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[2026] NSWSC 353
General information, not legal advice.
Supreme Court of NSW
2026-04-14
Yehia J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Attorney General of New South Wales v Delmege (bht Ms Barbara Ramjan) (Preliminary) [2026] NSWSC 353
Hearing dates: 8 April 2026
Date of orders: 14 April 2026
Decision date: 14 April 2026
Jurisdiction: Common Law
Before: Yehia J
Decision: (1) Pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act):
(a) 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
(b) I direct the defendant to attend those examinations.
(2) Pursuant to ss 130 and 131 of the Act the defendant be subject to an interim order for the extension of his status as a forensic patient commencing on 4 May 2026 for a period of three months.
(3) Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.
Catchwords: MENTAL HEALTH – forensic patient – extension of status as forensic patient – index offences of child sexual assault and aggravated indecent assault – history of offences relating to sexual misconduct against children – cognitive features that may influence risk management in the community – capacity to manage emotionally charged or socially complex situation – increased vulnerability to impulsive or poorly considered behaviour – positive progress in the community – continued demonstration of a lack of insight into the inappropriateness of sexual activity with children
Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW), s 5D
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 72(1)(b), 122(1), 124(1)(b), 124(2)(b), 126(5), 127
Mental Health (Forensic Provisions) Act 1990 (NSW), s 33
Cases Cited: Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928
Attorney General of New South Wales v Randall (Preliminary) [2023] NSWSC 226
Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288
Cornwall v The Attorney General for New South Wales [2007] NSWCA 374
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57
State of New South Wales v AB (a pseudonym) (bht Ramjan) (Preliminary) [2025] NSWSC 1357
State of New South Wales v Devaney (Final) [2022] NSWSC 60
State of New South Wales v Kamm (Final) [2016] NSWSC 1
Texts Cited: Practice Note SC CL 12
Category: Principal judgment
Parties: Attorney General of New South Wales (Plaintiff)
Paul Errol Delmege (Defendant)
Representation: Counsel:
A Sapienza
J Brock
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid Commission of NSW (Defendant)
File Number(s): 2026/47307
Publication restriction: Nil
By summons filed on 2 February 2026, the Attorney General of New South Wales (“the plaintiff”) seeks an order under s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”), appointing two qualified psychiatrists, registered psychologists, or medical practitioners (or a combinations of such persons) to examine Mr Delmege (“the defendant”) and report to the Court (with consequential orders).
Pursuant to ss 130 and 131 of the Act, the plaintiff also seeks that the defendant be subject to an interim order for the extension of his status as a forensic patient (an “interim extension order” or an “IEO”) commencing on 4 May 2026 for a period of 3 months. The final relief sought is an extension of the forensic patient status for a period of 2 years from the date of the order.
Ancillary relief is also sought to the effect that access to the Supreme Court’s file shall not be granted to a non-party without the leave of a Judge of the Court and without the parties being notified as to allow them an opportunity to be heard as to the application. I do not understand there to be any opposition to that ancillary order.
The interim relief otherwise sought by the plaintiff is opposed by the defendant.
The application is supported by the affidavits of Annabel Anderson, affirmed on 2 February 2026 and Exhibit AA-1 to that affidavit, and Annabel Anderson’s affidavit affirmed on 23 February 2026. The application is also supported by the Risk Assessment Report (“RAR”), dated 7 November 2025, and the Supplementary Risk Assessment Report (“SRAR”) of Dr Carollyne Youssef, dated 15 December 2025.
The defendant relies on the affidavit of Joanna Kwan affirmed on 16 March 2026, including annexures.
The orders previously made under the Act in relation to the defendant include:
(a) On 8 February 2021, Hoeben CJ at CL made an IEO for a period of 3 months commencing from 9 February 2021 and an order for the appointment of experts under the Act. (b) On 5 May 2021, Wilson J made an IEO for a period of 5 years commencing on 5 May 2021. That order will expire on 4 May 2026.
On 21 February 2026, Ms Barbara Ramjam consented to act as the defendant’s tutor in these proceedings.
Some of what follows is taken from the Statement of the Plaintiff’s Case provided pursuant to cl 6(iii) of Practice Note SC CL 12. The plaintiff relies heavily (although not exclusively) on the RAR and the SRAR authored by Dr Youssef.
