Austin, Re [2008] QMHC 5

MENTAL HEALTH COURT CITATION: Re Austin [2008] QMHC 005 PARTIES: REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF RHYS MICHAEL AUSTIN PROCEEDING: No 0198 of 2006 DELIVERED ON: 22 February 2008 DELIVERED AT: Brisbane (Delivered Ex Tempore) HEARING DATE: 22 February 2008 JUDGE: Dutney J ASSISTING PSYCHIATRISTS: Dr J M Lawrence Dr E N McVie FINDINGS AND ORDER: 1. A forensic order be made pursuant to s 288 of the Mental Health Act 2000 requiring Mr Austin's detention in the Princess Alexander Hospital Authorised Mental Health Service 2. Pursuant to s 289 of the Mental Health Act 2000, I approve limited community treatment to commence immediately at the discretion of the authorised psychiatrist on the following conditions; a. That the patient reside at a specified address, or at a place approved in advance in writing by the authorised psychiatrist; b. That the patient attend an appointment with Dr Nina Petroff at 11 a.m. on Monday the 25th of February 2008, and all follow up appointments and inpatient care as required by the authorised psychiatrist; c. That the patient comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment; d. That the patient abstain from using alcohol and illicit drugs and co-operate fully in random medical tests for those substances as required by the authorised psychiatrist. e. That the patient not drive a motor vehicle unless permitted to do so by the authorised psychiatrist. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with three groups of offences, the first group -- 1 of 5 -- 2 including deprivation of liberty, robbery with violence, entering premises with intent, wilful exposure and possession of a knife, the second group including two offences of robbery one in circumstances of aggravation and the other involving violence and armed weapons, the third group including possession of a knife in a public place – where defendant had been diagnosed as suffering from paranoid schizophrenia – where defendant had consumed alcohol, methylamphetamine and cannabis prior to commission of first group of offences – where expert opinion differed as to whether the offences were committed as a result of defendant’s mental illness depriving him of any of the relevant capacities at the time of the alleged offending – whether the offending behaviour was attributable to the underlying illness – whether the effect of intoxication was material in the circumstances of the offending – whether the defendant was of unsound mind at the relevant time – whether a forensic order should be made – whether limited community treatment should be approved COUNSEL: Mr A Kimmins for the defendant Mr W Isdale for the Director of Mental Health Ms C Kelly for the Director of Public Prosecutions (Qld) SOLICITORS: Douglas Law for the defendant Crown Law for the Director of Mental Health The Director of Public Prosecutions (Qld) [1] DUTNEY J: Rhys Michael Austin has been charged with three groups of offences. On the 16th of July 2006 he has been charged with offences of deprivation of liberty, robbery with violence, entering premises with intent and on the preceding day, wilful exposure. He was charged on the 16th of July 2006 also with possession of a knife in a public place. [2] On the 17th of December 2006 he was charged with two offences of robbery; on one occasion with the circumstance of aggravation involving violence and the other both violence and while armed. [3] Most recently, on the 17th of November 2007, he was charged with possession of a knife in a public place. [4] Mr Austin is not quite 20 years of age. He has been diagnosed as suffered from paranoid schizophrenia and within the last two days his treating psychiatrist, Dr Petroff, has also diagnosed a major depressive disorder. [5] The evidence is that prior to the commission of the first group of offences in July 2006, Mr Austin had consumed a quantity of alcohol, .2 grams of methylamphetamine and smoked five cones of cannabis. It appears clear enough to me from the evidence that substance abuse exacerbates Mr Austin's symptoms. [6] Three psychiatrists have given evidence in these proceedings: two orally and one only by means of a report. But all three express the view that at the time of -- 2 of 5 -- 3 commission of the first group of offences, Mr Austin was deprived of at least the capacity that he ought not to do the acts constituting the offence. [7] Dr Beech, the independent psychiatrist, disagreed with the two treating psychiatrists as to whether the substance abuse had a contributing effect. Dr Beech's opinion seems to be that in the absence of the intoxication brought about by the illicit drug consumption it is unlikely that underlying illness would have resulted in the offences being committed. The one exception to this was the possession of a knife charge which Dr Beech thought was wholly attributed to paranoid delusions from which Mr Austin was suffering. [8] The reason for Dr Beech's opinion appears from page 9 of his report, dated the 4th of September 2007. One of the factors which appears to have influenced him was the absence of command hallucinations to the effect that Mr Austin should carry out the offences. He also took into account the proximity in time between the ingestion of the drugs and the commission of the offences. [9] Against this there is some history of confused or bizarre behaviour surrounding the period of the offences. Mr Austin had been to a Buddhist retreat which he left on the 14th of July 2006 or thereabouts. He set up a camp in a suburb north of Brisbane and then travelled into the city. Bearing in mind that this was mid-winter, he appears first of all to have been charged with the wilful exposure offence, which was an attempt to skinny-dip at Southbank at about 6.35 a.m. on the