Attorney General of New South Wales v SK (a pseudonym) (by her tutor Dr Katherine Pavlidis Johnson) (Final)

Hearing dates: 8 September 2025

Date of orders: 8 October 2025

Decision date: 08 October 2025

Jurisdiction: Common Law

Before: N Adams J

Decision: (1) Pursuant to s 121 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant is to be subject to an order for the extension of his status as a forensic patient commencing upon expiry of his current interim order on 9 October 2025 for a period of three years.
(2) 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 for access.

Catchwords: MENTAL HEALTH — forensic patient — extension of status as forensic patient — unacceptable risk of causing harm — no alternative (less restrictive) means of adequately managing the risk — where NDIS funding not sufficient to manage risk — whether term of extension order should be three or four years

Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes Act 1900 (NSW), ss 35(4), 59(1), 61, 195(1)(a)
Guardianship Act 1987 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 (repealed)
Mental Health Act 2007 (NSW), ss 4, 14
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Pts 5 and 6, ss 14, 69, 121, 122, 124, 125, 126, 127, 128

Cases Cited: Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928
Attorney General of New South Wales v SK (a pseudonym) (by his tutor Dr Katherine Pavlidis Johnson) (Preliminary) [2025] NSWSC 704
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 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)
SK (by her tutor Dr Katherine Pavlidis Johnson) (Defendant)

Representation: Counsel:
Ms A Sapienza (Plaintiff)
Ms C Goodhand (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid Commission of NSW (Defendant)

File Number(s): 2025/00134982

Publication restriction: Publication restriction pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)

JUDGMENT

1. On 4 July 2025, I made interim orders under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”) extending the defendant’s status as a forensic patient for three months commencing on 10 July 2025: Attorney General of New South Wales v SK (a pseudonym) (by his tutor Dr Katherine Pavlidis Johnson) (Preliminary) [2025] NSWSC 704. That interim extension order will expire on 9 October 2025. I also made an order at that time pursuant to s 126(5) of the Act appointing two qualified psychiatrists or registered psychologists to conduct separate examinations of the defendant and to furnish reports to the Court.

2. The Attorney General of New South Wales (“the Attorney”) now seeks final orders as set out in the summons filed on 8 April 2025, namely that SK be subject to an extension order as a forensic patient for a period of four years pursuant to s 121 of the Act. I note that Dr Katherine Pavlidis Johnson has been appointed to act as the defendant’s tutor in these proceedings.

3. The defendant is a 21-year-old Indigenous person who was born as a male. I identified her as such at the time of my preliminary judgment. Since that preliminary hearing, the defendant now identifies as female and has requested that she/her pronouns be used. [1] She has also requested to be addressed by the name “Aisha” or “Iaisha”. Further, given that some of her criminal offending occurred as a juvenile, I used the pseudonym “SK” in my previous judgment and propose to do so again in this judgment to give effect to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

4. Since the preliminary hearing the two court appointed experts, Ms Lisa Zipparo, a neuropsychologist, and Dr Yolisha Singh, a psychiatrist, have examined SK. They both furnished their reports to the Court on 14 August 2025. By way of overview, the expert evidence establishes that the defendant has a complex psychiatric history with various diagnoses. Dr Carollyne Youssef (who prepared the initial Risk Assessment Report) and Dr Singh have diagnosed the defendant as suffering from a mild-moderate intellectual disability and complex post-traumatic stress disorder. The opinion of Ms Zipparo is that the defendant does not have an intellectual disability but rather has some areas of cognitive impairment consistent with a diagnosis of autism spectrum disorder and symptoms of borderline personality disorder. The defendant receives anti-anxiety and anti-psychotic medication.

5. The defendant’s position at the final hearing was that she opposes an order extending her forensic status for four years. While she does not concede that she poses an unacceptable risk of serious harm to others, her position is that if the Court is satisfied that an extension is required, the period of any extension should only be for what represents the “least restrictive means of adequately managing the defendant’s risk of serious harm to others”.

6. This issue on which the parties joined issue was ultimately a narrow one. At the final hearing, it became clear that the dispute between the parties was limited to whether I should extend the defendant’s forensic status for three or four years.

7. The plaintiff’s supporting documentation was included in the exhibit “SB-1” to the affidavit of Stephanie Breen affirmed on 21 August 2025. A working folder of two volumes was also provided. Significantly, the parties provided a Supplementary Statement of Agreed Facts dated 3 September 2025 signed by the solicitor for both the Attorney and the defendant. These agreed facts are substantially similar to those relied on in the preliminary hearing with the addition of a summary of the reports of Ms Zipparo and Dr Singh, the results of the order of the Mental Health Review Tribunal (“the Tribunal”) on 14 August 2025, updated details of transition planning for the defendant and further behavioural incidents in custody.

8. Before I turn to consider the supporting documentation put before the Court, it is necessary to first outline the relevant legislative scheme.

The legislative scheme

9. In my earlier preliminary judgment, I outlined the relevant legislative scheme at [14]-[38] and I repeat that summary, as relevant, below.

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 [19]:

“… [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, 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 (at [96]). 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 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 Community Treatment Order (“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.

Background

30. The background and factual circumstances relevant to this matter have been set out in some detail in my previous judgment and are largely taken from the Agreed Facts. Although that background is unchanged, I will repeat it here.

31. The defendant was born at the Royal Prince Alfred Hospital on 15 February 2004. Her mother is a Dunghatti woman, and her father is a Kamilaroi man. At the time of her birth, her mother was in juvenile detention. The defendant had a difficult and transient childhood. Family and Community Services were involved since her birth due to reports of parental drug use, inadequate supervision and domestic violence. After various short-term foster care placements, the defendant was placed in a long-term kinship placement with her maternal great-grandmother from July 2005 to September 2015. This placement ended after allegations of neglect, drug and alcohol use, physical abuse, mental health difficulties experienced by family members also residing in the home, and an escalation in the defendant’s behaviour. She then transferred through a number of programs including temporary care and long-term care.

