Attorney General for New South Wales v JS

[2025] NSWSC 205

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney General for New South Wales v JS [2025] NSWSC 205

Hearing dates:

19 February 2025

Date of orders:

10 March 2025

Decision date:

10 March 2025

Jurisdiction:

Common Law

Before:

Rigg J

Decision:

(1) Pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant is subject to an order for the extension of his status as a forensic patient for a period of 18 months from today.

(2) The Registrar of the Court is to notify the Mental Health Review Tribunal of the making of the extension order.

(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 of access.

Catchwords:

MENTAL HEALTH — Forensic patient — Extension of status as forensic patient

Legislation Cited:

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

Category:

Principal judgment

Parties:

Attorney General for New South Wales (Plaintiff)
JS (Defendant)

Representation:

Counsel:
Andrew Wong (Plaintiff)
Scott Fraser (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Caulfield Solicitors (Defendant)

File Number(s):

2024/00458507

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) upon the ground set out in s 8(1)(a) of the Act, the defendant’s name is to be suppressed in these proceedings and the defendant is to be referred to in connection with these proceedings, including in any published court list, by the pseudonym “JS”.

JUDGMENT

1. The Attorney General for New South Wales, the plaintiff, seeks an order extending the defendant, JS’s, status as a forensic patient pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”) for a period of two years.

2. Section 122(1) of the Act empowers the Supreme Court to make such an order if and only if the 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.

3. Section 122(2) stipulates that the 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.

4. The defendant appears by his tutor and was represented by counsel. Counsel indicated that the defendant does not consent to the order sought by the plaintiff. It is not conceded that the defendant poses an unacceptable risk of causing serious harm to others. If the Court is satisfied of that issue, counsel for the defendant acknowledges that the risk cannot be adequately managed by less restrictive means. Counsel for the defendant submitted that if an order is made, one of 12-18 months would be sufficient instead of the 2 years sought by the plaintiff.

5. The defendant is a 30 year old man who, at the time of the hearing, was subject to a 3-month interim extension order imposed under the Act by Yehia J, which commenced at the expiry of his limiting term on 11 December 2024: State of New South Wales v JS (Preliminary) [2024] NSWSC 1597.

6. When Yehia J imposed the interim order, orders were also made for the appointment of experts to provide the Court with reports, and for the defendant’s attendance upon those experts. The experts retained by the plaintiff were Dr Sathish Dayalan, forensic psychiatrist and Dr Carollyne Youssef, forensic psychologist. They were not required for cross-examination and did not give oral evidence at the hearing. They are both of the view that an extension of the defendant’s status as a forensic patient is required.

The evidence

7. Three volumes of material were tendered by the plaintiff. This material included the reports of Dr Dayalan and Dr Youssef, multiple other expert reports and risk assessments, material relating to the offences alleged against or committed by the defendant over his lifetime, court decisions, custodial notes and significant records of the Mental Health Review Tribunal (“the Tribunal”).

Statutory framework

8. The first two definitions of “forensic patient” in s 72(1) of the Act are relevant to this case; namely:

(a) a person who is found unfit to be tried for an offence and who is detained in a mental health facility, correctional centre, detention centre or other place, or

(b) a person for whom a limiting term has been nominated after a special hearing (including a person who is subsequently subject to an extension order or an interim extension order) and who is detained in a mental health facility, correctional centre, detention centre or other place or who is released from custody subject to conditions under an order made by the Tribunal

9. The power to make the order sought is in s 121 of the Act, and the core test is set out in s 122 as referred to above. There are statutory thresholds which must be met to provide the Court with jurisdiction, set out in s 124 of the Act. The parties agree that these are met, and I am satisfied that they are.

10. In determining whether to make an order, the Court must have regard to the matters specified in s 127(2) of the Act, being: the safety of the community, reports from experts who examined the defendant, a report by an expert who assessed the risk of the defendant causing serious harm to others, relevant orders or decisions made by the Tribunal about the forensic patient, the forensic patient’s compliance with any obligations to which he has been subject while a forensic patient, and the views of the Court which imposed a limiting term or extension order.

