Attorney General of New South Wales v Marsters (Preliminary hearing)

[2025] NSWSC 880

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney General of New South Wales v Marsters (Preliminary hearing) [2025] NSWSC 880

Hearing dates:

28 July 2025

Date of orders:

7 August 2025

Decision date:

07 August 2025

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

(1) The summons is dismissed.

(2) The plaintiff is to pay the defendant’s costs of the proceedings.

Catchwords:

MENTAL HEALTH – Forensic patient – Extension of status as forensic patient – Whether matters alleged in supporting documentation would, if proved, justify making of an extension order – Whether court could be satisfied to the requisite standard that the defendant poses an unacceptable risk of causing serious harm to others if he should cease to be a forensic patient – Application for extension order dismissed.

Legislation Cited:

Crimes (High Risk Offenders) Act 2007 (NSW)

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

Terrorism (High Risk Offenders) Act 2017 (NSW)

Cases Cited:

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

State of New South Wales v Naaman (Final) [2018] NSWSC 1635

State of New South Wales v Thomas(Preliminary) [2011] NSWSC 118

Category:

Principal judgment

Parties:

Attorney General of New South Wales (plaintiff)
Armstrong Marsters (defendant)

Representation:

Counsel:
C Nguyen (plaintiff)
G E Lewer (defendant)

Solicitors:
Crown Solicitors Office (plaintiff)
Legal Aid NSW (defendant)

File Number(s):

2025/214095

Publication restriction:

No

JUDGMENT

1. By summons filed on 3 June 2025 the plaintiff claims an order for extension of the defendant’s status as a forensic patient under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Forensic Provisions Act). The defendant is represented by a tutor and opposes the summons. The proceedings came before me on 28 July 2025 for a preliminary hearing pursuant to s 126 of the Act. At that hearing the plaintiff sought an order for the appointment of suitably qualified experts to examine the defendant and furnish reports to the Court. Pursuant to s 130 the plaintiff sought an interim extension of the defendant’s status as a forensic patient pending final hearing the summons. These are my reasons for determination of those preliminary applications adversely to the plaintiff and for a consequential order dismissing the summons.

Prosecution of the defendant leading to detention as a forensic patient

2. By force of s 72(1)(b) of the Forensic Provisions Act, one category of forensic patient is a person for whom a limiting term has been fixed after a special hearing and who has thereafter been released from custody under an order made by the Mental Health Review Tribunal (the Tribunal). Between 1 January 2015 and 21 March 2020, when the defendant was between 17 and 20 years of age, he committed offences of indecent assault, sexual touching and digital sexual intercourse against two of his female cousins. One of the girls was aged approximately 7 years and the other was between 10 and 12 years. On 22 May 2020 the complainants informed a relative of what had occurred. The defendant was confronted by the relatives and at their insistence he reported his misconduct to police soon after. He made admissions to police and was charged with several offences in late May 2020. He was released to bail.

3. On 11 August 2021 there was a hearing before English DCJ pursuant to s 42 of the Forensic Provisions Act, at the conclusion of which the defendant was found unfit to be tried on the charges laid against him. Her Honour received a report dated 6 April 2021 from Dr K Seidler, psychologist, who had administered the Weschler Abbreviated Scale of Intelligence. The results showed that the defendant’s verbal intellectual skills were in the range of a Moderate Intellectual Disability, below 99.9% of his aged peers. His non-verbal or performance abilities were measured at the 18^th percentile, being in the Low Average range. Such a wide divergence of results between the two faculties is apparently highly unusual, with the consequence that calculation of an overall intelligence quotient could not be carried out meaningfully. In a report dated 22 July 2021 Dr K Eagle accepted the results of Dr Seidler’s testing. She said that the defendant’s cognitive impairment appeared to be developmental in aetiology and permanent.

4. In August 2022 a special hearing was conducted before Coleman SC DCJ, as required by ss 55 and 56 of the Act. On 29 September 2022 his Honour delivered a verdict, in accordance with s 59(1)(c), that on the limited evidence available the defendant had committed 13 sexual offences against the two complainants, as charged. On 8 December 2022, pursuant to s 63(2), his Honour nominated limiting terms for each of the matters. The terms were sequenced in a way that gave rise to an overall effective limiting term of 2 years and 9 months, commencing on 8 December 2022 and expiring on 7 September 2025. Limiting terms are not subject to non-parole periods: s 64(2)(b).

