Re NRB

[2006] QMHC 5

MENTAL HEALTH COURT

CITATION:

Re NRB [2006] QMHC 005

PARTIES:

REFERENCE BY THE DEFENDANT'S LEGAL REPRESENTATIVE IN RESPECT OF NRB

PROCEEDING NO:

No 0209 of 2005

DELIVERED ON:

7 and 9 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

7 and 9 February 2006

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr D A Grant (7 February 2006)
Dr J M Lawrence (9 February 2006)

FINDINGS AND ORDER:

1. The defendant was not of unsound mind at the time the offences were allegedly committed
2. The defendant is permanently unfit for trial
3. The defendant is to be detained at the Mater Children’s Hospital and Area Network Authorised Mental Health Service.  Limited community treatment is authorised on certain conditions.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is 16 years old – where he is charged with numerous property offences – where defendant suffers from frontal lobe damage – where defendant has conduct disorder and mild mental retardation – whether the defendant was of unsound mind at the time the offences were allegedly committed – whether the defendant is fit for trial – whether a forensic order is required

Mental Health Act 2000 (Qld), s 268, Schedule 2

COUNSEL:

Mr Rose for the defendant
Mr Tate for the Director of Mental Health
Mr Vasta for the Director of Public Prosecutions

SOLICITORS:

ATSILS for the defendant
Crown law for the Director of Mental Health
The Office of the Director of Public Prosecutions

7 February 2006

1. HOLMES J:  NRB is charged with burglary and stealing on the 20th of April 2005, two counts of break and enter premises and steal on the 3rd of May 2005; and stealing with an alternative count of receiving on the 4th of May 2005.  There is another count of break and enter premises and steal on the 3rd of May 2005.  The same offence is charged on the 4th of May 2005 and again on the 6th of May 2005.  There is a further charge of stealing with an alternative of receiving with circumstance of aggravation on the 6th of May 2005; and another charge of break and enter premises and steal on the 10th of May 2005. There are earlier charges of entering dwelling and committing an indictable offence between the 28th of February 2003 and the 10th of March 2003; entering premises and committing an indictable offence on the 8th of March 2003; unlawful entry of a motor vehicle on the 15th of April 2003; entering premises and committing an offence on 9 June 2004; receiving on the same date; entering premises and committing an offence between the 9th of June and the 10th of June 2004; stealing between those dates;  receiving between those dates; two charges of unlawful entry of a motor vehicle on the 15th of March 2004; unlawful use of a motor vehicle on the 7th of April 2004; wilful damage on the 21st of March 2004; unlawful use of a motor vehicle on the 1st of September 2004; entering premises and committing an indictable offence between the 9th and 10th of October 2004; entering premises and committing an indictable offence between the 7th of March 2004 and the 8th of March 2004; entering premises with intent between the 6th and 9th of August 2004; entering premises and committing indictable offence on the 9th of August 2004; unlawful use of a motor vehicle on the same date; entering premises with intent on the 10th of August 2004; entering premises and committing indictable offence on the 10th of June 2004; and unlawful use of a motor vehicle on the 19th of March 2004.

1. NRB has been examined by Dr Murray, a psychologist, who assessed his full scale IQ at 60, in the extremely low range, and also described features of a head injury causing frontal lobe damage, that injury occurring on the 7th of April 2004.  He has also been seen by Professor Nurcombe, who diagnosed a conduct disorder, mild mental retardation and organic personality disorder and frontal lobe damage.  He did not consider that NRB was deprived of any of the relevant capacities so as to render him unsound at the time of commission of any of the offences. 

1. I find that NRB was not of unsound mind within the meaning of the Mental Health Act 2000 at the time the offences were allegedly committed.

1. Dr Nurcombe also found that NRB was not unfit for trial, although he described his fitness as marginal.  There were a number of complications to that conclusion, which were explored in his evidence this morning.  He said that he considered NRB had a rudimentary capacity to plead.  His ability to follow the course of proceedings, he said, was questionable, as was his ability to understand the effect of the evidence given.  He did not accept that NRB had, as claimed, a total loss of memory for all offences, and that conclusion seems to be soundly based. 

1. But importantly, Dr Nurcombe described NRB as having a very seriously impaired capacity to cooperate with counsel and what emerged from his evidence, I think, is that that impaired capacity to cooperate with counsel is not a volitional matter so much as the result of the frontal lobe damage he has sustained.  His lack of motivation and attention arise from the injury rather than being a long existing personality feature. 

