R v Brass
[2023] NSWSC 203
•09 March 2023
Supreme Court
New South Wales
Medium Neutral Citation: R v Brass [2023] NSWSC 203 Hearing dates: 9 March 2023 Decision date: 09 March 2023 Jurisdiction: Common Law Before: Wilson J Decision: (1) Pursuant to s 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Ms Brass is to be detained at the Cumberland Hospital, Bunya Unit, Inpatient Mental Health Rehabilitation Service at Westmead or at such other place as determined from time to time by the Mental Health Review Tribunal, until she is released by due process of law.
(2) Pursuant to s 30N(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Victim Impact Statement which the Court received from the eldest child of Ms Brass is to be disclosed to the legal representatives of Ms Brass, on condition that the statement not be further disclosed to any other person or institution.
(3) Pursuant to s 30N(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I direct the Registrar of this Court to provide to the Mental Health Review Tribunal a copy of the statement to which I have just referred.
(4) The Registrar of this Court is directed:
(a) to notify the Minister for Health as soon as practicable as to the making of these orders; and
(b) to notify the Mental Health Review Tribunal as soon as practicable as to the making of these orders, providing the Tribunal with a copy of the Reasons of the Court today, a copy of Dr Adam Martin's report of 21 February 2023, a copy of Dr Stephen Allnutt's report of 7 March 2023, and a copy of Dr Hindol Mukherjee's report of 8 March 2023.
Catchwords: MENTAL HEALTH – criminal proceedings – referral to Mental Health Review Tribunal – orders following special verdict – s 33(1)(b) – immediate discharge into the community not the best course – release into community to occur in a structured, staged way
Legislation Cited: Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Category: Consequential orders Parties: Rex (Crown)
Bodelle Maree Brass (Defendant)Representation: Counsel:
Solicitors:
A Robertson (Crown)
R Pontello SC (Defendant)
Director of Public Prosecutions (NSW) (Crown)
Madison Marcus (Defendant)
File Number(s): 2021/00031275 Publication restriction: Nil
EX TEMPORE JUDGMENT
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HER HONOUR: In the matter of R v Brass the Court made substantive orders on 13 December 2022 with respect to a criminal prosecution, returning the special verdict pursuant to s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). Subsequently there were orders made by the Court for Ms Brass to be detained at, initially, the Forensic Hospital or at such other place as determined to be appropriate from time to time by the Mental Health Review Tribunal, pending further order of the Court. The matter has returned to Court today for those contemplated further orders.
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The Court is assisted in today's proceedings by a report received through the auspices of Justice Health. It has been prepared by Dr Hindol Mukherjee, who is presently Ms Brass’ treating practitioner. The Court also has the benefit of the Reasons for Orders made by the Mental Health Review Tribunal on 22 December 2022, and updated reports from each of Dr Adam Martin and Dr Stephen Allnutt, the former of 21 February 2023 and the latter of 7 March 2023.
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Probably the most significant material is that provided by Dr Mukherjee because it is informed by that doctor's regular attendance upon Ms Brass and his deep familiarity with her present circumstances and indeed with reports of her past circumstances.
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Consistent with the reasons from the Mental Health Review Tribunal from last year, Dr Mukherjee has noted that Ms Brass was transferred from the Forensic Hospital to the Bunya facility, which is a unit of the Cumberland Hospital, and she has now been in that unit under the doctor's care for some short period. Dr Mukherjee has considered the appropriate future direction of Ms Brass’ treatment and, in the course of that, he has considered the various risks that might apply to Ms Brass’ release into the community.
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The doctor is confident that Ms Brass has made a good recovery from her illness. She has been under regular clinical supervision, compliant with medication, and he believes that she demonstrates good insight into her continuing mental illness and into the need for medication, most likely for the balance of her life.
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He has considered the risks that attach to the various options for future treatment for Ms Brass but considers that she remains vulnerable to some risks, principally where there are stressors in her life. The doctor considered that if she were to be discharged into the community in the near future, she would have a moderate to high loading of future risk factors associated with violence, all of which would complicate her management. It is Dr Mukherjee's opinion that at this stage of Ms Brass’ treatment and rehabilitation, discharging to the community is not the best course, and not the course which is in the best interests of either Ms Brass or the community.
