//
[2025] NSWSC 1357
General information, not legal advice.
Supreme Court of NSW
2025-11-19
Dhanji J
Original judgment source is linked above.
Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: State of New South Wales v AB (a pseudonym) (bht Ramjan) (Preliminary) [2025] NSWSC 1357
Hearing dates: 28 October 2025
Date of orders: 19 November 2025
Decision date: 19 November 2025
Jurisdiction: Common Law
Before: Dhanji J
Decision: (1) Pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act) I appoint two qualified psychiatrists, registered psychologists, or medical practitioners (or a combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court, and I direct the defendant to attend those examinations.
(2) Pursuant to ss 130 and 131 of the Act, the defendant is to be subject to an interim order for the extension of his status as a forensic patient commencing on 22 November 2025 for a period of three months.
(3) Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.
Catchwords: MENTAL HEALTH – forensic patient – preliminary hearing – orders appointing experts – interim extension order – offences of intentionally causing fire and being reckless as to its spread – Black Summer bushfires – mild intellectual disability – moderate alcohol use disorder – not mentally ill – “Well Above Average” risk compared to other male sexual offenders – “High” likelihood of sexual offending – conditional release in community – no behavioural concerns since release – fishing, walking, bike riding – chronic nature of defendant’s cognitive condition – ongoing minimisation and absence of targeted intervention – response to challenges in community – orders made as sought
Legislation Cited: Crimes Act 1900 (NSW), s 203E
Mental Health Act 2007 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Pts 5, 6, ss 14, 69, 72, 81, 85, 121, 122, 123, 124, 125, 126, 127, 128, 130, 131
Mental Health (Forensic Provisions) Act 1990 (NSW), s 32
Terrorism (High Risk Offenders) Act 2017 (NSW)
Cases Cited: Attorney General for New South Wales v Kapeen bht Jennifer Thompson (Preliminary) [2018] NSWSC 619
Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928
Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859
Cornwall v Attorney General for New South Wales [2007] NSWCA 374
State of New South Wales v BP (Preliminary) [2019] NSWSC 699
Category: Principal judgment
Parties: Attorney General for New South Wales (Plaintiff)
AB (a pseudonym) (by his tutor Ms Barbara Ramjan) (Defendant)
Representation: Counsel:
M Varley (Plaintiff)
G Lewer (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)
File Number(s): 2025/00325261
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), the publication of the name or any information or other material that may lead to the identification of AB is prohibited.
HIS HONOUR: This is a preliminary hearing in relation to the plaintiff’s application for an extension of the defendant’s status as a forensic patient. The defendant is identified by the pseudonym AB and appears by his tutor Ms Barbara Ramjan.
By summons filed on 22 August 2025, the Attorney General for New South Wales seeks, by way of final relief, an order pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act) extending the defendant’s status as a forensic patient for a period of two years from the date of the order.
Before moving on the application for final relief, the plaintiff seeks preliminary orders pursuant to s 126(5) of the Act, appointing two qualified psychiatrists, registered psychologists or medical practitioners (or some combination of these) to conduct separate psychiatric examinations of the defendant; to furnish reports to the Court on the results of those examinations; and directing the defendant to attend those examinations. Those orders are sought together with an order that the defendant be subject to an interim extension of his status as a forensic patient pursuant to ss 130 and 131 of the Act. That order is sought for a period of three months commencing 23 November 2025.
It is not in dispute that the defendant is a forensic patient but that status will, in the absence of an extension, expire before the proceedings are determined. This fact enlivens, subject to other pre-conditions being met, the power to make an interim extension order: s 130(a) of the Act.
Ancillary relief is also sought to the effect that access to the Court’s file shall not be granted to a non-party without leave of a judge of the Court and without the parties being notified so as to allow them an opportunity to be heard as to the application.
I do not understand there to be any opposition to that ancillary order and it is appropriate that it be made.
The interim relief otherwise sought by the plaintiff is opposed by the defendant.
The plaintiff relies on the affidavits of Angela Henen sworn 21 August 2025, 18 September 2025 and 22 October 2025, together with the associated annexures and exhibits. The defendant relies on the affidavit of Checker McCarthy affirmed 10 October 2025.
Much of what follows is taken from the statement of the plaintiff’s case provided pursuant to par 6(iii) of the Practice Note.
