Attorney General for New South Wales v Cullu by his tutor Dr Katherine Johnson (Final)

[2025] NSWSC 855

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney General for New South Wales v Cullu by his tutor Dr Katherine Johnson (Final) [2025] NSWSC 855

Hearing dates:

24 July 2025

Date of orders:

1 August 2025

Decision date:

01 August 2025

Jurisdiction:

Common Law

Before:

McGuire J

Decision:

(1) Order, pursuant to ss 121 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), that the defendant be subject to an order for the extension of his status as a forensic patient for a period of two years from the date of this order.

(2) Direct that the Registrar of the Court notify the Mental Health Review Tribunal of the making of the above extension order.

Catchwords:

MENTAL HEALTH — forensic patient — extension of status as forensic patient — consideration of statutory criteria — whether the defendant poses unacceptable risk of causing serious harm to others if forensic patient status ceases— whether risk can be adequately managed by less restrictive means — diagnosis of schizophrenia and polysubstance use disorder — history of unprovoked violence and poor medical compliance

Legislation Cited:

Crimes Act 1900 (NSW)

Mental Health Act 2007 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases Cited:

Attorney General for New South Wales v Cullu (Preliminary) [2025] NSWSC 197

Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928

Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

Minister for Mental Health v Paciocco [2017] NSWSC 4

Category:

Principal judgment

Parties:

Attorney General for New South Wales (Plaintiff)
Yasin Cullu (Defendant)

Representation:

Counsel:
M Varley (Plaintiff)
N Evans (Defendant)
Solicitors:
Crown Solicitors Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2025/56192

Publication restriction:

Nil

JUDGMENT

1. By summons filed 11 February 2025, the Attorney General for New South Wales seeks an order against the defendant Mr Yasin Cullu, who appears by his tutor, Dr Katherine Johnson, to extend his status as a forensic patient pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act).

2. On 16 April 2025 Justice Davies made an order pursuant to s 126(5) of the MHCIFP Act for the appointment of two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) to conduct examinations of the defendant and to provide reports to the Supreme Court and made an interim order pursuant to ss 130 and 131 of the MHCIFP Act for the extension of the defendant’s status as a forensic patient for three months from 11 May 2025.

Background

3. The defendant is a 41 year old man who was born in Sydney. He is one of three children born to Turkish parents. The defendant has reported a happy childhood and that he has a positive relationship with his family. He attended high school until year nine, when he was expelled from school. Following this he has worked intermittently as a labourer and a truck driver. He is divorced and has no children.

4. The defendant has been diagnosed with chronic schizophrenia and polysubstance use disorder and is currently detained in the Bronte Unit of the Forensic Hospital.

Criminal History

5. The defendant has a criminal history commencing in 2002 when he was convicted of driving offences and an offence of resisting an officer in execution of his duty. In 2009 he was convicted of attempting to induce the dispensation of a prescription. In 2010 he was convicted of contravening apprehended violence orders on multiple occasions.

6. The defendant was convicted of common assault in 2014, which related to an attack on a person exercising at the South Sydney Juniors gymnasium. The victim was using the gym equipment when the defendant approached him from behind, struck his knee into the victim’s lower back forcing him onto the ground, knelt on him, held him down and punched him numerous times to the face. The victim and the defendant were unacquainted with one another and the assault was unprovoked. The defendant was sentenced to 10 months imprisonment with a 5 month non-parole period in relation to that assault.

7. In 2014 the defendant was convicted of an offence of assault occasioning actual bodily harm, which related to an attack on a staff member at Fitness First gymnasium at Randwick. The victim was at the front counter greeting customers as they entered the gym. The victim recognised the defendant as a member of the gym and extended his right hand to greet him as he entered. The defendant shook hands with the victim and at the same time punched him in the face with the closed fist of his left hand, resulting in a two centimetre laceration to the victim’s face. The assault was unprovoked. When later interviewed, the defendant admitted that he had approached and hit the victim but was unable to offer any motive. The defendant was sentenced to 12 months imprisonment with a non-parole period of 5 months for that offence.

8. In 2018 the defendant was convicted of offences of knowingly driving a vehicle in a manner menacing to others, common assault and being armed with intent to commit a serious indictable offence. That offending related to the defendant’s conduct at a time when he worked as a truck driver for a freight company. The victim, a forklift driver at a container service centre had asked the defendant to move his truck because he had parked it in a manner which blocked the car park exit of the premises. The defendant then grabbed the victim by the shirt and swung a 60 centimetre metal pole at his head. The victim ducked his head to avoid the metal bar, which instead made contact with the roof support of the forklift. The following day, the defendant again attended the centre and menaced the victim using his passenger motor vehicle. The defendant returned to the centre again later that day to find the victim. The victim later drove his motor vehicle on a public road and was followed by the defendant, who drove erratically and in a manner considered dangerous to the public. Upon his arrest the police located a 35 centimetre long knife in the glove box of the defendant’s car. In relation to those offences the defendant received an aggregate sentence of an 18 month Intensive Correction Order. He was also convicted of lesser offences arising out of the same incident relating to his failure to submit to a breath test, his failure to submit to an oral fluid test and his custody of a knife in a public place. Those lesser offences led to the imposition of fines.

The index offence

9. On 12 November 2022 the defendant was charged with an offence of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW).