11. An extension order may not exceed 5 years, but subsequent extension orders may be made: s 128. An order for the unconditional release of a forensic patient may not be made by the Tribunal while an extension order is in place: s 83(3). Section 133 of the Act provides that the Supreme Court may at any time vary or revoke an extension order on the application of a Minister administering this Act, the forensic patient, or on the recommendation of the Tribunal under s 83(3). One ground for revoking the extension order is where the circumstances have changed sufficiently to render the order unnecessary. A determination of the Tribunal to release a forensic patient cannot override a refusal of bail, but a recommendation may be made by the Tribunal to a Court in connection with the grant of bail: s 82(2).

Background

12. In summarising the background, I am considerably assisted by the parties’ joint statement of agreed facts which summarised the evidence before me, and the agreed chronology prepared by the parties.

13. The defendant is a 30 year old Kamilaroi man born in Moree, NSW. The defendant has been a forensic patient since 21 November 2024. He was at the time of the hearing subject to a Forensic Community Treatment Order (FCTO) made by the Tribunal on 7 March 2024 which was due to expire on 6 March 2025.

14. The defendant has been in custody in NSW since his arrest on 13 June 2023. As a result of mental health issues, self-harm, aggression, and problematic sexualised behaviour, the defendant has been moved between correctional facilities and mental health facilities on multiple occasions between August 2021 and June 2024. The defendant was at the time of the hearing housed at the Metropolitan Remand and Reception Centre, Silverwater.

15. The defendant has been diagnosed with schizophrenia, mild intellectual disability, antisocial personality disorder and polysubstance use disorder (in remission).

16. The Tribunal has reviewed the defendant a number of times while he has been a forensic patient. On 14 June 2024 the Tribunal determined that the defendant’s understanding of his illness and need for treatment remains limited and noted his long history of refusing treatment, resulting in disinhibited behaviour. The Tribunal concluded that he requires ongoing care and treatment and therefore determined to continue his FCTO.

17. The defendant comes before the Court as a forensic patient in the following circumstances. The defendant was incarcerated in Queensland and dealt with on 11 November 2022 for charges of stealing and common assault, with concurrent 12 month sentences of imprisonment imposed, with a declaration that time spent in pre-sentence custody was deemed as time already served under the sentence. He had a parole eligibility date of 11 November 2022. The defendant was transferred into psychiatric care at Ipswich Hospital on 31 May 2023. Hospital notes record “extremely bizarre movements, having multiple unexplained wounds and injuring himself, setting his room on fire, fatuous affect, masturbating in public spaces in the hospital and during psychologist reviews.”

18. The defendant was discharged into the care of family on 8 June 2023. This was probably not with his foster parents, who do not live in Moree and who were protected by an ADVO, but other extended family in Moree. On 12 June 2023, police observed the defendant unsteady on his feet, making abnormal hand gestures and not engaging with his surroundings. He admitted to injecting the drug “ice” and an ambulance was called. The defendant was admitted to Moree hospital. The victim was a registered nurse who attended to record the defendant’s blood pressure, heart rate, and oxygen levels. As the victim began to move the blood pressure monitor, the defendant stood up and pulled his pants down to his hips, exposing his penis. He then grabbed the victim by the back of her neck, pulled her head down to about 10 cm from his penis and said, “Hey miss why don’t you suck it”. The victim managed to break away and seek help.

19. The defendant was charged with a number of offences and found unfit to be tried on 30 August 2024. On 21 November 2024, following a special hearing at Moree District Court in relation to a charge of unlawful sexual touching, Sutherland SC DCJ found the defendant, on the limited evidence available, guilty of the offence. His Honour nominated a limiting term of 18 months, backdated to commence on 12 June 2023 and expiring on 11 December 2024.

20. The defendant also has a criminal history which includes convictions for the following offences:

1. Break and enter house (2008, 2009, 2016, 2017),

2. Destroy or damage property (2008, 2009, 2013, 2015, 2016, 2019),

3. Assault occasioning actual bodily harm (2008),

4. Common assault (2008, 2009, 2013),

5. Entering enclosed land without lawful excuse (2008, 2009, 2018),

6. Resisting officer in execution of duty (2009),

7. Contravening prohibition/restriction in AVO (2012, 2013),

8. Assault officer in execution of duty (2013),

9. Take and drive conveyance without consent of driver (2016),

10. Larceny (2016),

11. Stalking/intimidation with intention to cause fear (2016, 2019),

12. Assault law enforcement officer (not police) (2017, 2019),

13. Custody of knife in public place (2019), and

14. Possession of prohibited drug (2020).

21. As a juvenile the defendant received orders for probation, and suspended control orders. Since his first charge as an adult in May 2013 the defendant has been subject to 16 separate admissions to custody. He was on that first occasion diverted for mental health assessment. Since that time he has generally only been at liberty for days, weeks, or a few months before being incarcerated again. He has spent time, as a correctional patient, in hospital facilities. The defendant was in the community for about 8 ½ months in late 2015 and early 2016.

