State of New South Wales v Butterfield

[2024] NSWSC 211

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

State of New South Wales v Butterfield [2024] NSWSC 211

Hearing dates:

01 March 2024

Date of orders:

01 March 2024

Decision date:

01 March 2024

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) An order pursuant to ss 5C and 17(1)(b) of the Act that the defendant be the subject of a continuing detention order for a period of two months from the date of the order ("continuing detention order").

(2) An order pursuant to s 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the period specified in paragraph (1) above.

(3) An order pursuant to ss 5B and 9(1)(a) of the Act, that the defendant be subject to an extended supervision order to commence following the expiry of the continuing detention order for a period of five years, with such order directing the defendant to comply with the conditions set out in the Schedule to this Summons.

Catchwords:

HIGH RISK OFFENDER – final hearing – application for continuing detention order – application for an extended supervision order - serious violence offences – final relief granted - continuing detention order - committal of the defendant to a correctional centre - defendant be subject to an extended supervision order. 

Legislation Cited:

Crimes (High Risk) Offenders Act 2006 (NSW), ss 3, 5C, 9, 17, 20, 25B

Cases Cited:

State of New South Wales v Butterfield (Preliminary) [2023] NSWSC 1377

Texts Cited:

Nil

Category:

Principal judgment

Parties:

State of New South Wales (Plaintiff)
Rebecca Butterfield (Defendant)

Representation:

Counsel:
S Mcgee (Plaintiff)
M Johnston SC (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2023/00282421

Publication restriction:

Nil

EX TEMPORE JUDGMENT (revised)

1. The defendant, Rebecca Butterfield, who I will refer to as Rebecca, with no disrespect, for the balance of this judgment, is currently admitted as an involuntary correctional patient receiving mental health treatment at the forensic hospital. She has successfully completed two therapeutic leave excursions since the preliminary hearing before his Honour, Ierace J. Rebecca has been the subject of two previous continuing detention orders. She is currently subject to an interim detention order (“IDO”), as a result of the judgment of Ierace J: State of New South Wales v Butterfield (Preliminary) [2023] NSWSC 1377.

2. The plaintiff (the State of New South Wales) sought relief at this final hearing in two respects. First, a Continuing Detention Order (“CDO”) of a two-month duration, then followed by an extended supervision order (“ESO”) of five years on conditions which are set out in the annexure to the Amended Summons upon which the plaintiff moved.

3. I interpose to mention a number of considerations which bear upon the present proceedings. The first is that I am content with the view that Rebecca is mindful of the arrangements which are contemplated within the orders which I have described. I mention that fact early because there is a possibility, that after the short period of operation of the CDO, that Rebecca may spend an indeterminate time in mental health care at a forensic hospital. I also mention that fact because, as has been emphasised during submissions today, the operation of or commencement of an ESO is indeterminate. I have also received some comfort, in addition to the expert opinions cast upon this particular matter, that Rebecca has had the assistance of legal advice from senior counsel, who has emphasised that the form of the proposed orders is a matter that has been the subject of extensive consideration, both involving relevant agencies, but also involving Rebecca herself, with the provision of advice.

4. Two other matters should be mentioned at the outset. The proceedings and relief sought in the present matter is sought under the Crimes (High Risk) Offenders Act 2006 (NSW) (“the Act”). Section 3 sets out the objects of the Act, which are as follows:

"The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community.

Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation".

5. It is unnecessary in this matter to consider the question that sometimes arises in proceedings of this kind as to the hierarchy of objects contained within s 3. It is sufficient to conclude that the proposed orders, in my view, are directed to accomplish both objects in roughly equal measure.

6. The further consideration in that respect is the provision of s 25B(2)(b) of the Act, which provides as follows:

“(b) if the order is suspended for any period, the period specified in paragraph (a) plus each period during which the order is suspended.”

7. A further preliminary consideration is that I readily conclude, as Ierace J did in the preliminary hearing, that putting aside the question of unacceptable risk, the prerequisite conditions to the making of either a CDO or an ESO have been established in the present matter, for the reasons given by his Honour.

8. There is no contest as to the conditions proposed for the ESO. And I see no reason, having regard to the expert opinion before the Court, or the submissions of the parties, to form any view other than if an ESO was made in this case, it would be appropriate to make the ESO operate as subject to those conditions.

9. Whether that position is maintained in the future, because of changed circumstances which may arise over a long period of time, is a matter for later judgment. But I expressly acknowledge for present purposes that circumstances may arise in the future, which may require the reconsideration of those conditions.