The defendant is a 45-year-old man who has been diagnosed with a mild Intellectual Disability, likely caused by a hypoxic brain injury at birth, and a moderate Alcohol Use Disorder, which is in sustained remission in a controlled environment. The defendant is currently subject to an existing extension order under the Act. As a result of that order, the defendant is a forensic patient by virtue of s 72(1)(b) of the Act. The defendant’s status as a forensic patient initially arose as a result of events alleged to have occurred in December 2019.
Between 2 and 5 December 2019, the defendant is alleged to have lit five fires in the suburbs of Castlereagh and Clarendon in Western Sydney during the Black Summer bushfires. The defendant, having started each of the fires, was alleged to have driven away, often at speed, in his vehicle. The fires were started in mulch or in grass near bushland in semi-rural areas close to high-risk urban areas.
On 23 October 2020, the defendant was charged with five offences of intentionally causing a fire and being reckless as to its spread contrary to s 203E of the Crimes Act 1900 (NSW). On 20 October 2021, he was found unfit to be tried by Herbert SC DCJ. On 2 December 2021, he was granted bail. After a special hearing before Coleman SC DCJ, it was found on the limited evidence available that he had committed the offences charged. On 13 July 2023, Coleman SC DCJ imposed a total effective limiting term of 2 years and 18 days, which was backdated to commence on 12 August 2021. The defendant was returned to custody, having spent one year and seven months on bail. That limiting term expired on 29 August 2023.
On 22 November 2023, following the imposition of an earlier interim extension order, Weinstein J made an order extending the defendant’s status as a forensic patient for a period of two years from that date.
The defendant presently lives in the community pursuant to an order for conditional release made by the Mental Health Review Tribunal (the Tribunal) on 27 February 2025. He resides in a private unit in Gorokan, NSW, which is operated by Centre of Care Disability Services, a National Disability Insurance Scheme (NDIS) service provider. He receives NDIS funding.
The effect of the extension orders made to date is that the defendant has remained a forensic patient beyond the expiry of the limiting term imposed by Coleman SC DCJ. The defendant will cease to be a forensic patient at the end of 21 November 2025, subject to the Court granting a further extension. Were the Court minded to grant an extension, it would properly commence on 22 November 2025, not 23 November 2025 as set out in the plaintiff’s summons.
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.
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.
127 Determination of application for extension orders
…
(2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant-
(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.
126 Pre-hearing procedures
…
(5) If, following the preliminary hearing, the Supreme Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Supreme 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.
Section 126(6) requires me to dismiss the application for an interim order if I am not satisfied that “the matters alleged in the supporting documentation would, if proved, justify the making of an extension order”.
Section 130 provides for interim extension orders and 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.
At this stage, the plaintiff is only seeking interim orders, that is, an interim extension order and an order requiring that the defendant be examined. The application has been made in the time required and the plaintiff has complied with the required pre-hearing procedures.
The orders sought (both the appointment for examinations and the interim extension order) can only be made if the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the Court being satisfied to a high degree of probability that:
(a) the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient; and (b) the risk cannot be adequately managed by other less restrictive means.
This is said to create a two-pronged test. The Court must be satisfied of this to a “high degree of probability”: see Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. The orders appointing the experts must be made if the Court is so satisfied. However, there remains a discretion in the Court whether to make the interim extension order even if the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.
The first limb, the question of unacceptable risk, is to be determined by considering the risk that would arise on the assumption that the defendant is not a forensic patient nor an involuntary patient under the Mental Health Act 2007 (NSW) (see Attorney General for New South Wales v Kapeen bht Jennifer Thompson (Preliminary) [2018] NSWSC 619 at [49]). The term “serious harm” is not defined in the Act. R A Hulme J in Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 at [16] said that “serious harm” can include either physical or psychological harm. His Honour said that the physical harm does not require a concern of harm to the level of “grievous bodily harm” but must be more than “actual bodily harm” and that the psychological harm must be “something more than emotions such as fear or panic”.
In approaching the second limb of the test for an extension order, namely whether the risk cannot be adequately managed by other less restrictive means, the focus should be more on the question of adequately managing risk rather than identifying whether one regime is more or less restrictive than the other: see Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859 at [54].
