Attorney General of New South Wales v Skerry (bht Limbury) (Final)

[2025] NSWSC 629

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney General of New South Wales v Skerry (bht Limbury) (Final) [2025] NSWSC 629

Hearing dates:

27 March 2025

Date of orders:

7 May 2025

Decision date:

17 June 2025

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

Reasons published for orders made 7 May 2025:

(1) Pursuant to ss 121 and 128(1)(a) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant’s status as a forensic patient is extended for a period of three years from the date of this order;

(2)   Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

Catchwords:

MENTAL HEALTH — Forensic patient — Extension of status as forensic patient — Final hearing — History of schizophrenia and polysubstance use disorder — Where two forensic experts were appointed by the Court to conduct examinations of the forensic patient — Dispute as to the appropriate length of extension period of the defendant’s status as a forensic patient

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 3

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

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 69(1), 121, 122 126(5), 127(1)(a), 127(2), 127(2)(h), 128, 128(1)(a), 130, 131, Pt 5, Pt 6

Uniform Civil Procedure Rules 2005 (NSW), r 7.14

Cases Cited:

Attorney General of New South Wales v CD (Supreme Court (NSW), N Adams J, 24 November 2016, unrep)

Attorney General of New South Wales v Skerry (bhtLimbury) (Preliminary) [2024] NSWSC 1520

Attorney General of New South Wales v Skerry (by his tutor Ramjan) (Final) [2022] NSWSC 99

Attorney General of New South Wales v Skerry (by his tutor Thompson) (Final) [2018] NSWSC 1711

Category:

Principal judgment

Parties:

Attorney General of New South Wales (Plaintiff)
Michael Skerry (by his tutor Ashley Limbury) (Defendant)

Representation:

Counsel:
M Dalla-Pozza (Plaintiff)
C Feiner (Defendant)

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

File Number(s):

2024/00384890

JUDGMENT

1. HIS HONOUR: By summons filed on 16 October 2024, the Attorney General of New South Wales (the plaintiff) sought interim and final orders pursuant to ss 130 and 131 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act). The defendant appeared by his tutor, Ashley Limbury. As a forensic patient, the defendant is a “person under a legal incapacity”: Civil Procedure Act 2005 (NSW) s 3; thus, pursuant to r 7.14 of the Uniform Civil Procedure Rules 2005 (NSW), the appointment of a tutor is required to “carry on proceedings”.

2. Interim orders were made by me on 28 November 2024: Attorney General of New South Wales v Skerry (bht Limbury) (Preliminary) [2024] NSWSC 1520. Pursuant to ss 130 and 131 of the Act, the defendant was made subject to an interim order for the extension of his status as a forensic patient commencing upon the expiry of his previous extension order on 12 February 2025, for a period of three months, which was subsequently extended.

3. The defendant did not oppose that order and reserved his position in respect of the final order sought, which was for an extension of his status as a forensic patient for a period of five years from the date of the order, or for a length to be finally determined following receipt of any Court-appointed experts. That order was sought pursuant to ss 121, 127(1)(a) and 128 of the Act.

4. I ordered that two forensic experts be appointed pursuant to s 126(5) of the Act, and that their reports be furnished to the Court. Reports have been received from Dr Carollyne Youssef, who is a clinical and forensic psychologist, dated 12 February 2025, and from Dr Calum Smith, who is a forensic psychiatrist, dated 13 February 2025. In view of their opinions, the plaintiff has modified the order sought to an extension for four years. The defendant did not oppose an extension order, but submitted that it should be for a period of three years.

5. The hearing of the application concerning the final orders sought occurred on 27 March 2025. On 7 May 2025, I made an order that the defendant’s status as a forensic patient be extended for a period of three years from the date of the order, which means that it will expire on 6 May 2028, together with an ancillary order restricting access to the Supreme Court file in the matter. These are my reasons for that order.