32. The defendant has never been employed. She received Abstudy payments between the ages of 16 and 18 and then received the Disability Support Pension.

33. During the final hearing, counsel for the Attorney confirmed that the defendant is currently prescribed Risperidone, which is an anti-psychotic, Escitalopram, which is an anti-anxiety medication, and Fluticasone propionate and Salbutamol, which are asthma medications.

Criminal history

34. I repeat the summary of the defendant’s criminal history from the Agreed Facts I extracted in my previous judgment as follows.

35. The defendant has a criminal history commencing when she was fourteen years old. This includes offences of common assault, assault occasioning actual bodily harm, reckless wounding and destroy or damage property. These charges were dismissed without conviction pursuant to s 32(3)(a) of the now repealed Mental Health (Forensic Provisions) Act 1990 (NSW).

36. The summary of the defendant’s criminal history (not including her index offending) is summarised in this way in the Agreed Facts:

37. On 4 August 2019, the defendant was charged with common assault and assault occasioning actual bodily harm contrary to ss 59(1) and 61 of the Crimes Act 1900 (NSW). On 22 August 2019, the Children’s Court found the defendant guilty and directed that she enter into a good behaviour bond for 12 months.

38. On 9 October 2019, the defendant was charged with common assault (domestic violence related) and assault occasioning actual bodily harm contrary to ss 59(1) and 61 of the Crimes Act. On 9 April 2020, the Children’s Court found the defendant guilty but ordered that she be released on probation for two years without proceeding to conviction.

39. On 14 July 2022, the defendant was charged with reckless wounding (domestic violence related) contrary to s 35(4) of the Crimes Act. On 20 October 2022, the Local Court dismissed the charge pursuant to s 14(1)(a) of the Act and ordered that the defendant be discharged into the care of a responsible person.

40. On 9 August 2022, the defendant was charged with intentionally or recklessly destroying or damaging property contrary to s 195(1)(a) of the Crimes Act. This charge was similarly dismissed by the Local Court on 20 October 2022.

41. After the limiting term was imposed (see below at [38]-[40]), the defendant was charged with further offences for the alleged assault and resisting of correctional officers. These offences arose out of two incidents on 1 September 2024 and 15 July 2024 in which the defendant allegedly struck and spat on correctional officers. When these charges came before the Waverley Local Court on 15 November 2024, they were dismissed under s 14(1)(c) of the Act due to the defendant’s mental health or cognitive impairment. There has been no further offending since my interim orders.

The index offences

38. On 10 January 2023, the defendant committed the index offences. At the time of this offending, she was 18 years and 10 months old. She was living with her mother, half-siblings and her stepfather. The charges arose out a disagreement between the defendant and her mother and stepfather concerning the defendant’s unwillingness to take her medication or go to the hospital. The defendant swung a sword at her mother, who protected herself with a chair and attempted to disarm the defendant. Her stepfather then stepped in and attempted to disarm the defendant, in the course of which he cut his thumb. The defendant’s mother took the sword from the defendant and put it in her daughter’s room. The defendant subsequently took up a knife and stabbed her stepfather in the back near his left shoulder blade. This caused a three-centimetre wound that penetrated the chest wall and lung.

The special hearing

39. On 9 August 2023, Coleman SC DCJ found the defendant unfit to be tried and determined that she was unlikely to become fit to plead within 12 months. Following a special hearing, Payne DCJ found on 23 April 2024 that, on the limited evidence available, the defendant had committed the offences of armed with intent (count 1) and reckless wounding (count 3). In relation to count 2 (wound with intent to cause grievous bodily harm), her Honour found the defendant not guilty.

40. On 25 July 2024, Payne DCJ sentenced the defendant to a total effective limiting term of 2 years and 6 months in two separate limiting terms as follows:

(a) Armed with intent – a limiting term of 15 months commencing 10 January 2023 and expiring 9 July 2024; and (b) Reckless wounding – a limiting term of 2 years and 3 months commencing 10 April 2023 and expiring 9 July 2025.

41. Her Honour referred the defendant to the Tribunal and ordered that the defendant be detained in a correctional facility.

42. As a result of the index offences, the defendant has been in custody since 10 January 2023. She has been placed in the Complex Placement Unit (“CPU”) at the Metropolitan Remand and Reception Centre since 6 April 2025, which houses inmates who exhibit chronic risk of self-harm or suicide.

Mandatory considerations: Section 127(2) matters

Reports received from persons appointed under s 126(5) of the Act: s 127(2)(b)

43. I have had regard to the expert reports provided by Ms Zipparo and Dr Singh. Summaries of those reports were included in the Agreed Facts, and I extract those summaries as relevant below, as well as the summary from Dr Youssef’s report.

Report of Ms Lisa Zipparo

44. Ms Zipparo interviewed the defendant via audio-visual link on 1 August 2025.

45. Ms Zipparo administered the Wechsler Adult Intelligence Scale – Fourth Edition (WAIS-IV) and related subtests. She reported the defendant has verbal intelligence capacities in the “Low Average” range. She was unable to calculate a reliable nonverbal intellectual capacity due to significant disparity between subtest scores. She opined that the defendant has some specific area of cognitive impairment but does not meet the criteria for an intellectual disability.

46. Ms Zipparo also administered the Historical Clinical Risk Management-20, Version 3 tool (HCR-20). Based on the information obtained from the interview with the defendant in addition to the documentary information, the defendant’s overall score for risk of future violent reoffending was in the 94th percentile compared with an Australian sample of forensic psychiatric patients. This resulted in a “Well Above Average” risk of reoffending based on existing risk factors.

