Attorney General of New South Wales v JS [2026] NSWSC 1026

Catchwords: MENTAL HEALTH – forensic patient – extension of status as forensic patient – preliminary hearing – whether unacceptable risk of causing serious harm to others – demonstrated risk of violence and sexual violence offending which may be increased by schizophrenia – history of reoffending upon release absent appropriate support systems – whether risk can be adequately managed by less restrictive means – no less restrictive means given ongoing treatment needs, past non-compliance, little time spent in the community, lack of motivation and insights and risk posed – interim extension of status as forensic patient ordered Supreme Court New South Wales Amendment notes Medium Neutral Citation: Attorney General of New South Wales v JS [2026] NSWSC 1026 Hearing dates: 20 August 2026 Date of orders: 28 August 2026 Decision date: 28 August 2026 Jurisdiction: Common Law Before: McGuire J Decision: (1) T wo qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) are to be appointed to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; (2) T he defendant is directed to attend those examinations; (3) T he defendant is subject to an interim order for the extension of his status as a forensic patient commencing upon the expiry of his current extension order on 9 September 2026, for a period of three months thereafter; (4) A ccess 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 C ourt 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 the opportunity to be heard in relation to the application for access; and (5) T he Registrar of the Court is to notify the Mental Health Review Tribunal of the making of the extension order. Recommend that the persons appointed pursuant to Order (1) above should be a neuropsychologist and a forensic psychiatrist. Catchwords: MENTAL HEALTH – forensic patient – extension of status as forensic patient – preliminary hearing – whether unacceptable risk of causing serious harm to others – demonstrated risk of violence and sexual violence offending which may be increased by schizophrenia – history of reoffending upon release absent appropriate support systems – whether risk can be adequately managed by less restrictive means – no less restrictive means given ongoing treatment needs, past non-compliance, little time spent in the community, lack of motivation and insights and risk posed – interim extension of status as forensic patient ordered Legislation Cited: Evidence Act 1995 (NSW), s 191 Mental Health Act 2007 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 69(1), 72, 121(1), 122, 123, 124, 125, 126, 127(2), 130 Cases Cited: Attorney General for New South Wales v JS (P reliminary) [2024] NSWSC 1597 Attorney General for New South Wales v JS [2025] NSWSC 205 Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 Minister for Mental Health v Paciocco [2017] NSWSC 4 Category: Principal judgment Parties: Attorney General of New South Wales (Plaintiff) JS (Defendant) Representation: Counsel: BJ Dean (Plaintiff) L Lester (Defendant) Solicitors: Crown Solicitor’s Office (NSW) (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2026/227091 Publication restriction: Pursuant to s 7 of The Court Suppression and Non-publication Orders Act 2010 (NSW), upon the grounds set out in s 8(1)(a) of that Act, the defendant's name is to be suppressed in these proceedings and the defendant is to be referred to in connection with these proceedings, including any published court list, by the pseudonym “JS”. JUDGMENT By S ummons filed on 2 June 2026, the Attorney General of New South Wales ( “ the plaintiff ” ) seeks interim relief in the form of an extension order under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ( “ the MHCIF P Act ” ) in relation to JS ( “ the defendant ” ) extending his status as a forensic patient for a period of 3 months. The plaintiff also seeks ancillary orders. The defendant appears by his tutor, Dr K atherine Johnson . A document establishing Dr Johnson's consent to act as the defendant ’ s tutor in these proceedings has been filed. Counsel for the defendant indicated th at th e defendant neither consent ed to nor opposed the interim order s sought by the plaintiff. Background T he defendant is a 32-year-old Kamilaroi man who was born in More e . He was born with in utero transmitted h epatitis B and f e tal a lcohol s pectrum d isorder (FASD) . His biological mother suffered from a lcohol u se d isorder. His biological father had schizophrenia, struggled with long-standing substance abuse and had extensive interactions with the criminal justice system. The defendant was abandoned by his biological parents when he was 7 months old. He was cared for during his childhood by foster parents in the Ballina area . He ha s one foster sister . H is foster mother is I ndigenous . H is foster father is not. The defendant was diagnosed with a ttention d eficit h yperactivity d isorder (ADHD) at a very young age . D espite the diagnosis , he did not receive additional learning support at school. His formal education ended upon his suspension in Y ear 8 . The defendant ’ s developmental history is described in the tendered material as “ severely disrupted ” . The d efendant is reported to have display ed behavioural difficulties during his adolescence which escalated when he fell in with a negative peer group. He commenced smoking cannabis at the age of 14 and commenced consuming considerable amounts of alcohol between the ages of 15 and 17. He subsequently developed an intravenous methylamphetamine addiction. His first psychiatric admission, at the age of 15, was to the Lismore B ase H ospital, where he required medication for aggression and psychosis. In later years , he was diagnosed with schizophrenia, complicated by intellectual disability and substance use. As a juvenile , t he defendant is recorded as having committed petty offen c es for which he spent time in youth justice centres . As an adult , t he defendant led a largely itinerant life in the Grafton, Ballina , Lismore and Tamworth areas and was described