22. An occasion that has some significance to the psychological opinion of Patick Sheehan, referred to below, is that on 10 February 2020 a 2 year Community Correction Order was imposed for assaulting a law officer (not a police officer) in June 2019. The defendant was released from custody on that date, having been in custody since March 2019. In December 2020 and April 2021 he was called up for breach of the order, but no action was taken. He was arrested and bail refused for 3 days in April 2021, but he otherwise remained at liberty in the community and not returned to custody until 4 May 2021 in the circumstances set out below.

23. On 4 May 2021, the defendant was charged with destruction or damage of property, three counts of assaulting a police officer, custody of knife in a public place, and escaping police custody. Members of the public contacted police that day after the defendant was seen walking outside an electronics store holding a knife. Upon the arrival of police, the defendant advised that he had a knife. When a police officer attempted to arrest the defendant, he absconded into the electronics store. The defendant picked up a lamp and threw it at an officer, ultimately missing and causing the lamp to break. The officer attempted to grab the defendant, and the defendant picked up a grey chair and threw it at two other officers. The defendant also knocked over a display. He subsequently slipped and was arrested. He was sentenced to 10 months imprisonment commencing 4 May 2021 and concluding 3 March 2022, with a non-parole period of 5 months. He was released to parole on 3 October 2021.

24. On 8 October 2021, the defendant approached the victim (his foster father) and demanded money. The defendant raised his voice and threatened to burn the victim’s house down. The defendant then picked up a petrol can and shook it in the direction of the victim. The victim felt fearful and intimidated and gave the defendant $40. The defendant was arrested later that day and charged with stalking and/or intimidation with intent to cause harm, and readmitted to custody. On 15 November 2021 he was sentenced to 6 weeks imprisonment concluding 18 November 2021. It seems that his parole must have been revoked, as he remained in custody until 18 January 2022 when he was released on parole.

25. The defendant is currently bail refused for allegations of physical and sexual violence alleged to have occurred during his most recent incarceration.

26. The supporting documentation includes reports of many experts who have previously examined JS, reports to and decisions of the Tribunal, facts of previous offending, and progress notes. I have read and considered all of those documents.

27. Although there are slight differences between the expert reports, the defendant’s significant diagnoses are not controversial. The defendant has an established diagnosis of schizophrenia which has been complicated by his substance use and medication non-compliance.

28. The defendant had his first psychiatric admission at 15 years old and has had numerous admissions into psychiatric units since then, after reporting hearing voices. The defendant has also been diagnosed with polysubstance use disorder and antisocial personality disorder.

29. The defendant’s cognitive and adaptive functioning has been significantly undermined and disadvantaged by his psychiatric diagnoses. He has been found to meet the diagnostic criteria for Intellectual Development Disorder or Intellectual Disability (mild) which is developmental in origin, but likely further influenced by psychosocial features throughout adulthood. Dr Dayalan found a consistency in such diagnosis made by others, but suggested further material was required to confirm such a diagnosis.

30. The defendant was also diagnosed with foetal alcohol syndrome and attention deficit hyperactivity disorder in his childhood.

31. It has been noted that the defendant has impairments in the adaptive domains of work, and social and independent living. He has also been known to be unkempt and display poor selfcare reasonably consistently.

32. The defendant has a significant history of polysubstance abuse commencing at a young age. He began smoking tobacco at the age of 11 and would smoke a packet of cigarettes every day. He began drinking alcohol as a teenager and reported consuming a carton of beer in one sitting.

33. The defendant admitted to the use of methylamphetamine prior to the commission of the incident in Moree in June 2023, having been released from psychiatric care only four days earlier.

34. The most recent examinations of the defendant, by the experts appointed pursuant to Yehia’s J’s order, indicate as follows, relevant to the risk of causing serious harm and the capacity of less restrictive means to manage that risk. 