10. The criminal history of the defendant of the proceedings is set out in the judgment of Ierace J in State of New South Wales v Butterfield (Preliminary) [2023] NSWSC 1377, whose judgment I rely upon for that which now follows.

11. The defendant has had an extensive criminal history that commenced in 1996, when she was 21 years of age with convictions involving the possession and use of prohibited drugs, malicious damage, resist arrest, and assault police. The following year, when she was convicted of assault occasioning actual bodily harm, assault police, use weapon to resist arrest, and assault. In 1997, the defendant committed her first offence of serious personal violence, which was an unprovoked malicious wounding of a taxi driver, whom she stabbed with a knife in his upper arm and lower chest. His Honour noted that the defendant was on bail at that time.

12. In 2000, the defendant committed offences of assault, assault police, resist arrest, and custody of a knife in a public place. There then is a series of offences which in my view form the foundation forerunner to the later CDOs made with respect to the defendant to which I've referred. On 5 November 2000, the defendant was arrested and charged with wound with intent to cause grievous bodily harm. Her neighbour had seen the defendant was bleeding from self-inflicted cuts to her wrists, and attempted to provide assistance to her. The defendant become very angry and stabbed the neighbour five times with a kitchen knife. She was sentenced to imprisonment for six years with a non-parole period of three years. In 2002, the defendant committed offences of assault and assault occasioning actual bodily harm in custody, for which she received a fine and a term of four months imprisonment.

13. I then reach the index offence. On 7 May 2003, the defendant killed a fellow inmate whilst imprisoned at Emu Plains Correctional Centre. The victim was a friend of the defendant, with whom she shared a unit. The unit involved a kitchen containing knives, and the defendant could access in an unprovoked attack. The defendant stabbed the victim 33 times with a carving knife. The defendant pleaded guilty to that offence. She was sentenced to 12 years imprisonment with a non-parole period of seven years. The defendant was not granted parole and served the full term to its expiration on 3 November 2015.

14. Ierace J's judgment refers to a significant number of entries of incidents of violence on the defendant's prison record, although I note acknowledgement of the plaintiff today that there have been improvements in that record, in more recent times notwithstanding a residue of incidents. There was also a recognition of improvements in the defendant’s mental health through an extensive process of mental health treatment that she has been and will continue to receive.

15. Nonetheless, the Court appointed experts shared unequivocal opinions, that the defendant continued to pose a high risk of serious violence. The effect of the opinions of psychiatrists treating and assessing the defendant is that she will continue to pose an unacceptable risk of serious violence for the foreseeable future, whatever her living circumstances. There is, in their opinion, an uncertainty as to the defendant's future progress in a graduated leave program from the forensic hospital.

16. In that respect, I would mention some opinions expressed by Dr Kerri Eagle, court appointed forensic psychiatrist, in her report dated 30 January 2024.

17. Firstly, Dr Eagle referred to the entrenched nature of the defendant's psychiatric conditions. She also opined that Rebecca remained an individual at a significantly elevated risk of engaging in future violence towards others, and an overall high risk of committing further serious violence offences, in the absence of an effective risk management plan, which includes external monitoring and restrictions. Dr Eagle opined that the risk factors were being effectively managed by a highly restrictive and therapeutic environment, with access to intensive specialist forensic support. As Rebecca transitions, and those supports are reduced, small changes in her dynamic risk factors will potentially result in an increased risk of violence.

18. I pause there to note that that aspect of Dr Eagle's opinion is important to the consideration of the form of orders proposed in this case. Dr Eagle noted that the correctional environment has not effectively managed or mitigated the defendant's behaviour beyond attempts at incapacitation and has not prevented her commission of violence. She observed that the re-incarceration is unlikely to reduce the defendant's risk of violence over the medium to longer term, and may increase her risk through destabilisation, disruption of effective treatment, and reducing her access to psychological supports.

19. That opinion, constitutes a foundation for the form of the orders presently proposed, including a very limited term for a CDO. The limited term of the proposed CDO will serve the purpose, it appears to me, of both managing the transition of the present mental health arrangements operating with respect to the defendant as well as minimising the risk of adverse impacts, including the risk of considerations arising in the manner suggested by Dr Eagle.

20. From that which I have discussed to date, and that which follows, it is clear, in my view, that there is a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under detention initially, and supervision ultimately, by the proposed orders.

21. I return to the proposed orders.

22. There is not yet complete certainty about the timeframe for successful completion of a graduated leave program at the forensic hospital and the securing of adequately supported accommodation in the community funded by the NDIS. I agree with the submission that, in a risk sense, these matters are necessary preconditions to the defendant's readiness for release into the community, but that progress has been made in those areas on the advice of the defendant's treating clinicians.

