Baker, Re [2012] QMHC 26

MENTAL HEALTH COURT CITATION: Re Baker [2012] QMHC 26 PARTIES: REFERENCE BY LEGAL AID QUEENSLAND IN RESPECT OF DARRYN GLENN BAKER PROCEEDING NO: No 0032 of 2012 DELIVERED ON: 9 November 2012 DELIVERED AT: Brisbane HEARING DATE: Delivered ex tempore on 9 November 2012 JUDGE: Ann Lyons J ASSISTING PSYCHIATRISTS: Dr J M Lawrence Dr E N McVie FINDINGS AND ORDERS: 1. That the defendant was of unsound mind at the time of the commission of the alleged offences. 2. A Forensic Order be made detaining the Defendant to the Central Queensland Network Authorised Mental Health Service. 3. A Limited Community Treatment order to commence immediately is approved on the following conditions: a. That the patient must comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment b. That the patient must not use alcohol c. That the patient abstain from all illicit drugs and must co-operate fully in random medical tests for those substances as required by the authorised psychiatrist d. That the patient not drive a motor vehicle unless permitted to do so by the authorised psychiatrist More than overnight e. That the patient reside at a place approved in advance in writing by the authorised psychiatrist f. That the patient must attend the appointment with a psychiatrist and all follow up appointments -- 1 of 6 -- 2 and inpatient care as required by the authorised psychiatrist. CATCHWORDS: COUNSEL: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with wilful damage and armed robbery – whether there was a factual dispute pursuant to s 269 of the Mental Health Act 2000 (Qld) – whether a forensic order should be made – whether a limited community treatment order should be made J Briggs for the defendant D Silvester for the Director of Mental Health A Lossberg for the Director of Public Prosecutions SOLICITORS: Legal Aid Queensland for the defendant Crown Law for the Director of Mental Health Office of the Director of Public Prosecutions (Qld) A LYONS J: [1] This reference was filed by Legal Aid Queensland filed on 9 February 2012 in relation to Darryn Glenn Baker. He is charged with two offences, namely wilful damage and armed robbery, which are alleged to have occurred on 21 June 2011. [2] It is alleged that on that date he entered a Caltex Service Station at Norman Gardens whilst armed with a hypodermic syringe. He then told the console operator to give him all the money whilst holding out the hypodermic syringe in his hand. He held the syringe to the leg of the complainant and the complainant handed over $570. Mr Baker then placed the money in the front of his pants and left the area and attempted to go through the front door of the service station. The complainant had, however, locked the front doors and Mr Baker had to kick the bottom glass of the window out. He then exited through the hole, which caused a serious laceration to his leg. [3] When police attended, the Dog Squad was able to locate Mr Baker hiding behind a church. Report of Dr Steele [4] In her report to the court dated 21 May 2012, Dr Steele reported that Mr Baker described to her a sensation like a panic attack in his head and body on the night of the offences. He referred to voices repeatedly telling him to do an armed robbery. He described the urge as phenomenal. He described the urge as so great that it came from inside his chest and moved about in his body, sometimes in his head. He also described a strong urge to stab himself. He stated that his head was going at a hundred miles an hour and the voices going at a hundred miles an hour, telling him to do the armed robbery and to kill his parents or the world would end. [5] Mr Baker had had an inpatient stay at the Maryborough Mental Unit around March/April 2011 and was placed on a high dose of olanzapine. He, however, discontinued the use about a month prior to the offences. On the night of the offences Mr Baker admitted that he was drinking bourbon and had between 12 and -- 2 of 6 -- 3 16 nips, but that he had not taken any cannabis that day. He described himself as being tipsy but not drunk. Mr Baker described delusions of reference from the television and command hallucinations. He stated that when he was admitted to hospital for treatment for his leg, he remembers the mental health team coming to see him but he did not tell them anything because he did not wish to be locked up. He stated that he went home, got his medication and restarted the medication that day. He indicated that it took two to three weeks for the voices to go away. [6] In May 2012, he told Dr Steele that he was currently taking 40 milligrams of zyrprexa a day and indicated that he needed his medication because his brain could not function without it. Dr Steele considered that Mr Baker has a diagnosis of paranoid schizophrenia and that at the time he was suffering an acute psychotic episode in the context of schizophrenia paranoid type. She considered that Mr Baker was psychotic with delusions and command hallucinations at the time of the commission of the alleged offences. In