State of New South Wales v Butterfield (Preliminary)

[2023] NSWSC 1377

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

9 November 2023

Decision date:

14 November 2023

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) Pursuant to s 18A and 18C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), the defendant is subject to an interim detention order which will commence on 17 January 2024 for a period of 28 days.

(2) Pursuant to s 20(1) of the Act, a warrant is to be issued for the committal of the defendant to a correctional centre for the duration of the interim detention order.

(3) Pursuant to s 15(4) of the Act two qualified psychiatrists are appointed to conduct separate psychiatric examinations of the defendant and to furnish reports to the Court on the results of those examinations.

(4)    The defendant is directed to attend the examinations referred to in order (3).

(5)    Access to the Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of this Court and without prior notice to the parties by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

Catchwords:

HIGH RISK OFFENDER – Preliminary hearing – Application for interim detention order – Serious violence offences – Whether supporting material would if proved justify the making of a continuing detention order – Application not opposed

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW), ss 3, 4, 5A, 5B, 5C, 5D, 13B, 14, 15, 17, 18A, 18C, 20

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 86

Mental Health Act 2007 (NSW)

Cases Cited:

State of New South Wales v Butterfield [2016] NSWSC 925

State of New South Wales v Butterfield [2021] NSWSC 11

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
Ms S McGee (Plaintiff)
Mr M Johnston SC (Defendant)

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

File Number(s):

2023/282421

Publication restriction:

Non-publication orders made 9 November 2023:
1. An order pursuant to s. 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Act”) that the disclosure of the details or particulars of any leave proposed for, planned for, approved for, or taken by Rebecca Butterfield pursuant to s 95 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), as referred to in the evidence set out in Schedule 1 to these orders is prohibited.
2. An order pursuant to s. 7 of the Act that the publication of evidence of the facts, particulars or details of Rebecca Butterfield’s history as a victim of sexual abuse and psychological treatment in relation to that history, is prohibited.
3. An order pursuant to s. 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that the publication of evidence of the facts, particulars or details of an incident involving Rebecca Butterfield that occurred on 13 October 2023, is prohibited.
4. Orders (1)-(3) are made on the ground specified in s. 8(1)(e) of the Act, namely that they are necessary in the public interest and that public interest significantly outweighs the public interest in open justice.
5. Orders (1)-(3) remain in force until the conclusion of the final hearing of the proceedings.
6. Orders (1)-(3) orders apply throughout the Commonwealth.

JUDGMENT

1. The State of New South Wales (the plaintiff) commenced proceedings by summons filed on 4 September 2023 against Rebecca Butterfield (the defendant) seeking interim and final orders pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). The defendant is presently subject to a 3 year continuing detention order (CDO) which will expire on 17 January 2024.

2. The final relief sought is a CDO for a period of 1 year followed by an extended supervision order (ESO) for a period of 4 years or, in the alternative, an ESO for a period of 5 years. By way of interim relief, the summons seeks orders that the defendant be subject to an interim detention order (IDO) or, in the alternative, an interim supervision order (ISO) for a period of 28 days. The summons additionally seeks preliminary and ancillary orders appointing two qualified psychiatrists to conduct separate psychiatric examinations of the defendant and furnish reports to the Court, that the defendant be directed to attend those examinations, and finally, that access only be granted to the Court’s file to a non-party with leave of a judge of this Court and with prior notice to the parties and an opportunity for them to be heard.

3. The preliminary hearing of the summons occurred before me on 9 November 2023. The defendant did not resist the making of the preliminary and ancillary orders sought, including the imposition of an IDO should the final hearing not be determined prior to the expiration of the current CDO. It is, however, necessary for the Court to be independently satisfied that an order should be made.

4. The plaintiff sought, and the Court made, certain non-publication orders in respect of certain matters that have the potential for impacting adversely to a significant degree upon the defendant's mental health issues.

Background

5. The material tendered in support of the application discloses that the defendant was exposed to a range of serious childhood traumas that led to early onset emotional and behavioural difficulties such as self-harm and acting out. It is unnecessary, for the purposes of this preliminary hearing, to relate this material in view of there being no contest between the parties as to the appropriate orders. Instead, the Court will primarily have regard to the risk assessment report, as to the defendant’s current level of risk.

The defendant’s criminal history

6. The defendant is 49 years old. She has an extensive criminal history that commenced in 1996, when she was aged 21, with convictions involving the possession and use of prohibited drugs, malicious damage, resist arrest and assault police, the most serious penalties imposed being a sentence of imprisonment for a fixed term of 1 month and a 3 year good behaviour bond. The following year, she was convicted of assault occasioning actual bodily harm, assault police, use weapon to resist arrest and assault, the most serious penalty imposed being a sentence of imprisonment for a fixed term of 4 months. On 23 September 1997, she 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. She was on bail at the time, for a charge of assault occasioning actual bodily harm. She received a sentence of imprisonment for 16 months, with a non-parole period of 12 months.

