Re Nguyen

[2010] QMHC 17

MENTAL HEALTH COURT

CITATION:

Re Nguyen [2010] QMHC 017

PARTIES:

REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF DUONG KHAC NGUYEN

FILE NO/S:

No 261 of 2009

DELIVERED ON:

15, 19 July 2010

DELIVERED AT:

Brisbane

HEARING DATE:

14 July 2010

JUDGE:

Philippides J

ASSISTING
 PSYCHIATRISTS:

Dr E N McVie
Dr F Varghese

FINDINGS AND ORDER:

1. That at the time of the alleged offences the defendant was

of unsound mind as described in Schedule 2 of the Mental Health Act 2000 (Qld);

2. That the defendant be detained as a forensic patient at the Princess Alexandra Authorised Mental Health Service;

3. Approval of limited community treatment in the nature of escorted on and off the grounds leave only on the conditions that:

i.  the defendant remain under the escort of a health service staff member/s nominated by the authorised psychiatrist for the duration of the limited community treatment; and

ii. he comply with the directions of the nominated staff member/s for the duration of the limited community treatment.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with endangering particular property by fire and extortion – where defendant had history of illicit substance use – where defendant suffered from paranoid schizophrenia – where expert opinion differed as to the severity of defendant’s illness at the time of the charged offences – whether the defendant was deprived of the capacity to know that he ought not do the acts – whether defendant was suffering from unsoundness of mind as described in Schedule 2 of the Mental Health Act 2000 (Qld)

Mental Health Act 2000 (Qld), Schedule 2

R v Porter (1933) 55 CLR 182

Re Lloyd [2000] MHT 01.118
Stapleton v The Queen (1952) 86 CLR 358

COUNSEL:

Mr J Briggs for the Defendant
Mr D Lang for the Director of Mental Health

Mr S Vasta 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)

PHILIPPIDES J:

1. The defendant is charged with one count of endangering particular property by fire on 9 March 2009 and one count of extortion between 8 March 2009 and 11 March 2009.  The charges relate to events which occurred at the house where a Mr Pham, an acquaintance of the defendant, lived with his wife.  Mr Pham owed the defendant $8,000 which he had failed to pay.  The defendant had made efforts to recoup the money and had called at the house of Mr Pham some weeks before the events in question.  On 9 March 2009 the defendant went to Mr Pham’s house and demanded the money.  He poured a flammable substance onto a piece of cardboard which he set alight under the house.  He was heard to say, “I will burn all you guys” and before leaving threatened to come back and burn down the house.  The following day he returned and demanded the money from Mr Pham.  When told that Mr Pham did not have it, the defendant poured kerosene onto the veranda of the house and took a lighter off the table.  Mr Pham intervened and an altercation ensued, with the defendant being struck.

1. The defendant, who was born and raised in Vietnam until he was 12, has a history of use of illicit substances, including cannabis and crystalline methamphetamine (ice).  He reported that he ceased using ice about two to three weeks before the events in question.  I note that none of the clinical evidence suggested that intoxication was a factor in the conduct resulting in the charges.

1. Following the defendant being arrested, he was assessed by a court liaison service officer in March 2009.  It was noted that the defendant reported hearing voices but the reports were said to be vague and non-specific.  The defendant was not seen again by Mental Health Services until after he was assessed by Dr Schramm, who examined him on 8 October 2009.  Dr Schramm was able to elicit a report of psychotic symptoms, including hearing multiple voices, persecutory beliefs about unknown persons who had somehow gained an ability to torment the defendant and bizarre beliefs of passivity and mind reading.  I note that Dr Schramm reported that this history was provided reluctantly and in circumstances where the defendant was resistant to the prospect of a mental health defence and, indeed, had disavowed such a defence.

