Re Oxlee

[2013] QMHC 22

MENTAL HEALTH COURT

CITATION:

Re Oxlee [2013] QMHC 22

PARTIES:

REFERENCE BY LEGAL AID QUEENSLAND IN RESPECT OF RUSSELL JAMES OXLEE

PROCEEDING NO:

0177 of 2012

DELIVERED ON:

9 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2013, 3 December 2013

JUDGE:

Ann Lyons J

ASSISTING PSYCHIATRISTS:

Dr J Lawrence
Dr E N McVie

FINDINGS AND ORDERS:

That the defendant was not of unsound mind as described in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offence.1.       

That the defendant is fit for trial in relation to the alleged offence.2.       

That the proceedings against the defendant in relation to the count of stealing as a servant between 25 October 2008 and 15 January 2010 are to continue according to law. 3.       

That a copy of the transcript be released to the defendant’s legal representatives. 4.       

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with stealing as a servant between 25 October 2008 and 15 January 2010 – where defendant submitted 17 false invoices to his employer resulting in $149,600 being transferred from the employer into the account of the defendant’s personally owned business – where psychiatric opinion differed as to whether defendant suffered from a mental illness sufficient to deprive him of one of the relevant capacities at the time of the alleged offence – whether defendant was of unsound mind as defined in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offence – whether defendant fit for trial

Mental Health Act 2000 (Qld), Schedule

COUNSEL:

C Dart for the defendant
J Tate for the Director of Mental Health
D Holliday for the Director of Public Prosecutions

SOLICITORS:

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

A LYONS J:

Background

1. Mr Russell Oxlee is charged with stealing as a servant between 25 October 2008 and 15 January 2010. Pursuant to a reference filed on 8 August 2012 and an amended reference filed on 18 October 2012, Legal Aid Queensland has referred the question of Mr Oxlee’s mental condition at the time of the alleged offences to this Court. On 3 December 2013 I found that Mr Oxlee was not of unsound mind at the time of the alleged offences and ordered that the proceedings should continue according to law. I also found that Mr Oxlee was fit for trial and indicated that I would provide more extensive reasons at a later date. These are those reasons.

1. Mr Oxlee was employed by Blue Care as its financial controller in July 2008 and was the second most senior person in their finance department. It is alleged that between 29 October 2008 and 14 January 2010 he submitted 17 false invoices which resulted in a total of $149,600 being transferred to Individual Business Services, which was a business he controlled and had set up in 1999.

1. The financial irregularities had been brought to the attention of Blue Care in January 2010 and he was suspended on 22 January 2010. On 10 February 2010 his employment was terminated and on 11 February 2010 a complaint was made to police. On 4 March 2010 Mr Oxlee made full admissions of his involvement to police and informed them he was a gambling addict and had used the money to defray significant credit card debts. He also indicated that he was aware that he was stealing from his employer and knew that it was against the law. He informed police that he had been diagnosed with a bipolar affective disorder.

1. I note a letter from Dr Stuart Polkinghorne, the Registrar of the Acute Care Team in the Inner North Brisbane Mental Health Service, dated 29 January 2010. Mr Oxlee had been seen by him on that day and Dr Polkinghorne stated:

“I believe there is sufficient evidence from collateral (his wife) and Russell that he meets the criteria for Bipolar Affective Disorder, probably rapidly cycling. My evidence for this diagnosis is that he reports a 5 year history of personality change with elevated and grandiose mood, decreased sleep (2 hours per night, working two full time jobs, coming home and then cleaning the house and doing the shopping), increased speech, increase in goal directed activity when elevated (gambling, work and sexual activity), and excessive involvement in pleasurable activities. Episodes last about 3 weeks and are then followed by a week of depression before re-elevating.”[1]

[1]Letter from Dr Polkinghorne dated 29 January 2010, at p 1.

Dr McGuire’s report

1. Dr McGuire interviewed Mr Oxlee on 22 June 2012 and his account to her was that he had developed a bipolar affective disorder and over two years embezzled money from his employer. He told Dr McGuire that he believed his illness came on gradually from 2008 and that he is currently on Lithium and Seroquel. She stated that he is extremely remorseful, believing he has destroyed his life and has lost everything – his wife, his kids and his car.  Dr McGuire indicated that he did not know he had bipolar affective disorder at the time of the alleged offence, but knew he had “down periods” and stated that if he keeps in safe boundaries he can survive. That is, he has to be quiet, he likes the dark and works at night. He sees his general practitioner every eight weeks and a psychiatric nurse every two weeks.

1. Dr McGuire stated that:

“At interview he was pleasant, cooperative, constantly moved including rocking backwards and forwards and also side to side exhibiting extravagant arm movements at times. He tended to override conversation, spoke rapidly and under pressure. There was some evidence of hypomania. Despite that his mood was low. He displayed superior intellect. There were no disorders of perception.”[2]

[2]Psychiatrist Report by Dr McGuire dated 28 June 2012, at p 4, [29].

