Attorney General of New South Wales v DB (a pseudonym) (by his tutor Limbury) (Preliminary)

Legislation Cited: Crimes Act 1900 (NSW), ss 33, 61M, 66C
Crimes (High Risk Offenders) Act 2006 (NSW)
Guardianship Act 1987 (NSW)
Mental Health Act 2007 (NSW), Pt 3, Ch 3, ss 14, 37, 38, 41, 42, 43, 51, 53, 54, 58, 81
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Pts 5 and 6, ss 69, 75, 78, 81, 83, 84, 85, 99, 109, 121, 122, 124, 125, 126, 127, 128, 130, 131
Mental Health (Forensic Provisions) Act 1990 (NSW), s 33 (repealed)

Cases Cited: Attorney General for New South Wales v Kapeen bht Jennifer Thompson (Preliminary) [2018] NSWSC 619
Attorney General for New South Wales v Tillman [2007] NSWCA 119
Attorney General for NSW v DB (Final) [2023] NSWSC 250
Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107
Attorney-General of New South Wales v Kereopa [2017] NSWSC 411
Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928
Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288
Cornwall v. Attorney General for New South Wales [2007] NSWCA 374
Lynn v State of New South Wales [2016] NSWCA 57
Minister for Mental Health v Paciocco [2017] NSWSC 4
Re J (No 2) [2011] NSWSC 1224
State of New South Wales v Simcock (Final) [2016] NSWSC 1805

Category: Principal judgment

Parties: Attorney General of New South Wales (Plaintiff)
DB (by his tutor Limbury) (Defendant)

Representation: Counsel:
Mr J Wilcox (Plaintiff)
Mr B Fogarty (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid Commission of NSW (Defendant)

File Number(s): 2024/00393134

Publication restriction: Nil.

JUDGMENT

1. By summons filed on 23 October 2024, the Attorney General of New South Wales (“the Attorney”) seeks orders in respect of the defendant pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (“the Act”) that he be subject to an order for the extension of his status as a forensic patient for a period of five years.

2. The defendant is a 57-year-old Indigenous man who suffers from treatment resistant schizophrenia and has cognitive skills which place him in the bottom one percent on most markers. In June 2018, he was arrested for sexually assaulting his 10-year-old niece and stabbing his brother in the abdomen and the neck. He has previously set fire to a family home.

3. On 2 June 2020, the defendant became a forensic patient when Jeffreys DCJ found him unfit to be tried and referred the matter to the Mental Health Review Tribunal (“the MHRT” or “Tribunal”). He was found unfit to be tried on 6 August 2020 and again on 19 February 2021. A special hearing proceeded before Tupman DCJ and on 24 March 2021 verdicts of guilty were entered in relation to offences of sexual intercourse with a child aged 10-14 and indecent assault of a child aged 10-16. On 25 March 2021, a verdict of guilty was entered in respect of an offence of wounding with intent to cause grievous bodily harm.

4. On 16 April 2021, Tupman DCJ imposed an effective limiting term of 4 years and 6 months commencing on 29 June 2018 and expiring on 28 December 2022. The defendant was transferred to the Forensic Hospital on or around 25 January 2022.

5. Prior to the expiration of his limiting term, the Attorney sought an extension of the defendant’s status as a forensic patient for a period of five years. On 21 March 2023, Rothman J made the order sought but only for a period of two years: Attorney General for NSW v DB (Final) [2023] NSWSC 250. That order is due to expire on 21 March 2025. The Attorney now seeks an extension of that order.

6. On 28 October 2024, Ashley Limbury was appointed to act as the defendant’s tutor in these proceedings.

7. A preliminary hearing was conducted before me on 6 March 2025. At the hearing, the Attorney sought the following interim relief:

8. An order pursuant to s 126(5) of the Act appointing two qualified experts to conduct separate examinations of the defendant and to furnish reports to the Supreme Court, and that the defendant be directed to attend those examinations; and

9. An interim order pursuant to ss 130 and 131 of the Act, that the defendant’s status as a forensic patient be extended on an interim basis for a period of three months commencing on 21 March 2024 and concluding on 21 June 2025.

10. The defendant opposes the interim orders sought.

11. Before turning to consider the material placed before me at this preliminary hearing, it is pertinent to first have regard to the relevant legislation and the test I am required to apply at this preliminary stage of these proceedings.

The legislative scheme

10. Forensic patients are dealt with under Pt 5 of the Act and the extension of a forensic patient’s status is dealt with under Pt 6 of the Act. The objects of Pts 5 and 6 are set out in s 69 as follows:

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 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.

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

11. Section 121 of the Act outlines the Court’s powers with respect to the making of an extension order:

121 Extension orders for forensic patients

(1) The Supreme Court may, on application under Division 2, make an order for the extension of a person’s status as a forensic patient.

…

12. Section 122 of the Act is in these 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.

Note—

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

13. Thus, it can be seen that before a person’s status as a forensic patient may be extended the court must be satisfied of two things: that there is a “high degree of probability” that the forensic patient poses an “unacceptable risk” of causing “serious harm” (the first limb) and that the risk cannot be “adequately managed by other less restrictive means” (the second limb).

14. The terms “high degree of probability” and “unacceptable risk” are not defined in the Act, but the same statutory language is used in the Crimes (High Risk Offenders) Act 2006 (NSW) (“CHRO Act”). In the context of the CHRO Act, it has been held that the standard of proof, a “high degree of probability”, is higher than the civil standard but lower that the criminal standard: Cornwall v*.* Attorney General for New South Wales [2007] NSWCA 374 at [21]. I propose to apply that standard.

15. As for what is meant by the phrase “unacceptable risk”, in Lynn v State of New South Wales [2016] NSWCA 57, Beazley P (with whom Gleeson JA agreed) held at [58], in the context of the CHRO Act, that the phrase is to be given its everyday meaning within its context and having regard to the objects of the Act then being considered. The evaluation is “… directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection” (at [61]). In State of New South Wales v Simcock (Final) [2016] NSWSC 1805, Wilson J observed at [71] that, “[u]nacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate”.

16. The term “serious harm” is not defined in the Act either. The CHRO Act specifies certain “serious offences” and does not speak of “serious harm”. In Attorney-General of New South Wales v Kereopa [2017] NSWSC 411, Davies J considered this term at [13]-[19] and noted at [14] that:

“… What authority there is on these undefined words tends to point to the inclusion of behaviour that would not extend nearly as far as the behaviour that constituted a serious sex offence or a serious violence offence. The matter is highlighted in the present case where the index offences did not involve personal violence.”

17. His Honour observed the lack of judicial consideration as to the meaning of the term “serious harm” in the Act but noted the observations of White J (as his Honour then was) in Re J (No 2) [2011] NSWSC 1224 at [89]-[94] regarding the meaning of that term in s 14 of the Mental Health Act 2007 (NSW). Davies J concluded the following at [95]:

“… [T]here is no reason in principle why ‘serious harm’ in the MHFPA would not include, at least, psychological harm. It may include serious economic or financial harm but it is not necessary to reach a view about that. Similarly, grievous bodily harm (the less serious part of the definition of ‘serious violence offence’ in the CHROA) is explained to juries as being ‘really serious injury’, a concept that must be on a higher plane than ‘serious harm’.”

18. In Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 R A Hulme J observed the following (at [16]) in relation to the meaning of “serious harm” in this statutory context:

“The ‘risk of causing serious harm to others’ was considered by Davies J in his judgment on the preliminary hearing of the present matter. I agree with his Honour that it 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). I accept the submission on behalf of Mr Kereopa that 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’.”

19. Finally, as to the meaning of “adequately managed by other less restrictive means” in s 122(1)(b) of the Act, the court would not need to consider this question unless first satisfied to a high degree of probability that the defendant poses an unacceptable risk of serious harm to others. As Campbell J observed in Minister for Mental Health v Paciocco [2017] NSWSC 4 at [8], although the Attorney General carries the onus on both issues, on the second question he or she must prove the negative.

20. In Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288, Garling J observed the following in relation to what is meant by “adequately managed by less restrictive means” at [62]-[63]:

“[62] It is also hard to see that if a risk can be adequately managed by a less restrictive means than continuing a person's status as a forensic patient, a Court could ever be satisfied that the risk is an unacceptable one. Nevertheless, the legislation requires the Court to approach the matter by considering, once it is satisfied that an unacceptable risk exists, whether adequate management by other less restrictive means, exists. The question to be determined here is expressed in terms that require the Court to be satisfied to a high degree of probability that the risk cannot be adequately managed.

[63] I would take the use of the phrase ‘adequately managed’ 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.”

21. In Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 (“Doolan”), Adamson J (as her Honour then was) considered the assessment of whether there existed adequate management by other less restrictive means to involve a comparison of the legal powers over a forensic patient compared with other alternate powers. Her Honour went on to undertake a detailed analysis of the alternate regimes under, on the one hand, forensic patients under the Act and, on the other hand, the regime for “civil” patients, including for involuntary patients, under the Mental Health Act.

22. Her Honour undertook a comparison of the objects of the Act, the Mental Health Act and the Guardianship Act 1987 (NSW) (at [101]-[103]) and noted that it is only the Act that has as an object of the protection and safety of the public.

23. Her Honour went on (at [114]-[116]) to compare the respective powers to impose conditions whilst the patient is living in the community. Whereas the Tribunal must have regard to the protection and safety of members of the public when imposing conditions on a forensic patient, a CTO simply requires a person to receive medication, therapy, counselling, management, rehabilitation and other services. This focus on a person’s treatment limits the matters that can be included in a CTO. Moreover, a CTO can only be imposed for a maximum period of 12 months.

24. Further, at [117]-[118] her Honour compared the consequences which would follow from a breach of conditions by a person, as a forensic patient compared to a civil patient. Whereas a forensic patient is subject to the oversight of the Tribunal who may recall and detain the person upon breach, responsibility for overseeing a CTO patient falls on the director of community treatment who has no equivalent recall power.

25. Finally, her Honour compared the effect of the respective regimes overall at [119]-[129]. Her Honour identified the differences between the respective regimes before observing (at [121]):

“Generally speaking the onus in the Act is in favour of greater restrictions on the forensic patient; the onus needs to be displaced by evidence before the Tribunal in order for restrictions to be lifted. By contrast, the onus in the Mental Health Act is in favour of the liberty of the person and the relevant decision makers must, by and large, be satisfied that a restriction is warranted. The classification from involuntary patient to voluntary patient can readily be changed. Moreover, any authorised medical practitioner can discharge the patient at any time and, indeed, is obliged to do so if the patient is not ‘mentally ill’.”

