Attorney General for New South Wales v MM (a pseudonym) (bht Ramjam) (Preliminary)

[2025] NSWSC 941

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney General for New South Wales v MM (a pseudonym) (bht Ramjam) (Preliminary) [2025] NSWSC 941

Hearing dates:

31 July 2025

Date of orders:

31 July 2025

Decision date:

18 August 2025

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

Reasons for orders made 31 July 2025:

(1) Order pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act):

a.     Two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) be appointed to conduct separate examinations of MM (the defendant) and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

b.   Direct the defendant to attend those examinations.

(2)   Order pursuant to ss 130 and 131 of the Act that the defendant be subject to an interim order for the extension of his status as a forensic patient commencing upon the expiry of his current extension order on 16 August 2025, for a period of three months.

(3)   Order that 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.

(4) Order pursuant to ss 7 and 8(1) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that the defendant shall be identified in relation to these proceedings by the pseudonym MM.

Catchwords:

HIGH RISK OFFENDERS — Extended supervision orders — Preliminary hearing — Appointment of psychiatrists or psychologists — Extension of status as forensic patient — Whether documentation supporting the application would, if proved, “justify the making of an extension order”

Legislation Cited:

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 121, 122, 122(1),124, 126(4), 126(5), 126(6),127(1)(a), 128, 130, 130(b), 131

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8(1)

Mental Health Act 2007 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Crimes Act 1900 (NSW), s 61J(1)

Civil Procedure Act 2005 (NSW), s 3

Uniform Civil Procedure Rules 2005 (NSW), r 7.14

Cases Cited:

Attorney General for New South Wales v MM (a pseudonym) (bht Johnson) (Final) [2024] NSWSC 1030

Texts Cited:

Practice Note SC CL 12, cl 26(i)

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
M Dalla-Pozza (Plaintiff)
J J Wilcox (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2025/188399

JUDGMENT

1. HIS HONOUR: By summons filed on 16 May 2025, the Attorney General for New South Wales (the plaintiff) seeks interim and final orders extending the defendant’s status as a forensic patient pursuant to provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act).

2. The interim orders sought are, firstly, that pursuant to s 126(5) of the Act, two psychiatrists, psychologists or medical practitioners (or a combination of such persons) be appointed to conduct separate examinations of the defendant and to furnish reports to the Court on a date to be fixed by the Court. Secondly, that pursuant to ss 130 and 131 of the Act, the defendant’s status as a forensic patient be extended for a period of three months from the expiration of his current extension order on 16 August 2025.

3. The final order sought is that the defendant be subject to an order extending his status as a forensic patient for a period of 12 months from the date of the order, pursuant to ss 121, 127(1)(a) and 128 of the Act.

4. The plaintiff also seeks ancillary relief that access to the Court’s file not be granted to a non-party without leave of the Court and an order that, pursuant to ss 7 and 8(1) of the Court Suppression and Non-publication Orders Act 2010 (NSW), the defendant be identified in these proceedings by the pseudonym “MM”. I note that orders were made by Yehia J on 22 May 2025 to that effect.

5. The defendant appears by his tutor, Barbara Ramjan. As a forensic patient, the defendant is a “person under a legal incapacity”: see s 3 of the Civil Procedure Act 2005 (NSW). Accordingly, pursuant to r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW), the appointment of a tutor is required to “carry on proceedings”.

6. The defendant accepts that it would be open to the Court to make the interim orders sought.

7. At the preliminary hearing on 31 July 2025, I made the orders sought by the plaintiff at this preliminary stage. These are the reasons for my orders.

Background to the application

8. A joint statement of agreed facts (the agreed facts) has been tendered, in accordance with cl 26(i) of the Supreme Court Practice Note SC CL 12. I refer in part to that document and generally to the material that has been tendered by way of background to the application.

9. The defendant is a 56-year-old Aboriginal man. He resides in West Tamworth in a property leased from a community housing provider. He receives funding from the National Disability Insurance Scheme (NDIS) and consequent services. His current plan is valid until 22 May 2026.

10. The defendant has an extensive criminal history dating back to 1984 when he was aged 16, although there are few matters of violence other than the index offence. His first matter involving violence was an assault in 1995, when he was aged 26, for which he received a recognizance order of 12 months. In 2008, he was convicted of assault occasioning actual bodily harm, for which he received a suspended sentence of imprisonment for 15 months. Other entries are for contravention of Apprehended Domestic Violence Orders, destroying or damaging property, stalk/intimidate, stealing offences, and drug offences. The material before this Court in relation to some of those matters, in particular domestic-related offences, suggests that the defendant’s consumption of alcohol was often related to his offending. More recently, on 16 June 2025, he was convicted of driving with an illicit substance, namely, methylamphetamine, present in his blood, for which he was convicted without penalty, pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The defendant has a poor history of compliance with court orders, including breaching a recognizance order in 2000 and conditions of good behaviour bonds in 2002, 2005 and 2018.