5. As mandated by s 65 of the Act, Coleman SC DCJ referred the defendant to the Tribunal and notified it of his orders. His Honour directed under s 65(2) that the defendant be detained in custody from 8 December 2022 pending review by the Tribunal. The defendant had been on conditional bail from when he was charged in late May 2020, a period of 2½ years up to the commencement of the limiting terms. He had complied consistently with the conditions of his bail.

6. On 27 February 2023 the defendant was reviewed by the Tribunal, which then made an order that he be detained at a correctional centre for care and treatment. Thereafter, the defendant was held as a forensic patient with a minimum security classification. He committed no infringements of prison discipline. He was released on 10 March 2025 by a further order of the Tribunal, subject to conditions. Since that date the defendant has complied with the conditions of his release. He will continue to be a forensic patient, on conditional release, until 7 September 2025 when his overall limiting term will expire.

Statutory provisions for extension of forensic patient status

7. Sections 121 and 122 of the Forensic Provisions Act are in the following terms:

Part 6 Extension of status as forensic patient

Division 1 Extension orders

121 Extension orders for forensic patients

(1) The Supreme Court may, on application under Division 2, make an order for the extension of a person’s status as a forensic patient.

(2) An order made under this section is 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.

8. On the material before the Court the formal and timing prerequisites for exercise of the Court’s jurisdiction under Pt 6 of the Act are clearly established. Both parties agree as to that. The provision under which the plaintiff seeks a preliminary order for the appointment of suitably qualified experts to examine the defendant is s 126, of which the following subsections are presently relevant:

126 Pre-hearing procedures

[...]

(5) If, following the preliminary hearing, the Supreme Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Supreme Court must make orders—

(a) appointing—

(i) 2 qualified psychiatrists, or

(ii) 2 registered psychologists, or

(iii) 2 registered medical practitioners, or

(iv) any combination of 2 persons referred to in subparagraphs (i)–(iii),

to conduct separate examinations of the forensic patient and to give reports to the Supreme Court on the results of those examinations, and

(b) directing the forensic patient to attend those examinations.

(6) If, following the preliminary hearing, the Supreme Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Supreme Court must dismiss the application.

9. Section 130 provides for the making of an interim extension order, that being the other form of preliminary relief that the plaintiff claims pending final hearing of the summons. Section 130 is as follows:

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.

The plaintiff’s supporting documentation

10. For the purpose of applying the above provisions, the most pertinent parts of the “supporting documentation” tendered by the plaintiff are in the following categories:

1. Records of the defendant’s index offending, including the indictment, Crown Case Statement, reasons for decision of Coleman SC DCJ with respect to the defendant’s commission of the offences and his Honour’s reasons concerning the length of the limiting term.

2. Psychological and psychiatric reports regarding the defendant prepared in connection with his prosecution during 2021 and 2022.

3. Records of the Tribunal relating to periodic reviews of the defendant, dating from February 2023 to August 2025. Those records include reports to the Tribunal from the Community Safety Program (a division of New South Wales Corrective Services), reports from disability service providers and reports from Dr Chelsea Dewson, psychologist. Also included are the Tribunal’s reasons for decision, initially refusing conditional release and then granting it on 13 February 2025.

4. Progress notes of Community Safety Program personnel who reviewed the defendant from time to time both prior to his conditional release on 10 March 2025 and subsequently.

5. Corrective Services’ integrated management system notes of the defendant’s conduct in custody.

6. Records of the defendant’s registration under the Child Protection (Offenders Registration) Act 2000 (NSW).

7. An assessment dated 30 April 2025 of the defendant’s functional capacity and requirements for care and assistance while living in the community, prepared for guidance of the National Disability Insurance Agency, together with a plan for provision of assistance under the National Disability Insurance Scheme (NDIS) for the period up to 31 July 2025.

8. A comprehensive risk assessment report by Dr Carollynne Youssef, forensic psychologist, dated 24 March 2025. Dr Youssef’s report was prepared and tendered in compliance with s 125(b) of the Act.

The central question on the preliminary application

11. For both the appointment of experts under s 126 and the making of an interim extension order under s 130, the critical question is whether “the matters alleged in the supporting documentation would, if proved, justify the making of an extension order”. By reference to s 122, that comes down to a question of whether, on the basis of those “matters … if proved”, it would be open to a judge hearing the summons on a final basis to be:

satisfied to a high degree of probability that—

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

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

12. If, on the preliminary application, I should conclude that it would be open to the judge who conducts the final hearing to be so satisfied, then it is mandated that I “must” make the preliminary order for appointment of experts. However, I would in that event have a discretion as to whether an interim extension of the defendant’s forensic patient status should be ordered to cover the interval between expiry of his limiting term on 7 September 2025 and the final determination of the summons.

