Attorney General of New South Wales v Beryalay (by his tutor Johnson) (Final)

[2022] NSWSC 1274

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney General of New South Wales v Beryalay (by his tutor Johnson) (Final) [2022] NSWSC 1274

Hearing dates:

12 September 2022

Date of orders:

21 September 2022

Decision date:

21 September 2022

Jurisdiction:

Common Law

Before:

Chen J

Decision:

(1) Order, pursuant to ss 121 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW), that the defendant be subject to an order for the extension of his status as a forensic patient for a period of 3 years from 21 September 2022.

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

Catchwords:

CIVIL – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – forensic patient – interim extension order due to expire – application for extension order – whether unacceptable risk of causing serious harm if status as forensic patient ceases – whether risk can be managed adequately by less restrictive means – where no dispute as to duration should orders be made

Legislation Cited:

Crimes Act 1900 (NSW), ss 29, 33

Crimes (High Risk Offenders) Act NSW (2006)

Interpretation Act 1987 (NSW), s 30C

Mental Health Act 2007 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 3, 69, 72, 121, 122, 123, 124, 125, 126, 127, 128, Sch 2 Cl 9

Mental Health (Forensic Provisions) Act1990 (NSW), ss 14, 22, 23, 42, 68

Cases Cited:

Attorney General for New South Wales v Haines(Preliminary) [2022] NSWSC 458

Attorney General for New South Wales v Kapeen [2017] NSWSC 685

Attorney General for the State of New South Wales v Boyce (No.2) [2017] NSWSC 648

Attorney General of New South Wales v Beryalay(bht Johnson)(Final) [2019] NSWSC 816

Attorney General of New South Wales v Beryalay(bht Johnson)(Preliminary) [2019] NSWSC 252

Attorney General of New South Wales v Beryalay(bht Johnson)(Preliminary) [2022] NSWSC 852

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

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

Cornwall v Attorney General for New South Wales [2007] NSWCA 374

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

Minister for Mental Health v Paciocco [2017] NSWSC 4

State of New South Wales v Chaplin [2019] NSWSC 471

State of New South Wales v Devaney (Final) [2019] NSWSC 1551

State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041
Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439

State of New South Wales v Kamm(Final) [2016] NSWSC 1

State of New South Wales v Simcock (Final) [2016] NSWSC 1805

Category:

Principal judgment

Parties:

Attorney General of New South Wales (Plaintiff)
Mustaba Beryalay (Defendant)

Representation:

Counsel:
Ms K Curry (Plaintiff)
Mr D Bhutani (Defendant)

Solicitors:
Crown Solicitors’ Office (Plaintiff)
Karnib Saddik Law Firm (Defendant)

File Number(s):

2022/112656

Judgment

1. By Amended Summons, filed in Court on 12 September 2022, the Attorney General of New South Wales (‘the Attorney’) seeks an order, by way of final relief, pursuant to ss 121 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW) (‘the Act’), that the status of Mustaba Beryalay (‘the defendant’) as a forensic patient be extended for a period of three years. (The Summons filed on 19 April 2022 originally sought an extension order for a period of five years, but the Amended Summons confines the period of the extension order sought to three years).

2. The defendant resists the making of the order, however, in the event that it is made, he does not dispute the length now sought by the Attorney. As I will explain, the order sought by the Attorney should be made.

3. All references to legislative provisions in these reasons are, unless otherwise specified, references to the Act.

Procedural history and background

4. On 15 June 2022, Walton J made orders pursuant to s 126(5)(a) of the Act for the examination of the defendant and, further, an order pursuant to s 130 of the Act that he be subject to an interim extension order for a period of three months: Attorney General of New South Wales v Beryalay (bht Johnson)(Preliminary) [2022] NSWSC 852. The interim order commenced at “midnight on 10 July 2022 for a period of 3 months” and will expire at midnight on 9 October 2022.

5. At the time of the interim proceedings, the defendant was subject to an earlier extension order made pursuant to the Mental Health (Forensic Provisions) Act1990 (NSW) (the ‘MHFP Act’), which expired on 10 July 2022. In respect of that earlier extension order, interim orders were made by Ierace J (Attorney General of New South Wales v Beryalay (bht Johnson) (Preliminary) [2019] NSWSC 252 (‘Beryalay 2019 Preliminary’) and final orders were made by Wright J (Attorney General of New South Wales v Beryalay (bht Johnson) (Final) [2019] NSWSC 816 (‘Beryalay 2019 Final’)).

6. I will briefly explain the background circumstances giving rise to how and why the above orders came to be made.

7. On 12 April 2012, the defendant was (relevantly) charged with an offence of shooting at a person, with intent to commit murder, pursuant to s 29 of the Crimes Act 1900 (NSW). In the alternative, the defendant was charged with causing grievous bodily harm with intent, pursuant to s 33(1)(b) of the Crimes Act (‘the index offence’).

8. The offending conduct arose out of events that occurred in 2012. The defendant was driving a car in which the victim – a person that he had known for a number of years – was a passenger. The defendant became involved in a police pursuit, which he managed to evade. The victim was subsequently arrested and confirmed the defendant’s identity to police. The defendant was arrested shortly after this and became aware of the information provided by the victim to the police. The defendant was granted bail. Following his release on 10 April 2012, the defendant, in the company of a number of other men, confronted the victim and shot him as he tried to flee. The victim collapsed some distance away – a bullet having entered his spleen. This resulted in serious wounding, and the victim’s spleen was required to be surgically removed. The defendant was charged with the index offence – which was an alternative charge to the first charge of attempted murder. When interviewed, the defendant denied that he had shot the victim.

9. On 17 April 2013, Sides QC DCJ found the defendant unfit to be tried under s 14 of the MHFP Act. The effect of this finding meant that the defendant became a forensic patient under the jurisdiction of the Mental Health Review Tribunal (‘the Tribunal’): ss 14(a) and (b)(iii) and s 42 of the MHFP Act.

10. On 6 June 2013, the Tribunal determined that the defendant did not have a mental illness but that he had an intellectual disability; antisocial personality disorder; and a history of polysubstance abuse. Due to these factors, the Tribunal considered that the defendant was unfit to be tried for the index offence.

11. On 5 February 2014, a special hearing was conducted before Bennett SC DCJ sitting as a judge alone. On 28 February 2014, His Honour found the defendant not guilty of the first charge, but made a “qualified finding of guilt” in respect of the index offence; being that “on the limited evidence available… [the defendant] committed the [index] offence”, which was one of four verdicts available pursuant to s 22(1) of the MHFP Act. On 28 March 2014, Bennett SC DCJ nominated, under s 23(1)(b) of the MHFP Act, a limiting term of seven years in respect of that offence, backdated to 12 April 2012, when the defendant was arrested and detained. His Honour also made an order under s 24 of the MHFP Act referring the defendant to the Tribunal.

12. The limiting term nominated by Bennett SC DCJ expired on 11 April 2019. As I have mentioned above, the defendant’s status as a forensic patient was extended beyond that time, by reason of the orders made on an interim basis by Ierace J and on a final basis by Wright J. Unless a further order is made confirming that status, it will cease once the interim order made by Walton J expires at midnight on 9 October 2022.

