Regina v Debbie Marie Adams

[2002] NSWCCA 448

CITATION:	Regina v Debbie Marie Adams [2002] NSWCCA 448
FILE NUMBER(S):	CCA 60867/01
HEARING DATE(S):	10 April 2002, 1 and 14 August 2002
JUDGMENT DATE:	15 November 2002
PARTIES :	Regina v Debbie Marie Adams
JUDGMENT OF:	Ipp JA at 1; Bell J at 2; Smart AJ at 3

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70061/99
LOWER COURT JUDICIAL OFFICER :	Sperling J

COUNSEL :	(A) W G Dawe QC (R) G Turnbull
SOLICITORS:	(A) S E O'Connor (R) Forsters
CATCHWORDS:	Sentencing - Crown appeal - Offences of malicious wounding mother with intent and manslaughter of teacher's assistant in cooking class in Juvenile Justice Centre - prisoner severely disturbed psychologically and extremely dangerous - whether she would ever overcome her aggressive impulsive tendencies doubtful - capacity for self control severely impaired - severe personality disorder of anti-social type - kept in segregated unit - harsh custodial conditions - no suitable safe psychiatric unit available with adequate treatment - sentences manifestly inadequate
LEGISLATION CITED:	Criminal Appeal Act 1912 Crimes Act 1900 Mental Health (Criminal Procedure) Act 1990 Mental Health Act 1900
CASES CITED:	Veen v The Queen (No 2) 164 CLR 465 D L White-Cotterell 70200/91 R v Chayna CCA unrep 8/6/93 R v Heikki Veli Hietikko CCA unrep 18/6/92 House v The King (1930) 55 CLR 499 R v Low 57 A Crim R 18 R v Hill (1981) 3 A Crim R 397 R v Blacklidge CCA unrep 12/12/95
DECISION:	See para 78

60867/01

IPP AJA

BELL J

SMART AJ

Friday, 15 November 2002

REGINA v DEBBIE MARIE ADAMS

JUDGMENT

1. IPP JA: I agree with Smart AJ.

2. BELL J: I agree with Smart AJ.

3. SMART AJ: Pursuant to s.5D of the Criminal Appeal Act 1912 the Director of Public Prosecutions appeals against limiting terms nominated by the Supreme Court on 23 November 2001, namely 1 year for one offence of malicious wounding with intent to cause grievous bodily harm and 5 years for one offence of manslaughter cumulative upon the limiting term for the first offence. It was held, following a special hearing that on the limited evidence available Debbie Marie Adams (the offender) had committed such offences. The Crown contends that the limiting terms nominated are manifestly inadequate.

4. Background

On 26 January 1999 the offender was charged with the attempted murder of her natural mother on the previous night. The charge was subsequently amended to malicious wounding with intent to cause grievous bodily harm pursuant to s.33 of the Crimes Act 1900 which carries a maximum penalty of 25 years imprisonment. The offender, who was born on 11 August 1982 was remanded to the Yasmar Juvenile Justice Centre.

5. On 23 July 1999 the offender was charged with the murder of Scott Bremner, an employee of TAFE who worked at the Centre. She stabbed him during a cooking class there.

6. On 13 November 2000 she was found by the Supreme Court to be unfit to be tried pursuant to s.11A of the Mental Health (Criminal Procedure) Act 1990 (the Act). On 30 March 2001 the Mental Health Review Tribunal determined pursuant to s.16(1) of the Act that she would not become fit within the next twelve months. On 11 May 2001, pursuant to s.18 of the Act, the Attorney-General directed a special hearing be conducted. That commenced before a judge alone on 24 July 2001.

7. On 12 September 2001 the judge, in detailed and careful reasons, found, on the limited evidence that the offender had committed the offence of malicious wounding with intent to cause grievous bodily harm and manslaughter, having reduced murder to manslaughter pursuant to s.23A(1) of the Crimes Act. The maximum penalty for manslaughter is 25 years imprisonment.

8. The First Charge

The judge made the following findings of fact. About 10.30 pm on 25 January 1999 the offender, then aged 16 and a ward of the State, left the home of her carers at Dunmore and travelled to her natural mother's home at Warilla, taking a breadknife with her. About 11.45 pm she forced her way into her mother's house and started swinging the knife towards her mother's current de facto. He fled the house.

9. Her mother sat on the lounge. The offender swung the knife at her mother saying, "Do you really want me to kill you?" She placed the knife under her mother's arm giving it a little push and saying, "When do you want me to stab you?" The offender added "I am going to kill you before the police and welfare get to me."