1. Dr McGuire’s opinion was that Mr Oxlee suffers from a mental illness, namely bipolar affective disorder type 1 rapid cycling, characterised by relapses and remissions, with “a clearly established pattern of cycling moods”. Dr McGuire considered that this is a life long condition and he suffers it to a “severe degree”.  She stated that he is compliant with his medication, an antipsychotic and a mood stabiliser, and has considerable community support.  Dr McGuire considered that Mr Oxlee had demonstrated insight into his illness and since his arrest had been totally compliant with his treating team.  Dr McGuire stated, “[h]is prognosis is guarded but very much better as a consequence of his compliance with treatment”.[3]

   [3]Ibid, at p 5, [29.2].

1. Dr McGuire opined that Mr Oxlee was not deprived of the capacity to know that he ought not to do the act and he was not deprived of the capacity to understand what he was doing.  However, she believed that “he was deprived of the capacity to control his actions” and, on that ground, Mr Oxlee “has a mental health defence”.[4]

   [4]Ibid, at p 5, [29.3].

1. In relation to whether Dr McGuire believed that Mr Oxlee was fit for trial, she stated:

“He demonstrates above average intellectual ability, understands what he is charged with, understands the nature of his illness and in my view is able to instruct counsel and has capacity to understand what defence he should rely on. I believe he is fit to plead, instruct counsel and endure trial without serious adverse consequences to his mental condition.”[5]

[5]Ibid, at p 5, [29.4].

1. Dr McGuire’s opinion regarding future management of Mr Oxlee was that he was presently compliant with treatment and that treatment was adequate.  She believed a Forensic Order for Limited Community Treatment should be made.

Dr Andrzejewski’s report

1. In a report dated 13 June 2013, Dr Maria Andrzejewski indicated that there was no diagnosis of mental illness prior to the charges of stealing in 2010. He was however reviewed by Mental Health Services and diagnosed with a bipolar affective disorder in January 2010 based on a self report of reduced sleep and personality change in the preceding three to five years. He had commenced treatment with his general practitioner in February 2010. Dr Andrzejewski noted that he commenced gambling in 2004 at a time when he was experiencing significant conflict with his manager at work. He described gambling as a reward. He also commenced a number of extramarital affairs and was in a three year relationship with a woman called Pam.

1. In 2007, Mr Oxlee moved to Brisbane with his family after his affair became known to his wife. He then began working for Blue Care. He was initially positive about the work and was very focussed but ultimately started to lack focus, telling Dr Andrzejewski that he was spending too much time on the internet and began to disappear from work for up to three hours at a time to visit massage parlours or to gamble. The pattern of ongoing extramarital sexual relations and gambling continued. He stated that he felt he had sacrificed everything and saw this as his reward. However, he would then have a period of regret and would abstain from gambling and sex for up to a week. He then took on a second job as a night filler. He did not take any time off work during these four years and describes only sleeping a couple of hours a night. He does not remember a period of reduced need for sleep but he did experience chronic tiredness. Neither his wife nor his friends and colleagues noticed or commented on any change in his behaviour during this time. They did not remark about his abnormal energy levels, speech patterns, or changes in his concentration or ability to complete tasks.

1. Dr Andrzejewski indicated that Mr Oxlee stated he created false invoices for his employer because he had become desperately in need of money. He considered that the financial systems in the organisation were not good and would not pick up on his false invoices. He would create invoices at a frequency of once every eight weeks and did it for over 12 months. It would appear that Mr Oxlee adjusted the font and logos on the invoices so each appeared different. He described creating these invoices and feeling bad at the time he submitted them, but once he obtained the funds, he would feel on top of the world because he could have what he wanted. He would use the funds for massage parlours, sex and gambling.

1. Dr Andrzejewski indicated that when Mr Oxlee ceased working for his previous employer, he lost the consistency and structure in his life and became increasingly unhappy. He also found his relationship with his wife and his responsibilities to his family restrictive and oppressive and in this context began gambling and having extramarital affairs. His behaviour escalated and Dr Andrzejewski considers that his behaviour has remained constant since 1989 in that he considers that his needs and rights to reward exceed his responsibility to others. In this regard, he repeated and embodied the behaviour of his own parents. Dr Andrzejewski stated that:

“Whilst Mr Oxlee describes unusual behaviour at the time of the alleged offence, he did not described (sic) behaviour or symptoms consistent with a manic or hypomanic episode. The onset of his suicidal ideation occurred following the charge of Stealing as a Servant. Mr Oxlee is currently experiencing a mild to moderate episode of major depression. This is exacerbated by in the context of the current charges, disrupted interpersonal relationships with his ex-wife and children, and loss of vocation.”[6]

[6]Report of Dr Andrzejewski dated 13 June 2013, at p 6.

1. In relation to the question of unsoundness of mind, Dr Andrzejewski concluded:

“At the time of the alleged offence Mr Oxley (sic) was not of unsound mind. He was not deprived of the capacity to understand that what he was doing was wrong, stating repeatedly that he knew he was breaking the law, and that his actions were wrong. He was not deprived of the capacity to control his actions, carefully planning and organising the invoices with modifications to reduce detection by his employer. He was not deprived of the capacity to know that he ought not do the act. Mr Oxlee repeatedly stated he understood that he should not behave in this manner, and during the act of creating the invoices, regretted and ceased the behaviour intermittently.”[7]

Advice of the Assisting psychiatrists

[7]Ibid.