The legislative scheme

An overview

13. The Act came into force on 27 March 2021 and repealed the MHFP Act: see s 2 of the Act, and New South Wales, Commencement Proclamation, No 116, 19 March 2021 (in relation to the commencement); section 167(a) of the Act (now repealed) and ss 30C(1)(b) and 30C(2) of the Interpretation Act 1987 (NSW) (in relation to the repeal). When compared to the MHFP Act, the Act does not “substantially alter the process or the test to be applied in applications for an extension order, and so the case law relating to applications under the MHFP Act remains applicable”: Attorney General for New South Wales v Haines (Preliminary) [2022] NSWSC 458 at [15] (Lonergan J).

14. The treatment, care and detention of forensic patients is dealt with in Pt 5 of the Act. Section 123 of the Act permits the administering Minister to apply for an extension order against a forensic patient.

15. Section 121(1) of the Act provides that the Supreme Court may, upon application, “make an order for the extension of a person’s status as a forensic patient”. An order made under that section is described as “an extension order”: s 121(2).

16. Section 72 of the Act defines “forensic patients”. The defendant is accepted by the parties to be a “forensic patient”, by reason of the transitional provisions in cl 9 of Sch 2 to the Act, and I find that he is. That is because, pursuant to that clause, a person “who, immediately before the commencement of Pt 5 of this Act, was a forensic patient … under the former Act is taken to be a forensic patient … within the meaning of this Act and this Act applies accordingly”.

17. Section 69 of the Act identifies six objects of that part, which relevantly includes “to protect the safety of members of the public” (s 69(a)); “to provide for the care, treatment and control of persons subject to criminal proceedings who have a mental health impairment or cognitive impairment” (s 69(b)); and “to protect the safety of victims of forensic patients and acknowledge the harm done to victims” (s 69(f)).

18. Section 122, which provides the grounds for making an extension order, 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—

(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.”

19. This section 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: Lynnv State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [126] (Basten JA) (‘Lynn’). 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) (‘Paciocco’).

20. The following further matters should also be noted in connection with s 122 of the Act.

21. First, the standard of persuasion for each limb is to a “high degree of probability”. In this respect, the Court must be satisfied that the existence of the unacceptable risk is higher than the civil standard of proof and thus “beyond more probably than not”, but not to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] (Mason P, Giles and Hodgson JJA). Although the decision in Cornwall concerned the Crimes (High Risk Offenders) Act NSW (2006), this analysis has been held to apply equally to the Act, or its predecessor: Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439 at [18] and [25] (Wright J) (with respect to the Act); Attorney General for New South Wales v Kapeen [2017] NSWSC 685 at [11]-[12] (Beech-Jones J) (with respect to the MHFP Act). Both parties accepted the correctness of that approach.

22. Secondly, the plaintiff bears the onus in respect of both limbs, and in respect of the second limb must prove a negative: Paciocco at [8].

23. Thirdly, the phrase “unacceptable risk” is not defined in the Act, but it has been held to have the same meaning as in the Crimes (High Risk Offenders) Act: Attorney General for the State of New South Wales v Boyce (No.2) [2017] NSWSC 648 at [30] (Davies J) (‘Boyce’). That finding provides the basis for imposing control on the offender (or, more relevantly here, the forensic patient): Lynn at [127] (Basten JA).

24. In the context of high risk offenders, the phrase “unacceptable risk” is given its everyday meaning within its context, having regard to the objects of the Act (Lynn at [55]-[58] (Beazley P)), and “involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate”: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] (Wilson J); State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J). The nature of the risk “posed [has] to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition”: Lynn at [126] (Basten JA). Further, a forensic patient may pose an unacceptable risk, even where the likelihood of causing serious harm to others is low, if the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43] (Harrison J); State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [16] (R A Hulme J); State of New South Wales v Devaney (Final) [2019] NSWSC 1551 at [73] (Dhanji J).

25. The phrase “serious harm” is not defined by the Act. It has been accepted that it includes physical or psychological harm, albeit conditioned by the requirement that the harm be “serious”: see the discussion in Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 at [16] (R A Hulme J); and Beryalay 2019 Preliminary at [15] (Ierace J). This analysis was followed by Wright J in Beryalay 2019 Final at [25].

26. The phrase “adequately managed” is also not defined by the 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); Boyce at [17].

Further pre-conditions to making orders under s 121

27. There are a number of statutory provisions required to be satisfied prior to the Court making an order under s 121 of the Act.

28. Section 123 of the Act permits the relevant Minister to apply for an extension order “against a forensic patient”. However, s 124(1) qualifies this by providing that an order can only be made if the forensic patient is subject to “a limiting order” or “an existing extension order”: ss 124(1)(a)-(b). Section 3 of the Act defines “extension order” to mean “an order for the extension of a person’s status as a forensic patient under section 121” and defines “limiting term” to mean “a term nominated for a person under Division 3 of Part 4”.

29. The defendant conceded that he is a forensic patient subject to “an existing extension order”, and I find that he is: the defendant is subject to the extension order made by Wright J, as extended by the interim order made by Walton J.

30. Relevantly, s 124(2) of the Act provides that an application, made under s 123, may not be made more than six months before the expiry of the existing extension order: s 124(2)(b). It is accepted by the defendant that this requirement is satisfied, and I find that it is. The application made by the Attorney was commenced by Summons filed on 19 April 2022 and, at that time, the order of Wright J was to expire on 10 July 2022. The application was therefore compliant with the time stipulated by s 124(2)(b).

31. A further requirement is that the material that must accompany the application for an extension order addresses the matters in s 127(2) of the Act to the extent relevant (s 125(a)); includes a report from a qualified psychiatrist, registered psychologist or registered medical practitioner that “assesses the risk of the forensic patient causing serious harm to others” (s 125(b)(i)); and, “addresses the need for ongoing management of the patient as a forensic patient and the reasons why the risk of the forensic patient causing serious harm to others cannot be adequately managed by other less restrictive means” (s 125(b)(ii)).

32. I am satisfied that the material in the affidavits of Sarah Najjar affirmed 19 April, 15 August and 8 September 2022 addresses these matters (some of which are dealt with, later in these reasons, when addressing the matters in s 127(2) of the Act), and the defendant did not contend otherwise.

33. Section 126 of the Act prescribes a number of pre-hearing procedures relating to the making of, and dealing with, an application for an extension order: the application must be served on the forensic patient (the defendant) within two business days after the application is filed, or such further time as the Court may allow (s 126(1)); the Minister must notify the Tribunal as soon as practicable after making the application (s 126(2)); subject to some presently relevant exceptions, the Minister must disclose to the forensic patient 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)).

34. I am satisfied that these pre-hearing procedures have been complied with. The defendant has accepted this to be so.

The determination of the application: assessment of the risk

35. 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)).

36. In determining whether or not to make an extension order, the Court must take into account – in addition to any other matter the Court considers relevant – the matters in s 127(2)(a)-(i). If the Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal making the order: s 127(3).

37. I next outline the considerations that I have taken into account, in accordance with s 127(2) of the Act, in reaching my conclusions.

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

38. In respect of the defendant in the present case, the Attorney has identified four matters that bear upon the safety of the community: the defendant’s offending; intellectual disabilities; psychiatric disorders; and, substance abuse.