Expert Evidence

Dr Sathish Dayalan

35. Dr Dayalan utilised the Historical Clinical and Risk Management – 20 Version 3 (HCR-20 V3) tool when assessing the defendant. The HCR-20 refers to historical, clinical and risk management factors associated with violent recidivism. Dr Dayalan found the defendant had a high loading of historical and clinical risk factors including a history of problems with violence, other anti-social behaviour, relationships, employment and substance use. He referred to the defendant’s major mental disorder, possible antisocial personality disorder/traits, traumatic experiences, behaviour indicative of violent attitudes, problems with treatment or supervision response and insight into his mental illness, violence risk, and behavioural and cognitive instability.

36. Dr Dayalan also concluded the defendant had a high loading of risk management variables if he was released into the community without adequate supervision. The risk management variables included problems with professional services and plans due to poor engagement, potential problems with living situation (history of domestic violence and access to substances), problems with personal support (due to social withdrawal), problems with treatment and supervision response and problems with stress and coping.

37. Dr Dayalan also utilised the Static 99-R tool to evaluate the defendant’s risk of sexual re-offending in the long term. The defendant scored in the well above average risk level.

38. Dr Dayalan utilised the Stable-2007 tool when assessing the defendant. The dynamic risk factors identified were problems with significant social influences, impaired capacity for relationship stability, hostility towards women, loneliness, impulsive acts, poor cognitive problem solving, negative emotionality, increased sex drive, deviant sexual interests and problems with cooperation with supervision. Overall, Dr Dayalan concluded the defendant presented with a high level of stable dynamic risk and needs.

39. Dr Dayalan found that the defendant had an ongoing risk of non-compliance and relapse into substance use that can result in exacerbation of his psychotic symptoms and increased risk of serious harm to self and others. He concluded that the defendant poses a risk of serious harm to others. In terms of the nature of the harm that could be inflicted, Dr Dayalan said that the defendant posed a risk of physical harm to family members and professionals involved in his care and supervision, while the victims of any sexual harm were likely to be female professionals, and his behaviour could result in contact sexual offences.

40. Dr Dayalan’s report sets out why the defendant’s risk cannot be adequately managed by other less restrictive means, by highlighting how the management of the defendant as a forensic patient is more likely to address the risk he poses. Dr Dayalan noted that:

1. While status as a forensic patient cannot negate the risk of the defendant causing serious harm to others it will reduce the likelihood of this occurring. As a forensic patient in the community, the defendant would be subject to oversight of the Tribunal, and regular assessment from the community forensic mental health services. A a wider array of conditions can be imposed to ensure supervision and monitoring.

1. As a forensic patient, before the defendant can be released into the community, a detailed risk assessment and a risk management plan must be submitted to the Tribunal to ensure they are satisfied his release does not pose a risk of serious harm to others in the community. This will ensure a comprehensive plan is put in place prior to his release. This is a far superior way of managing risk in circumstances where currently no plan exists that sets out how the defendant will be supported when in the community.

2. If the defendant was dealt with under the Mental Health Act 2007, he would be unlikely to remain as an involuntary patient for any length of time and the emphasis would be on managing risk of harm attributable to the defendant’s mental illness; whereas for a forensic patient, risks stemming from all factors will need to be addressed.

3. The defendant had been subject to Community Treatment Orders (“CTOs”) in the past and they had not been very effective in managing him. He previously breached CTO conditions and in Dr Dayalan’s view, they were not effective in managing the defendant’s risk. In addition, he noted that often no formal risk assessment is undertaken to determine if a CTO should continue and if patients move to a different region they can become lost to follow up.

4. There are practical challenges to enforcing psychiatric treatment upon individuals such as the defendant on a long-term basis under a guardianship order and they do not contain sufficient coercive powers to manage the defendant’s risk.

5. The defendant refuses to become an NDIS participant. However even if he chose to engage with the NDIS, there is a wide variability in the skills and qualification of disability workers and there could be challenges to managing him effectively.

6. Ultimately, while a combination of various options such as a CTO, guardianship order and NDIS funded support could assist in addressing risk, there would be no overarching body that coordinates this multi-agency approach; whereas if he was a forensic patient, the Tribunal would assume this role.

Dr Carollyne Youssef

41. Dr Youssef also administered the HCR-20 V3 tool. The defendant registered for all ten historical factors showing a high loading. Clinical factors reflect features of an individual’s recent psychosocial adjustment. There are five clinical factors and all five were relevant to the defendant, again reflecting a high loading. Risk management factors reflect features of an individual’s goals, and plans. Of the five risk management factors, all five were relevant to the defendant, again reflecting a high loading.