47. Ms Zipparo confirmed the diagnoses of autism spectrum disorder (“ASD”) and opined that the defendant showed traits of a Cluster B personality disorder, most likely a borderline personality disorder (“BPD”). The defendant displayed no symptoms of complex post-traumatic stress disorder during Ms Zipparo’s examination, so she was unable to confirm previous diagnoses.

48. Ms Zipparo opined that the defendant does not have an intellectual disability and has previously been incorrectly diagnosed. However, she emphasised that the defendant does have cognitive impairment in specific areas of front lobe functioning, such as inhibitory control and mental flexibility. Ms Zipparo also concluded that the defendant is not a “mentally ill person” within the definition under the Mental Health Act. She concluded that the defendant’s observed paranoia, reported imaginary friends and alternate personalities are better explained by a trauma response to a pervasively traumatic childhood resulting in developmental trauma disorders.

49. In relation to the link between the defendant’s conditions and her risk of reoffending, Ms Zipparo observed that the defendant’s history of emotional dysregulation, aggressive outbursts and poor ability to inhibit aggressive responses can be explained by a combination of ASD and BPD. She opined that long term and ongoing treatment would be required to improve emotional dysregulation in the long term.

50. Ms Zipparo assessed the defendant to pose a “High” risk of causing serious harm to self or others if she ceased to be a forensic patient. The defendant’s score in the 94th percentile means that only six per cent of forensic patients pose a higher risk. This risk of aggressive behaviour eventuates when the defendant becomes emotionally dysregulated, either due to a perceived threat or another stressor. In these scenarios, the likelihood of harm to others is “High”.

51. Ms Zipparo identified that the factors that increase the defendant’s risk of harm include her long-term exposure to violence since childhood, her history of antisocial behaviour and problematic substance abuse, lack of employment, her ASD and BPD, history of trauma, history of violent attitudes and hyperfocus on military paraphernalia and weaponry, history of resistance to supervision, lack of insight and lack of personal supports.

52. Ms Zipparo expressed the view that the defendant has “very few protective factors” and did not identify any explicit static or dynamic factors that mitigate this risk. As a result, Ms Zipparo stated that it is important that the defendant be provided with opportunities to make prosocial connections and that she have significant support in making these connections given her ASD makes this inherently difficult.

53. Ms Zipparo noted the defendant’s National Disability Insurance Scheme (“NDIS”) funding package that allowed for Supported Independent Living, which she considered to be the minimum required to enable the 1:1 support the defendant will require in the community. However, Ms Zipparo considered the defendant’s current presentation to be too complex and high risk to reasonably expect NDIS staff to manage her in the community.

54. Ms Zipparo noted that while the defendant may in the future require the additional protections of a Financial Management Order and Guardianship Order to assist with managing finances and medical and lifestyle decisions, such orders do not provide any of the day-to-day protections that the defendant will require to enable a safe transition back to the community.

55. Ms Zipparo concluded that there were no other less restrictive means currently available to manage the defendant’s high level of risk than an extension of her status as a forensic patient. Ms Zipparo opined that the defendant’s status should be extended for a minimum period of three years due to her complex presentations and the barriers to an effective transition into the community. This three-year period would allow time to access a suitable drug and alcohol program, behaviour modifications programs and access to vocational training. Ms Zipparo opined that given the lifelong nature of the defendant’s emotional dysregulation, she will require “an extended period of consolidation and repetition to achieve a stabilisation of [her] behavioural dysregulation”.

56. During the hearing, counsel for the Attorney drew my attention to the aspects of Ms Zipparo’s report that note that the defendant has been treated with Risperidone (an anti-psychotic) since childhood to manage her aggression. With respect to the defendant’s ASD diagnosis, Ms Zipparo opined that, “Behavioural symptoms can be improved by the use of Risperidone (antipsychotic) which [the defendant] has had prescribed since childhood, and with behavioural management strategies, but there is no known cure for this disorder”.

Report of Dr Yolisha Singh

57. Dr Singh interviewed the defendant in person in custody on 11 August 2025.

58. Dr Singh concluded that the defendant met the criteria for the following diagnoses:

59. Intellectual Disability – moderate;

60. ASD with accompanying intellectual impairment and accompanying language impairment associated with a known environmental factor – prenatal exposure to drug and alcohol use;

61. Attention Deficit Hyperactivity Disorder – combined presentation – moderate severity; and

62. Post-traumatic stress disorder – with dissociative symptoms.

63. Dr Singh opined that the comorbidity of these psychiatric conditions “is considered in some part to be cumulative, particularly on one’s risk of violence”. She stated that, “the executive functioning deficits that result from [the defendant’s] neurodevelopmental disorders and trauma increase her risk of offending in that they can impair her understanding of consequences and mean that she struggles to learn from experience”.

64. Dr Singh opined that while the defendant has at times met the definition of “mentally ill person” under ss 4 and 14 of the Mental Health Act, she does not currently meet the definition.

65. Dr Singh administered the HCR-20 structured professional judgment tool. She concluded that the defendant falls within the “high risk category of people with an elevated future risk of violence”, regardless of whether she remains a forensic patient. Dr Singh identified nine of the ten historical risk factors for violence, which are “largely unchangeable risk factors”. They include a history of violence and other antisocial behaviour, problems with relationships, problems with employment, a history of substance misuse, evidence of traumatic experiences, violent attitude and treatment and supervision failures.

66. Dr Singh considered that there is evidence of “aberrant personality development”. Accordingly, despite her view that there is a lack of evidence to confirm a personality disorder, this historical risk factor was partially present.

67. Dr Singh identified the presence of five out of the five clinical risk factors for violence in SK’s case. These are more amenable to change than the historical risk factors. These are the defendant’s limited insight into her mental illness, her recent violent ideation or intent, her symptoms of major mental illness, her behavioural and cognitive instability, and her limited response to treatment.