Materials required to be taken into account relevant to the central question

13. In determining whether, “to a high degree of probability”, the defendant poses an unacceptable risk of causing serious harm to others if he should cease to be a forensic patient, the Court at the final hearing would be required to have regard to the considerations and sources specified in s 127(2) of the Act, as follows:

(a)   the safety of the community,

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

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

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

(e)   any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application,

(f)   any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice or any other government Department or agency responsible for the detention, care or treatment of the forensic patient,

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

(h)   the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed,

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

14. On the preliminary hearing I have before me all those considerations and sources of opinion and assessment, just as they would be available at the final determination of the summons, except for item (b) – reports of experts who might be appointed under s 126(5). That limitation is not significant because the numerous expert reports that are already to hand consistently and unanimously identify that the defendant’s cognitive disability is developmental, lifelong and unchanging. Some of the reports directly address the risk of further offending. None of the experts suggest that the defendant’s psychological state, which they are competent to express opinions upon, is fluctuating or progressive. There is no indication that further, more current assessments of the defendant’s psychology and risk profile, by two more professionals who might now be appointed by the Court, would alter the picture as to whether the defendant poses an unacceptable risk of reoffending.

15. The principal reports already in existence, which the Court has received on the preliminary application, are as follows:

Dr K Seidler 6 April 2021 and 24 November 2022

Dr K Eagle 22 July 2021

Dr C Dewson 23 August 2024 on 3 February 2025

Dr C Youssef 24 March 25

The setting of commission of the offences

16. The defendant has consistently provided to the various professionals who have assessed him a history of childhood deprivation. The deprivation was accentuated by his disabilities. The defendant has never known his father and in his early years he had inadequate care from his mother. He has four half siblings. During his early teens the defendant’s mother was largely absent, either at work or playing bingo at a pub. The defendant was burdened with having to care for younger siblings. As a result of his cognitive limitations the defendant was victimised by his peers at school and he struggled academically.

17. In June 2015, at age 17, the defendant moved to live with his maternal aunt. In the aunt’s household he had hoped to receive help with reading and writing but such help was not forthcoming. The defendant was not happy living with the aunt, whom he found strict. His younger female cousins visited the home every second weekend. The defendant’s offending against them occurred during those visits, over a period of approximately four years, between approximately 2015 and March 2020.

18. Subsequent to Dr Seidler’s administration of the Weschler Abbreviated Scale of Intelligence in August 2021, all other experts have accepted that the results she derived establish the defendant’s cognitive impairment. They have all found those results consistent with the defendant’s presentation to them. An exception to this is Dr Youssef, who perceived “some limitations to a comprehensive understanding of his cognitive profile” as a result of her not having been able to administer another intelligence assessment. However, Dr Youssef’s report chronicles the identification of the defendant’s cognitive difficulties in his school records from kindergarten through to a finding in 2015 of “profound specific language impairment and secondary to this extremely low literacy skills”. Dr Youssef also noted a speech pathology assessment of 15 November 2023, which supported a conclusion that the defendant “has severe expressive and receptive language impairments in the context of a moderate intellectual disability”. There is in my view no reason to treat the diagnosis of the defendant’s cognitive deficits as in any sense provisional, or as requiring confirmation by yet another test. It is notable that the Tribunal has engaged with the defendant periodically throughout his limiting term and has not expressed any doubt about the premise of disability upon which everyone involved in the defendant’s case has proceeded to this point.

19. It is a consistent theme of the psychological and psychiatric reports before the Court that the offending occurred when the defendant was significantly socially isolated. From when he left school at the end of year 12 in 2015 he was at all times employed, in various unskilled capacities, up until his arrest. The defendant’s language disability inhibited formation of friendships at school. Bullying and lack of progress in learning contributed to his anxiety and his failure to form lasting social connections. The defendant’s cognitive limitations impeded socialisation after leaving school. It is apparent from the reports that in his late teens and early adulthood he was unable to engage meaningfully with members of the opposite sex.

20. In her report of 24 November 2022, Dr Seidler made the following observations concerning social isolation as a factor in the defendant’s offending:

It appears that his anxiety is primarily cognitive in nature and associated with fears that people will be “nasty” or critical of him, akin to being bullied at school.