10. The offender walked into the kitchen. Her mother ran outside chased by the offender who was screaming "I'm gonna kill ya, I'm gonna kill ya." Her mother felt a sharp pain in the side of her neck. She ran to a neighbour's house where she obtained help. She had been stabbed in the right side of her neck. She received a superficial laceration over the side of her right scapula. The wound was sutured and she was allowed to return home. The offender emphasised the minor nature of the injury received.

11. The offender went to Wollongong Railway Station where she approached an 18 year old man and introduced herself as Melanie. She told him, "I'm on the run from the police … because I stabbed my mum in the back twice … I have wanted to do it for a long time due to being abused when I was younger by my mother and her boyfriend …"

12. On being shown the knife by her the young man noted there was blood on the blade and asked her where it happened. She replied, "At her place at Warilla … I hope I killed the bitch or if I didn't I will go back and try to stab her until she is dead. …"

13. The young man left the railway station and contacted the police who apprehended her. When interviewed she denied being at her mother's house and denied any knowledge of the knife found in her possession when arrested.

14. The offender drew attention to some further factual material. Immediately after she had struck her mother, the latter continued running to a neighbour's house. The mother was chased a short way in the dark. The mother ran around the corner with her other daughter and ended up on the other side of Kings Street outside No. 2 The offender remained on the side of the road closer to the family home. She did not continue the physical attack but continued to shout threats and hit a knife on a fence.

15. The Second Charge

The judge made these findings. On 23 July 1999 the offender was one of six detainees in a cooking class held within the Yasmar Juvenile Justice Centre. The deceased was employed as a storeman with TAFE and was present that morning to assist the class. Each detainee was given a toolbox which contained a knife. The offender became very excited and hyperactive when handed her knife. At recess she made a comment to the assistant principal in a jocular tone about using the knife. The judge was not able to find what was said with any degree of precision. He did not believe there was any threat by the offender directed towards him. Around the same time she told another detainee that she was going to stab (the deceased). She also told another person that she was going to stab a third person (a woman).

16. Shortly after recess (about 11.20 am) and whilst receiving tuition on how to cut vegetables, the offender walked to where the deceased was standing, carrying the knife in her hand which she held down beside her body with the blade pointing towards the floor. She stood behind him, raised the knife in both hands to the same height as her head and brought her hands down so that the knife penetrated into the deceased's back. As she moved away she threw the knife and some vegetables in the direction of the deceased. She had to be forcibly restrained. He died that afternoon in hospital.

17. The offender was placed in a holding room and while there asked a youth worker, "Do you think he felt it? Do you think it hurt?" The offender commented, "Good job, eh, good job. I only did it because the other girls told me to do it. It wasn't even supposed to be him. It was supposed to be someone else but he was there."

18. At the request of the offender's counsel the judge made these further findings relevant to the defence of substantial impairment. As at 25 January 1999 the offender was facing two separate charges of carrying a concealed weapon (knives). Whilst at Yasmar she came under notice for theft of a needle, theft of a knife, having a sharp piece of wire and striking a worker with a leather-working tool. She talked frequently of stabbing things and stabbing people and of an intention "to finish off her mother". She was fascinated with knives, always "talking about them and goes hypo" (agitated). She became "really excited" around knives, wanting to use them on someone and excited about other sharpened items. The sharp objects and knives "got her going."

19. Counsel for the offender emphasised that there was a wealth of evidence that despite her juvenile history, her background as a State ward and observations of her whilst in custody at Yasmar in the period prior to the second offence, she was given knives, a sharpener and chef's clothing in the company of other detainees. It was pointed out that despite numerous observations on the day of the second offence of her rapidly accelerating arousal in a disruptive class environment she was retained in the classroom without youth worker supervision. Counsel stressed that the offender struck but a single blow with the knife and did not progress further in attacking the victim. After the blow she turned her attention to items nearby in the kitchen including a cardboard box filled with vegetables which she ripped and the vegetables were thrown around. Counsel contended that the fatal blow would not have been delivered, on one view but for the failure to supervise the offender and protect the victim.

20. After reviewing the evidence the judge made these findings which were amply justified on the evidence, namely

"I find on the evidence, that the accused had a pathological fascination for knives. I find that, on the day of the stabbing and at the time of the stabbing of the deceased, the accused was in a highly aroused state, initiated by access to and the handling of a large kitchen knife or knives.

I find that, absent the partial defence of substantial impairment, the charge of murder would be established."