26. Her Honour also noted the Attorney General’s right to be heard before a forensic patient is released to be an important safeguard and noted that the decision-making process for a forensic patient is more centralised. Her Honour then noted (at [124]) that:

“Where a person is subject to a CTO in the community, enforcement is discretionary. While the Public Guardian may have certain powers (depending on the terms of the guardianship order), including coercive powers, there are practical limits to the way such powers can be used. The evidence presented to the Guardianship Tribunal in November 2012 (which led to the lapse of the guardianship order with respect to the defendant) illustrates the practical difficulties facing the Public Guardian in controlling and managing a person such as the defendant.”

27. Under s 124(1) of the Act, an application for an extension order may be made in respect of a forensic patient only if the forensic patient is subject to a limiting term or an existing extension order.

28. Under s 125(a) of the Act, an application for an extension order must be supported by documentation that addresses each of the matters set out in s 127(2). It must also include a report that assesses the risk of the forensic patient “causing serious harm to others” and addresses the ongoing management needs of the forensic patient (s 125(b)).

29. Section 127 provides that the court can make the order proposed in an application for an extension order, or it can dismiss the application. In determining whether to make the extension order, the court must have regard to the factors set out in s 127(2) in addition to any other matter it considers relevant. The following matters are listed 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.

30. Section 126(5) provides for what is to occur at a preliminary hearing. If following the preliminary hearing, the court is satisfied that the matters alleged in the supporting documentation, if proved, would justify the making of an extension order, then the court must make orders:

(a) appointing—

(i) 2 qualified psychiatrists, or

(ii) 2 registered psychologists, or

(iii) 2 registered medical practitioners, or

(iv) any combination of 2 persons referred to in subparagraphs (i)–(iii),

to conduct separate examinations of the forensic patient and to give reports to the Supreme Court on the results of those examinations, and

(b) directing the forensic patient to attend those examinations.

31. This test has been described as being akin to the test of a prima facie case in committal proceedings (under the regime that existed prior to 2018): see Attorney General for New South Wales v Kapeen (Preliminary) [2018] NSWSC 619 at [16]. The question is to be resolved without considering what evidence might be called by the offender at the final hearing, nor any evidence called by the offender at the interim hearing: Attorney General for N**ew South Wales v Tillman [2007] NSWCA 119 at [98].

32. Section 126(6) provides that if the court is not satisfied the matters alleged in the supporting documentation would justify the making of an extension order following the preliminary hearing, the court must dismiss the application.

33. Under s 128(2), the court is not prevented from making a second or subsequent order against the same forensic patient.

34. Section 130 provides for interim extension orders and s 131 outlines that the term of such orders cannot exceed a period of 3 months from the day on which it commences. Section 130 is in the following terms:

130 Interim extension orders

The Supreme Court may make an order for the interim extension of a person’s status as a forensic patient if, in proceedings on an application for an extension order, it appears to the Court—

(a) that the limiting term or existing extension order to which the forensic patient is subject will expire before the proceedings are determined, and

(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.

The supporting documentation

35. The court book in this matter comprised three folders containing 527 pages. Included in that documentation was an Agreed Statement of Facts signed by the solicitor for both the Attorney and the defendant dated 5 March 2025. That document summarised a number of relevant matters pertaining to the defendant’s history including the pertinent portions of the relevant experts reports. The underlying documents on which it was based were all included in the court book.

36. During the hearing, I invited counsel to identify any material in the court book which was not included in the Agreed Facts that they each relied on. I have specified that material below in my reasons. Otherwise, I propose to confine my summary of the supporting documentation to the contents of the Agreed Facts. In those circumstances, I do not consider it necessary to itemise the documents contained in the court book beyond those specifically relied upon by the parties.

The Agreed Facts

37. The defendant is a 57-year-old Aboriginal man and is known in these proceedings by the pseudonym “DB”, in accordance with pseudonym orders made by Yehia J of the Supreme Court of NSW on 24 October 2024.

38. The defendant was born in Campbelltown Hospital on 28 March 1967. His mother is Aboriginal, and his father is of Caucasian background. His mother is reported to have spent 6 months in a psychiatric hospital in 1972, suffering from post-partum psychosis. The defendant is reported to have had a happy childhood within an intact nuclear family. He is the second eldest of six siblings, having three brothers and two sisters.

39. The defendant grew up in Emerton, where he attended Emerton Public School then Mount Druitt High School for the first week of Year 7. His family then moved to Taree, where he attended Taree High School to the end of Year 10, achieving his School Certificate. At school, the defendant had a history of learning difficulties and has been described as functionally illiterate throughout his schooling, where he was placed in special classes. He was picked on at times and involved in fights, but there were no indications of conduct disorder.

40. Soon after leaving school, the defendant was employed for a brief period in a scrap metal yard in Sydney, although his employment ceased because of the onset of his schizophrenia. The defendant is single, having never married, and has four children, whom he has had limited contact with.

41. The defendant is diagnosed with chronic and treatment resistant schizophrenia, alcohol and substance use disorder (in remission) and likely borderline intellectual disability. He also has type-2 diabetes, vitamin B12 deficiency, hepatitis C and a history of asthma, and has suffered right sided pleural effusions since September 2020, requiring ongoing investigations.

42. The defendant has had over 30 involuntary admissions to mental health facilities, the first being in Newcastle in May 1987 (aged 20). His last admission prior to the index offence was to Manning Base hospital on 10 July 2017, which lasted only three days. He failed to return from leave, but thereafter attended his GP for medication. He remained compliant with his medication until around March 2018.

43. The defendant has also been managed in the community, by way of Community Treatment Orders (CTOs), with a range of different antipsychotic medications (oral and depot) and support (most recently in 2017) from the Taree Community Mental Health Team and Dr Michael Richardson (treating psychiatrist).

44. Presently, the defendant is a forensic patient housed in the Clovelly Ward of the Forensic Hospital at Malabar.

Criminal history

45. The defendant has a criminal history that includes both sexual and violence offences. All his criminal matters, prior to the index offences, were dealt with summarily in the Local Court. Until the index offences in June 2018, he had not been charged with any offence since 23 December 2003; that is, 15 years.

46. The defendant’s full criminal history is set out in the criminal history contained at Tab 1 of Exhibit SB-1. A summary of his offending (not including his index offending), is set out below in chronological order:

47. The defendant’s first charges and court appearance were before Forster Local Court in 1989, when he was 22 years old. He was convicted of common assault, assault occasioning actual bodily harm and violent disorder, and sentenced to a fine of $250 and two 18 month good behaviour bonds.

48. On 8 August 1990, aged 23, also at Forster Local Court, the defendant was convicted of indecent assault. The defendant was urinating behind a tree at about 10pm at night when a woman walked past. He yelled out to her, saying, “Do you want to see my dick?”. She walked away. He walked up to her and grabbed her arm and then squeezed her left breast once. He then let go and ran to the other side of the road. Upon being assessed by the Probation and Parole Service for a Pre-Sentence Report, the defendant admitted contact with the victim but stated that he ran up behind her, thinking she was a past girlfriend. He denied saying anything to the women but admitted that at the time of the offence he was affected by alcohol. The defendant also told his psychiatrist, Dr Richardson, that he thought he had identified the victim as an old girlfriend, though Dr Richardson noted that he considered the defendant was “evasive and a poor historian” and that he found his account “inauthentic”. He was sentenced to a recognisance order for 3 years.

49. On 29 July 1992, aged 25, the defendant was sentenced at Gloucester Local Court to his first sentence of full time custody, namely six months, for malicious wounding, assault occasioning actual bodily harm and malicious property damage. The offending behaviour involved the defendant wielding a knife and threatening his de facto partner with it and slashing her with it, causing “two slight lacerations to the back, one to the ribs and a laceration to two fingers”. He also smashed a car window she was driving, with the butt of the knife.

50. On 15 June 1993, the defendant was convicted of common assault and sentenced in Taree Local Court to a 150-hour Community Service Order.

51. On 25 October 1993, aged 26, the defendant was sentenced in Taree Local Court to another six months in full time custody for assault occasioning actual bodily harm, when, with a co-accused he assaulted another man at a party. The defendant was sentenced to a total [1] term of imprisonment of 4 months. [2]

52. On 9 January 1996, aged 28, the defendant was convicted of two counts of goods in custody and one count of wilful and obscene exposure. The defendant was fined $700 for the wilful and obscene exposure count. He was fined $700 and $500 respectively for the two counts of goods in custody and was ordered to pay $150 in court costs for the three counts in total. The wilful and obscene exposure involved the defendant and a co-defendant ‘swimming and sunbaking naked’ on Old Bar beach at 1.30pm on a Sunday. A woman approached the defendants and, when 100m away from them, she saw they were both naked. When she was less than 50m away the defendant “turned slightly away from [her] and put his hand in the area of his genitals” and was “moving his hand as if he was masturbating and then stopped”. He then stood up and approached her, naked and with an erection. He came within 1m of her and asked her the time.

53. In December 2000, aged 33, the defendant had a common assault charge dismissed under s 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (as then in force). The charge was brought against the defendant in relation to an incident involving his two (adult) brothers, Roger and Ricky XXXX and his parents. The defendant was visiting his brothers’ home with his parents (with whom he was living at the time). After going to the bathroom, he grabbed a knife in the kitchen and waved it at his brothers and parents making repeated threats he would cut their throats and blow up their homes. One of his brothers knocked the knife from his hand and he was restrained until Police came. Police noted that the “Offender showed strong signs of mental illness, and made admissions to being treated for condition by Dr. Richardson at Manning Base”.

54. In 2003, aged 36, the defendant was charged before Taree Local Court with damage property by fire committed on 23 December 2003. This charge involved deliberately setting fire to his brother's house at a time when he was aware that his brother and brother’s fiancé were sleeping in the house. The day prior to the offence, the defendant had made threats to his father and his brother that he was going to kill them. After being referred to a mental health facility by the Court under s 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (as then in force), he was convicted and sentenced to a 12 month bond, with conditions to be of good behaviour, report to Blacktown Probation and Parole and “cooperate with the mental health service for the Mount Druitt area in relation to treatment for his mental illness” (2003 Bond). With “the accused’s behaviour [having been] observed to become more and more irrational [over the past few weeks] culminating in his parents requesting he leave and find other accommodation”, the defendant set fire to a lounge on the veranda of his brother’s house (a house adjoining the rear of their parents’ house) in the early hours of the morning. His brother managed to put the fire out.

