R v MB (No. 4)

[2015] NSWSC 593

Supreme Court

New South Wales

Medium Neutral Citation:	R v MB (No. 4) [2015] NSWSC 593
Hearing dates:	On the papers
Date of orders:	20 May 2015
Decision date:	20 May 2015
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	1. The offender is to be taken to, and detained in, a mental health facility, namely the Forensic Hospital. 2. The Registrar is to forward a copy of these reasons to the Deputy President of the Mental Health Review Tribunal.
Catchwords:	PRACTICE AND PROCEDURE – Mental health of offender – Consequential orders following imposition of a limiting term – No point of principle
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990
Cases Cited:	Director of Public Prosecutions v Khoury [2014] NSWCA 15 R v MB (No 2) [2014] NSWSC 1755 R v MB (No 3) [2014] NSWSC 1796
Category:	Principal judgment
Parties:	Regina - Crown MB - Offender
Representation:	Counsel: Ms N Noman SC - Crown Mr R Webb - Offender   Solicitors: Director of Public Prosecutions (NSW) – Crown Nyman Gibson Stewart – Offender
File Number(s):	2011/149163
Publication restriction:	Nil

Judgment

1. On 11 December 2014 I found that on the limited evidence available MB (“the offender”) committed the offence charged against her, namely that on 18 November 2010, at North Strathfield in the State of New South Wales, she did murder OB: R v MB (No 2) [2014] NSWSC 1755.

2. On 19 December 2014 I nominated, as the limiting term in respect of the offence of murder, a period of 20 years commencing on 11 December 2014: R v MB (No 3) [2014] NSWSC 1796. On that occasion, and in accordance with s. 24(1)(a) of the Mental Health (Forensic Provisions) Act 1990 (“the Act”) I referred the offender to the Mental Health Review Tribunal (“the Tribunal”) and further ordered that she was to be detained in an appropriate correctional centre or such facility as the Mental Health Review Tribunal may determine.

3. On 26 March 2015 the Mental Health Review Tribunal determined, pursuant to s. 24(2) of the Act, that MB was suffering from a mental illness. Pursuant to s. 47 of the Act, the Tribunal formed the opinion that MB remained unfit to be tried. The Tribunal also determined that the current arrangements for MB’s care, treatment and detention as a forensic patient at the Forensic Hospital should continue.

4. On 14 April 2015, as required by s. 24(3) of the Act, I received notification of the Tribunal’s determinations set out above, along with the statement of reasons in support of those determinations. I have now been asked by the Deputy President of the Tribunal to make an order pursuant to s. 27 of the Act which is in the following terms:

27 Orders Court may make following determination of Tribunal after limiting term is imposed

If a Court is notified by the Tribunal of its determination in respect of a person under section 24 (3), the Court may:

(a) if the Tribunal has determined that the person is suffering from mental illness or that the person is suffering from a mental condition for which treatment is available in a mental health facility and that the person, not being in a mental health facility, does not object to being detained in a mental health facility-order that the person be taken to and detained in a mental health facility, or

(b) if the Tribunal has determined that the person is not suffering from mental illness or from a mental condition referred to in paragraph (a) or that the person is suffering from such a mental condition but that the person objects to being detained in a mental health facility-order that the person be detained in a place other than a mental health facility.

5. Having determined a limiting term, I have no residual power to release the offender by simply declining to make an order pursuant to s. 27. Section 27 does not confer a discretion to make no order at all. It confers a power to determine the place where a person who is determined by the Tribunal to be suffering from a mental illness, should be detained: Director of Public Prosecutions v Khoury [2014] NSWCA 15.

6. The Tribunal has determined that the current arrangements for MB’s care, treatment and detention as a forensic patient at the Forensic Hospital should continue to apply. I further note that both the Crown and the solicitor for the offender are on notice of the request from the Tribunal that I make orders pursuant to s. 27 and neither has sought to be heard.

7. Accordingly, I make the following orders:

1. The offender is to be taken to, and detained, in a mental health facility, namely the Forensic Hospital.

2. The Registrar is to forward a copy of these reasons to the Deputy President of the Mental Health Review Tribunal.

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Decision last updated: 13 March 2017