21. The judge then considered the defence of substantial impairment, saying:

"The psychiatric evidence was uniformly supportive of the defence of substantial impairment, on the ground that, at the time of her act, the accused's capacity to control herself was substantially impaired by an abnormality of mind arising from an underlying condition. The psychiatrists did not support the defence on the ground of impairment of capacity to understand events or on the ground of the accused's capacity to judge whether her actions were right or wrong"
.

The judge made this further finding:

"I find that the accused's capacity to control herself, at the time of her act, causing the death of the deceased, was substantially impaired by an abnormality of mind arising from an underlying condition, namely, severe personality disorder. I further find that such impairment was so substantial as to warrant her liability for murder being reduced to manslaughter"

Accordingly, the judge found on the limited evidence available that the offender committed the offence of manslaughter.

22. It is worth noting that during the offender's interview with Dr Westmore on 11 August 1999 she struck the doctor on the head, spontaneously and unprovoked. Dr Westmore described the offender as "severely disturbed psychologically" and "extremely dangerous". Dr Westmore thought that the extreme severe personality disorder which she had at the time of the offences will be present for many years to come. Dr Westmore explained that her abnormality of mind arose from the underlying personality disorder. He added (T186-187):

"The abnormality of mind is reflected in her behavioural disturbances, her impulsivity, her lack of judgment, her lack of boundaries, the uncontained aggression, emotional aggression that she displays; the intense attachments, and probably associated devaluation that she would have of people …"

23. Dr R Wilcox, psychiatrist retained on behalf of the offender, said that apart from some minor points, she and Dr Westmore were "basically … in concordance."

24. Dr Lisa Brown, psychiatrist, who has been treating the offender since her transfer to Mulawa Correctional Centre in July 1999 said:

"In concordance with Dr Westmore and Dr Wilcox, my primary diagnosis was that of a personality disorder with borderline and antisocial features, but over time I have also come to an additional diagnosis, that of either being a chronic post-traumatic stress disorder or a disassociative disorder."

25. In his report of 16 November 1999 Dr Westmore wrote:

"… this young person is highly unstable, volatile and certainly impulsive. In view of her past behaviour she needs to be considered as potentially extremely dangerous. She will require long term, highly structured support and supervision …".

26. Counsel for the appellant relied on the following evidence of Dr Westmore in answer to some questions by the judge:

"Q. Doctor, you were asked by Mr Crown about the best strategy for managing her, and you said that for her own safety and of others she needed an environment where boundaries were set on her conduct and where she could receive appropriate therapy. You also said that where she is at the moment is the safest environment I think you were saying --
A. Yes your Honour.


Q. Taking what you would regard as all relevant considerations into account, including the safety of herself and others, is there any other kind of confinement which would be preferable in her case?
A. There might be other environments which would be preferable, and ideally she is a forensic patient, then ideally she should be managed in a Forensic unit. The only option for her would be Bunya House in the grounds of Cumberland Hospital. I would have concerns about her there, and for the safety of other residents, in that it doesn't have the same level of limit setting capacity and safety. It is a more open environment than the one in which she currently resides, and at the moment, because of the high danger I think she poses to others I certainly wouldn’t be recommending that she go to Bunya.

Q. Now is what you have just said predicated upon her classification as a forensic patient?
A. Yes, your Honour. And if that situation could be reviewed down the track then that would be appropriate as dangerousness is monitored regularly. I mean in a hospital setting, a forensic hospital setting she will get doctors and nurses looking after her and so on, and it’s a different milieu than present, obviously, and ideally that's where she should be but, as I say, because she is so unpredictable and so impulsive there would be a risk I think to other patients and staff in that setting."

This passage demonstrates that the judge was alive to the issues of the protection of the community and the dangerousness of the offender.

27. In his remarks upon sentence the judge noted from what Dr Brown had said that in recent months there had been some calming effect on the part of the offender from prescribed medication. Prison staff were supportive in maintaining access to treatment for her.

28. About the time of sentencing Dr Brown was seeing the offender every month or two. In private practice she would be seen weekly. Dr Brown would prefer the offender to be accommodated in a secure facility with hospital staff, but no such facility exists for women prisoners in this State. Accommodation in the general prison population had not been considered as a reasonable possibility.

29. The judge said

"15. Whether the offender would ever overcome her aggressive, impulsive tendencies was uncertain. According to Dr Brown, that could occur with maturity, in her late twenties or thirties. The prospect was, however, reduced by not being able to provide the offender with intensive psychotherapy due to the limited resources available in the prison system."

