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

Catchwords: MENTAL HEALTH – forensic patient – extension of status as forensic patient – cognitive impairment – unacceptable risk of causing harm – no alternate (less restrictive) means of adequately managing the risk – interim orders neither consented to or opposed – consideration of statutory criteria

Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A.
Crimes Act 1900 (NSW), ss 114(1), 33(1)(a), 35(4), 59(1), 61, 195(1)(a)
Crimes (High Risk Offenders) Act 2006 (NSW)
Guardianship Act 1987 (NSW)
Mental Health Act 2007 (NSW), s 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, 130, 131
Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 (repealed)

Cases Cited: Attorney General for New South Wales v Kapeen (Preliminary) [2018] NSWSC 619
Attorney General of New South Wales v DB (a pseudonym) (by his tutor Limbury) (Preliminary) [2025] NSWSC 198
Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928
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 Manners [2008] NSWSC 1242
State of New South Wales v Paton (Preliminary) [2020] NSWSC 1178
State of New South Wales v Simcock (Final) [2016] NSWSC 1805

Category: Principal judgment

Parties: Attorney General of New South Wales (Plaintiff)
SK (by his 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. By summons filed on 8 April 2025, the Attorney General of New South Wales (“the Attorney”) seeks orders in respect of the defendant pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (“the Act”) that he be subject to an order for the extension of his status as a forensic patient for a period of four years. Given that some of the defendant’s criminal offending occurred when he was under the age of 18 years, he will be described by the pseudonym “SK” in this matter (or “the defendant”) to give effect to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

2. On 30 May 2025, Dr Katherine Pavlidis Johnson was appointed to act as the defendant’s tutor in these proceedings.

3. The defendant is a 21-year-old Indigenous man with a complex psychiatric history. Although his diagnoses have not been consistent in the past, his current diagnosis is that he has a mild to moderate intellectual disability and complex post-traumatic stress disorder. He receives anti-anxiety and anti-psychotic medication.

4. In January 2023, the defendant was charged with offences of violence against his stepfather, namely being armed with a weapon (sword) with intent to commit an indictable offence contrary to s 114(1)(a) of the Crimes Act 1900 (NSW), wound with intent to cause grievous bodily harm contrary to s 33(1)(a) of the Crimes Act and reckless wounding contrary to s 35(2) of the Crimes Act. These are the “index offences” which resulted in the limiting term.

5. On 9 August 2023, Coleman SC DCJ found the defendant unfit to be tried and he became a forensic patient. Following a special hearing before Payne DCJ, the defendant was found guilty on 23 April 2024 in relation to the offences of being armed with a weapon with intent to commit an indictable offence and reckless wounding. A verdict of not guilty was entered in respect for the offence of wounding with intent to cause grievous bodily harm.

6. On 25 July 2024, Payne DCJ imposed a limiting term on the defendant of 2 years and 6 months commencing on 10 January 2023 and to expire on 9 July 2025. Her Honour then ordered that the defendant be detained in a correctional centre and referred the matter to the Mental Health Review Tribunal (“the MHRT” or “the Tribunal”). The defendant is currently detained as a forensic patient at the Metropolitan Remand & Reception Centre after being transferred from the Mid North Coast Correctional Centre earlier this year.

7. A preliminary hearing was conducted before me on 25 June 2025. At the hearing, the Attorney sought the following interim relief:

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

9. An interim order pursuant to ss 130 and 131 of the Act, that the defendant’s status as a forensic patient be extended on an interim basis for a period of three months commencing on 10 July 2025.

10. I have set out the relevant legislative scheme in some detail in these reasons but, in short, the statutory test for imposing an extension order at the final hearing is whether this Court is satisfied to a high degree of probability both that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, and that the risk cannot be adequately managed by other less restrictive means. The statutory test to apply following the preliminary hearing is whether the court is satisfied that the matters alleged in the supporting documentation, if proved, would justify the making of an extension order. If so, the court must make the orders sought.

11. The defendant’s position at the preliminary hearing was that he neither opposed nor consented to the interim orders sought. Despite this, when pressed, his counsel accepted that there was no material in the supporting documentation suggesting that the unacceptable risk that the defendant poses (which I am satisfied the evidence establishes) could be adequately managed by any other (less restrictive) means. Although the determination of whether the relevant statutory pre-conditions exist involves an evaluative test that is not capable of being resolved by way of consent, as Johnson J observed in State of New South Wales v Manners [2008] NSWSC 1242 at [4], the court process was facilitated in this matter by the fact that there was no real controversy between the parties to be resolved at this preliminary application: see also State of New South Wales v Paton (Preliminary) [2020] NSWSC 1178 at [5].

