Re JBB

[2012] QMHC 24

MENTAL HEALTH COURT

CITATION:

Re JBB [2012] QMHC 24

PARTIES:

REFERENCE BY LEGAL AID QUEENSLAND IN RESPECT OF JBB

PROCEEDING NO:

No. 0146 of 2011

DELIVERED ON:

Ex tempore reasons delivered on 4 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

24 September 2012
2 October 2012
4 October 2012

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr E N McVie
Dr J M Lawrence

FINDINGS AND ORDERS:

1. That at the time of the alleged offences the defendant was not of unsound mind;

2. That the defendant is not fit for trial and that unfitness is of a permanent nature;

3. That the defendant be detained, pursuant to a Forensic Order (Mental Health Court – Disability), to the Logan-Beaudesert Authorised Mental Health Service; and

4. That Limited Community Treatment is approved to commence immediately, subject to the discretion of the authorised psychiatrist, on the following conditions:

(a)     That the patient must comply with the requirements of the authorised psychiatrist in relation to the care as provided under the treatment plan, including engagement in disability support services provided by the department of Communities, Disabilities and Community Care Services;

(b)     That the patient must not use alcohol unless permitted to do so by the authorised psychiatrist;

(c)     That the patient abstain from all illicit drugs and must cooperate fully in random medical tests for those substances as required by the authorised psychiatrist;

(d)     That the patient not drive a motor vehicle unless permitted to do so by the authorised psychiatrist

(e)     That the patient reside at an address or place approved in advance in writing by the authorised psychiatrist; and

(f)      That the patient must attend an appointment with a psychiatrist and all follow up appointments and inpatient care as required by the authorised psychiatrist.

COUNSEL:

J Briggs for the defendant
J Tate for the Director of Mental Health
A Lossberg for the Director of Public Prosecutions
S Burgess for the Director of Forensic Disability

SOLICITORS:

Legal Aid Queensland for the defendant
Crown Law for the Director of Mental Health
Office of the Director of Public Prosecutions (Qld)
Office of the Director of Forensic Disability (Qld)

ANN LYONS J:

1. This is a reference by Legal Aid Queensland in relation to JBB filed on 31 May 2011. An amended reference was filed on 21 June 2012. JBB is charged with an indecent act in a public place on 14 June 2010, an indecent act with intent to offend on 19 October 2011, an indecent act in a public place on 3 January 2012 and two further counts of an indecent act with intent to offend on 7 March 2012. JBB is currently 16 years of age and was 14 and 15 when these offences occurred. Essentially, all of the offences relate to him impulsively exposing himself to young females and masturbating.

1. There are a number of reports, in particular from Mr Hatzipetrou dated 19 March 2011. There are reports from Dr Beech dated 3 December 2011 and 21 August 2012, as well as reports from Dr Arthur dated 5 August 2011 and 20 April 2011. It is clear from the reports of both Dr Beech and Dr Arthur that JBB has a history of learning difficulties and developmental delay. He operates in the range of mild mental retardation and is highly impulsive.

1. Neither Dr Beech nor Dr Arthur considers, however, that he was deprived of any of the relevant capacities. In particular, he does understand the wrongfulness of his actions and he was not deprived of the capacity of control. The assisting psychiatrists in their advice concur with those reports.

1. I am therefore satisfied that at the time of all of the relevant offences JBB was not of unsound mind.

1. It is clear from both reports from Dr Beech and Dr Arthur as well as from the report of Mr Hatzipetrou that the real issue here is a question of fitness for trial. In particular, Dr Arthur considers that there is a significant intellectual impairment operating plus exhibitionism. Dr Arthur states that he gets sexual pleasure from his abhorrent behaviour and that this is a major drive for his sexual gratification. Dr Arthur considers that his intellectual impairment combined with his exhibitionism make him unfit for trial. However, he considers his intellectual disability is the main reason for his unfitness.

1. Dr Arthur notes that despite supervision, education and psychotherapy his behaviour has escalated. Dr Arthur stated in his evidence to the Court that he considers he is not fit for trial because he cannot reliably enter a plea and cannot rationally explain why he would enter a plea. He does not consider he has a true appreciation of the charges or a true appreciation of the consequences. In particular, he does not think he has given the charges his attention and he does not appreciate the seriousness of the offences. Dr Arthur considers his mental retardation also limits his insight into his exhibitionism.

1. Dr Arthur continued that whilst JBB can acknowledge what he has done, he is still considering a plea of not guilty, although he could not justify that rationally. Dr Arthur considers that if he was to enter a plea and endure a trial then he would struggle with cross-examination and would have great difficulty processing and analysing the information presented to him from witnesses and the prosecution during the trial. He considers that JBB is permanently unfit for trial, essentially because of his intellectual impairment.

