Re Parry

[2012] QMHC 10

MENTAL HEALTH COURT

CITATION:

Re Parry [2012] QMHC 10

PARTIES:

REFERENCE BY THE DIRECTOR OF PUBLIC PROSECUTIONS IN RESPECT OF JEFFREY ROBERT PARRY

PROCEEDING:

No 0169 of 2011

DELIVERED ON:

7 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

28 May 2012

JUDGE:

Boddice J

ASSISTING PSYCHIATRISTS:

Dr E N McVie
Dr M L Khoo

FINDINGS AND ORDER:

At the time of each of the alleged offences the subject of the reference the defendant was suffering unsoundness of mind as that term is defined in the schedule to the Mental Health Act 2000 (Qld).1.          

The defendant be detained pursuant to a forensic order to the Royal Brisbane and Women’s Hospital Authorised Mental Health Service.2.          

Limited community treatment be approved at the discretion of the treating psychiatrist on the conditions set out in the draft forensic order proffered by the Director of Mental Health. 3.          

A copy of the reports and the transcript be provided to the treating team and to the parties.4.          

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant was charged with failing to stop a motor vehicle, dangerous operation of a motor vehicle, obstructing police and serious assault police – where the defendant has chronic schizophrenia of undifferentiated type – where the defendant had ceased taking medication at the time of the relevant offences – where the defendant is now stable – where expert opinions differed as to whether the defendant’s mental illness deprived him of the capacity to understand the wrongfulness of his conduct at the time of the offences – where it is accepted the defendant is fit for trial – whether the defendant was suffering from unsoundness of mind at the time of the alleged offences

Mental Health Act 2000 (Qld)

Re N [2010] QMHC 37

R v Porter (1933) 55 CLR 182

Stapleton v R (1952) 86 CLR 358

COUNSEL:

J Briggs for the defendant
J Tate for the Director of Mental Health

D Kovac for the Director of Public Prosecutions (Qld)

SOLICITORS:

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

BODDICE J:

1. By reference filed 28 June 2011, the legal representatives for Jeffrey Robert Parry (“the defendant”) referred to this Court the defendant’s mental condition at the time of the alleged commission of several offences on 28 November 2009.  It is accepted the defendant is fit for trial.  The issue in dispute is whether the defendant was suffering from unsoundness of mind at the time of the alleged offences. 

Background

1. The defendant is presently 29 years of age.  He is a single man in receipt of a disability support pension.  He was diagnosed as suffering schizophrenia in 2001.  He has been treated with anti-psychotic medication since that date.  At times, he has been the subject of involuntary treatment orders. 

1. The defendant has a lengthy history of illicit substance abuse.  He began smoking cannabis at around 15 or 16 years of age, and was a heavy smoker for approximately six years.  In the two or so years prior to the alleged offences, he reported having significantly reduced his intake of cannabis.

1. On 28 November 2009, the defendant was charged with the following offences:

•failing to stop a motor vehicle;

•dangerous operation of a motor vehicle;

•obstruct police;

•obstruct police;

•serious assault police;

•serious assault police.

Each of these charges is the subject of the reference.  Prior to these alleged offences his only contact with police had been when he was required to be escorted to hospital for treatment.

The charges

1. The offences are alleged to have been committed late on the morning of Saturday, 28 November 2009.  On that date, police patrolling in a marked vehicle activated their lights and siren and motioned for the defendant to stop by the roadside.  The defendant did not do so.  When the defendant’s vehicle stopped at an intersection the police approached and requested he stop his vehicle.  The defendant again refused to stop.  The police reached in the driver’s window in an attempt to remove the keys from the ignition.  Whilst the police officer’s arm was still within the vehicle, the defendant moved the vehicle forward.  The defendant then drove to the Upper Mount Gravatt police station, where he stopped his vehicle. 

1. The defendant was approached by both officers and commanded to lie on the ground.  The defendant “just looked at” the police officers.  The defendant was then seized by police.  A struggle ensued, during which the defendant resisted police.  Approximately one week later, the defendant attended the police station and apologised to police.  When asked about his plea, the defendant indicated he would plead not guilty to the offences.

1. In the days following the incident, the defendant’s mother became concerned about the defendant’s condition.  She subsequently contacted the hospital to arrange for his admission.  The defendant later self presented for admission.  At that time, he confirmed he had recently consumed marijuana.

Defendant’s version of events

1. The defendant gave both reporting psychiatrists an account of what had transpired leading up to, and on the day of, the alleged offences.