10. The offence was committed on 4 November 2022 at the SNAP Fitness gymnasium in Mascot, when the victim and the defendant were both in the dumbbell area of the gym. Although they were both members of that gym, they were previously unknown to one another. The victim was seated on a bench in front of a number of dumbbells, resting and looking down at his mobile telephone when the defendant kicked him in the face. The kick was delivered with significant force, knocking the victim off the bench. After the assault, the defendant said to an employee of the gym, “make sure he knows his place”.

11. The injuries caused to the victim as a result of the assault included a broken nose, multiple fractures to the bones making up the floor and inner wall of the eye socket, a cut above the left eye and swelling to the face. The victim required surgical intervention and a metal plate for the injuries to the inner wall of his eye socket.

12. The assault was random, spontaneous and unprovoked. There was no evidence of any prior interaction between the defendant and the victim and no evidence to establish any motive.

13. The defendant was arrested on 11 November 2022 and taken into custody. He has remained in custody since that date.

14. A report addressing whether the defendant was fit to stand trial and to enter a plea was prepared on 3 April 2024 by Dr Adam Martin, forensic psychiatrist. In that report Dr Martin recorded that the defendant’s level of acute psychosis had fluctuated but that he remained without insight and that the vast majority of clinical entries in Dr Martin’s documentary review noted the defendant’s thought disorder and lack of insight. Dr Martin was of the opinion that the defendant was highly likely to be found unfit by the court to stand trial or enter a plea and was unlikely to become fit within the next 12 months.

15. Dr Martin’s report also assessed whether a community-based or inpatient treatment was appropriate for the defendant. Dr Martin was of the opinion that community-based treatment represented a significant risk to the defendant and the community. Dr Martin considered that there were significant risks of violence and misadventure and stated that he would not support treatment in the community until the defendant had undertaken a rigorous psychiatric assessment in a forensic facility where his forensic needs could be properly managed over a lengthy period. He considered that a secure environment with access to forensic clinicians was the appropriate environment for the defendant’s needs to be addressed.

16. A report in relation to the defendant’s fitness to stand trial was also prepared by Dr Gerald Chew, dated 5 April 2024. Dr Chew stated that the defendant’s primary diagnosis was one of schizophrenia and noted that he had poor insight into his illness. Dr Chew recorded that the defendant was being treated involuntarily under a Forensic Community Treatment Order (FCTO) and long-acting depot medication. He was of the opinion that the defendant only had a superficial understanding of matters relevant to the trial and was unable to provide a coherent account of his offending.

17. On 8 April 2024 Judge Williams SC found the defendant unfit to be tried and that he would not become fit within 12 months.

18. On 22 July 2024 following a special hearing, Judge Pickering SC found that on the limited evidence available the defendant had committed the index offence. His Honour noted that the attack carried out by the defendant was a random attack which involved a significant aspect of violence, the defendant had a significant criminal history which includes previous offences of violence, the defendant found it difficult to treat himself in the community and that community safety was an important factor bearing upon the sentencing exercise. The sentencing judge imposed a limiting term of 2 years and 6 months which commenced on 11 November 2022 and was set to expire on 10 May 2025.

19. The plaintiff, one of the ministers who administers the MHCIFP Act, filed a summons on 12 February 2025 seeking orders extending the status of the defendant as a forensic patient for a period of two years.

20. An interim order for the extension of the defendant’s forensic status was made by Justice Davies on 16 April 2025, extending the forensic status for a period of three months commencing on 11 May 2025: Attorney General for New South Wales v Cullu (Preliminary) [2025] NSWSC 197.

Mental health and forensic history

21. The defendant has been diagnosed as suffering from schizophrenia for the past 15 years.

22. His first admission to hospital for psychiatric illness was in May 2009, when he presented with a cocaine induced psychotic episode characterised by paranoid delusions. He has a history of drug use prior to May 2009, including cocaine, cannabis, testosterone and human growth hormone, which has brought on episodes of psychosis. There is no evidence of the defendant using illicit drugs whilst in custody.

23. The defendant’s symptoms of schizophrenia have been characterised by episodes of thought disorder leading to incidents of aggression and violence when unwell. His schizophrenia remained largely untreated partly because of his history of refusing to engage with mental health services, denying mental health issues and pharmaceutical non-compliance.

24. The defendant is recorded as having assaulted another inmate in custody on 29 January 2023 and being placed into segregation. On 22 March 2023 he was admitted to the Mental Health Screening Unit at the Metropolitan Remand and Reception Centre (MRRC) under the care of Dr Andrew White, a medical officer with Custodial Mental Health. The defendant appeared preoccupied with having plates and pins in his forearms and expressed concerns about his food being tampered with. Dr White noted that the defendant was thought disordered, refused medication and refused to accept that he was suffering from mental illness.

25. On 5 April 2023 an order pursuant to s 86(4) of the MHCIFP Act was made transferring the defendant to a mental health facility. He was transferred to the Long Bay Hospital Mental Health Unit on 21 April 2023. The records note that following the transfer to that unit he remained thought disordered, uncooperative, guarded and paranoid.

26. He is currently treated with Aripiprazole administered by monthly injection and Clozapine, the dosage of which is being steadily increased. Although the defendant is currently compliant with his medication, he is recorded as stating that he does not believe that he has a mental illness and that the medication is unnecessary.