particular, Dr Steele considered that his hallucinations commanded him to act in order to prevent delusional catastrophic events such as the world ending. He described being unable to control his actions as a result of his mental state. Dr Steele considered Mr Baker was deprived of the capacity to know he ought not do the act and of the capacity to control his actions. [7] Whilst she acknowledged that he had been drinking on the night, she did not consider that the intoxication of alcohol would have contributed to the total mental state which deprived Mr Baker of capacity at the material time. [8] In an addendum report dated 6 November 2012, Dr Steele clearly indicated that she had considered the witness statements and the evidence of the witness Tara West that a co-defendant Brendan Hudson had encouraged Mr Baker to undertake the armed robbery and that Mr Baker agreed. Dr Steele considered that Ms West’s evidence did not negate the fact that he was suffering from a psychotic illness at the time. She considered that given his level of paranoid delusions, it would be plausible that a suggestion to commit an armed robbery could be incorporated into his delusional system with relative ease. [9] Dr Steele also noted the statement of Constable Wheatley, who indicated at no point was he alerted to any comments made by Mr Baker to medical staff about a mental illness and he did not observe any behaviours consistent with mental illness. Dr Steele, however, was still of the opinion that Mr Baker was psychotic at the time of the offences, but was prepared to consider that in light of the witness statements and his apparent initial refusal to carry out the armed robbery, it would be reasonable to assume that he was not totally deprived of the capacity to know he ought not do the act. [10] Ultimately, however, Dr Steele considered that Mr Baker gave a very detailed account of a psychotic illness with delusions and command hallucinations and she was of the opinion that he was deprived of the capacity to control his actions at the time of the events and to know he ought not do the act. Report of Dr Flanagan [11] Dr Flanagan also considered that Mr Baker has paranoid schizophrenia, which was precipitated by substances and occurred after a long period of polysubstance abuse. He considered that at the time of the offences Mr Baker was clearly suffering from a -- 3 of 6 -- 4 severe mental disease, namely paranoid schizophrenia. He considered he was experiencing florid delusions and command hallucinations and he acted in response to those commands in order to forestall delusional catastrophe. Dr Flanagan considered he was deprived of the ability to know what he was doing was wrong. Dr Flanagan considered he was also deprived of the ability to control his actions pertaining to the offence. [12] Dr Flanagan does not consider at the time that Mr Baker was intoxicated. [13] Dr Flanagan noted that he was not currently under a specialist psychiatrist and did not have case management. That concern was also endorsed by Dr Steele. [14] Dr Flanagan also provided an update report, having reviewed the statements by Tara West that the co-defendant Hudson had persuaded Mr Baker to engage in the robbery to obtain cash for drugs. He also noted that Mr Baker was reluctant but initially agreed and refused a knife to commit the robbery but accepted a syringe into which they drew up tomato juice. He noted that Hudson was to act as a lookout or backup while Baker performed the hold up. It is alleged that after the holdup Baker gave the proceeds to Hudson before he was apprehended. [15] Dr Flanagan also referred to the statements by police officers who indicated that they did not observe any obvious abnormality in Mr Baker’s behaviour in the ambulance or in hospital. Dr Flanagan considered that the observations by Ms West were not inconsistent with Mr Baker’s narration to him, but agreed that Mr Baker did not mention the colleague being a lookout, or that he was driven by him to the service station, or that he gave the money to him. Dr Flanagan endorsed the fact that Mr Baker told him he was experiencing voices telling him that his mate who gave him the syringe was the devil and that he had catastrophic delusions. He stated he was talking to the mate about doing an armed robbery because that is what the voices were telling him to do. [16] Dr Flanagan considered that patients can suffer from florid psychotic symptoms without giving any evidence of same and may appear unremarkable to others. He noted that patients with psychotic symptoms can live and function in two different realities. He indicated that the co-defendant Hudson may indeed have made the suggestion as Ms West heard, but Mr Baker’s experience may have been that it was the voices. Dr Flanagan considered that if Mr Baker believed Hudson to be the devil, then that further compounded the erosion of reality that he was dealing with. [17] Dr Flanagan concluded: “Ultimately the crux of the matter is that I have found his recollected account of his symptoms clinically