1. The defendant said he had taken himself off his anti-psychotic medication in July 2009.  Whilst he felt “pretty good” initially, after approximately two months he was asked by his brother to leave their residence as a result of a “joke” which his brother had taken “the wrong way”.  Thereafter, he was homeless and lived in his vehicle, moving its location daily.  On occasions, he was moved on by police officers. 

1. Although the defendant was vague and guarded in his recollection of events in the three months leading up to the alleged offences, he recounted that buildings and places around Brisbane “changed”, and he experienced a “vibe” that things were different.  He also had a sense of déjà vu.  He began to hear voices and developed a preoccupation in relation to the police. 

1. On the day of the alleged offences he observed two police officers talking to a driver on the side of the road.  He stopped a distance away to check “the guy” was alright.  He then drove off.  A short distance later he heard a siren and observed the police vehicle behind him.  The defendant knew there was a police station only 500 metres further up the road, and signalled to police that he wanted to pull up closer to that station.  He felt it would be “safer” stopping at that location. 

1. The defendant stopped at an intersection on the way to the police station.  A police officer approached, telling him to pull over.  He indicated he would pull over at the police station.  The officer leaned into the vehicle.  He pushed the officer’s arm away, wound up the window and drove forward.  He denied being aware the officer’s arm was still in the vehicle when he drove forward.  One of the officers smashed his rear window, which caused him to become fearful.  He drove quickly to the police station. 

1. At the station, the defendant quickly got out of the car.  He hoped to be able to talk to the officers, but they rushed towards him with “full on aggressive actions immediately, there was not a chance to talk at all”.  The defendant accepted he resisted the police.  The defendant also reported odd experiences whilst he was in custody in the following days, including comments made by officers about “coffins” and a funeral. 

Medical evidence

1. The material before the Court includes extensive records from the Princess Alexandra Hospital.  There is also a report from Dr Geffen, the defendant’s treating psychiatrist, dated 18 May 2012. 

1. Dr Geffen first met the defendant in 2001 whilst working as a locum psychiatrist at the Princess Alexandra Hospital.  Since that date, he has continued to treat the defendant in his capacity as a private psychiatrist.  Dr Geffen opines the defendant has a clear diagnosis of chronic schizophrenia of undifferentiated type.  He has a history of gross psychotic relapse upon cessation of his medications.  On more than one occasion he has required involuntary hospitalisation.  If compliant with his medication, the defendant is much less troubled by psychotic symptoms.  His insight is also improved markedly.  He has been much more consistent with anti-psychotic medication in the last two years.  This also coincides with the defendant’s cessation of the use of illicit substances such as marijuana.  However, even when treated, the defendant struggles with symptoms of disorganisation, affective blunting and other negative symptoms of schizophrenia. 

1. Dr Geffen states that whilst the defendant had attended clinic consistently most of the time since 2001, the level of compliance changed in late 2009, and that between 15 September 2009 and 19 January 2010 he ceased taking his medication.  Upon returning to Dr Geffen’s care, the defendant initially remained slightly thought disordered and had difficulty making sense of his period of psychosis.  With consistent medication and case management support his mental state stabilised and he became more organised in his presentation.  The defendant has remained stable for the last 12 months, with no overt psychotic symptoms and relatively manageable levels of disorganisation and negative symptomtology.  He has been consistent with all medication and appointments.

Reporting psychiatrists

1. The defendant has been examined by Dr Schramm and Dr Kovacevic.  Each provided written reports.  Both were the subject of lengthy cross-examination.

1. Dr Schramm opined that at the time of the alleged offences the defendant had been off his medication for some months, and was experiencing a relapse of his schizophrenia.  Although the defendant was guarded in his presentation, Dr Schramm considered it likely there was present at the relevant time delusional mood, referential thinking and a subtle yet not insignificant problem in organisation of thinking and understanding the world. On the day of the alleged offences, this psychotic process was sufficient to deprive the defendant of the capacity to reason with a moderate degree of sense and composure with regard to stopping for police, driving away from them, and not submitting to them at the police station.  Whilst a superficial reading of the material suggested there may be a dispute on the facts, any alternate version is explicable as a function of the mental illness. 

1. Dr Schramm maintained this opinion in cross-examination.  Dr Schramm accepted there was no clear evidence of delusional thinking on the day in question.  He also accepted the defendant’s actions on the day in question could be consistent with poor judgment and defiance to the police.  However, the defendant’s actions on that day, viewed in the context of his withdrawal from anti-psychotic medication before these events, and his obvious deteriorating condition, were more probably than not due to his mental illness depriving him of that capacity to reason with a moderate degree of sense and composure, rather than poor judgment and defiance.

