R v Howe
[2004] TASSC 61
•23 June 2004
[2004] TASSC 61
CITATION: R v Howe[2004] TASSC 61
PARTIES: R
v
HOWE, Terrence Raphael
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: CRIMINAL
FILE NO/S: C235/2003
DELIVERED ON: 23 June 2004
DELIVERED AT: Hobart
HEARING DATES: 20, 21 April, 15 June 2004
JUDGMENT OF: Slicer J
CATCHWORDS:
Criminal Law - Criminal liability and capacity - Defence matters - Insanity - Disturbance of the mind, mental disease or mental infirmity - What constitutes a mental disease.
Mental Health Act 1996 (Tas), s4.
Criminal Justice (Mental Impairment) Act 1999 (Tas), ss8, 14, 17, 18, 23.
Bratty v R [1963] AC 386, followed.
Aust Dig Criminal Law [31]
REPRESENTATION:
Counsel:
Appellant: M A Stoddart
Respondent: K M Baumeler
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Piggott Wood & Baker
Judgment Number: [2004] TASSC 61
Number of Paragraphs: 17
Serial No 61/2004
File No C235/2003
THE QUEEN v TERRENCE RAPHAEL HOWE
REASONS FOR JUDGMENT SLICER J
23 June 2004
Terrence Raphael Howe has been found not guilty of the crime of receiving, contrary to the Criminal Code, s258, on the ground of insanity. The case is a good example of the efficacy of special legislation, the competence and sophistication of juries, and the tension between the intent of Parliament in its legislation and the capacity for delivery of outcome from the Executive.
Mr Howe has a long history of mental impairment caused by the combined effects of two motor vehicle accidents, occurring in 1999 and 2002, which caused physical damage to the brain. The combined effect has led to the break up of his family life, loss of employment and a legacy of severe behavioural and cognitive difficulties.
In 2004, he was indicted for the crime of arson and at the time of trial, a separate count of receiving relating to a different time and place was joined. Because of the mental state of the accused, a jury was empanelled, pursuant to the Criminal Justice (Mental Impairment) Act 1999 ("the Act"), s8, to determine fitness to stand trial. Two psychiatrists, one of whom was Dr Crawshaw, the Clinical Director of Forensic Mental Health Service, gave evidence which supported the conclusion that Mr Howe was a person to whom the Act applied. The jury found Mr Howe to be unfit to be tried and was unlikely to become fit to stand trial during the next 12 months.
Following that determination, the Court, through the same jury, conducted a special hearing as required by the Act, s16. The jury verdict reflected the sophistication of its members and provided a good example of the operation of the legislation. The jury returned a verdict in relation to the allegation of arson in accordance with the Act, s17(a), namely that Mr Howe was:
"not guilty of the offence charged or of any offence available as an alternative."
The verdict was, on the evidence adduced at trial, both permitted and appropriate. The issue for the jury in relation to the allegation of receiving was more complex. The jury, aware of the mental condition of the accused and conscious that his defence was being undertaken by counsel acting for a person unfit to stand trial, were required to consider the mental element of knowledge as an essential ingredient of the crime. The did so and their verdict was likewise permitted and appropriate. The verdict, in accordance with the Act, s17(c), was that Mr Howe was:
"not guilty of the offence charged on the ground of insanity."
The Act, ss18(2) and 21, states:
"(2) If ¾
(a)a defendant is found not guilty of the offence charged on the ground of insanity or on a finding being made to that effect; or
(b)a finding cannot be made that the defendant is not guilty of an offence ¾
the court must declare that the defendant is liable to supervision under Part 4.
…21 ¾ On a verdict that a person is not guilty of an offence on the ground of insanity or on a finding being made to that effect, the court must declare that the person is liable to supervision under Part 4."
The Act, s23, then affords powers to a court in dealing with a person liable to supervision in the following terms:
"23 ¾ A court which declares that a defendant is liable to supervision under this Part may ¾
(a)release the defendant unconditionally; or
(b)make a supervision order releasing the defendant on such conditions as the court thinks fit; or
(c)make a community treatment order, within the meaning of the Mental Health Act 1996, in respect of the defendant; or
(d)make a continuing care order, within the meaning of the Mental Health Act 1996, in respect of the defendant."
Thus far the aim of the Executive and the response of the criminal justice system reflected the legislative purpose and regime.
On 20 April 2004, Mr Howe was declared to be a person liable to supervision. He was remanded in custody, pending assessment and advice as to the appropriate disposition. A report provided by Dr Crawshaw dated 11 June 2004, stated (inter alia):
"I had delayed writing to the Court in providing this opinion as I had hoped that by now we would have been able to provide the Court with a detailed support plan which would enable us to support Mr Howe in the community and minimise his risks to others and of re-offending. While there has been considerable planning undertaken by Disability Services and staff from Forensic Mental Health Service to date we have not been able to finalise the plan. We have had a clear indication from a Non-Government Organisation (NGO) that the supportive accommodation is likely to become available for Mr Howe. The preliminary discussions we have had with this NGO indicate that they could provide the high intensity support that would be necessary for Mr Howe. We have also been looking at options in terms of structured daytime activity which again would assist in his management. Unfortunately there remains some issues between Disability Services and MAIB which need to be resolved before we can finalise this plan.
In terms of the options that the Court has under Part 4 of the Act it is my view that currently Mr Howe does not meet the criteria for a CCO or a CTO. I have no doubt that from time to time he would well meet these criteria but his current very settled mental state means that it is unlikely that the threshold criteria would be met.