as “ chronically homeless ” . When in the community , h e receives a disability support pension. He ha s never held formal employment and has never had an intimate relationship. As a result of the effects of his psychotic illness , t he defendant became somewhat estranged from his foster parents. However , t hey continue to take an interest in his life, frequently attend court and tribunal hearings and remain in regular contact with him. On 28 June 2024 , a forensic psychologist, Dr Susan Pulman , conducted a neuropsychological assessment and found that the defendant met the diagnostic criteria for mild intellectual disability. That intellectual disability is suspected to be related to FASD and , if so, will be lifelong. His intellectual disability was not adequately identified until the defendant was 30 years old. C riminal History The defendant has a long criminal and custodial history dating back to his adolescence. He was first charged as an adult in May 2013. Since then , he has been subject to 16 separate admissions to custody. His first charge as an adult resulted in the proceedings being diverted f or mental health assessment. Since then, he has only been at liberty for a t most a few months before being returned to custody. He has, in addition, spent time as a correctional patient in hospital facilities. On 11 November 2022, the defendant was incarcerated in Queensland in connection with charges of stealing and common assault. He was transferred into psychiatric care on 31 May 2023, at which time he was recorded as making “ extremely bizarre movements, having multiple unexplained wounds and injuring himself , setting his room on fire , fatuous a ffect [ and] masturbating in public spaces in the hospital and during psychologist reviews ” . The defendant was discharged into the care of family on 8 June 2023. Four days later, on 12 June 2023, members of the public became concerned about the defendant ’ s behaviour and telephoned the police. The police fo rmed the view that the defendant was affected by an intoxicating substance. The defendant reported that he had injected “ ice ” and he was conveyed by ambulance to M oree Hospital for assessment. Whilst at M oree Hospital , t he defendant committed the index offen c e. The i ndex offence The following details concerning the index offen c e are largely drawn from a statement of A greed F acts pursuant to s 191 of the E vidence A ct 1995 (NSW) which was relied on in the criminal proceedings relating to that offen c e. The A greed F acts describe that when the police observed the defendant on 12 June 2023 , they noticed that he was unsteady on his feet, gesturing with and raising his hands in an abnormal fashion, twitching and twisting his head, arms and eyes, not engaging with his surroundings or the police , had slurred speech and his eyes were rolling back in his head. P aramedics observed the defendant sitting with his head tilted back , with his arms raised in the air, and calling out “ H elp me! Help me! Please help me! My neck is going back. My head is going back ” . Upon arrival at M oree H ospital, the defendant was taken to and placed in the mental health room, which is a secure room o f f the main emergency room. The complainant, a 24-year-old female nurse , attended the defendant in the mental health room. Whilst taking the defendant's blood pressure , he started to rub his groin area. The complainant told the defendant to keep still. He continued rubbing his groin area. Once she remove d the blood pressure monitor from the defendant ’ s arm , h e then got up off the bed, pulled his pants down and exposed his penis. The defendant then grabbed the complainant from the back of her neck and hair and pulled her head down to his groin area. The defendant then said, “ H ey Miss why don ’ t you suck it ” . The complainant ’ s head was within 10 cm of the defendant ’ s exposed p enis. The complainant felt pain to the back of her neck, screamed and dropped to the floor causing the defendant ’ s grip to release. She pushed the defendant to the chest and ran from the room into the main emergency room. The complain ant was later observed by the police to be visibly upset, crying and shaking. The defendant was charged in relation to this conduct with an offence of intention al sexually touching without consent ( “ t he index offen c e ” ). On 30 August 2024 , Marien SC DCJ found the defendant unfit to be tried for the index offen c e and determined that he would not become fit within the following 12 months. Following a special hearing at the M oree District Court, Sutherland SC DCJ on 21 November 2024 found the defendant guilty of the index offen c e and nominated a limiting term of 18 months, backdated to commence on 12 June 2023 and expir e on 11 December 2024. Procedural history Prior to the expiration of the defendant ’ s limiting term, the plaintiff applied on 9 December 2024 for an extension order pursuant to s 121 ( 1 ) of the MHC I FP Act . Ye hia J made an interim order on 11 December 2024, extending the defendant ’ s status as a forensic patient for a period of 3 months: Att orney General for New South Wales v JS ( P reliminary ) [2024 ] NSWSC 1597. Final orders were made on 10 March 2025 by Rigg J, including an order extending the defendant ’ s status as a forensic patient for a period of 18 months: Attorney General for New South Wales v JS [ 2025] NSWSC 205. At the time Rigg J made the final orders, her Honour expressed the view that the defendant ’ s case may not be one where a lengthy extension order was necessary. On 21 August 2025 , t he defendant was transferred from the Metropolitan Remand and R eception Centre to T he Fo rensic H ospital , Malabar, in accordance with an order made by the M ental H ealth R eview Tribunal on 8 August 2025 for his transfer and detention. The defendant remains in custody at T he F orensic H ospital , Malabar. Legislative framework Section 72 of the MHCIFP A ct defines “ forensic patients ” : 72 Forensic patients (1) The following persons are forensic patients for the purposes of this Act — (a) a person