1. Dr Kovacevic agreed with Dr Schramm’s conclusions that the defendant suffers from chronic schizophrenia, that his mental state was deteriorating in the lead up to the alleged offences, and that there was no substantial dispute of facts.  However, Dr Kovacevic disagreed with Dr Schramm’s opinion that the defendant’s mental illness deprived him of the capacity to understand the wrongfulness of his conduct on the day in question. 

1. Whilst the defendant’s mental state was deteriorating in the absence of anti-psychotic medication, and he was experiencing symptoms suggestive of an impending relapse of his schizophrenia, Dr Kovacevic could find no convincing evidence that the defendant was deprived of the capacity to appreciate reality at the time he was approached by the police officers.  The defendant denied experiencing any hallucinations, delusions or a formal disorder of thinking of such a nature or magnitude to prevent him from appreciating the difference between right and wrong in those specific circumstances.  As such, there was no “direct link” between the defendant’s mental illness and the alleged offending.  There were also credible non-psychotic explanations for the defendant’s actions and responses which did not necessarily require a reference to his mental illness as a primary reason for his alleged conduct.  In short, Dr Kovacevic accepted the defendant’s deteriorating mental illness impaired his requisite capacities, but was of the opinion they did not deprive him of those capacities such as to constitute unsoundness of mind.

1. Dr Kovacevic maintained his opinion in cross-examination.  He accepted the defendant’s actions must be viewed in the context of his deteriorating condition, following cessation of his anti-psychotic medication.  However, there was no evidence of delusional thinking on the day in question, and there was not much irrationality in his behaviour.[1]  Dr Kovacevic was unable to support a finding that the defendant’s mental illness deprived him of the requisite capacity. 

   [1]T 1-5/20.

Assisting psychiatrists

1. Dr McVie advised that the medical evidence establishes a history of chronic schizophrenia of an undifferentiated type, with gross psychotic relapses upon cessation of medication.  That history also evidences difficulty in determining clear cut examples of delusions, with the defendant having a history of both negative and positive symptoms.  Importantly, the defendant has consistently presented as guarded in his explanations as to the effects of his schizophrenia.  This general guardedness, or “embarrassment”, renders a true description of his mental state at the time difficult to compile.

1. Dr McVie advised that the mother’s report of the defendant’s deteriorating condition in the lead up to the alleged offences provides the best history of his deterioration following cessation of his medication.  Deterioration is not uncommon in disorganised schizophrenic illness, and indicates a severity of illness prior to the alleged offences.  It is unlikely to be due to any cannabis-exacerbated symptoms.  Having regard to the nature of his illness, the fact that the defendant had been unmedicated for some months, and the nature of the offences, Dr McVie advised the Court ought to prefer Dr Schramm’s opinion, and find that at the time of the alleged offences the defendant was suffering from unsoundness of mind in that his mental illness deprived him of the capacity to know that he ought not to do the acts.

1. Dr Khoo concurs with Dr McVie’s advice.  Dr Khoo notes the defendant had been noncompliant with medication in the lead up to the alleged offences.  Against that background, it is relevant to look at the collateral material when assessing the effect of his illness on his actions on the day.  Having considered that collateral material, even if the defendant had consumed marijuana prior to his subsequent admission to hospital, it is unlikely it alone would have precipitated his psychosis.

Legal test

1. The capacity to know that you ought not do the acts constituting the offences refers to a capacity for moral judgment, not an understanding of lawfulness.  In R v Porter,[2] Dixon J formulated the test thus:

   [2](1933) 55 CLR 182 at 189-190.

“If through a state of mental disease or natural mental infirmity the defendant 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.  …  What is meant by wrong is wrong having regard to the everyday standards of reasonable people.”

This test was endorsed by the High Court in Stapleton v R.[3]

[3](1952) 86 CLR 358 at 372.

Discussion

1. There is no doubt the defendant has a longstanding mental illness.  There is also no doubt this illness was deteriorating in the weeks before the alleged offences.  This deterioration followed the cessation of anti-psychotic medication by the defendant some months before these events. 

1. The issue for determination by this Court is whether, as a result of the deterioration in his mental illness, the defendant was deprived of the capacity to know that the acts in question were wrong acts to commit in the sense that ordinary reasonable men and women understand right and wrong, and whether the defendant was disabled from considering with some degree of composure and reason what he was doing and his wrongness.[4]

   [4]Re N [2010] QMHC 37 at [32].