39. The defendant’s criminal history, prior to the index offence, was summarised in a chronology that formed part of the Attorney’s submissions. A copy of that chronology is annexed to the reasons. During the sentencing hearing, on 28 March 2014, Bennett SC DCJ accepted a submission that the defendant’s antecedents “reflects ongoing and substantial problematic behaviour in the face of efforts by the Court to deal with matters so as to assist him, even in cases where he had breached conditional liberty, extending it once again rather than impose punishment upon him”.

38. As the Attorney pointed out in its written submissions, Wright J made the following comments about the defendant’s criminal history at that time (Baryalay 2019 Final at [39]):

39. “The defendant’s lengthy criminal history before the index offence contains only a limited number of offences involving violence. These include assaulting an officer in the execution of duty on a number of occasions, common assault where the victim was his domestic partner and assault occasioning actual bodily harm in a domestic violence context. The defendant has also contravened an apprehended violence order (domestic) on two occasions. In addition, there are a number of driving offences which have involved endangering or potentially endangering other road users. The driving offences and particularly the domestic violence offences are serious, but the index offence marks an escalation in the defendant’s preparedness to engage in violent crime, involving as it did the use of a firearm to shoot the victim with intent to cause grievous bodily harm. The defendant has put the safety of the community and his partner at risk as well as causing serious harm to at least one individual with whom he had come into contact.”

40. Wright J concluded (at [40]) that whilst the defendant’s intellectual impairment “may have played a part in his offending and in his lack of ability to understand the consequences of his actions” it did “not reduce, but increases, the risk posed by the defendant and the need to take effective measures to protect the community and individuals from serious harm”.

41. I have referred to the index offence earlier in these reasons: see [7]-[8] above.

42. The findings and conclusions of Wright J, in connection with the defendant’s criminal history at that time, accord with the views expressed by Bennett SC DCJ during the sentencing hearing, on 28 March 2014, for the index offence. His Honour Judge Bennett SC found the defendant to be “significantly impaired” and “a mentally ill person”. His Honour further remarked: “… it does seem to me that there is little I can do to stop him from committing crime[s] which seem to be ever increasing in [their] seriousness”.

43. Bennett SC DCJ accepted the Crown’s submission that the defendant’s antecedents:

44. “…reflect ongoing and substantial problematic behaviour in the face of efforts by the Court to deal with matters so as to assist him, even in cases where he had breached conditional liberty, extending it once again rather than impose punishment upon him. Moreover, he was living in a controlled environment at the time of the commission of this offence. His offending does not confine itself to the discharge of the weapon on this occasion; he beforehand had possession of the weapon and the ammunition with which to discharge it….”

45. In respect of the safety of the community, it is necessary to refer briefly to the defendant’s intellectual disabilities and psychiatric disorders; to which I will return in my consideration of matters under ss 127(2)(b)-(d): see [48]-[68], below.

46. The defendant, who was born in 1991, was first diagnosed with an intellectual disability when he was 10 years old: when assessed, it was reported that he fell within the borderline mildly intellectually disabled range, with relative weaknesses in applied language and short-term memory skills. The defendant has since undergone neuropsychological assessments which have identified severe cognitive deficits across various domains. Dr Dossetor, a paediatrician, diagnosed the defendant in 2006 as having Frontal Lobe Syndrome – a condition that has a characteristic pattern of cognitive deficits impacting areas such as motivation, planning, social cognition, and speech production: see [57]-[58] below.

47. In terms of substance abuse, the defendant has a history of this both in the community and in custody. The defendant has convictions for possessing prohibited drugs from 2006, 2007, 2008, 2009, 2010 and 2021. He has also used buprenorphine (an opiate drug) with a prescription (and, it should be added, without a prescription), and has been reported as ‘self-medicating’ using methylamphetamines and Xanax. A Corrective Services case note report, dated 20 December 2021, noted that the defendant “admitted that when he was in the community he began ‘self-medicating’ again… he was using cannabis daily and ice and heroin whenever he was stressed and was able to buy it”. This persistent substance use is concerning, in my view, and considered to be so by the experts who have recently assessed the defendant.

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

50. Following orders made by Walton J on 15 June 2022, the defendant was examined by a forensic psychologist, Mr Patrick Sheehan, who produced a report dated 31 July 2022 (the ‘Sheehan Report’) and a forensic psychiatrist, Dr Calum Smith, who produced a report dated 3 August 2022 (the ‘Smith Report’).

51. Shortly stated, each expert considered that the defendant should be subject to an extension of his status as a forensic patient: each agree there is a foreseeable risk of causing serious harm to others if the defendant ceases to be a forensic patient and that there are no less restrictive means available at this point which would adequately address the defendant’s forensic needs in connection with that risk. I accept this evidence, which was unchallenged.

52. There was no contest about what each expert had concluded; that is, the defendant, in my view, properly accepted the experts’ determination (put simply) that the defendant posed a risk of causing harm if he ceased to be a forensic patient. Nevertheless, the defendant did not accept that their opinion justified the making of the order: the Court, the defendant argued, needed to be satisfied, independently, of the statutory prerequisites in s 121 of the Act. (I deal with the defendant’s submission in my analysis at [88]ff, below).

53. The key points made in the Sheehan Report are as follows:

1. He had prepared, prior to this report, two reports following assessments of the defendant: dated 9 June 2016 and 15 December 2018.

2. He diagnosed the defendant as having an “Intellectual Disability (Intellectual Developmental Disorder)”, estimated to be in the mild-moderate range; a “Polysubstance Use Disorder” of moderate severity; and an “Antisocial Personality Disorder”: Sheehan Report pp 13 and 15.

3. When assessed on the Violence Risk Scale (‘VRS’), the result was such that the defendant’s risk for violence was within the “High” range – a score that represented “an increase in risk estimate relative to [his] previous assessment of [the defendant] in 2016 and 2018”: the defendant’s scores moved him from the medium to high-risk category: Sheehan Report pp 28-29.

4. The dynamic risk factors identified by the VRS included: that the defendant “has shown a continuation of responding with aggression to have his needs met”; the defendant exhibits “criminal attitudes in his behaviour and rejection of responsibility”; there is a “recurring theme of aggression in [the defendant’s] interpersonal interactions, using aggression in frustration, anger or to prove himself”; poor “emotional regulation has been a feature of [the defendant’s] episodes of interpersonal violence, in that his aggression has been in response to disinhibited anger and frustration”; that whilst the defendant does have “some limited insight into his violent behaviour”, it is “superficial”; and that his impulsivity “is a central issue for [the defendant’s] risk of harmful behaviour including violence”: Sheehan Report pp 29-34.

5. The VRS score in the high-risk category accurately describes the defendant’s “risk of violence at this time” and that release into the community from maximum-security, without support systems, “would heighten the risk of the type of aggressive behaviour that could be seen as seriously endangering the public”: his risk to others is “through acts of aggression, weapon use, driving recklessly”: Sheehan Report pp 34-35. Later, it was said that the events since 2019 illustrate “that support systems alone are insufficient to insulate [the defendant] from behaving in ways that could cause serious harm to others”: Sheehan Report p 36.

6. That the defendant presented “with a combination of cognitive impairments, substance use disorder, possible trauma-based psychopathology and personality vulnerabilities that have predisposed him to low frustration tolerance, impulsivity and acts of aggression”: Sheehan Report p 35.

7. The defendant’s “behaviour showed a trajectory towards causing harm through interpersonal violence, with a substantial risk of this being serious harm”: Sheehan Report p 36.