In determining the application for an extension order, as already noted above, the Court is required to have regard to the various matters set out in s 127(2). In determining whether the supporting material would justify the making of an interim extension order, I must also consider these matters as presently applicable.
“a. In 1997, [AB] was charged with two counts of aggravated indecent assault contrary to s 61M of the Crimes Act 1900, when [AB] was 17 years old. The victim of the offences was a female child. [AB] made admissions to police to touching the victim’s breasts and her vagina, underneath her underwear. These charges were [dismissed pursuant to] s 32 of the Mental Health (Criminal Procedure) Act 1990.
b. In 2009, [AB] was convicted of aggravated break and enter and assault with an act of indecency. This offending involved [AB] indecently assaulting a woman he had known through mutual friends at her home while she was sleeping. The assault extended to grabbing her buttocks and crotch and saying ‘I want to fuck you up the arse’.
c. In 2016, five charges of indecent assault [of] a person under 16 years alleged to have been committed in 2014 were dismissed under s 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990. The two victims of these offences were 14 and 15 years of age and known to [AB] through one of their parents. The indecent assaults involved [AB] squeezing one of the victims on her bottom, rubbing one […] victim’s vagina above her clothes, rubbing against one of the victims, attempting to kiss one of the victims on the lips and putting his hand down the pants of one of the victims and rubbing the back of her bottom for about 5-10 minutes.
d. In 2018, [AB] was charged with entering enclosed lands without lawful excuse and peeping or prying. The peeping or prying charge was subsequently withdrawn and [AB] received a fine for the remaining offence.” (citations omitted)
As can be seen, a number of the entries on which the plaintiff relies did not result in convictions, having either been dismissed pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (which was the functional equivalent of the present s 14 of the Act), or not proceeded with.
It might also be noted that the defendant has not been convicted of the offences which resulted in his limiting term. There was no suggestion that those facts should not be treated as proved. As counsel for the defendant pointed out, unlike the entries on the record in issue, there has been some adjudication of the merits conducted in relation to these matters; a fact finding exercise had been undertaken and a special verdict had been returned. It was noted that none of those steps had taken place in relation to the charges presently in issue.
With respect to the charges that were dismissed pursuant to either s 32 of the former Act or s 14 of the Act, or withdrawn, it was not submitted that the dismissal or withdrawal of the charges raised any question based on the incontrovertibility of an acquittal. Rather, the defendant sought to characterise those charges, being matters alleged in the supporting documentation, as amounting to “allegations of allegations”, and as a result, there being difficulty with making any finding for the purposes of the preliminary hearing that any particular offence occurred. The argument was put in the following terms:
“The question is, I suppose, what ‘[accept] those matters’ means. Accept certainly that the allegations were made, they were investigated, they were the subject of charges and orders were made by the Children’s and Local Courts in terms of dealing with those allegations. That is a different, I suppose, question to matters being proved that in fact the events described in those police allegations in fact occurred.”
It can be accepted that an entry on the defendant’s record showing a charge was dismissed (without a determination on the merits), or was withdrawn, when tendered, amounts to an assertion of the fact that the defendant was charged with the matter and the particular outcome resulted. It can also be accepted that the simple fact of the defendant having been charged with an offence is likely not relevant to the present determination. Without deciding whether, what is in essence a second hand assertion of a fact (“an allegation of an allegation”), is a “matter alleged” in the supporting documentation, it seems to me that the evidence is, in any event, relevant.
The first basis on which the allegations underlying the orders can be seen as relevant is that they form part of the material on which the experts based their opinions. Those opinions are “matters alleged in the supporting documentation”.
Further, the charge sheets (with the exception of the 2009 and the 1997 matters) and the supporting facts that relate to the charges have been tendered, although the facts in relation to the 2018 matter have a number of redactions, I interpolate consistent with the withdrawal of the peep and pry charge. These charge sheets and the accompanying facts directly allege the matters which they assert. The record in turn informs their disposition.
An issue also arises as to the use to be made of evidence tendered by the defendant on the application. I accept that evidence tendered by a defendant is admissible with respect to the discretion: State of New South Wales v BP (Preliminary) [2019] NSWSC 699 at [69] per Wright J, with respect to similar provisions in the Terrorism (High Risk Offenders) Act 2017 (NSW).