The legislative framework

6. The relevant part of the Act is Pt 6, “Extension of status as a forensic patient”. The objects of Pt 5, which are stated to apply to Pt 6 as well, are outlined in s 69(1) as follows:

“(a)   to protect the safety of members of the public,

(b)   to provide for the care, treatment and control of persons subject to criminal proceedings who have a mental health impairment or cognitive impairment,

(c)   to facilitate the care, treatment and control of any of those persons in correctional centres or detention centres through community treatment orders,

(d)   to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment,

(e)   to give an opportunity for those persons to have access to appropriate care,

(f)   to protect the safety of victims of forensic patients and acknowledge the harm done to victims.”

7. Section 122 of the Act provides the criteria for determining an application for an extension order:

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

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

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

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

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

Note—

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

8. Section 127(2) of the Act sets out a non-exclusive list of matters that the Court must have regard to in determining whether to make an extension order:

“127   Determination of application for extension orders

…

(2)   In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant—

(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.”

The defendant’s background

9. The parties have jointly agreed to a summary of facts, which is an updated version of a statement of agreed facts that was tendered at the preliminary hearing. It is to the following effect and, for that reason, most of this summary is in the same terms as my summary of the agreed facts in the preliminary judgment.

10. The defendant is presently 57 years old. He has siblings, he is not in a relationship and has no children. He had a close relationship with his mother, who died in early 2024.

11. The defendant’s criminal history commenced when he was aged 17. It includes entries for negligent driving, possession of a prohibited drug, contravention of an Apprehended Violence Order, breach of bail conditions, unlawful entry, common assault, goods suspected of being stolen, shoplifting, refusing/failing to pay for meal, aggravated indecent assault of a victim under the age of 16 years, using an offensive weapon to prevent lawful detention, destroy/damage property, aggravated sexual assault, and break and enter.

12. As to his sexual offending, I note that on 10 March 2009, the defendant was convicted of common assault. The police facts alleged that he touched and lightly squeezed a 14-year-old girl on her thigh, partially underneath her shorts. On 9 February 2010, he was charged with aggravated sexual assault. The police facts in relation to that offence alleged that he threatened a homeless man, took him into a public bathroom and forced him to perform oral sex, with the defendant ejaculating into his mouth.

13. As to his drug and alcohol use, the defendant has a prior history of opiate dependence, alcohol abuse and instances of failing to comply with his medication. In 2015, he reported drinking alcohol on a regular basis, smoking cannabis at the age of 16 or 17 which became a regular occurrence, smoking nicotine cigarettes throughout his life and using crystal methamphetamine and heroin. Reports since his conditional release indicate that the defendant has remained abstinent from illicit substances and alcohol. He has been diagnosed with a polysubstance use disorder (in remission in a controlled environment), as well as impaired cognitive function.

The defendant’s mental health history

14. The defendant has a long and complicated mental health history. He was diagnosed with schizophrenia in 1990, when aged 23, and continues to suffer from a severe chronic treatment resistant schizophrenic illness, complicated by his polysubstance use disorder, which, as mentioned above, is in remission. His illness is characterised with symptoms such as delusional beliefs, paranoia, and hallucinations.

15. The defendant has presented with disinhibited behaviour in the community and has continuously expressed ongoing delusional beliefs that an intruder comes into his bedroom at night to physically harm him and have sex with him/sexually assault him. Reports from the defendant’s support workers have indicated that he believes that members of the public are his “bodyguards”, and he has previously approached people asking whether they were sent to protect him, and whether certain vehicles had been sent for him (for example, a taxi waiting on the street), or that people were wanting to harm him.

16. The defendant has been a forensic patient since 6 July 2012, which was the date of the index offence of aggravated sexual assault without consent, contrary to s 61J(1) of the Crimes Act 1900 (NSW). The defendant entered the apartment of a female neighbour uninvited and dragged her by her hair to her bedroom, where he threatened to kill her, forced her to perform oral sex on him and then demanded money from her. At the time, he was subject to a Community Treatment Order (CTO).