who is found unfit to be tried for an offence and who is detained in a mental health facility, correctional centre, detention centre or other place, … The defendant became a forensic patient on 30 August 2024 when Mari e n SC DCJ found that he was unfit to be tried for the index offen c e. The effect of the limiting term imposed by Sutherland SC DCJ was to extend his status as a forensic patient until 11 December 2024, the expiry date of the limiting term. The effect of the extension orders made by Yehia and Rigg JJ is that the defendant retained his status as a forensic patient be yond the expiry of the limiting term. The parties accept that the defendant is a forensic patient for the purposes of the MHCIFP A ct. By s 121 (1) of the MHCIFP A ct, the C ourt is empowered to extend a person ’ s status as a forensic patient. Section 124 ( 1 ) provides that the M inister administering the MHCIFP A ct may make an application for an extension order where a forensic patient is already subject to a limiting term or an existing extension order. The defendant is encompassed by that section because he is the subject of the extension order made on 10 March 2025 for a period of 18 months. Section 122 provides the grounds for making an extension order and is in the following terms: 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. The test in s 122 requires satisfaction to a “ high degree of probability ” in respect of two limbs. The first requires demonstration to a high degree of probability that the defendant “ poses an unacceptable risk of causing serious harm to others i f the patient ceases to be a forensic patient ” . This involves consideration of, and a comparison with, the identified counterfactual: Lynn v State of New South Wales ( 2016 ) 91 NSWL R 636; [ 2016 ] NSWCA 57 at [126] (Basten JA) . The second requires demonstration to a high degree of probability that 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 M ental H ealth A ct 2007 ( NSW ) ( “ the Mental Health Act ” ) adequately manages the risk: Minister for Mental Health v Paciocco [2017] NSWSC 4 at [7] (Campbell J). In considering whether an order for an extension of the defendant ’ s forensic patient status should be made, regard must be had to the objects of Part 5 of the MHCIFP A ct set out in s 69 ( 1 ) as follows: 69 Objects (1) The objects of this Part are 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. The term “ serious harm ” is not defined in the MHCIFP A ct. It has been accepted that it includes physical or psychological harm, albeit conditioned by the requirement that the harm be “ serious ” : see A ttorney General of New South Wales v Kereopa (No 2) [2017] NSW SC 928 at [16 ] (RA Hulme J) . In terms of physical harm, it does not have to satisfy the threshold of “ grievous bodily harm ” but must be more than “ actual bodily harm ” . For psychological harm , i t must be more than emotions such as fear or panic. The term “ adequately managed ” is also not defined in the MHCIFP A ct. It has been held to m ea n “ that the unacceptable risk is mitigated by the proposed management regime so that the community ’ s interest in being kept s afe 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 ” : Att orney - General of NSW v McGuire (No 2) [2014] NSWSC 2 88 at [63] (Garling J ) . Section 124 (2)(b) provides that the application for an extension order may not be made more than 6 months before the expiry of an existing limiting term or existing extension order, as appropriate. It is accepted by the defendant that this requirement is satisfied. The application was commenced by the plaintiff by a S ummons filed 2 June 2026, which is fewer than 6 months before the expiry of the existing extension order. Accordingly, the application is compliant with the time stipulated by s 124 (2)(b). An application for an extension order requires supporting documentation as specified in s 125 of the MHCIFP A ct. That documentation must address each of the matters referred to in s 127 (2), to the extent relevant to the application, and must include a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the risk of the forensic patient causing serious harm to others , 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. I am satisfied that the affidavit material relied on by the plaintiff, namely the affidavit of Emma Bentley filed 2 June 2026, and the affidavit s of Sara Hakim f iled 6 July 2026 and 12 August 2026, together with th eir various annexures and exhibits, address these matters. The defendant did not contend otherwise. C onsequently, I am satisfied that the requirements of s 125 have been met. Other pre - hearing procedures relating to the making of , and dealing with , an application for an extension order are set out in s 126 of the MHCIFP A ct. They require the application to be conducted by the C ourt within 28 days after the application is filed, or within such further time as the C ourt may allow. Section 126 also provides that if following the preliminary hearing, the C ourt is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the C ourt must make orders for psychiatric, psychological and/or medical examinations of the forensic patient and the preparation of reports of the results of those examinations and directing the forensic patient to attend those examinations. On the other hand, if the C ourt is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the C ourt must dismiss the application. Section 130 provides that the C ourt may make an order for the interim extension of a person ’ s status as a forensic patient i f, in proceedings on an application for an extension order, it appears to the C ourt: that the limiting term or existing extension order to which the forensic patient is subject will expire before the proceedings are determined ; and that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. In deciding whether to make an extension order, the C ourt must have regard to the non-exhaustive list of matters which are set out in s 127 (2) . The relevant matters will be addressed below. T he safety of the community: s 127 (2)(a) There are a number of factors relevant to consideration of the safety of the community in the circumstances of the present case . Those factors are the defendan t ’ s criminal history, limited education , intellectual functioning, mental illness, willingness to engage and substance abuse. His criminal history records convictions as a juvenile in 2008 and 2009 in the Children ’ s Court and convictions as an adult from 2013 in the adult court system. His convictions as a juvenile include for breaking and entering, entering i nclosed land without lawful excuse, destroying or damaging property, assault occasioning actual bodily harm, common assault and resisting officer in the execution of duty. His convictions as an adult include for common assaults, assaults against police and other law enforcement officers, stalking or intimidating with intention to cause fear , custody of a knife in a public place, breaking and entering, larceny, destroying or damaging property, entering i nclosed lands without lawful excuse, contravening a prohibition or restriction in an apprehended violence order and possession of a prohibited drug. The defendant ’ s limited schooling has already been referred to above. He does not appear to have completed any educational courses whilst in custody. He has diagnosed intellectual disability. Clinical neuropsychologist Lucienne Barhon evaluated the defendant ’ s fitness to be tried in June 2024 . She assessed the defendant as having intellectual functioning in the “ extremely low range ” and observed that he scored in the “ extremely low to borderline range … across all four indices of verbal comprehension, working memory, processing speed and perceptual reasoning ” . He also performed in the extremely low range on tasks of new learning and memory. Ms Barhon concluded that his scores and history of poor adaptive functioning support a diagnosis of mild intellectual disability. The defendant has no history of paid employment. He has been on a disability support pension, on the basis of his schizophrenia diagnosis, since he was 18 years of age. He has limited family and social supports in the community and appears likely to have limited independent living skills. In a report dated 2 March 2026, forensic psychiatrist Dr Sathish Dayalan observed that the defendant had a psychotic illness characteri s ed by delusions, hallucinations and thought disorder. He also observed the defendant to present with negative symptoms such as social withdrawal, impaired motivation, blunted affect and poverty of thought content. Dr Dayalan stated that the defendant ’ s psychotic illness was complicated by poor insight, resulting in non - compliance with treatment , as well as by substance use disorder. He noted that the defendant ’ s acute psychosis appeared to increase his propensity to engage in violent and sexually disinhibited behavio u r. In a report dated 4 December 2024, forensic psychologist Patrick Sheehan recorded that the defendant ’ s history showed a clear pattern of at times rapid deterioration and re - arrest following release from custody. Mr Sh eehan noted th at th e defendant presents a high risk of committing further interpersonal violence and sexual offen c es and stated that both offen c e types we re closely linked with acute phases of his psychotic illness. Clinical forensic psychologist Dr Carol lyne Youssef , in her report dated 23 January 2025, stated that schizophrenia was not necessarily a direct cause of the defendant ’ s offending behavio u r, but noted that the limitations associated with the condition can create vulnerabilities for the defendant that may increase his risk of reoffending. She noted impaired judgment and impulse control as key fact or s often seen in individuals with schizophrenia due to their cognitive deficits. Dr Youssef stated that such impairments make it difficult for those individuals to make sound decisions and fully understand the consequences of actions and that as a result, they may engage in risky or inappropriate behavio u rs, including sexually inappropriate or aggressive actions, particularly if they have limited insight into their condition. Justice H ealth records provide some examples of the defendant ’ s irritable, aggressive and threatening behavio u r in custody. The defendant is recorded on 8 April 2026 as threaten ing to assault the nursing staff in T he F orensic H ospital and aggressively charging toward s st a ff. As a result of that conduct , he was placed in seclusion. He is also recorded as exhibiting a long-standing tendency to masturbate in the presence of female staff o r in open spaces . The records refer to the defendant exposing himself on multiple occasions to female corrections officers, making vulgar remarks and masturbating during assessments with female psychiatrist s and other professionals. Documents refer to the defendant ’ s lack of prior engagement. The plaintiff submits that the defendant has a history of non - compliance with medication and disengagement from treatment. He reportedly informed Dr Dayalan that he was opposed to receiving support under the N ational D isability I nsurance Scheme ( NDIS ) . Mr Sheehan record ed that the defendant at times had been ambivalent about receiving medical care and resistant to coordination of services or inclusion in NDIS services . He note d that without such engagement , the defendant ’ s prognosis remained poor. However, references in documents produced by J ustice H ealth suggest that there m ay have been a recent change in the defendant ’ s attitude to engagement and in particular a change in his attitude towards accepting NDIS support. A J ustice Health document dated 21 August 2025 refer s to the defendant “ making progress with ” N DIS in relation to housing. The defendant ’ s counsel submitted that given the defendant ’ s mental health issues and intellectual disability , h is past lack of insight and lack of engagement with support services should not be held against him. C ounsel for the defendant also submitted that t he defendant was showing increasing