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Representation: Counsel:
W Liu (Plaintiff)
S Talbert (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid New South Wales (Defendant)

File Number(s): 2026/00336536

Publication restriction: Nil

JUDGMENT – EX TEMPORE (REVISED)

1. By summons filed 14 August 2026, the plaintiff seeks orders pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (‘the Forensic Provisions Act’), that the defendant’s status as a forensic patient be extended for a period of two years, or such other period as the Court determines.

2. The matter was listed before me today for a preliminary hearing under s 126 of the Forensic Provisions Act seeking the following:

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

a. Appointing two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) to conduct separate examinations of the [d]efendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

b. Directing the [d]efendant to attend those examinations.

2. An order pursuant to ss 130 and 131 of the Act, that the defendant be subject to an interim order for the extension of his status as a forensic patient commencing upon the expiry of his limiting term on 15 November 2026, for a period of 3 months thereafter.

3. The plaintiff also seeks an order that the defendant be identified in these proceedings by the pseudonym ‘JED’. I am satisfied that it is appropriate to make that pseudonym order. The evidence before the Court, and the evidence that will be canvassed at least briefly in these reasons and in more detail at final hearing, include events from when the defendant was a child and also involve offending found pursuant to a special verdict, to which I will return, towards a complainant who at the time was a child. I am satisfied that it is appropriate, to give effect to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and to avoid the risk of unintentional publication of names in a manner inconsistent with that provision, to make the pseudonym order requested by the plaintiff.

4. The defendant does not oppose any of the orders sought before the Court today.

Background

5. The defendant is a 29-year old Aboriginal man, diagnosed on the State’s evidence with autism spectrum disorder, substance abuse disorder, and neurodevelopmental impairments (language difficulties and specific learning disorder). He has been assessed as having a mild intellectual disability.

6. On 1 May 2023, the defendant was charged on indictment with two counts of sexual intercourse with a child between 14 and 16 years old (s 66C(3) of the Crimes Act 1900 (NSW)). On 31 October 2024, Judge Musgrave of the District Court determined that the defendant was not fit to stand trial and would not become fit in 12 months. Her Honour conducted a special hearing and found the defendant guilty on the limited evidence available.

7. The index offences, on the limited evidence available at the special hearing, took place between 5 and 20 November 2021, when the complainant was 15 years old and the defendant was 24 years old. On two occasions between those dates, while the complainant was staying at the defendant’s house, the defendant had penile-vaginal intercourse with the complainant.

8. Her Honour nominated limiting terms for each offence, with the term for count 1 to expire on 15 September 2026 and for count 2 to expire on 15 November 2026.

9. The defendant has been before the Mental Health Review Tribunal on 4 December 2025 and on 22 May 2026. On both occasions, the Tribunal found no evidence that the defendant was fit to stand trial and determined that he should remain in a correctional centre for care and treatment.

Legal principles

10. Given the defendant’s non-opposition to the orders sought at the preliminary hearing, the principles can be very briefly stated.

11. If the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Court must make orders under s 126(5) for the appointment of two qualified practitioners to examine the defendant and prepare reports to the Court. In that event, if it appears that the limiting term will expire before the proceedings are determined, the Court may make an order under s 130 for the interim extension of a person’s status as a forensic patient.

12. At final hearing, the Attorney will bear the onus of satisfying the Court, 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.

Mandatory considerations in s 127(2)

13. The Court must have regard to the matters set out in s 127(2)(a) to (i) of the Forensic Provisions Act.

14. I address the mandatory considerations, so far as they arise for consideration at this preliminary hearing.

Safety of the community

15. According to the agreed facts, the defendant has an extensive criminal history, including a significant number of violence offences or aggressively intimidating behaviour (common assault, assault occasioning actual bodily harm, contravention of ADVOs, intimidation and intentional choking). Some of that occurred when the defendant was a minor and I take that into account when considering those offences.

16. In custody, the defendant has had several instances of reported misconduct, including assaulting a fellow inmate in custody, being in possession of a gaol-made syringe, and being in a shared cell with another inmate where authorities discovered possession of an offensive weapon (described as a rubber glove with two razor blades protruding). The defendant emphasises in submissions before me that the evidence does not establish that the defendant was in exclusive possession of the item, or even that he was knowingly in joint possession.