30. When first transferred to Mulawa in July 1999 the offender was accommodated in the Mum Shirl Unit for psychiatric inmates. After about a year she was transferred to the segregation section of the Multi-Purpose Unit which was staffed 24 hours a day. Freedom of movement within that section was more restricted than in other parts of the gaol. She was confined to her cell from 5 pm to 8 am and from 12 noon to 2 pm, some three and a half hours a day longer than for inmates in the general prison population.

31. The offender attended the Mum Shirl Unit for educational and recreational activities, group therapy sessions and one-to-one sessions with the psychologist. She was allowed contact with the main gaol population in the Sacred Garden at the prison. She had been assisted by having a mentor from the main gaol population who visited her daily. She assisted in the wing laundry and did some grounds maintenance under supervision. She had contact with a special needs teacher who was addressing literacy and numeracy.

32. The judge found that the offender's aims were to be housed in the main population of the gaol and to work with the main gaol population. Although the offender's case officer thought that the offender's aggressive behaviour had diminished in incidence and severity over the time she had been at Mulawa the evidence did not suggest that such aims were likely to be achieved in the foreseeable future.

33. The appellant relied on the judge's finding that the offender was being held at Mulawa under conditions which were unsuitable and inhumane and that she should be accommodated in a secure psychiatric hospital ward receiving treatment not available in prison. No such facility exists in New South Wales for female offenders in her mental condition.

34. The judge stated that the function of a limiting term is to limit the period for which a person unfit to be tried can be detained for the offence or offences the subject of the special hearing. On expiry of the limiting term, the offender is released, unless detained as a continued treatment patient pursuant to s.89 of the Mental Health Act 1900.

35. The judge acknowledged that in fixing a limiting term the court must make the best estimate of the sentence which the court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence or offences and the person had been found guilty of the offence or offences. See s.23(1) of the Mental Health (Criminal Procedure) Act 1990. The judge said:

"I am, therefore, to make a determination having regard to the objective gravity of the offences and the subjective circumstances of the offender having regard to the range of considerations which would be taken into account after conviction at an ordinary trial. The considerations include the offender's mental state at the time of the offences and since."

36. The judge found that the first offence was premeditated and that the stabbing involved in the second offence was done on impulse with no planning, without provocation and with no discernible motive. These findings were supported by the evidence. Further, remorse was not available as a mitigating consideration.

37. The judge stated:

"… where mental disorder or mental disability has contributed to the crime … general deterrence is generally regarded as deserving less weight in such a case because it is considered inappropriate to use such a person in that way …On the other hand, whilst protection of the community cannot justify a sentence that is disproportionate to the gravity of the crime, that consideration may be of greater importance in the case of a mentally disturbed offender and may offset the offender's mental condition which would otherwise be a potentially mitigating feature of the case." (citations omitted)

38. The judge crystallised his approach in this passage:

"To my mind, the predominant considerations in this case are, on the one hand, retribution for wilful injury and then for taking a human life; and, on the other hand, the very low level of moral culpability involved in either offence by reason of the offender's mental state. I also take into account, in mitigation, the offender's youth and the harsh conditions under which she is kept."

39. The Crown submitted that the judge erred in omitting to give adequate consideration to a significant aspect of the sentencing in the present case, namely, the protection of the community. It was pointed out that this was not mentioned in the paragraph just quoted. That paragraph, however, followed the paragraph earlier quoted and references by him to Veen v The Queen(No 2) 164 CLR 465 at 472 and 476. It cannot be fairly said that the judge did not consider the issues of the protection of the community and her dangerousness. Essentially, the Crown case became that while the judge made references to the relevant principles and authorities, the sentences imposed did not reflect the correct application of principle and authority.

40. The Crown further submitted that the fact that the killing "was an act done on impulse, with no planning, without provocation and with no discernible motive" was a cause of great concern and a major feature to be taken into account when considering the serious nature of the crime and the sentence to be imposed: D L White-Cotterell 70200 of 1991. Reference was also made to Chayna (CCA 60078/92, 8 June 1993, unreported) where the Court (Gleeson, CJ, Priestley JA and Studdert J) said, "We have given careful consideration to whether there is such a risk of her killing again that this is a material factor to be taken into account in sentencing her." The Crown contended that all of the expert evidence in the present case would appear to confirm that the risk of the offender re-offending in a violent way is high. Reliance was also placed on the decision of this Court in Heikki Veli Hietikko (CCA 60349/89 18 June 1992, unreported). That was a case of diminished responsibility, the prisoner receiving a sentence of 16 years with a non-parole period of 12 years. He planned to do something violent to his imagined persecutors amongst whom was the deceased. The killing itself was savage. The prisoner knew what he was doing. Psychiatric opinion included warning as to and prediction of future misconduct by the prisoner. He would not submit to treatment in prison and spat out his medication on occasions. It was held that in expressly considering the protection of society the judge in that case did not fall into error and that there was no suggestion that the sentence for that reason, namely the protection of society, was extended beyond what was otherwise appropriate,