55. On 14 February 2005, Taree Local Court called up the 2003 bond for breach, found the breach established, but took no action.

56. In addition to the above offences, the defendant has been convicted and received fines for stealing, false pretences and resisting officers in the execution of duty. The defendant has also incurred two institutional misconduct charges involving assaults in 1992 and 2004.

57. In Tupman DCJ’s sentencing judgment for the index offences dated 16 April 2021, her Honour said the defendant’s criminal history is “not a significant criminal history” and noted there had been “no offending since 2003”. The defendant has not committed any offence, while in custody or as a forensic patient. Saliently, her Honour also noted:

(a) “The offending came 15 years after the last offending and even longer since the last offence of violence.” (b) “He does not have a relevant history of sexual offending, let alone any child sexual offending.”

The index offences and imposition of a limiting term

Wounding charge

47. On 22 March 2021, the defendant was charged, by way of two indictments, by the Director of Public Prosecutions. One indictment charged the Defendant with one count of wound person with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW) (wounding count). The victim of the wounding count was the defendant's brother, Roger XXXX.

48. On 23 June 2018, the defendant and his sister, Debby XXXX, (with whom he had lived most of his adult life) in Taree went to their brother’s, Roger’s, home (also in Taree) to collect Debby’s son. At the time Debby had accused Roger’s teenage son of inappropriately touching her daughter, EB, and had made formal complaints to the Police and Department of Community Services. Roger was not at home on this occasion, but his teenage son was. Debby punched the walls and grabbed Roger’s son and the defendant got in his face and said he was going to stab his father (Roger).

49. On 29 June 2018, Roger left two voice messages on Debby’s son’s mobile phone. They were directed towards Debby and the defendant. Debby played them to the defendant. The messages were hostile and abusive in the extreme (including threats of violence (“Now, fuck off and stay out of my face because I'm going to fucking hammer youse”), expletives (“you sick little pricks”, “you fucking dogs”, “you little fucking molester”, “your little fat self”) and terms of vilification (“you little fucken faggot”), and, as noted by Tupman DCJ in her Remarks on Sentence, constituted a “degree of provocation”.

50. Later that day, at about 8.30pm, the defendant walked with his dog over to his brother's home and knocked on the front door. Roger opened the door and walked out onto the patio. Following a very short argument between the two, the defendant pulled a steak knife from his jumper, leaned forward and stabbed Roger in the upper abdomen. The defendant raised his hand with the knife and cut Roger’s neck. Roger retreated inside the screen door. The defendant lunged at Roger again, but missed him and stabbed the screen door instead. Roger sustained a “5 cm superficial linear laceration” to his neck and a “small tiny (?) puncture wound to right upper chest”. Roger was taken to the hospital. The treating emergency doctor cleaned both wounds, gave Roger a tetanus booster and prescribed antibiotics, and a surgical registrar performed suturing of both cuts. He was discharged that night.

51. After Roger closed the door, the defendant threw the knife on the front lawn and walked straight to Taree Police Station. On arrival he said to two Senior Constables, “I just stabbed my brother. I ran all the way here”.

52. In “the months prior to his index offence”, the defendant was lost to care and was not receiving any mental health treatment or taking any prescribed medication. His last recorded contact with his community mental health team was a home visit on 13 April 2018, at which time he was overdue his depot injection and considered to be “acutely unwell”.

Sexual offending charge

53. On 22 March 2021, the defendant was also charged, by way of a second indictment, with the following:

(a) between the 1st day of January 2018 and the 24th day of June 2018, at Chatham in the State of New South Wales, the defendant assaulted EB (his niece) and at the time of such assault committed an act of indecency on EB, a child then under the age of 16 years, namely 9 or 10 years, contrary to s 61M(2) of the Crimes Act 1900 (NSW) (count 1); (b) between the 31st day of May 2018 and the 29th day of June 2018, in Chatham in the State of New South Wales, the defendant did have sexual intercourse with EB, a child then above the age of ten years and under the age of 14 years, namely 10 years, in circumstances of aggravation, namely EB was under the authority of the defendant, contrary to s 66C(2) of the Crimes Act 1900 (NSW) (count 2); (c) between the 31st day of May 2018 and the 29th day of June 2018, at Chatham in the State of New South Wales, the defendant did assault EB and at the time of such assault committed an act of indecency on EB, a child then under the age of 16 years, namely 10 years, contrary to s 61M(2) of the Crimes Act 1900 (NSW) (count 3).

54. On 29 June 2018, when the defendant handed himself in to Police, having just stabbed his brother, Roger, he “admitted in a general sense to having engaged in sexual contact and touching with the complainant who was his niece”. As a result of his admissions and a Joint Investigations Response Teams (JIRT) interview with EB, the three counts were laid. But for him volunteering the full and frank admissions on 29 June 2018, these offences may never have come to light. As the sentencing judge, Tupman DCJ remarked: EB “did not complain to her mother and … the only reason these offences came to light was because he [the defendant] told police about them at the time of his arrest on 29 June”.

The special hearing

55. On 2 April 2020, Jeffreys DCJ found the defendant unfit to be tried, referred the matter to the Mental Health Review Tribunal (the Tribunal) and remanded the accused in custody.

56. On 6 August 2020, the Tribunal determined that the defendant was unlikely to become fit to plead within 12 months.

57. Following a review hearing before the Tribunal on 19 February 2021, the Tribunal determined that the defendant remained unfit to be tried, and the matter was subsequently listed for a special hearing.

58. On 24 March 2021, following a special hearing, Tupman DCJ found that on the limited evidence available, the defendant had committed counts 2 and 3 on the indictment relating to the sexual offending. In relation to count 1, her Honour found the defendant not guilty on the basis that the Crown failed to prove that the event occurred at the specific location and in the time period alleged.

59. Her Honour accepted the defendant’s professed motivation for engaging in the offending conduct (in counts 2 and 3), namely, that he was trying “to find out what, if any, damage she had suffered by what he believed to have been an earlier period of sexual assault of her by a different family member”. She described it as “bizarre” and having a “connection with his longstanding and entrenched schizophrenic mental illness”.

60. Her Honour went on to summarise that the Crown’s case for count 1 was that the accused touched the complainant whilst she was alone with him in his room, with his hand in her genital region on the outside of her clothing. As for count 3, her Honour noted that on this occasion it related to an incident where the accused had placed his hand on the victim’s “genital region which he had placed on the inside of her clothing”. In terms of count 2, her Honour referred to the charge that the “accused digitally penetrated the child’s vagina” and that if this is proved beyond reasonable doubt “amounts to sexual intercourse as a matter of law”.

61. Her Honour was satisfied beyond reasonable doubt that the evidence in relation to counts 2 and 3 was sufficient to establish the elements of those offences. Her Honour however found that the Crown had not sufficiently established the elements for count 1, which she said was “clearly, therefore, alleged to be a different event to that which is count 3”. Her Honour found the Crown had failed to prove that the event, alleged in count 1, occurred in the time period of 1 January to 24 June 2018 at Chatham.

62. In respect of the proven offences of counts 2 and 3, her Honour found that:

(a) they fell “below the midrange” of seriousness (b) “the offences would appear to have lasted for a very short period of time” (c) “[t]here is no evidence that the complainant experienced any physical pain and no evidence of any violence other than that which is inherent in any offence of sexual assault”.

63. On 25 March 2021, Tupman DCJ delivered judgment in relation to the count of wounding with intent to cause grievous bodily harm. The evidence indicated that the 5cm laceration required stitches and the injuries sustained by the victim were described by the treating doctor as “moderate”. Her Honour noted that the injury sustained by the victim was consistent with the legal definition of “wound” and found on the evidence that it was the defendant's intention to inflict grievous bodily harm on the victim. Her Honour made a qualified finding of guilt against the defendant in relation to the wounding offence and adjourned the matter for the setting of limiting terms in respect of the proven counts.

64. On 16 April 2021, her Honour sentenced the defendant to the series of limiting terms as set out above. In setting the limiting terms, her Honour noted that the defendant had made “immediate admissions to police in relation to the wounding offence, and not only immediate admissions in relation to the sexual assault offences, but disclosed the existence of offences of which the police had no other notice”. In reflecting on the defendant's admissions, her Honour noted that his admissions were “timely” and “full” and that in relation to the sexual offending “was everything needed to prove two of the three offences, including the more serious offences”. Her Honour noted that the defendant “stood to gain nothing from these admissions and in fact has sealed his fate for a lengthier term of imprisonment by making these admissions”. Her Honour also noted that the wounding offence has occurred in the context of a “dysfunctional family conflict” and that there was “no evidence” that the defendant has “paedophilic tendencies or interests, even though there does seem to be some suggestion in the evidence that his sexual touching of this complainant had been ongoing for some time”.

65. Her Honour referred the defendant to the Tribunal and ordered that the defendant remain in custody until further review.

The Mental Health Review Tribunal

66. On 3 June 2021, the Tribunal reviewed the defendant and determined that the remained unfit to stand trial and made an order for the defendant to be transferred to the Forensic Hospital by no later than 1 February 2022.

67. On 24 January 2022, the defendant was admitted to the Forensic Hospital. The defendant commenced clozapine treatment on 24 June 2022. The titration period went according to plan without overt physical or psychiatric concerns arising. The defendant has been detained in the Clovelly Unit of the Forensic Hospital since 26 July 2022.

68. On 3 November 2022, the Tribunal reviewed the defendant and made no changes to his current order. In December 2022, the defendant was allocated a new treating psychiatrist, Dr Shelley Xia.

69. In their written reasons of 1 December 2022, the Tribunal considered a report of Dr Christina Matthews, the defendant’s treating psychiatrist at the time, dated 21 October 2022, which expressed the opinion that the defendant’s symptoms were consistent with treatment resistant schizophrenia. The report expressed the view that the defendant's symptoms were severe and included religious, persecutory, grandiose, auditory, bizarre, and referential delusions. Dr Matthews also assessed the defendant as having a high to moderate loading of historical risk factors, in addition to a high loading of clinical or dynamic risk factors for future violence in the short term. The defendant was noted to have commenced clozapine and the Tribunal noted that he “could be a spokesperson for clozapine”, where the defendant had reported that “everything is gone” symptom wise and that the only side effect was a bit of dribbling at night. Dr Matthews confirmed that the defendant had had a very good response to clozapine and he was very positive about it. The Tribunal made no changes to the Defendant’s order and indicated that there had been no evidence to suggest that there had been any change in his fitness for trial.

