Brown, Re [2005] QMHC 33

MENTAL HEALTH COURT CITATION: Re Brown [2005] MHC 033 PARTIES: REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF PHILLIP JAMES BROWN PROCEEDING NO: 0125 of 2005 DELIVERED ON: 29 November 2005 DELIVERED AT: Brisbane HEARING DATE: 29 November 2005 JUDGE: ASSISTING PSYCHIATRISTS: Holmes J Dr J F Wood Dr D A Grant FINDINGS AND ORDER: 1. In relation to the alleged indecent assault and common assault on 12 December 2004, the defendant was of unsound mind as defined in the Mental Health Act 2000 (Qld), schedule 2, at the time of the alleged offences. 2. In relation to the alleged common assault on 14 October 2005, the defendant was not of unsound mind. 3. The defendant is permanently unfit for trial. 4. The defendant is detained as a forensic patient to the Princess Alexandra Hospital and District Authorised Mental Health Service for the purpose of investigation and assessment of: a) The defendant’s psychosexual functioning; and b) Whether there is any treatment, primarily by way of medication, which might assist in treatment in respect of the defendant’s psychosexual functioning. 5. Limited community treatment is approved at the discretion of the Authorised Psychiatrist on the following conditions: a) That the defendant reside at a stated address or another address approved in writing by the Authorised Psychiatrist; and -- 1 of 3 -- 2 b) That he attend all appointments associated with assessment of his psychosexual functioning and consideration of treatment of his psychosexual functioning. CATCHWORDS: MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with indecent assault and two charges of common assault – where evidence that the defendant has an intellectual impairment but no psychiatric illness – whether the defendant was of unsound mind – whether the defendant, at the time of the alleged offences, was deprived of the capacity to understand what he was doing, or the capacity of control, or the capacity to know that he ought not to do the act pursuant to the Criminal Code, s 27 – whether the defendant is fit for trial – whether any unfitness is of a permanent nature – whether a forensic order is required Mental Health Act 2000 (Qld), schedule 2 COUNSEL: C Morgan for the defendant D Grealy for the Director of Mental Health D Mackenzie for the Director of Public Prosecutions SOLICITORS: Legal Aid Queensland for the defendant The Crown Solicitor for the Director of Mental Health The Director of Public Prosecutions [1] HOLMES J: Mr Brown is charged with indecent assault and common assault on 12 December 2004 and a further charge of common assault on 14 October 2005. I am satisfied he was of unsound mind at the time the offences of indecent assault and common assault were allegedly committed on the 12 th of December 2004. [2] I am not so satisfied in relation to the alleged offence of common assault on 14 October 2005. However, I am satisfied by reason of his profound intellectual impairment that he is permanently unfit for trial. A much greater difficulty is as to whether a forensic order ought to be made and, if so, on what conditions. [3] The assault alleged against Mr Brown was that he had tried to hug a woman unknown to him in the street and had thrust his pelvis towards her, pushed her to the ground and struck at her with a pole. He, in an interview, put it that he had hugged her. He had recently been released on probation in relation to another sexual offence. Clearly, he presents some level of risk in the community although there is nothing to date to suggest offending at the extreme end of the sexual offences range. He has spent 12 months in custody, it appears, although that is not a major factor in deciding whether a forensic order ought to be made. [4] Ms Kelly gave evidence as to what assistance the department, Disability Services Queensland, could give. She is a senior manager there. She says Mr Brown is eligible for some services. He can get two to four hours support per day in the short -- 2 of 3 -- 3 term, for about three months, to assist him with making decisions. He may also be able to get a lifestyle support program which could involve a living arrangement with one or two other people but that is a process of prioritisation. [5] It does not seem at all likely that he would be able to get into one of the houses that the department operates for behaviour management support so the services available to him on that front appear fairly limited. [6] Ms Jeffreys gave evidence for the Adult Guardian. She explained that she is Mr Brown's guardian, that her role involves liaising with the services which might be able to assist. The Office of the Adult Guardian has obviously given the matter a good deal of consideration and attention and recommended making a forensic order. [7] The difficulty is this: what clearly is contemplated by the Adult Guardian is that Mr Brown would be admitted to the Dual Diagnosis Unit. But there is, first of all, no psychiatric evidence before me that he warrants a diagnosis of mental illness and, secondly, it seems most improbable that immediate placement would be available in that unit; or placement in the short term, even. [8] The Adult Guardian would also propose some conditions of a forensic order. That raises again the difficulty which has troubled this Court repeatedly on previous occasions: that the Mental Health Act 2000 does not have within it a structure for the making of orders for persons who have an intellectual disability rather than a psychiatric illness. The conditions which the Adult Guardian proposes would be ideal if one had that kind of structure but the Act, as I see it, is directed towards psychiatric treatment, and detention in a Mental Health Service for that kind of treatment. [9] In this case, there is only one identified area of treatment needs which could be explored in Mr Brown's case and that is the question of his sex drive. It seems to me it is appropriate to make an order which will enable investigation on that front because it is, at least, a step towards the community protection which is one of the bases for making a forensic order. [10] This is not a case in which, it seems to me, a forensic order can assist in any other respect. I do not think that there is anything else a mental health service can offer Mr Brown and I do not think it appropriate, in this case, either that mental health services be asked to undertake his supervision. [11] The forensic order which I will make, as I say, is directed to that question of investigation of his psychosexual functioning. I order that Mr Brown be detained to the Princess Alexandra Hospital and District Authorised Mental Health Service for the purpose of investigation and assessment of his psychosexual functioning and whether there is any treatment, primarily by way of medication, which might assist in moderating that with a view to his past history of offending. [12] I authorise limited community treatment at the discretion of the Authorised Psychiatrist on the condition that Mr Brown reside at a stated address or another address approved in writing by the Authorised Psychiatrist and that he attend all appointments associated with assessment of his psychosexual functioning and consideration of treatment in respect of his psychosexual functioning. -- 3 of 3 --