The defendant has been a forensic patient since 10 February 2015 and is currently subject to an IEO made on 5 May 2021. On 14 May 2021, the Mental Health Review Tribunal (“the Tribunal”) ordered the defendant’s conditional release from Long Bay Correctional Complex. The defendant currently lives in Morisset with two other residents in shared independent living accommodation, operated by a National Disability Insurance Scheme (“NDIS”) provider.
The defendant’s NDIS plan continues to allow for access to and funding of support coordination, a behaviour support practitioner, occupational therapist, support staff and accommodation. The defendant is also engaged with the Community Safety Program (“CSP”), a program of Corrective Services New South Wales.
The defendant is currently subject to a guardianship order made on 11 March 2024 for a period of 3 years and is a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW) (“Child Protection Act”).
The defendant is 67 years old and has six adult children, some of whom he is still in contact with, and is divorced from their mother. He has 19 grandchildren, the youngest a 4-year-old boy and 5-year-old girl and the oldest is 25 years old. The remaining grandchildren range in age from teenagers to young adults. The material suggests that the defendant has a desire to reconnect with family members including his grandchildren.
The defendant attended high school until he was 15 years old, at which time he decided to leave. The defendant has held employment at an oyster farm and a steel factory. After sustaining a back injury, the defendant received disability support pension payments. The defendant currently earns income by purchasing, restoring, and selling second hand gardening tools.
The defendant experienced hypoxia at birth, resulting in an acquired brain injury, congenital bilateral deafness with severe to profound hearing loss, and dysarthria. The defendant has been previously diagnosed with asthma, epilepsy, and hypertension. He has been treated for gastroesophageal reflux disease and suffered two heart attacks in 2012.
The defendant suffers from a number of cognitive and adaptive functioning deficits in the areas of verbal reasoning, attention, mental control, and socialisation. He denies ever being diagnosed with a mental health condition, though he has previously been diagnosed with a major depressive disorder, and has been treated with mirtazapine. The defendant has also been assessed as meeting the diagnostic criteria for paedophilic disorder, erectile disorder, and alcohol and cannabis use disorder.
The defendant’s criminal history includes sexual offending against children.
On 28 May 2012, the defendant was sentenced in respect of two counts of aggravated indecent assault committed sometime between January and December 1995. The victim, who was 10 or 11 years old, was the friend of one of his daughters. He was sentenced to terms of full-time imprisonment, namely, 8 months (first count) and 18 months (second count).
On 15 February 2013, the defendant was charged with two counts of committing an act of indecency (with one person under and one person over 16 years old). These offences were dealt with under s 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW). These offences arose from the defendant masturbating on a train in front of two school students.
(a) between 6 February 1988 and 6 February 1989, having sexual intercourse (performing cunnilingus) with a child under 10 years (namely, seven years); and (b) between 25 September 1992 and 31 December 1992, committing indecent assault against a person (fondling her breast) in circumstances of aggravation (namely, that the person was under the age of 16 years).
The defendant does not dispute that the statutory preconditions as to the making of the orders sought are satisfied. In summary, the defendant is a forensic patient for the purposes of s 124(1)(b) of the Act because he meets the definition in s 72(1)(b), being a person who, following the expiry of a limiting term having been nominated after a special hearing, is now subject to an IEO and has been released from custody subject to conditions under an order made by the Tribunal.
The current IEO expires on 4 May 2026. Accordingly, the application has been made within the six-month period required by s 124(2)(b) of the Act.
The plaintiff’s case is helpfully set out in the Statement of the Plaintiff’s Case, filed pursuant to cl 6(iii) of Practice Note SC CL 12. The plaintiff acknowledges that the defendant’s generally good compliance with the conditions of his release demonstrate that he responds relatively well when there is a clear limit in place (such as no contact with children).
However, it is contended that the material indicates that the defendant is otherwise unclear as to where appropriate boundaries lie, particularly, in relation to children, such that he poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient and subject to the associated conditions.
The plaintiff submits that the defendant needs to be under appropriate supervision while the possibility of a relationship with his grandchildren is explored. In circumstances where the conditions on release involving prohibition on alcohol and a requirement to be in close proximity to support staff while in the community have only recently been removed, it is submitted that the defendant ought to remain under the Tribunal’s supervision for a period to ascertain how he self manages his conduct in the absence of such conditions.
Furthermore, the plaintiff submits that the defendant is already living in the community and that the extension of his status as a forensic patient is the least restrictive means of managing the risk he poses.