[…] [The defendant] claimed that he does not have an active social routine outside of his family and he apparently used the Internet to maintain some social contact with peers. He also apparently spends much of his spare time at home alone. [The defendant] acknowledged that he is lonely often and he would apparently like more friends and a more active social routine.

21. With reference to the period in which the offences were committed, Dr Dewson describes “an unstructured life outside of work, leading to pornography use”. In her report of 23 August 2024, Dr Dewson expanded upon her assessment of the defendant’s isolation as a factor in both his past offending and the risk of him offending in the future, as follows:

He has experienced problems with non-intimate relationships throughout his life … . Notably, in my opinion, it appears that his offending was an attempt to establish both non-sexual and sexual intimacy, therefore presenting as a notable dynamic risk factor.

22. Dr Youssef has expressed similar conclusions about the way in which the defendant’s cognitive impairments and social isolation contributed to his offending. The following is an extract from her report of 24 March 2025:

[The defendant’s] sexual offending behaviour can be largely attributed to significant challenges in social skills, a lack of comprehensive sexual education, and distorted views on relationships and sexuality, shaped by problematic social norms and attitudes. In the absence of having adequate interpersonal skills and limited opportunities for social interaction, [the defendant] encountered challenges in navigating social and intimate relationships. He demonstrates a poor understanding of boundaries, significant limitations in expressive and receptive communication, deficits in problem-solving and conflict resolution, and confusion between sexual behaviour and intimacy. These deficiencies in interpersonal skills appear to stem from [the defendant’s] disability and [were] exacerbated by minimal independent interaction with individuals outside his family circle. He has had little to no opportunity to develop friendships or relationships with others.

[His pornography consumption and sexual preoccupation point to] sexual curiosity and exploration on the part of [the defendant] and, in the absence of appropriate opportunities for sexual expression, he has seemingly gravitated towards the victims, as available, “safe” and accessible females. [The defendant’s] chances to learn appropriate relationship skills have been limited to family relationships, and he remained largely socially isolated outside of family interactions.

Professional assessments of risk of reoffending

Dr Seidler

23. Dr Seidler’s report of 24 November 2022 was prepared at the request of the defendant’s solicitor for the purpose of informing Coleman SC DCJ’s determination of an appropriate limiting term. Accordingly, the report addressed the level of risk that the defendant would commit further offences. Using an actuarial tool to evaluate static and historical factors, Dr Seidler found the defendant to be in the Average risk category, in which the average five year sexual offending recidivism rate is between 5% and 15%. Evaluation of the defendant’s dynamic risk factors suggested a risk of reoffending in the Moderate category. Dr Seidler identified protective factors in this dynamic risk assessment, namely, that the defendant has “an apparently pro social value set”, that he has been “able to maintain employment relative to his capacity” and that he has “reasonably well developed self-control skills”.

24. Dr Seidler concluded that the defendant’s risk of reoffending would be best managed by structure in his life. She understood that his offending behaviour was “unrelated to established deviancy issues”. She therefore thought that his risk could be well-managed “with some psychoeducation, … greater connection with others, reduced use of pornography and less access to vulnerable females”. Regarding prospects of rehabilitation, viewed from the perspective of late 2022, Dr Seidler said this:

With appropriate structure and support, it is my opinion that [the defendant’s] prospects for rehabilitation are positive. This is supported by his apparent pro-sociality, his willingness to engage in psychological therapy, his capacity to maintain the responsibilities of employment, and the apparent absence of sexual deviancy.

[The defendant] has been assessed as posing a Moderate risk of future sexual offending however … I am of the view that this risk can be well-managed with structure, supervision and intervention. As such I am not of the opinion that [the defendant’s] release to the community will pose a serious, imminent or specific risk to the community.

25. Dr Seidler recommended referral of the defendant to NDIS for case management support and assistance in sourcing and funding appropriate psychological treatment. Notwithstanding that Coleman SC DCJ found it appropriate to fix limiting terms and that the Tribunal required him to remain in custody until 10 March 2025, the circumstances under which he has now been conditionally released include that he is very substantially supported under an NDIS plan. The grounds for Dr Seidler’s opinion that in those circumstances he does not “pose a serious, imminent or specific risk to the community” remain applicable.