70. On 4 May 2023, the Tribunal reviewed the defendant and made no further changes to his current order. In their written reasons of 17 May 2023, the Tribunal accepted that while the defendant had improved following his compliance with medication (clozapine), his history and mental illness was serious and longstanding and required ongoing care and treatment. The Tribunal determined that in the absence of appropriate treatment and supervision, the defendant's condition would deteriorate. The Tribunal reported that the defendant had told them that clozapine had made him better and that he was feeling well, and that he was “too old for drugs”. The Tribunal was also told that the defendant had been accepted by the NDIS and that the treating team were liaising with the NDIS, occupational therapy and Supported Independent Living (SIL) providers to develop a plan for his discharge to appropriately supported and supervised care in the community. The Tribunal was satisfied that detention in the Forensic Hospital was the least restrictive option for his safe and effective care. The Tribunal also noted that there was no evidence to suggest that the defendant was fit to be tried, and so the Tribunal concluded that he remained unfit.

71. On 19 October 2023, the Tribunal reviewed the defendant and ordered that the defendant be permitted to access escorted day leave, principally as part of the process to assist with functional assessments, and to facilitate a transition to SIL. The Tribunal noted that the defendant’s treating psychiatrist, Dr Xia advised that he was not suitable for the typical rehabilitation pathway. Dr Xia reported that the defendant had been very compliant and had made friends on the ward. The treating team had referred the defendant to be assessed by a Medium Security Unit (MSU) Panel, who deemed that he was not suitable for an MSU and not ready for SIL. The Treating team disagreed and indicated that they were pursuing SIL placement. The Tribunal otherwise ordered that the defendant continue to be detained at the Forensic Hospital for care and treatment and indicated that there was no evidence to suggest that the defendant was fit to be tried and concluded that he remained unfit.

72. On 18 April 2024, the Tribunal reviewed the defendant and did not make any changes to the orders for his detention at the Forensic Hospital with access to escorted day leave. The Tribunal noted that the defendant's social worker had advised that funding had been sought from the NDIS and that the Defendant now had an NDIS support coordinator and it was hoped that he would be placed in SIL. The Tribunal also heard from the defendant’s Occupational Therapist who advised that the defendant had been on his first escorted day leave which, he reported, made him very happy. The Tribunal otherwise made an order confirming his placement at the Forensic Hospital and his order allowing him to exercise escorted day leave. The Tribunal also indicated that there was no evidence to suggest that the defendant had become fit to be tried and confirmed that he remained unfit.

73. The defendant’s most recent review by the Tribunal was on 31 October 2024. The Tribunal noted that the defendant had been compliant with medications and treatment including with clozapine, and that he reported significant benefit from his medication and a desire to continue it in the longer term. There was no evidence of violent ideation or intent and there had been no issues with instability. The Tribunal noted the report from the defendant's social worker who advised that an application for NDIS SIL had not been successful as the defendant did not meet the criteria for someone who requires supervision and monitoring 24 hours, seven days a week and did not meet the active support needs for activities of daily living. The Tribunal noted, however, that the defendant received significant funding but without the SIL funding, the team no longer intended on proceeding with a direct discharge to the community. Instead, the plan was to progress the defendant though to the Dee Why Ward at the Forensic Hospital, before a transfer to an MSU. The Tribunal indicated that applications had recently been made for the appointment of the Public Guardian and NSW Trustee and Guardian to support the defendant to make decisions about his finances, accommodation and services. At the hearing, the Tribunal heard evidence from Dr Xia who confirmed that the defendant was settled and that there had been no behaviours of concern. She reported that the voices and delusions had faded away and the defendant was a lot less distressed and that the team considered him capable of moving forward. She also reported that the team was disappointed that the SIL funding application had been declined. Dr Xia agreed with the defendant's solicitor that the defendant could, with the necessary support, be managed as a civil patient and observed that with his cognitive deficits, he would be unlikely to benefit from the rehabilitation available within the forensic system. The Tribunal determined to make no changes to the defendant's current orders and noted there was no evidence to suggested that he was now fit and concluded that he remained unfit to be tried.

Escorted day leave

74. The defendant was granted escorted day leave from the Tribunal at his review on 19 October 2023.

75. On 21 February 2024, the defendant took his first therapeutic leave. He was escorted from the Forensic Hospital to Malabar Beach and Coastal Café at Malabar Beach. He was informed of the session on the morning of 21 February 2024 and “appeared motivated to attend” the session and agreed to the leave plan. There were “nil signs of paranoia or anxiety”. While on leave, he demonstrated an ability to comply with leave procedures, the leave plan and staff instructions. He was able to independently order coffee at the local café although he appeared slightly anxious and fumbled over words. He showed some anxiety around not being late to return to the Forensic Hospital, repeatedly asking “should we go back?” and also verbalising gratitude for being outside stating, “this is the best day ever”. The defendant is reported as voicing that he felt “free” being out at the beach and that internally he feels like a prisoner. The progress note reflected that the defendant tolerated leave well and he requested if in future he could go to a shopping centre. In the weeks following this event, the treating team noticed that the defendant reported more psychotic phenomena. The team was concerned that the change in environment had resulted in a further deterioration in the defendant's mental state in the context of his limited coping mechanisms.

76. On 17 April 2024, the defendant took his second therapeutic leave. He was escorted to Maroubra Beach where he ordered a coffee at the local café. He was reported as stating that going on leave makes him feel “normal” and that he looked forward to living in the community. During the session, he repeatedly thanked the staff for taking him on leave stating, “I really appreciate you taking me out… this is the best”. The defendant is reported as having followed staff directions at all times and there were nil issues. Staff reported that he appeared more relaxed than previous leave and was able to make more decisions regarding what he would like to do. Staff reported that the defendant was compliant with the leave plans, including the time to depart the beach and he again thanked staff for facilitating his leave.

77. On 23 May 2024, the defendant took his third therapeutic leave. On this occasion, he was escorted to Westfield Eastgardens Shopping Centre. The purpose of the leave was to reintroduce him to the community via a higher stimulus environment and to help him understand leave procedures and follow staff instructions. He was also assessed based on his ability to independently manage his finances, with a budget of $100. On the morning of the session, the defendant appeared excited and eager to go on leave. He was observed to be euthymic in mood and demonstrated an ability to comply with leave procedures, leave plan and staff instructions. He was able to independently order a coffee and used cash for the transaction as well as obtaining a receipt and change. While drinking his coffee, he expressed his delight in being on leave. He also did some shopping and was observed for how he prioritised his spending. He expressed gratitude and appreciation to staff for the leave session. The defendant’s social worker reported later that he denied anxiety in the high stimulus environment and was eager to go on leave again.

78. The sessions for escorted day leave ceased after the defendant’s application for SIL was refused. At the Tribunal review on 31 October 2024, the defendant's treating psychiatrist, Dr Xia said:

“Yes. So speaking of the day leave, that was arranged in the context of building up some of that information for anticipation of going into SIL accommodation and a graded approach to discharge. Unfortunately because that plan was then - had to be reworked in the context of the refusal of SIL-accommodation the therapeutic leave then petered away because of a lack of clear therapeutic indications. Every patient would benefit, I would - most patients, I would say, would benefit from access to the community and engagement in outside activities but based on resourcing we cannot just do that without a very clear purpose in terms of the functional assessment or graded transfer into the community. It was not - certainly not because of anything that Darren had done.”

Accommodation

MSU Referral

79. Following consideration of the available resources within the Forensic Hospital, a decision was made to refer the defendant to an MSU for the following reasons:

(a) The treating team felt that the defendant would not benefit from the rehabilitation program, however, felt that the MSUs would have more allied health resources to assist with the assessment process for transition into NDIS supported accommodation; (b) Bed availability at the MSUs; and (c) The defendant's preference to return to a rural area.

80. On 22 August 2024, the defendant was assessed by a panel of team members from the Kestrel Unit (MSU) of Morisset Hospital and the Macquarie Unit (another MSU) of Bloomfield Hospital in Orange for his suitability to be accommodated in a MSU. During that assessment, the defendant initially engaged well with the panel by expressing his desire to continue his clozapine medication and informing them of his pro-social pursuits, including volunteering to round up the chickens at the Forensic Hospital with other co-patients, attending a documentary group and going for walks around the perimeter of the hospital.

81. During the assessment, the defendant expressed his desire to return to Taree upon being discharged from the Forensic Hospital. He said that he would “live on the streets” until he found accommodation and struggled to understand that his family members might not want to have any contact with him. He then started expressing multiple delusional beliefs, including that “the Earth is in danger, there are 3 levels” and that we were shortly due to be “invaded by aliens from outer space”. The defendant’s criminal history was discussed, and he became increasingly distressed and proceeded to respond to auditory hallucinations by telling someone in the corner of the room that he was not a murderer or a paedophile.

82. The panel considered that the defendant was not ready for placement at a MSU and refused the defendant's application to be transitioned to one. The panel further considered that the defendant was not ready for a SIL placement due to the lack of formulation of his risk factors for violence and arson. The panel also determined that the defendant lacked insight into his risk factors for sexual offending and considered that he required a further neurocognitive assessment to inform his suitability for psychological therapy for his sexual offending. The panel were particularly concerned that a more detailed exploration of the defendant’s sexual offending had not been undertaken due to inconsistencies between his account of events and the police facts sheet for the index offending. The panel was also of the view that a neurocognitive assessment would prove to be useful in making future decisions about the defendant’s care, accommodation, and psychosocial supports in the community.

83. The treating team disagreed with the MSU panel’s impression that SIL accommodation, and assertive mental health follow-up including NDIS supports would not address his diverse risk factors. The treating team continued to facilitate the assessment process for NDIS and SIL accommodation including functional assessment, neurocognitive assessment, and the involvement of a behaviour support practitioner.

84. Following the MSU assessment, the defendant’s treating psychiatrist, Dr Xia obtained copies of the fact sheets relating to the previous sexual offences and opined that the offences were in context of substance use and psychosis and there is no evidence of paraphilia from the facts sheets.

85. In March 2024, the defendant underwent a cognitive assessment (RBANS) where his total score was in the extremely low range (<0.1st percentile compared to age related peers). He scored in the extremely low range for Immediate Memory, Visual spatial/Construction, Attention and Delayed Memory. He scored in the low average (12th percentile) range for Language. In her report of 22 October 2024, Dr Xia reported that this “was a relative strength for [the defendant], his score indicates that he experiences moderate difficulties with the fluent use of language”.