insight and engagement in relation to his need to accept support services in the future. In relation to substance use, the defendant is recorded as commencing use of cannabis at the age of 12, alcohol as a teenager and methylamphetamine at the age of 15. The material also refer s to the defendant occasionally using MDMA, cocaine and o xy c ontin. Documents refer to an initial, though incomplete, attempt at drug rehabilitation as a teenager. The re do not appear to have be en any attempts at engaging with drug rehabilitation since then . The defendant is reported to have told Ms Barh on during the assessment in June 2024 that he had no interest in reducing or ceasing his drug use and intended to return to substance use u pon his return to the community. Counsel for the defendant submitted that the defendant did not wish to minimi s e his criminal history or the seriousness of the index offen c e but submitted that his recent stabili s ation and his recent improvement in insight and willingness to engage would be relied upon at the final hearing to support an argument that he does not pose an unacceptable risk of serious harm to members of the community. T he report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under s 125(b): s 127(2)(c) Forensic psychiatrist Dr Dayala n provided a risk assessment report dated 2 March 2026. Because the defendant did not agree to participate in Dr Dayalan ’ s risk assessment, the assessment was conducted by document review . However, the defendant had participated in an earlier risk assessment by Dr Dayalan , and was then personally assessed leading to the preparation of a report dated 23 January 2025 . Dr Dayalan noted that there were limitations in providing the present risk assessment because it wa s completed by w ay of document review, particularly because the records provided on ly limited information on the defendant ’ s presentation o ver the prior six-month period. Dr D ayalan expressed the opinion that the defendant met the diagnostic criteria for schizophrenia, substance use disorder and probable mild intellectual disability and that he has a psychotic illness characteri s ed by delusions, hallucinations and thought disorder. He noted that the defendant presented with negative symptoms such as social withdrawal, impaired motivation, blunted affect and poverty of thought content and stated th at the defendant ’ s psychotic illness was complicated by poor insight, non - compliance with treatment and substance use disorder. Dr Da yalan was of the view that the defendant ’ s acute psychosis appeared to increase his propensity to engage in violent and sexually disinhibited behaviour . R isk assessment instruments Historical Clinical Risk Management – 20 , Version 3 , STATIC 99-R and STABLE 2007 were deployed by Dr D ayalan . Those instruments resulted in him assessing the defendant as having a high loading of historical risk factors, a low to moderate loading of clinical risk factors , but a lo w loading of risk management variables if he were to remain in T he F orensic H ospital for the next 6 months. The defendant ’ s scores placed him at a well above average risk of sexual offending and resulted in Dr D ayalan assessing him as presenting with a high level of stable dynamic risk and needs. In Dr Da yalan ’ s opinion, the defendant has a high loading of static risks for violence and sexual offending which indicate s that his long-term risk of violence and sexual recidivism was elevated. He also considered that the defendant ’ s dynamic risk factors would increase in the absence of assertive treatment and rehabilitation and a lack of stable accommodation. In light of the defendant ’ s chronic mental illness, attitude towards treatment, extensive substance use issues and intellectual impairment, Dr Dayalan was of the opinion that any interventions to address the dynamic risk factors would need to be provided for “ an extended period of time ” and that the defendant is “ unlikely to engage in the interventions on a voluntary basis ” . Dr D ayalan considered that the placement in a secure psychiatric facility and graded transition into the community will assist with cont aining and eventually reducing the dynamic risk factors. Ultimately , Dr Dayalan was of the opinion that the defendant poses a risk of serious harm to others if he ceases to be a forensic patient, that the nature of the harm to others includes physical and sexual harm, and that the risk cannot be adequately managed by other less restrictive means. In the best case scenario, in Dr Da yalan ’ s view, the defendant would transition through T he F orensic H ospital and a medium secure facility in the next 3 to 4 years before his release to the community. He considered the defendant would need at least 12 months of ongoing care as a forensic patient in the community and recommend ed that his status as a forensic patient be extended for 4 years . Dr Dayalan did, however, consider that his transition to the community may take longer. Counsel for the defendant submitted that it was significant that Dr Dayala n ’ s assessment was conducted without interviewing the defendant and that the report should be read with limitations because it was b ased only on document review. The defendant ’ s counsel also pointed to parts of Dr Da yala n ’ s report where he stated that if the defendant ’ s forensic patient status was not extended , he would most likely continue t o remain at T he F orensic H ospital as an involuntary patient under the M ental H ealth A ct , likely without any significant differences in the treatment received. The defendant also noted that Dr Da yalan did not refer to any clinical or progress notes from 2026 in relation to the improving insight and willingness to engage demonstrated recently by the defendant. Any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient: s 127 (2)(d) The plaintiff relied on various reports from psychiatrist s , psychologist s and others prepared for previous extension order proceedings. The p laintiff submitted that those reports were largely consistent in their