Attorney General of New South Wales v BF (a pseudonym) by his tutor Ashley Limbury

Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 69, 72, 78, 81, 122, 124, 125, 126, 127, 130, 131
Mental Health (Forensic Provisions) Act 1900 (NSW)

Cases Cited: Attorney General of New South Wales v DB (a pseudonym) (by his tutor Limbury) (Preliminary) [2025] NSWSC 198
State of New South Wales v AB (a pseudonym) (bht Ramjan) (Preliminary) [2025] NSWSC 1357
Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928
Attorney-General of New South Wales v Kereopa [2017] NSWSC 411
Cornwall v Attorney General for New South Wales [2007] NSWCA 374
Attorney General of New South Wales v SK (a pseudonym) (by her tutor Dr Katherine Pavlidis Johnson) (Final) [2025] NSWSC 1173
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
Attorney General of New South Wales v AB (a pseudonym) [2026] NSWSC 79
New South Wales v Simcock (Final) [2016] NSWSC 1805
Attorney General of New South Wales v Randall (Preliminary) [2023] NSWSC 226
Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288
Attorney General for New South Wales v Haines (by his tutor Ramjan) (No 2) (2025) 118 NSWLR 450; [2025] NSWCA 248

Texts Cited: Nil

Category: Principal judgment

Parties: Attorney General of New South Wales (Plaintiff)
BF (a pseudonym) by his tutor Ashley Limbury
(Defendant)

Representation: Counsel:
B J Dean (Plaintiff)
D Bhutani (Defendant)
Solicitors:
Crown Solicitors (Plaintiff)
Legal Aid of New South Wales (Defendant)

File Number(s): 2026/329251

Publication restriction: Nil

JUDGMENT

1. The State seeks orders under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) extending BF’s status as a forensic patient for a period of two years. He having been found in 2019 in the District Court not fit to stand trial for sexual offences alleged to have been committed between 2014 and 2018 against a younger child, under the then *Mental Health (*Forensic Provisions) Act 1900 (NSW). He was referred to the Mental Health Review Tribunal which in September 2019 concluded that he was likely to remain unfit indefinitely.

2. In March 2020 the alleged offences were found to have been established beyond reasonable doubt, at a special hearing in the District Court. A conviction was recorded and BF was directed to enter a community correction order, subject to specified conditions.

3. In 2021 he was committed to stand trial on other offences alleged to have been committed in 2020 against another client of Northcott disability services. In 2023 the charges pursued were found at a special hearing to have been satisfied beyond reasonable doubt. Qualified findings were made as to his guilt and he was sentenced to limiting terms and again referred to the Tribunal.

4. In 2023 the Tribunal made orders under ss 78 and 81 of the Act, being satisfied about BF’s cognitive impairment and that he remained unfit. He remained in custody as a result, until 2026.

5. In December 2025 the Tribunal found that BF remained unfit to be tried, but ordered his conditional release. With a further such order made in May 2026, when he was evicted from his supported independent living accommodation. As a result, he now resides in other accommodation.

6. In 2021 he was also charged with having failed to comply with reporting obligations, and in 2022 an order prohibiting him from communicating with any person under 16 years of age was made under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). It expires in February 2027.

7. In October 2024 the NSW Civil and Administrative Tribunal made guardianship and financial management orders in relation to BF for a period of 2 years, which still remain in force. In these proceedings, Mr Limbury acts as his tutor.

8. This judgment deals with the orders sought at the preliminary hearing under ss 126, 130 and 131 of the Act, for the appointment of qualified persons to examine BF and provide reports to the Court about the results of the examination, and orders directing him to attend them.

9. BF consented to those orders and at the hearing, the parties addressed their written submissions, which explained why the Court could be satisfied that they should be made. I announced at the hearing that I was persuaded by the cases advanced that the agreed orders should be made.

10. The reasons are as follows.

The parties’ cases

11. There was no issue:

12. about the operation of the statutory regime and the relevant principles, which were explained in Attorney General of New South Wales v DB (a pseudonym) (by his tutor Limbury) (Preliminary) [2025] NSWSC 198 at [10]-[34];

13. that the application properly enlivened the Court’s jurisdiction under Part 6 of the Act, BF being a “forensic patient” as defined in s 72(1). I am satisfied that was established by the evidence;

14. what the evidence established; and

15. that there will be considerable advantage to the Court making its final decision with the benefit of the proposed reports, as Dhanji J concluded in: State of New South Wales v AB (a pseudonym) (bht Ramjan) (Preliminary) [2025] NSWSC 1357 at [69].

16. BF also urged that the proposed orders were for his benefit, given his current situation. He relying on his compliance with the conditions of his release since January 2026, evidenced by a May 2026 Community Safety Program report to the Tribunal. It reflecting his progress and reduction in unhelpful attitudes which had endorsed problematic sexualised behaviour, attributed to his current model of support and intervention.