Supported Independent Living

86. The defendant was not successful in his SIL application to the NDIS. He was instead funded $203,414.47 through an alternative NDIS package for daily living activities. This package comprises 26 weeks (56 hours per week) of individual support, with the remaining 26 weeks covering 42 hours per week of individual support. The defendant also received an additional 14 hours per week for other supports.

87. The defendant's treating team does not consider his NDIS package for daily living activities is commensurate to his needs and risk, and their plan has shifted from a NDIS discharge to a more gradual discharge by transitioning the defendant through less restrictive wards and facilities.

88. When asked about pathway options for the defendant at his Tribunal review on 31 October 2024, the defendant's treating psychiatrist, Dr Xia gave evidence that if the defendant became a civil patient, he could be “stepped down to a civil mental health unit” but “that might be difficult because of his lack of accommodation”. She also offered options of re- applying to the NDIS and seeing whether accommodation could be available via SIL or other options such as the Housing and Accommodation Support Initiative (HASI) Plus.

Potential transfer to the Dee Why Unit

89. In consultation with various senior clinicians within the Forensic Hospital, and on review of the defendant's unsuccessful SIL application, the defendant's treating team referred him to the Dee Why Unit of the Forensic Hospital as part of a step-down approach to ready him for a future transition to an MSU. With the support of his NDIS package for daily living activities, the defendant's treating team has formed the opinion that the defendant is an appropriate candidate for placement at an MSU.

90. At around the time of the review hearing before the Tribunal on 31 October 2024, the defendant's legal representative requested the defendant's treating team consider deferring any potential transfer to the Dee Why Unit until after the current Supreme Court proceedings have been completed. In submissions to the Tribunal, the defendant’s legal representative submitted that a transfer to the Dee Why Ward at this time “might risk losing the clinical knowledge that the team currently have” about the defendant, particularly at a time when his status as a forensic patient is being reviewed and may change.

91. The defendant’s treating psychiatrist, Dr Xia, agreed that deferring the defendant's transfer to the Dee Why Unit until the resolution of the current proceedings is appropriate. The defendant’s treating psychiatrist nonetheless stated that the team's intention is to keep the defendant on the waiting list for the Dee Why Unit on account of the current anticipated lengthy wait times for that unit, and the fact that cancellation and re-referral at a later point in time is only likely to result in further delay. The defendant has expressed reluctance for his referral to the Dee Why Unit, reporting apprehension with the change in environment and some distress, though he is generally accepting of this plan.

Guardianship and financial management orders

92. On 4 October 2024, the defendant’s treating team made applications to the NSW Civil and Administrative Tribunal (NCAT) for guardianship and financial management orders for him.

93. In the context of the defendant’s significant cognitive impairment, and in the absence of support from his family, the defendant’s treating team considered that the appointment of a public guardian would be necessary to enable him to safely transition into the community. The defendant’s treating team formed the view that the making of a financial management order would also be necessary as part of this application, particularly on account of their opinion that the defendant is vulnerable to exploitation. Although the defendant was agreeable to the guardianship application generally, he expressed some opposition to the making of the financial management order, despite being generally understanding of the treating team’s concerns regarding the need for practical financial support.

94. On 3 February 2025, NCAT made a Guardianship Order and appointed the Public Guardian for a period of 12 months with the functions of accommodation and services. NCAT also ordered that the estate of the defendant be subject to a financial management order to be managed by the NSW Trustee and Guardian and ordered that this be reviewed within 12 months.

Summary of expert reports

Risk assessment report of Dr Richard Furst dated 29 May 2022

95. Dr Richard Furst assessed the defendant on 27 May 2022, while the defendant was on the Bronte Ward of the Forensic Hospital. In his assessment with Dr Furst, the defendant told him that:

(a) “he ‘wants to live a normal life’” (b) “he wants to ‘be on a treatment order’” (c) He “does not want to use drugs when he is released from custody/discharged from hospital” and that in the “last four years” he had learned that “drugs and alcohol are a no no” (d) He is open to further counselling and wanted to go to church and have support from his priest, being of Catholic faith (e) He had been participating in groups in the Forensic Hospital “in relation to psychoeducation and aimed at improving his mental health.”

Diagnosis

96. Dr Furst diagnosed the defendant with schizophrenia - chronic and treatment resistant, alcohol and substance use disorder (alcohol, cannabis, methylamphetamine) and likely borderline intellectual disability.

Risk assessment

97. Utilising the HCR-20 Version 3 risk assessment tool, Dr Furst assessed the defendant to have “a moderate to high loading of historical (static) risk factors for future violence”, a “moderate to high loading of clinical (dynamic) risk factors for future violence” and “a high loading of risk management factors for future violence”. Utilising the Static-99 risk assessment tool, Dr Furst assessed the defendant to be ‘above average risk’ for re-offending in a sexual manner.

98. Dr Furst opined that the risk of re-offending in a sexual manner that he identifies will require management under the Child Protection (Offenders Registration) Act 2000 (NSW) “with reporting and police checks of the Child Protection Register, coupled with appropriate psychological counselling. Adequate and assertive management of his schizophrenic illness and ensuring he does not have access to children in the future will also be necessary”.

99. As to the length of an extension order, if an extension order was made, Dr Furst concluded that there is ‘no definitive timeline’ as to how long the defendant may progress through the various units in the Forensic Hospital and that it would “likely be a number of years before he is well enough to be released into the community”. To that end, Dr Furst recommended that the defendant's status as a forensic patient be extended for a period of 5 years.

Court appointed expert report of Dr Gordon Elliott, dated 9 January 2023

100. Dr Gordon Elliott assessed the defendant on 6 January 2023 at the Forensic Hospital. Dr Elliott had however assessed the defendant before, namely on 6 July 2018 (just 8 days after he had handed himself into Police), when he was in custody at Mid North Coast Correctional Centre.

101. While Dr Elliott observed the defendant speaking of delusional beliefs and being moderately thought disordered at times during the interview, he also noted he “was an affable, cooperative historian”, “he did not grow irritable at any point” and “his thought form was digressive but he managed to stay broadly on topic”. Further, the defendant “did speak insightfully about having an illness and he did not display the resistance to the diagnosis or antipathy towards treatment that is so commonly a feature of schizophrenia”.

102. The defendant also said he had “no intention of hurting anyone on his eventual release”, “he gets on well with all of the other patients” and he “spoke brightly about staff”. He also expressed some remorse about the wounding index offence and that “he knows he has to avoid drugs and alcohol on return to the community”.

Diagnosis

103. Dr Elliott diagnosed the defendant with “chronic treatment resistant schizophrenia” and opined his “illness is a lifelong one”, with some “cognitive deficits” associated with it. He confirmed that “treatment with clozapine has resulted in improvements in his presentation”, stating, “he has shown signs of improvement in a highly supported setting and having commenced clozapine”. He acknowledged comorbid diagnoses of substance use disorders, but that these are currently in remission in a controlled environment.

Risk assessment

104. Dr Elliott considered the defendant’s “risk of serious harm to others in his current setting appears low” and that if he were released “abruptly from TFH to the community in an unsupported manner” the risk would “rise considerably”.

105. Utilising the Historical Clinical and Risk Management - 20 (HCR-20) Version 3 risk assessment tool, he assessed the defendant to have “a moderate loading of historical risk factors for future violence”, a “moderate to high loading of clinical/dynamic risk factors for future violence” and “a moderate loading of risk management factors for future violence”.

Least restrictive means and adequate management of risk - the recommended package of care

106. While Dr Elliott did not support an abrupt release into the community and considered the defendant's risk of serious harm was “most tightly contained by his continued status as a forensic patient”, he concluded in his January 2023 report that currently “the least restrictive means of care appropriate to [the defendant] [is] to be an involuntary treatment order under the MHA”. He considered the defendant’s “placement in TFH may no longer be the least restrictive form of management of his risk of harm to others”, noting his improved mental state on clozapine and that his “behaviour in the unit has been cooperative without any evidence of aggression”.

107. He opined as follows about a “recommended package of care”:

“Taking into account [the defendant’s] overall risk of serious harm to others and his recent improvements and overall behaviour in TFH, then a package of an NDIS funded disability provider, a SIL accommodation placement, and transition to involuntary patient status under the Mental Health Act 2007 appears the least restrictive means of ongoing care, support and treatment to manage this risk. He would need to remain in TFH as an involuntary civil patient until such time as his treating team were able to implement this package of care, with MHRT reviews occurring every three months under s.37 of the MHA. This may take some time, potentially 12 months or longer, given the multiple agencies involved and the time for approval of a SIL package and location of suitable accommodation in particular. Assuming his mental state remained stable, he would then be transitioned to this accommodation and care, with his involuntary inpatient order being converted to a CTO, and his release subject to the conditions of his placement on the Child Protection Register’. (Emphasis added.)

108. Further, Dr Elliott said “[r]emaining a forensic patient would be a more secure means of managing [the defendant’s] risks of serious harm, but at the cost of considerably prolonged detention in a high secure setting that exceeds his requirements” and “I consider this package [the recommended package of care] adequately manages his risk such that it is not more likely than not he poses an unacceptable risk of causing serious harm to others”.

109. Dr Elliott traversed his “recommended package of care” in more detail on pages 19 to 21 of his report, covering a further period in TFH as an involuntary patient, the “broad level of support” he will need in the community (consistent with NDIS funded supports and accommodation, and community mental health team supervision and support), a CTO, a guardianship order and financial management order, obligations on the Child Protection Register and an NDIS funded package of support (including, “daily case worker contact to provide assistance engaging him with prosocial activity and developing his social skills as well as supporting him practically with transport to important appointments, in combination with placement in supported accommodation funded … through a Supported Independent Living (SIL) funded package”). In conclusion:

“I suggest that the improvement in [the defendant’s] mental state and his now sustained 12 month period of settled behaviour in TFH indicates he could plausibly be managed in the community without the risk of serious harm to others through a combination of an NDIS funded support package of care, supported accommodation through SIL, a CTO and placement on the Child Protection Register’. (Emphasis added.)

110. Overall, while Dr Elliott also considered that remaining a forensic patient would “be a more secure means of managing the defendant’s risks of serious harm, he qualified this noting that this would be at “the cost of considerably prolonged detention in a high secure setting that exceeds his requirements”. Dr Elliott added that as a forensic patient, the defendant’s “length of admission will be dictated not only by his individual risk assessment, but also institutional factors, particularly bed flow or the availability of medium secure hospital beds in the forensic system”.

