr Smith, Ms Zipparo and Associate Professor Darjee using the structured professional judgement tool HCR-20 v3 and, although using slightly different language, each arrived at substantially the same assessment: Dr Smith’s assessment was that the “overall risk of violence and serious violence remains high” (emphasis in original); Ms Zipparo’s assessment was that the defendant’s “overall score for risk of future violent reoffending indicated a [h]igh risk of reoffending based on existing risk factors”; and Associate Professor Darjee expressed the opinion that overall, the defendant had a “very high level of historical … risk factors”, his dynamic risk factors were “a little reduced compared to when he ha[d] been at his most volatile and risky” and his management factors were “such that risk is barely contained as a forensic patient currently, and would not be contained if he was no longer a forensic patient”: Darjee report dated 1 April 2025, par 67.
I accept these opinions. In doing so, it is worth emphasising that I am satisfied as to the value of an assessment using that structured professional judgement instrument when assessing the terms of s 122(1), particularly given Associate Professor Darjee stated that the risk assessment instrument is one of the, if not the most, commonly used violence risk assessment instruments across Australia.
Secondly, I accept the overall assessments made by Dr Smith, Ms Zipparo and Associate Professor Darjee about the defendant’s risk profile: in the case of Dr Smith, relevantly, that the defendant continued to pose a risk of causing serious harm to others and/or to reoffend – a risk which he assessed as being high (Smith report, pages 23 and 25); in the case of Ms Zipparo, relevantly, that the defendant continued to pose a serious risk of harm to others and that the risk of harm occurring was high (Zipparo report, page 17); and, in the case of Associate Professor Darjee, that the defendant, overall, poses a high risk of serious harm which would happen at any time if he was not a forensic patient (Darjee report dated 1 April 2025, par 77). I note that the defendant expressly accepted that “on the material … the [C]ourt would find that the [d]efendant, at this time, poses an unacceptable risk of causing serious harm to others if no extension order is made” (defendant’s submissions at [38], [41]). It should be noted that the opinions expressed by the experts align with the findings of the Tribunal made on 8 July 2025.
Thirdly, my assessment (and finding) is that the defendant’s risk profile is essentially a chronic and ongoing one and, further, I do not accept there has been any material alteration in it since the earlier extension orders were made. That was the opinion from Dr Smith, which I accept. Dr Smith was well-placed to express an opinion on each of those matters, given he was a Court appointed expert who assessed the defendant for the purposes of the 2022 application: he considered it “notable” that his risk formulation, expressed in his earlier report, was largely “unchanged" and that it was “difficult to see much change in the risk profile” since he last reviewed the defendant (Smith report, pages 21-22). The lack of alteration in the defendant’s risk profile informed why Dr Smith considered it to be “clear that [the defendant’s] risk is chronic" (Smith report, page 26). Associate Professor Darjee expressed a similar opinion, describing the risk of further serious offending as a “chronic one” which is ongoing (Darjee report dated 12 April 2025, par 7).
Fourthly, I regard as significant the fact that the defendant has not been, for whatever reason, subjected to sustained periods of treatment. That led Associate Professor Darjee to express the opinion that the defendant’s management “over the last four to five years has not been likely to ameliorate the risk he poses. He has not had responsive or effective treatment or management either in prison or in hospital. He has not received appropriate and comprehensive forensic disability supports or treatment in the community” (Darjee report dated 12 April 2025, par 8).
Fifthly, the defendant’s psychiatric and neurocognitive conditions – which significantly inform his risk of acting impulsively, violently and dangerously – are compounded by his abuse of illicit substances. As Associate Professor Darjee observed, they are “made worse” by that abuse and preventing substance misuse was an “important intervention”: Darjee report dated 1 April 2025, pars 55 and 82.
Sixthly, Dr Smith, Ms Zipparo and Associate Professor Darjee each recommended the continuation of the defendant’s status as a forensic patient and expressed the opinions, which I accept, that the risk cannot be adequately managed by other less restrictive means. The various considerations amply bear out, and support, their assessments. I note that the defendant expressly accepted that “only a further forensic order can adequately manage the risk posed by the [d]efendant” and that there “is no less restrictive means available other than continuing [his] forensic status which could adequately manage [his] risk” (defendant submissions at [40], [41]).
As provided by s 128(1)(b), the period of an extension order cannot exceed five years. In this case, the plaintiff seeks an extension order for a period of three years. The defendant submitted that there should be a shorter period to the extension order, arguing that it should be two years, not three: he argued that that would give him hope that he may, one day, progress beyond being subject to orders and, importantly, permit the Court “to keep proper watch on the [d]efendant’s progress in a more regular and meaningful way” (defendant’s submissions at [43]). The defendant also submitted that the fact that he had engaged in treatment with Dr Youssef and social activities were also supportive of an order of two, rather than three, years.
I do not accept the defendant’s submissions.
In relation to Dr Youssef, the difficulty with the submission is that, as I have earlier noted, there is no evidence about the nature and extent of the treatment the defendant has had with her. In any event, I accept the opinions and reasoning of Dr Smith and Associate Professor Darjee on this issue – in short, that the defendant’s status as a forensic patient should be for three years.
Each, when expressing their opinion as to the length of any extension of the defendant’s status, were mindful of the need to give the defendant some hope, and instil optimism, that his status may one day alter – which is why they thought that the duration should be three years and not five years. Further, each expressed the opinion, which I accept, that, given the defendant’s ongoing difficulties with his management over the last three years, it was unlikely that the defendant would progress in the next five years to being managed in a less restrictive way. I regard their explanations for their opinions as entirely sound.
Accordingly, I make the following orders:
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 10 December 2025.
Direct that the Registrar of the Court notify the Tribunal of the making of the above extension order.
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Minor changes to coversheet
Attorney General of New South Wales
Beryalay