assessments of the defendant, including with respect to his diagnosis, the effects of his mental illness, resistance to treatment, h is limited insight and the risk he poses to others. Counsel for the defendant indicated that the defendant did not wish to make submissions regarding reports prepared for the previous extension order proceedings, except to note their age and loss of relevance in light of recent changes in the defendant ’ s treatment and circumstances. In a report dated 23 January 2025, Dr Y oussef reported her use of risk assessment instruments and acknowledged the limitations of those instruments includ ing that it was not scientifically possible to accurately predict whether a specific offender will or will not reo ffend. Dr Y oussef used the H istorical C linical and R isk A ssessment – 20, V ersion 3, STATIC 99 - R , STABLE 2007, R isk o f S exual V iolence P rotocol – V ersion 2, V iolence R isk A ppraisal G uide – R evised , and S tructured A ssessment of P rotective F actors for V iolence Risk – S exual O ffen c e V ersion a ssessment t ools. Dr Youssef summarised the results of those tools as having establish ed th at th e defendant ha s a high loading of historical risk factors, a high loading of clinical risk factors and a high loading of risk management factors. The defendant was placed at a well above average risk of sexual offending relative to other male sexual offenders. He was assessed as presenting with a high level of stable dynamic risks and needs , with a high density of risk factors relevant to sexual offending. His score placed him in the highest of n ine “ risk bin ” categories to predict violent recidivism and he was determined to have little, if any, current protective factors, aside from those that exist as a result of his present incarceration. Dr Y oussef recommended repeated risk assessments every 6 to 12 months to ensure accuracy. She concluded that the defendant “ does present a risk of harm to others that has the potential to be serious if he ceased to be a forensic patient and is not subject to any other protective measures ” . Dr Youssef stated that if the defendant remains subject to a forensic patient order, this would help mitigate some of the identified risks and suggested that a placement in T he F orensic H ospital or a similar facility may be the most suitable option for the foreseeable future. A ny order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application : s 127(2)(e) The defendant was most recently reviewed by the T ribunal on 26 February 2026. On that occasion , the T ribunal concluded that the defendant remained unfit to be tried and ordered that he continue to be detained at T he F orensic H ospital. The T ribunal stated that there were reasonable grounds to believe that care, treatment and control was necessary for the defendant ’ s own protection from serious harm or the protection of others from serious harm and th at without his detention and treatment t he defendant ’ s condition was likely to deteriorate. The T ribunal ordered that the defendant next be reviewed within 6 months. The defendant submitted that the psychiatric report dated 12 February 2026, prepared by Dr F ei Xue Jin and Dr Alexander Leroux , submitted to the T ribunal , was significant. That report note d that since the defendant ’ s admission to T he F orensic H ospital , there had been an “ overarching stability of his mental state ” , that he was “ relatively stable ” , had “ limited episodes of emotional l ability ” , a “ limited number of episodes of agitation ” and was “ reported to be more engaging and less irritable ” . The defendant also relied on the report noting that the defendant had engaged in questions concerning his discharge. The report also include d a note that any future risk problems could be adequately managed “ i n a less secure setting specifically a medium secure unit, noting h e accepts medical and nursing advice and receives stable support from his family ” , but noted that the defendant required further psychoeducation and insight building considering his limited insight and reluctance to conform with medication. Counsel for the defendant indicated that at the final hearing , he would take issue with aspects of the T ribunal ’ s reasoning in response to that report. Any report of the Secretary of the Ministry of H ealth, the Commissioner of C orrective Services, the Secretary of the Department of C ommunities and J ustice or any other government D epartment or agency responsible for the detention, care or treatment of the forensic patient: s 127 (2)(f) The evidence includes a number of reports authored by office r s of J ustice H ealth and F orensic M ental H ealth N etwork, the Department of C orrective S ervices and o thers . The reports are largely consistent in relation to their assessments of the defendant. Amongst those reports is the report by Dr Jin and Dr Leroux dated 12 February 2026, referred to above in relation to the defendant ’ s submissions. The plaintiff relied on aspects of that report in which the authors express ed the opinion that the safety of the defendant and the public may be seriously endangered i f he were released at this point in time and that the placement with a high secure forensic facility remain s the least restrictive form of safe and effective care for the defendant. The defendant did not make any further submissions in relation to the reports authored on behalf of various government agencies or departments. The level of the forensic patient’s compliance with any obligations to which the patient is or has been subject while a forensic patient: s 127 (2)(g) Although the defendant has a history of poor compliance with obligations, there are recent indications in the documents that h i s insi ght , willingness to engage and compliance have improved. Mr Sheehan recorded in his 4 December 2024 report that J ustice H ealth records of 22 November 2024 n ote d that the defendant at times refused his medication. Dr D ayalan in his 2 March 2026 report referred to notes in the Justice Health record indicating