8. That he supported a continuation of defendant’s status as a forensic patient, noting that the defendant was not eligible to be made an involuntary patient under the Mental Health Act – because he was not a mentally ill person under that Act – and that a guardianship order would be inadequate as a means to interrupt the escalating risk because the defendant had shown “a capacity to disregard less rigorous restrictions placed upon him at times of heightened instability”: Sheehan Report p 36.

9. The chronic nature of the defendant’s risk features indicates that an extension order “at the upper end of the available range” is suitable; nevertheless, a lesser term “may be less likely to be met with a sense of hopelessness” – although three years would be the minimum period “within which longer term stability could be achieved”: Sheehan Report p 36.

54. The key points made in the Smith Report are as follows:

1. He diagnosed the defendant as having an intellectual disability of moderate severity; complex post-traumatic stress disorder; anti-social personality disorder; substance use disorder (currently in remission); and, likely, attention deficit hyperactivity disorder: Smith Report pp 45 and 47-48.

2. The risk of future violence was assessed using the Historical Clinical Risk Management 20 Scale, Version 3 (‘HCR-20 v 3’) following which Dr Smith assessed the defendant as presenting “with a high risk of violence”: Smith Report p 45. Later, in terms of risk, Dr Smith expressed the opinion that the defendant “must be considered high risk of future violence, given his historical factors and ongoing presentation”: Smith Report p 47.

3. Upon his assessment of the material, he considered the defendant to be “a highly complex patient who was so unable to control his behaviour that he had to be sent back to jail, despite high levels of support around him”: Smith Report p 46.

4. That he considered the defendant “to pose a risk of causing serious harm if he ceases to be a forensic patient. He committed a violent offence despite being a forensic patient with significant amount of oversight and support. If he ceased to be one, he would not have the same oversight and in that case, on the facts available to me risk would likely increase further…”: Smith Report pp 48-49.

5. That the defendant “should continue his status as a forensic patient… There have been significant ongoing difficulties managing him in the community, and very significant risk associated with his actions. It is hard to argue that a lesser restrictive option is available at present”: Smith Report p 49.

6. He considered that the defendant could not be managed under less restrictive means: Smith Report p 50.

7. The defendant’s status as a forensic patient should “be in place for a while to establish his transition to the community and for it to be established that it is working”, something that Dr Smith considered would take “at a minimum, three years, more likely four”: Smith Report p 51.

Reports received under s 125(b): s 127(2)(c)

55. The Attorney secured a report from Dr Richard Furst, consultant forensic psychiatrist, dated 10 February 2022 (the ‘Furst Report’). Dr Furst had previously prepared a report, dated 28 April 2019, as a Court appointed expert, for use in the extension proceedings heard by Wright J (in Beryalay 2019 Final).

56. The key points made in the Furst Report are as follows:

1. He diagnosed the defendant as suffering from a range of mental disorders, using DSM-5 criteria being: “Intellectual disability (mild to moderate range)”, which he defined to mean a person having a full-scale IQ of lower than 70 (equating to the lowest 2% of the population in relation to their intellectual functioning), substance use disorder and persistent neurocognitive disorder (identified to be an acquired brain injury sustained during his birth in Afghanistan): Furst Report pp 24-25.

2. He considered that individuals with “intellectual disabilities are at greater risk of aggression and criminal recidivism in a general sense than those without disorders”: Furst Report p 25.

3. The defendant’s cognitive impairment, “in combination with a substance use disorder and his poor judgment, means [the defendant] remains at significant risk of falling into his previous pattern of drug use, criminal offending and recidivism if left unsupervised”: Furst Report p 25

4. The defendant’s risk factors, in light of the risk assessment results using the ARMADILLO-G Risk Assessment Tool, identified the defendant as having “dynamic areas of concern across the board that is consistent with him being at high risk of reoffending”: Furst Report p 26.

5. His review of the evidence suggested that the defendant “has a moderate to high risk of reoffending whilst living within the community, even as a forensic patient, and a much higher risk of reoffending, approaching the level of becoming quite likely to reoffend, if he ceases to become a forensic patient. That is because he would most likely end up homeless, disengaged from services, associating with pro-criminal peers and using drugs again. Sadly, there is almost nothing positive to say about [the defendant] in terms of his current situation and his future prognosis”: Furst Report pp 26-27.

6. He considered that the defendant had “multiple risk factors” including “the capacity to use weapons, make serious threats and disregard both authority figures and the law”. Further, although prediction of the type of harm that might arise if the defendant were to cease to be a forensic patient was difficult, Dr Furst considered it “quite likely that serious harm will come to one or more other persons in some fashion, at the very least in the form of victimisation from his aggression and/or a criminal offence, and this would be a highly likely outcome in the event that [the defendant] ceased to be a forensic patient”: Furst Report p 27.

7. He considered that the defendant’s status as a forensic patient should be continued “to ensure [the defendant] is adequately supervised, treated, controlled and contained”: in this respect, Dr Furst considered that there were “no other less restrictive means of managing [the defendant’s] identified needs and risks”: Furst Report pp 27-28

8. He considered that “far from thriving and adjusting to life in the community when released from custody in April 2019, he has regressed into a self-defeating pattern of rejecting help and interventions designed to assist him, breaking rules, using drugs again and breaking the law again”: Furst Report p 28.

57. As noted above, Dr Furst prepared an earlier report, dated 28 April 2019 (the ‘2019 Furst Report’). It is convenient to now deal with this report. The key findings and conclusions expressed by Dr Furst may be summarised as follows:

1. He considered that the defendant had, using DSM-5 criteria, two mental disorders: “Intellectual disability (mild to moderate range)”, which Dr Furst considered that this was due to “an early hypoxic brain injury during a homebirth”; and “substance use disorder”: 2019 Furst Report pp 19-20.

2. He identified a number of individual risk factors and, having considered them, placed the defendant “in a group of individuals considered medium-high risk of reoffending, especially without close supervision and a gradual and supported transition into the community”: 2019 Furst Report p 21.

3. Using HCR-20 v 3 to assess the risk of future serious violent offending, the defendant’s combined factors placed him in a “group of individuals considered to be at moderate risk of causing serious physical harm to others”; nevertheless, Dr Furst considered that taking into account all relevant risk factors, previous risk assessments and other evidence briefed to him, he was of the opinion that the defendant fell into a group of individuals considered to be at moderate-high risk of causing serious physical harm to others”: 2019 Furst Report p 24-25. Later, Dr Furst considered that the “risk factors… are unlikely to change in the foreseeable future...”: 2019 Furst Report p 28.

4. He considered that the defendant’s current status as a forensic patient was of “high clinical utility and is necessary in order to manage the potential risks [the defendant] poses of reoffending and/or causing serious harm to others”: 2019 Furst Report p 27. Dr Furst considered that if the defendant was to cease to be a forensic patient, it would “likely result in an unacceptable risk of disengagement from appropriate services and supervised care arrangements, using drugs again, associating with pro-criminal peers, reoffending and posing a significant risk of harm to others in the community”: 2019 Furst Report p 28.

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

58. The Attorney drew attention to four further reports, as follows.

59. The first was a report from Dr David Dossetor, a paediatrician, dated 19 May 2009. Dr Dossetor reviewed the defendant for the purposes of preparing this report – prior to that time he had not seen the defendant since late 2006.