1. Dr Beech, in his reports and in his evidence, also indicated that JBB can give a simple account of the event and he can give his version of events to his lawyers. He would have difficulty in relation to the dynamic factors in a trial, particularly considering the evidence that had been given and challenging it. Dr Beech also considered that, if JBB were to deny the allegation and plead not guilty and dispute the evidence, he would have even greater difficulty following the trial. Whilst he might understand in a general sense what was happening, he would have difficulty understanding the significance of the evidence and it would have to be carefully explained to him. He considers that with time and patience some matters could probably be explained to him, but he had significant concerns in that regard.

1. In particular, he considers that some aspects of his ability to participate in a trial would never improve even with the passage of time, education and maturation. In his view, his ability to follow the flow of evidence will never improve. He also considers that he would have considerable difficulty with retaining a memory of the evidence during the trial, particularly as the trial continued. Whilst he might understand a simple charge, he would not understand a complex matter. He considered that he would have difficulty with the concept of intention in particular and would have difficulty understanding how his actions would be perceived by others.  

1. Dr Beech considers that JBB is not fit for trial and that this unfitness is permanent.

1. Dr McVie and Dr Lawrence endorse the views of Drs Beech and Arthur that the unfitness is permanent. 

1. Whilst I note the arguments of Mr Lossberg from the Office of the Director of Public Prosecutions in this regard, I note in particular Mr Hatzipetrou’s report where he indicated that JBB appeared to misinterpret information and interactions with his lawyers and others at the Youth Justice Conference. Mr Hatzipetrou also noted that JBB was unable to recall previous interactions with his lawyer and the police. He stated that he answers questions to appease the police officers and ensure a swift return home. Mr Hatzipetrou considered he presented with deficits in the understanding of legal proceedings and court procedures. Coupled with the intellectual disability, his ability to comprehend future proceedings and provide timely information to a lawyer, he was likely to be significantly impaired.

1. Mr Hatzipetrou noted that JBB indicated he was “pretty good” with reading and writing, although he considered he was unable to read many of the words on the document. He also noted that the police officers did not explore the limits and the limitations of his cognitive abilities. He noted that he nodded and shook his head throughout the interview. He considers that JBB would agree with close-ended questions and was often exposed to leading and suggestible questions which restricted his responses to ‘yes’ or ‘no’.

1. Based on the reports of Drs Beech and Arthur, the report of Mr Hatzepetrou and the advice of the assisting psychiatrists, I am satisfied that JBB is not fit for trial and that that unfitness is permanent.

1. I am satisfied that the unfitness is a consequence of his natural mental infirmity, namely his intellectual disability.

1. I am satisfied that a Forensic Order is appropriate given the seriousness of the offending, his treatment needs and the protection of the community.  I note the clear advice of the assisting psychiatrists that JBB needs support, counselling and vocational programmes. In this regard I note the submission from the Director of Forensic Disability, who indicates that whilst there is no Certificate of Availability to the Forensic Disability Service there is an indication that some funding has been obtained for a Youth Worker to assist JBB for five hours a week for six months.  

1. Accordingly, there will be a Forensic Order (Mental Health Court – Disability) with Limited Community Treatment to Commence immediately. The conditions are in terms of the draft provided by the Director of Mental Health.

ORDERS:

1. That at the time of the alleged offences the defendant was not of unsound mind;

2. That the defendant is not fit for trial and that unfitness is of a permanent nature;

3. That the defendant be detained, pursuant to a Forensic Order (Mental Health Court – Disability), to the Logan-Beaudesert Authorised Mental Health Service; and

4. That Limited Community Treatment is approved to commence immediately, subject to the discretion of the authorised psychiatrist, on the following conditions:

1. That the patient must comply with the requirements of the authorised psychiatrist in relation to the care as provided under the treatment plan, including engagement in disability support services provided by the department of Communities, Disabilities and Community Care Services;

2. That the patient must not use alcohol unless permitted to do so by the authorised psychiatrist;

3. That the patient abstain from all illicit drugs and must cooperate fully in random medical tests for those substances as required by the authorised psychiatrist;

4. That the patient not drive a motor vehicle unless permitted to do so by the authorised psychiatrist

5. That the patient reside at an address or place approved in advance in writing by the authorised psychiatrist; and

6. That the patient must attend an appointment with a psychiatrist and all follow up appointments and inpatient care as required by the authorised psychiatrist.