7. In 2000, the defendant committed offences of assault, assault police, resist arrest and custody of a knife in a public place. On 5 November 2000, the defendant was arrested and charged with wound with intent to cause grievous bodily harm. Her neighbour had seen that the defendant was bleeding from self-inflicted cuts to her wrists and attempted to provide assistance to her. She became “extremely angry” and stabbed the neighbour five times with a kitchen knife. She was sentenced to imprisonment for 6 years, with a non-parole period of 3 years. I note that she has remained in custody continuously since the date of her arrest for that offence.

8. 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 4 months’ imprisonment.

9. 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 included a kitchen containing knifes the defendant could access. In an unprovoked attack, the defendant stabbed the victim 33 times with a carving knife. The defendant ultimately pleaded guilty to manslaughter, based on a substantial impairment by an abnormality of mind. Three psychiatrists assessed the defendant and agreed in reports to the sentencing judge that the defendant suffered a severe personality disorder with borderline features. She was sentenced to 12 years’ imprisonment with a non-parole period of 7 years. The defendant was not granted parole and served the full term to its expiration on 3 November 2015.

10. The defendant has 114 entries on her prison record for disciplinary matters, 40 of which are for assaults.

Past orders made pursuant to high risk offender and mental health legislation

11. On 3 November 2015, Rothman J imposed a CDO on the plaintiff for a period of five years: State of New South Wales v Butterfield [2016] NSWSC 925. On 18 January 2021, R A Hulme J imposed a CDO on the plaintiff for a period of three years: State of New South Wales v Butterfield [2021] NSWSC 11.

12. The defendant has been an involuntary patient in the Forensic Hospital at Long Bay pursuant to s 86(7) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) since 27 April 2022. She is therefore under the supervision of the Mental Health Review Tribunal (the Tribunal), which determined in its most recent hearing, on 25 May 2023, that she should remain at the Forensic Hospital for another six months. The Tribunal recommended that she have escorted day leave at the discretion of the Medical Superintendent, which has not yet occurred.

Relevant provisions of the Act

13. Section 18A of the Act relevantly provides:

“18A   Interim detention order

The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court—

(a)   that the offender’s current custody (if any) will expire before the proceedings are determined, and

(b)   that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order or continuing detention order.”

14. It does appear that the CDO to which the defendant is presently subject will expire before these proceedings are finally determined, so I am satisfied that s 18A(a) is satisfied.

15. Section 18A(b) requires consideration of the legislative requirements for a CDO or ESO. Accordingly, although this is a preliminary hearing, it is necessary to evaluate the sufficiency of the supporting material to justify the making of a CDO, pursuant to the relevant statutory test. Section 5C of the Act provides:

“5C   Making of continuing detention orders—unacceptable risk

The Supreme Court may make an order for the continued detention of a person (a continuing detention order) if—

(a)   the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b) the person is a detained offender or supervised offender (within the meaning of section 13B), and

(c) an application for the order is made in accordance with section 13B, and

(d)   the Supreme Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order.”

16. I am satisfied that the statutory preconditions in s 5C(a)-(c) to the making of a CDO are satisfied. In relation to s 5C(a), a “serious offence” is defined to include “a serious violence offence” (s 4) which, in turn, is defined to include the offences of wounding with intent to cause grievous bodily harm and manslaughter caused by an unlawful and dangerous act (s 5A). As stated above, the defendant has previously been convicted and served sentences of imprisonment for these offences.

17. Sections 5B(b) and (c) are also satisfied. The defendant is a “detained offender”, which is defined include an offender who is in custody under an existing continuing detention order (s 13B(2)(b)). The application for a CDO was made in the nine months before the expiration the CDO to which the defendant is currently subject (13B(3)(b)). The application is also supported by the requisite documentation and the relevant material was served upon the defendant (s 14).

18. The issue that remains for consideration is therefore whether, if the matters alleged in the supporting documentation, if proved, would satisfy the Court to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention under the order. Section 5D provides that the Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.

19. Section 17(2) provides that in determining whether to make a CDO, the safety of the community must be the paramount consideration, which is consistent with the “primary object” of the Act, outlined in s 3(1), being the “safety and protection of the community”. A secondary object of the Act is to encourage offenders who come within the Act to undertake rehabilitation: s 3(2).

The material in support of the application

20. Section 17(4) of the Act provides a non-exhaustive list of matters which the Court must have regard to in determining whether or not to make a CDO, some of which are relevant to the question of whether to make an IDO. The primary report that is relied upon by the plaintiff in respect of the matters that are relevant in s 17(4) is a risk assessment report, dated 22 May 2023, which was prepared by Samuel Ardasinski, who is a senior psychologist with the Serious Offenders Assessment Unit of Corrective Services. As to diagnoses of the defendant’s mental condition in the past and more recently, Mr Ardasinski stated:

“Despite this lengthy history of self-harm and serious harm to others, [the defendant’s] psychiatric diagnosis remained unclear even after all the time she has spent in custody and high-secure psychiatric settings since 2003 and the great number of psychiatric assessments she has undergone. The consensus for many years was that [the defendant’s] problems with self-harm and violence were attributable solely to a personality disorder (variously described as being ‘of a cluster B variety’, ‘borderline’ and also ‘antisocial’ and ‘paranoid’). There had been conjecture in the past about psychotic illness such as schizophrenia, however no firm diagnosis was ever made.