23. I also accept the submission that, even though the ESO may not ultimately take effect for some time, there is significant evidence before the Court to fashion appropriately flexible conditions for a five-year order. In my view, the expert opinions are consistent with the making of an ESO in the manner proposed and that there is no statutory impediment to orders being made in those terms. It is important to mention, by way of emphasis, another factor underlined or underscored in the submissions of the plaintiff. That is as follows:

"The dual relief proposed by the plaintiff, it is said of a short CDO followed by the ESO, is intended to avoid or reduce the potential for destabilisation in the defendant's mental health or undesirable and abrupt interruption to her treatment at forensic hospital as she transitions in legal status from the detention order to a supervision order."

24. It is further indicated that Justice Health have indicated that a period of one month's notice would facilitate what appears to be a smoother transition process of a change of legal status to be undertaken, compared with circumstances in which the current IDO has ceased or expires and the ESO immediately imposed following the final hearing. All of those submissions, in my view, have been made good in the arguments which has been presented to the Court today and upon the evidence which is before the Court.

25. What then of the legal framework for the making of the proposed orders. I have read closely the submissions of the plaintiff in this respect. They appear in paragraphs 39 to 44 of the written submissions and were the subject of elaboration in the oral submissions of the plaintiff to date. Rather than me paraphrasing those submissions, credit should be given by their recitation as follows:

[39] “It is understood that the Forensic Hospital is able to admit and treat not only “forensic” and “correctional” patients (the latter being the defendant’s current legal status) whose status arises under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (“MHCIFP Act”), but also high risk “civil” patients whose involuntary admission status arises under the Mental Health Act 2007.

[40] On cessation of the defendant’s current IDO, she would abruptly cease to be a “correctional” patient: s. 104(c) MHCIFP Act. Immediate establishment of her status as a civil “involuntary patient” would then impose on the defendant and her treating team multiple, time-sensitive assessment and review processes under Chapter 3 of the Mental Health Act.

[41] An alternative mechanism exists in s 105 of the MHCIFP Act, whereby the MHRT may classify a “correctional patient who is to cease to be a correctional patient within 6 months after the date of the review” as an “involuntary patient”. Such review can take place at any time: s. 93 MHCIFP Act. This appears to be a smoother means by which the defendant’s status as an involuntary patient at the Forensic Hospital could be continued throughout a period of transition wherein her current IDO, or subsequent short CDO, ceases and no further CDO is made.

[42] The plaintiff has sought clarification from Justice Health about the intentions of the defendant’s treating team with respect to the defendant’s management in the event no further CDO is made. Justice Health have confirmed the intention to seek to maintain the defendant’s involuntary patient status at the Forensic Hospital whether a CDO or ESO is made.

[43] Justice Health has indicated that with “sufficient time and notice (one month) of the definite cessation of a CDO)”, then steps would be taken to enact the mechanism in s. 105 of the MHCFIP Act. Alternatively, if there is “an abrupt end to her current CDO…then hospital staff would utilise the standard MHA 2007 processes to detain [the defendant at the hospital] and then request the MHRT classify her as an involuntary patient at the point she would otherwise be released”.

[44] Importantly, Justice Health has also indicated “the most essential requirement for [the defendant] to be safely and effectively discharged from hospital is the support from [Corrective Services] for facilitating an ESO pathway. This plan has been discussed in multiple stakeholder forums. As part of this plan, [Corrective Services] would coordinate the appropriate therapeutic and risk management resources to aid this pathway.”

26. My conclusions in this matter then may be summarised as follows.

27. Firstly, the necessary statutory conditions for the making of orders 6 to 8 proposed in the Amended Summons for final relief have been met. Secondly, I do not consider that there is any discretionary basis upon which those orders should not be made and that indeed the exercise of the Court's discretion points strongly in favour of making of the proposed orders. The form of the orders sought are entirely consistent with expert opinion in the proceedings come forward with the consent of the defendant to them and are appropriate having regard to the above extract from the plaintiff’s submissions.

28. For the reasons which I have given, the orders which are proposed, in my view, make imminent good sense both from a legal and practical viewpoint. Those responsible for their formulation should be commended. In the circumstances then, I make the orders contained in the Amended Summons in accordance with prayers for relief 6 to 8, inclusive.

29. For more abundant caution, I note that, in addition to the orders that I have made, that there previously operates in these proceedings an order made by Ierace J which conforms with the terms of prayer for relief 10 in the Amended Summons, I note that it continues to operate.

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Amendments

18 March 2024 - Typographical error

Decision last updated: 18 March 2024