Dr Dewson

26. Dr Dewson reported on 23 August 2024 that according to one structured risk assessment guide (the Level of Services/Case Management Inventory) the defendant should be regarded as posing a “Low risk of general reoffending”. According to Dr Dewson’s application of the same actuarial tool for assessing static and historical factors as that which was administered by Dr Seidler in November 2022, the defendant was assessed “in Risk Level III (Average risk)” – referring to risk of being charged with or convicted of another offence. The meaning of this categorisation is explained by Dr Dewson as follows:

In the routine sample, offenders with the same score as [the defendant], the recidivism rate is 4.6% [scil, 4-6%]. The margin of error for this estimate is between 4% and 6%, 19 times out of 20. A recidivism rate of between 4% and 6% means that, out of 100 sexual offenders with the same risk score [as the defendant], between 4 and 6 would be charged or convicted of a new sexual offence after five years in the community. Conversely, between 94 and 96 would not be charged or convicted of a new sexual offence during that time.

27. The result of measuring static risk according to this actuarial tool, with the above explanation of the score in respect of the defendant, is very significant for distinguishing between the existence of “a risk” that he may reoffend and, on the other hand, the existence of risk at such a level and/or with such consequences that the Court could be “satisfied to a high degree of probability” that it would be “unacceptable”. As Dr Dewson explains in her reports, risk assessment tools including that which she applied, have their limitations and caution must be exercised with respect to the weight and reliance that is placed upon them.

28. Dr Dewson also made a dynamic risk assessment. With respect to factors that have been empirically linked to sexual recidivism she noted, first, that the defendant offended over a protracted period but the offending was not diverse in nature or in regard to victims. Some of his offending was brazen, given the proximity of family members. There was no evidence of escalation and no physical coercion, although some elements of psychological coercion were present. Secondly, the defendant presented with remorse and although this was “somewhat self-focused” he gave no indication of supporting or condoning sexual violence. He exhibited a lack of self-awareness, which Dr Dewson thought “likely contributed to his offending and remains relevant to his current presentation”. Thirdly, Dr Dewson identified lack of social adjustment as a current risk factor. She said:

[He] currently has no identifiable friends, outside of the [gaol] context. He has no history of sexual or romantic intimacy and is therefore untested in terms of his capacity to maintain such.

29. Dr Dewson recognised the defendant’s cognitive impairments as having a likely negative impact upon any form of psychological or counselling intervention. However, she drew the following conclusion:

Overall, he presented as being low risk of general offending and moderate risk of sexual recidivistic behaviour.

Dr Dewson concluded that the defendant’s access to support services and the nature of any such support, management and/or supervision would be material to reducing the risk of further offending. She thought that an NDIS plan for support of the defendant in the community, as offered in November 2024, would be sufficient. The Tribunal did not agree that the plan then in contemplation was adequate but a revised plan was accepted by the Tribunal on 13 February 2025.

30. Dr Dewson’s second report, dated 3 February 2025, was directed to evaluating a “transition plan” that prescribed conditions under which it was proposed that the defendant might be released from custody. This second report also assessed the sufficiency of support for the defendant that would be available under a revised NDIS scope of support. In this report, Dr Dewson summarised her view of the nature of any further offending that might be committed by the defendant, in the following terms:

[The defendant’s] likely reoffending scenario would involve him facilitating gradual interactions with a known (and perceivably vulnerable) female, with escalating sexual themes and/or physical/sexual contact. This is unlikely to involve physical violence but could involve sexual penetration and/or non-contact sexual offending (such as exposing himself).

[…] [He] isn’t assessed as being a predatory offender (i.e., one who will actively seek out and immediately offend against a victim). That being said, in certain contexts (i.e., him being unsupervised, in the company of a perceivably vulnerable child, feeling lonely and sexually dissatisfied etc.) a more opportunistic offence against an unknown child can’t be completely ruled out. Under the proposed plan, I assess the chances of such as low.

Dr Youssef

31. In her risk assessment report of 24 March 2025, Dr Youssef measured the defendant’s static risk of reoffending. She used the same tool as that used by Drs Seidler and Dewson and arrived at the same result. Dr Youssef measured the defendant’s dynamic needs and found him to be in the category of “High needs”. Combining the static and dynamic results Dr Youssef found that the defendant was in an “Above Average” category for risk of reoffending. According to another actuarial tool, known as RSVP-V2, the likelihood of the defendant reoffending sexually would be classified as “Moderate” if no special management plans were implemented. Dr Youssef considered the management plans that are in fact in place and to which the defendant has been subject since his conditional release on 10 March 2025. With that level of support and supervision she found that the risk of reoffending would be classified as “Low”. Another conclusion flowing from the RSVP-V2 actuarial tool is that the defendant requires no more than a “moderate” level of effort to effectively prevent sexual recidivism.