1. Resolution of this issue requires a close consideration of the opinions expressed by Dr Schramm and Dr Kovacevic, and the reasons for their differing opinions.  Having considered the contents of their reports and their responses to cross-examination, I am satisfied the differences in their opinions stem from the differing emphasis each gives to the defendant’s deteriorating mental health prior to the alleged offences.

1. Dr Schramm placed significant emphasis on the defendant’s obviously deteriorating mental condition.  In his opinion, there was evidence prior to the alleged offences that the defendant was psychotic and unwell, and evidence at hospital afterwards that he was psychotic.  Against that background it is “incorrect to go with a magnifying glass and look at each step one at a time”.[5] 

   [5]T 1-41/40.

1. By contrast, Dr Kovacevic, whilst accepting there was deterioration, placed significant emphasis on the defendant’s presentation on the day of the alleged offences.  In his opinion, there was a lack of any evidence of delusions, hallucinations or other psychotic symptoms which would provide a link between the defendant’s alleged offending behaviour and his deteriorating mental illness.  There was not “much irrationality in his behaviour in those specific circumstances”.[6]  Dr Kovacevic considered there needed to be a direct link between the mental illness and the incident of the alleged offending.[7]

   [6]T 1-5/20.

   [7]T 1-6/35.

1. I prefer the opinions proffered by Dr Schramm.  I found Dr Schramm’s explanation of the significance of the clear evidence of a deteriorating mental illness compelling and persuasive.  The defendant’s illness has been characterised by worsening psychotic episodes in the past upon cessation of his anti-psychotic medication.  Deterioration on this occasion is consistent with that history. 

1. Whilst Dr Schramm accepted the defendant had no obvious delusions on the day in question, and his actions could be consistent with poor judgment rather than a deprivation of the requisite capacity, Dr Schramm gave cogent reasons why a lack of identification of specific delusions is explicable in the defendant’s case.  That explanation lies in his guardedness, a presentation that has characterised his illness in the past.  Further, having regard to the nature of the defendant’s illness, the cessation of his medication, his odd presentations in the lead up to the alleged offences, and the defendant’s conduct on the day, there is substance in Dr Schramm’s opinion that the events on that day cannot be viewed one step at a time. 

1. Dr Kovacevic’s opinion did not give sufficient regard to the defendant’s deteriorating mental illness, and placed undue emphasis on the need to identify the existence of particular delusions on the day of the alleged offences.  When regard is had to the clear deterioration in the defendant’s condition, in the context of a history of chronic schizophrenia which is undifferentiated and which included gross psychosis on previous occasions of ceasing his medication, the defendant’s actions on the day are consistent with a deprivation of the requisite capacity, not merely its impairment, as contended by Dr Kovacevic.  

1. Considering all of the circumstances in totality, I am satisfied the alleged offences occurred in the context of an inability by the defendant to reason with a moderate degree of thought and composure.  The defendant’s mental illness deprived the defendant of the capacity to know that he ought not to do the acts in question.

1. This conclusion is consistent with the advice of the assisting psychiatrists.  I found that advice particularly helpful in the present case. 

Future management

1. Both Dr Schramm and Dr Kovacevic opined that there was no need for a forensic order in the present case.  The defendant had been well engaged with his treatment since the alleged offences, was voicing reasonable insight and had not previously breached the law.  Having regard to this compliance, allowing his treatment as a voluntary patient would not compromise public safety.

1. Whilst the defendant is currently compliant and his treatment is well managed by Dr Geffen and his treating team, the circumstances in which the defendant ceased his medication, and the subsequent deterioration of his medical illness, is such that there is a need to ensure ongoing compliance in the future.  Ongoing compliance can only be ensured by the imposition of a forensic order.  To do otherwise would not properly protect the public.

1. The conclusion is consistent with the advice of the assisting psychiatrists.  Both Dr McVie and Dr Khoo advised there was a need for a forensic order having regard to the defendant’s noncompliance in the past and the effect of any deterioration in his condition should he be noncompliant in the future.

1. I order:

1.          At the time of each of the alleged offences the subject of the reference the defendant was suffering unsoundness of mind as that term is defined in the schedule to the Mental Health Act 2000 (Qld).

2.          The defendant be detained pursuant to a forensic order to the Royal Brisbane and Women’s Hospital Authorised Mental Health Service.

3.          Limited community treatment be approved at the discretion of the treating psychiatrist on the conditions set out in the draft forensic order proffered by the Director of Mental Health.

4.          A copy of the reports and the transcript be provided to the treating team and to the parties.