68. Dr Singh considered that there are concerns regarding each of the five future risk management factors. These include access to professional services, stable living environment, personal support, strategies to cope with stress, and response to treatment.

69. Dr Singh administered the Structured Assessment of Protective Factors for Violence Risk (SAPROF). Dr Singh opined that the defendant “presents with a paucity of protective factors”. The seventeen protective factors are arranged into three categories of internal, motivational and external factors:

70. In relation to internal protective factors, Dr Singh identified that the defendant is of below-average intelligence, lacks secure attachment with a pro-social adult, presents with empathy deficits, lacks effective coping skills, and lacks self-control.

71. In relation to motivational protective factors, Dr Singh identified only two of the seven factors, namely her motivation to have treatment and her positive life goals, although she was unable to articulate the latter during her interview with Dr Singh. Dr Singh assessed that a motivation for treatment with medication adherence and efficacy is partially present. The remaining four motivational protective factors were assessed as not present, those being structured leisure activities, an ability to manage her finances, a positive attitude to authority and a stable or suitable work situation.

72. In relation to external protective factors, Dr Singh identified three of the five factors as being present. Those are her receipt of professional care, her supervised living circumstances and the presence of external controls. However, Dr Singh acknowledged that the presence of these factors are due to the defendant’s current circumstances, such as her engagement with the Community Safety Program (“CSP”), her supervision by correctional officers, her forensic patient status, and her NDIS funding. If these circumstances were to change, or if the defendant were released into the community without adequate support, these protective factors would not be present. Dr Singh considered that the protective factors of a social network and a stable intimate relationship are not present.

73. Dr Singh opined that the defendant posed a risk of causing serious harm to others due to the detrimental impact of her psychiatric conditions on her mental state and the attendant aggressive behaviours she has displayed when acutely dysregulated or unwell. Dr Singh considered that this risk remained whether the defendant was a forensic patient or not, or whether or not she was subject to any other type of protective orders.

74. Although Dr Singh stated that it is impossible to offer an opinion as to the likelihood of the defendant causing harm to others if she were to cease to be a forensic patient, she did opine that, “if [the defendant] ceases to be a forensic patient at the present time, then there is an increased likelihood that the clinical and risk management factors for violence are likely to increase.” Specifically, this assessment was due to the possibility of non-compliance with medication, possible discharge from services, and the cessation of what Dr Singh refers to as the “few protective factors that [the defendant] currently has”, such as professional care and stable living conditions.

75. Dr Singh observed that although the defendant has been in the care of various government services, she has not received the required level of treatment. She observed that responsibility of care for the defendant is passed on, and most service providers have been involved for the purpose of assessment rather than intervention. According to Dr Singh, this approach increases the defendant’s risk of violence “as it erodes her already fragile sense of trust and engagement with service providers”. Dr Singh opined that while her risk factors may reduce over time, her risk factors are unlikely to change in the short to medium term.

76. Dr Singh concluded that there is currently no other less restrictive means of managing the defendant’s risks than a forensic order, as such an order “moves oversight from individual clinicians in health services to automatic oversight by the forensic arms of the Tribunal”. However, Dr Singh opined that a forensic patient order alone is not sufficient to safely transition the defendant into the community.

77. Dr Singh noted that the defendant was currently assessed as not being a mentally ill person as defined under the Mental Health Act and as such, care and treatment under that Act was not available to her. Dr Singh also noted that a Guardianship Order was not sufficient to contain the defendant’s current risks. As to a Financial Management Order, Dr Singh noted that the defendant’s violence risk was not primarily related to her poor financial management, though this was an area of concern which may escalate her risk, and consideration for an application for a Financial Management Order was suggested in the NDIS plan. Dr Singh noted, however, that a Financial Management Order cannot mandate engagement in mental health treatment, or a Supported Independent Living placement, which are the risk management interventions required for the defendant.

78. Dr Singh did not consider NDIS funding, while crucial, to be sufficient alone to manage the defendant’s risks, stating that:

“It is my opinion that [the defendant]’s current presentation and attendant risks cannot be managed with the NDIS disability support alone, even with restrictive practices and behaviour support. However, the NDIS funding and support is crucial in managing her current risks together with a continuation of the forensic order.”

72. Ultimately, Dr Singh expressed the view that a continuation of the defendant’s forensic order, in combination with continued NDIS support and a Financial Management Order, is the least restrictive means of managing the defendant’s care, treatment and risk. She opined that an extension of the forensic order for three years would be reasonable. This recommended duration is based on the following factors:

“I base this opinion on her current presentation, including her engagement in her treatment plan and that she has not had assertive and intensive treatment before. She is motivated to engage with treatment, she is young and her capacity for positive development is present. There is a robust, good NDIS plan proposed, though attendance with a forensic psychiatrist with experience of developmental disability should also be arranged.”

73. Dr Singh also sets out a three-year plan for the defendant.

74. During the hearing, counsel for the Attorney drew my attention to the aspects of Dr Singh’s report that address medication adherence, which was a factor in the defendant’s index offending. Dr Singh opined that:

“It is anticipated that the forensic order if extended will improve [the defendant’s] adherence to psychiatric and psychosocial interventions, including attendance at allied health appointments for treatment, i.e, capacity and skill building and not protracted further assessment, medication adherence and opportunities to optimise and rationalise her medication in the community with a psychiatrist whom she can develop an enduring therapeutic alliance with.”

75. Counsel for the Attorney also emphasised that Dr Singh’s opinion was that NDIS funding for 24/7 1:1 support is needed.

Risk Assessment Report: s 125(b)

76. The report prepared under s 125(b) of the Act in support of this application was prepared by Dr Carollyne Youssef. She is a registered psychologist who assessed the defendant on 19 December 2024 by audio-visual link. She prepared a Risk Assessment Report ("RAR") dated 13 March 2025. She first described the defendant’s diagnostic profile as:

“inconsistent, unclear and in contention, with multiple diagnoses given since childhood and little agreement among the various medical and allied health professionals involved in [her] care.”