17. The defendant was found unfit to be tried and on 5 November 2013, after a special hearing in the District Court, it was determined that, on the limited evidence available, he committed the offence charged. A limiting term of 3 years commencing on 6 July 2012, and expiring on 5 July 2015, was nominated by Acting Judge Madgwick. Having regard to s 127(2(h) of the Act, I note that in his remarks, the sentencing judge referred to the offence:

“There was no extraneous violence in relation to the offence, but it was in fact marked by actual and threatened violence, and having regard to the definition of consent and knowledge, that violence needs to be regarded also as an aggravating feature of the offence to some degree.

…

What is of much more concern to me, and what I do think requires close consideration, is the question of individual deterrence and the protection of the community from any like conduct by [the defendant] in future.

His very limited comprehension of the seriousness of what he had done, his continued denials of a lack of consent as evidenced by outbursts in the courtroom yesterday, and his general mental problems do indicate that there would be concern about his re-offending.”

18. The defendant’s status as a forensic patient was extended for a period of 3 years each on three subsequent occasions by this Court; by Adams J on 9 September 2015: Attorney General of New South Wales v CD (Supreme Court (NSW), N Adams J, 24 November 2016, unrep); by R A Hulme J on 14 November 2018: Attorney General of New South Wales v Skerry (by his tutor Thompson) (Final) [2018] NSWSC 1711; and by N Adams J on 11 February 2022: Attorney General of New South Wales v Skerry (by his tutor Ramjan) (Final) [2022] NSWSC 99.

19. On 26 August 2020, the defendant was granted conditional release by the Mental Health Review Tribunal (MHRT) and has been residing in the community in NDIS-funded supported accommodation provided by Challenge Community Services.

Recent behaviour and compliance

20. The agreed facts refer to occasions since 2021 when the defendant’s behaviour has raised concerns:

a)   On 2 November 2021, it was reported that a fellow resident informed staff that the Defendant was masturbating in his room with his door open.

b)   On 10 March 2022, the Defendant yelled out ‘hello’ to one of the children in the street. He addressed the girl by name and waved, and when questioned on how he knew the girl’s name, the Defendant stated that they play out the front all the time.

c)   On 15 April 2022, the Defendant kept walking towards the front door to watch the children who were playing outside, and at one point, shouted out to one.

d)   On 10 May 2023, it was reported that the Defendant was hanging around and playing with young children in the street in front of the residence. During the night, he was talking to the children, and the Defendant even attempted to go out into the front yard after being advised numerous times by staff to not go near the children.

e)   On 21 January 2024, it was noted that the Defendant has been sexually inappropriate towards female staff leading to him having mainly male support workers.

21. The agreed facts also refer to occasions since 2024 when the defendant may have been experiencing delusional beliefs and hallucinations:

a)   On 21 January 2024, the defendant was ‘very paranoid’, believing he is being raped every night and has been poisoned.

b)   On 9 February 2024, the defendant continuously talked about the bikies picking him up in a private jet and buying him food. He also went to check if the smoke drawers were locked as he believed an ‘Aboriginal lady’ was poisoning him.

c)   On 24 February 2024, the defendant stated that there is an Indigenous intruder at the home, but no one can see her as she is too fast.

d)   On 27 March 2024, the defendant’s delusional beliefs had increased, with more reports of bikies, paranoia about the security of the house, a girl spiking his tobacco, and someone coming into his room in the middle of the night.

The defendant has maintained compliance with his medication regime, however continues to demonstrate a reluctance to take medication due to his belief that he does not need it. For example, on 16 May 2024, during the preparation of the [Justice Health and Forensic Mental Health Network (JHFMHN)] Clinical Risk Management Report, it was reported by the author that ‘[the defendant’s] judgment was adequate in terms of his passive compliance with prescribed medications and appointments, however in the absence of external motivators his judgment was poor, in that he indicated if it were up to him, he would cease all treatment and disengage from mental health and psychosocial supports.’” (footnotes omitted)

The MHRT

22. The defendant has been reviewed periodically by the MHRT between 19 August 2020 and 13 December 2024. The effect of the review decisions of the MHRT is summarily canvassed below.