17. The defendant has an extensive history of substance abuse.

18. On the State’s case, the medical evidence indicates that the defendant becomes easily emotionally dysregulated. He has poor inhibitory control when he becomes frustrated and angry, making him more likely to act aggressively, and his cognitive impairment renders him incapable of understanding the consequences of his actions. I make no finding that this is the case but I am satisfied that the matters alleged in the State’s documentation, if proved, will establish these matters.

Report under s 125(b)

19. The Attorney relies on a risk assessment report prepared by neuropsychologist Ms Lisa Zipparo dated 21 April 2026, and two supplementary reports, one dated 11 May 2026 and one dated 25 September 2026.

20. Ms Zipparo expresses the view that the defendant poses a “high” or “above average” risk of causing serious harm to others if he ceases to be a forensic patient. She observes that he presents with several areas of cognitive impairment and meets criteria for several neurodevelopmental disorders including specific learning disorder, attention deficit hyperactivity disorder and autism spectrum disorder. These and his background of developmental trauma contribute to emotional dysregulation and subsequent substance abuse.

21. Ms Zipparo expresses the view that the defendant appeared to cope well with the routine and the predictability of prison, and that a strict and highly predictable routine once he returns to the community may be protective for him. She considers that an extension of his forensic patient status is the least restrictive form of managing his risk, including because his needs upon returning to the community will be complex and will require significant structure, support and supervision.

Any other report by psychiatrist, psychologist or medical practitioner

22. I have reviewed and received submissions about the following reports, relevant conclusions from which have also been extracted by the parties in the agreed facts before me:

23. two psychiatrists’ reports in relation to the defendant’s fitness to plead, a report of Dr Dornan of 8 April 2024 and a report of Dr Martin of 17 July 2024;

24. a report of Dr McSwiggan, neuropsychologist, dated 29 August 2025, prepared for sentence or imposition of limiting term; and

25. a report of Dr White, neuropsychologist, dated 23 April 2026, prepared for an application under the NDIS.

26. I have taken those reports into account along with the other material in the Court Book.

Any relevant order or decision of the Mental Health Review Tribunal

24. As I have indicated, the Court has the reasons following review by the Tribunal on 4 December 226 and 22 May 2026.

25. On 4 December 2025, the Tribunal (among other things) recognised that NDIS funding was an essential component of the defendant’s transition to the community. The Tribunal also said that, while the defendant should remain in a correctional centre, planning for his release should commence immediately under the auspices of the Community Safety Program (‘CSP’).

26. On 22 May 2026, the Tribunal noted that an application for NDIS assistance had at that stage been rejected. The defendant’s evidence before me indicates that funding was obtained soon thereafter, on 27 May 2026. This may assume particular significance at final hearing.

27. The Tribunal noted on 22 May 2026 that the defendant was cooperating with CSP Transition services. The Tribunal received evidence suggesting that the defendant’s best chance of stability would be to have an opportunity to settle in the community “with maximum support and a careful transition”. The Tribunal considered that this would also lower any ongoing risk to the community. The Tribunal was specifically satisfied of the following matters:

(1) [JED] has a diagnosis of cognitive impairment and substance use disorder. [JED’s] longitudinal symptoms include deficits in learning, memory and emotional regulation (s 75(a));

(2) [t]here are reasonable grounds to believe that care treatment and control is necessary for [JED’s] own protection from serious harm or the protection of others from serious harm (s 75(b));

(3) [t]hat without [JED’s] detention and treatment [JED’s] condition is likely to deteriorate (s 75(c));

(4) [t]hat MRRC at which [JED] is presently detained, is appropriate having regard to the patient’s needs and to the patient’s safety and the safety of others (s 70(2)); and

[t]he tribunal is not satisfied on the evidence at this review that [JED] has become fit to be tried (s 80(1), s 45 MHCIFPA).

28. The Tribunal concluded:

28. The next review will be listed for 9 October 2026. However, if a comprehensive NDIS plan with suitable community and housing support and drug and alcohol treatment is finalised and ready prior to that date, the matter could be considered for an earlier listing. To be clear, no submissions were made in relation to whether [JED] would have spent sufficient time in custody if released prior to 15 November 2026 and that would be a question for any future Tribunal if the matter is re-listed.

Any report of any other government department responsible for detention, care or treatment

29. The Court has reports to the Tribunal of the CSP.

30. The Court also has a letter from a senior clinical consultant at CSP, endorsed by the team leader, dated 3 February 2026, setting out recommendations and information about community based supports and services specific to transition planning from custody to the community.

