CSP, Re [2011] QMHC 25

MENTAL HEALTH COURT CITATION: Re CSP [2011] QMHC 25 PARTIES: REFERENCE BY THE REGISTRAR OF THE DISTRICT COURT PURSUANT TO S 63 OF THE MENTAL HEALTH ACT 2000 (Qld) IN RESPECT OF CSP PROCEEDING NO: 0161/10 DELIVERED ON: 5 May 2011 DELIVERED AT: Brisbane HEARING DATE: 3 May 2011 JUDGE: Ann Lyons J ASSISTING PSYCHIATRISTS: Dr E N McVie Dr Lawrence FINDINGS AND ORDERS: 1. That at the time of the alleged offences on 4 April 2008 and 25 April 2008 the defendant was not suffering from unsoundness of mind as described in schedule 2 of the Mental Health Act 2000 (Qld); 2. That the defendant is fit for trial; 3. That the proceedings against the defendant be continued according to law. COUNSEL: C Morgan for the defendant J Tate for the Director of Mental Health C Kelly for the Director of Public Prosecutions SOLICITORS: Legal Aid Queensland for the defendant Crown Law for the Director of Mental Health Director of Public Prosecutions (Qld) ANN LYONS J: History [1] CSP who is currently 45 years of age was initially charged on a four count indictment with four counts of carnal knowledge with a child under 16. Count 1 relates to an offence which is alleged to have occurred on 4 April 2008 and relates to a 15 year old boy called [A]. It is alleged that CSP had sexual intercourse with him on that date. A second count in relation to the same complainant, which was alleged to have occurred on 11 April 2008, was not proceeded with and a nolle prosequi in relation to Count 2 was entered by the Crown on 19 February 2009. Counts 3 and 4 on the indictment relate to allegations that CSP had intercourse with a person who was 14 years of age, namely [B], on two occasions on 25 April 2008. -- 1 of 5 -- 2 [2] CSP acknowledged that she had been drinking and smoking marijuana on the days that the offences occurred. CSP had commenced the use of both alcohol and marijuana in the context of anxiety and depression as a result of workplace stress in 2006. She continued her heavy drinking throughout 2007 and was eventually prescribed Efexor as an antidepressant in November 2007. [3] It is alleged that the offences all occurred at CSP‟s home after several hours of drinking with her friends and the complainants who had slept over at her home on the evenings of 4 and 25 April 2008. CSP had supplied the complainants with alcohol and marijuana during those evenings and had been overly affectionate to them. She had intercourse with the relevant complainant when the other occupants of the house were asleep on the evenings of 4 April and 25 April. She told complainant [A] not to tell anyone saying that “this can be our little secret”. In relation to complainant [B], CSP initially had intercourse with him in her bedroom and then advised him to go outside where they could continue where no one could hear them. CSP was subsequently remorseful for her actions when confronted with her behaviour. She blamed her antidepressant medication and the alcohol. She stated that the medication she was on increased her “libido tenfold”. [4] CSP pleaded guilty to those three counts when she was arraigned in the District Court on 19 February 2009. [5] In a report dated 21 February 2010, psychologist Luke Hatzipetrou stated that CSP was likely to be suffering from a mental health disorder, namely major depression, at the time of the alleged offences. He stated that she had experienced severe impairments resulting from depression that impacted on her general functioning. [6] Mr Hatzipetrou indicated that CSP accepted responsibility in relation to the three counts of carnal knowledge and recognised the potential impact on the complainants. She was ashamed of her behaviour and sought to address the risk factors contributing to the offending. Mr Hatzipetrou considered that CSP‟s offending was attributed to an interplay of dynamic factors including severe alcohol abuse, workplace stress in a major depressive episode and behavioural dis- inhibition. He did not consider that she possessed static risk factors consistent with sex offenders and did not align beliefs commonly elicited from such offenders. He also noted that CSP did not present with a paraphilia or previous history of criminal convictions. He considered that her capacity to understand the nature of her actions at the time of the offences was likely to be significantly impaired. [7] On 30 April 2010 Judge Dick DCJ ordered that pursuant to s 62 of the Mental Health Act 2000 (Qld) (the Act) pleas of “not guilty” should be entered in relation to Counts 1, 3 and 4 on the indictment. Her Honour also referred the matter of CSP‟s mental condition relating to the offence to this Court pursuant to s 62 (2) (b) of the Act. In accordance with s 63 of the Act the registrar of the District Court has filed a notice of the reference in the Mental Health Court registry. -- 