27. The Mental Health Review Tribunal (MHRT) has reviewed the defendant on a number of occasions. On 8 June 2023 the MHRT determined that he remained a mentally ill person and should continue to be detained at Long Bay Hospital for care and treatment. On 10 August 2023 the MHRT made an FCTO for a period of 12 months, noting that he had been diagnosed with schizophrenia and became aggressive when unwell. The MHRT then was satisfied that an FCTO was the least restrictive form of effective care and that it was likely that the defendant would relapse if he was not subject to the order.

28. On 10 November 2023 the MHRT decided that the FCTO should continue, notwithstanding that his symptoms had improved since the commencement of treatment, because without the order he was unlikely to engage with treatment and his condition was likely to deteriorate.

29. In December 2023 and January 2024 the defendant is recorded as refusing to take his medication, apparently due to side effects. In March 2024 he denied having a mental illness but said that he was aware that he was required to take medications because of the FCTO.

30. On 10 May 2024 the MHRT determined to further continue the FCTO.

31. A further FCTO was made on 11 October 2024 for a period of 12 months, with the MHRT being satisfied that, despite improvements in his mental health, an FCTO was necessary because of his diagnosis of schizophrenia, his lack of previous engagement with mental health services and because an FCTO was the least restrictive form of care available.

32. In accordance with an order made by MHRT on 16 January 2025, the defendant was transferred to and detained at the Forensic Hospital. At that time the defendant told the MHRT that he did not believe the FCTO was needed.

Legislative Framework

33. Section 72 of the MHCIFP Act defines “forensic patients”.

34. Mr Cullu became a forensic patient on 8 April 2024 when he was found unfit to be tried for the index offence by Judge Williams SC. The effect of the limiting term imposed by Judge Pickering SC was to extend his status as a forensic patient until 10 May 2025, the expiry date of the limiting term. The effect of the interim extension order made by Justice Davies on 16 April 2025 is that he retained his status as a forensic patient beyond the expiry of that limiting term. The parties accepted that the defendant is a forensic patient for the purposes of the Act.

35. By s 121(1) of the MHCIFP Act the Supreme Court is empowered to extend a person’s status as a forensic patient. A minister administering the Act may make an application for an extension order where the forensic patient is subject to either a limiting term or an existing extension order. Section 124(1) provides that the minister administering the MHCIFP Act may make an application for an extension order where a forensic patient is already subject to a limiting term or an existing extension order. The defendant is encompassed by that section because he is subject to the interim extension order made on 16 April 2025.

36. In considering whether an order for an extension of the defendant’s forensic patient status should be made, regard must be had to the objects of Part 5 of the MHCIFP Act set out in s 69(1) as follows:

1. to protect the safety of members of the public;

2. to provide for the care, treatment and control of persons subject to criminal proceedings who have a mental health impairment or cognitive impairment;

3. to facilitate the care, treatment and control of any of those persons in correctional centres or detention centres through community treatment orders;

4. 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;

5. to give an opportunity for those persons to have access to appropriate care;

6. to protect the safety of victims of forensic patients and acknowledge the harm done to victims.

37. Section 122 provides the grounds for making an extension order and is in the following terms:

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—

1. the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and

2. 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.

38. Section 122 has been described as creating two limbs. The first requires demonstration that the defendant “poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient”. This involves consideration of, and a comparison with, the identified counter-factual: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [126] (Basten JA). The second involves consideration of whether the “risk cannot be adequately managed by other less restrictive means” which, as the note to the section provides, will include consideration of whether the involuntary detention or treatment under the Mental Health Act 2007 (NSW) adequately manages the risk: Minister for Mental Health v Paciocco [2017] NSWSC 4 at [7] (Campbell J).

39. The term “serious harm” is not defined in the MHCIFP Act. It has been accepted that it includes physical or psychological harm, albeit conditioned by the requirement that the harm be “serious”: see Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 at [16] (R A Hulme J). In terms of physical harm, it does not have to satisfy the threshold of “grievous bodily harm” but must be more than “actual bodily harm”. For psychological harm, it must be more than emotions such as fear or panic.

40. The term “adequately managed” is also not defined in the MHCIFP Act. It has been held to mean “that the unacceptable risk is mitigated by the proposed management regime so that the community’s interest in being kept safe is outweighed by the community’s interest in not having mentally ill or mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community”: Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 at [63] (Garling J).

41. Section 124(2)(b) of the MHCIFP Act provides that an application for an extension order may not be made more than six months before the expiry of the existing extension order. It is accepted by the defendant that this requirement is satisfied, and I find that it is. The application made by the plaintiff was commenced by Summons filed on 13 February 2025 which is fewer than six months before the expiry of the limiting term on 10 May 2025. Accordingly, the application is compliant with the time stipulated by s 124(2)(b).

38. An application for an extension order requires supporting documentation as specified in s 125 of the Act. That documentation must address each of the matters referred to in s 127(2), to the extent relevant to the application, and must include a report by a qualified psychiatrist, registered psychologist or registered medical practitioner assessing the risk of the forensic patient causing serious harm to others, the need for ongoing management of the patient as a forensic patient and the reasons why the risk of the forensic patient causing harm to others cannot be adequately managed by other less restrictive means.

39. I am satisfied that the material in the affidavits relied on by the plaintiff, namely the affidavits of Jacqueline Krynda affirmed and filed on 11 February and 19 June 2025 and of Anna Johnson affirmed and filed on 4, 27 and 31 March 2025, addresses these matters. The defendant did not contend otherwise.