42. Like Dr Dayalan, Dr Youssef assessed the defendant using the Static-99R tool. She also found the defendant scored 6 and this placed him in the well above average risk category, which is the fourth risk category out of five (second highest).

43. Using the Stable-2007 tool, Dr Youssef also found the defendant presented with a high level of stable dynamic risk and needs. Clinically significant areas of concern included lack of significant social influences and capacity for relationship stability, lack of concern for others, impulsivity, poor problem-solving capacity, negative emotionality, sexual preoccupation, use of sex as coping and poor supervision cooperation.

44. Dr Youssef assessed the defendant’s risk of violent offending using the VTAG-R tool that estimates future risk based on several risk factors. The defendant’s score placed him in the ninth “risk bin”, which was the highest category. According to Dr Youssef, 76% of those in this category are expected to meet the criteria for violent recidivism within 5 years and 87% within 12 years.

45. Dr Youssef concluded that the defendant “does present a risk of harm to others that has the potential to be serious if he ceases to be a forensic patient and is not subject to any other protective measures”. Dr Youssef noted that the defendant would not discuss the event which resulted in his limiting term with her, and opined that he minimises the seriousness of his offending and did not appreciate the magnitude of his behaviour. She further stated that “given his recurrent sexually disinhibited behaviour in the presence of female staff, it indicates a general disregard for consent, especially as he continues the behaviour even when asked to stop”.

46. When considering the nature of the serious sexual harm the defendant poses to others, Dr Youssef stated that if the defendant committed another sexual offence, the victim is likely to be an adult female professional providing him with a service while in close proximity. His offence is likely to be impulsive and opportunistic and he is unlikely to use psychological coercion, and only as much physical force to ensure the victim’s compliance. He may attempt to engage the victim in sexual intercourse or may expose himself and masturbate in the presence of a female. She noted that an escalation in risk could see the defendant successfully overpower a victim and engage in a penetrative sexual offence in the community. The factors likely to increase risk of a sexual offence primarily include victim access - particularly close proximity to a female - and substance use.

47. While Dr Youssef noted the defendant had only been convicted of one sexual offence to date, [1] his behaviour since 2016 reflected a breakdown in boundaries and sexual self-regulation. This behaviour suggests recurrent problematic sexual behaviour that could potentially lead to charges in a different context.

    1. He has not been convicted of this offence, but it was found on the limited evidence available at a special hearing to have occurred. This does not detract from risk assessment in this case.

48. When considering the nature of any serious harm of a violent nature the defendant poses, Dr Youssef noted that the defendant’s aggression occurs in two settings. The first is within a domestic setting where he is likely to destroy property and engage in verbal threats and abuse. Dr Youssef believed the defendant engaging in violence in the home, was not an unlikely possibility. She referred to his prior threats to assault and set fire to property, both of which have the potential for serious harm. She referred to another concerning scenario in an institutional setting (hospitals or correctional centres) which may involve an assault by the defendant that includes punching or kicking, preceded by rapid escalation in frustration.

49. Dr Youssef’s view is that the defendant requires ongoing management as a forensic patient. This would allow his risk of causing harm to be adequately managed. It would allow ongoing oversight by the Tribunal, regular reviews as to his progress and treatment, and ongoing supervision. His forensic patient status would allow his mental health to stabilise for a sufficient period, noting his rapid deterioration when in the community.

50. According to Dr Youssef, the defendant requires intensive treatment and support, and this is unlikely to be available in the community at present. If the defendant remained subject to a forensic patient order, this would mitigate his risk factors. She suggested that the most suitable option in terms of treatment would be placement in a forensic hospital or similar facility as this would allow more intensive efforts to manage his mental health risk factor, and bring him to a baseline such that other interventions can occur.

51. Dr Youssef shared Dr Dayalan’s opinion that “less restrictive means” were unlikely to adequately address the defendant’s risk of causing serious harm:

1. She noted his history of non-compliance with CTOs and stated that a CTO requires an individual to accept treatment and it would not address the defendant’s risk of reoffending.

2. She recommended a guardianship order in combination with a forensic order, however stated that a guardianship order alone has insufficient authority and control to manage the defendant’s risk and needs. It does not encompass all aspects of daily living and it lacks enforceability. Similarly, she recommended a financial management order but noted its limitations.

3. She noted the limits of NDIS support to address risk given the voluntary nature of the scheme and the restrictions on NDIS providers to enforce conditions. Dr Youssef referred to the NDIS’s own guidelines that state that supports to help one comply with a community order or reduce risk of re-offending is the responsibility of the justice system.