12. I am satisfied that it is appropriate to make the interim orders sought. The expert evidence clearly establishes that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, and, there was no material put before the court to support a contention that his risk could be adequately managed by other less restrictive means.

13. The plaintiff’s supporting documentation was exhibited in the exhibit “AH-1” to the affidavit of Angela Henen sworn on 8 April 2025. It comprised two folders containing 900 pages. A working folder was also provided comprising 308 pages. Included in the working folder was an Agreed Statement of Facts signed by the solicitor for both the Attorney and the defendant dated 19 June 2025. That document summarised a number of relevant matters pertaining to the defendant’s history including the pertinent portions of the relevant expert reports.

14. During the hearing, I invited counsel to identify any material in the court book which was not included in the Agreed Facts that they each relied on. I have specified that material below in my reasons. Otherwise, I propose to confine my summary of the supporting documentation to the contents of the working folder and, in particular, the Agreed Facts, the Risk Assessment Report (RAR) and the submissions. Before turning to consider that material, I will first set out the legislative scheme applicable to an application of this nature.

The legislative scheme

13. I have extracted the following summary of the relevant legislative scheme from my decision in Attorney General of New South Wales v DB (a pseudonym) (by his tutor Limbury*) (Preliminary)* [2025] NSWSC 198 at [10]-[34].

14. 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.

15. 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.

…

16. 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.

17. 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).

18. 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.

19. 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”.

20. 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.”

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

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

22. 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’.”

23. 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.

24. 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.”

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

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

27. 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.

28. 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.

29. 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’.”

30. 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.”

31. 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.

32. 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)).

33. 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.

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

(a) appointing—

(i) 2 qualified psychiatrists, or

(ii) 2 registered psychologists, or

(iii) 2 registered medical practitioners, or

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

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

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

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

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

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

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

130 Interim extension orders

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

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

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

Background

39. The defendant was born at the Royal Prince Alfred Hospital on 15 February 2004. His mother is a Dunghatti woman, and his father is a Kamilaroi man. At the time of his birth, his mother was in juvenile detention.

40. The defendant had a difficult and transient childhood. Family and Community Services were involved due to reports of parental drug use, inadequate supervision and domestic violence. After various short-term foster care placements, he was placed in a long-term kinship placement with his 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. He then transferred through a number of programs including temporary care and long-term care.

41. The defendant has never been employed. He received Abstudy payments between the ages of 16 and 18 and then received the Disability Support Pension. Although he apparently was eligible for some National Disability Insurance Scheme (NDIS) funding in 2018, it has been significantly increased, and he is currently in receipt of an approved plan to access support and services funded for $661,351.38 per annum. There is currently no Guardianship Order or Financial Management Order in place.

42. As a result of the index offences, the defendant has been in custody since 10 January 2023.

Criminal history

43. The defendant has a criminal history commencing when he was 14 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).

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

45. 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 he enter into a good behaviour bound for 12 months.

46. 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 1900 (NSW). On 9 April 2020, the Children’s Court found the defendant guilty but ordered that he be released on probation for two years without proceeding to conviction.

47. On 14 July 2022, the defendant was charged with reckless wounding (domestic violence related) contrary to s 35(4) of the Crimes Act 1900 (NSW). 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.

48. 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 1900 (NSW). This charge was similarly dismissed by the Local Court on the 20 October 2022.

49. After the limiting term was imposed, 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.

The index offences

46. On 10 January 2023, the defendant committed the index offences. At the time of this offending, he was 18 years and 10 months old. He was living with his mother, half-siblings and his stepfather. The charges arose out a disagreement between the defendant and his mother and stepfather concerning the defendant’s unwillingness to take his medication or go to the hospital. The defendant swung a sword at his mother, who protected herself with a chair and attempted to disarm him. His 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 his 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

47. As stated above, on 9 August 2023, Coleman SC DCJ found the defendant unfit to be tried and determined that he 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.

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

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

49. In setting the limited terms, Payne DCJ found that the defendant had a “mild to moderate intellectual disability” that “is a lifelong condition” and that “[n]il improvement can be expected in his cognitive functioning but there may be small gains made in his behavioural problems”.

