Attorney-General for the State of Queensland v Pilot [2012] QMHC 21

MENTAL HEALTH COURT CITATION: AG v Pilot [2012] QMHC 21 PARTIES: REFERENCE BY THE DIRECTOR OF MENTAL HEALTH IN RESPECT OF LOMAX DOUGLAS PILOT PROCEEDING: No 0036 of 2012 DELIVERED ON: 12 September 2012 DELIVERED AT: Brisbane HEARING DATE: 29 August 2012 JUDGE: Boddice J ASSISTING PSYCHIATRISTS: Dr E N McVie Dr A S B Davidson FINDINGS AND ORDER: 1. There is a reasonable doubt within the meaning of section 268 of the Mental Health Act 2000 (Qld) as to whether the defendant committed the alleged offence, the subject of the reference; 2. The defendant is unfit for trial and that unfitness is of a permanent nature; 3. The defendant be detained pursuant to a forensic order, Mental Health Court, to the Park High Secure Authorised Mental Health Service; 4. Copies of the reports, and of the transcript of these proceedings, be provided to the treating team, and to the parties. CATCHWORDS: Mental Health Act 2000 (Qld) MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with an offence of rape – where the defendant denies the offence – where there is reasonable doubt the defendant committed the offence – where the defendant was convicted and sentenced to imprisonment for further offences of attempted rape, assault to commit rape and procure a person with consent – where the defendant remains in custody pursuant to the Dangerous Prisoner (Sexual Offenders) Act 2003 (Qld) – where the defendant suffers from a psychotic illness – where the reporting psychiatrists agree the defendant is permanently unfit for trial – whether the defendant is fit for trial MENTAL HEALTH – CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS – GENERALLY – where the defendant is subject to continuing detention in custody pursuant to the Dangerous Prisoner (Sexual Offenders) Act 2003 (Qld) – where the -- 1 of 7 -- 2 defendant’s treating psychiatrist opined it would be in the defendant’s long-term interests to be housed within the community – whether the defendant should be detained pursuant to a forensic order COUNSEL: S Crofton for the defendant D Holiday for the Director of Public Prosecutions J Tate for the Director of Mental Health S Burgess for the Director of Forensic Disability SOLICITORS: Legal Aid Queensland for the defendant Crown Law for the Attorney-General for the State of Qld Crown Law for the Director of Mental Health Office of the Director of Forensic Disability for the Director of Forensic Disability BODDICE J: [1] By reference filed 13 February 2012, the Director of Mental Health referred to this court the mental condition of Lomax Douglas Pilot in respect of an offence of rape alleged to have been committed between 1 January 2002 and 12 April 2002. Background [2] The defendant is a 26-year-old single indigenous man, originally from the Torres Strait Islands. He suffered a significant head injury at age 10 years. The injury left him with intellectual and memory impairments. [3] In about 2003 the defendant developed symptoms of an organic psychotic illness. The illness is characterised by persecutory delusional beliefs, ideas of reference, passivity phenomenon and auditory hallucinations. These hallucinations are, at times, command in nature. The defendant also has poor insight, and a history of deliberate self-harm and aggression. His illness is complicated by numerous psychiatric admissions and incarcerations, poor engagement with psychiatric -- 2 of 7 -- 3 services, non-compliance, itinerancy, limited social supports and illicit substance use. [4] In 2006, the defendant was convicted and sentenced to three years and four months imprisonment for offences of attempted rape, assault to commit rape, and procure a person with consent. Although his full time discharge date was 22 December 2009, he became subject to the regime established by the Dangerous Prisoner (Sexual Offenders) Act 2003 (Qld) (DPSOA). As a consequence, he has remained in custody pursuant to involuntary detention orders. His continuing detention in custody under that Act was extended on 31 August 2012. The offence [5] Although the offence is alleged to have been committed in Townsville in 2002, the defendant was only charged with the offence on 15 November 2011. A complaint was first made in or about 2007. The complainant was nine years of age at the time of the alleged offence. The defendant was 15 years of age. [6] The defendant denies the offence. He asserts he was not even living in Townsville at the time of the alleged offence. Reporting psychiatrists [7] Dr Timmins has been the defendant’s treating psychiatrist since early 2011. Her report, pursuant to s 238 of the Mental Health Act 2000 (Qld), was filed on 13 February 2012. She interviewed the defendant on 19 December 2011. -- 3 of 7 -- 4 [8] In Dr Timmins’ opinion, whilst the defendant currently suffers from a psychotic illness, most likely schizophrenic/paranoid type, he was most likely not suffering from a mental disease at the time of the alleged offence. However, Dr Timmins notes it is difficult to fully comment on the effect of his illness on his relevant capacities at the time of the alleged offence, as there is a significant dispute on the facts. [9] Dr Timmins further opines the defendant is not fit for trial due to his organic brain injury, and that this unfitness is of a permanent nature. In her opinion, the defendant does not fully understand the nature of court proceedings, and the defendant is unlikely to be able to endure a trial without serious adverse consequence for his mental condition. [10] Dr Grant examined