2 of 5 -- 3 This Reference [8] This reference accordingly relates to counts 1, 3 and 4 on District Court Indictment 3451/08. Dr White’s Report [9] Dr Paul White, in a letter dated 4 November 2009, a report received on 26 March 2010 and a report dated 1 May 2011, indicated that in his view CSP was in the manic phase of a bipolar affective disorder at the time of the commission of the alleged offences. He acknowledged that the diagnosis was clouded by CSP‟s abuse of alcohol and cannabis at the time. Ultimately however, he considered that she was deprived of the capacity to know that she ought not to do the act and that the other two capacities were significantly impaired. He considered that her offending behaviour however was the result of her illness and not the co-morbid intoxication. [10] Dr White also gave oral evidence to the Court and confirmed that his view was that at the time of the commission of the alleged offences CSP was in the manic phase of bipolar disorder and that this was probably precipitated by the drug Efexor. He stated that mania was a well known side effect of this drug and that one of the symptoms of mania is disinhibited and risky sexual behaviour. Dr White considered that as a result of this mania CSP was deprived of the capacity to know that she ought not to do the act. He considered that CSP had been intoxicated on many occasions and had not committed any offences. He was therefore of the opinion “that the disease process was the dominant process in this deprivation. The other two capacities were likely impaired.” Dr Khoo’s Report [11] In a comprehensive report prepared for the Court, Dr Mee Ling Khoo stated that in relation to the 4 April offence it was clear that CSP had begun drinking from 8am and was also smoking marijuana during the day of the offence. CSP confirmed to Dr Khoo that she was intoxicated with both those substances at the time of the offences. Regarding the offences alleged to have been committed on 25 April CSP similarly agreed that she had smoked four cones of marijuana and had consumed 12 beers and a cask of wine, as well as a bottle of spirits on that day. [12] Dr Khoo considers that CSP has an adjustment disorder with anxious mood which arose over a period of time as a result of conflict with a manager at work. Her symptoms resolved in 2007 when she was seconded to another work place. However, her symptoms returned when she was forced to return to her substantive position. CSP increased her alcohol consumption in an attempt to self-medicate her symptoms. In November 2007 she was placed on sick leave due to her levels of stress and anxiety. She was commenced on medication and was placed on Efexor in November 2007. [13] Dr Khoo stated that CSP reported experiencing an increase in her libido with other symptoms which suggested hypomania. During the following 12 months she substantially increased her consumption of alcohol to the extent that she was drinking in the mornings to treat her withdrawal symptoms. It is clear that from November 2007 CSP intentionally abused alcohol, marijuana and amphetamine-like drugs such as Phentermine and Duromine. -- 3 of 5 -- 4 [14] Dr Khoo therefore considered that at the time of the alleged offences her psychological symptoms and behaviour had multiple potential causative factors. She considered that she developed symptoms that would fulfil criteria for hypomania within the context having commenced use of Efexor in addition to her continued abuse of amphetamine-like drugs. She considered that she had a substance induced mood disorder with hypomania at the time of the alleged offences as well as cannabis abuse, alcohol intoxication and alcohol dependence. [15] Dr Khoo concluded that the description of CSP‟s comments and behaviour shows that she was sufficiently in control of her actions so as not to be absolutely deprived of the capacity to control her actions or the capacity to know that she ought not to do the act. Dr Khoo considered that at the time of committing the alleged offences on 4 April 2008 and 25 April 2008 CSP demonstrated evidence of a drug induced hypomania, most likely resulting from a combination of her Phentermine abuse and Efexor. She was also alcohol dependent and consuming large quantities of alcohol and abusing marijuana. [16] Dr Khoo ultimately considered however that whilst she was impaired of the capacity to know that she ought not to do the act, she was not deprived of the capacity. She also considered that she was impaired of the capacity to control her actions. Dr Khoo however considered that the primary driver that contributed towards her impaired capacity was her intoxication with alcohol. [17] Dr Khoo noted that when she was not intoxicated she expressed not only regret but attributed her actions to the effects of alcohol and Efexor. Dr Khoo considered