Attorney-General v Van Hassell [2017] QSC 315

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Van Hassell [2017] QSC 315 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Applicant) v PATRICK VAN HASSELL (Respondent) FILE NO/S: BS No 2468 of 2011 DIVISION: Trial Division PROCEEDING: Application DELIVERED ON: 15 December 2017 DELIVERED AT: Brisbane HEARING DATE: 23 October 2017, 1 and 27 November 2017 and 15 December 2017 JUDGE: Bowskill J ORDER: 1. Adjourn the further hearing of the application for review of the continuing detention order to 5 February 2018. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – application for review of a continuing detention order under s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 COUNSEL: J Rolls for the applicant C Reid for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent [1] The respondent was convicted in October 2006 of, among other things, two counts of rape of a 15 year old girl, a stranger to him, under a bridge in Surfers Paradise. He was sentenced to eight years’ imprisonment for the rapes. On 28 November 2011 then Chief Justice de Jersey ordered that the respondent be released, subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003. The respondent has a history of long-standing and serious psychiatric illness. At the time of the November 2011 order he was in fact already an inpatient at The Park High Security Inpatient Service, having been transferred there from prison on 31 October 2011 because he was -- 1 of 10 -- 2 psychiatrically unwell. He remained there for almost a year, transitioning in August 2012 to the medium secure unit, following which, in October 2012, he was discharged to the Wacol Housing Precinct, in accordance with the November 2011 orders.1 [2] Whilst he was at The Park, he was charged with unlawful assault of a female staff member, on 28 November 2011. He pleaded guilty to that charge in December 2012, was convicted and sentenced. That conviction breached the supervision order imposed in November 2011.2 [3] That contravention was dealt with by A Lyons J in February 2015, at which time her Honour rescinded the supervision order, and ordered that the respondent be detained in custody for indefinite control, care and treatment. The events that led up to this are outlined in her Honour’s decision, commencing at [14]. Relevantly: (a) after his release to the precinct in October 2012, difficulties arose in relation to the requirement that he submit to an electronic monitoring device, resulting in the respondent contacting Queensland Corrective Services staff at the end of January 2013 asking for it to be removed so he could return to prison; (b) an arrest warrant was issued at that time, alleging he was likely to contravene the supervision order; (c) an interim detention order was made by this court in February 2013; (d) in June 2013 an amended application was filed, alleging he was likely to contravene the supervision order and had contravened it, as a result of his conviction of the assault on the staff member at The Park; (e) since the filing of that application, the respondent had been housed, when well, at the Wolston Correctional Centre or, when he deteriorated psychiatrically, at The Park Centre for Mental Health; (f) the proceedings were adjourned numerous times, due to the respondent becoming too unwell to instruct his legal representatives; (g) in October 2014 a guardianship order was made in QCAT appointing the Public Guardian to make decisions on the respondent’s behalf in relation to various matters; (h) at the time of Lyons J’s decision, the respondent was awaiting transfer to The Park, as he was then presenting with symptoms of an act of psychosis. [4] Justice A Lyons was satisfied the respondent had breached his supervision order (at [49]) and, further, satisfied that he was then acutely unwell and awaiting transfer to the High Secure Inpatient Service at The Park Centre for Mental Health so that he could undergo prolonged treatment and rehabilitation. Her Honour found that “[t]he evidence currently indicates that the respondent would be a high risk of further sexual violence if he were to 1 See the decision of A Lyons J in Attorney-General for the State of Queensland v Van Hassell [2015] QSC 39 at [2]-[6]. 