the defendant on 22 June 2012. He also opined that there was insufficient evidence to indicate that the offence, the subject of the reference, was in any way related to the defendant’s mental illness, or was a consequence of the deprivation of any of his capacities. Dr Grant noted there was a dispute of fact in respect of the alleged offences. [11] Dr Grant concurred with Dr Timmins’ assessment that the defendant is permanently unfit for trial. The defendant would have difficulty following any trial, including understanding the nature of the evidence given against him. His mental condition is also likely to suffer deterioration due to the stress and anxiety of the trial. Conclusions -- 4 of 7 -- 5 [12] Having considered Dr Timmins’ report and evidence, and the opinion of Dr Grant, I am satisfied there is a dispute of fact which prevents any finding being made in respect to unsoundness of mind at the time of the alleged offence, the subject of the reference. However, I am satisfied, to the requisite standard, that the defendant is unfit for trial, and that that unfitness is of a permanent nature. I accept the defendant’s intellectual disabilities, and mental illness, significantly impair his ability to follow a trial, and that any trial is likely to have a significant, adverse affect on his mental condition. This conclusion is consistent with the advice I have received from the assisting psychiatrists, Dr McVie and Dr Davison. [13] The more vexing question is what order should be made in respect of the defendant’s future management. This issue is complicated by the fact that the defendant is subject to continuing detention, in custody, pursuant to the DPSOA. [14] The defendant is currently receiving voluntary treatment for his mental illness under an involuntary treatment order linked to the Park High Security Program Authorised Mental Health Service. The Director of Mental Health submits a forensic order is required, and that a forensic order (Mental Health Court/Disability) is appropriate in all of the circumstances. Such an order would not prevent the defendant from continuing to receive treatment under the involuntary treatment order while he meets the necessary statutory thresholds, and would facilitate the defendant receiving the necessary care and support arrangements in relation to his cognitive impairments. The defendant’s legal representatives also submit the appropriate forensic order is a forensic order (Mental Health Court/Disability). -- 5 of 7 -- 6 [15] The assisting psychiatrists advise the defendant’s unfitness for trial is as a consequence of a combination of his intellectual impairment and his mental illness. That mental illness is at risk of further deterioration. In those circumstances, a forensic order, Mental Health Court, is the appropriate order, not Mental Health Court/Disability. Dr McVie advises the defendant has significant treatment needs, including the treatment of his chronic psychotic illness and his sexual offending. In the absence of treatment of both, the defendant presents a serious risk to the community. Dr Davison concurs with Dr McVie’s advice, and advises a Mental Health Court forensic order is necessary in all the circumstances. [16] Having considered the material and, in particular, the clear evidence of an ongoing psychotic condition and significant treatment needs in respect of his sexual offending, I am satisfied that notwithstanding the presence of an intellectual impairment, the appropriate forensic order is Mental Health Court. That conclusion is consistent with the advice of the assisting psychiatrists. I found that advice particularly helpful in resolving what is the most appropriate forensic order in the circumstances. [17] In evidence, Dr Timmins raised a concern about the defendant’s long-term future if he were to remain in the Park High Secure. She opined it would be in his long-term interests to be housed within the community.1 The material placed before the court raised the possibility that the defendant may obtain access to funds for placement within the community through a service provider, funded by the Department of Communities, Disabilities and Community Care Services. However, no proper 1 T1-5/19. -- 6 of 7 -- 7 assessment of the risks posed by such a placement had been undertaken, and no long term funding program had been identified into the future. [18] Having regard to the recent order detaining the respondent under the DPSOA, consideration of this issue is now unnecessary. Suffice to say that the contents of Dr Timmins’ report raises serious concerns as to the appropriateness of any community placement in respect of the defendant, who is “sexually inappropriate when psychotic”, has poor insight, and has a history of sexual aggression inflicted randomly on a stranger. That history will require detailed consideration before any determination is made as to the appropriateness of any proposed approved limited community treatment, should that avenue become an issue in the future. Conclusion [19] I order: 1. There is a reasonable doubt within the meaning of section 268 of the Mental Health Act 2000 (Qld) as to whether the defendant committed the alleged offence, the subject of the reference; 2. The defendant is unfit for trial and that unfitness is of a permanent nature; 3. The defendant be detained pursuant to a forensic order Mental Health Court to the Park High Secure Authorised Mental Health Service; 4. Copies of the reports, and of the transcript of these proceedings, be provided to the treating team, and to the parties. -- 7 of 7 --