1. The defendant was assessed by Dr Tie of the Prison Mental Health Service on 21 October 2009 and diagnosed with a psychotic illness (schizophrenia or amphetamine induced psychosis) and antisocial personality disorder.  He was prescribed antipsychotic medication.  On 26 October 2009, the defendant’s condition was such that the dosage was increased.  On 24 November 2009, the defendant was admitted to the High Security Inpatient Service at The Park.  He was assessed as being psychotic on admission and spoke of himself in the third person, believing that he was “possessed” by the “Voodoo”.  He continued to describe passivity phenomena, including beliefs and experiences of being controlled.  He passively accepted treatment but remained isolative and insightless and continued to request a transfer to prison.  In the context of ongoing auditory hallucinations and persecutory delusions, he was offered a trial of Clozapine, which he declined.  His medication was eventually altered to Risperidone in early March 2010.  Over a four month admission the defendant’s mental condition improved such that he was transferred back to prison.  He is presently prescribed oral medication and is being managed on an involuntary treatment order community category.

1. The court has been provided with reports from Drs Schramm, Mann and van de Hoef in relation to the issue of unsoundness of mind.  Those reporters all gave evidence.  All the reporters agreed that the defendant suffers from a psychotic illness, namely paranoid schizophrenia.  All agreed that the defendant was suffering from psychotic symptoms at the relevant times and that he continues to suffer from those symptoms.  The area of disagreement concerned the severity of the defendant’s illness at the time of the charged offences and in particular, whether his illness was of such severity as to deprive him of the capacity to know that he ought not do the acts in question, that being the only capacity in issue.

1. In her report dated 9 February 2010, Dr van de Hoef noted that the defendant’s illness was not diagnosed or declared until after his arrest and, upon his account, had begun about 18 months prior to the alleged offences in the context of his smoking crystalline methamphetamine.  She noted that it had persisted three months after cessation of use of that drug and for a further 10 months, while he was in custody in hospital.  Dr van de Hoef described the illness as characterised by auditory hallucinations of a derogatory and threatening nature (and often commanding or at least suggesting him to kill himself or others) and persecutory and sometimes possibly grandiose delusional beliefs about surveillance and Voodoo.  She considered that the defendant was suffering from a psychotic illness that was evolving in its severity and which worsened after the events in question and certainly by the time of Dr Schramm’s initial assessment.

1. In Dr van de Hoef’s opinion, at the material times, the defendant’s illness impaired but did not deprive him of the capacity to know he ought not do the acts.  In reaching this conclusion, Dr van de Hoef was influenced by the paucity of evidence that the defendant’s delusional beliefs were very prominent at the time of the alleged offences.  Rather, she considered that the defendant acted to settle a debt and resorted to coercion and force to do so.  However, I note that in oral evidence, Dr van de Hoef made a number of concessions.  She indicated that, given that when she saw the defendant he was still psychotic, notwithstanding that he was being medicated, he would probably have been even more psychotic at the time of the alleged offences since his mental illness was then untreated.  She also accepted that, if the defendant’s report of the extent of his psychotic symptoms at the material time was accepted, her clinical opinion was that the defendant would have been deprived of the capacity to know he ought not to do the acts.  As mentioned, her reticence in concluding that the defendant’s psychotic symptoms were as severe as he subsequently reported arose out the lack of contemporary collateral evidence.

1. Dr Mann, who saw the defendant at the High Secure Unit, was of the opinion that the defendant was not completely deprived of the capacity to reason as to the moral rightness or wrongness of his conduct and to know that he ought not do the acts in question.  Dr Mann noted that, although the defendant reported psychotic experiences and suffered from delusions at the material time, there were also non‑psychotic motives for his conduct and he opined that the defendant’s delusional beliefs had not driven the defendant’s conduct.  He concluded that the defendant’s mental illness, while impairing the defendant’s capacity to know, did not result in deprivation of that capacity.  I note however that, in giving oral evidence, Dr Mann accepted that there was a substantial impairment of the defendant’s capacity resulting from his mental illness and that the line between substantial impairment and deprivation was a fine one.