2 Ibid at [7]. -- 2 of 10 -- 3 be released into the community without a supervision order. The overwhelming evidence is that the respondent is too acutely unwell to be released on a supervision order, as the current evidence indicates that he currently has psychotic processes present and it is unlikely that the respondent would be able to comply with a supervision order in those circumstances” (at [50]). Her Honour was therefore satisfied the supervision order made in November 2011 should be rescinded and that the respondent should be detained in custody for indefinite control, care and treatment. [5] Her Honour added the following comments at the end of her reasons, which it is appropriate to draw attention to, given the manner in which this review hearing has proceeded: “[52] The facts of this case indicate that the respondent was due for release on a supervision order over three years ago. Because of the unstable nature of his mental illness, he has in fact only been in the community for a period of three months in those three years. He spent ten months in the High Secure unit at the Park in an effort to stabilise his mental condition before he was moved to a medium secure unit for a few months prior to his release to the Wacol Precinct. As the psychiatrists have made manifestly clear the move to the Wacol Precinct was inappropriate given the level of support the respondent required in the community from mental health services at that point in time. QCS officers clearly cannot provide that type of support and the Wacol precinct is not supported accommodation but rather monitored accommodation. Given that inappropriate accommodation, the respondent deteriorated within a short space of time and was returned to custody in January 2013 when he became acutely unwell and breached his supervision order. [53] Since his return to custody, the respondent has, according to the psychiatrists, been more or less frankly psychotic during that entire period. It is also clear that during that period the respondent has not been able to receive optimal involuntary mental health treatment under an ITO, as he cannot receive involuntary treatment in a custodial setting. He is now acutely unwell and self-harming. A recommendation was made for his transfer to an authorised mental health service by his treating psychiatrist from the Prison Mental Health Service on 2 December 2014 which is now almost three months ago. That recommendation has not been able to be actioned due to a chronic bed shortage. [54] I share the concerns of the psychiatrists who gave evidence in this case that the respondent is acutely unwell and his treatment needs are not being met. I also note the effect these proceedings have on his mental condition. [55] I commend the careful and thorough assessments of the respondent’s treating psychiatrist Dr Tie at the Prison Mental Health Service and the reporting psychiatrists Dr Beech and Dr Grant and would endorse the recommendations they have made as to how this matter can be better -- 3 of 10 -- 4 managed into the future, particularly in relation to his long term rehabilitation and proposed treatment in a community setting. In particular, I note the recommendation of the need for an interdepartmental committee to progress those issues in advance of the next scheduled annual review.” [6] The order made by A Lyons J on 25 February 2015 was affirmed by P Lyons J on 12 September 2016. [7] The Attorney-General now applies, under s 27(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003, for the requisite review of that continuing detention order.3 [8] In submissions filed on his behalf, the respondent accepts that the psychiatric evidence would satisfy the court that the respondent remains a serious danger to the community in the absence of a division 3 order. That is an appropriate concession to have made, having regard to the reports of Dr Jane Phillips and Dr Scott Harden, prepared for this review under s 29 of the Act. [9] In short, Dr Phillips expresses the opinion that the respondent’s risk of future sexual re- offending falls in the high range, if released from custody without a supervision order.4 His risk of future physical violence also falls in the high range and he is more likely to be physically violent than sexually violent. Dr Harden, who describes the respondent’s psychiatric condition as “extremely fragile”, expresses the opinion that the respondent is in the moderate to high range of risk for sexual re-offending.5 [10] It is therefore appropriate to affirm the decision first made on 28 November 2011 that the respondent is a serious danger to the community in the absence of an order pursuant to division 3 of the Act. [11] The real issue on this review has been whether, in the exercise of the court’s discretion under s 30(3) of the Act, the respondent ought to continue to be subject to the continuing detention order or be released from custody subject to a supervision order. [12] The evidence from the psychiatrists, perhaps most clearly in the report of Dr Jane Phillips, is that any such supervision order must involve a comprehensive, multi-agency risk management plan, to facilitate the respondent’s release from custody, to The Park Mental Health facility, so that he can receive appropriate treatment for his psychiatric condition, including moving in stages, if and when appropriate, from high secure, to lower secure, then ultimately into supported accommodation in the community. [13] Neither Dr Phillips nor Dr Harden express the view that the respondent should simply remain in custody under an indefinite continuing detention order. In fact, on the contrary, the evidence is that whilst in custody there are limitations on the treatment that the respondent can appropriately receive. He is a person with serious mental health issues; who has become institutionalised; he needs substantial support, including psychiatric medical support; but with the right help and support there is a prospect that he can 3 Application filed 21 August 2017. 