41. Counsel for the appellant emphasised the youth of the offender, the conditions of her custody, the great advantage the judge had in seeing her and hearing and seeing the witnesses. That advantage was considerable. The judge's discussions with the psychiatrists were illuminating and he did enjoy the special advantage mentioned

42. Counsel for the offender submitted that no error of law or principle or fact was disclosed in the judge's reasons. There is no particular identifiable error but given the facts the result bespeaks error. This case falls within the last category mentioned in House v The King (1930) 55 CLR 499 at 505, that is, the result reached was unreasonable. The judge could not have adequately taken into account the objective gravity of the offences, her dangerousness and the need to protect the community.

43. The offender did not accept that either offence was a serious example of the crime involved. However, it was not suggested that the crimes were not serious. By this submission the offender intended to convey that sentences at the middle to near the top of the range were not warranted.

44. The offender accepted that the expert medical evidence (and the facts which pre-dated that evidence) indicated that she was dangerous to herself and others. It was submitted that at its highest the evidence was that the personality disorder would be present for many years to come and that it did not go so far as to indicate that the offender would be dangerous for many years to come.

45. The judge's findings, which were supported by the evidence, were that she was presently dangerous and that whether she would ever overcome her aggressive, impulsive tendencies was uncertain. The best that could be said was that she might possibly overcome them in her late twenties or thirties.

46. The offender submitted that the judge had carefully considered all the relevant facts and principles and had balanced the various considerations. It was further submitted that the sentences imposed were not manifestly inadequate in themselves or in combination and were well within the permissible range.

47. I agree that the judge gave the matter careful consideration and that he undertook an exercise in which he balanced the competing factors. Nevertheless the ultimate limiting terms which he nominated were manifestly inadequate.

48. The offence of malicious wounding with intent to cause grievous bodily harm was indeed a serious one. It was pre-meditated. The offender went to her mother's house armed with a breadknife and, after forcing her way in, threatened her mother as she wielded the knife and told her that she was going to stab her. The offender then stabbed her. The mother was able to escape at that stage and before further harm ensued. Fortuitously the injury inflicted was a minor one but it is beyond argument that the offender intended to inflict grievous bodily harm upon her mother and that her mother was in grave jeopardy. Allowing for all the offender's subjective features especially her severe psychiatric condition including the matters to which reference is made later in these remarks and applying the principle of totality it was not open to the judge to nominate a limiting term of less than 3 years. Such a term would also reflect the restraint which the court exercises on Crown appeals.

49. The starting point in considering the penalty for manslaughter is the felonious taking of a human life and that remains a key element in the assessment of the objective gravity of the offence. In Low (1991) 57 A Crim R 8 at 18, Lee CJ at CL, with whom McInerney and Sharpe JJ agreed, said:

"…when there is diminished responsibility under s.23A it is wrong to approach the matter on the footing that the killer … is necessarily to be treated as if he lacked any capacity to control his will so as to refrain from causing the death of his victim."

50. Lee CJ at CL at 19 adopted this passage from the judgment of Street CJ in Hill (1981) 3 A Crim R 397 at 402:

"In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life."

51. Lee CJ at CL at 19 continued:

"That latter paragraph, in my view, is entirely appropriate to sentencing when s.23A of the Crimes Act is called into question and, as I have said, it is quite wrong to take the view that merely because there is an element of diminished responsibility, which substantially impairs a person's judgment, that that is the end of the matter and that a light sentence must inevitably follow."

52. In R v Blacklidge (CCA unreported, 12 December 1995) Gleeson CJ (with whom Grove and Ireland JJ agreed) said:

"When the basis of a finding of manslaughter is diminished responsibility, pursuant to s23A of the Crimes Act , what is nevertheless ordinarily involved, and what is involved in the present case, is a conclusion that the taking of human life was the consequence of a deliberate and willed act, performed with intent to kill or cause grievous bodily harm, or with reckless indifference to human life. The abnormality of mind substantially impairs the offender's mental responsibility for his or her act but it does not negate such responsibility. The reduction in the capacity for self control which results from the abnormality of mind diminishes the responsibility, but it does not excuse the act. (R v Low (1991 57 A Crim R 8.) "

53. In the present case having become aroused by the presence and availability of knives, the offender told another detainee that she was going to stab the deceased. A short time later she walked to where he was standing holding the knife in her hand down beside her body so as not to attract attention, stood behind him and stabbed him forcefully in the back. Later on she commented, "Good job," and "It was supposed to be someone else but he was there."

