DSL, Re [2011] QMHC 7

MENTAL HEALTH COURT CITATION: Re DSL [2011] QMHC 7 PARTIES: REFERENCE BY THE PATIENT’S LEGAL REPRESENTATIVES IN RESPECT OF DSL PROCEEDING NO: 0279/09 DELIVERED ON: 4 April 2011 DELIVERED AT: Brisbane HEARING DATE: 25 March 2011, brief ex-tempore reasons given 25 March 2011 JUDGE: Ann Lyons J ASSISTING PSYCHIATRISTS: Dr E N McVie Dr J Sundin FINDINGS AND ORDERS: 1. That at the time of the seven alleged offences which occurred on 12 August 2007 and 3 October 2007 the defendant was not of unsound mind; 2. That in respect of the seven alleged offences which occurred on 12 August 2007 and 3 October 2007 the defendant is fit for trial; 3. The proceedings in respect of the seven alleged offences which occurred on 12 August 2007 and 3 October 2007 are to continue according to law; 4. That at the time of the 10 alleged offences which occurred on 28 October 2007 the defendant was suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 (Qld); 5. That the defendant be detained as a forensic patient to the Cairns Network Authorised Mental Health Service; 6. That limited community treatment is approved to commence immediately at the discretion of the authorised psychiatrist, on the conditions set out in the amended submission of the Director of Mental Health CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR CAPACITY – where the defendant is charged with 17 alleged offences – where no evidence to support a finding of unsoundness of mind in relation to 7 of the alleged offences which occurred on 12 August 2007 and 3 October 2007 – where in relation to the remaining 10 offences on 28 October 2007 there is evidence at the relevant time the defendant suffered from a psychotic episode – where history of substance abuse – whether the defendant was of unsound mind as defined by Schedule 2 of the Mental Health Act 2000 (Qld) at the time of the 10 alleged offences on 28 -- 1 of 7 -- 2 October 2007 Mental Health Act 2000 (Qld) COUNSEL: J Briggs for the defendant J Tate for the Director of Mental Health D Finch for the Director of Public Prosecutions SOLICITORS: Legal Aid Queensland for the defendant Crown Law for the Director of Mental Health The Director of Public Prosecutions (Qld) ANN LYONS J: [1] On 25 March 2011 I made orders and gave brief ex tempore reasons in relation to this reference. On that date I indicated that I would provide written reasons at a later date. These are my reasons. [2] The reference by the legal representatives for [DSL] dated 5 November 2009 relates to 10 charges, namely six indictable offences and four simple offences. The six indictable offences involve two counts of assault occasioning bodily harm whilst armed, two counts of deprivation of liberty, common assault and unlawful use of a motor vehicle. All of those offences occurred on 28 October 2007. The four simple offences involve driving an uninsured vehicle, driving without a licence, driving an unregistered vehicle and the use of registration plates of another vehicle. [3] The reference was subsequently amended and contains a further seven counts, five of which occurred on 12 August 2007, namely unlawful use of a motor vehicle, stealing, dangerous operation of a motor vehicle, failing to stop and the driving of a motor vehicle without a driver’s licence. There are two further counts which occurred on 3 October 2007, namely trespass and possession of a knife in a public place. [4] It is clear that in relation to the seven offences which occurred on 12 August and 3 October 2007 that there is no basis for a finding of unsoundness of mind and that those charges should continue according to law. I am satisfied that the defendant is fit for trial however I note Dr Heffernan’s advice that the defendant will need assistance in relation to understanding the progress of that trial The factual background to the offences [5] In relation to the 10 offences which occurred on 28 October 2007 there are six indictable offences and one simple offence. The complainant was a 15 year old female and the ex-girlfriend of the defendant. She had an argument with him on 27 October 2007 and the next morning she rang him and said she did not want to see him again. They arranged to meet at a football club for her to collect some of her belongings. The complainant alleges that the defendant grabbed her from behind, put a hand over her mouth and dragged her about 10 metres. She fought back, however he grabbed her again and pushed her into a commentary box and closed the door, saying he was going to kill her. She states that he then proceeded to put a belt around her neck and attempted to choke her with it. She was able to run off but the defendant chased her for 200 metres to a toilet block and dragged her in. She screamed out for help, but The defendant grabbed her around the neck, saying, “take -- 2 of 7 -- 3 me back or I’ll rape you”. He also punched her in the face and put a plastic bag over her face. She was able to tear the bag open and was able to escape. As