4 Report of Dr Jane Phillips dated 21 August 2017, exhibit JHP-2 to her affidavit filed 6 September 2017, at p 20 of the exhibits. 5 Report of Dr Scott Harden dated 27 August 2017, exhibit SH-2 to his affidavit filed 4 September 2017, at pp 25 and 26 of the exhibits. -- 4 of 10 -- 5 gradually re-enter the community, albeit with supervision. However, he cannot be released directly into the community, even in supported accommodation. [14] As Dr Phillips says: “• It is my opinion, given the fragility of Mr Van Hassell’s illness and his level of institutionalisation, that attempts to manage him in the community (including at The Wacol Precinct) direct from prison are unlikely to be successful. In my opinion, it is likely that Mr Van Hassell’s mental state would deteriorate if he were to be released direct from prison to the community, which would result in an escalation of risk of physical and sexual violence. • It is my opinion that in order for Mr Van Hassell to be managed safely in the community, he will require a slow, graduated transition from a secure setting to supported accommodation. • Ideally Mr Van Hassell would have a period of management in the acute unit of the HSIS; followed by management in a secure mental health rehabilitation setting, for example, a rehabilitation unit at HSIS; a Secure Mental Health Rehabilitation Unit (SMHRU); or the Extended Forensic Rehabilitation Unit (EFTRU). Ideally from the secure mental health rehabilitation setting, he would then have a graduated transition to supported accommodation.”6 [15] Dr Harden observed, in his August 2017 report, that “[g]iven his improved stability in recent months there seems to be more hope that a transition plan involving psychological mental health and corrections support might be put in place to transition him to an appropriately supportive placement in the community”.7 [16] Ms Cowie, the Acting Manager of the High Risk Offender Management Unit, says in her affidavit filed on 17 October 2017: “44. The respondent did not have a successful transition to the Wacol Precinct direct from The Park on his previous admission. Community Mental Health support was limited and the respondent was unable to function independently in the community. He subsequently became mentally unwell soon after release to the precinct. 45. The 2012 experience suggests that the respondent requires significant mental health support and release to the community should be in a gradual, staged manner as described by the court appointed psychiatrists. Ongoing stakeholder meetings between HSIS, Community Mental Health, QCS, OPG and external treatment providers will be essential to this transitional arrangement so that the respondent is not transitioned into the community too quickly and thus cause a similar negative outcome for the respondent as occurred on his previous release.” 6 Footnote omitted. See p 21 of the exhibits to Dr Phillips’ affidavit. 7 See Dr Harden’s report, at p 25 of the exhibits. -- 5 of 10 -- 6 [17] However, an obstacle to implementation of the plan proposed by Dr Phillips emerged, following a meeting of “stakeholders”, including representatives of Corrective Services, the director of Prison Mental Health, Legal Aid and the Clinical Director of The Park High Security Inpatient Service, Dr Angela Voita. In a letter dated 7 August 2017 from Dr Voita to Ms Cowie, sent prior to the meeting, Dr Voita seemed to be indicating that, as a condition of the respondent being permitted to be admitted to The Park High Security Program, level 3 supported accommodation in the community would have to be sourced by QCS and/or the Public Guardian, prior to his admission, so that The Park could be sure that he had somewhere to be transitioned to, once he is ready – or as Dr Voita put it at the meeting, according to the minutes, “so that a transition pathway out of HSIS exists”.8 [18] There are outlined in Ms Cowie’s affidavit filed in October 2017 the efforts which were made to comply with this “condition”. There was, however, no appropriate supported accommodation place available for the respondent. I accept, in any event, the practical and logistical difficulty of securing such a place, a scarce resource, for the respondent, before it is known when he may be able to take it up. [19] Dr Voita was called to give evidence on this review, when it first came on for hearing on 23 October 2017. She accepted that it would be reasonable, given the fragile nature of the respondent’s psychiatric illness and “previous decompensations when he’s been released into the community”, for