The plaintiff relies upon the RAR of Dr Youssef, in particular, paragraph 20 of that report, which is said to demonstrate the defendant’s continuing lack of insight into the inappropriateness of sexual activity with children.
The plaintiff submits that the defendant poses a risk of harm to others which has the potential to be serious if he ceases to be a forensic patient and is not subject to any other type of protective order.
Dr Youssef is of the view that given the defendant’s reluctance to engage in services, it is unlikely that he will seek or engage in treatment and supervision if he were to cease being a forensic patient.
The plaintiff emphasises that there can be little doubt that, were the defendant to reoffend by sexually assaulting a child, the harm caused would constitute serious harm.
The plaintiff further submits that the least restrictive form of management for the defendant’s risk of harm to others is a continuation of his status as a forensic patient. Any existing care or support provided, without the defendant remaining a forensic patient, would be insufficient to address and manage the risk he presents as he seeks greater independence.
The defendant opposes the orders sought, submitting that any risk posed by the defendant cannot be considered unacceptable nor is it a risk that cannot be adequately managed by less restrictive means.
In support of those contentions the defendant relies upon the following:
(a) Firstly, the most serious offences are dated, and the defendant’s circumstances have radically changed. (b) Secondly, the defendant has been incarcerated for a substantial term as a consequence of his past conduct. This is an outcome that logically provides powerful deterrence for any future misconduct. (c) Thirdly, the defendant has demonstrated his capacity to live lawfully in the community. (d) Fourthly, the defendant’s capacity is reflected by his elimination of a past risk factor, namely, alcohol misuse. (e) Fifthly, any residual risk is attenuated by the combined effect of other protective measures including his status on the Child Protection Register and guardianship orders. Such measures are further enhanced through support under the NDIS.
The defendant rightly points out that the remarks of Hoeben CJ at CL and Wilson J (in the original extension orders) must now be heavily qualified given the five years that have elapsed and the positive developments that have taken place.
A prominent concern at the time of making those orders was the potential impact of the misuse of alcohol. The defendant has demonstrated his responsiveness to that concern through his compliance with prohibition. Furthermore, there has been a lengthy period in the community where the defendant has not sexually offended or displayed sexually problematic behaviours.
In respect of the opinions expressed by Dr Youssef, the defendant questions whether the risk identified would be considered “unacceptable”, bearing in mind the onus that requires evidence capable of establishing that threshold to a high degree of probability. The defendant pointed to Dr Youssef’s assessment that the defendant was able to learn and retain verbal information particularly when repetition was provided. Additionally, he has the capability of managing impulsivity and delaying immediate gratification (as demonstrated by his abstinence).
The defendant points to Dr Youssef’s acknowledgement that any paraphilic disorder may be in remission, an observation that is said to be well-founded given that it has been nearly 13 years since the defendant last committed a sexual offence. More generally, the point is made that there appears to be some diagnostic ambiguity with respect to the defendant.
The defendant acknowledges that the representations during the risk assessment interview cause understandable concern. However, the challenges in communication with the defendant raise a valid question about the significance of the communication described. The defendant submits that there is a step between the expression of an inappropriate attitude and the prospect of it resulting in criminal conduct.
Furthermore, Dr Youssef appropriately noted that the defendant has some insight given his awareness that he should avoid being physically present with younger people, explaining that he would remove himself from a situation where there may be young females present.
The defendant also points to Dr Youssef’s observation about the limitations on the actuarial tools in assessing risk.
The defendant contends that the Court would not be satisfied, even at a preliminary stage, that the risk posed is unacceptable for the following reasons.
Firstly, the defendant’s offending has not been frequent and is now significantly dated. Secondly, whilst not unqualified, the defendant has insight about the unlawfulness of relevant behaviours. Thirdly, the defendant has remained abstinent which is indicative of a capacity to manage risk factors. Fourthly, the defendant not only complies with medication regimes but assumes responsibility for them. Fifthly, the defendant reported an attempt by the victim of the index offences to contact him. Sixthly, on the whole, the defendant has had appropriate dealings with staff and other residents and demonstrated a recognition of the need to work cooperatively in a communal environment.
The defendant submits that the evidence in this preliminary application does not meet either limb of the test under s 126(1) of the Act to a high degree of probability.
At this stage, the plaintiff is seeking interim orders, namely, an IEO and an order requiring the defendant be examined.
