Re Keily

[2010] QMHC 7

MENTAL HEALTH COURT

CITATION:

Re Keily [2010] QMHC 007

PARTIES:

REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF TROY KENNETH KEILY

PROCEEDING NO:

127 of 2009

DELIVERED ON:

27 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

27 April 2010

JUDGES:

Ann Lyons J

FINDINGS AND ORDER:

1.   That the defendant was of unsound mind at the time of the alleged offences as defined in Schedule 2 of the Mental Health Act 2000 (Qld).

2.   The defendant be detained as a forensic patient in the Authorised Mental Health Service Central Queensland Network.

3.   Limited Community Treatment is approved to commence immediately at the discretion of the treating psychiatrist as per the conditions of the draft order.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with two indictable offences – whether defendant was of unsound mind as defined in Schedule 2 of the Mental Health Act 2000 (Qld) at the relevant time.

Mental Health Act 2000 (Qld), Schedule 2

COUNSEL:

Ms C Morgan for the Defendant
Mr J Tate for the Director of Mental Health
Mr A Lossberg for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the Defendant
Crown Law for the Director of Mental Health

The Director of Public Prosecutions (Qld)

ANN LYONS J:

1. This is a reference by the legal representatives for Mr Keily.  He is charged with two indictable offences both of which occurred on the 18th of March 2009.  Count 1 is entering premises with intent; count 2 is robbery with violence.

1. The background facts are that on the evening of the 18th of March at 8.55 p.m. Mr Keily entered a store at Glenmore.  He was wearing a balaclava and was armed with a small paring knife.  He held the knife at waist height and told the 16-year-old cashier to get the money out.  When he fumbled the defendant said, "Hurry up or I'll stick you with a syringe” and he reached into his top shirt pocket.

1. The cashier put the money into a plastic bag and as the defendant started to walk off, he turned back and asked for cigarettes.  He then removed three cartons of cigarettes from a shelf.

1. Mr Keily told police he needed the money to pay a debt and it is clear that the belief that there was a need to pay a drug debt is a dominant theme.  The question is whether Mr Keily was of unsound mind at the time he committed these offences due to a deprivation of one of the relevant capacities.

1. It is clear from all the reports that there is no dispute that Mr Keily has had treatment resistant schizophrenia from the age of 19 and this has been well documented.  There are consistent reports that he has had thought alienation as well as projection of other's thoughts and references from TV.  He has previously been on depot medication which he had ceased. 

1. Mr Keily has had a long history of drug use with indications to the psychiatrists that he considered the drugs assisted him in alleviating his symptoms.

1. It is also clear that Mr Keily was floridly psychotic when he was seen by Dr Calder-Potts three weeks after the offences and when he was seen by Dr Fama in October 2009.

1. The psychotic symptoms were consistent with previous psychotic episodes and it's clear that they have continued for a long period of time.  It is only recently that the symptoms have alleviated after treatment with Clozapine.  Significantly, Mr Keily's desire for amphetamines has also since decreased.

1. The essential submission from the Director of Public Prosecutions is that whilst Mr Keily was psychotic at the time he committed the offences he was still able to plan the robbery, disguise himself with a balaclava and arm himself with a knife and a syringe.

1. The question, therefore, is whether he was, in fact, deprived of one of the relevant capacities at the time he committed the offences given this level of planning.

1. Counsel for the Director of Public Prosecutions submits that whilst there may have been an impairment of capacity, there was not a deprivation of one of the relevant capacities.

1. Turning to the evidence before the Court, the Maryborough Correctional Centre notes indicate that the Prison Mental Health Service saw Mr Keily on the 9th of April and they considered he was floridly psychotic and a recommendation for assessment was completed.  At that time he was getting ideas of reference from the television and radio with thought broadcast and thought insertion.

1. It was clear that he was being distressed by voices that were telling him to do things.  He was also feeling compelled to repeat certain sentences to block out unwanted thoughts. 

1. On admission to prison Mr Keily had indicated he had been self-medicating with amphetamines.  He considered that ‘speed’ could control his voices.

1. Dr Steele states that he saw Mr Keily in August 2009 where he indicated that Mr Keily suffered from treatment resistant schizophrenia of a paranoid sub-type with a previous history of mental and behavioural disorders due to polysubstance misuse, predominantly amphetamines, cannabis and LSD.

1. In his note to the Court dated the 20th of April Dr Steele gives an update report where he indicates he was Mr Keily's treating psychiatrist in August 2009.  He states that despite maintenance on two anti-psychotic medications at full dose at that point Mr Keily had numerous breakthrough symptoms including grandiose and paranoid delusions, delusions of telepathy with thought alienation and broadcasting command auditory hallucinations and delusions of reference.

1. At the outset, I should indicate that I do not consider that the question of intoxication is relevant.  It is clear that Mr Keily did have a history of drug use and there is a question of the extent of his drug use on the day.

1. The prison notes indicate that in March 2009 he indicated to staff he was using two to three grams of amphetamines per week, whilst he told Dr Fama he used one gram a fortnight.  It would appear that he thought he injected speed which he purchased at 8 a.m. on the morning of the offences but he's not sure entirely of what it was he injected.

