Re RDA

[2005] QMHC 32

MENTAL HEALTH COURT

CITATION:

Re RDA [2005] MHC 032

PARTIES:

REFERENCE BY THE DEFENDANT’S LEGAL REPRESENTATIVE IN RESPECT OF RDA

PROCEEDING NO:

0044 of 2005

DELIVERED ON:

28 November 2005

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2005

JUDGE:

ASSISTING PSYCHIATRISTS:

Holmes J

Dr J F Wood
Dr D A Grant

FINDINGS AND ORDER:

1.   The defendant was not of unsound mind as defined in the Mental Health Act 2000 (Qld), schedule 2, at the time of the alleged offences.

2.   The defendant is permanently unfit for trial.

3.   The defendant is to be detained as a forensic patient to the Logan Beaudesert District Authorised Mental Health Service. 

4.   Limited community treatment is to commence immediately on the following conditions:

a)   That he reside at a stated address or at an address approved in advance in writing by the Authorised Psychiatrist;

b)     That he present to two stated appointments with psychiatrists and attend all follow-up appointments and in-patient care as required by the Authorised Psychiatrist;

c)   That he comply with the requirements of the Authorised Psychiatrist in relation to the taking of prescribed medication and other treatment;

d)     That he have no unsupervised contact with any child under the age of 16 years; and

e)   That he not have any contact with any of the complainants in the alleged offences.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where defendant charged with various offences of indecent treatment of a child under 12 and one charge of attempted indecent dealing with a child under 12 – where defendant intellectually impaired – whether the defendant, at the time of the alleged offences, was deprived of the capacity to understand what he was doing, or the capacity of control, or the capacity to know that he ought not to do the act pursuant to the Criminal Code, s 27 – whether the defendant was of unsound mind – whether the defendant is fit for trial – whether any unfitness of a permanent nature

CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS – whether a forensic order is required – whether an offender reporting order should be made under the Child Protection (Offender Reporting) Act 2004, s 13 on the basis that the defendant poses a risk to the sexual safety of children at large

Child Protection (Offender Reporting) Act 2004 (Qld), s 13

Mental Health Act 2000 (Qld), schedule 2

COUNSEL:

S Ryan for the defendant
J Tate for the Director of Mental Health

D Mackenzie for the Director of Public Prosecutions

SOLICITORS:

Legal Aid Queensland for the defendant
The Crown Solicitor for the Director of Mental Health

The Director of Public Prosecutions

1. HOLMES J: RDA is charged with three charges of indecent treatment of a child under the age of 12 on 4 August, 2004; five of indecent treatment on dates unknown between 12 February, 2004 and 22 August, 2004 and one charge of attempted indecent dealing with a child under the age of 12 on a date unknown between 12 February, 2004 and 22 August, 2004. 

1. The evidence does not support a finding of unsoundness pursuant to the Mental Health Act 2000 (‘the Act’), schedule 2. I find that he was of sound mind at the time those offences were allegedly committed. On the other hand, he is permanently unfit for trial and that is the finding I make.

1. The largest problem has been whether a forensic order ought to be made in this case. It is the problem commonly encountered by this Court that a forensic order is an inappropriate mechanism for supervision of somebody charged with offences such as these. It is really an order designed to manage somebody with a medical problem not the behavioural problems that might be associated with retardation. Unfortunately, the Act allows of no other mechanism. It seems to me it is a case in which supervision is needed. It has been suggested that the matter be adjourned to obtain further information from Disability Services Queensland. I think that is unlikely to be a productive course and it is better, I think, to proceed with an order at this stage.

1. Unfortunately, the order will have to be a somewhat cumbersome one.  Dr White is extremely experienced in dealing with disabled persons and it would be advantageous for him to have contact with RDA, but it seems that he cannot be an Authorised Psychiatrist in terms of this order.  I will order that RDA be detained to the Logan Beaudesert District Authorised Mental Health Service.  I order limited community treatment to commence immediately on these conditions:

a)   That he reside at a stated address or at an address approved in advance in writing by the Authorised Psychiatrist;

b)   That he present to two stated appointments with psychiatrists and attend all follow-up appointments and in-patient care as required by the Authorised Psychiatrist;

c)   That he comply with the requirements of the Authorised Psychiatrist in relation to the taking of prescribed medication and other treatment;

d)   That he have no unsupervised contact with any child under the age of 16 years; and

e)   That he not have any contact with any of the complainants in the alleged offences.

1. Mr MacKenzie had sought an offender reporting order under s 13 of the Child Protection (Offender Reporting) Act 2004 on the basis that RDA poses a risk to the sexual safety of children at large.  RDA was, on two previous instances, before the Mental Health Tribunal.  It was alleged that he had exposed himself to some small children in 1994 in a supermarket and, on an earlier instance at a shopping centre in 1990, that he had touched a seven year old girl on the bottom. 

1. The instant offences involve allegations that he had inappropriately touched his nine year old niece, touching her outside her clothing in the vaginal area and put his hands into her underclothing, again, in the vaginal area and put his tongue in her mouth.  Then there is an allegation that he had touched his nephews who were aged between five and six on the penis and had asked one of them to touch him.  He told them not to tell. 

1. Those are concerning matters.  It seems to me, however, that the instances of allegations of sexual assault of children outside the family are now of some age.  There is no allegation, it seems, since 1994 of such an incident, for example, in a shop or in any public place.  The instances in relation to children in a family environment are now, of course, the subject of the non-contact order with those children and the order that he not have unsupervised contact with children at large. 

1. I do not think, in the circumstances, that the risk to the sexual safety of children generally is such as to require the making of an offender reporting order and I have the further concern that one could not reasonably expect compliance by RDA himself. In addition, I doubt that the mechanism of an offending reporting order in circumstances such as these is likely to be an effective means of preventing or precluding any further risk, such as it is.  In those circumstances, I decline to make an offender reporting order. 

1. I will direct that a copy of my remarks be provided to Disability Services Queensland.  It seems to me there is an urgent need in this case for the assistance of disability services to be provided to RDA with the liaison of the psychiatrists, Dr White and Dr Rodrigo. 

1. Clearly, although I have declined to make the offender reporting order, there exists some level of risk and I think it would sit very badly with the functions of Disability Services Queensland if RDA were to be in trouble once more because of a failure to provide assistance to him and his mother. 

1. I also urge on RDA’s mother that she get whatever assistance she can from Disability Services Queensland;  in fact, insist on assistance from Disability Services Queensland to help in the care of RDA.  I will order that a copy of what I have said and the reports also be provided to the Adult Guardian and the treating service.