40. Other pre-hearing procedures relating to the making of, and dealing with, an application for an extension order are prescribed by s 126 of the MHCIFP Act. They require the application to be served on the defendant within two business days after the application is filed, or such further time as the Court may allow (s 126(1)); the plaintiff must notify the MHRT as soon as practicable after making the application (s 126(2)); subject to some presently irrelevant exceptions, the Minister must disclose to the defendant material relevant to the application (s 126(3)); and the Court is to hold a preliminary hearing within 28 days after the filing of the application, or within such further time as the Court may allow (s 126(4)).

41. I am satisfied that these pre-hearing procedures have been complied with. The defendant did not contend otherwise.

42. Section 127(1) empowers the Court, when determining an application for an extension order, to make such an order (s 127(1)(a)) or to dismiss the application (s 127(1)(b)).

43. In determining whether to make an extension order, the Court must take into account s 127(2) which is in the following terms:

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-

1. the safety of the community,

2. the reports received from the persons appointed under section 126(5) to conduct examinations of the forensic patient,

3. the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(b),

4. any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient,

5. any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application,

6. 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,

7. 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),

8. 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,

9. any other information that is available as to the risk that the forensic patient will in future cause serious harm to others.

48. The power to make an extension order is discretionary: s 127(1). If an order is made it may be for a period not exceeding five years from the day on which it commences: s 128(1)(b).

49. I address the considerations that I have taken into account, in accordance with s 127(2) of the MHCIFP Act, in reaching my conclusions.

The safety of the community: s 127(2)(a)

50. The plaintiff has identified three matters bearing upon the issue of safety to the community. Those matters are the defendant’s prior offending, his psychiatric disorders and the risk that he will fail to take his medication in the community.

51. The defendant’s criminal history, prior to the index offence, involved several offences of violence, which include:

1. breaches of apprehended violence orders in 2010;

2. assaults in 2013 and 2014 which each bear striking similarities to the index offence, involving random acts of violence in gymnasiums. At least one of those previous attacks, like the index offence, was unprovoked. The police facts relevant to the other refer to some exchange of words between the defendant and the victim which may have provided some mild degree of provocation;

3. offending in 2018 involving threatening a man at a workplace with a metal pole, driving a vehicle in a manner that was menacing whilst engaged in a car chase and being in possession of a knife in a public place. Those offences were unprovoked and committed in response to the victim requesting the defendant to move his truck which had been blocking a driveway; and

4. being involved in multiple physical altercations whilst in custody.

52. The index offending involved the defendant carrying out a random, violent and unprovoked attack on a stranger which was of such force that it caused the prolapse of orbital contents and muscles, and fractures of the nose and left orbit.

53. The defendant’s diagnosis of schizophrenia is characterised by episodes of thought disorder, incidents of aggression and incidents of violence.

54. Although the medical records tendered on the application establish that his schizophrenia is now under pharmacological treatment which is having some effect, the records establish that his mental illness was largely untreated when he was in the community because of his history of refusing to acknowledge his mental illness and refusing to engage with mental health services. As a consequence he has been largely non-compliant with his medication whilst in the community.

55. In custody the defendant has stated that he only takes his medication because the medical staff require him to do so and he has from time to time refused to be medicated. The defendant’s treating doctor, Dr Andrew White, reported on 1 October 2024 that the defendant’s insight was limited and that the defendant did not think that the medication was necessary or helping. Dr White was of the opinion that the defendant’s judgment was still impaired based on the refusal to acknowledge his condition and his refusal to acknowledge the beneficial effects of the treatment.

56. Progress notes dated 11 October 2020 record that the defendant asked a Justice Health clinical nurse if he could know what his diagnosis was and said that he believed that the medication he was taking was helping him to feel stable. At a hearing before the MHRT on 16 January 2025, the defendant, through his lawyer from the Mental Health Advocacy Service, expressed support for further treatment by being transferred to the Forensic Hospital where he believed he would get better care.

57. Judge Pickering SC noted in the remarks on sentence: “[l]ike many schizophrenics, he has found it difficult to self-treat himself in the community. By self-treating, I mean that when he is not in custody it is required that he take his medication orally and the success of that medication is completely reliant on his compliance with the medication.”

58. The defendant has also been diagnosed with polysubstance use disorder. That disorder is currently in remission because he is being held in a controlled environment. However, his prior illicit drug use has been linked to triggering episodes of psychosis. Despite a history of polysubstance abuse in the community, the defendant does not appear to have significant insight into his disorder in that he has been recorded in 2014, 2023 and 2024 as denying illicit substance use to various doctors.

Reports received under s 126(5): s 127(2)(b)

59. Following orders made by Justice Davies on 16 April 2025, Dr Sathish Dayalan, forensic psychiatrist, and Dr Yolisha Singh, forensic psychiatrist, were appointed to assess the defendant. Dr Dayalan conducted a psychiatric assessment of the defendant on 19 May 2025 and produced a report dated 30 May 2025. Dr Singh conducted a clinical interview of the defendant on 14 May 2025 and produced a report dated 30 May 2025.