Saturday morning. The drug ingestion to which Dr Beech referred apparently took place sometime prior to that. [10] He was not intercepted again until 4.00 a.m. on the Sunday when the knife charge, or knife offence, took place, and later that same morning at 6.10 a.m. he committed the robbery of the Night Owl. [11] Mr Kimmins, for Mr Austin, has pointed out the oddity of his being shirtless and shoeless at the point of time of that robbery, whereas when interviewed by the police in relation to knife some two hours earlier, he had been wearing a jumper. [12] There are also other odd features of that robbery, revealed by the investigating officers' interview with Mr Smith, the victim, including after taking some money Mr Austin starting to talk himself, then asking permission to take some gum notwithstanding he was in the course of a robbery. [13] Both of the psychiatrists assisting me have commented on some of these odd features of the robbery in the general context what appears to be confused and bizarre behaviour at the time. It is also noteworthy that almost immediately after his apprehension by the police on the 18th of July, Mr Austin received treatment as an inpatient at the Toowong Private Hospital for his schizophrenia. [14] The second group of offences occurred in equally unusual circumstances. He had been an inpatient at the Princess Alexandra Hospital until the 12th of December 2006. On the 13th of December he was interviewed by Dr Sugars at which time he was displaying noted psychotic behaviour and other indications of his illness. [15] He was interviewed again two days later on the 15th of December at which time his symptoms appeared to be worse than they had two days earlier and his level of -- 3 of 5 -- 4 confusion was such that he had no recollection of having been interviewed on the 13th of December. [16] Although there was some involvement of drugs at around about the period of time the second group of offences were committed, again the behaviour demonstrated a level of confusion. In particular, he gave his mobile phone number to the service station operator who he was in the course of robbing. He then went and committed the second robbery and again, almost immediately upon arrest by police, was hospitalised as a result of his condition for some considerable time. [17] Since January 2007, a Dr Petroff has been treating Mr Austin. He has been hospitalised on a number of occasions for some quite lengthy periods of time. She describes a worsening level of illness and through her involvement with him, is satisfied that the offending behaviour was attributable to the underlying illness and that the effect of the intoxication was not a material circumstance in that offending. [18] Having regard to the advice I have received in relation to this matter and having watched the psychiatrists being examined and cross-examined, I also was impressed by Dr Petroff's level of knowledge of Mr Austin's condition but, more particularly, I was influenced by her evidence that, more recently, as the level of trust seems to have been built up between the psychiatrist and the patient, Mr Austin has told her of command hallucinations which involve, amongst other things, robbing of service stations. [19] These command hallucinations appear to be consistent with other non-criminal commands which Mr Austin has felt compelled to obey and which were referred to by Dr Petroff and also in the advice received from Dr McVie. In all the circumstances I prefer Dr Petroff's evidence to that of Dr Beech, in this particular case, largely in view of her greater knowledge of the facts and of the importance of the fact to which Dr Beech particularly referred and of which he was unaware in relation to the command hallucinations. [20] The final offence; the possession of a knife, more recently, was an offence that is consistent with the underlying condition. So, in relation to all of the offences, on the basis of the evidence, I am satisfied that Mr Austin was of unsound mind at the time. It is obvious that a forensic order needs to be made. [21] It seems to me that the forensic order should be in the terms proposed in the submission from the Director of Mental Health. Those terms are consistent with the evidence given by Dr Petroff. [22] The terms of the order will be that a forensic order will be made pursuant to section 288 of the Mental Health Act 2000, requiring Mr Austin's detention in the Princess Alexander Hospital Authorised Mental Health Service and pursuant to section 289, I approve limited community treatment to commence immediately at the discretion of the authorised psychiatrist on the following conditions; 1. That the patient reside at 45 Suncroft Street, Mt Gravatt, Queensland 4122, or at a place approved in advance in writing by the authorised psychiatrist. 2. That the patient attend an appointment with Dr Nina Petroff at 11 a.m. on Monday the 25th of February 2008 at the early psychosis team, 519 Kessels Road, Macgregor, Queensland, 4109, and all follow up appointments and inpatient care as required by the authorised psychiatrist. -- 4 of 5 -- 5 3. That the patient comply with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment. 4. That the patient abstain from using alcohol and illicit drugs and co-operate fully in random medical tests for those substances as required by the authorised psychiatrist. 5. That the patient not drive a motor vehicle unless permitted to do so by the authorised psychiatrist. [23] Should it be relevant for any reason, I should note that it was not contested that Mr Austin is presently unfit for trial. It is probably premature at this stage to find that that unfitness is permanent, so if it had become relevant I would have made an order that he was presently unfit for trial. -- 5 of 5 --