Dr Lawrence

1. Dr Lawrence’s advice was that I should accept the report and opinion of Dr Maria Andrzejewski that Mr Oxlee was not suffering from a bipolar affective disorder during the three-year period when the offences were committed.  Dr Lawrence stated that, even if he were considered to be suffering from a bipolar affective disorder, and a manic episode was present, it would have to have been of sufficient severity so as to deprive him of the capacity to control his behaviour. Her advice was that there was no evidence that such a manic episode was present. 

1. Dr Lawrence advised that a person “in the grips of a manic episode” is in “a very, very disorganised state…and they cannot function.”[8] In her view, a person experiencing a manic episode would be deprived of the capacity to control their behaviour and would not be able to carry out their activities in the goal-directed fashion that Mr Oxlee did over a three-year period.  Dr Lawrence also noted that, if Mr Oxlee was suffering from a manic episode sufficient to deprive him of the capacity, then he should be displaying other symptoms of mania. Those symptoms and that behaviour would then be bound to bring him to the attention of other people around him, particularly as they were happening not infrequently, given the 17 transactions in the 16 month period. 

   [8]T2-30, at lines 21-23.

1. Dr Lawrence also noted that his diagnosis of bipolar disorder was only made when he was under threat of losing his job and was about to be reported to the police. She also noted that Dr Andrzejewski made a diagnosis of a mild to moderate major depressive illness when she saw him, and noted that there are references in the material to his depressive presentations. Dr Lawrence considered, however, that all the presentations occurred after the detection of the offences. Whilst Mr Oxlee had mood changes, she considered that they were related to activities, which she considered was normal behaviour. Dr Lawrence’s advice was that there is a condition called cyclothymia where a person’s moods are a little more than usual. However, even cyclothymic mood changes are distinguished from the illness of bipolar disorder because that illness is so disruptive and the person is unable to function to such a degree that it is classified as an illness requiring treatment.

1. Dr Lawrence recommended that I accept that there is no evidence of a mental illness present, and even if I did not accept that and accepted that there was an illness, it was certainly not of such an intensity that it could have deprived him of any capacity. 

Dr McVie

1. Dr McVie agreed with the advice of Dr Lawrence and stated that the clinical evidence supporting a diagnosis of bipolar or rapid cycling bipolar was extremely weak.  She did not consider that there was any evidence of a psychotic episode, a manic episode, or any illness severe enough to require hospitalisation. Dr McVie noted that during the lengthy period that the offences occurred, Mr Oxlee was working two jobs and that it is highly unlikely that somebody with a hypomanic illness would be able to maintain two jobs and maintain effective work for that lengthy period of time without severe decompensation. 

1. Dr McVie stated that it is possible that with personality factors, some mood instability, psychosocial factors and the sleep deprivation associated with working those two jobs, Mr Oxlee’s judgment may have been impaired. However, having regard to the nature of the offences and the lack of clear history of mental illness, she advised that it is highly unlikely and improbable that Mr Oxlee was, indeed, suffering a hypomanic phase.  Dr McVie advised that is also highly unlikely that he was deprived of any capacity and it was highly unlikely that he was deprived of the capacity to control his actions on those multiple occasions when the offences were committed. Dr McVie considered he was fit for trial.

Was Mr Oxlee of unsound mind?

1. The Court has the benefit of a number of reports and, in particular, the reports of Dr Barbara McGuire and Dr Maria Andrzejewski. I also have the advice of the assisting psychiatrists.  Having considered the advice of the assisting psychiatrists, I prefer the report of Dr Andrzejewski. It is also clear that Dr Andrzejewski has set out, in a clear and systematised way, her views in relation to this reference.  In my view, there is no basis for a finding of unsoundness of mind.  I am not satisfied there is sufficient material to indicate that Mr Oxlee was suffering from a bipolar affective disorder at the time.  In particular, there is no evidence of a psychotic episode. There is no evidence of the suite of symptoms, as described by Dr Andrzejewski, which would be evidence of a manic episode.  As Dr McVie noted, there has been no hospitalisation.  I also consider that it is highly unlikely that Mr Oxlee would be able to maintain his functioning as a financial controller during that entire period if he was suffering from a bipolar affective disorder to the extent which is alleged. 

FINDINGS AND ORDERS

1. I am satisfied Mr Oxlee was not of unsound of mind at the time of the alleged offences.  I am satisfied he is fit for trial.  The proceedings should continue according to law and I authorise the release of the reports to his legal representatives.

1. Accordingly, there are orders in the following terms:

1.          That the defendant was not of unsound mind as described in the Schedule of the Mental Health Act 2000 (Qld) at the time of the alleged offence.

2.          That the defendant is fit for trial in relation to the alleged offence.

3.          That the proceedings against the defendant in relation to the count of stealing as a servant between 25 October 2008 and 15 January 2010 are to continue according to law.

4.          That a copy of the transcript be released to the defendant’s legal representatives.