The defendant’s NDIS plan and other supports

32. Under an NDIS plan that was in place from the date of the defendant’s conditional release up to 31 July 2025, funding was made available to a total value of $216,323.48 for various categories of support that enable the defendant to live in the community. After the preliminary hearing on 28 July 2025 the parties jointly ascertained that on 4 August 2025 the National Disability Insurance Agency approved renewal of the defendant’s plan for the period 29 July 2025 to 28 July 2026, in a total amount of $228,926.92.

33. Since March 2025, a service provider to NDIS has made available accommodation for the defendant in a shared house at Towradgi, where two support workers are present from 7:00 am to 10:00 pm and one support worker is available in the residence through the night. An extra worker is available to assist the residents, including the defendant, with community access between 10:00 am and 4:00 pm.

34. A Corrective Services officer of the Community Safety Program has reported that the service provider does not permit children to be present in the accommodation. Further, the other supported residents do not have any history of offending and generally the accommodation is suitable for the management of any risk with respect to the defendant. The accommodation will remain available to the defendant indefinitely, subject to annual renewal of his NDIS funding plan.

35. The NDIS plan as in place up to 31 July 2025 also covered the cost of the following services, which have been available to and have been utilised by the defendant:

1. Up to 25 hours of psychological counselling, to be accessed on a monthly basis.

2. The preparation, by a behavioural support practitioner, of a support plan and the provision of training for “drop-in support staff” to visit the defendant and assist him with implementation of the plan.

3. Up to 35 hours of counselling by an occupational therapist.

4. Up to 20 hours of speech therapy.

5. Relationship and sex counselling, through face-to-face sessions, provided by a service called First Step.

36. The renewed NDIS plan provides sufficient funding for those supports to continue, although it does not prescribe limits upon the number of hours that are funded in any one category.

37. Community Safety Program personnel have arranged the following additional supports, which are being provided to the defendant and apparently do not require drawdown from his NDIS funding:

1. Participation in a program called Top Blokes, which is designed for people with intellectual disabilities. The program provides assistance in navigating challenges faced by such people in the community. It involves online communication each Friday for an hour and a half.

2. Engagement in a group-based program for males to learn about mental health, called Talk2MeBro. Meetings are facilitated weekly on Saturday mornings for two hours.

3. Utilisation of an eight week online program of employment support.

38. The documentation tendered by the plaintiff makes clear that the defendant’s cognitive disabilities will not diminish with time and there is no reason to believe that his supports will be withdrawn. I also infer that the other interventions that are assisting the defendant, which do not draw upon NDIS funding, will continue to be available as long as he wishes to engage with them.

The Tribunal’s decision of 13 February 2025

39. On 13 February 2025, the Tribunal carried out a review of the defendant pursuant to s 78 of the Forensic Provisions Act. Pursuant to s 84, the Tribunal was required to determine whether the defendant had spent sufficient time in custody. The Tribunal’s decision was governed by the following provision:

84 Matters that Tribunal must consider when determining whether to release a forensic patient

[...]

(2) Tribunal must be satisfied patient or public safety not seriously endangered The Tribunal must not make an order for the release (including the conditional release) of a forensic patient unless it is satisfied that the safety of the patient or any member of the public will not be seriously endangered by the patient’s release.

40. In its reasons of 13 February 2025, having considered the plan for the above supports and interventions as presented by Community Safety Program staff, the Tribunal expressed satisfaction that the defendant would be “very well supported while he is in the community and this support includes a significant degree of supervision”. The Tribunal concluded as follows:

[40]   On the evidence provided the Tribunal is satisfied that the safety of [the defendant] and any member of the public will not be seriously endangered by his conditional release.

41. Of the conditions imposed by the Tribunal, the most material ones may be paraphrased as follows:

4, 5 and 7: The defendant is required to accept a nominated officer of the Community Safety Program as his case manager, to meet with that officer from time to time as directed and participate in such training or therapeutic programs that the case manager might direct.

6: The defendant is required to accept the support of NDIS workers and follow their directions in the community.

11-13: The defendant is not to use illicit drugs or alcohol.

14-19: The defendant is required to reside at his NDIS-supported accommodation, and not to be present there if children under 18 should be in attendance at the property, not to be absent at night without approval of his case manager and not to travel outside New South Wales without the approval of the Tribunal.