there to be a transition through The Park’s High Secure unit (T 1-9) and that he needs a graduated transition from there. But, as Dr Voita observed, high secure is not an end point, nor does she wish it to be an “indefinite place where he goes”. Dr Voita’s concern, as it was articulated at the hearing, was that she did not want the facility of which she is the clinical director to be left with the responsibility for finding a place for the respondent to be transitioned to, when the appropriate time comes. As she said “I’m happy for high secure to be involved in the transition but there needs to be a … discharge destination in order to … oversee his mental health care” (T 1-16). But as she also acknowledged, she cannot say how long the respondent will need to be in the High Secure unit – it may be a short time, but it may be a longer time. Nor can she now say where, or in what time frame, he may be appropriately transitioned to from there. In this regard, Dr Voita explained that, within the High Security Inpatient Unit there is an “acute” facility and a rehabilitation unit; then there is a longer term rehabilitation unit called the Extended Forensic Treatment Rehabilitation Unit and there is also a medium security unit called the Secure Mental Health Rehabilitation Unit. But as Dr Voita is not the director of either of those, she could not say whether the respondent may be accepted into either of those, as part of the pathway from High Secure. That would be a matter for the decision-makers responsible for those facilities. [20] Dr Voita confirmed there is no clinical reason why level 3 supported accommodation would need to be secured before the respondent’s admission to the High Secure facility; but there was an “administrative” reason – so that her facility is not left to look for that when the time comes (1-21). She also accepted that there are practical difficulties with trying to have a place in appropriate level 3 supported accommodation secured for the respondent, prior to his release to High Secure, given that it cannot now be known exactly when it will be needed, or taken up (T 1-12). 8 See exhibits CC-1 (Dr Voita’s letter) and CC-2 (the minutes of the meeting) to Ms Cowie’s affidavit. -- 6 of 10 -- 7 [21] My question to Dr Voita was, accepting that there are a variety of potential options, with different assessment processes along the way, and decision-makers, why shouldn’t those processes be undertaken? If everyone is in agreement that the first port of call for the respondent is the High Secure facility, accepting that there will subsequently be assessments and analyses about where he goes when he is ready to leave there, why shouldn’t those processes be gone through, rather than stopping it before it starts because a step far down the path, which is supported accommodation, cannot be set in stone now. Dr Voita’s concern was that she cannot guarantee a particular pathway. But once it was pointed out to Dr Voita that she was not being asked to guarantee anything; and that she, as clinical director of the High Secure facility would not be the only person with responsibility for finding suitable place(s) for the respondent, as he transitions – that responsibility would also remain with Corrective Services and, indeed, the Public Guardian – Dr Voita ultimately indicated that she would be agreeable to working with Corrective Services in relation to transitioning the respondent through the High Secure unit without the need for supported accommodation to be sourced first. [22] I note that Dr Jonathan Mann, who is the director Clinical Director of Forensic and Secure Services at The Park Centre for Mental Health also gave evidence, but essentially, although describing himself as the line manager of Dr Voita, indicated that decisions in relation to the High Secure unit were a matter for her, as the clinical director of it. [23] Following the cooperative indication from Dr Voita, at the end of her evidence on 23 October 2017, the review hearing was adjourned, so that the applicant could provide a draft proposed supervision order to Dr Voita for her consideration and input. [24] The review was adjourned until 1 November 2017, in the expectation that the applicant would be in a position to provide a proposed supervision order to the court, incorporating Dr Voita’s input. [25] A proposed draft order was duly provided to Dr Voita.9 However, on 31 October 2017, the day before the next date for hearing, legal counsel for the West Moreton Hospital and Health Service wrote a lengthy letter to Crown Law,10 advising that the Health Service would not consent to the proposed supervision orders being made, because the order purported to bind a third party (namely, the Health Service) and because “the Health Service is no longer prepared to admit Mr Van Hassell to The Park because the proposed transition program takes a HSIS bed from a current consumer with an acute clinical need, and is otherwise