17. BF contends that his recent behaviour has not been of concern and that his NDIS plan, reviewed in May 2026, with resulting increased funding for behaviour support, improved daily living skills and support coordination, was relevant.

18. Although the State pointed to what must be accepted are concerning answers BF provided to a questionnaire, which helped establish the need for the orders pursued in these proceedings.

The requirements of the Mental Health and Cognitive Impairment Forensic Provisions Act

15. The making of interim extension orders is dealt with in s 130 of the Act, which permits the Court to make an order if satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. Section 126 specifies the orders then to be made.

16. In considering the application, the objects specified in s 69 must be borne in mind. They are:

(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 have 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 acknowledge the harm done to victims.

17. It is s 124 which regulates the making of an application for extension orders. There is no question that it and the requirements of ss 125 and 126 were met, given the orders which presently apply to BF and steps which the State has pursued to seek an interim extension order, as s 130 permits and the evidence which has been led.

18. The joint memorandum of facts and issues disclosed that there was no issue between the parties about the relevant facts or law. BF is a now 25 year old Aboriginal man who has been a forensic patient since August 2023, who has been diagnosed to have a mild intellectual disability, specific learning disorder and attention deficit hyperactivity disorder, as well as a serious, albeit limited, criminal history.

19. He now lives in the community but continues to be subject to orders and reporting obligations under the Child Protection (Offenders Prohibition Orders) Act, as well as guardianship and financial management orders made by the NSW Trustee and Guardian.

20. Extension orders may be made if the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order: s 126(5) of the Act. Section 122(1) requiring the Court to “be 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.

21. Although 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 he or she poses an unacceptable risk of causing serious harm to others: s 122(2).

22. “Serious harm” is not defined. It is settled that it can include both physical and psychological harm. Physical harm not needing to be harm to the level of “grievous bodily harm”, defined in the criminal law as really serious bodily harm. But something more than what would satisfy the minimum threshold for “actual bodily harm” under the criminal law. And psychological harm requiring something more than emotions such as fear or panic: Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 at [16], following Attorney-General of New South Wales v Kereopa [2017] NSWSC 411.

23. The phrase “a high degree of probability” is also not defined. But it is settled that the section imposes a higher standard than the civil standard, which is lower than the criminal standard: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21], applied in Attorney General of New South Wales v SK (a pseudonym) (by her tutor Dr Katherine Pavlidis Johnson) (Final) [2025] NSWSC 1173 at [14].

24. The term “unacceptable risk” is also not defined, but has the meaning discussed in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57, in the context of the Crimes (High Risk Offenders) Ac**t 2006 (NSW): Attorney General of New South Wales v AB (a pseudonym) [2026] NSWSC 79. Its assessment must thus be undertaken in the context of making the community secure from harm, as opposed to guaranteeing its safety and protection: AB at [27], applying Lynn at [61].

25. This assessment requires consideration to be given to both the likelihood of the risk in question eventuating and the gravity of its potential consequences: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71], cited in Attorney General of New South Wales v Randall (Preliminary) [2023] NSWSC 226 at [23].

26. “Less restrictive means” is also not defined. Whether the unacceptable risk the forensic patient poses can be adequately managed by such means must be approached on the basis 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].

27. This cannot be established by the mere existence of an alternative means available which “could” manage the risk posed by the respondent: Attorney General for New South Wales v Haines (by his tutor Ramjan) (No 2) (2025) 118 NSWLR 450; [2025] NSWCA 248 at [88]. It being practical outcomes, not theoretical possibilities which protecting safety raises for consideration. With the result that the efficacy and reliability of a measure cannot be ignored. What is to be assessed and adjudged being “the risk of the respondent causing serious harm to others and whether the appellant has proved that it cannot (not could not) be ‘adequately managed by other less restrictive means’”: at [88].

28. The matters which the Court must have regard to are those specified in s 127(2):

(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.

Why the proposed orders must be made

29. Given the statutory requirements, the evidence led, the orders proposed and the common position which the parties arrived at, I am satisfied not only that the Court does have the power to make those orders, but they must be exercised. Section 126(5) requiring them to be made if the Court is satisfied that the matters alleged in the supporting documentation, if proved, would justify the making of an order. There being no question that both limbs of s 122(1) have been satisfied.

30. The matters relied on by the State were not in issue and, I am satisfied, provide a proper basis for the required satisfaction, to a high degree of probability, that BF does pose an unacceptable risk of causing serious harm to others, if he ceases to be a forensic patient. And that this risk cannot be adequately managed by other less restrictive means than those proposed.

31. Given BF’s history, diagnoses and psychiatric profile, even though his criminal record is not extensive, the sexual nature of his offending and his serious violation of others’ safety and bodily autonomy, particularly that of vulnerable victims, leaves these conclusions unavoidable. The joint memorandum revealing that his victims include children, as well as a vulnerable person suffering intellectual disability and cognitive impairment.