21: The defendant is not to approach children or young people under the age of 18 years and was required to stay away from schools and other children’s facilities or gatherings, unless accompanied by support staff.

42. At the end of the first five weeks of the defendant’s release under those conditions, his case manager reported to the Tribunal that he had not indicated any concerning behaviours and that he had completed initial meetings with his forensic psychologist for counselling and with his behavioural support practitioner for skill development. The defendant exhibited to the case manager distress when discussing his history of offending. The case manager’s report includes the following:

[He] has expressed not feeling fully comfortable at church functions due to his desire to remain compliant with his current legal conditions and his attendance at activities where children are present. [After church services he had been] sitting outside or on the outskirts of the parking lot with his family and staff in order to participate in the event but not wanting to interact with children. [The case manager commended him] for his commitment to remaining in compliance with his legal conditions but also encouraged him to take a more active role in seeking to be a part of his faith community while also not engaging with children at these events. This activity is important for [the defendant] as he seems to struggle with feeling connected to both family and the larger community due to the seeming shame and guilt that he feels because of his offending behaviour.

43. The case manager had been meeting with the defendant weekly to help promote his understanding of the conditions, to establish structure and routine using a weekly planner and generally to build rapport. The manager proposed to reduce the frequency of the meetings in view of the defendant’s positive engagement and progress. The manager’s report included the following observations:

[The] emotional scars caused to [the defendant] by his trauma is evident in the author’s meetings with him, often seen him emotionally well up when discussing his offence history, his conditions and his family. […] Despite this trauma, [the defendant] appears to be making good progress in his re-entry back into the community and the CSP has not received any information to suggest increased risk of sexual offending against children.

44. The Tribunal modified the defendant’s conditions of release on 6 May 2025 to reflect a change of case manager and a change of residential address, to the property at Towradgi described earlier in these reasons. Otherwise, the conditions paraphrased above remain in force and will continue to do so until the defendant’s status as a forensic patient expires on 7 September 2025. Case notes of the Community Safety Program up to 8 May 2025 have been tendered. They indicate continuing full compliance and cooperation on the part of the defendant. There is no evidence that in the three months between the last of those case notes and the date of the preliminary hearing, the defendant has wavered in any respect from his compliant conduct and attitudes.

The material would not support a finding of unacceptable risk

45. The context within which the expression “unacceptable risk” appears in Pt 6 of the Forensic Provisions Act is similar in structure, terminology and statutory purpose to the context in which the same expression is used in ss 5B and 5C of the Crimes (High Risk Offenders) Act 2007 (NSW) and in ss 20(d) and 34(d) of the Terrorism (High Risk Offenders) Act 2017 (NSW). Authorities on the meaning of “unacceptable risk” in those other statutes are strongly persuasive as a guide to how the expression is to be understood and applied where it appears in s 122 of the Forensic Provisions Act.

46. In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 the Court of Appeal considered the predecessor of s 5B of the Crimes (High Risk Offenders) Act, which was then s 5E(2), according to which a violent offender, as defined, could be made subject to an extended supervision order if:

the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision.

47. Beazley P (with whom Gleeson JA agreed) said (at [50]):

[B]y reference to dictionary definitions, the word “unacceptable” requires context in which, or parameters against which, the “unacceptable” risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is “so far from a required standard, norm expectation, etc as not to be allowed”. The Oxford Dictionary defines the word by reference to its antonym “acceptable”. Something is “acceptable” if it is “tolerable or allowable, not a cause for concern; within prescribed parameters”.

48. At [51] her Honour said:

A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made.

Section 3 of the Crimes (High Risk Offenders) Act states that the primary object of the Act is “to ensure the safety and protection of the community”. Her Honour took that to be a significant part of the context, together with s 5E(2) itself which made clear that the question whether there existed an “unacceptable risk” related to the risk of commission of a serious violence offence, with obvious implications for the safety and protection of the community.

49. In State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 RA Hulme J held that whether there exists an “unacceptable risk” of a defendant committing an offence of the type to which the Crimes (High Risk Offenders) Act is directed turns upon whether there is a risk:

present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made.

50. In Lynn v State of New South Wales Beazley P adopted that formulation and elaborated it (at [61]) as follows:

[T]he word “ensure” itself has shades of meaning and, in the context of the Act, the evaluation to be made under s 5E(2) is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection. As the respondent pointed out, were it otherwise, every risk would be unacceptable.