23. By a determination dated 27 August 2020, the defendant was granted conditional release and discharged from Bloomfield Hospital, subject to conditions, including being subject to line-of-sight supervision whilst in the community. The review decisions broadly reflected that the defendant has maintained compliance with his medication, but has continued to experience ongoing delusional beliefs, and at times, expressed frustration with the restrictions imposed on him. The MHRT decision dated 28 September 2022 had an observation that the defendant:

“… presented with a low-moderate level of concern for problems arising from sexual behaviour and aggression, despite the high level of clinical and behavioural support in place.”

24. The review decision of the MHRT dated 27 June 2024 contained more positive findings, including that there had been a decrease in the defendant's psychotic symptoms in terms of intensity and frequency, and that he was more settled in his mental state and behaviour. The MHRT observed that although the defendant had been compliant with his medication, he lacked insight into the link between the medication and his improved state, and that he needed to be subject to ongoing monitoring when he accesses the community and engages with others.

25. The most recent review hearing, as of the time of the final hearing, occurred on 13 December 2024. The MHRT continued to leave in place the conditions requiring line of sight supervision in the community. The MHRT noted that according to the progress notes, the defendant’s treating team report that his behaviour is the best it has been for some time, although he continues to exhibit behaviour reflecting delusional symptoms, and he has little insight into his illness and need for care and treatment.

Summary of forensic reports

Dr Jeremy O’Dea: a Risk Assessment Report

26. The agreed facts summarise recent mental health assessments of the defendant, including reports by Dr Jeremy O’Dea, forensic psychiatrist, dated 17 June 2024 and 22 August 2024:

“The Risk Assessment Report

39.   Dr Jeremy O’Dea, Forensic Psychiatrist, assessed the Defendant via audiovisual link on 17 May 2024 and prepared a Risk Assessment Report dated 17 June 2024 to satisfy the requirements of s 125(b) of the Act.

40.   In his report, Dr O’Dea noted that he had assessed the defendant in person in 2015.

Diagnoses

41.   Dr O’Dea opines that the Defendant continues to suffer a severe chronic treatment resistant schizophrenic illness, complicated by polysubstance use disorder. The polysubstance use disorder is in remission in the controlled environment of the defendant's Conditional Release.

42.   Dr O’Dea notes that the Defendant displayed symptoms and signs of a severe chronic schizophrenic illness and cognitive impairment such as delusions, disorder in his thinking, a blunted affect, ongoing judgment problems and impulsive behaviours, general disorganisation in thinking and behaviour, disinhibition and poor behavioural control, and poor insight into his psychiatric illness and treatment needs.

43.   Dr O’Dea attributes the Defendant’s significant and ongoing cognitive impairment to his severe chronic treatment resistant schizophrenic illness rather than to the head injury he suffered at the age of 16 years or any developmental disability.

Risk Assessment

44.   Dr O’Dea opines that the Defendant continues to pose a significant risk of causing serious harm to others, and this is directly related to his schizophrenic illness. Dr O’Dea arrives at this conclusion based on the Defendant’s history, his schizophrenic illness not being under adequate control and presenting with ongoing symptoms, and behavioural concerns raised by the Defendant’s support workers.

45.   Dr O’Dea considers it reasonable to accept that the Defendant’s risk is currently adequately and appropriately managed in the community under the current conditions of the Defendant’s Conditional Release Order. However, Dr O’Dea finds that should the Defendant cease to be a forensic patient, he would pose an unacceptable risk of causing serious harm to others.

Ongoing Management

46.   Dr O’Dea opines that the Defendant’s risk to others could not be adequately and appropriately managed in a less restrictive environment, or otherwise than by the Defendant continuing as a forensic patient. Dr O’Dea believed that the Defendant’s risk to others could not be adequately and appropriately managed through continuation of existing care, treatment and supports without him remaining a forensic patient, and does not consider his risk being managed through a Community Treatment Order or the provisions of a Guardianship Order.