60. In summary, each expert considered that the defendant should be subject to an extension of his status as a forensic patient; each agreed that there is a foreseeable risk of causing harm to others if the defendant ceased to be a forensic patient; each was of the opinion that there are no less restrictive means available at present which would adequately address the defendant’s forensic needs in connection with that risk; and each was of the opinion that an extension of two years was appropriate. I accept this evidence, which was unchallenged.

61. There was no contest about what each expert had concluded. The defendant, in my view properly, accepted the experts’ determination that the defendant posed a risk of causing harm if he ceased to be a forensic patient. The defendant submitted that the court needed to be independently satisfied of those matters and of the other statutory pre-requisites in s 121.

62. Dr Dayalan opined that the defendant suffers from a chronic psychotic illness characterised by persecutory delusions, hallucinations, disorganisation in thought form and bizarre behaviour, consistent with the diagnosis of schizophrenia. He was of the opinion that there was insufficient evidence to diagnose substance use disorder or personality disorder. Dr Dayalan noted, notwithstanding that insufficiency of information, that the defendant had a history of prior admissions for substance use.

63. Dr Dayalan observed that the defendant presented with cognitive deficits and commented that such deficits are common in individuals with schizophrenia. However, absent premorbid intelligence testing, Dr Dayalan was unable to diagnose the defendant with intellectual disability.

64. Dr Dayalan is of the opinion that the defendant posed a risk of serious harm to others. He described that risk as including the risk of violent physical injuries caused to others if the defendant ceased to be a forensic patient and not subject to any other type of protective order. He is of the opinion the likelihood of the defendant causing serious harm to others was dynamic and would be influenced by multiple factors including placement, level of supervision, compliance with treatment, use of illicit drugs and psychosocial stress. Dr Dayalan commented that the likelihood that the defendant would cause serious harm to others would increase if released into the community with inadequate support and monitoring. He noted the defendant’s limited insight meant that he was unlikely to voluntarily engage in treatment or rehabilitation.

65. The Historical Clinical and Risk Management – 20 Version 3 (HCR- 20 V3) risk assessment tool was used by Dr Dayalan to assess the defendant’s risk of violence. That assessment resulted in Dr Dayalan finding that the defendant has a high loading of historical risk factors for violence and a moderate loading of clinical risk factors whilst being managed in a secure psychiatric facility. In light of that risk profile, Dr Dayalan recommended ongoing treatment in a secure psychiatric facility and indicated that the defendant required a structured transition into the community and that his dynamic risk factors would need to reduce and his insight would need to improve before that transition could occur.

66. Dr Dayalan is of the view that the risk posed by the defendant would be reduced by treatment with clozapine and ongoing rehabilitation in a secure inpatient setting. He is of the opinion that extending the defendant’s forensic patient status would allow for more assertive management in the community, oversight by the MHRT, consistency in care and prompt responses to any breaches of conditions whilst in the community. Dr Dayalan is also of the opinion that in the longer term an alternative to forensic patient status, namely a combination of treatment as an involuntary patient under the Mental Health Act, guardianship order and NDIS support, could be effective provided the defendant could make sufficient progress in the meantime into his mental illness and violence risk.

67. Dr Dayalan considered that an extension of two years as a forensic patient would allow for further consideration of the defendant’s progression with treatment and to transition to a less secure unit within the forensic hospital.

68. In her report dated 30 May 2025 Dr Singh diagnosed the defendant with schizophrenia, observing that he presented with profound negative symptoms which have compounded his psychosocial difficulties and markedly impaired his functioning. Dr Singh is also of the opinion that the defendant appeared to have cognitive difficulties, which she commented may be caused by the schizophrenia or by another pathology. She diagnosed stimulant use disorder (cocaine), although she found that this disorder was mild and in sustained remission.

69. Dr Singh noted that the defendant had very poor insight into his mental health. She recorded the defendant told her did not know what schizophrenia was, he could not articulate his symptoms and he did not believe that he needed treatment. She noted that the defendant had limited insight into his offending behaviour and told her that he was unable to see any link between his mental illness and the acts of violence for which he has been convicted.

70. Dr Singh is of the opinion that the defendant poses a risk of causing serious harm to others due to the detrimental impact that his mental illness has on his mental state and the aggressive behaviours he has displayed when he is unwell. She formed the opinion that the defendant fell into a high-risk category of people with an elevated future risk of violence whether or not he remained a forensic patient. However, Dr Singh is of the opinion that there was an increased likelihood the clinical and risk management factors for violence risk would likely increase if he ceased to be a forensic patient.

71. Dr Singh also used the HCR–20 V3 assessment tool to assess the defendant’s risk. That assessment resulted in Dr Singh finding that several risk factors and risk management concerns were present. She found the defendant had no insight into his mental illness, the need for treatment or his risk of violence. Dr Singh also applied the Structured Assessment of Protective Factors for Violence Risk 2nd Edition tool to assess the defendant’s protective factors. That assessment resulted in Dr Singh concluding that the defendant has a low loading of protective factors against violence.

72. Dr Singh is of the opinion that if the defendant ceased to be a forensic patient at present there is an increased likelihood that the clinical and risk management factors for risk of violence are likely to increase. Specifically, Dr Singh was of the opinion that the defendant may become non-compliant with treatment and develop more acute symptoms such as hallucinations, which had previously provoked him into violence. Extending his status as a forensic patient would, in Dr Singh’s opinion, give the defendant access to appropriate mental health care, the cultivation of better coping skills, the development of prosocial supports and would ensure oversight by the MHRT and the Justice Health Forensic Mental Health Network.