th at th e defendant was not adhering to his prescribed medication i n 2021 . Dr Sue Morgan s in her report dated 17 January 2022 recorded that the defendant was admitted to Banksia M ental H ealth U nit in November 2013 after breaching his community treatment order and that whilst in that unit h e committed a common assault. Dr Daya la n in the 23 January 2025 report observed that the defendant has been the subject of community treatment orders in the past and that they ha ve not been particularly effective in managing him. In Dr Y oussef ’ s report dated 23 January 2025, she observed that the defendant has a history of non - compliance with community treatment orders and that the conditions of those orders were inadequate to manage his risks. She noted that a community treatment order required the patient to accept treatment, care and management provided by mental health services in the community. Although the defendant pointed to a demonstrated improvement in compliance, insight and engagement over the past 6 months, he reserve d the right to rely on that issue and further evidence in relation to compliance and progress at the final hearing. 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) The transcript s of the proceedings before Sutherland SC DCJ on 21 November 2024 do not indicate any particular views expressed by the C ourt prior to being satisfied, on the limited evidence available, that the defendant committed the offen c e as charged. Similarly, the transcript s of the proceedings before Sutherland SC DCJ in deciding on the limiting term do not indicate any views of the C ourt other than noting that the defendant had been found u nfit to stand trial and that the medical reports tended on the sentence proceedings were relevant to establish reduced moral culpability. In the transcript s of the remarks on sentence , Sutherland SC DCJ noted that the index offen c e was such that there was “ no doubt ” that if the matter had proceeded to trial at law, a sentence of imprisonment would have been imposed . In the judgment of 10 March 2025 extending the defendant ’ s forensic patient status, Rigg J engaged in a detailed analysis of the contents of the expert ’ s reports, including Dr Da yalan, Dr Youssef, Mr Sheehan and others. Her Honour found on the basis of the material that she was persuaded to a high degree of probability that there was an unacceptable risk of harm . H er Honour also noted that it was important to take into account that when the defendant was released on 8 June 2023 , i t was into a “ high risk ” situation at a time whe n he was drug - affected with escalated psychiatric symptoms and was found 4 days later to engage in con cerning behavio u r which led to the commission of the index offen c e. Her Honour found that there was no positive difference at the time of the judgment. In all of the circumstances , Rigg J was satisfied that no less restrictive means were available for addressing the serious risk of harm posed by the defendant at that time and extended the defendant ’ s status as a forensic patient for a period of 18 months. However, as previously noted, Rig g J was of the view that the defendant ’ s case may not call for a lengthy extension order . H er Honour commented at [76]: “ The defendant's past conduct does not… suggest that this needs to be a case of long or ongoing restrictions on his liberty. I am impressed by Mr Sheehan’s outline of the alternative methods that could feasibly be put in place to manage risk, but which cannot now possibly be put in place prior to the expiry of the defendant’s current status as a forensic patient… It is hoped that planning will commence immediately (or continue) for the defendant ’s release at a suitable time into the community with as much support as possible, and with the viability of less restrictive means than another extension order explored. Success in implementing such a structure could even warrant the Tribunal’s recommendation for revocation of the extension now ordered. ” The outline of alternative methods described by Mr Sheehan, to which Rigg J was referring, was a combination of a f orensic c ommunity t reatment o rd er , a guardianship order, and a comprehensive N DIS plan with a behaviour support practitioner. This C ourt shares R i g g J ’ s hope that planning should continue to ensure that, when ultimately released to the community, the defendant has in place appropriate community supports, including those outlined by Mr Sheehan. It is regrettable that the evidence appears to establish that the planning to which R i g g J referred has either not occurred or not been sufficiently progress ed since the judgment of 10 March 2025. I n light of the defendant ’ s long-standing mental health issues, which were largely undiagnosed d uring his childhood and adolescence, his eventual release require s sufficient forward planning so that his transition to the community can be progressed with his and the community ’ s safety in mind. To do otherwise would simply be setting the defendant up to f ail , largely because he requires extensive support in the community to ensure his smooth transition and guard against the commission of further offen c es. The C ourt notes that the defendant has submitted that further evidence and submissions regarding the status of release planning will be prepared for the final hearing. The extension order should be made I have already found that the matters in ss 123 to 126 of the MHCIFP A ct are satisfied. As noted above, the defendant did not submit that any of the preconditions to the making of the order had not been established. Having regard to the matters under s 127 ( 2 ) referred to above, I am satisfied that the evidence supports, to a high degree of probability, that the defendant poses an unacceptable risk of causing serious harm to others i f he ceases to be a forensic patient. Further , I am satisfied to a high degree of probability that that risk cannot be adequately managed a t present by other less restrictive means. Accordingly, I am satisfied that the terms of s 122 ( 1 ) of