He clearly requires supervision and ordinarily I would be recommending to the Court that it consider a supervision order with conditions around his living situation, cooperating with treatment and rehabilitation, the taking of medication, and the avoidance of alcohol and illicit substances. As I indicated at this point in time it is not yet possible to state to the Court that we have the support structure ready to go should Mr Howe be placed on such a supervision order.
It would be a matter for the Court to determine whether or not it felt his risks and offending were of sufficient severity to consider a Restriction Order. It would be my view that in the first instance it would be beneficial to trial Mr Howe with intensive support within the community but this is a matter for the Court.
I trust this report is of assistance to the Court in its deliberations and would be happy to answer any questions that the Court might have."
The sentencing hearing resumed on 15 June 2004. The Court was advised that, as of that date, no accommodation or placement could be provided and that there was no agreement between agencies of the State as to the provision of resources to obtain placement. The Court was also advised that it was on that day the Motor Accidents Insurance Board would not meet the costs of placement and ongoing care.
Neither the Crown nor the defence had sought a "restriction" order as a suitable form of disposition and in fact the material furnished to the court suggested that such an order was inadvisable because of its inflexibility. The advice provided by Dr Crawshaw was less constructive than his evidence given during the "fitness to plead". The Court was told that in the opinion of officers involved in the area of mental health, Mr Howe would not be classified as suffering from a disease and, accordingly, ought not be classified as being susceptible to either a community treatment order or a continuing care order within the meaning of the Mental Health Act 1996. If that be a considered view of mental health professionals, then it transgresses the preserve of another discipline which has been given responsibility by Parliament. The Act, s23, affords power following a process which renders a person liable to supervision. Here there is a finding that a person charged with a crime has been found by a jury to be not guilty by reason of insanity. It is illogical to suggest that such a finding is inconsistent with the existence of a "mental disease", which has long been afforded, through judicial interpretation, a wide import. (R v Porter (1933) 55 CLR 182; R v Meddings [1966] VR 306; R v Foy [1960] Qd R 225). Whilst an affliction might not amount to a mental disease (R v Brown 38/1995; R v Quick [1973] 3 WLR 26) here the evidence and the jury verdict establishes the existence of a "mental disease". This was not a transient condition (Kemp v R [1957] 1 QB 399; Cottle v R [1958] NZLR 999). As Lord Denning stated in Bratty v R [1963] AC 386 at 412:
"… any mental disorder which has manifested itself in violence and is prone to recur in violence is a disease of the mind. At any rate it is the sort of disease for which a person should be detained in hospital rather than be given an unqualified acquittal."
The Mental Health Act, s4, provides a statutory definition of "mental illness" in the following terms:
"4 ¾ (1) A mental illness is a mental condition resulting in ¾
(a) serious distortion of perception or thought; or
(b) serious impairment or disturbance of the capacity for rational thought; or
(c) serious mood disorder; or
(d) involuntary behaviour or serious impairment of the capacity to control behaviour.
(2) A diagnosis of mental illness may not be based solely on ¾
(a) antisocial behaviour; or
(b) intellectual or behavioural nonconformity; or
(c) intellectual disability; or
(d) intoxication by reason of alcohol or a drug."
The term "mental disease" as used in the Criminal Code, s16, is not necessarily synonymous with the definition of "mental illness" as provided for in the Mental Health Act, s4, (see Jeffrey v R [1982] Tas R 199) but here the evidence clearly establishes that Mr Howe comes within the statutory definition. The matters raised by the mental health professionals relate to capacity to treat or resources available and their allocation according to priority or utility, not to power and responsibility provided by Parliament. Irrespective of that conclusion, Parliament has provided for the making of a community treatment or continuing care order to the judicial arm of government. If officers of the Executive believe that such ought not be the case, then it is for them to approach the Parliament in the appropriate way.
The statement that Mr Howe does not meet the criteria and that "his current very settled mental state means that it is unlikely that the threshold criteria would be met" is contrary to the evidence given at the preliminary hearing that Mr Howe was likely to remain "unfit to plead" for at least a period of 12 months. Had a contrary view been advanced at the preliminary hearing, it may be that recourse to the Act, s14(2) was required.
The outcome is unsatisfactory. A restriction order is said to be an inappropriate disposition. Disagreement as to financial responsibility has inhibited resolution. The assertion that Mr Howe does meet a diagnostic criteria for treatment or care attempts to preclude the making of two of the remaining three statutory orders. The remaining option, limited to a form of supervision, is unsatisfactory unless it meets the needs of Mr Howe and the wider interests of the community.
The further hearing of this sentencing hearing will be adjourned. A supervision order will be made in accordance with the Act, s23(b), as an interim expedient and the question of final disposition will be determined at a later time.
The terms of the said order are:
1 That Terrence Raphael Howe follow the written directions from the Clinical Director of Forensic Mental Heath Service, or a psychiatrist holding the equivalent position in the State Service, or his or her nominee as to:
(a)his place of residence and to comply with the rules and regulations as stated by that place of residence, or an officer of Disability Services or an officer of Forensic Mental Health Service;
(b)his taking of medication;
(c)attendance as an outpatient at a nominated treatment centre including general practitioners, psychiatrists, therapists, officers of Forensic Mental Health Service or their nominees and officers of Disability Services for consultation, assessment, treatment or review;
(d)attendance and participation in structured day activity programs;
(e)undertaking activities outside the structured day activity programs.
2 That Terrence Raphael Howe wholly abstain from the consumption of any narcotic substance, be it a plant or be it all substances defined by the Misuse of Drugs Act 2001.
3 That Terrence Raphael Howe wholly abstain from the consumption of alcohol.
4 That Terrence Raphael Howe submit when and where required by the Clinical Director of Forensic Mental Health Service or their nominee, to the taking of blood or urine for analysis of drug and alcohol testing, medication levels and other such maters as required.
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