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There was a proposal for Ms Brass to reside with her parents and her parents are certainly supportive family members who would no doubt do their best to assist Ms Brass, but Dr Mukherjee considers that Ms Brass remains vulnerable to stress, and in the community there would be an increased potential for exposure to stress, increased responsibility to do with her children, and increased exposure to what he refers to as “high stimulus environments”. The increase in those stressors would be accompanied by decreased access to psychosocial support and close supervision, and to the assistance of medically qualified individuals. The doctor was concerned that there could be a risk of violence towards a child if Ms Brass was to experience a relapse of mental illness in the community and her discharge in the short term without proper community support and with some remaining vulnerabilities would increase the risk of such matters manifesting.
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The doctor is confident that there are a number of positive features for Ms Brass, not least of which is the family support to which I have referred in part already but, at present, the doctor is concerned that release to the community should take place in a structured, staged way, with Ms Brass having access to excursions into the community to a greater extent over time, and then in circumstances where she would be placed in a more structured or supportive environment than is proposed with immediate discharge.
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The doctor's opinion is that Ms Brass presently would be best treated through continuing treatment at the Bunya Unit. He has indicated that Ms Brass has noted her willingness to continue to engage in treatment at the Bunya Unit and there is a suitable programme of treatment available for her. Her continuing detention at the Bunya Unit would have the effect of maintaining and heightening her rehabilitation from acute illness. She would continue to have treatment in a unit with medium security which would enhance her rehabilitation, enhance planning towards an appropriate transition into the community, and enhance her capacity to maintain medication compliance into the future. All of that would in turn help in the minimisation of any risk to the community or individuals within the community.
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The doctor proposes that there will continue to be, if Ms Brass is detained at the Bunya Unit, an appropriate plan for what he refers to as “a graduated discharge”, that being the best process to ensure both her proper treatment and the protection of the community.
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The doctor's opinions are echoed to some extent in the Reasons given for orders made by the Mental Health Review Tribunal on 22 December 2022, on which date it was ordered that Ms Brass be transferred to the Bunya Unit and detained there.
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Doctors Martin and Allnutt have considered some of the documentation to which I have referred, that is the Mental Health Review Tribunal's Reasons and other current treatment notation and broadly, each is of the view that whilst Ms Brass poses a low risk to the community, she is in need of further treatment. Dr Martin, for example, referred to Ms Brass as being able to move into the community in time, when she has protective factors and could be regarded as of a minimal risk to others.
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On the basis of all of that material it is clear to the Court that, whilst Ms Brass has made substantial progress in her treatment, her condition is greatly improved and much stabilised, she is no longer acutely ill, she has some considerable insight into her condition, and the risk she poses to others is much reduced upon what it was at the time of the relevant incident, she remains a person in need of treatment and care, at present in the environment of a medium security institution. It seems that the Bunya Unit provides the best means of ensuring both Ms Brass’ appropriate treatment and the protection of the community.
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In those circumstances the Court accepts the joint position of the parties that the most appropriate disposition of the matter is for Ms Brass to be detained in her present situation pending further review by the Mental Health Review Tribunal and until she is released by due process of law. In the future weeks and months, the Mental Health Review Tribunal will be far better placed than is the Court to review Ms Brass’ circumstances and progress and to consider an appropriate management and ultimately discharge plan. The Tribunal has the capacity to hold hearings informed by in person attendance by all relevant persons, and all relevant clinicians to the question of Ms Brass’ future treatment and care, and that body is in the best position ultimately to make the determination concerning Ms Brass’ ultimate release.
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Having considered all that evidence and noting the joint position of the parties, the Court proposes to make the orders which the parties have jointly suggested in Draft Short Minutes of Order. That is, the Court makes the following orders:
Pursuant to s 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Ms Brass is to be detained at the Cumberland Hospital, Bunya Unit, Inpatient Mental Health Rehabilitation Service at Westmead or at such other place as determined from time to time by the Mental Health Review Tribunal, until she is released by due process of law.
Pursuant to s 30N(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the Victim Impact Statement which the Court received from the eldest child of Ms Brass is to be disclosed to the legal representatives of Ms Brass, on condition that the statement not be further disclosed to any other person or institution.
Pursuant to s 30N(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I direct the Registrar of this Court to provide to the Mental Health Review Tribunal a copy of the statement to which I have just referred.
The Registrar of this Court is directed:
to notify the Minister for Health as soon as practicable as to the making of these orders; and
to notify the Mental Health Review Tribunal as soon as practicable as to the making of these orders, providing the Tribunal with a copy of the Reasons of the Court today, a copy of Dr Adam Martin's report of 21 February 2023, a copy of Dr Stephen Allnutt's report of 7 March 2023, and a copy of Dr Hindol Mukherjee's report of 8 March 2023.
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Decision last updated: 13 March 2023
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