77. Previous mental health professionals have diagnosed the defendant with various disorders including delayed language disorder, global developmental delay, articulation disorder, Foetal Alcohol Spectrum Disorder (“FASD”), ASD, Attention Deficit and Hyperactivity Disorder, Oppositional Defiance Disorder, Schizophrenia and Dissociative Identity Disorder. These diagnoses are not confirmed.

78. Dr Youssef concluded that, at a minimum, the defendant meets the diagnostic criteria for intellectual disability (mild-moderate) and complex post-traumatic stress disorder. Both of these conditions, while not directly causing offending behaviour, increase the defendant’s vulnerabilities for recidivism. Specifically, her intellectual disability “impairs [her] understanding of social norms, consequences, and interpersonal relationships, leading to impulsive or inappropriate behaviours”. Her complex post-traumatic stress disorder contributes to the risk of violence by impacting “emotional regulation, impulse control, and social functioning”.

79. Dr Youssef refused to make a diagnosis in relation to Substance-Related and Addictive Disorders. In this respect, she noted the defendant’s history of confabulation and the absence of independent or verified evidence of intoxication. She also declined to make a diagnosis of FASD, although recommending that a comprehensive assessment be completed in this respect.

80. Dr Youssef opined that the defendant displays early signs of an emerging personality disorder but noted that she does not yet meet the diagnostic criteria for a specific personality disorder.

81. Dr Youssef assessed the defendant as posing a “high risk” of committing a violent offence using clinical assessment tools. Utilising the Violent Risk Appraisal Guide (VRAG) risk assessment tool, Dr Youssef assessed the defendant to be placed in the eighth “risk bin” of nine “risk bin” categories for the risk of violent recidivism. In this category, 58 per cent and 78 per cent of offenders will violently reoffend within 5 years and 12 years respectively.

82. Utilising the SAPROF professional judgment tool, Dr Youssef assessed the defendant to have none of the five internal factors that may protect against future violent behaviour, two of the seven motivational factors that may motivate her to be a positive member of society, and three of five external factors that offer protection against violent recidivism. These environmental factors included professional care on release in the form of allied health care professionals, Supported Independent Living accommodation, and oversight from appropriate mental health and forensically trained professionals.

83. Utilising the HCR-20 Version 3 risk assessment tool, Dr Youssef assessed the defendant to have nine out of ten historical risk factors, five out of five of the clinical risk factors, and five out of five of the risk management factors. Her risk for serious physical harm is high according to this assessment given her use of a weapon and the potential injuries that could be caused.

84. Dr Youssef concluded that the likelihood of the defendant committing a violent offence falls within the “high risk range”. She opined that if the defendant ceases to be a forensic patient and is not subject to any other type of protective order:

“the nature of the harm that [the defendant] may inflict is likely to be serious and the victim would likely receive an injury which has the potential for high lethality.”

85. She considered that the defendant requires:

“intensive intervention to assist [her] with the development of communication skills, self-regulation and problem-solving skills.”

86. Dr Youssef recommended the continuation of the defendant’s status as a forensic patient as the least restrictive form of management of the defendant’s risk. She considered that a four-year transition program is required, with ongoing assessment and oversight by the Tribunal and other services. She opined that:

“it is unlikely the defendant will receive and/or comply with the required level of treatment and supervision if there is no external order in place.”

87. Dr Youssef observed that no other less restrictive means are available to manage the defendant’s risk for two reasons. First, the defendant cannot be classified as an involuntary patient as she is not mentally ill within the definition under the Mental Health Act. Secondly, a Guardianship Order does not confer sufficient authority to manage the defendant’s risks or needs.

Orders or decisions made by the Tribunal: s 127(2)(e)

88. The Tribunal has reviewed the defendant on four occasions: on 9 August 2024, 11 October 2024, 13 February 2025 and 14 August 2025. In its decisions on 1 November 2024 and 28 March 2025, the Tribunal determined that:

89. The defendant has a cognitive impairment;

90. There are reasonable grounds for believing that care, treatment or control of the defendant is necessary for her own protection and the protection of others from serious harm;

91. The defendant should remain detained at a correctional centre which is appropriate for her needs and the safety of herself and others; and

92. The defendant remains unfit to be tried.

93. While reasons are yet to be obtained for the Tribunal’s most recent decision on 14 August 2025, it ordered that the defendant be detained at a correctional centre for care and treatment.

Any report of a governmental department or agency responsible for the detention, care or treatment of the forensic patient: s 127(2)(f)

Community Safety Program Report dated 3 February 2025

90. The defendant has been participating in the CSP since 17 September 2024 for the purpose of developing a transition plan for her transition from custody. The CSP reports on a forensic patient’s placement in custody, rehabilitation and preparation for transition.

91. Lachlan Smith, a Senior Clinical Consultant, prepared a CSP report for the Tribunal’s review hearing on 13 February 2025, which was endorsed by James Wu, a forensic psychologist. They describe the defendant’s behaviour as “unpredictable and regularly managed under RIT [Risk Intervention Team]”. The defendant reported that she has been managed under RIT “all the time” which provides her with “the sense of being safe”.

92. Other services involved in the defendant’s care include:

93. The Suicide Prevention Outreach Team, which is a service providing support for patients who have a high self-harming incidence and offers diversional therapy. While the defendant reportedly participated in group sessions, she has said that she does not recall engaging in the service.

94. The Mental Health Ambulatory Service, which is an outreach service involving routine review by psychologists. The defendant’s most recent session was on 22 January 2025.

95. The Integrated Care Services, which connect patients with chronic conditions with services when they are approaching the date of release from custody.