31. In that document the defendant is assessed, “above average” risk of sexual recidivism and general reoffending.

32. There are recommendations in relation to accommodation and other interventions. There are specific recommendations for a comprehensive mental health assessment with a psychiatrist with expertise in cognitive impairment, substance use and developmental trauma, as well as a speech pathology assessment, a sensory assessment, an adaptive assessment and a comprehensive physical health assessment.

33. The author of that letter emphasises that the defendant has complex support needs, and her letter should not be used as the only source of information.

Level of compliance with obligations while forensic patient

34. As I have indicated, the evidence before me indicates some misconduct while in custody, including being in possession or joint possession of an offensive weapon, and having recently engaged in combat with another inmate.

35. On the material before me, the defendant is currently being investigated for charging rent to other inmates for gaol-issued electronic tablets.

Views of the Court that imposed the limiting term

36. I have read Judge Musgrave’s reasons following the special verdict hearing on 1 May 2025 for finding on the limited evidence available that the offences were proven. I have also read her Honour’s remarks on imposing the limiting terms.

37. Her Honour described the offending as “rather opportunistic”. Her Honour considered that the defendant’s previous offending, including breach of parole, showed a disregard for court orders, and that his continued disobedience of the law does not augur well for his prospects.

38. Her Honour recognised (as do I) the defendant’s background of significant disadvantage. Her Honour found a direct nexus between the defendant’s neurodevelopmental disability and the offending.

39. She recognised his lack of remorse and potential inability to take responsibility.

Threshold matters

40. It is common ground that the defendant is a forensic patient under the Forensic Provisions Act. The application was made in accordance with ss 124-125, including the provision of a report as required by s 125(b).

41. Given the time that it will take for the defendant to be examined by two qualified practitioners, for their reports to be furnished to the Court, and for the parties to prepare evidence and submissions, it appears that the limiting term will expire before the proceedings are finally determined.

42. The Court’s power to make the orders sought therefore turn on whether the matters alleged in the supporting documentation would, if proved, meet the two limbs of s 122(1).

First limb of s 122(1): unacceptable risk of causing serious harm to others

43. When I take the evidence before the Court into account, viewed through the lens of the mandatory considerations in s 127(2), I am satisfied that the Attorney’s documentation would, if proved, establish to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others.

44. The Attorney in written submissions articulates a number of matters that are relied upon. Some of those matters or their significance may be in dispute at final hearing, but I am satisfied for the purpose of preliminary hearing that the matters alleged in the documentation would, if provided, satisfy the Court of this first limb to a high probability.

Second limb of s 122(1): risk cannot be adequately managed by other, less restrictive means

45. Ms Zipparo in her reports considers other possible means of managing the risk posed.

46. Ms Zipparo opines that classification as an involuntary patient under the Mental Health Act 2007 (NSW) is not available because defendant is not a mentally ill person under the M**ental H**ealth Act.

47. Ms Zipparo says that while a community treatment order (‘CTO’) may be a useful tool for ongoing management once a treatment regime and day to day routines are well established, it is not sufficient for the defendant’s safe transition to the community. She noted in her supplementary report that a CTO may also depend on a further assessment, diagnosis and treatment recommendations by a psychiatrist.

48. Ms Zipparo does not consider a guardianship order to be suitable to provide day-to-day supervision to enable a safe transition back to the community.

49. Ms Zipparo observes that although the NDIS plan has now been approved, it is not focused on community safety.

50. Ms Zipparo does not consider there are other less restrictive means available and none have been brought to the Court’s attention for today’s purposes.

51. In Ms Zipparo’s opinion, extension of forensic patient status would enable “robust supports” to be put in place.

52. I am satisfied that the matters alleged in this documentation would if proved, establish to a high degree of probability that the risk cannot be managed by other less restrictive means.

53. I make no observation about whether the material before the Court discloses a basis for an extension order for as long as two years. Some of the material identifies the objective as being for robust supports to be put in place when the defendant is ready for release. I stress that will be a matter for final hearing.

54. I recognise the defendant’s reservation of his right at final hearing to oppose the orders sought there. Nothing in the defendant’s non-opposition today is taken as an agreement to any particular risk assessment.

55. I am satisfied on the material before me of the matters required for preliminary hearing, and accordingly, I make the following orders:

56. Pursuant to section 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act) the Court:

(a) appoints 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) directs 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 upon the expiry of his limiting term on 15 November 2026, for a period of 3 months thereafter.
3. The defendant is to be identified in these proceedings by the pseudonym "JED".

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