11. On 28 May 2020, the defendant was charged with aggravated sexual assault of a person under his authority, contrary to s 61J(1) of the Crimes Act 1900 (NSW) (the index offence). The allegation, briefly stated, was that the defendant’s 16-year-old step-daughter stayed the night at his house on 27 May 2020. She woke in the early hours of 28 May 2020 to discover the defendant having penile-vaginal intercourse with her.

12. The defendant was found unfit to be tried. A special hearing took place on 1 December 2021 in which, on the limited evidence available, he was convicted of the offence. The defendant maintained that he was drunk at the time and denied that he penetrated the complainant’s vagina. He received a limiting term of 4 years, commencing on 28 May 2020 and expiring on 27 May 2024. It was extended following a preliminary hearing and, consequent to a final hearing before Dhanji J, for a period of 12 months from 16 August 2024: Attorney General for New South Wales v MM (a pseudonym) (bht Johnson) (Final) [2024] NSWSC 1030.

13. The defendant’s detention in respect of the index offence commenced on 28 May 2020, which was the date that he was remanded in custody. He endured “movement within, and between, correctional centres”, primarily due to behavioural concerns, including bullying and intimidation of other inmates, although no institutional or disciplinary breaches were incurred by the defendant during his period in prison.

14. On 8 November 2023, the defendant was conditionally released from custody by the Mental Health Review Tribunal (MHRT).

The MHRT

15. The MHRT ordered the release of the defendant from custody on 3 November 2023, on the following conditions that, subject to some variations, continue to apply to him: that he reside at his mother’s house in West Tamworth; that he accepted Mr Glenn Williams of the Community Safety Program as his case manager; that he attended the Drug and Alcohol program run by the Tamworth Aboriginal Medical Services and Centacare Men’s Behavioural Change Program; that he abstain from using illegal drugs and alcohol; and that he submit to weekly testing to detect the use of alcohol.

16. On 12 February 2024, the frequency of alcohol testing was varied by the MHRT from weekly testing to only when it was requested by his case manager. No alcohol has been detected from this testing. In early August 2024, he moved from his mother’s residence into one leased with a community housing provider, Homes North.

17. Dhanji J, in his Honour’s judgment handed down on 16 August 2024, made favourable findings of fact as to the defendant’s determination to address his criminogenic factors, in particular, his past use of alcohol, and his progress generally since his release from custody. His Honour also expressed concern that the defendant had not had the benefit of therapeutic psychological services that previously had been recommended to address the defendant’s drug and alcohol use and his childhood trauma.

18. On 16 April 2025, a review conducted by the MHRT noted that a requirement of the defendant’s conditions for release was not being complied with, namely, that he meet with his case manager face to face at least once a month. The MHRT found that the defendant was disengaged during the hearing and seemed to be falling asleep. A further review took place on 7 May 2025. His conditions were amended, such that in-person contact with his case manager would be “twice within a six-month period”, he would have contact (whether face to face or by video) with his case manager at least once a month and he would have weekly contact with his case manager by any means.

19. The MHRT declined to take action following the defendant’s offending by driving with an illicit substance (methylamphetamine) present in his blood, taking into account that his case manager had observed that the defendant “has displayed no behaviours of concern or an increase in level of risk” between the time of the offending and 27 June 2025.

20. The agreed facts note that the defendant has had a relationship (now over) since his limitation term was extended, that he has been doing volunteer lawn-mowing and gardening for elderly members of his community and that he has been participating in various skill and therapy programs. However, in October 2024, he was refused admission to a behavioural change program due to “his consistent denial of violence, high level of resistance and lack of accountability”, and because he “does not seem to have the capacity nor the willingness to undertake the content or group work … require[d]”. In April 2025, he told his case manager that he was “not ready” to speak to a psychologist about his childhood trauma history. The agreed facts refer to concerns that were expressed by the director of the defendant’s NDIS provider to the defendant’s case manager in December 2024 and January 2025, which the defendant does not admit:

“•   That the Defendant was ‘not behaving in public’ with multiple accounts being noted that he was ‘wolf whistling young girls’ and making comments to women such as ‘hey pretty one’;

•   That [the director of the defendant’s NDIS provider] has never known the Defendant to attend drug or alcohol counselling;

•   That the Defendant had been evading staff for a period of two weeks (during which he had been driving himself around independently despite being the holder only of a learner’s driver’s licence);

•   That the Defendant’s accommodation was in a state of disrepair; and

•   That the Defendant ‘doesn’t want to engage in any men’s groups, men’s sports, drug and alcohol counselling, NDIS groups for men or anything.’”