she walked back to [a suburb in Cairns] along the cane train tracks, the defendant grabbed her again and dragged her off into a pile of rocks and dirt. She was rescued by a passer-by. The defendant then stole a car from a wrecking yard, put false plates on it and took off. [6] When he was picked up by police [DSL] told them that he was hearing voices telling him to hurt people and to kill himself. He denied the use of substances or alcohol on the evening before or the day of the offences. [7] The Victim Impact statement from the complainant sets out the terrible impact these events have had on her life and she states that her life is a “wreck”. She also states that she wants the defendant to know what he did was wrong and she does not want anyone else to go through what she has. The medical reports [8] In a report dated 21 November 2007 Dr Allix Simpson stated that the defendant had a history of three or four months of uncharacteristic reckless behaviour and that when he saw him he was elevated in mood, impulsive, mildly pressured and fatuous. He stated that he attempted to suffocate his girlfriend in response to command hallucinations. Dr Simpson considered he has an emerging mental illness and spent two weeks in hospital with no further aggressive behaviour. [9] In a report dated 20 September 2009, Dr Fama stated that the defendant had a history of alcohol abuse, in particular, drinking cans of beer and bourbon. He also had consumed a significant amount of cannabis per week. Dr Fama stated that the defendant described hearing voices telling him to hurt others and to kill himself on 28 October 2007. [10] Dr Fama considered that the defendant’s earlier criminal behaviour in August and early October 2007, namely driving a stolen car while driving in possession of the hunting knife may well have been pre-psychotic. He considered that by the 28 October, the defendant was in a state of tension and had been hearing voices from outside his head. He reported hearing about three voices which could be loud or whispering “and they were telling me to do it, be stupid”. Dr Fama notes that when he was arrested by police on 28 October, he told them he was hearing voices that were telling him to hurt people and it was on that basis that Gordonvale police took him to the Cairns base hospital where he was admitted to the Mental Health Unit. [11] The clinical report for the involuntary treatment order states: “On admission [DSL] stated he heard derogatory voices commanding him to walk in front of cars or start fighting. He states he had never had these before and blames them for making him hurt [the complainant]. He heard the voices for the previous three days according to his admission notes.” [12] Dr Fama notes that the immediate provocation to the assaults was his fury at believing the complainant had instigated an attack on him by gang members who had beat him badly, as well as a lingering desire to have her return to him. Dr Fama considered that the defendant was being urged to violence by the hallucinatory -- 3 of 7 -- 4 voices. Dr Fama stated that there was no history of intoxication with alcohol at the time of the offences, nor of drug intake on the day. However, he states that he was previously spending money on marijuana and this may have worsened the voices. Dr Fama noted that on Dr Simpson’s report it took two weeks for an antipsychotic agent to settle the defendant’s symptoms. [13] Dr Fama considered that the defendant’s disorder was therefore independent of intoxication and in his view all of the offences on 28 October 2007 occurred in a state of severe psychosis, and that there is therefore a defence of unsoundness of mind as the defendant, on the basis of the mental disease, was deprived both of the capacity to control his actions and of the capacity to know he ought not do the acts. He also considers that the capacity to know that he ought not do the acts would probably also have been impaired by his mild mental retardation. [14] Dr Fama made a diagnosis of paranoid schizophrenia which was episodic. He also considered the defendant had mild mental retardation. Dr Fama considered that the history suggests a past hypermanic or even manic shift but that he has been unable to identify a primary affective disorder. He considered that The defendant’s schizophrenia has responded well to treatment but that his drinking is still at hazardous levels and that remains a problem because it is along side his continued use of cannabis. Dr Fama considered that a forensic order was required. [15] A psychological report dated 8 August 2000 indicates that the defendant has a mild intellectual disability on the full scale measure and a moderate intellectual disability in the verbal measure and a low average disability in the performance measure. [16] Dr Heffernan, in a report dated 25 January 2010, noted that the defendant has an intellectual disability and requires significant support from his parents. He requires his parents’ assistance