The evidence tendered by the defendant is an affidavit of the defendant’s solicitor, Checker McCarthy, affirmed 10 October 2025. The affidavit annexed:
A copy of the reasons for decision of Deputy President Garry Still of the Tribunal dated 28 July 2025;
A copy of a letter from the defendant’s Community Safety Program (CSP) case manager Mr Matthew Lindshield dated 12 August 2025;
A copy of the reasons for decision of Deputy Magistrate Harriet Grahame of the Tribunal dated 22 August 2025;
An extract of an EQUIPS Aggression Program completion certificate dated 24 April 2024;
An information sheet regarding the NSW Community Forensic Mental Health Service Treatment & Rehabilitation Clinic (TRC); and
An extract of the Urine Drug Screen results for tests conducted on 12 May 2025, 22 May 2025 and 6 June 2025.
In the event, the plaintiff subsequently tendered items one to three of the annexed material as part of Exhibit AH-2 to the affidavit of Angela Henen sworn 22 October 2025, with the consequence that there is no limitation on the use of that material as supporting documentation for the purposes of s 130 of the Act. With respect to the remaining annexures not contained in the plaintiff’s material, both parties agreed that the material should be admitted for the purposes of the discretion only. Nonetheless, the material contained in annexures four to six is generally summarised in the agreed facts document tendered on the application and as a result largely forms part of the matters alleged in the supporting documentation.
As for any reports received under s 126(5), as this is a preliminary application I do not have any reports in the current proceedings, although I have the reports provided to Weinstein J in the 2023 proceedings.
I do have, as is required, a report provided under s 125(b) of the Act of Dr Carollyne Youssef, a clinical and forensic psychiatrist, dated 16 March 2025. Dr Youssef assessed the defendant for the purposes of the report on 28 February 2025, prior to his conditional release on 19 March. That report deals with, inter alia, the risk posed by the defendant.
Dr Youssef opined that the defendant continues to meet the diagnostic criteria set out in the DSM-5 for Intellectual Disability (mild) and Alcohol Use Disorder (moderate, in sustained remission in a controlled environment). Dr Youssef assessed the defendant’s risk of sexual reoffending using the following tools:
Using the Static-99R actuarial risk assessment, Dr Youssef assessed the defendant as being in the “Well Above Average” risk category relative to other male sexual offenders.
Using the STABLE-2007 tool, Dr Youssef assessed the defendant as reflecting a “High” level of stable dynamic needs.
Using the RSVP-V2 tool, Dr Youssef assessed the defendant as having a “High” likelihood of sexual offending, assuming no special management plans were implemented. Dr Youssef assessed the defendant as having a “Moderate” imminence of sexual offending, and a “Low-Moderate” severity of sexual violence, if he were to re-offend, and again if no management plans were implemented.
Dr Youssef opined that, having regard to the defendant’s RSVP-V2 assessment suggesting a high level of outstanding dynamic risk, the risk score placing the defendant in the “Well Above Average” category for recidivism using the Static-99R tool was “an accurate reflection of his risk of sexual recidivism”. She opined that his risk factors were deficits in both general and sexual self-regulation, intimacy challenges, and limited awareness of his internal processes.
Dr Youssef assessed the defendant’s most likely risk scenario as a sexual offence. The defendant’s risk of fire setting was, conversely, assessed as reflecting a moderate level of outstanding risk factors.
Dr Youssef recommended the continuation of the defendant’s status as a forensic patient for a period of two years as the least restrictive form of management of his risk of harm to others. Dr Youssef additionally opined with respect to the defendant’s management:
An extension of the defendant’s order allows for ongoing oversight by the Tribunal and conditions and management provisions to be put in place in support of him.
The defendant does not have a mental illness and is not a “mentally ill person” as defined under the so classification as an involuntary patient or being subject to a Community Treatment Order is not an option for him.
As observed in the defendant’s written submissions, he has been the subject of regular review and reporting as a consequence of the criminal proceedings and as mandated by the Act. The defendant submits that these reports provide some understating of his background but notes his change in personal circumstances and Dr Youssef’s view that the risk assessments need to be updated every six to 12 months. Nonetheless, the reports are generally consistent with the defendant’s diagnosis with Intellectual Disability, his “Well Above Average” risk of sexual re-offending and his denial of committing the offences resulting in his limiting term.