Risk Assessment Report of Patrick Sheehan

52. Patrick Sheehan, forensic psychologist, is an expert who assessed the risk of the defendant causing serious harm to others without interviewing the defendant. This report is also important to take into account under s 127(2) of the Act. Mr Sheehan completed a risk assessment report on 4 December 2024 for the purposes of these proceedings, pursuant to s 125(b) of the Act.

53. In his report, Mr Sheehan confirmed the defendant’s diagnosis of schizophrenia, intellectual disability (mild), polysubstance use disorder and antisocial personality disorder. Mr Sheehan noted that these diagnoses are significant disadvantages that have undermined the defendant’s functioning and adjustments throughout his life.

54. Mr Sheehan noted that due to his disability, the defendant is eligible for NDIS support, potentially opening a range of supports from supported accommodation to psychological support.

55. Mr Sheehan opines that the defendant’s substance use has likely worsened his psychotic illness but cannot be regarded as the sole cause of the illness. Prominent symptoms of the illness persisted during extended periods of methylamphetamine abstinence.

56. Mr Sheehan examined the defendant’s mental health in the months leading up to the events giving rise to the limiting term. He found that the defendant was clearly unwell at the time, demonstrated by his bizarre behaviours, multiple unexplained wounds and injuries to himself, public masturbating, and setting his room on fire. He described his release into the community in June 2023 as a ”high risk” situation.

57. Mr Sheehan noted that the defendant meets diagnostic criteria for antisocial personality disorder. He is of the opinion that this disorder developed from early conduct disorder and was further aggravated by his schizophrenia, substance use and intellectual impairments.

58. Mr Sheehan concluded that the defendant poses a risk of causing serious harm should he be released into the community without supervision or treatment oversight.

59. Mr Sheehan stated that “examination of [JS]’s history and analysis of his case against empirically established risk factors all suggest that he presents a high risk of reoffending for both offence types [sex and violent offending], and that both offence types are closely linked with acute phases of his psychotic illness.”

60. In Mr Sheehan’s opinion, continuation of the defendant’s forensic patient status allows for release planning and controlled transition into the community, and is the most robust management strategy available.

61. Mr Sheehan expressed the view that a multidisciplinary approach would be most suitable, as was seen during the defendant’s longest period of community living in 2020-2021 when he was in receipt of Community Corrections supervision and a CTO. In summary, Mr Sheehan states that the key features of an effective plan for the defendant is that it is “co-ordinated/case managed, and enforceable”.

62. Mr Sheehan however also opined that a combination of a FCTO, guardianship order, and a comprehensive NDIS plan (with a behaviour support practitioner) could also be a feasible way to adequately manage the defendant’s risk of causing serious harm to others. Mr Sheehan made note that even if an extension to the defendant’s forensic patient status is made, it is “important to pursue Guardianship and NDIS support, which could assist with safe community transition and also a potential means of transitioning from forensic patient status in the future”.

63. Other material for consideration

64. I have considered the records of the Tribunal, progress notes, the defendant’s criminal history, and other psychiatric expert reports in the evidence. They do not add anything meaningful to the careful analyses in the three expert reports I have referred to. The remarks of Sutherland SC DCJ in imposing the limiting term do not address the matters to be decided on this application. The defendant’s compliance with the requirements of being a forensic patient have been inconsistent.

The submissions of the parties

65. Mr Fraser who appeared for the defendant took no issue with the likelihood of the defendant offending again, and engaging in sexually disinhibited behaviour. The relevant matter that the Court was urged to consider closely was whether the risk is one of causing serious harm. Mr Fraser pointed out that the risk assessment tools utilised are not sensitive as to the type of harm that is likely, and there was a degree of speculation in the hypothetical offending situations posited by the experts.

66. On this issue the plaintiff pressed the risk assessments in evidence and submitted that the experts’ opinions went beyond this – looking at the number of occasions when the defendant has had custody of a knife, made threats of serious harm but been apprehended before this has been carried out, and the fortune of the victim of the attack in Moree in June 2023 in being able to free herself from the defendant. Reliance was placed on important risk factors such as the defendant’s current unwillingness to engage in services, mental health treatment, or drug abstention, and general lack of insight into his illness and risk factors.