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

Mental Health Review Tribunal

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

52. The defendant has a cognitive impairment;

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

54. The defendant should remain detained at a correctional centre which is appropriate for his needs and the safety of himself and others; and

55. The defendant remains unfit to be tried.

56. In its latest decision of 28 March 2025, the Tribunal noted that the Community Safety Program (CSP) had begun to consider transition planning and would submit a transition plan once an appropriate model of support in the community is established.

Behaviour in custody

53. There have been various incidents in which the defendant has breached custodial discipline. On 20 October 2023, the defendant smashed his tablet on a table and used this glass to slash his left wrist. On 20 March 2025, correctional officers attended the defendant’s cell after he covered the camera and door of his cell. Once they arrived, the defendant begun headbutting, punching and spitting at the officers.

Summary of expert reports

Risk Assessment Report of Dr Carollyne Youssef dated 13 March 2025

54. The report prepared under s 125(a) 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 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 his care.”

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

56. 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, his intellectual disability “impairs his understanding of social norms, consequences, and interpersonal relationships, leading to impulsive or inappropriate behaviours”. His complex post-traumatic stress disorder contributes to the risk of violence by impacting “emotional regulation, impulse control, and social functioning”.

57. 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 Foetal Alcohol Syndrome Disorder, although recommending that a comprehensive assessment be completed in this respect.

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

Risk assessment

59. 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.

60. Utilising the Structured Assessment of Protective Factors for violence risk structure professional judgment tool (SAPROF), 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 facts that may motivate him 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.

61. 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. His risk for serious physical harm is high according to this assessment given his use of a weapon and the potential injuries that could be caused.

62. 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.”

63. She considered that the defendant requires:

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

64. 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.”

65. 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 he 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.

Relevant recent Offender Information Management System notes

66. In two relatively recent psychology case notes dated 14 February and 12 March 2025, the defendant is described as anxious about his forthcoming release from custody. On 14 February 2025, it is reported that:

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

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

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

68. It is noted that the evidence before the court was that the defendant does not suffer from schizophrenia.

Community Safety Program Report dated 3 February 2025

69. The defendant has been participating in the CSP since 17 September 2024. The CSP reports on a forensic patient’s placement in custody, rehabilitation and preparation for transition.

70. 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 he has been managed under RIT “all the time” which provides him with “the sense of being safe”.

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

72. 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, he has said that he does not recall engaging in the service.

73. 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.

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

75. The defendant has also requested to be referred to the Buvidal program, which provides treatment for opioid dependence. However, he was deemed ineligible for the program due to lack of evidence of his opioid dependence. The defendant also told the authors of the report that he 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 his participation is being considered.

76. The CSP have commenced transition planning and stakeholder case conferences. However, they have not yet submitted a transition plan for the defendant.

Additional matters raised on behalf of the Attorney at the hearing

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

75. The Attorney relied on the psychiatric report of Dr Gordon Elliott dated 15 July 2024. This was an expert witness report prepared in relation to the index offending to determine whether the defendant was suffering a mental illness or cognitive impairment. Dr Elliott observed that the defendant “appears to have a very limited repertoire, if any, of adaptive coping skills for managing stress and distress”. After noting that NDIS funded disability provider support is a primary treatment avenue, Dr Elliott opines that the defendant requires:

“not only supportive independent living but also continued involvement with a behaviour therapist and staff able to implement a behavioural management plan.”

76. The Attorney also noted the report of psychologist Emily Higgins dated 9 October 2024 which was provided for the defendant’s second Tribunal review. In this report, Ms Higgins observes that custodial case notes are “positive in nature” and that there has been an improvement in the defendant’s socialising and mood. The Attorney contrasted this with subsequent reports of concerning behaviour in custody, which, it was submitted, constitutes a regression. In this regard, the Attorney pointed to several incident reports involving the assault of correctional officers and other inmates, property damage, self-harm and reports of violent ideation. These behaviours of concern in custody are also discussed in the CSP dated 3 February 2025.

77. Specifically, the Attorney drew my attention to the following incidents:

78. On 20 March 2025, the defendant reportedly spat on and assaulted three staff members and injured himself by scratching.

79. On 1 March 2025, the defendant was found banging his head against the wall and had to attend hospital.

80. On 21 January 2025, the defendant was seen crying, yelling and smashing objects.

81. On 16 July 2024, the defendant was found strangling himself with a towel.

82. On 30 June 2024, the defendant was found strangling himself with a blanket.

83. On 30 January 2024, the defendant slashed his wrist with a knife. When asked why he was doing this, the defendant stated that voices were telling him to do it.