60. Dr Dossetor confirmed the diagnosis of “Mild Intellectual Disability and Frontal Lobe Syndrome” that he had made in 2006. In addition to the diagnosis of mild intellectual disability, Dr Dossetor noted two relevant implications of the diagnosis of Frontal Lobe Syndrome in his 2009 report. First, that the defendant had “major deficits of memory both short-term and long-term and major deficits in planning, organising and insight”. Secondly, that there was “no expectation of improvement in these deficits. There is no treatment and in twenty years time [the defendant] will still need the same level of protection as he needs today”. Further, Dr Dossetor “generally” observed the defendant’s “moral development as like that of a 2 to 3-year-old”.

61. The second was another report of forensic psychologist, Mr Sheehan, dated 9 June 2016. Mr Sheehan had, at that point, been retained to provide a report in connection with “the suitability and adequacy, of [the defendant’s] community management plan to mitigate his risk to himself and others in the community”.

62. Mr Sheehan administered the VRS actuarial tool in order to assess the defendant’s static and dynamic risk factors for violence. Mr Sheehan reported that the overall result of his assessment estimated the defendant’s “risk for violence as within the Medium range”, albeit that there “were several items that could not be scored due to insufficient information” – possibly suggesting that the risk had been underestimated. In his overall risk statement, Mr Sheehan considered that the defendant’s risk was “best understood as a confluence between impaired cognitive functioning and antisocial personality features” and that it “is both towards himself (through impulsive misadventure, driving, fighting, or drug use) and to others (through acts of aggression, weapon use, driving, or breaking into residences where people may be present)”.

63. Mr Sheehan concluded that the defendant presented “with a combination of cognitive impairments, psychopathology and personality vulnerabilities that have predisposed him to low frustration tolerance, impulsivity and acts of aggression”.

64. The third was a report from psychologist, Ms Caroline Hare, dated 23 November 2018. Ms Hare was retained by the Attorney in order to provide an independent psychological risk assessment of the defendant to assist in determining whether to pursue an application to extend the defendant’s status as a forensic patient (which application was made, and granted, in Beryalay 2019 Preliminary and Final).

58. Ms Hare assessed the defendant’s risk of further offending using the HCR-20 v 3 and the Structured Assessment of Protective Factors for Violence Risk, second edition (‘SAPROF’), concluding that the results of those assessments evidenced “moderate protection against future violent offending, and moderate-high risk of violently re-offending … [the defendant] presents high risk of engaging in reduced-seriousness violence … and moderate risk of engaging in actual physical violence”.

59. Ms Hare concluded that the defendant posed “a significant risk of causing serious harm to others if he ceases being a forensic patient on [11 April 2019]” and that in the absence of an extension of his status as a forensic patient, “there is a risk that [the defendant] would decline an ‘optional’ accommodation placement and seek to reside with family members who are not equipped to manage his complex needs during this critical transition phase. In this circumstance, I believe that his risk of causing serious harm to others would become heightened and unmanageable…”.

60. The fourth was a report from Dr Kerri Eagle, forensic psychiatrist, dated 30 April 2019. Dr Eagle prepared that report as a Court appointed expert, as a consequence of the orders made in Beryalay 2019 Preliminary, for the proceedings that were heard by Wright J: Beryalay 2019 Final.

61. Dr Eagle diagnosed the defendant as suffering from complex post-traumatic stress disorder; an intellectual development disorder (intellectual disability), which she later described as “pervasive and enduring”; frontal lobe syndrome; a severe substance use disorder; and an antisocial personality disorder. Dr Eagle described the defendant’s offending behaviour as having “escalated over time” and that he had “engaged in reactive and instrumental violence”.

62. Dr Eagle considered that the defendant’s “risk of future violence is significantly elevated when compared to other offenders. He has a substantial loading of historical factors associated with future violence in addition to a high loading of clinical factors”, and that, absent the current risk management regime, which includes status as a forensic patient, the defendant “would have a substantial loading of risk management factors associated with the risk of future violence”.

63. Dr Eagle recommended the continuation of the defendant’s status as a forensic patient.

64. Dr Furst and Dr Eagle each gave evidence, consistent with the opinions they expressed in their reports, in the previous proceedings before Wright J, who expressly accepted their evidence: Beryalay 2019 Final at [65]-[66].

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

72. The defendant has been frequently reviewed by the Tribunal. It appears that there have been 25 instances of review of the defendant by the Tribunal – putting to one side reviews conducted by the Tribunal for breach of orders for release (see s 109(4)) – up to and including the hearing conducted by the Tribunal on 10 February 2022.

73. On 9 April 2019, following a review, the Tribunal made an order for conditional release, which provided that the defendant was to live at an Intensive Residential Service, under supervision of a member of the Community Justice program. He was subsequently released from Goulburn Correctional Centre on 15 April 2019.

74. On 18 February 2020, the Tribunal reviewed the defendant following concerns raised by his case manager in relation to the conduct detailed in a report dated 14 February 2020. These concerns arose following his residential placement with a non-governmental disability support provider, and included behavioural concerns such as “verbal aggression” that was reported “almost daily”; frequent missing of his daily medication, at which time the defendant “exhibited verbal aggression towards staff”; non-compliance with policies regarding visitors; and withholding medication (buprenorphine) from staff. The defendant’s risk of recidivism, and the needs associated with managing that risk, was assessed as within the “Moderate-High risk range”.

75. The report noted that “there has been a noticeable deterioration in [the defendant’s] presentation and behaviour since his last Tribunal hearing as reflected in his current increased risk. In particular, [the defendant] is at heightened risk of substance lapse and/or relapse, which in turn can increase his overall risk”. It was recommended that the defendant temporarily be admitted to a local mental health facility for assessment and treatment.

76. On 4 March 2020, the Tribunal made an order, under s 68 of the MHFP Act, for the defendant to be apprehended and detained at Bankstown-Lidcombe Hospital for breach of conditions relating to his conditional release. Within the reasons of the Tribunal, the following was noted:

77. “On 29 February, an allegation has been made that [the defendant] was involved in a physical and verbal altercation with his girlfriend near his house. Police have been informed, and are seeking to interview [the defendant]. [The defendant] also has a history of violence against women with whom he is in an intimate relationship…”

78. Periodical reviews of the defendant were conducted, and orders were made by the Tribunal that the defendant be detained – initially in Bankstown-Lidcombe Hospital, but later at the Liverpool Hospital – for care and treatment on 8 May 2020, 20 May 2020, 1 September 2020, 28 September 2020, 17 November 2020, 2 December 2020, 2 March 2021, 2 June 2021, 14 July 2021, 23 September 2021, and 7 October 2021. During these periods, it should be noted, the defendant was granted conditional leave of varying types.

79. On 17 October 2021, the defendant escaped from Liverpool Hospital. On 18 October 2021 an order was made by the Tribunal that the defendant be apprehended and detained in a correctional centre. On 23 October 2021, according to the reasons of the Tribunal dated 26 November 2021, the defendant was “brought into Blacktown Hospital Emergency Department, having been found unconscious in a car in the car park of a local shopping centre. He was surrounded by needles and white powder”.

80. Upon his discharge, the defendant was taken into custody by police. A hearing before the Tribunal on 11 November 2021 was adjourned for 3 months.