for routine activities such as shopping and paying bills. Dr Heffernan noted the history that the defendant had been living at home with his parents in mid-2007 and developed a relationship with the complainant, whom he had met on the bus. His relationship developed and he was spending most days with her until her father approached the defendant’s parents informing them that she was only 14. The defendant’s parents intervened and attempted to cease the relationship. However, at this time the defendant ran away with the complainant and they camped out together in the bush for about two weeks. During this time, the defendant started consuming more alcohol and smoking marijuana. He estimated approximately 10 cones per night were smoked when he was able to afford it. He said he was able to do this on seven days out of every fortnight. [17] Several weeks before 28 October 2007, the defendant stole his sister’s partner’s car and went to meet the complainant in [a town] where she had been removed to by the Department of Family Services given her age. Dr Heffernan stated that in the months prior to the alleged offences the relationship with the complainant became increasingly difficult and he was convinced she was being unfaithful and on the night before the offences he became fixed in this belief. He became angry and threatened to expose her infidelity. As a result of those threats he alleges that his girlfriend recruited a number of people to have him bashed. [18] The defendant told Dr Heffernan that in the early hours of the morning of 28 October he was the victim of an assault and that after this he became increasingly angry. He also had a lot of energy and could not sleep. He stated that in the early -- 4 of 7 -- 5 hours of the morning he had his first reported experience of hearing voices. He stated that at around 8am he received a phone call from his girlfriend to exchange their possessions as the relationship had ended. During that meeting the argument developed and the events occurred which led to the charges. [19] Dr Heffernan reported that the defendant stated “I just snapped. I had hit a big low. I wasn’t thinking clearly. I hit rock bottom. I wanted to kill myself”. Whilst he could not remember the specific events he considered that the QP9s were an accurate reflection of the events. He stated that after the events he just wanted to escape and stole a car from a wrecking yard. As it had no number plates, he replaced the number plates from another vehicle and started driving. [20] Dr Heffernan noted the denial of any alcohol use or substance abuse on the evening before the day of the offence. Dr Heffernan stated that he specifically examined this issue with the defendant and he clearly stated that he had not taken alcohol or substances on the evening before or the day of the alleged offences as he was so upset by his state of mind. He also notes that the defendant was assessed at 11 pm on the night of 28 October following an emergency examination order taken out by police. In that assessment Dr Bates records that the defendant had not slept for 48 hours and had been experiencing three days of auditory hallucinations that were of a derogatory and command nature. It was recorded that he had been using marijuana and experiencing relationship difficulties. The principal diagnosis was psychosis with a differential diagnosis including a drug-induced psychosis, schizophreniform psychosis, brief psychosis or a psychotic disorder not otherwise specified. [21] Dr Heffernan also noted that on 29 October, the defendant was assessed by Dr Lida who thought that he had suffered a psychotic episode. On 30 October he was then seen by Dr Allix Simpson. Dr Heffernan noted that the file note of 3 November records that the defendant required medication for command hallucinations and distress. Ultimately, Dr Heffernan indicated that all of the contemporaneous information therefore suggests that his mood was elevated and that he was experiencing some psychotic symptoms around the time of the alleged offences. He also had an apparent intellectual impairment. [22] Dr Heffernan considered that there is therefore evidence to support a diagnostic conclusion of a pathological mood disturbance and psychotic symptoms being present around the time of the offences. Dr Heffernan considered this was apparent in the history provided by the defendant and in the assessments of at least four medical officers in the days immediately following the offence. There was unanimity in their views that he was suffering a pathological mood disturbance and psychotic symptoms. Dr Heffernan also stated that the collateral history from his mother in her actions in seeking to take out a justice examination order in the days prior to the offences support the likelihood of an acute mental state disturbance. [23] Dr Heffernan considered it is most likely that the defendant was suffering from an acute mental health problem at the time of the alleged offences for which the