The opinions of Dr Katie Seidler and Dr Richard Furst, who examined the defendant and furnished reports to the Court for the purposes of the first extension order, are worth noting. Dr Seidler was of the opinion that the defendant poses a “moderate risk of general reoffending, which may include fire setting behaviour” but that his “risk of future sexual offending is much higher and in the Well Above Average range relative to other male sexual offenders”. Dr Seidler was of the view that the defendant presented a significant risk of sexual offending which could reasonably be expected to result in serious harm if not continued as a forensic patient. Her recommendation was that he be continued as a forensic patient for a period of “no greater than two years”. However, this period was considered “sufficient to assist” the defendant for the purposes of his transition from the gaol environment. It may be that Dr Seidler anticipated the defendant would be released earlier than has occurred. In the event, he has been in the community as a forensic patient for a period significantly shorter than the two year period contemplated by Dr Seidler.
Dr Furst was significantly less confident than Dr Seidler. He expressed the view that the defendant presented a significant risk of causing serious harm to others if he were to cease being a forensic patient but further stated that the defendant “will need to remain as a forensic patient indefinitely, i.e. lifelong. He is simply too risky to manage in a less restrictive manner because he poses a long-term unacceptable risk to the community”.
The defendant has been periodically reviewed by the Tribunal.
On 27 February 2025, the Tribunal made an order for the defendant’s conditional release, and he was subsequently released into the community pursuant to that order on 19 March 2025. In their reasons for decision, the Tribunal was satisfied that the plan for the defendant’s conditional release would provide safety to the defendant and the community and indicated that the defendant would require comprehensive support to live safely in the community.
As discussed above, the defendant currently resides in a private unit in Gorokan, NSW, which is operated by Centre of Care Disability Services. His conditions of release include that he is required to abstain from drugs and alcohol, to not live with anyone under the age of 18, to follow the directions of NDIS support workers, and to not be absent from his address overnight without permission. The defendant is also required to accept Mr Lindshield of the CSP as his case manager.
The Tribunal most recently reviewed the defendant on 15 August 2025 and varied the order for conditional release to reflect the defendant’s updated residential address. In their reasons for decision, the Tribunal noted that a move was arranged to more suitable accommodation with an alternative accommodation provider as a result of persistent accommodation issues.
The plaintiff relies on the following reports as relevant to this consideration.
Dr Sunita Misra, a clinical psychologist at Statewide Disability Services (SDS), prepared a report to the Tribunal for the purposes of the review hearing on 22 February 2024. In the agreed facts, the parties summarised the report as follows:
“64. Dr Sunita Misra, clinical psychologist at Statewide Disability Services (SDS), prepared a report to the Tribunal for the purposes of the review hearing on 22 February 2024. Dr Misra interviewed the Defendant on 16 January 2024 for the purpose of preparing her report. The Defendant reported to Dr Misra that, once he returns to the community, he would like to engage in work, play sport, participate in support groups to address his issues with alcohol and spend time with his friends and girlfriend.
- Dr Misra noted that the Defendant had been engaging with a psychologist from the SDS who reported that the Defendant’s mood had been stable and that he had been engaging well with psychology sessions. The Defendant identified his long-term partner as his primary support who he reported calling 3-6 times each day. Dr Misra reported that the Defendant appeared to depend on his long-term partner for support in understanding his legal matters and other tasks/matters in the community.” (footnotes omitted)
“69. … Ms Higgins noted that the Defendant’s cognitive functioning had consistently been assessed in the extremely low range compared to his peers and confirmed the diagnosis of mild intellectual disability. Ms Higgins reported that the Defendant was engaging positively with programs available to him at the ASU, including EQUIPS Aggression which he completed on 24 April 2024.
- Ms Higgins noted that the Defendant tends to seek external support to assist with his selfregulation. This included seeking regular reassurance from SDS staff members, regular phone calls to his former partner, Ms Ferguson, and NDIS providers.” (footnotes omitted)
“79. Mr Lindshield reported that the Defendant has been meeting with Mr Lindshield weekly, has attended all scheduled appointments and established a good working relationship with Mr Lindshield.