impractical”. Essentially, in this letter, the initial position taken by Dr Voita was reverted to. [26] The lawyers for the Health Service had apparently not been aware of the evidence given by Dr Voita on 23 October 2017. Given the inconsistency between Dr Voita’s evidence, as it ultimately was, at the hearing on 23 October 2017, and this letter, I directed that the transcript of the 23 October hearing be provided to the Health Service, and the matter was further adjourned, to 27 November 2017. [27] By the time the matter came back on for hearing on 27 November 2017 Dr John Reilly, the Chief Psychiatrist, had become involved, and had reviewed the relevant material, including the transcript from 23 October 2017. The court was advised Dr Reilly had 9 See exhibit 2, tendered on 1 November 2017. 10 See exhibit 1, tendered on 1 November 2017. -- 7 of 10 -- 8 developed a proposal to advance the matter, and a further adjournment was being sought in order to carry out the necessary investigations and assessments to put that into place. In the circumstances, I required Dr Reilly to give evidence about his proposal. [28] Dr Reilly expressed the view that the respondent’s “rehabilitation needs can likely be safely met within a secure mental health rehabilitation unit setting”, which he said appeared to be the most appropriate level and the least restrictive level of care, as opposed to a high secure inpatient service (T 2-5). Noting that this appeared to be a different view to that which seemed to have been accepted (including by Dr Voita) at the previous hearing (that the first step for the respondent was admission to the High Secure unit), I asked Dr Reilly further about this, and he confirmed that based upon his reading of the available (medical) notes and reports, the respondent “doesn’t actually require that level of intensity of high secure inpatient service” (T 2-8). [29] The difficulty that Dr Reilly identified is that “it’s not a standard transition from either a prison mental health service or from the high secure inpatient service directly to a secure mental health rehabilitation unit”, which had resulted in there being “blockages to being able to make a smooth transition” in the respondent’s case (T 2-5). [30] A further difficulty Dr Reilly identified is that the health system is based on (geographical) areas, with the result that patients are usually linked with a particular authorised mental health service, which takes responsibility for meeting their ongoing treatment needs, both in terms of inpatient treatment and treatment in the community. The respondent does not presently fit into a particular health service area, and that had been causing difficulties in negotiating a transitional plan for him (T 2-6). [31] Dr Reilly’s proposal was that investigations be undertaken to identify a bed in a secure mental health rehabilitation unit for the respondent, noting that they are a scarce resource. Depending on which area that was located in, that would inform the appropriate transition path for the respondent to follow. He could not then say how long it may take for a bed to become available, and so indicated there may also need to be consideration given to transitional steps if it looked like taking a long time (T 2-7). [32] Dr Reilly undertook to provide a letter to the Crown Solicitor by 12 December, about the progress of his investigations, and the matter was further adjourned to 15 December 2017. [33] Dr Reilly wrote to Crown Law on 8 December 2017, advising that:11 “In accordance with my undertaking to the court on 27 November 2017, I advise that I have spoken with Mr Van Hassell’s treating psychiatrist, Dr Tie, and with Director, Statewide Forensic Mental Health Service, Dr Heffernan. I also met with the Administrators and Clinical Directors of the relevant mental health services and have determined an agreed pathway for Mr Van Hassell’s admission to the Secure Mental Health Rehabilitation Unit (SMHRU) at The Park – Centre for Mental Health (The Park) Authorised Mental Health Service (AMHS). The SMHRU at The Park AMHS services AMHSs located in the West Moreton, Gold Coast and Metro South Hospital and Health Services (HHS). 11 See exhibit ZR-1 to the affidavit of Ms Rutherford filed 12 December 2017. -- 8 of 10 -- 9 Each of these AMHS is allocated a number of beds within the SMHRU at The Park AMHS. At this point in time, it is likely that a Gold Coast patient will be discharged from the SMHRU prior to early February 2018 and there is an in-principle agreement that Mr Van Hassell can be admitted to this bed from the above parties. In-principle agreement has also been reached that Mr Van Hassell’s treatment authority will be transferred from The Park AMHS to the relevant AMHS upon his discharge to the community. This AMHS is notionally the Gold Coast AMHS based on the need for allocation of responsibility to an AMHS other than The Park to facilitate discharge processes within