54. The psychiatric evidence did not support substantial impairment of her capacity to understand events or to judge whether her actions were right or wrong. However, it did support that her capacity to control herself was substantially impaired. This is a case where there is a compelling need to have regard to the protection of the community. She also needs protecting from herself. Of course, the sentence imposed must not, on these accounts, be extended beyond what is otherwise correct.

55. The sentence imposed does not reflect the objective gravity of the offence. As this Court has to re-sentence the offender it looks at the position as it exists today. The Crown relied on the affidavit of 2 May 2002 of Patrick Aboud, Deputy Governor, Mulawa Correctional Centre and that of 9 May 2002, of Simione Karma, Governor, Parklea Correctional Centre. Mr Aboud's affidavit deals with matters prior to and after the date of sentencing, 23 November 2001. I will principally refer to matters occurring after 23 November 2001.

56. According to Mr Aboud's affidavit whilst she was at Mulawa Correctional Centre the offender was given two hours of exercise per day. She had no direct contact with other inmates. Due to her unpredictable and violent behaviour towards staff members and other inmates several attempts to place her in a "buddy system" proved unsuccessful. Her condition also precluded her from working (and being given the opportunity to work), undertaking full time education and participating in structural programmes within the gaol.

57. Mr Aboud stated that the offender's behaviour is sporadic. It rapidly changes from well behaved to threatening and assaulting staff and others. She is influenced and easily manipulated by other inmates. She is fixated by knives, sexual objects and anything related to death. She had been fixated on a particular staff member whom she believed was a reincarnation of the man she killed. Pictures and photographs including those of those women on fire, guns, knives and people being shot have been confiscated from her cell.

58. On 12 February 2002 an incident occurred at Mulawa. She had requested a mop and bucket. As that was being provided she assaulted two officers by hitting and punching. She was overpowered and returned to her cell. Her solicitor stated that on this day she self-harmed by embedding a piece of glass in her wrist. On 18 February 2002 she was transferred from Mulawa for the good and discipline of that Centre and for security reasons placed in a segregated unit at Parklea Correctional Centre. She is being held in that unit with one other female inmate and five other male inmates. She is kept apart from the male inmates. She is allowed out of her cell into her exercise yard between 9 am and 11.20 am and 12.15 pm and 3 pm.

59. The solicitor for the appellant has stated that the offender was angry and confused about the Crown appealing. The Notice of Appeal is dated 7 December 2001. It was served on her personally in prison in accordance with the usual practice but the date of service does not appear from the papers. It was suggested that the appeal may have been the cause of the deterioration in the offender's behaviour at Mulawa. The evidence does not establish this but it is a possibility. It was probably one of a number of contributing factors.

60. The offender's solicitor visited her at Parklea on 9 April 2002. He said that her cell had an open barred addition some 3m by 5m outside it, that the addition was like a cage and faced west. There was a high wall in close proximity and an armed guard visible in the tower attached to the wall. The solicitor heard female voices shouting to each other through the bars. A number of males were sitting or standing in the barred cages outside the cells. The males speak to the female inmates by shouting when in the adjacent cages. The offender showed her solicitor an unsigned letter from her foster parents that they would not or could not have any further contact with her. He understood that they have had no further contact with the offender and that she has had no natural family contact since stabbing her mother. Thus she receives no personal visitors save for people associated with her legal and custodial affairs.

61. The solicitor stated that the prison authorities have consistently treated the offender as extremely dangerous and quarantined her from access to other inmates and prison officers. She is accompanied by other officers wherever she goes.

62. The solicitor started acting for the offender about 12 February 2001. He said that he had observed a significant improvement in her behaviour over the period he had known her. She presents to him reasonably and is not threatening. Her speech is no longer characterised by violent images and she shows a measure of insight into her predicament that had previously been lacking.

63. The solicitor, from his wide experience since 1996, of prison conditions including those in segregated prison environments, has stated that by comparison the offender has to date and will in the future apparently serve her limiting terms in harsher conditions than the average prisoner and in harsher conditions that he had observed in any male prison.