84. On 11 September 2023, the defendant slashed his forearm with a broken piece of plastic. The defendant reportedly stated that he did this in order to be managed by the RIT.

85. On 14 July 2023, the defendant threatened to self-harm by holding a metal can lid to his wrists.

86. On 26 June 2023, the defendant was found with a ligature around his neck.

87. On 19 June 2023, the defendant reported hearing voices suggesting that he eat humans.

88. The Attorney also identified the current medication list for the defendant. This includes Risperidone, which is an anti-psychotic, and Escitalopram, which is an anti-anxiety medication.

Consideration

79. As stated above, if, following the preliminary hearing, the court is satisfied that the matters alleged in the supporting documentation, if proved, would justify the making of the final order sought, then the court must make the preliminary orders sought.

80. The submissions made on behalf of the defendant addressed the relevant legal principles, but no submissions were made in opposition to the orders sought by the Attorney being made at this preliminary stage. Further, it was accepted that the defendant is subject to a limiting term and that the other procedural requirements necessary for this application to be made have been complied with.

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

82. Turning to the mandatory considerations in s 127(2)(a) of the Act, in considering the safety of the community I have had regard to the index offending and the defendant’s prior criminal history. The use of a sword and a knife on family members who sought to have the defendant comply with his medication is troubling. Even whilst subject to the limiting term the defendant has been charged with further assault offences.

83. I have had regard to the RAR prepared under s 125(b) of the Act. Dr Youssef’s report clearly supports the first limb being established. I have also considered the CSP report prepared by Mr Smith and Mr Wu as well as that of Dr Elliot. Additionally, I have noted that Dr Mason’s report raises concerns regarding the defendant’s inability to manage stress and his consequent “erratic, threatening and abusive behaviour”. Similarly, I have also considered the defendant’s diagnoses contained in the reports of Dr Chew, Dr Rae and Ms Higgins.

84. Under s 127(2)(e), I have considered the position of the Tribunal that on each occasion that it has assessed the defendant it has consistently found him unfit to be tried. I have also considered (under s 127(2)(h)) the view of Judge Payne who imposed the limiting term that: “[n]il improvement can be expected in [the defendant’s] cognitive functioning but there may be small gains made in his behavioural problems.”

85. Having regard to this material, I am satisfied that the first limb of the test is established.

86. Before turning to the second limb of the test, I adopt the observations made by Garling J in Attorney General v Maguire (No 2) (extracted above at [24]) that it is difficult to see how a court could ever be satisfied that the risk is an unacceptable one (for the purpose of the first limb of the test) if the risk can be adequately managed by a less restrictive means than continuing a person’s status as a forensic patient (the second limb of the test). Despite this, I am required by the Act to approach the test in this way.

87. 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. As Dr Youssef opined in the RAR, the defendant cannot be classified as an involuntary patient as he is not mentally ill within the definition under the Mental Health Act. Such an option is often invoked in defence of an application for an extension order (see the observations of Adamson J at [25]-[30] above). Regrettably, it is not an option in this matter. Nor would a guardianship order confer sufficient authority to manage the defendant’s risks or needs. Nor is there any Financial Management Order in place in respect of the defendant.

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

89. As Dr Youssef has opined, if the defendant continues as a forensic patient, there will be ongoing oversight by the Tribunal including regular reviews. The defendant’s conditions can be managed, including taking his medication, abstaining from illicit drug use and engaging with services. The Tribunal will be able to oversee the numerous community services that the defendant requires as part of his NDIS package. Such oversight will be needed to transition the defendant into the community. The material before me does not suggest that the defendant is ready to undertake such a transition. He requires ongoing engagement with a qualified forensic psychologist which is available as a forensic patient. Further, on the material before me, and in particular the context of the index offending, I am not satisfied that the defendant would take his medication without supervision.

90. Overall, I am satisfied for the purposes of both s 126(5) and s 130 of the Act that the matters alleged in the supporting documentation, if proved, would justify the making of a final order. I propose to make the interim order for a period of three months.

Orders

91. Accordingly, I make the following orders:

92. Pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act), I appoint two qualified psychiatrists or registered psychologists (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court and I direct the defendant to attend those examinations.

93. Pursuant to ss 130 and 131 of the Act, the defendant is to be subject to an interim order for the extension of his status as a forensic patient commencing upon expiry of his current limiting term on 10 July 2025 for a period of three months.

94. 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.

*********