The orders sought can only be made if the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the Court being satisfied to a high degree of probability that:
(a) the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient; and (b) the risk cannot be adequately managed by other less restrictive means.
This is said to create a two-pronged test. The Court must be satisfied of this to a “high degree of probability”: Cornwall v The Attorney General for New South Wales [2007] NSWCA 374 (“Cornwall”) at [21]. The orders appointing the experts must be made if the Court is so satisfied. However, there remains a discretion in the Court whether to make the IEO even if the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order: *State of New South Wales v AB (a pseudonym) (*bht Ramjan) (Preliminary) [2025] NSWSC 1357 at [25].
The statutory tests that appear in s 122(1) of the Act are the same tests used in the Crimes (High Risk Offenders) Act 2006 (NSW) (“CHRO Act”). In the absence of statutory definitions in the Act of the relevant terms, this Court has applied principles developed in the context of the CHRO Act to applications for extension orders under the Act.
It is useful to set out some of the relevant principles.
Firstly, the onus rests on the plaintiff to satisfy the Court “to a high degree of probability” that the defendant presents an unacceptable risk that cannot be managed by less restrictive means.
Secondly, the word “unacceptable” relevantly means “so far from a required standard, norm expectation, etc as not to be allowed”: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [51].
Thirdly, the unacceptability of risk involves consideration of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate. An unacceptable risk does not require that the offender is more likely than not to commit a serious offence: s 5D of the CHRO Act. Rather, the unacceptability of risk is a calculus based on the likelihood of risk eventuating and the potential consequences if it does eventuate: State of New South Wales v Kamm (Final) [2016] NSWSC 1 (“Kamm”) at [41]. Thus, an offender may pose an unacceptable risk, even where the likelihood of committing another serious offence is low, if the likely consequences of such an offence are very grave: Kamm at [41] and [43]; State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73].
A low level of risk may be unacceptable where the attendant harm is potentially high, although the exercise remains a forward-looking enquiry and cannot be resolved by mere speculation.
Fourthly, the term “serious harm” is not defined in the CHRO Act. R A Hulme J in Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 at [16] said that “serious harm” can include either physical or psychological harm. His Honour said that the physical harm does not require a concern of harm to the level of “grievous bodily harm” but must be more than “actual bodily harm” and that the psychological harm must be “something more than emotions such as fear or panic”.
Fifthly, a high degree of probability is “a higher standard of proof than the normal civil standard, although it requires less than the criminal standard of beyond reasonable doubt”: Attorney General of New South Wales v Randall (Preliminary) [2023] NSWSC 226 at [18] citing Cornwall at [21].
This higher standard emphasises that orders are not to be made putatively or for actual conduct by a defendant but on the basis of a predictive exercise related to their future risk.
Sixthly, at a preliminary stage the Court assesses an application through the lens of the plaintiff’s case, thereby permitting the Court to take the evidence at its highest. That said, proceeding on the evidence taken at its “highest” should not distort an objective assessment of the evidence which must be assessed holistically. The “circumstances surrounding the evidence may indicate that its highest level is not very high at all”: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [50].
Seventhly, in considering the management of risk through less restrictive means, adequate management should be understood to mean that “the unacceptable risk is mitigated by the proposed management regime so that the community’s interest in being kept safe is outweighed by the community’s interest in not having mentally ill or mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community”: Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 at [63].
It is with these principles in mind that I turn to consider the supporting documentation and determine the issues in this case.
“Mr Delmege reported being attracted to younger women who are slim. He said that he finds adolescents attractive, however understands that he cannot have sexual intercourse with someone under the age of 16 years. When asked about a sexual interest in children, Mr Delmege indicated that he finds adolescent and prepubescent females attractive, however he knows it is illegal. He then said that whilst he ‘would like to be with an’ 18-year-old female, he recognises that he is ‘too old now’, though ‘if they want me to do it to them’ he would engage in sexual activity with them. I clarified whether this also applied to prepubescent females and Mr Delmege said that if an eight-year-old ‘jumped on me, then what can you do’ saying that ‘if she wants me to, then I would do it’, referring to sex. I do note that Mr Delmege has previously report that he understands that if there were children present, ‘I wouldn’t be there’.”
There may be an argument, on the final hearing of the matter, as to whether the exchange with Dr Youssef is a product of the defendant’s cognitive limitations and communication issues. However, this is a preliminary hearing and as such there has been no opportunity for the defendant to cross examine Dr Youssef or challenge the foundation of her opinion.