80. Mr Lindshield reported that there is no information that suggests that the Defendant has been noncompliant with the conditions of his order for conditional release. Further, his behaviour in the community has not given rise to any concerns that he is gravitating towards high-risk situations that place him at increased risk of reoffending.
81. Mr Lindshield reported that the Defendant has not exhibited any desire to reengage in alcohol use. Mr Lindshield noted that the Defendant had completed five urinary drug and alcohol screens, all of which returned negative results. The Defendant also completed a third screening on 17 April 2025 which returned negative results for any drugs, and which did not test for alcohol consumption.
82. Mr Lindshield advised that the Defendant was attending weekly Alcoholics Anonymous (AA) meetings. Mr Lindshield confirms that the Defendant has been attending weekly AA meetings and complying with drug and alcohol testing.
83. The CSP referred the Defendant for treatment with the Treatment and Rehabilitation Clinic (TRC), a community-based intervention program led by Dr Kerri Eagle and operated by the NSW Justice Health & Forensic Mental Health Network. TRC adopts a multi-disciplinary, collaborative model of care focused on recovery, rehabilitation, and community safety. The TRC aims to provide treatment and rehabilitation services to support people in achieving recovery from complex disorders that result in problematic behaviours and reduce reoffending in the community. The services that may be offered include biological (medication) treatments, psychological programs (group and individual therapy), functional assessments, and other supports. As of 3 June 2025, the Defendant had had an initial meeting with the TRC, although no further information was available to Mr Lindshield regarding the Defendant’s treatment by that service.
84. Mr Lindshield recorded that the Defendant had engaged in a brief period of paid employment with one of his NDIS service providers and that he was presently seeking out other employment opportunities.
85. Mr Lindshield noted that the Defendant was receiving support from two NDIS service providers, Coastal Active Ability, his main support provider, and Quality United Engagement. Staff from Quality United Engagement had resisted Mr Lindshield’s attempts to encourage them to share information relevant to the Defendant’s risk management and support. Consequently, Mr Lindshield considered that there was a gap in data collection regarding the Defendant’s activities and behaviours when engaged in employment with or being supported by Quality United Engagement.
86. On 17 May 2025, the Defendant engaged in overnight leave with his girlfriend to see his favourite National Rugby League team play in Newcastle. No issues were reported during this leave.” (footnotes omitted, emphasis in original)
“With respect to the contested opinion of Dr Furst as to the defendant’s risk of future fire setting and drink driving – to the extent that it was in fact contested – I leave it to one side, as I am satisfied to a high degree of probability that [AB] poses an unacceptable risk of causing harm to others if he ceases to be a forensic patient and the risk cannot be managed by less restrictive means, based on his risk of sexual reoffending alone. I accept the opinions of Dr Youssef, Dr Seidler and Dr Furst in that respect. Indeed, on the totality of the evidence, in my view the court could come to no other conclusion.”
As noted above, the defendant is no longer detained, having been released to live in the community in March 2025 pursuant to a conditional release order made by the Tribunal on 27 February 2025. Unlike the situation that often pertains in the case of forensic patients, the defendant is not a mentally ill person within the meaning of the Mental Health Act. As a result, were he not to receive an extension order, he would not be subject to alternative management under a Community Treatment Order or classification as an involuntary patient, or be subject to the prospect of such management.
The plaintiff concedes that there is no evidence of any behavioural concerns in relation to the defendant since his release in early 2025, albeit he is subject to close supervision in a structured environment, including the “house rules” of his accommodation and the conditions imposed by the Tribunal: see plaintiff’s statement of case. I would go further and say that the progress of the defendant has been impressive. Reading his plans as expressed by him prior to his release, it would have been easy to regard him as harbouring a naïve optimism resulting in plans that were unlikely to be put into practice. In that regard he has proved would-be doubters wrong. He has maintained a healthy lifestyle in which he has abstained from alcohol and engaged in constructive leisure activities such as fishing, bike riding and daily walking, and has maintained his relationship with his partner.
It was accepted by the parties that the key issue presented by the evidence is whether, having regard to the length of time the defendant has been in the community, and his progress in that time, the matters alleged in the plaintiff’s evidence would justify a finding that the defendant presents an unacceptable risk. The time the defendant has been in the community is something less than eight months. That is a relatively short period of time, particularly having regard to Dr Furst’s opinion that lifelong supervision is required, and even Dr Seidler’s view that a two year transition period is needed. As discussed above, Dr Youssef in the report prepared for this application recommended the continuation of the defendant’s status as a forensic patient as the least restrictive form of management of his risk of harm to others.