21. The defendant has since changed his NDIS provider. The new service commenced on 26 June 2025. There was no material before the Court as to how the defendant is faring with the new provider.

A risk assessment report

22. Dr Sathish Dayalan, Forensic Psychiatrist, assessed the defendant on 16 December 2024 and provided a risk assessment report dated 13 January 2025. Dr Dayalan previously assessed the defendant in 2023. Dr Dayalan observed the defendant to be irritable; he refused to answer questions about his current sexual functioning or about a wound he was observed to have to his arm and became angry when Dr Dayalan attempted to explore psychotic symptoms with him. He told Dr Dayalan that he did not believe that he suffered from a mental health condition and did not wish to engage in treatment or rehabilitation.

23. Dr Dayalan noted that the disability support worker who accompanied the defendant at the time of the assessment (which was by audio video link) told him that the defendant “smelt of alcohol”. Dr Dayalan added that the defendant was falling asleep during the assessment. These matters are not included in the agreed facts, and therefore I assume that they are contested by the defendant.

24. Dr Dayalan was of the view that the defendant’s intellectual capacities were in the extremely low range, and that his cognitive deficits have been exacerbated by his use of substances such as alcohol. Deficits in memory and executive functioning have contributed to impairment of his psychosocial functioning.

25. His adverse childhood experiences and trauma have adversely impacted on his personality development and contributed to a propensity for emotional and behavioural dysregulation. Dr Dayalan was of the opinion that the defendant exhibited traits of borderline personality disorder and that the defendant was predisposed to anxiety and depressive disorders which he “could have minimised … given his intent to present as mentally well”. He had a mild Neurocognitive Disorder due to substance use, consistently with the diagnostic criteria in the DSM-V, ^[1] and an Alcohol Use Disorder which was chronic in nature. It was unclear to Dr Dayalan whether the defendant was in remission or if he had had a recent relapse. Dr Dayalan said:

“Given the chronicity of the condition, [the defendant’s] personality vulnerabilities and his limited willingness to engage in rehabilitation, the risk of relapse is high.”

1. The Diagnostic and Statistical Manual for Mental Disorders Version 5.

26. Dr Dayalan did not believe that the defendant suffers from a “mental illness” or is a “mentally ill person”, as defined by the Mental Health Act 2007 (NSW). As to the defendant’s level of risk, Dr Dayalan deployed the HCR-20 V3. He noted that in his 2023 report, he found that the defendant had “a high loading of historical risk factors” and that little had changed:

“He has ongoing problems with insight into his substance use and violence, affective and behavioural instability and problems with supervision and treatment response. He has a moderate loading of clinical risk factors.”

27. Dr Dayalan deployed the STABLE 2007 to assess dynamic risk factors. He found:

“The risk factors of significance to [the defendant’s] recidivism risk are significant social influences, impulsive acts, poor cognitive problem solving, negative emotionality and cooperation with supervision. The risk factors that are of some relevance to his risk are capacity for relationship stability and hostility towards women. Overall, [the defendant] presents with a moderate level of dynamic risk and needs.”

28. Overall, Dr Dayalan concluded as follows:

“In regard to [the defendant’s] risk of violence, he presents with a high loading of historical risk factors and a moderate loading of clinical risk factors. The risk management variables remain of concern despite the forensic patient status. [The defendant] has not been charged with a violent offence in the 12 months he has remained in the community, though he has been involved in physical altercations with family members. There are conflicting accounts of his use of substances in the community and a recent relapse into substance use will escalate his risk of violence and thereby his risk of causing serious harm to others.

The risk of sexual recidivism is directly related to his use of alcohol. Some inappropriate behaviour has been observed by disability support workers but the reported behaviours were not suggestive of deviant sexual interests.

Management of [the defendant’s] risk of causing serious harm will involve a well coordinated approach by multiple agencies that will need to prioritise on establishing a therapeutic relationship with [the defendant]. A structured approach to managing the various risk factors in a sequential manner may be preferable as [the defendant] appears to get overwhelmed and frustrated with multiple obligations. Incentives for engagement in treatment may assist as opposed to threats of punishment for non-compliance.

Engagement in a culture specific substance use rehabilitation program should be prioritised given the significance of alcohol misuse to his risk of causing serious harm to others. Random breath alcohol concentration tests are recommended to monitor his use/abstinence.

Psychological treatment should target emotional regulation, problem solving and impulse control. Encouragement in healthy leisure activities and vocational pursuits will assist with his rehabilitation. Engagement of family members including his current partner in the treatment can improve the prospects of engaging [the defendant].”