quite convincing. What the witnesses have reported doesn’t change my opinion that he was of unsound mind.” Advice of assisting psychiatrists [18] The advice of the assisting psychiatrists was that I should accept the reports of both Dr Flanagan and Dr Steele. In particular, both reporting psychiatrists were satisfied that Mr Baker was floridly psychotic at the time. -- 4 of 6 -- 5 [19] I noted Dr McVie's advice that examining psychiatrists examine the symptoms carefully and the facts. The examining psychiatrists are fully aware of the issues of exacerbation of symptoms and malingering and both were still convinced of his psychosis at the time. [20] Dr Lawrence initially had some queries, but ultimately endorsed the view that I should accept the findings of the examining psychiatrists. In particular, she noted Mr Baker’s history of genetic and constitutional vulnerability to a psychotic illness and she noted there were some cognitive issues as well. She indicated that the use of a range of substances from an early age can lead to a longstanding psychotic illness. Is there a factual dispute pursuant to s 269 of the Mental Health Act 2000 (Qld)? [21] I note that Mr Lossberg in his submissions argued that there was a factual dispute pursuant to s 269 of the Mental Health Act 2000 (Qld) and that that dispute is such that this Court should not proceed and that the matter should be returned to the criminal justice system. However, in this regard, both psychiatrists who provided the reports do not consider that there is any fact so in dispute that it would affect their opinion. I also note the advice of the assisting psychiatrists. [22] I consider it significant that Mr Baker made the statement that once he felt the pain from his leg, he felt an intense feeling of relief. He noted that to both Dr Steele and to Dr Flanagan and, in my view, I consider this substantiated his psychosis at the time. [23] I also note his history of being withdrawn and guarded in the past. Ultimately, I consider that his history of an admission to the Maryborough Mental Health Service was not really withdrawal psychosis, but rather a first exacerbation of an underlying psychotic illness which had, I note, not resolved on his discharge in April. [24] When he was discharged in April 2011, just eight weeks before the events in question, he had active symptoms. There was clear evidence that he had ceased his medication after a month. That was when these offences occurred. The evidence of the two reporting psychiatrists indicates that they are convinced of his account of his symptoms on the night and that he was psychotic. [25] Accordingly, I do not consider that there is a s 269 dispute. I am not satisfied that there was any objective evidence of intoxication, and even if there was, it would not have contributed to his already deprived mental capacity. There was some evidence of his blood levels on the night but, given the other factors, I think that there are so many factors that have not been taken into account that it is difficult to draw any conclusions from the blood readings at the time. [26] In relation to the submissions by Mr Lossberg, ultimately I am satisfied, having read the decision in McDermott v The Director of Mental Health; ex parte Attorney- General (Qld) [2007] QCA 51, that if a judge constituting the Court is sufficiently satisfied that there is evidence which if accepted would warrant the finding and believes the evidence should be accepted, then the finding should be made. Is a Forensic Order required? -- 5 of 6 -- 6 [27] Ultimately, I am satisfied that Mr Baker was of unsound mind at the time. I also consider that a Forensic Order is required, particularly given the seriousness of these offences. I note that Mr Baker is currently living in the community and, accordingly, Limited Community Treatment is approved to commence immediately, subject to the discretion of the authorised psychiatrist on the conditions that he must comply with the requirements of the authorised psychiatrist. ORDERS 1. That the defendant was of unsound mind at the time of the commission of the alleged offences. 2. That a Forensic Order be made detaining the defendant to the Central Queensland Network Authorised Mental Health Service. 3. A Limited Community Treatment order to commence immediately is approved on the following conditions: a. That the patient must comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment. b. That the patient must not use alcohol. c. That the patient abstain from all illicit drugs and must co-operate fully in random medical tests for those substances as required by the authorised psychiatrist. d. That the patient not drive a motor vehicle unless permitted to do so by the authorised psychiatrist. More than overnight e. That the patient reside at a place approved in advance in writing by the authorised psychiatrist. f. That the patient must attend the appointment with a psychiatrist and all follow up appointments and inpatient care as required by the authorised psychiatrist. -- 6 of 6 --