1. It would also appear that early the next day he was given sugar and he injected that thinking it was very good.  It would also seem that Mr Keily indicates he had sniffed a substance from a spray bottle on the day of the offences which he reported was amyl nitrate. 

1. Accordingly, whilst there is some evidence that he may have used drugs at 8 a.m. on the morning, there is no evidence that he was still affected at the time he committed the offences some 12 hours later.  He certainly was not intoxicated and, indeed, the consensus of the psychiatric evidence was that he would have been in withdrawal by that stage.

1. There is no evidence that even if he did use amyl nitrate as he contends that this had any psychotropic effect.  None of the psychiatrists consider that the issue of intoxication on the day is a relevant factor.

1. Turning then to the psychiatric evidence.  Dr Calder-Potts examined Mr Keily on 13 May 2009.  That report noted Mr Keily had previously been diagnosed with schizophrenia in Rockhampton and he had been commenced on medication but that medication had ceased.

1. Dr Calder-Potts considered that the offences occurred in the context of ongoing psychotic symptoms which Dr Calder-Potts considers were exacerbated by Mr Keily's report that he had used amphetamines and amyl nitrate.

1. Dr Calder-Potts did not consider there was a dispute of fact.  Dr Calder-Potts however did not think that Mr Keily was deprived of any of the relevant capacities given the extent of pre-planning involved in relation to the offences.

1. He also stated that after the robbery, Mr Keily had concerns about the victim as well as guilt.  He considered therefore that Mr Keily was not deprived of the capacity to know he ought not do the act.  He considered that Mr Keily's behaviour was driven by his wish to obtain money and get drugs although he concedes, at the time, he was chronically psychotic.

1. Dr Fama examined Mr Keily on the 30th of October 2009 and in a report to the Court he indicated that Mr Keily has not used illicit drugs since his release from the Maryborough Correctional Centre on the 4th of June 2009.

1. In his interview with Dr Fama, Mr Keily indicated that at the time of the offences he was hearing voices saying he owed money and that they were going to take his fingers off.  He also had voice commands telling him to rob and he decided to impulsively rob the shop to pay off the drug debt and to get more money for drugs.

1. Dr Fama considers that there was clearly some planning but that this was in the light of Mr Keily's long-standing and persistent psychosis.  He also considers that even if intoxication was present it would not have contributed significantly to an already florid state of psychosis.  He states that at most, it could have impaired his capacity to control his actions.

1. Dr Fama believed that the mental disease itself, was sufficient to deprive him of the capacity to know he ought not do the acts and that he would, by his attempt at concealment, have known what he was doing was against the law, however, Dr Fama considered that the urging of Mr Keily's voices and his general mental turmoil probably made him unable to appreciate the wrongness of his actions.

1. Dr Fama considered Mr Keily was racked by hallucinatory threat and in such a state could not have been able to exercise ordinary moral caution.

1. Dr Fama stated that whilst the clear purpose of the robbery was to obtain money for drugs, it is not the purpose of the actions which is to be considered but rather the condition of Mr Keily's mind at the time he committed the offences.

1. Dr Fama considered that Mr Keily was clearly experiencing voice commands at the time he committed the offences.  Dr Fama is clearly of the view that Mr Keily was deprived of the capacity to know he ought not do the acts at the time he committed the offences.

1. This view is supported by the views of the assisting psychiatrists.  Dr Varghese considers that Mr Keily has had ongoing schizophrenia rather than fluctuating psychosis due to amphetamines.

1. Dr Varghese considers that Mr Keily was in a highly psychotic state but that there was a realistic element to the psychosis, however, he considered that that is not unusual given that psychotic symptoms are a projection of internal wishes.

1. He considered that Mr Keily could not assess his situation with a moderate degree of composure.  Dr Varghese considers that, in fact, he thinks that it was the mental element of control that was, in fact, deprived.

1. In any event, Dr Varghese considers that at the time that Mr Keily made the decision to carry out the actions he was of unsound mind given the deprivation of capacity at the time.

1. Dr McVie has stated that she fully supports Dr Fama's view and that she considers that the fact that Mr Keily has now ceased drug use while on Clozapine supports a view that his drug use was linked to his psychotic problems and that his offences were linked to getting the drugs he needed to stop the voices.

1. She considers that he was deprived of the capacity to know he ought not do the act. 

1. Having considered all of that evidence, the views of the existing psychiatrists and the submissions of counsel I am satisfied that the defendant was suffering from paranoid schizophrenia at the time he committed the offences and due to the extent of his mental illness he was unable to know he ought not do the act.

1. Whilst Mr Keily was self-medicating with amphetamines at times, I am satisfied that this mental illness was sufficiently established and that it was his mental illness which deprived him of the capacity to know he ought not do the act.

1. I am satisfied that he was of unsound mind within the meaning of the Mental Health Act at the time he committed the offences on the 18th of March 2009.

1. Given the seriousness of the offences and Mr Keily's ongoing mental illness, I consider that a forensic order is required.  That is also the view of the assisting psychiatrists and consistent with the submission of the Director of Mental Health.  I therefore order that Mr Keily be detained in the Central Queensland network authorised Mental Health Service and that he be granted limited community treatment to commence immediately.

1. The terms are otherwise as set out in the draft order which has been submitted by the Director which has been initialled by me and placed with the file.