The interpretation of this exchange has to be approached in a nuanced way. On the one hand it demonstrates that the defendant understands that having a sexual interest in children is “illegal”. However, on the other hand (taken at its highest) it reflects the defendant’s lack of insight and understanding of the fact that a child cannot consent to sexual activity. The exchange suggests that the defendant believes that if a child behaves in a way that he interprets to be sexually suggestive or inviting, there is nothing wrong in engaging in sexual activity with that child. At least at face value, it suggests that the defendant does not understand the concept of consent (or the lack of capacity to consent to sexual activity) in the context of sexual activity with children.
Dr Youssef explained the way in which the defendant’s cognitive features may influence his risk management in the community:
“…Limited verbal reasoning and working memory could affect his ability to anticipate social consequences, accurately interpret others’ intentions, or apply learned coping and relapse prevention strategies in real-world contexts. Slower processing speed may further reduce his ability to manage emotionally charged or socially complex situations in the moment, increasing vulnerability to impulsive or poorly considered behaviour. His relative nonverbal reasoning strength may allow him to learn and apply risk management strategies more effectively when presented through visual or experiential formats (e.g., role-plays, pictorial materials, or video-based learning).”
(a) The defendant meets the DSM-5 criteria for a diagnosis of paedophilic disorder (non-exclusive, sexually attracted to females); erectile disorder (acquired, generalised, moderate); alcohol use disorder (severe); and cannabis use disorder (moderate). The defendant’s substance use is in sustained remission. (b) The defendant is assessed as having “borderline” cognitive functioning. His verbal comprehension and working memory are in the “extremely low” to “borderline” range. His processing speed is “below average” and his perceptual reasoning is “average”. Dr Youssef notes that the defendant has been diagnosed as having a moderate intellectual disability but that it is unclear when or by whom that diagnosis was made, noting that the results of various cognitive assessments do not reflect a moderate level of disability. (c) The defendant poses a risk of harm to others, which has the potential to be serious, if he ceases to be a forensic patient and is not subject to any other type of protective order. The defendant was assessed as an overall “above average” risk of sexual reoffending and a “moderate” likelihood of sexual offending if no special management plans are in place. Particularly salient dynamic risk factors were identified to include deficits in the defendant’s general self-regulation and sexual self-regulation, marked interpersonal and attachment deficits, and limitations in insight. It was noted that the defendants expressed interest in meeting his grandchildren presents “a novel risk situation”. (d) The defendant should continue to have restricted access to children with any contact occurring only under direct and continuous supervision by approved adults. (e) The least restrictive form of management for the defendant is a continuation of his status as a forensic patient which will allow for continued external support, monitoring, and external controls that serve as protective factors. (f) Any existing care or support provided to the defendant without his remaining a forensic patient, would be insufficient to address and manage the risk he presents as he seeks greater independence. (g) The appropriate duration of an extension order would be 18-24 months, a period that would be appropriate to provide continued support as the defendant transitions towards more independent living.
The CSP has prepared several reports in relation to the defendant. A report of Ms Sinead Corcoran, senior clinical consultant, dated 30 September 2025, was prepared for the purpose of being submitted to the Tribunal for the defendant’s most recent review.
In summary, although Ms Corcoran noted 19 incident reports of behaviours of verbal aggression during the assessment period, she was of the view that these incidents do not have a direct association to the defendant’s risk of sexual recidivism and that they reflect the defendant’s functional capacity associated with cognitive impairment rather than criminogenic factors.
Ms Corcoran reported that the defendant fell within the “above average risk” of sexual recidivism but that his risk is significantly mitigated by protective factors associated with “ongoing compliance [with] his legal orders, ongoing abstinence from alcohol, and his engagement in meaningful, goal orientated activities”.
Ms Corcoran noted that the defendant has had independent community access since May 2023 and has not displayed any reported incidents of problematic sexualised behaviour, alcohol or drug use, or behaviours that would be indicative of his seeking contact with children.
Furthermore, Ms Corcoran reported that the defendant has shown growing awareness of his risks, particularly in relation to children, and has implemented effective avoidance strategies, suggesting a growing capacity for self-management in the community. The defendant’s independent community access plan aims to increase his practice of self-management of risk and progressively step-down restrictions over time.