47.   Dr O’Dea also recommends that the Defendant continue ongoing psychiatric treatment in order to optimise his response to treatment and manage his ongoing risk of causing serious harm to others.

48.   Due to the Defendant’s long term psychiatric problems, risks and needs, Dr O’Dea recommends the extension of the Defendant’s status as a forensic patient should be indefinite, and of at least 5 years in duration.

The Supplementary Risk Assessment Report

49.   Dr O’Dea prepared a supplementary report dated 22 August 2024.

50.   Dr O’Dea noted that the provisions of Conditional Release are more proscriptive, supervised, monitored and responsive than the less restrictive provisions of a Community Treatment Order and Guardianship Order. Accordingly, Dr O’Dea opines that the provisions of Conditional Release are more suitable to the Defendant’s risk management needs.

51.   Dr O’Dea reiterated that the Defendant’s risk to others could not be adequately and appropriately managed at this stage in a less restrictive environment than, or otherwise than, as part of his continuation as a forensic patient.

…

Reports of other qualified psychiatrists and registered psychologists who have assessed the Defendant

70.   A number of reports have been prepared in relation to the Defendant. Relevant and recent ones are summarised below.

Confidential Psychiatric Report to the MHRT dated 7 November 2023

71.   Dr Aanchal Agrawal (a member of the Defendant’s treating team) prepared a report for the Tribunal for the purposes of its 29 November 2023 review. Dr Agrawal noted that the Defendant’s Clozapine dosage increased from 350mg to 375mg in accordance with the recommendation of his forensic psychiatrist. Dr Agrawal reported that the Defendant continued to present limited insight into his illness and continued to request for his Clozapine to be reduced.

72.   Dr Agrawal also noted that the Defendant’s case manager had documented ongoing delusional beliefs in the form of believing someone came into the house one night and sexually interfered with him. The Defendant expressed the view that there needed to be security cameras installed in his bedroom and the house.

Psychiatric Assessment and Report dated 10 November 2023

73.   Dr Kim Dilati (who has prepared a report after the Defendant had been referred for psychological assessment by his support coordinator) confirmed that the Defendant’s symptoms are consistent with a neurocognitive disorder, schizophrenia, and cannabis, stimulant and opioid use disorder (in sustained remission).

74.   The Defendant’s psychometric results reveal that he scored within the moderate range of sexual offending and the high range of violent offending, and requires one-on-one supervision at all times, by at least one male support worker, to mitigate his risk of offending due to his difficulties with judgment, insight, mental health, aggression, impulsivity, cognitive distortions, and history of offending.

75.   Dr Dilati also noted that the Defendant presented with limited insight and has not reached rehabilitation in order for the issues that aggravate his risk to be mitigated.

CFMHS Risk Management Report to the MHRT dated 16 November 2023

76.   Dr Yin-Lan Soon and Ms Laura Rodgers of the Community Forensic Mental Health Service (CFMHS) provided a report to the Tribunal for the purposes of the 29 November 2023 review hearing. They were of the opinion that the Defendant continues to present with a high loading of static factors for both sexual and other violent behaviour, which increases his vulnerability for further repeat behaviours. He also presents with moderate-high dynamic factors which have increased over the past six months.

77.   Dr Soon and Ms Rodgers further reported that the Defendant’s challenging behaviour had increased, with him snapping at staff and becoming easily agitated more frequently. There was also ongoing incidents when the Defendant would leave the house without informing staff, and on one occasion, he was found at the neighbour’s residence in their car port. On another occasion, he walked out the front door, and when staff approached him, he became agitated at staff.

CFMHS Report to the MHRT dated 16 May 2024

78.   Dr Yin-Lan Soon and Ms Laura Rodgers provided a further report for the purposes of the 28 May 2024 review. They opined that the Defendant presents with a moderate level of concern for problem sexual behaviour and aggression, despite being subject to high levels of clinical and behavioural support.