73. Dr Singh concluded that the defendant required ongoing care and treatment as a forensic patient together with a “robust” NDIS package and that any less restrictive means of managing the defendant’s risk were inadequate. Dr Singh is of the opinion that it would be reasonable to extend the defendant’s forensic patient status for two years.

The report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(b): s 127(2)(c)

74. In a risk assessment report dated 2 December 2024 Dr Anna Farrar, forensic psychiatrist, expressed the opinion that the defendant met the diagnostic criteria for chronic schizophrenia and considered that the defendant’s symptoms were permanent given the chronicity of the symptoms despite appropriate and reasonable psychiatric treatment. Dr Farrar noted that the defendant had a history of polysubstance use in the community. She stated that the defendant posed a moderate to high risk of causing serious harm to others and that as a result she was of the opinion that the defendant posed a risk of causing serious harm to others if he ceased to be a forensic patient.

75. In Dr Farrar’s opinion the defendant’s risk of causing serious harm to others was appropriately managed by continuation of his forensic patient status. Dr Farrar was of the view that continuing that status would allow for possible transfer to a Medium Secure Unit for forensic mental health treatment in an inpatient environment, oversight by the MHRT and independent risk assessment by New South Wales Community Forensic Mental Health Service prior to any release to the community.

76. Dr Farrar also expressed the opinion that no less restrictive means than remaining as a forensic patient were appropriate in light of his non-compliance with antipsychotic medication and community treatment. Dr Farrar considered that it would be inappropriate to manage the defendant’s risk of causing serious harm to others through the imposition of an FCTO alone because he required additional restrictions and supports.

77. Dr Farrar opined that an appropriate period of time for an extension of the defendant’s forensic patient status would be two years to allow for ongoing specialist forensic mental health treatment, including possible transfer to a Medium Secure Unit and future conditional release.

Any other report of a qualified psychiatrist or registered psychologist or medical practitioner: s 127(2)(d)

78. The plaintiff drew attention to five further reports.

79. The first report was the report by Dr Andrew White, psychiatrist, dated 1 October 2024 which was prepared for the purposes of the review hearing by the MHRT on 11 October 2024.

80. In that report Dr White noted that there had been some improvement in the defendant’s presentation whilst he had been housed in the Hampton Mental Health Stepdown Area. He observed that the defendant had become more reactive, his speech disorders had resolved and he was not displaying tangential or incongruent thinking.

81. Dr White stated that during his interview with the defendant on 26 September 2024, although the defendant displayed poverty of thought content, there was no evidence that he was experiencing overt delusions, overvalued ideas or obsessional thoughts. However, Dr White considered that the defendant displayed limited insight into his condition and the need for treatment and that his judgement remained impaired. The defendant reported to Dr White that, although he was happy to continue to take his current medication, he maintained the belief that the medication was unnecessary because he did not believe that he had a mental illness.

82. Dr White expressed the opinion that the defendant had a moderate loading of historical risk factors for future violence and one clinical risk factor for future violence namely lack of insight into his condition. Despite the presence of a number of protective factors, including accommodation and acceptance into the NDIS program, Dr White maintained concerns regarding the defendant’s future engagement with professional services, supports and treatment because of his lack of insight and poor engagement with mental health services in the past.

83. Dr White expressed the opinion that the defendant would benefit from admission to a psychiatric facility and that his illness and associated risks would be manageable in the medium secure setting of such a facility.

78. The second report was by Dr White dated 22 February 2024, prepared for the purposes of the review hearing on 10 May 2024 regarding the FCTO. In that report Dr White noted that the defendant continued to deny his mental illness and confirmed the diagnosis of schizophrenia which he said had been complicated by the defendant’s non-compliance with treatment.

79. The third report was by Dr Fergus Lewis, psychiatry registrar, dated 6 November 2023 provided to the MHRT for the purposes of the review hearing on 10 November 2023.

80. In that report Dr Lewis reported that the defendant’s positive symptoms of psychosis were largely in remission with some fluctuations in mood and negative symptoms. However, Dr Lewis considered that the defendant had demonstrated poor insight into his diagnosis of schizophrenia, the need for treatment and the potential harms associated with him being unwell.

81. The fourth report was by Dr Bronwyn Moss, psychiatry registrar, dated 27 July 2023 prepared for the purposes of the 10 August 2023 hearing regarding the FCTO.

82. In that report Dr Moss reported that the defendant’s presentation was consistent with schizophrenia, characterised by paranoia, thought disorder and unprovoked aggression towards others when he was unwell. She noted that the defendant presented with no active delusional content or hallucinations. Although Dr Moss noted that the defendant presented with reasonable insight and judgment regarding his ongoing need for medication, she noted the defendant’s history of non-compliance with medication in the lead up to episodes of psychosis and physical aggression as justifying the need to impose an FCTO.

83. The fifth report was a psychiatric assessment by Dr Andrew White dated 17 April 2023 provided for the purposes of the 17 July 2023 review hearing.

84. In that report Dr White confirmed the defendant’s diagnosis of schizophrenia and reported the defendant presented as guarded, suspicious, irritable and with formal thought disorder. He noted that the defendant had been refusing all medication whilst in custody and his mental state had not improved. In that report Dr White expressed the view that the defendant’s admission to a mental health facility was necessary in light of his non-compliance with medication and his history of serious and unprovoked assaults.