64. In her report of 21 January 2002 Dr L V Brown, the visiting psychiatrist at Mulawa stated that the offender's current placement was of concern, being limiting and not conducive to rehabilitation both socially and educationally and that she remained a high risk for further serious violent behaviour. Dr Brown wrote of the offender:

"She remains pre-occupied with violent thoughts towards her mother but also hears 'voices' telling her to harm staff and other inmates here. She herself has expressed concern about whether she would be able to manage a unit where knives were more easily accessible. Her fantasies of violence are graphic and detailed. Although she shows some awareness that the consequences might be lengthy incarceration, her impulsiveness and degree of anger may well override any disincentive."

65. In her report of 3 June 2002 to the Serious Offenders Review Council Dr Brown reported that she had that day visited the offender in Parklea. Dr Brown wrote:

"Debbie presented as much more settled and appropriate in her interactions. She expressed satisfaction with her transfer to Parklea. Although housed there in the segregation unit, she has more 'time out' from her cell and gets along much more peaceably with the officers. …

She complains of intermittent feelings of depression associated with suicidal ideation, however, she denied any intent or plans to self harm. She acknowledged ongoing thoughts of violence to others, but without specifying any individual thoughts.

The main problem for her currently would appear to be that of boredom. She can't read well and apart from television and time out of her cell she has little to occupy herself with. … Debbie has expressed a wish to stay on at Parklea rather than return to Mulawa. This seems to be a reasonable option at present excepting to say there seems to be little in the way of any type of therapeutic programme or educational opportunities."

In an addendum of 24 June 2002, Dr Brown wrote:

"With respect to Ms Adams' current condition … she is not currently suffering with a recognisable mental illness. She does qualify for a diagnosis of a mental condition, namely, a severe personality disorder of an anti-social type, however, she is unlikely to receive any benefit from any form of psychiatric hospitalisation."

66. On 4 July 2002 the Serious Offenders Review Council dealt with an application of 15 May 2002 by Ms Adams seeking that her segregation be brought to an end and that she be allowed to return to the main section at Mulawa. This seemed to run counter to what she told Dr Brown on 3 June 2002. In the reasons for its decision the Council canvassed the history of the offender and the proceedings involving her, noting the remarks of Sperling J that she should be accommodated in a secure psychiatric hospital ward.

67. These remarks do not sit readily with Dr Brown's most recent opinion that Ms Adams is unlikely to benefit from any form of psychiatric hospitalisation.

68. There are no segregation yards attached to the units at Mulawa and that makes it very difficult to comply with the legislative requirements as to exercise and the like in respect of segregated inmates. The offender remains an extreme high security risk inmate, having been so designated by the Commissioner. She would not be kept in the main section of Mulawa and allowed to mix freely with other prisoners. That was her primary desire. If she has to be segregated, Parklea is better for her than Mulawa.

69. On 7 March 2000 she made statements threatening to stab someone, amounting to death threats. On 24 April 2002 she made a statement in effect inviting the tower officer to shoot her. She said that she wanted to see her blood and intestines.

70. There was no other place but Parklea at which the offender could be suitably housed. The Council determined that the offender remain at Parklea.

71. Dr C J Lennings, a highly qualified and experienced psychologist, has provided a detailed report dated 30 July 2002. He had access to a substantial volume of relevant material including psychiatric reports. He also had a telephone conversation with the welfare worker at Parklea and a short interview (about 20 minutes) with the offender because of her known intolerance for psychological examination.

72. Dr Lennings noted that Dr Brown thought that since her transfer to Parklea the offender had settled and that the welfare worker had reported that the offender had no equipment, organised activity or interaction in which to become interested and was completely socially isolated. Dr Lennings also noted that the offender was not receiving any specific psychotherapeutic treatment. Her primary treatment appeared to be an amalgam of confinement and medication.

73. Dr Lennings wrote:

"Although Debbie has numerous diagnoses the diagnosis of most concern appears to be her personality disorder. Severe personality disorder probably underlies the perception of risk of dangerousness in Debbie. I note that psychiatric reports indicating that treatment is not available for this condition. Although the view is held that severe personality disorders are recalcitrant to treatment, over the last decade treatment programs for severe personality disorders have been developed, in particular for borderline personality disorder. The problem is that such programs require therapeutic hospital settings, are long (take at least 2 years), require both individual and group treatment processes, and are limited in their effectiveness in cases of comorbid presentations (more than one psychological disorder in the person's make-up). Generally, the effect of comorbidity is to both lengthen the course of treatment, and reduce the expectations for treatment gains. It appears that in our current public (mental) health system, such treatment programs are not available."

and

"Research in the child protection and forensic areas, however, suggests that the kinds of personality disorders of the dimensions revealed by Debbie are unlikely to alter much simply as a function of age until late in the 4th decade of life. Even then it is not known whether age related change alone will be sufficient to moderate her risk to others or to herself. It appears imperative that if Debbie is not to be held in gaol for the next 30 years or more, a dedicated treatment plan needs to be considered.