79.   The Defendant’s level of risk has slightly deceased and a reduction in the intensity and frequency of delusional beliefs was noted - this improvement is attributed from the increase in his Clozapine from 350mg to 375mg which was subsequently reduced in March 2024.

Reports from other government agencies responsible for the Defendant’s detention, care or treatment

80.   Challenge Community Services has noted that the Defendant continues to engage in inappropriate and concerning behaviour when he is on support in the community, including leering at women in swim wear, running up to unknown people and asking if they have his discharge papers, asking unknown people if they were his bodyguards, running up to the police and talking to them, and believing that someone is entering his room at night.” (footnotes omitted)

The report of Dr Carollyne Youssef

27. The history taken by Dr Youssef from the defendant included his recollections as a child of witnessing domestic violence by his father against his mother, sometimes fuelled by alcohol, and an allegation of sexual assault when he was aged 17 or, according to records viewed by Dr Youssef, when he was aged 13 or 14. She noted file information to the effect that the defendant suffered a fractured skull when aged 16 and was unconscious for four hours. He had problems with memory and migraines for five days thereafter, which qualified him for a diagnosis of a “Complicated Mild Traumatic Brain Injury”. He had been hospitalised twice for heroin overdoses.

28. Dr Youssef noted that the defendant did not accept that he had schizophrenia and therefore that he should not be taking medication. She related conversations with him which, it seems, were floridly delusionary. This appeared to be consistent with file information:

“File information reports show that [the defendant] has presented with mild thought disorder, shows evidence of psychotic phenomena (telepathy, auditory hallucinations, persecutory beliefs) and has consistently shown poor insight into his condition, treatment needs and ongoing care plan.

…

Recent concerns with regards to [the defendant’s] mental health have identified increases in delusional beliefs, in 2024, despite maintaining compliance with medication.”

29. Dr Youssef noted concerning reports as to the defendant’s social interactions:

“It is noted by the providers that supporting [the defendant] ‘in a community setting is consistently challenging’ (Hallawell, 18/04/2023). It has been consistently noted in file information, including in recent times, that there is evidence of impaired judgement in social situations, leading to [the defendant] behaving in socially inappropriate ways, such as behaving confrontationally around physically imposing men or inappropriately approaching unknown women or invading personal space (Jamsek & Keating, 02/06/2023). [The defendant] is described as consistently requiring behavioural redirection or intervention from staff at least 4-5 times per shift/outing, to ‘avoid either a situation that could easily lead to a confrontation or a situation where a woman experiences significant imposition that is outside of what I would expect most people to be comfortable with’ (Hallawell, 18/04/2023).”

30. Dr Youssef reported that the defendant’s adaptive functioning has been assessed as “extremely low”; he requires assistance with “communication, functional academics, self-direction, leisure, social, community use, health and safety, home living, self-care and motor skills”. He requires substantial support with activities of daily living, he has impaired functioning in the kitchen and behaves inappropriately within units and on outings.

31. The defendant’s cognitive functioning was previously assessed as being in the “extremely low” to “borderline” range, which impacts on his ability to process and retain information. Dr Youssef said:

“It was noted that the difference between his predicted intellectual functioning and his assessed functioning was found in 3% of the normative population; this suggested a clinically unusual difference, indicative of cognitive decline.”

This had implications for his treatment. Dr Youssef said:

“File information notes that [the defendant] has significant impairments in his executive functioning along with immediate and delayed memory, which were suggested to substantially impact upon his ability to process and retain information from therapeutic interventions.”

32. Dr Youssef questioned the defendant about his long-standing abuse of alcohol and a range of prohibited and non-prescribed drugs, including cannabis, heroin, oxycontin tablets and methylamphetamine. His answers to her questions, to my mind, demonstrated little insight into that behaviour.