differential diagnosis would include a brief psychotic episode, a manic episode with psychotic features or a schizophreniform psychosis. He stated that it is likely that the precipitants included the psychosocial stresses at the time, substance abuse and the possibility he had an inherent vulnerability related to the aetiology of his cognitive impairment. -- 5 of 7 -- 6 [24] Dr Heffernan noted that subsequent to the commencement of antipsychotic treatment he had a marked improvement in his mental state and an apparent sustained remission of symptoms. Dr Heffernan also considered that the major differential diagnosis that needs to be considered were his intellectual impairment and it is possible that his behaviours and experiences could be understood in terms of his cognitive impairment, poor impulse control and problem-solving capacity and mood experiences related to perceived mistreatment by his partner. He stated that the voices could be a poorly articulated description of internal distress and recurrent thoughts rather than psychotic phenomena. [25] Ultimately, Dr Heffernan considered that it was likely that the defendant was suffering from a mental disease at the time of the alleged offences and it is also likely that he had a pre-existing natural mental infirmity. [26] Dr Heffernan considered that as a result of the mental disease, he believes that the defendant was unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions. He made interpretations about his partner’s intent towards him that was likely to be influenced by his psychotic thinking. He considers that the psychotic symptoms and the elevated mood deprived him of the capacity to know that he ought not do the act in relation to the deprivation of liberty counts, the assault occasioning bodily harm counts and the common assault charges. Similarly he believed that the defendant was deprived of the capacity to know that he ought not do the act in relation to the charges of the unlawful use of the motor vehicle which occurred on the same date. [27] Dr Heffernan considered that whilst overall his actions demonstrated some planning, his actions and goals seemed to be irrational and consistent with an inability to reason with a moderate sense of composure about the wrongfulness of his actions. Was the defendant of unsound mind at the time of the 28 October 2007 offences? [28] Counsel for the DPP argued that the record of interview did not show any evidence of psychotic thinking and that the defendant’s actions were more consistent with an act of immature rebellion in the context of a first serious love interest than a psychosis. [29] I note however the consensus of opinion as between Dr Fama and Dr Heffernan. Furthermore both assisting psychiatrists concur with the views of Drs Fama and Heffernan that is that the defendant was of unsound mind at the time of the 28 October 2007 offences due to his psychosis. I also consider that it is significant that at least four mental health professionals examined the defendant in the days immediately following these offences and agreed that a mental illness was present. In terms of intoxication I note Dr Heffernan’s evidence to the court that he had specifically discussed this with the defendant who stated that he had not consumed alcohol or drugs because he was so upset by the way he was thinking. [30] I also note the contents of exhibit one in these proceedings which are the Reasons in support of the Emergency Examination Order completed by Constable Holzheimer of Gordonvale police at 9.14 pm on the day of the offences. Those reasons record the following; -- 6 of 7 -- 7 “[DSL] states for the last 3 days he has been hearing voices telling him to hurt himself. [DSL] cut his left wrist on 25/10/07 because he wanted to hurt himself. On the same day he stabbed his right leg twice for the same reason with a steak knife. When located by police at 1700 hours today [DSL] stated he was glad police had found him because he was thinking about hanging himself. [DSL] states the voice in his head told him to place the plastic bag over his girlfriend’s head.” [31] I consider that the overwhelming evidence is therefore that the defendant was psychotic at the time of the offences on 28 October 2007. I consider that his psychotic thinking deprived him of the capacity to know he ought not do those acts. I consider that he was of unsound mind at the time of the offences. [32] I consider that the nature of the offences was extremely serious and the defendant’s actions have had an enormous impact upon the complainant. There is also some evidence that the defendant continues to be unsettled in his behaviour at the end of the depot cycle. I consider therefore that a Forensic Order is required. I also consider that the order should be in the terms set out in the draft tendered by the Director of Mental Health which contains specific requirements that he not consume alcohol and that there be should be a non contact order with the complainant. -- 7 of 7 --