96. The defendant has also requested to be referred to the Buvidal program, which provides treatment for opioid dependence. However, she was deemed ineligible for the program due to lack of evidence of her opioid dependence. The defendant also told the authors of the report that she has been housed in Special Management Area Protection and has had access to the EQUIPS (Explore, Question, Understand, Investigate, Practice to Succeed) program, but has either declined to participate or has been told that her participation is being considered.

Community Safety Program Report dated 1 August 2025

94. Lachlan Smith prepared another CSP report for the Tribunal’s review hearing on 14 August 2025, which was again endorsed by James Wu.

95. Mr Smith stated that the defendant’s behaviour is “difficult to manage” and puts a “continued strain on staff”. He identified the following behaviours of concern:

96. Substance use: the defendant has self-reported substance use on numerous occasions, however no objective evidence is available to verify these statements.

97. Self*-*harm: the defendant has engaged in repeated self-harm between 1 March to 1 August 2025, including self-inflicted lacerations to her neck and forearms using broken glass, banging her head on walls, and wrapping ligatures around her neck. The defendant has indicated that she self-harmed because she did not receive Ramadan meals, that she was upset and wanted to stay in jail, and because her request for another television was declined. The defendant has also stated to RIT staff that she wanted to kill herself on one occasion.

98. Challenging behaviour: the defendant has reportedly greeted staff with a Nazi salute on three occasions, smeared faeces on her cell door, thrown faeces and food out of the cell door hatch and covered the camera in her cell.

99. The defendant has continued to engage with Corrective Services NSW Psychology while in custody and has attended thirteen sessions since 14 February 2025. The defendant has said that she finds these sessions helpful in developing strategies to “get stuff off [her] mind”.

100. The defendant’s current case plan indicates high priority needs related to aggression and violence, domestic violence, and chronic drug use. Her moderate priority needs relate to anti-social attitudes, her cognitive impairment, mental health needs, and accommodation in the community. The defendant has been unable to participate in any behaviour-change programs due to being placed in the CPU (a highly restrictive environment), and because of the frequent and protracted time she spends in segregation.

The level of the forensic patient’s compliance with any obligations to which the patient has been subject: s 127(2)(g)

98. As I have previously noted, there have been various incidents in which the defendant has breached custodial discipline and/or been placed in segregated custody. They also involve incidents of self-harm. Some of these incidents are set out in the Agreed Facts and counsel for the Attorney also took me to relevant additional incident reports during the hearing.

99. On 20 October 2023, the defendant smashed her tablet on a table and used this glass to slash her left wrist.

100. On 23 March 2025, correctional officers attended the defendant’s cell after she covered the camera and door of her cell. Once they arrived, the defendant begun headbutting, punching and spitting at the officers. A short time later, the defendant was observed to have removed her modesty gown. A correctional officer attended her cell door to request that she hand her the gown through the open hatch. The defendant then reportedly spat at the correctional officer through the open hatch. A segregated custody direction was made on 25 March 2025 for a period of 14 days after this incident, which was extended for a period of 3 months, to expire on 24 June 2025.

101. On 16 April 2025, the defendant was hitting her head against the cell door. She said it was because she was getting stressed out in her cell. In a subsequent interview, she stated that she was stressed about her Supreme Court hearing and did not want to be released from custody. The entry noted that she was not complying with medication and had commented on the lack of access to drugs.

102. Again, on 16 April 2025, the defendant became physically aggressive with staff, attempting to eye gouge and strike correctional officers as they were trying to relocate her.

103. On 26 April 2025, the defendant self-harmed by banging her head, causing a bad injury to her head. She was taken to hospital for treatment. In a follow-up interview, the defendant said she was having issues with one of the officers and had become frustrated.

104. On 28 April 2025, the defendant destroyed her tablet and used the broken pieces of glass to self-harm. In a subsequent interview, the defendant said she felt frustrated that the tablet was not working. She denied any thoughts of self-harm. She also said that she would like to remain in a modesty gown because she felt like it calmed her down and did not want to be discharged from RIT.

105. On 29 April 2025, the defendant tried to grab a correctional officer through her cell-door hatch. She was charged with disobey direction and incurred a penalty of seven days off contact visits.

106. On 22 May 2025, the defendant grabbed a correctional officer by the jumper and tried to pull her in and hit the officer. A segregated custody direction was made for a period of 14 days.

107. Since the preliminary hearing, there have been the following further incidents:

108. On 6 July 2025, the defendant damaged two tablets.

109. On 23 July 2025, the defendant was requested to remove the coverings from her cell surveillance camera and did not do so. When correctional officers entered her cell, the defendant charged at one of the officers and a struggle reportedly ensued. The defendant bit one of the officers on the back of the neck, which bled heavily, and spat in the direction of the other two officers. The defendant was conveyed to Westmead Hospital the same day and reported that she was held down and pressure was applied to her neck by the officer’s knee. She complained of pain to her knuckles and neck, however a CT scan revealed no abnormal findings. A segregated custody direction was made on 24 July 2025 for a period of 14 days in relation to this incident. When seen by Corrective Services Senior Psychologist Bella Pettit on 25 July 2025, the defendant reported feeling scared and requested that a formal complaint be raised in relation to the incident, which was lodged by Ms Pettit.

110. On 13 August 2025, correctional officers observed that the defendant had damaged the AVL suite. A segregated custody direction was made on 14 August 2025 for a period of 14 days.

111. The defendant has also been placed under RIT management in response to behaviours of concern posing risk to both herself and others, including from 1 to 4 March 2025; 5 to 13 March 2025; 20 March to 1 April 2025; 16 to 18 April 2025; 26 to 27 April 2025; 28 to 30 April 2025 and 22 to 25 May 2025.