Court appointed expert report of Dr Sathish Dayalan, dated 30 January 2023

Background observations

111. Dr Dayalan assessed the defendant on 19 December 2022 at the Forensic Hospital. This was the first and only time he had observed or assessed the defendant.

112. In discussing his mental health and treatment history, the defendant admitted to Dr Dayalan that he had become non-compliant with treatment when he was not under any treatment orders and that “his use of substances contributed to his problems with his mental health”. At the time of the index offending, the defendant confirmed he “had stopped taking his psychiatric medications six to eight months earlier”, “had been using crystal methamphetamine and cannabis on a daily basis” and “had been drinking alcohol on a daily basis”.

113. Dr Dayalan observed that “[d]isorder of thought was evident but most of his responses were coherent. He was easily redirected when he became quite tangential in thought form. He continued to present with delusions, auditory and visual hallucinations”. Other salient observations included:

(a) The defendant “accepted that he had a mental health problem but had limited understanding into the nature of his condition”. (b) “He was willing to comply with medications”. (c) “He intended to continue on the medications for the rest of his life”. (d) “[H]e did not wish to use alcohol or illicit drugs in the future”.

Diagnosis

114. Dr Dayalan confirmed a “well-established diagnosis of schizophrenia” and that he also presented with “a history supportive of alcohol, cannabis and stimulant use disorders that are currently in remission in a controlled environment”. He described his schizophrenia as a “chronic lifelong condition” and a “permanent condition that will continue to impact on his functioning”.

Risk assessment

115. Dr Dayalan conceded that “[t]here are inherent challenges in predicting the probability of a specific event occurring in the future despite the use of validated risk assessment instruments” and that they are “best utilised as a guide” only to forming a professional opinion on the risk posed by an individual. He applied the Static 99-R, HCR-20 Version 3 and Stable 2007 risk assessment tools. He made further concessions as to the predictive validity of these tools as follows:

(a) “The Static-99 does not incorporate any dynamic risk factors and is therefore not sensitive to any changes in levels of risks over time. It also only allows for group-based risk estimates and does not help differentiate between the individuals within the group who will reoffend and who will not”. (b) “It is, however, acknowledged that the predictive validity of Stable 2007 is not consistently demonstrated in scientific literature”.

116. Having applied these tools, he concluded the defendant presented with “a moderate level of stable dynamic risk and needs”, “a moderate to high loading of historical risk factors” and a “moderate to high loading of clinical risk factors”.

117. Dr Dayalan concluded his risk formulation as follows:

“[The defendant] has a moderate to high loading of historical risk factors for violence and sexual offending. These factors are static in nature and are indicative of risk of violence and sexual offending in the long-term. He has a moderate loading of clinical/dynamic risk factors for violence and sexual offending. Dynamic risk factors influence the risk in the short to medium term and are usually amenable to modification by interventions.”

118. Review of his offending history indicates that his mental health and substance use were significant dynamic risk factors contributing to his offending behaviour.

Least restrictive means and adequate management of risk

119. Dr Dayalan wrote in his January 2023 report that “[t]he likelihood of [the defendant] causing serious harm to others will be much lower if he was a forensic patient” and that the “risk management variables are better contained whilst [the defendant] is managed as a forensic patient”.

120. Dr Dayalan conceded that “management as an involuntary patient under the Mental Health Act 2007 may not result in a drastic difference whilst he is an inpatient in a secure psychiatric facility”. He noted that this status as an involuntary patient would ‘apply to his treatment at a medium secure unit’ and accepted that the Castlereagh Unit at Bloomfield Hospital is specifically dedicated to involuntary patients under the Mental Health Act 2007 (NSW). He stated that if the defendant is not a forensic patient, he can be discharged into the community without the approval of the Tribunal and ‘will not receive input from specialist mental health services’.

121. At the last hearing before the NSW Supreme Court, the Court heard evidence that the Community Forensic Mental Health Service (CFMHS), a “specialist mental health service”, would be available to assess the defendant, as a high risk civil patient, if a referral were made to the CFMHS by his treating team. In an email from Ms Kath Jones, Service Director NSW CFMHS, NSW Health - Justice Health & Forensic Mental Health Network (Justice Health) to the defendant's solicitor, Ms Jones confirmed that if the defendant “may at some point in the future no longer be considered a Forensic Patient, they would still have access to a specialist assessment of risk, and be provided with a report that outlined risk management strategies that would be able to be implemented by the treating team that made the referral in the first instance”. Ms Jones reiterated that for a civil patient, the community mental health service would need to make a referral to CFMHS to assess the defendant, meaning the defendant's treating psychiatrist and case manager would need to appreciate the defendant's risk enough to make the referral.

Risk assessment report of Dr Richard Furst dated 23 June 2024

Re-assessment in April 2024

122. Dr Richard Furst re-assessed the defendant on 29 April 2024 for a period of approximately 60 minutes via audio-visual link. Since Dr Furst’s report in 2022, he noted that the defendant’s medication had been changed to clozapine, which is “the treatment of choice for treatment resistant schizophrenia”. Although the defendant reported “excessive sedation and symptoms of dizziness from his clozapine” he believed his medication was helping and reported to Dr Furst that “it stops [his] head from spinning”.

123. Dr Furst noted that the defendant had been participating in groups in the Forensic Hospital for over the last 2 years, which included engaging in programs relating to “psychoeducation aimed at improving his mental health”. During his review, the defendant did not report any distressing thoughts or paranoid thoughts and said that things were ‘good’ emotionally. He also did not appear to be hallucinating and seemed comfortable in his current setting in the Clovelly Unit.

124. In outlining the defendant’s “extensive history of substance abuse”, Dr Furst noted that the defendant was “able to appreciate that there was a connection between his drug use and psychotic relapses throughout his life”, although this had not stopped him using drugs throughout his life. The defendant denied using drugs between his arrest in 2018 and assessment with Dr Furst in 2024, suggesting that he had been drug-free and abstinent from drug abuse for the last six years.

125. In noting his recent progress, Dr Furst indicated that the defendant was “coping fairly well at Clovelly” and that he felt comfortable in the Forensic Hospital and was happy to remain where he is. Dr Furst was informed by the defendant’s social worker, who had been present for the assessment, that an application for funding through the NDIS for SIL had been submitted on behalf of the defendant.

Diagnosis

126. Consistent with his report in 2022, Dr Furst confirmed that the defendant meets the DSM- 5 criteria for the following mental disorders:

93.1 Schizophrenia - chronic and treatment resistant

93.2 Alcohol and Substance use disorder (alcohol, cannabis, methylamphetamine)

93.3 Likely borderline intellectual disability

Risk assessment

127. Dr Furst assessed the defendant's risk of future violence using the HCR-20 version 3, which he noted does not involve prediction of the form of violence or the severity of the harm that may ensue. He found that the defendant has a moderate to high loading of historical (static) risk factors for future violence in the long term, a moderate to high loading of clinical (dynamic) risk factors for future violence in the short term and a high loading of risk management factors for future violence. He identified issues with a history of violence, relationship problems, employment difficulties, substance use and a documented history of major mental illness. Dr Furst identified the defendant’s treatment-resistant schizophrenia and substance use disorder, coupled with his history of serious violent offending, as the most salient risk factors in relation to the defendant's future risk of violent offending. Dr Furst noted that the defendant’s likely underlying cognitive impairment was an additional risk factor in relation to impulsivity and impaired capacity for consequential thinking.

128. Although Dr Furst opined that the defendant lacks insight, he noted that he accepts his diagnosis and there have been no recent problems with violent thoughts or behavioural disturbance at the Forensic Hospital, being a highly restrictive and supervised setting.

129. Dr Furst also considered the defendant’s risk of re-offending in a sexual manner and found that his risk was ‘well above average’ based on his scoring using the actuarial risk assessment tool, Static-99R. Dr Furst identified the most significant clinical and dynamic considerations for the defendant's future risk of sexually reoffending as: his chronic mental illness; indications of delusional thinking and/or hallucination associated with his sexual offending against his niece; victim access; intimacy deficits; social isolation; sex as a maladaptive means of relieving the stress or symptoms of mental illness; drug addiction; and the use of stimulant drugs associated with increased sexual drive and disinhibition.

130. Dr Furst was of the view that the defendant posed a risk of causing serious harm to others if he ceased to be a forensic patient.

Least restrictive form of management

131. Dr Furst opined that the least restrictive form of management, on current presentation and on review of the available history is for the defendant to remain a forensic patient. He recommended that the defendant’s status as a forensic patient should be extended for 5 years “with the expectation of a further 5 years extension beyond that unless he is incapacitated or deceased”.

132. Dr Furst opined that extinguishing the defendant’s status as a forensic patient and discharging him into the community without adequate support or supervision would increase the defendant's exposure to stressors and triggers, decrease the likelihood of adherence with his management plan and medication, reduce the likely availability of formal supports, increase the risk of the defendant using alcohol or drugs, increase the likelihood of a relapse into more severe psychotic symptoms, all of which would increase the defendant's risk of violence, including the risk of a serious act of violence or sexual reoffending.

133. Dr Furst expressed criticism with respect to the pathway that had been envisioned of moving the defendant from a secure forensic hospital to adjusted living in a SIL environment. Dr Furst considered there would be an unacceptable risk that high-demand civilian health services such as those in Taree would discharge the defendant from their care or otherwise make clinical decisions without a long-term risk management focus. It was “strongly preferable” that the defendant be gradually stepped down to a medium secure unit with attendant extra support and supervision, which would likely involve some years of treatment in hospital prior to be well enough to be released into the community, even if a SIL dwelling was available.

134. Dr Furst was concerned that the alternative, blended approach to the defendant's care advanced by Dr Elliott at the previous extension order proceedings (detaining the defendant involuntarily at The Forensic Hospital as a civil patient pursuant to the Mental Health Act 2007 before stepping him down to SIL accommodation supported by disability services) was “inadequate and loose”, with no “umbrella” or overarching supervision of the defendant, no guarantee that community or disability services would source, maintain and renew the care arrangement, including a CTO, and there would be inadequate breach provisions for noncompliance under the civilian provisions.

Additional material relied upon

The Attorney General

135. In addition to the matters set out in the Agreed Facts, the Attorney drew the court’s attention to the following matters in the supporting material.

136. The Attorney noted the NSW Police Fact Sheet in relation to the offences on 22 December 2003 where the defendant started a fire at his brother’s home. The defendant stated that he was aware that his brother and his brother’s fiancé were in the house at the time of the fire and that it was his intention to burn the house down knowing the occupants were inside. The defendant also said that he drove past the scene to see that the fire was well ablaze before leaving.