Any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application: s 127(2)(e)

91. The MHRT in its first review of the defendant on 11 October 2024 ordered that he be detained at either the MRRC or the Long Bay Correctional Complex. The MHRT was satisfied that an FCTO was necessary at that time and was the least restrictive option and form of available care in the community.

92. The defendant gave evidence before the MHRT, during which he said that he takes “each day as it comes” and that “we all have schizophrenia and hopefully we can treat it and be better in the long run”. He then agreed that this medication helped with his symptoms.

93. On 16 January 2025 the MHRT reviewed the defendant. At that review the defendant’s treating team requested an order that the defendant be transferred to the Forensic Hospital when a bed became available. They reported improvement in the defendant’s presentation and affect but noted that the defendant continued to deny his psychotic symptoms, remained superficially engaged and had a paucity of spontaneous speech and a poverty of thought content. The MHRT ordered that the defendant be transferred to the Forensic Hospital and a continuation of the FCTO which it had ordered on 11 October 2024.

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

94. In nursing reports by the defendant’s treating team in the Justice Health and Forensic Mental Health Network, which were prepared during his treatment since the index offending, it is noted that he is a poor historian and denies having mental illness. He is reported as presenting on two occasions as acutely psychotic with significant formal thought disorder, delusional beliefs and likely perceptual disturbances. The reports note that those symptoms were likely in line with the schizophrenia diagnosis.

95. Notes of medical examinations conducted by Dr Ching Ho and Dr Sue Morgans of the defendant while he was in custody refer to observations of him suffering from chronic psychotic illness and presenting as being paranoid, guarded and thought disordered. Those notes record that the doctors recommended that he be transferred to hospital for review, care and treatment.

The level of forensic patient compliance with any obligations to which the patient is or has been subject whilst a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act): s 127(2)(g)

96. The documents tendered on this application established that the defendant has an extensive history of non-compliance with treatment and supervision. His history of non-compliance includes non-compliance with psychiatric treatment in a custodial setting and repeatedly denying that he has a mental illness.

97. The documents also established that he has acquiesced to medication whilst in custody, although the records show that the defendant has done so because medical staff required him to take his medication. He is recorded as variably agreeing with his diagnosis and at other times denying any mental health issues. Recent notes record his presentation and attitude towards treatment and medication has shown some signs of improvement.

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: s 127(2)(h)

98. In his remarks on sentence dated 22 July 2024 Judge Pickering SC expressed a number of relevant views. Those views include that, although towards the lower end of the scale of grievous bodily harm, the index offending by the defendant was an assault of a random nature involving a significant aspect of violence arising from the way in which the defendant kicked the victim in the head.

99. The sentencing judge also expressed the views that the defendant had a significant criminal history and a concerning history of violent offending and that the defendant found it difficult to self-treat whilst in the community. The learned judge noted that when not in custody the defendant was required to take his medication voluntarily and orally and observed that the success of that medication was completely reliant on the defendant’s compliance with his medication regime.

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

100. The plaintiff did not make any submissions directed to this subsection.

101. Counsel for the defendant submitted that “other information” in s 127(2)(i) and the requirement in the chapeau of s 127(2) for the court to have regard to “any other matter it considers relevant” engaged consideration of the following additional matters.

102. The defendant has familial support and apparently stable accommodation available to him in the community. There are references in the evidence to available accommodation. Dr Andrew White recorded in his report of 1 October 2024 that the defendant’s stated intention was to live alone in an apartment owned by his parents with the support of his uncle and sister. That report records that the defendant’s parents were, at the time of the report, both residing in Turkey looking after their own parents. The joint memorandum of agreed facts and issues which formed part of the evidence, and was filed on 18 July 2025, recorded that the defendant’s father was in Australia and his mother, who had been caring for her father in Turkey, had returned to Australia for a short visit. Counsel for the defendant informed the Court that she had been instructed, and I accept, that although his parents travel back and forth to Turkey to attend to their own parents, either one or other of his father or mother reside in Sydney at any given time and that the defendant would not be left residing in the apartment without parental supervision.

103. The defendant has some employment history and some prospects of future employment. He has worked in the past as a cleaner earning $400 per week and has completed a Certificate III in tiling.

104. At the time he was discharged from Long Bay Hospital Mental Health Unit in August 2023 he was recorded as being largely in remission of his positive symptoms and adherent to medication. However, he was also noted at that time as having fluctuations of mood and prominent negative symptoms and his insight was noted as remaining poor.

105. In March 2024 when he was admitted to the Hamden Mental Health Stepdown Area he is recorded as showing some improvement in his presentation, more reactive in affect and more warmly engaged. He is also recorded then as not being disordered in thought and denying any psychotic symptoms. However, at that same time he is noted as remaining superficially engaged, with poverty of thought content and paucity of spontaneous speech. At that time the defendant was referred to and accepted into the NDIS.

106. Dr Dayalan has expressed the opinion that an alternative to extending his forensic patient status was combined treatment as an involuntary patient under the Mental Health Act, a guardianship order and NDIS support. However, Dr Dayalan was of the opinion that the defendant first needed to make progress particularly in regard to his insight into his mental health and violence risk before that alternative combination of treatments could be effective.