that at the time she understood what she was doing when she committed the offences and that on the balance of probabilities CSP would not have committed the alleged offences with minors, despite demonstrating evidence of hyper mania, if she was not intoxicated with alcohol. She considered that whilst hypomania and intoxication are contemporaneous in her opinion the intoxication was dominant and the mental illness itself was not of sufficient severity to deprive her of the capacity. She considers that CSP is fit for trial. [18] I accept the submissions from Counsel for CSP that up until the time of these alleged offences CSP had led an exemplary life and had no previous contact with authorities. She had a long history of employment and had been in long relationships and successfully reared her children. There is no doubt in my mind that these offences were out of character. [19] I accept that CSP was most likely in a manic state at the time of the commission of the alleged offences on 4 and 25 April 2008 which was most likely caused by her reaction to the drug Efexor. The question to be determined is whether it was this mental state alone which totally deprived CSP of one of the relevant capacities. [20] Having considered the evidence of Drs White and Khoo as well as the advice of the assisting psychiatrists, I am not satisfied that CSP was suffering from unsoundness of mind at the time of the alleged offences in April 2008. The definition in Schedule 2 of the Act defines unsoundness as “the state of mental disease or natural mental infirmity described in the Criminal Code Act 1889 (Qld), s 27, but does not include a state of mind resulting, to any extent, from intentional intoxication or stupefaction alone or in combination with some other agent at or about the time of the alleged offence.” A defence of unsoundness is therefore not available if CSP‟s state of mind -- 4 of 5 -- 5 resulted to any extent from intentional intoxication. In this regard I have not considered the effect of Efexor as an intentional intoxication. In my view CSP‟s state of mind was affected to a significant degree by her intoxication with marijuana and alcohol. [21] Whilst Dr White considered that CSP was deprived of the capacity to know that she ought not to do the act purely on the basis of her manic condition unaffected by her alcohol consumption I am not so satisfied. The report of Dr Khoo and the advice of the assisting psychiatrists is that whilst CSP was manic as a result of Efexor she would not have committed the offences if alcohol had not also been present. [22] Dr McVie in her advice to the Court stated that it was clear that in 2008 CSP was in a vulnerable state due to the various stressors caused by her workplace. It was also clear that at the time she was significantly abusing both alcohol and drugs. Dr McVie also stated that there was some evidence that CSP‟s risky sexual behaviours predated the use of Efexor. Ultimately her advice was that CSP‟s mental state at the time of the alleged offences was the result of both alcohol and Efexor. Dr McVie also considered that CSP was aware of the wrongness of her actions. [23] Dr Sundin similarly agreed that the offending behaviour only occurred when there was the combination of both Efexor and the “cocktail” of other substances. She did not consider that the illness alone was of itself sufficient to have caused the deprivation of one of the relevant capacities. [24] In my view the quantities of both alcohol and marijuana consumed on both 4 and 25 April were significant. I do not consider that the illness alone was operating. In considering whether the mania was sufficient to deprive CSP of the capacity to know she ought not to do the act, I think it is significant that the behaviour on both occasions was to an extent pre meditated. The evidence indicates that on each occasion the complainant was plied with alcohol and there was evidence of „grooming‟ behaviour throughout the course of the evening. When it came to going to sleep it was clear that both complainants were strategically located in CSP‟s bedroom. She also took one complainant outside so they would not be heard and told the other that what took place was their “secret”. There is also evidence that she expressly asked [A] how old he was and that he told her he was fifteen. I am not satisfied that the evidence supports a finding that the illness alone totally deprived her of any of the relevant capacities particularly the capacity to know she ought not to do the act. [25] Accordingly I am satisfied that CSP was not of unsound mind at the time of the commission of the alleged offences. [26] All of the evidence indicates that CSP is currently fit for trial. I am satisfied that CSP is fit for trial. [27] The proceedings should accordingly continue according to law. -- 5 of 5 --