29. I note that this advice is to be read in the context of the defendant’s relationship having ended. Of particular significance to the present exercise, Dr Dayalan noted the following:

“The risk assessment indicates that [the defendant] poses a risk of violent behaviour in the long term. The risk of violence becomes imminent when there is an escalation in the dynamic risk factors such as substance use, psychosocial stresses, interpersonal conflicts especially in romantic relationships, lack of supervision and decline in mental state. These factors need to be effectively controlled to manage [the defendant’s] risk of causing serious harm to others.

The forensic patient status has allowed for increased monitoring of [the defendant] and facilitated contact with disability support services. However, the forensic patient status has not been effective in facilitating [the defendant’s] engagement in treatment and rehabilitation to address the dynamic risk factors in the long term. The clinical risk factors associated with risk of violence appear to be largely unchanged since my initial review.

If [the defendant] were to cease to be a forensic patient, he is very likely to disengage from the various services and agencies given his limited insight into his treatment needs and violence risk. He would not be subject to any monitoring and he would relapse into or increase substance use.

The forensic patient status does not fully negate the risk of [the defendant] causing serious harm to others but the risk is likely to escalate significantly if he were to cease being a forensic patient.

The pattern of past offending behaviour and the risk assessment instruments suggest that the nature of risk posed is more likely to result in physical harm than sexual harm. His partners are most likely to be the victims. The level of risk posed is dynamic and will fluctuate depending upon factors such as substance use, relationship status, psychosocial circumstances, engagement with professional services and level of monitoring.”

Legislative framework

30. Section 124 of the Act stipulates certain threshold requirements for an application to be made for an interim extension order, which are concerned with a defendant’s status and the time frame within which the application is made. I am satisfied that the application complies with those statutory requirements.

30. Section 130 of the Act empowers the Supreme Court to make an interim order to extend a person’s status as a forensic patient:

“130   Interim extension orders

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

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

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

32. Section 130(b) of the Act requires the Court to have regard to the legislative test in s 122 of the Act for the making of an extension order:

“122   Forensic patients in respect of whom extension orders may be made

(1)   A forensic patient can be made the subject of an extension order as provided for by this Part if and only if the Supreme Court is satisfied to a high degree of probability that—

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

(b)   the risk cannot be adequately managed by other less restrictive means.

(2)   The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others.

Note—

Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007.”

33. A preliminary hearing is required by s 126(4) of the Act, its purpose being for the Court to determine whether the documentation supporting the application would, if proved, “justify the making of an extension order” (“the preliminary hearing test”). If the Court is so satisfied, it must make orders appointing two psychiatrists, psychologists or medical practitioners, or any combination thereof, to separately examine the forensic patient and furnish reports to the Court: s 126(5) of the Act. If the Court is not so satisfied, it must dismiss the application: s 126(6) of the Act.

34. I have had regard to other forensic assessments of the defendant, in particular, by Dr Carollyne Youssef, Forensic Psychologist, who assessed the defendant on 26 June 2024 and noted, at para [122.4.3] of her report dated 11 July 2024, the disinhibiting effects of the consumption of alcohol. She observed:

“… Specifically for [the defendant], his offences, both sexual and IPV ^[2] -related, have occurred whilst he has been intoxicated and as such alcohol use is one of the most significant risk factors for [the defendant’s] offending behaviour. It will be imperative that he remain abstinent from alcohol if his risk of recidivism is to be mitigated.”

Consideration and determination

2. Interpersonal violence.

35. The defendant’s progress since his limitation term was extended, on the material before me, could reasonably be characterised as patchy. He has not committed a serious offence in that period, although he has pleaded guilty to an offence which had an element of him having consumed methylamphetamine. There is some evidence that he smelt of alcohol on 16 December 2024 when he was assessed by Dr Dayalan, which is concerning in view of there being convincing forensic expert opinions that the consumption of alcohol is the single-most important criminogenic factor contributing to the risk of the defendant committing a serious violent or sexual offence.

36. If that opinion evidence and the evidence of the defendant’s missteps in the last 12 or so months is established at a final hearing, then taking into account the matters identified in s 122(1) of the Act, it would in my view justify the making of an extension order. I note that this finding is based on the material before this Court; the Court at the final hearing will have the benefit of further forensic opinions and an opportunity for other evidence to be heard.

Orders

37. I made the following orders on 31 July 2025:

1. Order pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act):

a.   Two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) be appointed to conduct separate examinations of MM (the defendant) and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

b.   Direct the defendant to attend those examinations.

1. Order pursuant to ss 130 and 131 of the Act that the defendant be subject to an interim order for the extension of his status as a forensic patient commencing upon the expiry of his current extension order on 16 August 2025, for a period of three months.

2. Order that 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.

3. Order pursuant to ss 7 and 8(1) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that the defendant shall be identified in relation to these proceedings by the pseudonym MM.

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Endnotes

Decision last updated: 18 August 2025