32. BF’s history accords with his psychologist assessments. They shed light on BF’s intellectual functioning, which in 2019 was assessed as falling in the extremely low range, equal to or better than only 1% of the population. Then identified to include his defects in verbal reasoning, problem solving, abstract thinking, learning and judgment, in adaptive functioning, failure to meet developmental standards for independence, social reasonability, communication, independent living, self-care and community living.

33. BF’s 2022 assessments reflected that he continued to present with mild intellectual disability and could only give vague and basic narratives. Having only basic language skills, speech impairment and restricted emotions. As well as defects in concentration, attention, planning, word fluency and orientation. His cognitive defects were then considered to be persistent, enduring and not amendable to treatment. It was expected that he would never be able to live or function independently, without support.

34. In the 2026 risk assessment of the neuropsychologist Ms Zipparo, BF’s intellectual disability was further explained. As was a specific learning disorder, indicating that he suffers impairment over and above that expected for his level of intellectual impairment. She identified significant risk factors for BF causing serious harm to others, because of his poor learning capacity, increased impulsivity and mental inflexibility, with resulting impulsive behaviour which was entrenched. Even though he has no mental illness.

35. BF’s risk rating was then assessed to be high, utilising the Static-99R tool, used to estimate future risk, which is based on statistics and historical factors. That resulting in him being assessed to fall into a high risk of sexual offending. Such offenders having a recidivist rate of 14-25% after 5 years. Given the limitation of such tools and in order to provide a comprehensive analysis, Ms Zipparo also used the ARMIDILO-S tool. It being designed specifically for those with borderline or mild intellectual impartment, who have offended sexually or otherwise.

36. BF’s history, treatment, triggers, insight, impulsivity and poor inhibitory control resulted in conclusions which included that obtaining employment and a structured routine with limited idle time would assist BF, whose past offending had been situational and opportunistic. This supported continuation of his forensic patient situational and resulting supervision, to enable new systems and supports to be instated and assessed, to support risk reduction.

37. While BF had participated in work in custody, he has never done so in the community and has limited independent living skills. He has family support, but other family members also have significant disabilities.

38. Other earlier assessments in 2023, 2024 and 2025 all accorded with BF having support needs which appear to be continuing. He is now in receipt of the disability support pension and continues to have an increased NDIS plan.

39. BF’s disabilities also accord with his past breaches of orders which bind him. Although they may reflect misunderstanding or an inability to understand, rather than BF’s deliberate acts and omissions. In 2026 his intellectual disability having been assessed to fall into the mild to severe range of severity.

40. This assessment accorded with the 2025 assessment of the forensic psychologist Mr Gullotta, who had used the Static-99R tool, noting that future offending cannot be predicted with certainty. This assessment identified BF as posing a well above average risk of reoffending given his identified dynamic risk factors. 14.9% of those with his score reoffending within one year and 26.8% within 5 years of release.

41. The STABLE-2007 tool and ARMIDILO-S tool had also been used. Mr Gullotta concluded that BF presented several enduring and dynamic risk factors that increased his likelihood of future sexual offending, even though there were some protective factors. With the result that a well-structured and coordinated environment would reduce his risk.

42. The Tribunal most recently reviewed BF in December 2025. It found him then still to be unfit to be tried, but he was released on conditions. Him no longer being a forensic patient after November 2026, was then raised as a possibility. There have also been concerns about behaviour which BF has denied, but resulted in his eviction from his accommodation.

43. Ms Zipparo considered the least restrictive form of managing the defendant’s risks was that his forensic patient status continue, given the routines and supervision he continued to require. That accorded with views Mr Gullotta had expressed. Current mechanisms of his supervision otherwise being limited. He also considering that without the Tribunal’s ongoing compulsory oversight, the gap between BF’s supports and risks would be significant and his risk of harm to others high.

44. In submissions, BF’s counsel pointed to some indications of improvement in BF’s situation, but also his continuing difficulty in distinguishing support he receives from the NDIS and that which flows from his supervision. It being the holistic support to which he had been responding well, as well as the agencies involved in their provision. BF’s consent to the orders sought reflects his desire not to lose the support that results.

45. On all of that evidence, considered in light of the requirements of the legislative scheme I have explained, I am well satisfied that the Court must exercise the power to make the orders sought. In order that consideration may be given to whether a further extension order should be made.

Orders

46. For these reasons I now make the agreed orders:

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

(a) appointing two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and (b) directing the Defendant to attend those examinations.

2. An order pursuant to ss 130 and 131 of the Act, that the Defendant be subject to an interim order for the extension of his status as a forensic patient commencing upon the expiry of his limiting term on 10 November 2026, for a period of 3 months thereafter.
3. An order that the Defendant shall be identified in relation to these proceedings by the pseudonym “BF”.

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