Re TM

[2004] QMHC 15

MENTAL HEALTH COURT

CITATION:

Re TM [2004] QMHC 015

PARTIES:

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

PROCEEDING NO:

0109 of 2003

DELIVERED ON:

28 April 2004

DELIVERED AT:

Brisbane

JUDGE:

ASSISTING PSYCHIATRISTS:

Wilson J

Dr J F Wood
Dr D A Grant

FINDINGS:

1)   That the defendant was of unsound mind with respect to all of the offences;

2)   that no forensic or non-contact order be made.

CATCHWORDS:

MENTAL HEALTH – DECLARATION OR FINDING OF MENTAL ILLNESS OR INCAPACITY – where the defendant has been charged with common assault and possession of a knife in a public place and with possession of a dangerous drug and obstructing police – where the defendant was suffering a psychotic episode – where the defendant is subject to an involuntary treatment order – whether to make forensic order – whether to make non-contact order

Mental Health Act 2000, ss288, 313B

COUNSEL:

C Morgan 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
The Crown Solicitor for the Director of Mental Health
The Director of Public Prosecutions

1. WILSON J:  TM has been charged with common assault and possession of a knife in a public place, both on 3 October 2002, and with possession of a dangerous drug and obstructing police, both on 4 October 2002.

1. With respect to the charges on 3 October 2002, the reporting psychiatrists, Dr Fama and Dr Kingswell, are both of the view that he was of unsound mind. 

1. With respect to the charges on 4 October 2002, Dr Fama considers he was of unsound mind with respect to both.  Dr Kingswell considers that he was of unsound mind with respect to obstructing police, but not with respect to possession of a dangerous drug.

1. At the times in question, TM was suffering a psychotic episode.  There is a difference of opinion as to the basis of that psychosis.  According to Dr Fama, he was suffering from paranoid schizophrenia.  According to Dr Kingswell, he was suffering from a psychosis caused by withdrawal from benzodiazepines and opiates.   Whichever it was, it was a psychotic episode sufficient to deprive him of relevant capacities within the meaning of the Mental Health Act. 

1. Dr Kingswell's view with respect to the possession of the dangerous drug charge seems to relate to the circumstances in which he assumes the defendant acquired the drug.  However, the charge is of possession on a particular day and the evidence is clear that at the time of the events giving rise to the charge he was in a psychotic state.

1. Accordingly, I am satisfied with respect to all of the offences that he was of unsound mind within the meaning of the Mental Health Act.

1. There are two further issues to be considered; whether the Court ought to make a forensic order, with or without provision for limited community treatment, and secondly, whether it ought to make an order for non contact with the complainant.

1. The three matters considered with respect to a forensic order are the seriousness of the offence, his treatment needs and the protection of the community.

1. Turning to his treatment needs, he is presently on an involuntary treatment order and I am satisfied that the treatment he is receiving, which includes his being placed in the community, is appropriate and adequate.

1. I should note that there has been apparently only one recurrence of the psychosis.  That was quite recently, in early March of this year.  He was taken to the Princess Alexandra Hospital Psychiatric Unit following an increase in persecutory delusions, increased paranoia and thought disorder.  He was discharged on 25 March 2004 after an admission that was complicated by episodes of aggression coinciding with illicit substance use.

1. I turn then to the issues of the seriousness of the offences and the protection of the community.

1. The most serious of the offences was the common assault.  This was committed upon a female probation officer.  The circumstances of the assault are contained in the QP9 material and I think should be recorded.  They were these:

"The complainant states that on the third day of October 2003 the defendant attended the Department of Corrective Services office at Main Street, Pialba and interrupted her while she was speaking to another customer.  The defendant stated he needed to speak to the complainant who later took the defendant into an interview room.  The defendant was seated on the opposite side of the desk after he entered the room.

The defendant then went on to tell the complainant he was feeling good.  When the complainant said that was good the defendant has stated, 'I mean, I feel real good, like freaky good.'  The defendant then stood up and stretched his arms out and started to walk around the desk towards the complainant.

The complainant put up her hand and said, 'What are you doing, T; Stay there.'  The defendant continued to move around the desk towards the complainant who said, 'No, go back.'

The defendant then grabbed the complainant who was still seated, around the head with his right arm and firmly pulled her head into his lower chest.  At the same time the defendant had hold of the complainant's right shoulder with his left hand pulling her into himself.  As the defendant did this, he said, 'There you go, girl.' 

The complainant pulled away and pushed the defendant away and said, 'No, you have to get back, you can't do that.'  The defendant then went and sat back on his seat and said, 'I'm sorry, Toni, I'm just feeling so horny.'

The defendant was later removed from the premises with the assistance of other staff."

1. The complainant did not receive any physical injuries in this assault.  However she was very much shaken by it.  A victim impact statement was obtained by the prosecutor and a sworn copy of it has been placed before the Court.  It seems that she has had ongoing psychological consequences of the assault.  There is presently no expert evidence before the Court to support the matters of complaint in that regard.  I am prepared to accept for the purpose of these proceedings that it was an extremely upsetting incident and that she has continued to be troubled by what took place.  As I understand it, the complainant has been on some form of disability leave from her occupation. 

1. The assault took place in Hervey Bay.  The defendant is now resident in Brisbane.  In the circumstances, I have difficulty seeing that there is an appreciable risk of further contact between the defendant and the complainant. 

1. This assault was serious in that it was an assault upon a person in a position of authority who was acting in that position at the time of the assault.  Nevertheless, I am not persuaded in all the circumstances that the assault was so serious or that the needs to protect the community are sufficient to warrant the making of a forensic order.

1. Similarly, I am not satisfied that this case is an appropriate one in all the circumstances for the making of a non contact order under section 313B. In saying that, I do not wish to trivialise the effect of the assault upon the complainant, but I have endeavoured to look at the matter objectively and to assess the risks of contact in the absence of such an order.