The view of the court that imposed the limiting term: s 127(2)(h)

101. In setting the limiting terms, Payne DCJ found that:

“[The defendant] has got a mild to moderate intellectual disability. That is a lifelong condition. [She] has also been diagnosed with pervasive development disorder or autism spectrum disorder. They are noted in the report in the context of in utero exposure to alcohol and probably other substances. As such, [she] has been diagnosed with foetal alcohol syndrome. Primary treatment will be through the NDIS. Nil improvement can be expective in [her] cognitive functioning but there may be small gains made in [her] behavioural problems. At the moment [she] is on an antidepressant and two antipsychotic medications.”

Any other information that is available as to the risk that the forensic patient will in future cause serious harm to others: s 127(2)(i)

NDIS funding

102. Although the defendant apparently was eligible for some NDIS funding in 2018, it has been significantly increased, and she is currently in receipt of an approved plan to access support and services funding for $661,351.38 per annum. There is currently no Guardianship Order or Financial Management Order in place.

103. The defendant’s current approved NDIS plan is due to expire on 11 May 2026 and includes funding for: behaviour support, occupational therapy, specialist support coordination, community participation, and Supported Independent Living using a 26-week step down model with a daytime support ratio of 1:1 and active overnight support with a ratio of one staff to two clients.

104. As part of its transition planning for the defendant, the CSP have been searching for a suitable NDIS accommodation service provider with extensive experience supporting individuals exhibiting challenging behaviours similar to those of the defendant. The CSP have engaged with multiple NDIS accommodation service providers to assess their capacity to support the defendant, and have reviewed numerous accommodation placements, but none have been assessed as suitable to adequately meet the defendant’s complex needs.

105. The CSP have received incident reports from the defendant’s previous community placements and, following discussions with the NDIS accommodation service providers, concerns have been raised about whether the defendant’s current level of NDIS funding is sufficient to meet her needs in the community. It was suggested that the defendant requires Specialist Disability Accommodation to reduce the risk and severity of harmful behaviours and better meet her needs. However, the defendant’s current NDIS plan does not include Specialist Disability Accommodation funding.

106. On 14 July 2025, a NDIS Complex Support Needs Planner was assigned to the defendant. The NDIS Support Coordinator has indicated to the CSP that formal proof of the defendant’s FASD diagnosis could help to strengthen the case for increased NDIS funding and make her eligible for Specialist Disability Accommodation. For this purpose, the CSP is engaged in efforts to gather specific evidence relating to the defendant’s FASD diagnosis and to advocate for the NDIS plan review to secure the necessary supports for the defendant’s transition to the community.

107. Hannah Vella, an occupational therapist, has prepared an addendum report dated 12 June 2025 which provides support as to the defendant’s suitability for robust Specialist Disability Accommodation. She considered the defendant to have very high support needs. Ms Vella considered Specialist Disability Accommodation as essential to ensure the safety of the defendant, her support staff and others in her environment. She opined that the defendant requires significant assistance with self-regulation and de-escalation to minimise the risk of injury or misadventure at times of behavioural escalation which may present as property damage, self-harm, self-injurious behaviours and both physical and verbal aggression. Ms Vella recommended that the defendant be placed in a single occupant dwelling with 1:1 staff ratio 24 hours per day, 7 days per week, ideally in the Tamworth area given the defendant’s cultural and familial connection to this area.

108. Michelle Fung, DMI Psychology, Behaviour Support Practitioner, has also prepared an Interim Behaviour Support Plan and Addendum. This plan detailed the defendant’s high needs and identified restrictive practices used, including environmental restraints of restricted access to sharps, objects and staff supports. The addendum report noted that, while Supported Independent Living accommodation at a ratio of 1:1 for 24 hours a day was initially recommended, Specialist Disability Accommodation was now recommended in order to manage the safety risks to the defendant and others. Ms Fung considered that the defendant presented with a high-risk behavioural profile characterised by extreme volatility, physical aggression, and extremely severe property damage, due to extreme functional impairment in self-management. Ms Fung noted that it was not recommended that the defendant co-reside with other NDIS participants unless she has successfully transitioned back into the community with 1:1 24/7 supports, in-depth profile matching assessments have been undertaken, and significant risk management plans are in place. Ms Fung noted that the defendant’s behaviours have a high likelihood of severely impacting other housemates, and the presence of additional people around her may be a specific trigger.

109. During the hearing, counsel for the Attorney drew my attention to the fact that both Dr Singh and Ms Zipparo recognised that 24/7 1:1 support through the NDIS is required for the defendant’s transition into the community. The current NDIS funding package does not allow for this level of support; only 1:1 support during the day and 2:1 overnight. There have also been issues raised in communications between CSP staff concerning the suitability of certain accommodation and concerns about risk to support workers and co-residents.

110. Counsel for the Attorney also noted a Change of Circumstances Addendum prepared by Michelle Fung dated 14 June 2025 as part of an application to increase the defendant’s NDIS funding. Ms Fung stated that:

“Due to the significant risks associated with [SK]’s behaviours and high support needs, and behavioural incidents within corrections, specific property environment and adjustments are recommended by the government risk assessment team.”

111. During the hearing, I asked counsel for the Attorney whether the defendant can be supported by the NDIS whilst she is still in custody, for example to provide additional counselling. My attention was drawn to the NDIS guidelines which provide that while in custody, the justice system is responsible for a person’s day-to-day care and support needs.

Relevant recent Offender Information Management System notes

112. In two psychology case notes dated 14 February and 12 March 2025, the defendant was described as anxious about her forthcoming release from custody. On 14 February 2025, it was reported that:

“The Defendant disclosed that [she] was happy about still being in prison. [She] stated that [she] was stressed and worried about being released from custody in July, explaining that [she] would like to be transferred to the Mental Health Ward as it was the only place where [she] felt safe and [she] felt that people ‘actually cared about [her]’. [She] admitted that [she] was getting stressed about post-release plans such as organising Centrelink and housing.”