33. Dr Youssef was of the opinion that the defendant qualified for diagnoses of schizophrenia and Substance Use Disorders (stimulant, opiate, alcohol, and cannabis, in sustained remission in a controlled environment). Although the defendant is presently abstinent from the use of drugs and alcohol, this was likely due to his restricted access rather than of his own volition.

34. Dr Youssef assessed the defendant’s level of risk of recidivism of sexual offending utilising the Static-99R, which placed him in the “Well Above Average” risk category relative to other male offenders. Dr Youssef qualified the reliability of the tool, particularly in view of the defendant’s cognitive limitations.

35. Dr Youssef also applied the STABLE-2007 to assist in the identification of stable dynamic risk factors that have been found to be related to sexual reoffending. As to the results, Dr Youssef said:

“The following need areas were identified as clinically significant areas of concern for [the defendant] as per the STABLE-2007: lack of capacity for relationships stability, poor problem-solving, and a sexual preoccupation. The following need areas were identified as being of some concern for [the defendant]: lack of significant social influences, impulsivity, hostility towards women, general social rejection, lack of concern for others, sex as coping, general social rejection and cooperation with supervision. The following factor was not found to be of current clinical concern: deviant sexual preference.”

36. Dr Youssef utilised the Risk of Sexual Violence Protocol-Version 2 (RSVP-V2) to obtain a more comprehensive evaluation of the defendant’s risk level, which she canvassed in some detail in her report. For an assessment of protective factors, Dr Youssef applied the Structured Assessment of Protective Factors for Violence risk – Sexual Offence Version (SAPROF-SO). Dr Youssef summarised the defendant’s level of risk as follows:

“With respect to sexual offending risk, the combined STATIC-99R and STABLE-2007 score placed [the defendant] in the ‘Well Above Average’ risk category for sexual offending. The results of the RSVP-V2 indicate a high density of dynamic risk factors. According to the RSVP-V2, [the defendant] has a ‘High’ likelihood of sexual offending, assuming no special management plans are implemented, however with his current level of supervision, this would be ‘Moderate’. With regards to imminence of sexual offending, he would be considered ‘High’ if no special management plans are implemented, however with his current level of support and supervision this would be ‘Low-Moderate’. He has a ‘Moderate-High’ severity of sexual violence, if he were to reoffend, with no management plans in place. The case prioritisation rating suggests that [the defendant] requires a ‘High’ level of effort to effectively prevent sexual recidivism.

Particularly salient dynamic risk factors identified for [the defendant] include deficits in his general self-regulation; decompensation in his mental state; substance use; marked interpersonal and attachment deficits; deficits in his sexual self-regulation; resistance to interventions; and the absence of insight. In relation to protective factors, [the defendant’s] strongest, if not only, protective domain is primarily related to external supports. [The defendant] would benefit from support and intervention to enhance other areas that can be protective for him …”

37. Dr Youssef considered that the defendant’s continued status as a forensic patient is managing his risk of harm to others:

“… it ensures ongoing oversight by the MHRT, including regular reviews of his progress, treatment, and supervision. This also allows for the maintenance of key management provisions, such as substance abstinence, stable accommodation, and engagement with mental health and disability services, with adjustments made as needed. Without the forensic patient order, it is unlikely that [the defendant] would receive or comply with the necessary level of treatment and supervision.”

38. A sexual assault reoffence scenario was addressed:

“If [the defendant] commits another sexual offence, the victim is likely to be a female whom he has access to, another vulnerable male or female client of the disability service, or someone he encounters in the local area and can isolate without supervision. The offence is likely to be opportunistic and impulsive, with little to no planning. [The defendant] is likely to escalate rapidly to engage in intrusive acts, most likely oral penetration, although he has also committed indecent assault. He is unlikely to use psychological coercion, and but may use physical force to ensure the victim’s compliance. The function of [the defendant’s] offending behaviour is likely to be sexual gratification. The factors likely to increase [the defendant’s] risk of a sexual offence primarily include victim access, need for sexual gratification, and substance use.