137. The Attorney also pointed to the special hearing judgment where Judge Tupman stated the following in relation to context evidence of the index sex offences:

“For abundant caution I note that during her interview the child made assertions of having been sexually touched by the accused on numerous occasions leading up to his arrest on 29 June 2018 which are not events subject to any specific charge. They do not form part of the evidence led by the Crown to establish his guilt; they are there as part of the overall context in which the specific charges are brought and cannot and have not been used by way of substitution for the specific evidence relied on by the Crown to prove each of the offences.”

138. The Attorney relied on this additional context evidence as described in the Crown Case Statement. It was noted that in his police interview the defendant admitted that he had touched the victim on her vagina and masturbated in front of her on many occasions. The Attorney submitted that the allegations were not isolated and occurred over some time, not just during the charge period.

139. The Attorney also identified various recent Justice Health progress notes where it was recorded that the defendant did not want to be on clozapine anymore (11 and 15 November 2024 and 13 December 2024). It would appear (although it was not clearly established) that the defendant had been influenced by the views of another forensic patient who had been telling others not to take certain medication. The Attorney submits that this points to the “suggestibility” of the defendant although it was conceded that the defendant did in fact remain compliant with the medication following a discussion with his treating team about the benefits of that medication.

140. Additionally, the Attorney pointed to a recent note dated 7 January 2025 which shows that early this year the defendant had a sudden increase in intrusive thoughts. Following an increase in these occurrences the defendant’s clozapine was increased by 25mg. The Attorney noted that this chronic relapsing highlights the treatment-resistant nature of the defendant’s schizophrenia. That note recounted the following:

“[The defendant] described … a sudden shift in the subjective intrusiveness of his chronic and treatment resistant positive symptoms. He described these for me as largely centering around two ‘son spirits’ that he sees in his vision at the time described as lights which are in communication with him, off handedly remarking ‘also the tv and radio and things’. He described these experiences with a systemized chronicity and familiarity, later identifying them as such. He reports the communication to be understood as ‘voices’ though he did not seem sure of this but was unbothered by this interpretation. The communication/voices were described as ever present since 1995 though variably intrusive, endorsing the same for the visual perceptual disturbance of the ‘sons’. At points this would be obfuscated by the invasion of other seemingly chronic delusory content of grandiose and religious themes, such as [the defendant] reporting he met Jesus in 1995 and it was extremely difficult to qualify his explanation to a great degree of detail, at risk of damaging rapport and alliance. …

…

The ‘spirits’ (used interchangeably by [the defendant] to at times encompass all of his subjective positive symptom burden and at others referring only to the ? visual hallucinations of stars/lights), were identified as friendly towards him, though also could be intrusive (which has spiked in the last week or so) and were ultimately identified as largely unwanted. …”

141. The Attorney also relied on a recent social worker’s file note dated 12 February 2025 reflecting her telephone conversation with Heather Studdy at the Public Guardian in relation to the defendant. That note included the following:

“-SW [social worker] provided update about [the defendant’s] legal situation and upcoming court hearing. SW provided information regarding MDTs [Multi Disciplinary Team] plans to discharge [the defendant] to civil rehab unit should he become civil (and his forensic status is not extended.

-Discussed rejected NDIS SIL outcome. Heather asked about direct discharge to community. SW advised that MDT are only considering referral to civil rehab MH unit as best practice.

-Discussed [the defendant’s] preference for Taree, but that he is also agreeable to Newcastle. SW stated Newcastle is likely where the MDT would likely be exploring for discharge (Morisset, Kestrel)

-Heather asked about whether HAL [Housing and Living] for [the defendant] had been applied for. SW confirmed that HAL had been pursued, and [the defendant] was rejected from SIL. SW advised [the defendant’s] needs can be more appropriately assessed with access to the community, given uniqueness of the FH being high secure.”

142. Thus, the intention of the defendant’s treating team in the event that the court did not continue his order as a forensic patient, is apparently to transfer him as an involuntary patient to Newcastle.

The defendant

143. In addition to the matters set out in the Agreed Facts, the defendant drew the court’s attention to the following matters which, it was submitted, establish that there is an alternative to placing the defendant on another order.

144. The defendant relied on Dr Elliott’s opinion in 2023 that the defendant could be managed as a civil patient. In his report dated 9 January 2023, Dr Elliott stated:

“Remaining a forensic patient would be a more secure means of managing [the defendant’s] risks of serious harm, but at the cost of considerably prolonged detention in a high secure setting that exceeds his requirements. … His treating team will be mindful of these risks however, and will provide him with the opportunity to familiarise himself with his community treating team prior to discharge, and assess his response accordingly.”

145. Dr Elliot then proceeded to discuss other protective factors that would be put in place before the defendant would be discharged into the community. Dr Elliot then set out his opinion as to the likely practical implications stating:

“Discharge planning from [the Forensic Hospital] is a comprehensive, multidisciplinary process involving mandatory risk assessments and extensive consultation and sharing of information between his treating team at [the Forensic Hospital] and the receiving services. This occurs regardless of whether a patient is a forensic or civil patient, as per [the Forensic Hospital] Transfer of Care policy document.”

146. The defendant also relied on more recent material, specifically, five pages from the transcript of the MHRT hearing on 31 October 2024 where Dr Xia gave evidence. Dr Xia was at that time his treating doctor. She stated:

“The treating team have a very good rapport with Darren, he talks to us, he’s compliant with his medications. There’s been no episodes of violence or aggression in any way. He’s very settled. He has reported in the last month or so that his experiences in terms of the voices and the delusions that he’s had have faded away. He finds that to be a significant relief. There’s been no thoughts about harm to himself or thoughts of foreign parties, passivity phenomena, so foreign parties controlling his eyes which was a significant concern previously and he’s a lot less distressed which is good. Hopefully – we hope that his symptoms continue to remain in remission but it is somewhat early stages at this stage given that they’ve only gone into remission in the last month or so.” (Emphasis added.)

147. Dr Xia also discussed the challenges with respect to the NDIS’ refusal of SIL accommodation for the defendant. She opined that the defendant “would do well in a less restrictive environment”, but that it is unfortunately “more about resourcing”. She also stated that “hopefully if he does become a civil patient he will have additional resources that may be available in the community to support him”. Dr Xia stated further:

“I would consider that he has a lot more options as a civil patient than as a forensic patient. I would say that [the defendant], in my opinion, and based on his cognitive assessments and functional capacity would be unlikely to really benefit from the rehabilitative model that we have here in the forensic hospital and within the forensic system and, therefore, more external supports would be required to assist him with remaining well both psychiatrically and also in addressing his risk and those supports may be more available as a civil patient.”

Consideration

148. Section 126(5) of the Act provides for what is to occur at a preliminary hearing. If, following the preliminary hearing, the court is satisfied that the matters alleged in the supporting documentation, if proved, would justify the making of an order, then the court must make the preliminary orders sought.

149. The defendant’s opposition to these preliminary orders was directed at the second limb of the statutory test. The defendant accepted for the purposes of the preliminary hearing that if the supporting material before the court was proved, then the first limb would be satisfied, namely, satisfaction that there is a “high degree of probability” that the defendant poses an “unacceptable risk of causing serious harm unless he remains a forensic patient. The issue in dispute concerns the second limb in s 122(1): the defendant contends that his risk could be adequately managed by other less restrictive means.

150. Although the defendant did not dispute that the first limb of the test was satisfied, it is still necessary for me to be independently satisfied of it, given its evaluative nature.

151. As for the “two limb” test generally, I agree with the observations of Garling J in Attorney General v Maguire (No 2) (extracted above at [20]) that it is difficult to see how a court could ever be satisfied that the risk is an unacceptable one (for the purpose of the first limb of the test) if the risk can be adequately managed by a less restrictive means than continuing a person’s status as a forensic patient (the second limb of the test). Despite this, I am required by the Act to approach the test in this way.

152. As for the first limb of the test, I am satisfied that the matters alleged in the supporting documentation, if proved, would establish to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. The expert evidence, which is summarised in the agreed facts, clearly supports such a conclusion.

153. Dr Furst identified the defendant’s treatment-resistant schizophrenia and substance use disorder, coupled with his history of serious violent offending, as the most salient risk factors in relation to the defendant’s future risk of violent offending. His likely underlying cognitive impairment was also considered an additional risk factor. Dr Furst noted the defendant’s ongoing delusions and hallucinations as key considerations in relation to his potential to act irrationally and/or violently in the future. This has been exacerbated in the past by medication non-compliance and drug use.

154. The defendant placed particular emphasis on the 2023 opinion of Dr Elliott in defending the need for an order. Dr Elliott too diagnosed the defendant with a severe form of chronic treatment-resistant schizophrenia with persistent delusional beliefs, auditory hallucinations and thought disorder. He considered the defendant’s condition to be permanent and lifelong. Dr Elliot identified substance use, stressors relating to accommodation, and treatment non-compliance as key risk factors.

155. Various other psychiatrists have provided reports to the MHRT on the defendant’s progress since becoming a forensic patient and have consistently assessed him as suffering from treatment-resistant schizophrenia, with symptoms persisting despite antipsychotic medication. He has consistently been placed as falling within either the high or moderate range for future violence risk.

156. A cognitive assessment test undertaken in March 2024 found that the defendant scored “in the extremely low range” for Immediate Memory, Visual spatial/Construction, Attention and Delayed Memory and in the “low average” range for Language. Although the material shows that the defendant is polite and generally compliant, his psychotic beliefs continue even whilst on clozapine in a secure environment.

157. The defendant’s most serious offending has been directed at family members; whether it was setting fire to his brother’s house, sexually assaulting his ten year old niece or stabbing his brother. It is of some concern that his family do not want any further contact with him, and he does not seem able to fully comprehend this.

158. I am easily satisfied that the first limb of the test is satisfied for the purposes of the preliminary hearing.

159. As for the second limb, the defendant’s position was that there were less onerous options than continuing him as a forensic patient and for that reason the statutory test was not satisfied. Although the defendant’s primary position remains that the defendant should be released into the community and supported in SIL accommodation, it was accepted that this was not possible as the NDIS has declined to fund that option. Rothman J noted the following back in 2023 at [102]:

“The services have not yet been organised and, while the Court accepts that it is likely the services could be organised, the organisation of them depends upon decisions by third parties, beyond the forensic team, the Court or the Tribunal. Thus, for example, while the Court accepts that the defendant would most likely obtain NDIS support, such support depends upon an application and its approval by the relevant authority.”