SMHRU, although we recognised that discharge planning may lead to a need for transfer to an alternative AMHS. Eventual transfer of the treatment authority is expected to be to the AMHS which has responsibility for the geographical location in which Mr Van Hassell is accommodated. In order for Mr Van Hassell to transition from the SMHRU to the community, suitable accommodation will need to be identified and a graduated discharge plan put in place. This will necessitate a flexible arrangement whereby his treating psychiatrist can authorise incremental leave including day leave as well as overnight stays in the identified accommodation. On this basis, I would appreciate an opportunity for me, West Moreton as the treating HHS since the SMHRU is a facility of the West Moreton AMHS, and Gold Coast as the notionally allocated eventual treating HHS to comment on the draft Supervision Order prior to it being provided to the court for consideration. We would then plan a meeting, either real or virtual, between the AMHSs and the Office of the Chief Psychiatrist to ensure that all relevant issues have been addressed.” [34] When the matter was reviewed this morning, consistently with the last paragraph of Dr Reilly’s letter, the parties were agreed that it was appropriate to again adjourn the hearing, to enable Dr Reilly and the other bodies referred to, to comment on the proposed supervision order. [35] I accepted the appropriateness of that course, and, given the indication of an available bed in early February 2018, made an order today adjourning the further hearing of the application to review the continuing detention order to 5 February 2018 before me. [36] Appropriately, counsel for the applicant raised the possibility of the parties seeking to bring the matter back before the court, earlier than 5 February 2018, in the event that a bed becomes available sooner, to ensure that the opportunity to take advantage of that bed is not lost. [37] That is plainly a necessary and appropriate thing to do. In the event that the matter is brought back on before 5 February 2018, and is required to be dealt with by a different judge due to my unavailability, I have prepared these reasons to explain why I am satisfied it is appropriate, subject to the terms ultimately proposed, to exercise the discretion conferred by s 30(3)(b) of the Act to order that the respondent be released from custody subject to a supervision order. -- 9 of 10 -- 10 [38] In deciding whether to make a continuing detention order (s 30(3)(a)), or an order that the respondent be released from custody subject to a supervision order (s 30(3)(b)), s 30(4) provides that: “(a) the paramount consideration is to be the need to ensure adequate protection of the community; and (b) the court must consider whether – (i) adequate protection of the community can be reasonably and practicably managed by a supervision order; and (ii) requirements under s 16 can be reasonably and practicably managed by corrective services.” [39] On the evidence before the court, the respondent’s circumstances are such that in order to try to address his serious mental health concerns, he requires specialised treatment, and a careful transition. Adequate protection of the community would not be ensured if the respondent were released directly into the community, even under a stringent supervision order. But equally, his continued detention in custody is not justified in circumstances where his clinical needs for psychiatric treatment are not able to be properly met in that environment, which is both a burden to the respondent, as well as to Corrective Services staff. As identified in the correspondence from Dr Reilly, and supported by the medical evidence, there is a secure alternative which will meet those needs, whilst also enabling a transition pathway for the respondent. There is, now with the additional input of Dr Reilly, a supervisory regime which can be put into place, which will both ensure the adequate protection of the community from the risk that the respondent poses, and provide an opportunity for the respondent, with appropriate care and treatment, to be rehabilitated with a view to hopefully transitioning back to a life within the community in due course. [40] This course has the agreement of the applicant and the respondent (noting the representation of his interests by the Public Guardian). [41] It is for those reasons that I am satisfied that the continuing detention order could appropriately be rescinded, and a supervision order made in its place, provided that the supervision order provides, among other suitable conditions, for the release of the respondent in the first instance to the Secure Mental Health Rehabilitation Unit at The Park, as foreshadowed in Dr Reilly’s letter, and that the proposed order is shown to have had the input of Dr Reilly and the other bodies referred to in his letter. [42] The hearing is adjourned to 5 February 2018. -- 10 of 10 --