81. The hearing before the Tribunal resumed on 10 February 2022. The defendant’s treatment providers, at that hearing, sought “no change to the existing order for [the defendant’s] detention”. On 23 February 2022, the Tribunal once again adjourned the hearing, and ordered that the defendant remain detained at the Metropolitan Remand and Reception Centre.

82. The Tribunal reviewed the defendant on 4 August 2022. On 23 August 2022, the Tribunal made orders confirming the conditional release of the defendant – subject to 33 conditions. The Court was advised by the parties during the hearing that the defendant is currently residing in the community in accordance with those conditions.

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

83. The Attorney referred to the fact that a large number of reports had been produced for the Department of Ageing, Disability and Home Care (‘the ADHC’), the Department of Juvenile Justice, the Community Justice Program (‘the CJP’) and the National Disability Insurance Scheme (‘the NDIS’). These reports have identified the defendant’s needs, as well as the support required, and other steps taken to address those needs.

84. The Attorney also pointed to the risk manageability assessment report dated 13 September 2016 and a further report dated 17 October 2018. Each report identified risk factors, as well as the defendant’s primary behaviours of concern – which, in the 2018 report, were identified as substance abuse, verbal and physical aggression, and driving offences.

The level of the 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)

85. The Attorney drew attention to the defendant’s progress in detention – albeit for the period between November 2012 and August 2018 – by referring to the remarks of Ierace J at [11]-[13] in Beryalay 2019 Preliminary. I have considered these matters, but consider that they are of limited utility – bearing in mind that final orders were later made and that the present issue is whether the defendant’s status as a forensic patient should be extended beyond the term imposed by Wright J.

86. In my view, the defendant’s more recent conduct – that is, the conduct that post-dates the making of the order by Wright J in Beryalay 2019 Final – is more relevant. That conduct extends to the following:

1. The defendant absconded from Banks House on two occasions – in June and August 2020. While at Banks House, the defendant’s conduct was reported to involve abusing staff, oppositional behaviour, property damage and a refusal to take medication.

2. The Tribunal noted, in its reasons dated 23 February 2022, that the defendant “absconded while on leave and damaged the security fence near a bank ATM (both in February 2021); he was further charged with reckless driving, damaging property and other traffic offences in the same month; there are allegations that he assaulted his girlfriend resulting in the imposition of an Apprehended Domestic Violence Order (April 2021); that he has refused urine drug screens (May 2021); and that he has thrown rocks at people in May 2021”.

3. On 6 June 2021, the defendant is reported to have telephoned a support worker “to ‘fight’ and was observed to be throwing items within his unit and exhibiting verbal aggression”.

4. On 17 June 2021, Liverpool Hospital staff were said to have observed the defendant speaking in a “very aggressive manner, and making death threats” on the telephone whilst at the hospital.

5. On 25 July 2021, support staff reported the defendant attempted to jump out of a moving vehicle. At that time, the defendant was reportedly “enraged” and was requiring physical interaction to prevent his unsafe escape from the car.

6. On 3 August 2021, the defendant’s urinary drug screen returned a positive result for methamphetamine. Further, the defendant is reported to have “exhibited elevating anger, verbal aggression, property damage, threats of self-harm/suicide and threats of harm”.

7. In the period leading up to a Tribunal hearing in November 2021, there were reports that the defendant had “threatened [residential support] staff”; he had a “positive urine drug screen on 21 August 2021 for stimulants”; and there were concerns that the defendant had been driving his car whilst unlicensed (his license having been suspended for 3 months in April 2021).

8. On 3 and 7 September 2021, the defendant did drive his motor vehicle whilst unlicensed and without staff.

9. On 1 October 2021, police were required to attend the supported premises, where the defendant resided, in relation to an assault by the defendant on a residential support staff member. The defendant was arrested and taken to the police station. The Police Facts Sheet was noted to have alleged that the defendant became abusive and assaulted a staff member, and that he also “grabbed a kitchen knife from his unit and threatened” the staff member before she fled. (There is, however, some inconsistency in the reporting, with some persons stating the alleged victim of this incident was his girlfriend: nothing turns on the precise identity of the victim, in my view). Following his arrest, and the grant of bail, the defendant continued to make contact with the alleged victim of the assault, contrary to his bail conditions and an Apprehended Violence Order that was taken out by police. The police attended the premises to arrest him, but the defendant refused to open the door, and escaped. The defendant was subsequently arrested and charged with breaching bail. In consequence of this event, the defendant was in breach of a condition of an order for his conditional release made by the Tribunal. On 7 October 2021, the Tribunal ordered that the defendant be apprehended and detained.

10. Following the order made by the Tribunal on 7 October 2021, the defendant was detained at Liverpool Hospital – but on 17 October 2021 the defendant escaped. When the Tribunal was dealing with the breach of its order on 18 October 2021, they noted that the defendant was “alleged to be in breach of an Apprehended Violence Order by reason of threats made to the protected person. The threats are alleged to have been made after he was admitted to Liverpool hospital”.

11. On 23 October 2021, the defendant was found unconscious in a car in the car park of a local shopping centre, as I have previously described: see [76], above.

12. When returned to custody, the defendant was charged with an offence of damaging, destroying or defacing his cell in November 2021 Further, in December 2021, the defendant was allegedly involved in an assault towards another inmate, as the Tribunal noted in its reasons, dated 23 February 2022.

13. In February 2022, the defendant was sentenced to an 18-month Community Corrections Order in relation to the charges of stalk or intimidate, common assault (domestic violence), and armed with intent to commit indictable offence.

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)

87. I have previously noted the views of Bennett SC DCJ in the judgment following a special hearing, conducted pursuant to s 19 of the MHFP Act: see [43]-[44], above.

88. On 1 July 2019, Wright J extended the defendant status as a forensic patient for three years, and I have earlier identified some of the findings made by his Honour: see Beryalay 2019 Final [40]-[41], above. The conclusion of Wright J, which was largely based on the opinions expressed by Dr Furst, Dr Eagle and Ms Hare in their reports (confirmed by their oral evidence) to which reference has been made, was:

89. “…the defendant’s past conduct, the likelihood of his re-offending if not supervised as a forensic patient, and the likely gravity of the consequences of that re-offending for his girlfriend, other associates of the defendant and the community generally, the conclusion that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient is, in my view, inevitable.”

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)

90. The Attorney did not make any submissions directed to this sub-paragraph: it was confirmed that all relevant matters had been addressed within the other sub-paragraphs of s 127(2).

The extension order should be made

91. I have already found that the matters in ss 123-126 of the Act are satisfied: see [27]-[34], above.

92. Having regard to the matters under s 127(2) referred to above, I have no doubt 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 Act are met.

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

94. First, the defendant has a number of pronounced, and permanent, intellectual/cognitive impairments, as well as psychiatric/psychological disorders. These conditions, I find, on their own – as well as in combination – have predisposed the defendant to low frustration tolerance, poor judgment, impulsivity, antisocial behaviour (with limited insight into such behaviour), acts of aggression and regular contact with the criminal law. The defendant lacks, I also find, the appropriate internal mechanisms to regulate his conduct. These findings are, of course, not an end to the matter: but they significantly inform, and explain, the defendant’s past offending, as well as the likelihood of him reoffending and/or engaging in conduct causing serious harm.

