Re TJW

[2004] QMHC 13

MENTAL HEALTH COURT

CITATION:

Re TJW [2004] QMHC 013

PARTIES:

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

PROCEEDING NO:

0026 of 2003

DELIVERED ON:

23 September 2004

DELIVERED AT:

Brisbane

JUDGE:

ASSISTING PSYCHIATRISTS:

Wilson J

Dr J F Wood
Dr J M Lawrence

FINDINGS:

1)That the defendant is permanently unfit for trial; 

2) that the defendant not have any contact with either NJEL or RLP for a period of two years from today;

3) that a copy of this order be given to the Magistrates Court in Townsville. 

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant is charged with three counts of indecent treatment of a child under 16 – where the defendant suffers from mild mental retardation – where the defendant poses a risk to the community.

Mental Health Act 2000

COUNSEL:

M Farmer for the defendant
J Tate for the Director of Mental Health
R Pointing 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. WILSON J:  TJW has been charged with three counts of indecent treatment of a child under 16 on dates unknown between 31 December 1995 and 1 January 1997.

1. The first charge relates to a complainant boy who was three or four years of age at the time.  The child has told police that he was in the defendant's bedroom when the defendant fondled his penis in his presence.  The incident was interrupted when the child's older sister walked into the room.

1. The other two counts involve a brother and sister who were also of pre-school age at the time.  They involve an incident which occurred in a park near their home.  One of the children and the defendant were playing in a cubby house whilst the other was playing outside.  The one who had been playing outside entered the cubby house and observed the defendant masturbating directly in front of the other child. 

1. These incidents are alleged to have occurred quite some time ago.  The defendant denies them.

1. The defendant is presently a 51 year old man.  He suffers from moderate mental retardation.  On the material which is before the Court, he was not suffering from unsoundness of mind within the meaning of the Mental Health Act at the times of the alleged offences.  He disputes the facts, as I have said.

1. On both of those bases, the matter should go to trial, subject to the question of his fitness for trial.  But having regard to his mental retardation, it is clear on the material that he is unfit for trial, and permanently so.

1. There are then two questions for the Court: one, whether to make a forensic order; and two, whether to make a non-contact order.  With respect to the question of a forensic order, because TJW's disability is one of mental retardation rather than mental illness, his detention to an authorised mental health service for involuntary treatment and care would not be appropriate.  That is the only power of detention which this Court has.

1. Because these alleged offences involved young children, they are serious matters and there is a need, for the protection of the community, for supervision of TJW into the future. 

1. He lives at home with his 76 year old father and his father's wife.  He has lived in relative seclusion all his life and has never had the opportunity to develop independently of his family.  The Court has two reports from officers of Disability Services Queensland to the effect that removal from the family environment would be detrimental.  That said, there is an ongoing need for supervision and while Mr W Senior has freely and, with the best will in the world, provided supervision to date, there must come a time when he is no longer able to provide that supervision.

1. It would clearly be in the interests of the defendant, as well as those of his father, to engage the services of Disability Services Queensland now to establish some supports within the community.

1. Mr W Senior told the Court that he could not recall any approaches from Disability Services Queensland.  This is at odds with the material which is before the Court.  But be that as it may, I would urge Mr W Senior, in the interests of his son, in his own interests and in the interests of the community at large, to be receptive to the services that Disability Services Queensland may be able to offer.

1. There will be no forensic order. 

1. I have been asked to make a non-contact order with respect to the victim of the first offence, NJEL, and his sister RLP.  They still live in the same street as the defendant.  While there is some possibility of unintentional contact given the proximity in which they live, it seems to me that an order is viable and that one ought to be made. 

1. Therefore, there will be an order that the defendant not have any contact with either NJEL or RLP for a period of two years from today.  I order that a copy of this order be given to the Magistrates Court in Townsville.