113. Similarly, on 12 March 2025, the case note records that:

“[The defendant] disclosed that [she] was becoming anxious about [her] sentence coming to an end, and that [she] thought [she] needed ‘stronger meds’ to help with [her] schizophrenia. [She] reportedly believes that [she] can only get these in a psychiatric ward which, [she] considered one of the few places where [she] felt safe and cared for.”

114. With respect to the 12 March 2025 case note, it is noted that the evidence before the Court was that the defendant does not suffer from schizophrenia.

Consideration

115. As stated above, although the defendant did not consent to her status as a forensic patient being extended, no submissions were made to suggest that the relevant statutory test was not met in this matter. The only real issue in dispute was whether I would make the order for a period of three or four years. Although there are no competing submissions for me to consider regarding whether the statutory test has been met in this matter, the determination of this application involves an evaluative test, and I must still be satisfied that it has been met.

116. As for the first limb of the test, I am easily satisfied that the matters alleged in the supporting documentation establish to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if she ceases to be a forensic patient. The evidence at the preliminary hearing clearly established that, and the reports of the two court appointed experts provided since that time confirm that conclusion. All of the evidence, both expert and otherwise, establishes the unacceptable risk the defendant poses both to herself and others. I do not consider it necessary to repeat the material I have summarised above again here.

117. As for the second limb, there was no evidence put before the Court that would militate against a finding that the second limb was satisfied: namely, SK’s risk cannot be adequately managed by other less restrictive means.

118. The difficulty for the defendant insofar as alternatives to the order are concerned is that she is not mentally ill. This means that she cannot be classified as an involuntary patient within the definition under the Mental Health Act. Nor would a guardianship order confer sufficient authority to manage the defendant’s risks or needs.

119. Despite the fact that the defendant has an NDIS package valued at over $600,000, the opinion of both of the court appointed experts in these proceedings is that NDIS support is not sufficient to manage the defendant’s risks. Ms Zipparo stated that the defendant’s current presentation is too complex and high risk to reasonably expect NDIS workers to manage her in the community. Similarly, in the opinion of Dr Singh, NDIS support, while crucial, is not sufficient to manage the defendant’s current presentation and attendant risks. These opinions are supported by the evidence of CSP transition planning efforts, including reported difficulties in finding the defendant suitable accommodation in the community that does not place support workers and co-residents at risk.

120. In circumstances where no other less restrictive means have been advanced, I am satisfied that the second limb of the test has been established as well.

121. Turning to the length of the extension of the defendant’s status as a forensic patient, as stated above, issue was joined between the parties as to whether the extension should be for three or four years.

122. Dr Youssef, who prepared the RAR for the purpose of whether this application should be made, recommended an extension of “at minimum four years” in her report dated 13 March 2025. She opined that this period would allow sufficient time to stabilise the defendant’s mental health and “to ensure that the appropriate services are in place in the community, with ongoing support from the CSP”. It would appear that the Attorney relied on this opinion of Dr Youssef in its application that the order be made for a period of four years. Since that time, the two court appointed experts have also addressed the question of the length of the order.

123. Ms Zipparo opined that the defendant’s status should be extended for a “minimum of three years”. She considered that due to the defendant’s complex presentations and barriers to an effective transition into the community, a three-year period would allow time for the defendant to access a suitable drug and alcohol program, behaviour modification programs and access to vocational training.

124. Dr Singh considered that an extension for three years is reasonable based on:

“ … [the defendant’s] current presentation, including her engagement in her treatment plan and that she has not had assertive and intensive treatment before. She is motivated to engage with treatment, she is young and her capacity for positive development is present. There is a robust, good NDIS plan proposed, though attendance with a forensic psychiatrist with experience of developmental disability should also be arranged.”

125. The Attorney maintained the position that a four-year order was appropriate. It was submitted that while both Dr Singh and Ms Zipparo recognised that “24/7 1:1” NDIS support was required, and that Dr Singh appeared to believe that this was already in place when forming her opinion, it will take time until these supports are actually available to the defendant. It was submitted that it is likely to also take some time before the required relationships with support providers can be established and shown to be effective. In these circumstances, counsel for the Attorney submitted that the recommendation of Dr Youssef of an extension of four years should be preferred.

126. Counsel for the defendant submitted that I should prefer the opinions of Ms Zipparo and Dr Singh that a three-year order would be appropriate. It was emphasised that Dr Singh was the only expert who consulted with the defendant in person and that the expertise of Ms Zipparo in neuropsychology gave her some advantage over Dr Youssef in assessing the defendant’s individual needs. It was also submitted that Dr Youssef’s report, based on an interview with the defendant in December 2024 and prepared in March 2025, was nine months old.

127. Section 128 of the Act provides that an extension order commences when it is made (or when the limiting term or existing extension order expires whichever is the later), and that it expires at the “end of the period (not exceeding 5 years from the day on which it commences) that is specified in the order”. Accordingly, the maximum period for which I could extend the order would be five years. It was not suggested that I would extend the order for the maximum period.

128. I have considered the expert evidence and the competing submissions. It is to be accepted that it will take time for the necessary supports in the community to be physically available to the defendant, but the supporting documentation did not establish that these supports could not be made available within a period of three years. Consistently with the expert evidence, I consider that to be the appropriate period of the extension order.

129. Overall, I am satisfied that the statutory test has been met.

Orders

130. Accordingly, I make the following orders:

131. Pursuant to s 121 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant is to be subject to an order for the extension of his status as a forensic patient commencing upon expiry of his current interim order on 9 October 2025 for a period of three years.

132. 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 for access.

**********

Endnote

Although I have used she/her pronouns throughout my reasons, it was necessary to use he/him pronouns in the actual orders given that the defendant is housed in a male correctional facility.

Amendments

08 October 2025

Changes to the orders made in accordance with the endnote added at [3]