95. In terms of the defendant’s intellectual/cognitive impairments, and his consequent disabilities, they are permanent and resistant to treatment. In 2009, the defendant’s treating paediatrician, Dr Dossetor, expressed the opinion that there was “no expectation of improvement” in the various intellectual deficits for which there was “no treatment” available – leading Dr Dossetor to conclude that “in 20 years’ time [the defendant] will still need the same level of protection as he needs today”. The expert evidence in 2022 confirms this to be so: the defendant still has the impairments and the severe cognitive deficits across various intellectual domains including major deficits in planning, organising and insight. In relation to the psychiatric/psychological conditions, and the consequent disabilities, the diagnoses – at least since 2019 – remain unchanged, and the expert evidence in 2022 also confirms this to be so. The evidence does not suggest that there is likely to be any significant improvement in these impairments and conditions, and I find there will not be for the foreseeable future.

96. Secondly, Bennett SC DCJ, in 2014, reached two broad conclusions:

1. The first was that the defendant was, at that time, “significantly impaired” and “a mentally ill person”, leading his Honour to remark that there was “little I can do to stop him from committing crime[s] which seem to be ever increasing in [their] seriousness”. (These findings align with one I have made – viz., that the defendant’s intellectual impairment and psychiatric/psychological conditions predisposed him to the conduct that he has engaged in up to 2014, and to the present time: see [90], above).

2. The second was that the defendant’s antecedents demonstrated “continuing misconduct” reflecting “ongoing and substantial problematic behaviour in the face of efforts by the Court to deal with matters so as to assist him, even in cases where he had breached conditional liberty, extending it once again rather than impose punishment upon him. Moreover, he was living in a controlled environment at the time of the commission of this offence…”. In my view, the “problematic behaviour” has continued to the present time, notwithstanding that the defendant has been living in a highly regulated and “controlled environment”.

97. In short, there has been no favourable change from the assessment made by Bennett SC DCJ to the present time.

98. Thirdly, the defendant has been regularly assessed by the Tribunal following the order made by Sides QC DCJ under s 14(a) of the MHFP Act on 17 April 2013. Since that time, the defendant has been assessed as remaining unfit to be tried – most recently by a decision made on 26 November 2021. At that time, the Tribunal concluded there was “no evidence to suggest that [the defendant] is now fit to be tried, and the Tribunal concludes that he remains unfit”. Further, attempts to reintegrate the defendant into the community have been difficult and largely unsuccessful: see [70]-[79], above, which sets out the involvement of the Tribunal in the period 2019 to date. There is no suggestion that the Tribunal considered that the defendant’s status as a forensic patient was anything other than appropriate nor, for that matter, were any views expressed to the effect that they considered that that status was likely to change. In fact, in October 2021, when ordering the defendant to be returned to custody, the Tribunal expressed the view that the defendant’s mental condition had declined and that the defendant was “at risk of causing serious harm” to himself or to others. The fact that the defendant has been conditionally released by the Tribunal, but subject to 33 conditions, reinforces that assessment in my view.

97. Fourthly, the expert evidence demonstrates that the defendant’s risk profile, when assessed using actuarial risk assessments, has not changed over time; in fact, I accept that they are suggestive of deterioration:

1. 2018: Ms Caroline Hare considered the defendant evidences “moderate protection against future violent offending”; “moderate-high risk of violently re-offending”; “high risk of engaging in reduced-seriousness violence”; and “moderate risk of engaging in actual physical violence”: see [63], above.

2. 2019: Dr Kerri Eagle considered that the defendant’s “risk of future violence is significantly elevated when compared to other offenders. He has a substantial loading of historical factors associated with future violence in addition to high loading of clinical factors”, and that absent the current risk management regime, which includes status as a forensic patient, the defendant “would have a substantial loading of risk management factors associated with the risk of future violence”: see [67], above.

3. 2019: Dr Richard Furst, placed the defendant “in a group of individuals considered medium-high risk of reoffending, especially without close supervision and a gradual and supported transition into the community”: see [55(2)], above. He also was of the opinion that the defendant fell into a group of individuals considered to be at moderate-high risk of causing serious physical harm to others”: see [55(3)], above.

4. 2022: Dr Richard Furst identified the defendant as having “dynamic areas of concern across the board that is consistent with him being at high risk of offending”. His review of the evidence suggested that the defendant “has a moderate to high risk of reoffending whilst living within the community, even as a forensic patient, and a much higher risk of reoffending, approaching the level of becoming quite likely to reoffend, if he ceases to become a forensic patient”: see [54(5)], above.

5. 2022: Mr Patrick Sheehan assessed that the defendant’s risk for violence was within the “High” range – a score that represented “an increase in risk estimate relative to [his] previous assessment of [the defendant] in 2016 and 2018”, and that the defendant’s scores moved him from the medium to high-risk category: see [51(3)], above.

6. 2022: Dr Calum Smith assessed the defendant as presenting “with a high risk of violence” and, later, expressed the opinion that the defendant “must be considered high risk of future violence, given his historical factors and ongoing presentation”: see [52(2)], above.

100. Although there were some differences in the actuarial tools used by the experts to assess the defendant’s risk profile, in my view, they uniformly demonstrate an absence of improvement in the defendant’s risk profile. In fact, there is evidence demonstrating that the risk has increased. For example, the evidence from Mr Sheehan – that I accept – was that the serial testing that he performed (in 2016, 2018 and 2022) demonstrated deterioration.

101. Fifthly, in terms of risk identification (and the type of harm likely to materialise), Mr Sheehan considered that the risk extended to the defendant himself – “through impulsive misadventure, driving, fighting, or drug use” – and to others – “through acts of aggression, weapon use, driving, or breaking into residences where people may be present”. Dr Smith formulated the defendant’s risk as someone presenting with “a high risk of violence”; an individual “who was so unable to control his behaviour that it has necessitated him being sent back to jail, despite high levels of support around him”; and, that the defendant “must be considered high risk of future violence, given his historical factors and ongoing presentation”. Dr Furst – although accepting the difficulty that attaches to accurately predicting the type of harm that was likely if the defendant ceased to be a forensic patient – considered it “quite likely that serious harm will come to one or more other persons in some fashion, at the very least in the form of victimisation from his aggression and or a criminal offence, and this would be a highly likely outcome in the event that [the defendant] ceased to be a forensic patient”. The evidence of the experts regarding the risk (and type of harm) presented by the defendant is consistent, and I accept it.

102. I do not accept the submission that, in light of the defendant’s conduct (including his offending history), the Court would not be satisfied to the requisite degree of the level of risk posed. As the Attorney submitted, unacceptability of the risk involves “considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate”: Simcock at [71]. Offending – or even conduct – of the kind that I have mentioned (particularly those that occurred on 1 October 2021) if it were to recur, would be unacceptable and serious. Further, to the extent it was suggested that the evidence did not establish probability of its occurrence, it should be noted that an unacceptable risk does not require that the forensic patient is “more likely than not” to cause serious harm: s 122(2).

103. Sixthly, in relation to “serious harm”, the defendant’s resistance to the extension order sought by the Attorney was confined to an argument that: (a) the Court would not be satisfied that the event in October 2021 occurred (with the consequence that the Court would not be able to find “serious harm”); and (b) in any event, the Court would not be satisfied to the requisite degree that the offending or conduct qualifies as “serious harm”.