67. As to the length of the order, the plaintiff relied on Dr Youssef’s recommendation of an order of “at least three years, though four years would be ideal” and Dr Dayalan’s proposal of an extension of two years. The plaintiff contended that two years was required to establish and implement a pre-release plan that would set out how the defendant’s mental illness and substance abuse would be treated, suitable accommodation, medication and support when reintegrating into the community. It was submitted that any lesser period is not sufficient time for the defendant to develop insight into his issues, increase his willingness to engage in treatment, and for these various testing and monitoring steps to be put in place to ensure the safety of the community.

68. It was submitted for the defendant that any order should be for a shorter period than two years. Instead, the defendant proposed that adding a period of 12-18 months to the expiry of the interim extension order would be sufficient, and that a two-year extension would result in extending the 18 months limiting term by 27 months.

69. It was submitted that it is necessary to consider JS’s current situation and predict how long it may take to ensure that he no longer poses the risk of causing serious harm requiring him to be a forensic patient and under a restrictive regime. Given that an order, of any duration, will undeniably restrict JS’s liberty, the defendant submitted that the order imposed should only be as long as appears to be necessary. To identify an adequate length of time, the defendant relied on the remarks of Mr Sheehan. Although the experts all had conflicting views on the length of the order that should be imposed on JS, the defendant relied heavily on Mr Sheehan’s view that 12 months would be sufficient time for the risk to be mitigated and allow JS to develop an appropriate plan to protect against seriously harmful conduct.

70. Further, the defendant noted that the Act allows the plaintiff to seek another extension if, at the conclusion of the current nominated term, JS continues to pose an unacceptable risk of causing serious harm to the community.

Determination

71. The past criminal convictions of the defendant are not as serious as often indicated where extensions of restriction of a person’s liberty are concerned. There is clearly a risk of aggressive and sexually disinhibited behaviour. I do not regard the harm caused by the manner in which the defendant has regularly behaved in these respects in the past amounts to serious harm for the purposes of the Act.

72. The risk of causing serious harm is more complex in this case. The results of the testing administered by all experts points to a very high risk of offending, but it does not offer assistance as to the seriousness of harm. The hypothetical risk scenarios of more serious harm posited by the experts may in one sense have an air of speculation, as they are nor reflected in past conduct (other than the conduct in Moree in June 2023 which led to the limiting term, and some allegations of serious physical assaults during periods of incarceration or involuntary hospitalisation).

73. It is important in this matter to not approach the test with a view that, in one sense, it can only help the defendant to have a much greater and more co-ordinated system of support for him when reintegrating into the community.

74. The reports of the experts are well reasoned. Their concerns about carrying weapons, threats of burning property and actual burning of property, perseverance with masturbation when asked to stop indicating impaired understanding of consent, the circumstances of the interaction in Moree in June 2023, and the defendant’s lack of insight into his mental illness, substance abuse and other restrictions have persuaded me, to a high degree of probability, that there is an unacceptable risk of serious harm. The indication by Mr Sheehan that the defendant was released on 8 June 2023 into a “high risk” situation, and was then drug affected with escalated psychiatric symptoms, and acting as he was found to have acted four days later (in the qualified sense that pertains to a special hearing) is important. There is no positive difference now.

75. The concession by counsel for the defendant that if this satisfaction as to risk is formed, there are not less restrictive means of addressing it, is well founded on the evidence and I am satisfied that there are no such less restrictive means available at this time.

76. This defendant’s past conduct does not however suggest that this needs to be a case of long or ongoing restrictions on his liberty. I am impressed by Mr Sheehan’s outline of the alternative methods that could feasibly be put in place to manage risk, but which cannot now possibly be put in place prior to the expiry of the defendant’s current status as a forensic patient. I agree with the submissions of Mr Fraser that it is desirable that the order be for no longer than is necessary, and that Mr Sheehan’s evidence supportive of an order shorter than two years is persuasive. It is hoped that planning will commence immediately (or continue) for the defendant’s release at a suitable time into the community with as much support as possible, and with the viability of less restrictive means than another extension order explored. Success in implementing such a structure could even warrant the Tribunal’s recommendation for revocation of the extension now ordered. 

Orders

77. Accordingly I make the following orders:

1. Pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant is subject to an order for the extension of his status as a forensic patient for a period of 18 months from today.

2. The Registrar of the Court is to notify the Mental Health Review Tribunal of the making of the extension order.

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 of access.

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Endnote

Decision last updated: 14 March 2025