1. Dr Schramm saw the defendant a second time after the initial examination on 8 October 2009.  On his review of the defendant on 17 March 2010, he considered that there had been a marginal improvement in the defendant’s mental condition, with a possible reduction in preoccupation with auditory hallucinations, but noted that the defendant remained psychotic notwithstanding many months of treatment and that he was insightless and opposed treatment.  He opined that the defendant had sought to minimise his symptoms and noted that he had revealed them only reluctantly.  While Dr Schramm was unable to provide a concluded view after the first examination of the defendant as to whether there was a deprivation of capacity, he was able to do so after the second assessment of the defendant when he was able to assess further the defendant’s thinking. 

1. Dr Schramm did not consider the defendant to have been acting on any delusional beliefs or command hallucinations.  He did, however, consider that the defendant’s judgment was so disturbed by the psychotic symptoms he was experiencing that he was deprived of the capacity to know he ought not do the acts in question.  As Dr Schramm described it, the defendant’s mind was so swimming with psychotic distress that he was deprived of the ability to reason with a moderate degree of sense and composure as to the wrongness of his conduct.  Dr Schramm indicated that the defendant’s state of mental disease was such that he could not think rationally of the reasons which, to ordinary people, might make his conduct right or wrong.

1. The capacity to know that what is done or proposed to be done is wrong refers to the moral rightness or wrongness of the acts.  In relation to that capacity, the High Court in Stapleton v The Queen (1952) 86 CLR 358 approved what was said by Dixon J in R v Porter (1933) 55 CLR 182 at 189-190:

“The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time.  Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong?  If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong.”

The principles in Porter and Stapleton have been applied in this court in many decisions, including that of Chesterman J in Re Lloyd [2000] MHT 01.118.

1. I note the advice of the assisting psychiatrists, who both favoured the clinical opinion of Dr Schramm on the issue of deprivation of the capacity to know.  Dr Varghese noted that the clinical evidence indicated that the defendant was seriously psychotic at the time in question with auditory hallucination, delusions of persecution, command voices and other first rank symptoms of schizophrenia, including running commentary hallucinations and facility phenomena.  His advice was that it was unlikely that in that state of severe psychosis the defendant could have reasoned about the wrongness of his conduct with a moderate degree of sense and composure.  I note that Dr Mann moved considerably closer to Dr Schramm’s opinion when giving oral evidence and that he indicated that the matter was ultimately a very close one in this case between an assessment of deprivation and substantial impairment. Moreover, I note that Dr van de Hoef was prepared to concede that there was deprivation of the capacity if the extent of the defendant’s subsequent reporting of his symptoms at the material times were accepted.  In the circumstances, I am satisfied to the requisite standard that the defendant was deprived of the capacity to know he ought not do the acts in question as a result of his mental illness.  Accordingly, I find that the defendant was of unsound mind at the time of the alleged offences.

1. In relation to the question of future management, I consider that a forensic order is clearly required, bearing in mind the concerning conduct of the defendant, his obvious ongoing treatment needs and the need to protect the community.  I note the comments of Dr Schramm as to the dangerousness of the defendant, particularly given that he has sought to minimise his symptoms.  It appears that the defendant was discharged from hospital to prison and subsequently granted bail without a comprehensive risk assessment having been undertaken.  The defendant is presently on an involuntary treatment order and being treated in the community on oral medication.  The advice of both the assisting psychiatrists is that at this stage no limited community treatment ought to be granted other than escorted leave.  Until a thorough risk assessment is made, that view would appear to be the only appropriate course available. 

1. I order that the defendant be detained in the Princess Alexandra Authorised Mental Health Service.  I approve limited community treatment in the nature of escorted leave on and off the grounds of the hospital, on the condition that the defendant remain under the escort of a health service staff member/s nominated by the authorised psychiatrist for the duration of the limited community treatment and that he comply with the directions of the nominated staff member/s for the duration of the limited community treatment.

1. I direct that a copy of the transcript of the proceedings be provided to the treating psychiatrist.