104. As to the first argument, the defendant submitted that, whilst the conduct that occurred on 11 September 2010, and the index offence, could constitute serious harm, the New South Wales Police Fact Sheet relating to the conduct in October 2021 did not permit the Court to find that the offence occurred. I do not agree. In my view the evidence, including that within the Police Facts Sheet, clearly establishes – and I accept establishes – the defendant engaging in the underlying conduct, including wielding a knife. (I add: the Tribunal was clearly satisfied that this conduct occurred by the way in which it undertook multiple statutory reviews of the defendant on and following these events). The fact, as the defendant argued, that the Magistrate dealt with the defendant under s 19(b) of the Act does not equate to the conduct not occurring. The conduct I have referred to is demonstrative of the risk of causing serious harm to others (and that harm materialising).

105. As to the argument that the risk would not be of causing “serious harm”, I do not accept the submission. In my view, the expert evidence – including the evidence that I have referred to (and accepted) at [97], above – supports the finding (that I make) that the harm would be “serious harm”. Furthermore, so too does the conduct of the defendant since 2019, to which reference has earlier been made (see [83(1)]-[83(13)], above) – conduct that I consider has distinctly worsened. In this respect I refer, in particular, to the consistent reports of the defendant exhibiting, and behaving, with aggression during 2021; the events on and around 1 October 2021 – when the defendant abused and assaulted a person (in addition to threatening them with a kitchen knife); as well as the defendant’s failure to comply with both Tribunal and Court orders (the failure to comply with conditions of bail and an apprehended violence order). In my view, this is the conduct of a person who demonstrates a clear (and unacceptable) risk of causing serious harm to others; indeed, in the event of 1 October 2021, he clearly did so. Thus, the pattern is not of stable (or stabilising) conduct permitting an inference to be drawn that the defendant’s risk of causing serious harm was diminishing or had diminished since Wright J made the extending order in 2019; rather, the pattern of behaviour, in my view, is to the opposite effect. And this is so despite the high level of oversight and support around the defendant during this time.

106. I am also satisfied to the requisite degree, that the risk cannot be adequately managed by other less restrictive means. (The defendant, I add, did not submit to the contrary). That conclusion, in my view, is supported by the opinions (which I accept) from Dr Furst (see [54(7)], above); Mr Sheehan (see [51(8)]-[51(9)], above); and Dr Smith (see [52(5)]-[52(6)], above): each expert considered that there were no less restrictive means to adequately manage the defendant.

107. 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 Attorney seeks an extension order for a period of three years – a period that the defendant, subject to satisfaction of the matters within s 122, did not oppose.

108. Dr Smith considered that the defendant’s status as a forensic patient should be for a minimum of three years, but more likely for four years – the period, in Dr Smith’s opinion, being necessary to “establish [the defendant’s] transition to the community and for it to be established that it is working”. Mr Sheehan considered that a “lesser term” of three years would be the “minimum period within which longer-term stability could be achieved”. Importantly, Mr Sheehan considered that the lesser term of this three years would be “less likely to be met with a sense of hopelessness” by the defendant. Dr Furst, however, was somewhat more pessimistic than Dr Smith and Mr Sheehan, suggesting that a “5-year period of management as a forensic patient being indicated in the circumstances”.

109. In my view, the extension order under s 122 should be for a period of three years, for the reasons given by Mr Sheehan. Further, an order of this length – rather than one that is longer, or at the limit of what can be ordered – is not only proportionate, but better serves the objectives in s 69 of the Act.

Orders

110. 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 3 years from 21 September 2022.

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

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Annexure

Summary of Criminal History Prior to IndexOffence

Date	Summary description of offence	Outcome
June 2005	1. Aggravated break and enter with intent and in company. 2. Goods in custody being stolen.	Conditionally discharged under s 32 of the MHFP Act (s 32 discharge)
September 2005	1. Possess housebreaking implements. 2. Break, enter and steal value less than $15,000. 3. Breach of bail.	s 32 discharge
April 2006	1. Resist officer in execution of duty. 2. Behave in offensive manner in/near public place. 3. Custody of knife in public place.	s 32 discharge
April 2006	Break, enter and steal value less than $15,000.	s 32 discharge
July 2006	1. Drive conveyance taken without consent. 2. Drive vehicle recklessly/furiously. 3. Unlicensed driving.	1. 12 month bond under s 33(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW) (CCCP Act). 2. s 32 discharge 3. s 32 discharge
July 2006	1. Possess prohibited drug. 2. Goods suspected stolen. 3. Unlicensed driving.	s 32 discharge
January 2007	Aggravated robbery	12 month probation under s 33(1)(e) of the CCCP Act.
March 2007	Goods suspected stolen.	Rising of the Court under s 33(1)(g) of the CCCP Act.
September 2007	Bring small quantity of drug into detention centre.	1 week control order under s 33(1)(g) of the CCCP.
March 2008	1. Goods in custody. 2. Deal with suspected proceeds of crime.	s 32 discharge
May 2008	1. Self-administer prohibited drug. 2. Unlicensed driving.	s 32 discharge
June 2008	1. Use false instrument with intent. 2. Goods suspected stolen. 3. Unlicensed driving. 4. Driver state false name/address. 5. Display unauthorised number plate x 2.	s 32 discharge
August 2008	1. Steal from the person. 2. Possess housebreaking implements. 3. Be carried in conveyance taken without consent. 4. Break and enter with intent.	s 32 discharge
October 2008	1. Goods in personal custody. 2. Detain person in company with intent to obtain advantage.	s 32 discharge
February 2009	1. Assault officer in execution of duty. 2. Possess prohibited drug. 3. Go onto railway lines.	s 32 discharge
February 2010	Possess prohibited drug.	$200 fine.
March 2010	Common assault (the victim was his domestic partner).	12-month s 6 bond – called up on 17 November 2011 and 7 June 2012 resulting in a 2-year s 9 bond.
May 2010	1. Assault officer in execution of duty. 2. Use offensive language in public place. 3. Refuse to comply with direction under Pt 14.	s 32 discharge
September 2010	1. Assault occasioning actual bodily harm (DV) x 2. 2. Contravene prohibition in AVO (domestic) x 2.	1. and 2. 12-month s 9 bond – called up on 17 November 2011 and 7 June 2012 resulting in a 2-year s 9 bond.
November 2010	1. Cultivate prohibited plant. 2. Possess prohibited plant. 3. Goods in custody suspected stolen.	s 32 discharge
April 2011	1. Negligent driving (not occasioning GBH). 2. Unlicensed driving. 3. Enter inclosed land x 2.	1. $600 fine. 2. $300 fine. 3. s 32 discharge
August 2011	Contravene prohibition in AVO (domestic).	Dismissed under s 10.
October 2011	1. Use offensive language in public place. 2. Enter inclosed land. 3. Destroy or damage property. 4. Contravene prohibition in AVO (domestic).	1. and 2. Conviction with no penalty: s 10A. 3. and 4. 2-year s 9 bond.
February 2012	1. Enter inclosed land. 2. Negligent driving (not occasioning GBH). 3. Drive vehicle recklessly/furiously. 4. Drive while suspended. 5. Police pursuit, not stop, drive dangerously.	s 32 discharge

Decision last updated: 21 September 2022