The Tribunal has reviewed the defendant on a number of occasions whilst he has been a forensic patient. Notably, on 6 May 2021, the Tribunal reviewed the defendant and ordered that he be conditionally released from Long Bay Correctional Complex. On 14 May 2021, the defendant was conditionally released pursuant to an order of the Tribunal. The defendant was ordered to be accompanied in close proximity by support staff at all times in the community.
On 2 May 2023, the Tribunal amended the order that the defendant is to be accompanied in close proximity by support staff or his case manager at all times in the community, to exclude when he is engaging in his independent community access planned activity. The Tribunal also amended the order that the defendant is not to initiate or attempt to initiate communication with the victim to provide an exception for when contact is made through his case management team. The latter amendment was prompted by reports that the defendant had been contacted by the victim of the index offences and that they wish to establish the familial relationship.
On 8 April 2025, the Tribunal ordered that condition 9 of the defendant’s conditions of release (prohibiting the consumption of alcohol) be removed. In its reasons for decision, the Tribunal referred to the opinion of Mr Wu (CSP case manager) that the removal of the alcohol prohibition condition would provide a means of demonstrating the defendant’s capacity to self-manage.
On 14 October 2025, the Tribunal reviewed the defendant and ordered that condition 15 (being accompanied in close proximity by support staff in the community) be removed.
(a) It was necessary to impose a limiting term of the type which would have been imposed on the defendant had he been sentenced for these matters shortly after the offending; (b) The index offending was “somewhere below mid-range” in terms of objective seriousness; (c) The profound effect of the index offending against the victim at such an early age; (d) The defendant’s “not insignificant” cognitive disability as well as the physical disability associated with his deafness which, whilst not causally linked to the index offending, reduced his moral culpability; and (e) The defendant’s case was “not a good vehicle for general deterrence”, nor for the issue of personal deterrence having regard to the passage of time and the defendant’s age.
(a) The weight of evidence before the Court supported the “inevitable conclusion that the defendant presents a risk to others in the community and, particularly, of committing sexual offences against young girls”; (b) If the defendant were to sexually assault or otherwise sexually engage with an underage child, the outcome for that child will be an adverse one, and likely severely adverse and catastrophic for the child involved; (c) Though accepting that there are agencies and persons who are available to assist the defendant (including police supervision under the Child Protection Act, a guardian appointed under a guardianship order, the Mental Health Advocacy Services, the NDIS, Statewide Disability Services), that supportive regime is neither an acceptable means of mitigating risk, nor is it necessarily the least restrictive; and (d) The guardian’s powers do not match those of the Tribunal and the guardian has no power to compel the defendant to do a particular thing or to sanction him. Moreover, the regime provided for under the Child Protection Act is of reporting and prohibition, rather than continuous supervision. For an individual with the defendant’s level of cognitive impairment, and his lack of insight, it is highly questionable as to whether this regime, and the fear of the sanction of a criminal prosecution and potential imprisonment, will have the effect of controlling the defendant’s conduct.
The determination of this matter has not been a straightforward exercise. I acknowledge that community safety is a paramount consideration, but I also acknowledge that the legislation does not provide that a finding of any risk makes out the test required under the Act.
Disposition of the matter has required a consideration of all of the material, undertaking a holistic approach to the evidence. Given the diagnostic ambiguity evident in the material, I have not placed much weight on the finding of a paraphilia disorder (which may be in remission if indeed accurately diagnosed).
On the one hand, the views expressed at the time the IEO was made are qualified given the five years that have elapsed. In that time, the defendant has not reoffended and there is no evidence that he has displayed inappropriate sexual conduct towards children.
The defendant has been compliant since his release to the community and demonstrated his responsiveness to the potential impact of misuse of alcohol by maintaining abstinence even after a condition mandating prohibition was deleted.
The report of Ms Corcoran from the CSP is generally positive and demonstrates that the defendant has been progressing well in the community. Although the defendant remains above average risk based on static risk factors, his risk of sexual recidivism is significantly mitigated by protective factors associated with ongoing compliance of his legal orders, ongoing abstinence from alcohol, and his engagement in meaningful goal orientated activities which contribute to a purposeful routine. The defendant has demonstrated a growing awareness of his risks, particularly in relation to children, and has implemented effective avoidance strategies. I accept that this insight suggests a growing capacity for self-management in the community.
On the other hand, the period of stability must, in my view, be seen in the context of the defendant’s circumstances. That is for the vast majority of the time the defendant has been in a highly structured environment, subject to conditions imposed by the Tribunal.