It can be accepted that the above reports were prepared prior to the defendant’s release. Further, the services provided by the NDIS appear to be effective in supporting the defendant. In her supplementary report, prepared after the defendant had been residing in the community for some five months, Dr Youssef, while acknowledging his progress, confirmed that the updating material provided to her did not alter the risk assessment or diagnoses, albeit she revised her recommendation with respect to the length of the order to 18 months to two years. Dr Youssef observed, in relation to the defendant’s transition, that “there were still reported difficulties with collaboration between some NDIS providers and the CSP, ongoing minimisation by the defendant of his risk of offending, and the absence of targeted intervention”.
Accordingly, I make the following orders:
Pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act) I appoint two qualified psychiatrists, registered psychologists, or medical practitioners (or a combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court, and I direct the defendant to attend those examinations.
Pursuant to ss 130 and 131 of the Act, the defendant is to be subject to an interim order for the extension of his status as a forensic patient commencing on 22 November 2025 for a period of three months.
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.
**********
State of New South Wales
AB
A Guardianship Order on its own does not have the sufficient authority and control to manage someone with the defendant’s risk and needs at present.
On 24 August 2025, Dr Youssef prepared an addendum to her report. She opined that the defendant had, overall, adjusted without incident to his conditional release and had been largely compliant, albeit extrinsically motivated. Dr Youssef confirmed that the additional material did not alter her risk assessment, diagnoses, case formulation or recommendations for intervention regarding the defendant. However, having regard to the support available to the defendant, his five months of relative stability in the community and his willingness to engage in recommended supports, she revised the recommendation as to the length of an order from “two years to 18 months to two years” (emphasis in original).
Dr Youssef noted there were still reported difficulties with collaboration between some NDIS providers and the CSP, ongoing minimisation by the defendant of his risk of offending, and the absence of targeted intervention.
The opinions expressed above are to be seen in the context of the nature of the defendant’s condition. While he is currently stable and availing himself of supports provided through the NDIS, Dr Youssef noted a primary limitation in dealing with individuals with cognitive deficits is “difficulty in accurately assessing the individual’s intent, comprehension, and behaviour”. The chronic nature of the defendant’s cognitive condition means that this will not change. Further, while matters have progressed well, it is not known how the defendant will respond in the face of challenges which may, and perhaps inevitably will, arise. It is not known how he would, for example, cope if his relationship with his partner were to deteriorate or end. The evidence suggests a significant dependency on that relationship. The defendant is presently transitioning to new accommodation which may present additional challenges. If the defendant were, in the face of these or other strains, to resort to alcohol, his risk would very dramatically increase. In this regard, it is noted the defendant has acknowledged that alcohol was involved in every offence with which he has been charged. Insofar as the defendant is assisted through supports provided by the NDIS, these are supports and not supervision. There is no obligation on him to engage with the supports. Any compulsion will only come from an extension order.
The matter is at a preliminary stage. It may be that, at the final hearing, the opinions relied on by the plaintiff are not accepted, or not wholly accepted either because the facts underlying the opinions have not been satisfied or otherwise. It may be that in determining the final relief sought, the Court is not satisfied to a high degree of probability that, despite the concerns of the experts, the test has been met. However, at this stage, I am satisfied that the matters alleged in the supporting material relied on by the plaintiff would, if proved, justify the Court being satisfied 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. In this regard, the most recent report, that of Dr Yousseff, assessed the defendant as continuing to present a high risk of sexual offending. This is consistent with other material tendered on the application. I am also satisfied that the defendant’s circumstances are such that, on the matters alleged in the supporting documentation, the risk cannot be adequately managed by other less restrictive means.
Having regard to all the material, any discretion contained in s 130 should be exercised in favour of making the interim extension order sought. There is a considerable advantage to the final decision being made with the benefit of current reports from court appointed experts.
It follows from my conclusion that the test in s 126(5) with respect to the appointment of experts is also satisfied.
As noted above, the parties agreed that an order should be made with respect to access to the Court’s file.