…
Debbie is a young woman suffering from a range of severe and complex disorders that vastly limit her capacity to function. Her morbid pre-occupation with knives, the absence of any reasonable levels of pre-morbid functioning, and her long history of aggressive and destructive impulses signal a young woman who is both very disturbed and quite dangerous.

…
It is most unlikely her level of disturbance will spontaneously resolve simply as a function of incarceration, and any amelioration of her risk (as well as any humane considerations that might be considered) will only take place if she is placed in an intensive, in-patient therapeutic setting. There is, I am informed, no opportunity for such a placement at this time

…

In the interim, if Debbie is to remain in Parklea, consideration of her vulnerability and developmental needs has to be taken into account. Debbie is a young woman, still developing her identity. She has a need for exercise and an opportunity to get her weight gain under control. She requires opportunities for (safe) social interaction, and clearly has a major requirement for treatment. It is not possible for adequate treatment to be given to Debbie whilst in Parklea. The kinds of treatment Debbie needs are a mix of individual and group based strategies, and no group exists in Parklea that would be suitable for her. None the less, some beginnings of appropriate therapeutic contact should occur. This might ideally take the form of treatments modelled on the work of Linehan and Beck in managing severe and destructive personality disorders, and parallelled by a continuing monitoring of her relevant medication needs. If prison personnel are to be used for this purpose, an arrangement should occur such that the prison personal (sic) receive some supervision and debriefing in their therapy with experienced practitioners from Cumberland, or whatever other appropriate therapeutic venue she may eventually be transferred to. Ideally, transfer to some therapeutic venue will be considered, and to prepare for that, treatment from that setting should begin whilst she is in Parklea. This will enable a bridge into the next phase of her management, whilst security needs are managed."

74. Counsel for the offender was very critical of the lack of suitable facilities available to treat her. Her circumstances are exceptional. Indeed, counsel submitted that the sooner the limiting term expires the sooner the Health system will have to provide a containment unit that could manage the offender in a therapeutic way, if dangerousness is still an issue. The kind of unit envisaged would probably be costly to establish and maintain. Expert security and treating staff would be required. Until fairly recently such a unit has not been required for female prisoners. Nor should it be overlooked that the therapeutic treatment available may not be effective in the instant case. This does not mean that the treatment should be withheld. A serious attempt to rehabilitate her needs to be made or she will be in a custodial situation for virtually the rest of her life. She is now but 20 years old.

75. This case poses problems of much difficulty. It is not easy to reconcile all the competing considerations or to make an even moderately accurate forecast of what is likely to happen in the future.

76. Having regard to the objective gravity of the offence, the offender's subjective features including her psychiatric condition, the custodial circumstances and the principles of totality, but not overlooking the need to protect the community, the correct limiting term to be nominated is a cumulative one of 10 years. It should be confirmed that if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offences which the offender has been found to have committed the court would have imposed a sentence of imprisonment. This Court would also confirm the reference of the offender to the Mental Health Review Tribunal and the order of the judge that the offender be kept in strict custody.

77. Sections 24 and 27 of the Mental Health (Criminal Procedure) Act 1990 set out the future tasks of the Tribunal and the Court.

78. I propose the following orders:

1. Crown appeal against limiting terms nominated allowed; limiting terms nominated quashed.

2. In lieu thereof the following limiting terms are nominated:

(a) For the offence of malicious wounding with intent to cause grievous bodily harm – a limiting term of 3 years commencing on 26 January 1999 and expiring on 25 January 2002.

(b) For the offence of manslaughter – a limiting term of 10 years commencing on 26 January 2002 and expiring on 25 January 2012.


3. Confirm the order of the judge referring the offender to the Mental Health Review Tribunal.

4. Confirm the order of the judge that the offender be held in strict custody.

5. A copy of Dr Lennings' report of 30 July 2002 should accompany the warrant and be placed on the offender's file to assist Corrective Services and Corrective Health Services in the treatment and management of the offender.

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