51. In State of New South Wales v Naaman (Final) [2018] NSWSC 1635 at [18]-[27] I concluded that relevant parts of the Terrorism (High Risk Offenders) Act are indistinguishable from the legislation considered in Lynn v State of New South Wales and that the concept of “unacceptable risk” in s 20(d) of that Act should be applied according to Beazley P’s analysis. When my decision concerning Mr Naaman was appealed, the Court of Appeal did not express any different conclusion on this point.

52. The context of s 122 of the Forensic Provisions Act is slightly different from the context of equivalent provisions in the other two Acts referred to above, in that “the safety of the community” is merely one consideration the Court is required to take into account under s 127(2)(a). In contrast, “to ensure the safety and protection of the community” is an object of the Crimes (High Risk Offenders) Act, pursuant to s 3, and “the safety of the community” is the paramount consideration in evaluating risk, pursuant to ss 9(2) and 17(2). That is also the case with respect to the Terrorism (High Risk Offenders) Act, by force of ss 3, 25(2) and 29(2).

53. That difference between the Forensic Provisions Act and the other statutes is not significant to my determination of the issue now before me. Even if “safety of the community” should be given paramountcy in assessing the risk of the defendant “causing serious harm to others”, taken at their highest the materials that are before me could not justify the Court concluding that the level of risk is “unacceptable”.

54. The defendant’s only episode of offending arose from opportunity and isolation, not from predatory pursuit of victims. The defendant now has NDIS funding for nearly 11 months beyond expiry of his forensic patient status. Given the permanency of the defendant’s disabilities I infer that he will continue to receive such support beyond 28 July 2026. That support enables him to reside in accommodation where opportunity such as that which led to his past offending will not be repeated. The funding will facilitate counselling, guidance, engagement and socialisation. The manner in which Dr Dewson envisages that further offending might occur, as described in the passage quoted at [30] above, is for practical purposes precluded by the circumstances of the defendant’s supported accommodation and his engagement with support workers and professionals.

55. The defendant has expressed, with respect to his offending conduct, sentiments of shame, remorse and distress. Those professionals who have been in close contact with him and who are in position to make an assessment have found his self-criticism and regret to be genuine. The defendant has demonstrated to the satisfaction of those support persons his willingness and capacity to regulate his future conduct, utilising the community resources that are now available to him. Psychologists and other professionals have examined the defendant and his background very carefully, on multiple occasions, over four years since April 2021. They have not identified any persistent, pathological tendency towards repetition of his immature sexual offending.

56. In order to extend the defendant’s status as a forensic patient, the issue upon which the Court at a final hearing would have to be satisfied “to a high degree of probability” is whether he would pose an unacceptable risk of causing serious harm to others if he should cease to be a forensic patient. The materials presented on this preliminary application do not show that if he ceased to be a forensic patient he would lose his community supports, which are presently operating to reduce, very effectively, any risk of further offending. On the contrary, those supports will remain available to him as a result of NDIS funding. There is every indication in the evidence that the defendant willingly avails himself of the supports and will continue to do so in the future. There is no evidence of any likelihood that, if the defendant should cease to be a forensic patient and should therefore cease to be legally bound to comply with the Tribunal’s conditions, he would cease to utilise the risk-protective accommodation with which he has been provided or that he would terminate his engagement with counselling and other relevant services.

57. At final hearing, as on the present application, the Court must give considerable weight to the Tribunal’s conclusion that, upon release into the community to occupy accommodation and engage in prosocial activities as described in these reasons, “the safety of [the defendant] and any member of the public will not be seriously endangered”. Nothing has changed for the worse, with respect to risk of reoffending, since the Tribunal formed that view on 13 February 2025. From my consideration of the supporting documentation tendered at this primary stage, I am satisfied that the matters that the Court could find proved at the final hearing would not justify a conclusion that cessation of the defendant’s forensic patient status would alter the risk of serious harm to others to the level of “unacceptable”. That is not to dismiss the professional opinions, including those of Dr Youssef, that some risk of the commission of further sexual offences should be recognised. As the authors of the reports have implicitly accepted, the question whether such risk is “unacceptable” is a matter of legal judgment for the Court. For the reasons I have given, the evidence would not sustain an affirmative answer to that question if the proceedings should continue to final determination

Orders

58. The following order will be entered, as provided for in s 126(6) of the Forensic Provisions Act:

1. The summons is dismissed.

As the plaintiff has been wholly unsuccessful, a costs order will be entered as follows

2. The plaintiff is to pay the defendant’s costs of the proceedings.

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Decision last updated: 07 August 2025