107. Although the defendant has not had a good response to treatment, Dr Singh notes that he has not yet had a comprehensive appropriate assessment despite being under the care of Mental Health Services for two and a half years. Dr Singh noted positive factors over the past year including that the defendant had reengaged with his family, abstained from illicit substances whilst incarcerated and become compliant with treatment despite his lack of insight. Dr Singh also noted, significantly, that there had been no incidents of violence for over two years despite the defendant’s persistent psychotic symptoms albeit constrained by a highly controlled environment.

The extension order should be made

108. I have already found that the matters in ss 123 – 126 of the MHCIFP Act are satisfied: see [35], [41], [43] and [45] above.

109. Having regard to the matters under s 127(2) referred to above, I have no doubt to the high degree of probability required, that unless the defendant’s status as a forensic patient is extended there is an unacceptable risk of him causing serious harm and, further, that that risk cannot be adequately managed by other less restrictive means. Accordingly, I am satisfied that the terms of s 122(1) of the MHCIFP Act are met.

110. In arriving at that conclusion and state of satisfaction, I am particularly mindful of the following matters.

111. First, the defendant suffers from chronic and long-standing schizophrenia. His condition has predisposed him to impulsivity, acts of aggression and contact with the criminal law. His psychiatric condition informs and explains the defendant’s past offending as well as the likelihood of reoffending or engaging in future conduct causing serious harm, particularly in the context of his lack of insight and poor history of self-regulating his compliance with medication.

112. The evidence does not suggest that the defendant’s psychiatric symptoms are resistant to treatment. Rather there has been some positive improvement as a result of his forced compliance whilst in custody. However, the evidence does point to a significant concern about the defendant’s acceptance of his mental health, his ability to remain compliant and self-manage if released to the community.

113. Secondly, Judge Pickering SC reached conclusions that at the time of imposing the limiting term in July 2024 the defendant’s chronic schizophrenia was difficult to manage in the community because of his lack of acceptance of the diagnosis and difficulty in complying with medication. The sentencing judge found that the defendant’s schizophrenia significantly diminished his moral culpability. Those conclusions remain relevant to the risks and concerns if the defendant’s forensic patient status was not extended.

114. Thirdly, the defendant has regularly been assessed by the MHRT as being unfit for reintegration into the community until there are significant improvements to his insight and ability to self-manage. There is no suggestion that the MHRT considered that the defendant’s status as a forensic patient was anything other than appropriate nor that they considered that the status was likely to change absent significant improvements in insight and ability to self-care.

115. Fourthly, the expert evidence which I have already summarised demonstrates that the defendant’s risk profile, when assessed using risk assessment tools, remains a significant concern. Dr Dayalan’s assessment that the defendant had a high loading of historical risk factors for violence and a moderate loading of clinical risk factors whilst being managed in a secure psychiatric facility supported his recommendation that the defendant remain under ongoing treatment in a secure psychiatric facility. Until the defendant’s dynamic risk factors reduce and his insight improves, transition from a secure psychiatric facility to any less restrictive treatment was not recommended. Similarly, Dr Singh assessed that several risk factors and risk management concerns were present in the defendant and that he had a low loading of protective factors against violence. Those assessments resulted in Dr Singh recommending that the defendant remain a forensic patient because any lesser form of treatment was likely to increase the clinical and risk management factors for risk of violence.

116. The risk assessments and conclusions referred to in the experts’ reports demonstrate that in the absence of increased insight and increased ability to self-manage, the defendant is unlikely to have any significant improvement in his risk profile for acts of violence.

117. Fifthly, I accept the submissions made on behalf of counsel for the defendant that, notwithstanding the lack of opposition from the defendant to the making of an order, the court still needs to be independently satisfied to a high degree of probability of each of the limbs in s 122(1). I am independently satisfied to a very 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. That risk is that the defendant has a propensity to cease taking his medication and whilst unmedicated a propensity to engage in random and unprovoked acts of extreme violence directed at others. Outside of the restrictive environment of his status as a forensic patient, the defendant poses an unacceptable risk of causing that type of serious harm to others. In addition, I am independently satisfied to a very high degree of probability that that risk cannot be adequately managed by other less restrictive means. It was the common view of each of the experts and the consistent view of other authors of reports that, until there is some significant improvement in the defendant’s insight and ability to self-manage, no less restrictive means of treatment could adequately manage the risk that the defendant presents.

118. As provided for by s 128(1)(b), the period of an extension order under s 122 cannot exceed five years. In this case, the plaintiff seeks an extension order for a period of two years. Counsel appearing for the defendant, subject to the court being satisfied of the matters within s 122, did not oppose that period as being appropriate. Dr Dayalan and Dr Singh each considered that the defendant’s status as a forensic patient should be extended for a period of two years. I accept that expert evidence and that an extension period of two years is appropriate in that it will allow for further consideration of the defendant’s progress with treatment, his insight and ability to self-manage and with a view to allow for further consideration of his transition to a less secure unit within the forensic hospital. The period of a two-year extension is not only appropriate but serves the objectives in s 69 of the MHCIFP Act.

Orders

119. Accordingly, I make the following orders:

1. Order, pursuant to ss 121 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), that the defendant be subject to an order for the extension of his status as a forensic patient for a period of two years from the date of this order.

2. Direct that the Registrar of the Court notify the Mental Health Review Tribunal of the making of the above extension order.

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Decision last updated: 01 August 2025