1. Dr Wood has described his view of the evidence: that what Professor Nurcombe has identified as a marginal fitness, is compounded by an organic mental state which raises these behavioural issues.  That in itself, he says, is a further impediment to NRB’s capacity to take part in the trial, which leads him, on balance, to the conclusion that NRB is permanently unfit for trial. 

1. Dr Grant similarly points to the problems arising specifically from the brain injury with executive functioning:  disinhibition, and features like fatuousness. Those, he says, are based in organic causes, and those, he considers, are matters which Professor Nurcombe has really not, to date in his report, added into the equation, rather assuming that it is the issues of intellectual impairment and conduct disorder which are the primary considerations.

1. At any rate, Professor Nurcombe's evidence contained so many reservations and qualifications about NRB’s capacity to take part in the trial because of the difficulties in cooperating with counsel, following the evidence and following the course of proceedings, that I would be inclined to consider that if the finding were a marginal one, one would be at the unfitness side of the margin.  My view in that regard, is reinforced by what Dr Wood and Dr Grant have had to say on the matter. 

1. [The matter was adjourned for further submissions]

9 February 2006

1. On the 7th of February 2006 I heard evidence from Professor Nurcombe and came to certain conclusions which lead me to make these findings.  NRB is charged with a range of charges which I set out in my reasons on the 7th of February 2006.  I am satisfied that he was not of unsound mind at the time the offences set out in my reasons given on the 7th of February 2006 were allegedly committed but I am satisfied that he is unfit for trial and that that unfitness is of a permanent nature.  A forensic order is, in my view, needed in this case given the many difficulties from which NRB suffers and also the ongoing risk that a 16 year old with frontal lobe damage may pose to the community if he continues in a path of taking motor vehicles, particularly.

1. I propose, therefore, to make a forensic order.  I order that NRB be detained at the Mater Children's Hospital and Area Network Authorised Mental Health Service.  I approve limited community treatment to commence forthwith in the terms of the conditions set out in the submission from the Director of Mental Health which are as follows:

Escorted (on and off the grounds of the hospital):

(1)         that the patient is to remain under the escort of a health service staff member/s nominated by the authorised psychiatrist for the duration of the limited community treatment;

(2)         for the purposes of escorted limited community treatment, the patient complies with the directions of the nominated staff member/s for the duration of the limited community treatment.

Unescorted (on and off the grounds of the hospital):

(1)         that the patient complies with the requirements of the authorised psychiatrist in relation to the taking of prescribed medication and other treatment;

(2)         that the patient refrains from using alcohol and illicit drugs and cooperates fully in random medical tests for those substances as required by the authorised psychiatrist;

(3)         the patient is to return to the ward at the time specified by the authorised psychiatrist;

More than overnight:

(1)         that the patient reside at a place approved in advance, in writing, by the authorised psychiatrist;

(2)         that the patient attend all follow-up appointments and inpatient care as required by the authorised psychiatrist;

(3)         that the patient comply with the requirements of the authorised psychiatrist in relation to taking of prescribed medication and other treatment;

(4)         that the patient refrain from using alcohol and illicit drugs and cooperate fully in random medical tests for the detection of those substances as required by the authorised psychiatrist.

1. I should say this, however, although NRB’s immediate placement and assessment at the Mental Health Services is entirely appropriate, given that he suffers from, it seems, an acquired brain injury as well as mild mental retardation, I do not see psychiatric services as having a great deal to offer him in the longer term.  It seems to me essential that there be coordination between Disability Services Queensland and the Department of Child Safety to sort out where he goes from hospital and how he is managed thereafter.  Education Queensland also may be expected to have some role in that process.

1. It is vital that those agencies liaise and formulate a plan with haste, because it is not appropriate that he be held in a psychiatric institution for any significant length of time at all.  In order to ensure that attention is given to the formulation of such a plan with some promptitude I direct that the Chief Executive Officer of Disability Services Queensland file with the Registrar of this Court a treatment and management plan for NRB on or before the 9th of March 2006.

1. I approved limited community treatment rather than ordered it, but to make it quite clear, that limited community treatment is to be arranged at the discretion of the authorise psychiatrist.