Although the defendant appears to understand the unlawfulness of sexual behaviour against children (demonstrated by the fact that there have been no incident reports suggestive of problematic sexualised behaviour), he continues to demonstrate a lack of insight into the inappropriateness of sexual activity with children. A matter of concern, at this preliminary stage of the proceedings, is his representation to Dr Youssef that “if she wants me to, then I would do it”, referring to a potential situation where an eight-year-old were to “jump” on him.
The content of this exchange, and the timing of the representations (17 October 2025, the date of assessment), give rise to concern. In determining whether the plaintiff has discharged its onus, the Court is not limited to the evidence of the exchange between the defendant and Dr Youssef.
Dr Youssef opined that with respect to sexual offending risk, the combined STATIC-99R and STABLE-2007 score places the defendant in the “above average” risk category for sexual offending. With regards to imminence of sexual offending, he is considered a “moderate” risk if no special management plans are implemented. The potential consequences if the risk of sexual offending does eventuate, are grave.
Furthermore, although the defendant has demonstrated the capacity to remain abstinent from alcohol use over a lengthy period, he has not expressed any interest in participating in treatment or other forms of intervention.
I have also had regard to the defendant’s criminal history. He has come before the court on three separate occasions for sexual offending against children involving offences with varying degrees of seriousness. Albeit that the index offences are dated (and to a lesser extent, the most recent offending conduct), that past conduct is relevant at least as one of a number of factors relevant to an assessment of whether the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient.
The defendant has expressed a desire to reconnect with family members, including his grandchildren. Some of those grandchildren are adults, others are as young as four and five years old. There is no evidence before the Court as to how any such contact (if it was to occur) would take place so as to ensure the safety of the children. Dr Youssef’s conclusion is that it is only with the supervision that an extension order entails that the defendant’s risk of reoffending against children can presently be managed, particularly considering his recently expressed desire to have a relationship with his grandchildren.
At this stage of the proceedings (and having particular regard to the fact that Dr Youssef’s opinions and conclusions have not been able to be tested), I am satisfied that the plaintiff has discharged its onus and find that I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order: s 126(5).
Furthermore, on the material currently before me, I am not of the view that the risk could be managed by less restrictive means.
The defendant’s NDIS plan commenced on 5 September 2023 and has since continued. The total funded support per year is $277,927.94, which includes funding for support in independent living, for unexpected or unplanned situations, social and civic participation, travel, and therapeutic services.
The plan addresses various goals of the defendant, for example, funding is allocated to supported independent living regular supports to assist with the defendant’s daily tasks, like personal care or cooking meals. Funding is also allocated for a speech pathologist and occupational therapist to provide support to maintain his functional communication skills and functional skills. There is funding for specialist behavioural intervention and behavioural management supports. The defendant has access to 40 hours of support coordination to support him in connecting to, engaging with, and coordinating his chosen service providers. These supports are available to the defendant if he is willing to engage with them. In the absence of such willingness, he cannot be compelled to participate or engage in any programs.
The defendant is subject to a limited guardianship order until 10 March 2027. The guardian(s) are granted custody of the defendant to the extent necessary to carry out specified functions, namely, to decide where the defendant may reside, and to make decisions about services to be provided to the defendant.
The defendant is also subject to a number of obligations by virtue of the Child Protection Registrar. Although I accept that the defendant has demonstrated a capacity for responsiveness to what was described as a “rules-based order”, his obligations do not require seeking permission to be in the company of children before the event.
I am not persuaded that the risk posed by the defendant can be managed by less restrictive means. Although the defendant is not subject to onerous conditions, the conditions do provide the clarity, structure, and oversight necessary to mitigate risk.
Having been satisfied to a high degree of probability that the defendant poses an unacceptable risk, I am not persuaded that I should exercise my discretion not to make an order.
As noted earlier, these conclusions have been reached on the material available to the Court in this preliminary hearing in circumstances where the evidence of Dr Youssef is to be taken at its highest (albeit in the context of all the other evidence tendered in the proceedings).
The result may be very different at a final hearing where the defendant has an opportunity to test and challenge the opinions of the experts and adduce evidence to rebut those opinions.
Accordingly, I make the following orders:
Pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act):
(a) 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 (b) I direct the defendant to attend those examinations.
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Attorney General of New South Wales
Delmege
(2016) 257 CLR 300
(2016) 91 NSWLR 636