The majority of recent psychiatric opinions, however (with one notable exception), now conclude that there is sufficient evidence of a chronic psychotic illness, not instead of but rather as well as a personality disorder or ‘complex trauma’ … [The defendant] had been trialled previously on a variety of psychotropic medications and since 2019 has been prescribed a high dose of Clozapine, an atypical antipsychotic reserved for treatment-resistant cases of schizophrenia. Interestingly, most of the time [the defendant] presents in her psychology interviews, there are no indications of serious mental illness in her presentation as observed by her treating psychologists.” (emphasis in original; footnotes omitted)

21. The “notable exception” was Dr Richard Furst, forensic psychiatrist, who was a court-appointed expert for the purposes of the defendant’s last CDO hearing. Dr Furst was not persuaded that the defendant had a mental illness but nevertheless concluded that if she did in fact have a mental illness, “such a diagnosis would not change her risk profile significantly, apart from possible elevation of her risk”. Mr Ardasinski agreed that, whether or not one concurs with the defendant’s schizophrenia diagnosis, the risk of her committing further serious violence remains of clinical concern.

22. Mr Ardasinski stated that it was only in recent years that the defendant had engaged in repeated sessions with psychologists to work on longer-term criminogenic (risk-related) issues and started to develop strategies for risk management. He noted that she had done “some work” on EQUIPS programs but had not completed them.

23. As to past risk assessments, Mr Ardasinski referred to various assessment tools that had been applied: The Level of Service Inventory – Revised (LSI-R) in early 2015, the Violence Risk Scale (VRS) in 2020 and again in 2020, the Historical Clinical and Risk Management – 20 (HCR-20) on multiple occasions. All returned assessments of the defendant being in the high risk range. On 17 May 2023, Mr Ardasinski re-scored the defendant using the VRS and arrived at a result that was within the medium risk range, although he qualified that result by noting the score was just under the next category of “high risk”, the scale was developed for male offenders and the focus of the tool is on current risk, which in the defendant’s case is dampened in the protective environment of the forensic hospital and her medication regime. Mr Ardasinski administered the HCR-20 utilising an additional manual that had been developed for assessing the specific violence risk posed by female offenders. The assessment placed the defendant

“… in the high risk category for future violence generally, moderate high-risk category for causing serious physical harm, as well as for self-destructive behaviour, and her overall case prioritisation has been assessed as being high.”

24. I note that a therapeutic leave plan, annexed to an affidavit of Erin Kirkwood affirmed 6 September 2023 that was read on the application, also records the defendant’s considerable progress since she has been a patient in the forensic hospital:

“Since her admission to the Forensic Hospital [the defendant] has pro-actively engaged in psycho-social therapeutic assessments and interventions and continues to present with high [levels] of motivation to succeed and progress through the system. [The defendant] has been able to progress through the Forensic Hospital’s internal grounds access scale in a safe and graded manner without incident. Progression through the internal scale has allowed … staff to observe and assess [the defendant] in a range of environments under differing restrictions with positive and successful outcomes. [The defendant] continues to participate proactively in therapeutic groups and activities both on and off the unit and has shown appropriate ability to follow direction and respond to staff as required to maintain her own, and others safety.”

25. The material in support of the application included a risk management report that was prepared by Jessie Slattery-McDonald, dated 23 June 2023. I have read the report and do not consider that the proposed mechanisms for minimising the risk that the defendant would pose to the community if released pursuant to an ISO would adequately address the protection of the community at this stage, when the defendant has not yet had the opportunity of a gradual, monitored and secure reintroduction into broader society.

Submissions

26. As noted, the defendant accepts that the Court would be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO or an ESO.

27. The plaintiff acknowledges that the defendant has made progress in the Forensic Hospital but notes that her risk assessment remains high and that her progression towards limited day release into the community, let alone a more extended period of community release, is still to occur. Since the day release recommended by the Tribunal at its last review has not yet occurred, the next six-monthly review of the defendant, which is in December, is unlikely to recommend she be released, whether as a correctional patient from the Forensic Hospital or as a civil patient under the Mental Health Act 2007 (NSW), in the event that the Court makes an ISO. Accordingly, an ISO would be suspended.

28. Having regard to all the material but in particular the report of Mr Ardasinski, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO.

Orders

29. I make the following orders:

1. Pursuant to s 18A and 18C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act), the defendant is subject to an interim detention order which will commence on 17 January 2024 for a period of 28 days.

2. Pursuant to s 20(1) of the Act, a warrant is to be issued for the committal of the defendant to a correctional centre for the duration of the interim detention order.

3. Pursuant to s 15(4) of the Act, two qualified psychiatrists are appointed to conduct separate psychiatric examinations of the defendant and to furnish reports to the Court on the results of those examinations.

4. The defendant is directed to attend the examinations referred to in order (3).

5. Access to the Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of this Court and without prior notice to the parties by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

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Decision last updated: 14 November 2023