Like most people who offend, [the defendant’s] history does not suggest that he would offend at every opportunity. There are likely to be instances where [the defendant] shows better judgement, or his offence cycle is interrupted by an external factor.”

39. As to the ideal length of an extension order, Dr Youssef considered that an extension of three to four years was warranted, based on the applicant’s risk of reoffending, his dynamic risk factors, the level of support he is currently receiving and his response to community-based supervision. She added:

“This extended period would provide sufficient time to implement community measures and supports, offering [the defendant] opportunities to develop skills, capacity build, engage in meaningful activities, developing routine and structure and demonstrate some self-management. Additionally, I have considered [the defendant’s] likelihood of voluntarily engaging in recommended interventions, and without an order in place, he may not comply willingly.”

The report of Dr Calum Smith

40. Dr Smith’s report was based on an assessment of the defendant on two dates, 23 January and 7 February 2025. Dr Smith referred to his “previous report” of the defendant, although this was not supplied. On the January date, Dr Smith encountered the defendant’s absence of insight into his mental illness and consequent reluctance to take his prescribed anti-psychotic medication, and resistance to the order being continued. The purpose of the February interview was to clarify some concerns that arose from his first assessment, however, the defendant effectively ended the second assessment before it was completed.

41. Dr Smith did not outline the defendant’s personal, drug and alcohol or forensic history, since they were covered in documentation or his earlier report. His report generally was less useful than that of Dr Youssef, perhaps because it needed to be read in conjunction with his earlier report. In broad terms, his opinions coincided with those in earlier mental health assessments. He diagnosed the defendant as having “Treatment resistant schizophrenia, substance use disorder (currently in remission) and cognitive impairment”.

42. As to the length of an extension order, Dr Smith said:

“[In] my view the order should be for the minimum period that a person could be reasonably expected to show change in presentation for long enough that concerns about the presentation would be allayed. I do not make a judgment about how likely this is, simply how long a presentation would need to be sustained to be able to safely say it is sustained. The length of time in this case is three years.”

Consideration

43. I am inclined to give particular weight to the report and opinions of Dr Youssef. In my view, a cessation of the defendant’s status of a forensic patient and the consequent loss of the oversight of the MHRT would jeopardise the defendant’s medication regime and close supervision with the inevitable consequence that his behaviour would in due course pose a danger of serious harm to others, in particular, in the form of sexual offending against females.

44. As to the length of an extension, I note the expert opinions of Dr O’Dea (“indefinite, and of at least 5 years duration”), Dr Youssef (“three or four years”) and Dr Smith (“three years”). Mr Dalla-Pozza, on behalf of the plaintiff, submits that four years is the appropriate length. If the defendant progresses to a point that the order is no longer required, it is open to the MHRT to recommend a reduction of the period or a revocation of the order. I am of the view that the order should specify the minimum period that is reasonably necessary; I determine that three years is the appropriate period.

45. Finally, I note the following observation by Dr Youssef at [95.9.3] of her report, which I suggest should be brought to the attention of the MHRT:

“While [the defendant] has been in the community for several years, his restrictions have remained and it is unclear whether a concerted, systematic effort to address his problematic behaviours in collaboration with a specialised professional team has been made. As a result, [the defendant] has not had the opportunity to gradually increase his autonomy and independence in the community. Despite his time in the community, the level of supervision and restriction has mirrored an institutional care environment. Whilst [the defendant] requires this level of supervision at present, I also believe that he would benefit from capacity building and skill development. [The defendant] has been subject to three previous orders, and it would be prudent to ensure that a clear treatment and intervention plan is in place should he be subject to a further extension.”

Orders

46. For the above reasons, I made the following orders on 7 May 2025:

1. Pursuant to ss 121 and 128(1)(a) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant's status as a forensic patient is extended for a period of three years from the date of this order;

2. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and if any application for access is made by a non-party in respect of any document the parties are to be notified by the registrar so as to allow them an opportunity to be heard in relation to the application for access.

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Decision last updated: 17 June 2025