the MHCIF P Act are met . In arriving at that conclusion, and those states of satisfaction, I am particularly mindful of the following matters. First, the defendant has a lengthy criminal history, involving some violent offending, possession of a knife in a public place and sexual offending. On the basis of that criminal history , the defendant is capable of behaviour that could have grave consequences both for himself and for others if repeated. However, the index offen c e, although serious, is far from the most serious form of violen t or sexual ofending . Of course, I accept the seriousness of that offen c e in the context of the defendant ’ s propensity to engage in sexually inappropriate conduct in public and that the index offending had a traumatic impact on the complainant. However, the numerous reports before the C ourt establish that the defendant ’ s history of inappropriate sexuali s ed behaviour is associated with his mental health. His previous acts of masturbation in public do not rise to the level of “ serious harm ” , though the ir existence is a matter which is informative of risk. The risk assessments undertaken by Dr Da yalan and Dr Y ousse f, together with the other assessments and reports authored by psychiatrists, psychologists and others, demonstrate to the high degree of probability required that the defendant poses an unacceptable risk of causing serious harm to others i f he ceases to be a forensic patient . H e has been assessed as being in the high risk category for general offending and his overall risk of violence is within the high range. The d efendant ’ s risk of sexual reoffending places him in the well above average category. Secondly, it is relevant to the assessment of risk that when the defendant was last released to the community in June 2023, without a community treatment order, stable accommodation or other appropriate support systems in place, he committed the index offending within 4 days of his release. Thirdly, I am satisfied that the matters referred to in the various expe rt reports establish that no less restrictive alternative s are presently available to manage the defendant ’ s risk. In particular , I note Dr Y oussef was of the opinion that the defendant ’ s ongoing treatment needs, mental health condition, past adherence to interventions, time spent in the community, motivation, insights and the risk he presents, when considered together , l ead to the conclu sion that an order extending his status a s a forensic patient is the least restrictive option for his management. On the basis of Dr Y ousse f ’ s opinion, and the corresponding opinions of the other experts, I am satisfied to a high degree of probability that the defendant ’ s risk cannot presently be adequately managed by other less restrictive means. I again note my agreement with the views of Rigg J that a structured management regime, as recommended by Mr Sheehan, will be necessary in order for any less restrictive means to adequately manage the risk. It is regrettable that such a regime has not been progressed to date. I accept the submission made by counsel for the defendant that, notwithstanding the defendant ’ s lack of opposition to the making of an order, the C ourt still needs to be independently satisfied to a high degree of probability of each of the limbs in s 122 (1) . I also note that the defendant has reserved his position to be heard further and to file further evidence and submissions at any final hearing. I am independently satisfied to the high degree of probability necessary that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. That risk is that the defendant has a propensity to cease taking medication a nd whilst unmedicated , has a propensity to engage in random and unprovoked acts of violence and sexual conduct directed at others. Outside the present restrictive environment arising from his status as a forensic patient, the defendant poses an unacceptable risk of causing th at type of serious harm to others. In addition, I am independently satisfied to a high degree of probability that that risk cannot be adequately managed at present by less restrictive means. I agree with the submission made by counsel for the defendant that, in order to appropriately progress planning for an appropriate management regime, the defendant requires assessment by a neuropsychologist. The purposes of such an assessment would be to confirm the existence and extent of the defendant ’ s intellectual disability, to address the origin of such an impairment and to assist the defendant ’ s functional capacity for the purpose of establishing his viab le management in the community, including in the context of NDIS supported independent living. I also accept that the defendant requires assessment by a forensic psychiatrist for the purpose of confirming his mental health diagnoses, addressing medication and treatment planning, addressing whether his risk can be adequately managed by a clinical regime in the community and to assist the defendant ’ s functional capacity to establish the viability of management in the community. Orders Accordingly, for the above reasons, I make t he following orders: Two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) are to be appointed to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; The defendant is directed to attend those examinations; The defendant is subject to an interim order for the extension of his status as a forensic patient commencing upon the expiry of his current extension order on 9 September 2026, for a period of three months thereafter; 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 the opportunity to be heard in relation to the application for access; and The Registrar of the Court is to notify the Mental Health Review Tribunal of the making of the extension order. I recommend that the persons appointed pursuant to Order (1) above should be a neuropsychologist and a forensic psychiatrist . ********** Amendments 28 August 2026 - Amended formatting in legislative extracts. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2026