160. As it happened, although a significant amount of NDIS funding was granted to the defendant ($203,414.47), it is still not sufficient to meet the defendant’s needs in the community. What he needs is SIL accommodation and he has not been funded for that. What has been approved is funding for daily living activities: 56 hours a week for the first 26 weeks reduced to 42 hours for the following 26 weeks. An additional 14 hours per week for other supports was also available.

161. The defendant’s treating team does not consider his NDIS package for daily living activities as being commensurate to his needs and risk.

162. Although the Court was not provided with any documentation about what SIL accommodation involves, counsel agreed that supported independent living involves group accommodation where there is a central office and always someone on site. It was submitted that there is a function for police to retrieve a person if they leave their accommodation and that a guardian or an NDIS provider can have the power to call the police.

163. The defendant was unable to identify any expert who opined that the defendant should be released into the community from 21 March 2025 at the expiration of the current order.

164. The defendant’s secondary position was that the order should not be extended because the defendant could become an involuntary patient under the Mental Health Act and be kept in the same location as he currently is and that would be a less restrictive way to measure his risks. He relied on Dr Elliott’s position in 2023 and some of Dr Xia’s evidence at the MHRT hearing in October 2024 in support of this alternative position.

165. There were a number of evidentiary difficulties with the proposal put by the defendant in support of a submission that there was no statutory basis to even make preliminary orders in this matter.

166. First, there was no recent expert report put before the court that explicitly recommended this option or explained how that would occur in practical terms.

167. Secondly, the only recent note about what would happen if the current order was not extended was that the defendant would be moved to Morisset. This was contrary to the defendant’s submission that he would remain where he was. The expert evidence before me (and before Rothman J in 2023) clearly establishes that the defendant does not respond well to change. If the order is not extended, then it seems there would be a change to his accommodation and treating team.

168. Thirdly, to the extent that the defendant relies on what Dr Xia told the MHRT in October 2024, it is pertinent to note the context of her comments. She was satisfied that there were no further rehabilitative options for the defendant as a forensic patient. In that context, she told the Tribunal that the defendant’s treating team considered the defendant capable of moving forward and that he could, with the necessary support, be managed as a civil patient. She also observed that if the defendant became a civil patient, he could be “stepped down to a civil mental health unit” but “that might be difficult because of his lack of accommodation”. This transcript is not a sufficient evidentiary basis to refuse to make the preliminary orders. This is particularly so when it is noted that two months after Dr Xia gave evidence that the defendant’s voices and delusions had faded away, they suddenly returned.

169. Fourthly, the defendant relied heavily on Dr Elliott’s opinion back in 2023 that the defendant would be ready to be released to the community after 12 months. Dr Elliott’s optimism did not come to fruition. When Rothman J made his order on 21 March 2023, he was hopeful that the defendant’s level of supervision could be gradually reduced so that he could be released at the end of that two year period. Despite the best efforts by all of those who have been treating the defendant, that has simply not been possible. In summary, the following has occurred since 21 March 2023:

170. The defendant was reviewed by the Tribunal on 4 May and 19 October 2023 and on 18 April and 31 October 2024 and remains unfit to be tried.

171. In late 2023, the defendant was referred to the MSU, but the MSU assessment panel did not find DB was ready for this transition. They did not consider that the severity of the sexual offending and violent behaviours of the index offences were appropriately considered in sentencing. The defendant did not cope well with the MSU review process.

172. On 23 June 2024, Dr Furst opined that the least restrictive form of management for the defendant is to remain as a forensic patient.

173. In June or July 2024, a decision was made that the defendant was not eligible for SIL funding.

174. On 22 August 2024, the defendant was assessed by a panel of team members from the MSU of Morisset Hospital and Bloomfield Hospital and it was again concluded that he was not ready for placement at a MSU and not ready for a SIL placement either. It is noted that his treating team disagreed with the MSU panel’s impression that SIL accommodation and assertive mental health follow-up including NDIS supports would not address his diverse risk factors. They did not consider that the severity of the sexual offending and violent behaviours of the index offences were appropriately considered in sentencing. Again, the defendant did not cope well with the MSU review process.

175. On 31 October 2024, the defendant was reviewed by the Tribunal and again found to be unfit to be tried. At the hearing, it was noted that without the SIL funding, the defendant’s treating team no longer intended on proceeding with a direct discharge to the community. Rather, his treating teams’ most recent plan was to “progress him through to the Dee Why ward at the Forensic Hospital, before a transfer to an MSU”.

176. I would make an additional observation about the assessment process in August 2024. The defendant stated during that process that he would “live on the streets” in Taree until he obtained accommodation. That is where his family reside. It was noted that he struggled to understand that his family members might not want to have any contact with him. Further, during that assessment the defendant started expressing “multiple delusional beliefs, including that “the Earth is in danger, there are 3 levels” and that we were shortly due to be “invaded by aliens from outer space”. He also became increasingly distressed and proceeded to respond to auditory hallucinations by telling someone in the corner of the room that he was not a murderer or a paedophile.

177. Having regard to these events since Dr Elliott’s report in 2023, I do not consider his report to be sufficiently up to date as regards the defendant’s current presentation.

178. Finally, the risk assessment report obtained in support of this application by Dr Furst is the only up to date report before the Court and it strongly suggested that a further order was required. The defendant’s counsel was highly critical of Dr Furst in his written submissions and accused him of not being objective and dispassionate and having an “axe to grind”. Despite this, during the hearing he accepted that Dr Furst’s concern that the timeline put to Rothman J was unrealistic was in fact accurate. It seems to me that to the extent that Dr Furst used strong language in that report I understood it to reflect his frustration that although everybody is no doubt doing their best to move the defendant on from being a forensic patient there were limited options given his complex needs.

179. There was insufficient material before me to conclude other than that final orders in this matter would be justified if the supporting documentation was proved. In other words, I am satisfied that the second limb of the test is met as well for the purposes of this preliminary hearing.

180. It may well be that by the time of the final hearing the court-appointed experts can properly address the question of whether now (as opposed to in 2023) the risks posed by the defendant can be met by making him an involuntary patient under the Mental Health Act. As Rothman J pointed out in his judgment at [104]:

“The difference between the supervision implemented by the regime envisaged by Dr Elliott, and for which the defendant agitates [as an involuntary patient], and the regime envisaged, during the conclave, for the defendant as a forensic patient, is extremely nuanced. There are differences. Those differences depend on the role of the Tribunal in the determination of any regime and the reversion to the status of forensic patient where there has been a breach. The method of treating breaches is significant.”

175. I have already noted the comparison between the two statutory regimes undertaken by Adamson J in Doolan. In addition, the Attorney provided a table which compared an extension order being made under the Act and involuntary detention under the Mental Health Act. By way of comparison, it would seem that the relevant differences are as follows.

176. With respect to criteria for release, under s 83(3) of the Act, the MHRT cannot make an order for the unconditional release of a forensic patient who is subject to an extension order or interim extension order, but may make a recommendation to the Supreme Court as to the variation or revocation of the extension order. It can make a conditional release under ss 84 and 85(1) of the Act. For an involuntary patient, under s 12 of the Mental Health Act, the decision to discharge a patient can be made by an authorised medical officer (see also Mental Health Act, ss 42 and 43).

177. Under s 78(d) of the Act, the MHRT must carry out reviews of forensic patients every 6 months, whereas in relation to involuntary patients, the MHRT must review a case at least every 3 months for the first 12 months, and every 6 months thereafter: Mental Health Act, s 37.

178. Under ss 75 and 84 of the Act, there are several matters for consideration when conducting a review in relation to a forensic patient, whilst under s 38 of the Mental Health Act, with respect to involuntary patients, the matters are much more limited.

179. On a review of a forensic patient, the MHRT may make an order as to the patient’s detention, care or treatment (s 81 of the Act), and may impose conditions on their release including those set out in s 85(1). However, for an involuntary patient, the MHRT can only order that a patient be discharged, that they continue to be detained for further observation or treatment, that they be discharged into the care of a designated carer, or for a CTO: Mental Health Act, s 38.

180. Under s 99 of the Act, the MHRT may make a CTO in relation to a forensic patient. Part 3 of Ch 3 of the Mental Health Act applies to the making of a CTO under s 99 of the Act, and also applies to involuntary patients: see Mental Health Act, ss 51, 53, 54. Section 41 of the Mental Health Act is not included in Pt 3 of Ch 3 so does not apply to forensic patients, but does apply to involuntary patients and states that an authorised medical officer must discharge a patient who is detained once a CTO is made regarding them.

181. Under s 109 of the Act, the President of the MHRT may make an order for the apprehension of a person if it appears they have breached a condition of a specific order, whereas for an involuntary patient who has breached a CTO, a director of community treatment must take several steps including having a written record, providing a breach notice, and then providing a breach order that the person be taken to a specified facility: Mental Health Act, s 58.

182. A police officer must apprehend a person where there are apprehension orders under the Act and breach orders under the Mental Health Act. They must apprehend in the case of the Act but must only apprehend in the case of the Mental Health Act where it is practicable. Under the Act, police officers may also enter premises, apprehend without a warrant and exercise powers conferred under s 81 of the Mental Health Act.

183. Given that none of the material put before me in this preliminary hearing suggests that the defendant will be ready to be released into the community in three months’ time, the issue in dispute at the final hearing will no doubt turn on the question of whether the defendant should be held involuntarily under the Act (as a forensic patient) or under the Mental Health Act (as an involuntary patient). The expert reports will no doubt address that issue.

184. Overall, I am satisfied for the purposes of both s 126(5) and s 130 of the Act that the matters alleged in the supporting documentation, if proved, would justify the making of a final order.

Orders

185. Accordingly, I make the following orders:

186. Pursuant to 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act) I appoint 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 I direct the defendant to attend those examinations.

187. Pursuant to ss 130 and 131 of the Act, the defendant is to be subject to an interim order for the extension of his status as a forensic patient commencing on 21 March 2025 for a period of three months.

*********

Endnotes

By reference to the defendant’s custodial record the word “total” in the Agreed Facts should be “concurrent” (p13 of Exhibit “SB-1”).

For the breach of the Community Service Order.

Amendments

24 March 2025

[2] "the abdomen and the neck" instead of "the arm" [3] "25 March 2021" instead of "25 March 2025" [139] "Justice Health progress notes" instead of "OIMS notes" [156] "clozapine" instead of clonazepam" [164] "Dr Xia" instead of "Dr Xua"