The Queen v Doolan
[2020] NTSC 64
•1 October 2020
CITATION:The Queen v Doolan [2020] NTSC 64
PARTIES:THE QUEEN
v
DOOLAN, Barry
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:28928770
DELIVERED ON: 1 October 2020
HEARING DATES: 14 May, 16 June, 30 July, 21 August, 15 September 2020
JUDGMENT OF: Barr J
CATCHWORDS:
CRIMINAL LAW – Mental impairment – accused charged with unlawfully causing serious harm – accused fit to stand trial – entered plea of not guilty because of mental impairment – supervision order – nature of supervision order – considerations – accused receiving appropriate treatment for schizophrenia – significant clinical progress – bail granted – non-custodial supervision order made subsequently – hypothetical sentencing exercise – violent conduct directly related to schizophrenia – moral culpability lessened by mental impairment – general and specific deterrence less relevant factors – community protection still relevant – supervision under non-custodial supervision order not relevant to hypothetical sentencing exercise – major review of custodial supervision order after four years
Criminal Code, Part IIA
Criminal Code s 43C, s 43H, s 43I (2)(a), s 43I (3)(a), (c) & (d), s 43I (3A), s 43K(1), s 43ZA(1)(b), s 43ZC, s 43ZG (1), (2), (4) & (4B), s 43ZN
R v Madrill [2013] NTSC 23, 275 FLR 449; R v Kunoth [2014] NTSC 41, referred to
REPRESENTATION:
Counsel:
Crown:G. Dooley, C Ingles
Accused: C. Voumard, D Cooper
CEO Health: E Farquhar
Solicitors:
Crown: Office of the Department of Public Prosecutions
Accused:North Australian Aboriginal Justice Agency, Alice Springs
Judgment category classification: B
Judgment ID Number: Bar2005
Number of pages: 15
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v Doolan [2020] NTSC 64
No. 21928770
BETWEEN:
THE QUEEN
AND:
BARRY DOOLAN
CORAM: BARR J
REASONS FOR DECISION
(Delivered 1 October 2020)
Introduction
On 14 May 2020, the accused (also referred to as “the supervised person”) entered a plea of not guilty because of mental impairment to a single count in the indictment dated 28 October 2019 charging him with unlawfully causing serious harm to a male victim on 31 July 2019.
Dr Jules Begg, specialist psychiatrist, had earlier provided an opinion that the accused was fit to stand trial.[1] The presumption in s 43K(1) Criminal Code was not displaced. Dr Begg had also provided a report in relation to the defence of mental impairment and concluded that, as a result of schizophrenic psychosis, he suffered the persecutory belief that he had been a victim of violence inflicted over a prolonged period of time by the victim. As a result, he would not have been able to reason with a moderate degree of sense and composure about the nature and quality of his actions.[2]
With the consent of both prosecution and defence, I accepted the plea entered by the accused and formally recorded a finding of “not guilty of the offence because of mental impairment” pursuant to s 43H Criminal Code.[3]
The facts in relation to the offence charged were set out in the Crown Facts,[4] which were admitted on behalf of the accused by his counsel:
CROWN FACTS
R v Barry DOOLAN
1. The defendant is 29 year old male who resides at house 10 Abbotts Camp, Alice Springs.
2. The victim, FB, is a 24 year old male. The defendant and victim identify as family in a traditional Aboriginal way.
3. Sometime prior to midday on Wednesday 31 July 2019, the defendant and victim engaged in an argument. ND and DA saw the defendant walking around House 10 Abbotts Camp, Alice Springs holding a knife and making threats of harm towards people in the area, including the victim. ND told the defendant to calm down and throw the knife away. ND then left the location.
4. About midday, the defendant and victim were in the front yard of House 1 Abbotts Camp where they re-engaged in an argument. They were yelling at each other.
5. Witnesses EW and AA were sitting in the yard of House 1 and heard the argument. Witness CW was at the nearby Community Centre and also heard the argument. All got up and began to approach the defendant and victim. CW phoned the police.
6. The victim said to the defendant words to the effect of “I been shake your hand, it's finished.” The defendant said to the victim words to the effect of “No, I'm angry for you.”
7. The defendant was holding a large knife, approximately 20cms long with a rag wrapped around the handle. He was wearing a plastic toy Spiderman mask. The victim was holding a light weight indoor broom with a metal handle.
8. Witness MC was lying on the backseat of a vehicle in the driveway of House 10. When she heard the argument, she looked up and saw the victim holding the broom by his side in his right hand and he had placed his left hand on the defendant's chest. MC became scared, got out of her car and walked out of the yard.
9. The defendant was holding the knife in his right hand and raised it above his head. The victim swung the broom handle at the defendant, striking him twice across his shoulders. This was witnessed by EW and AA.
10. The defendant grabbed the victim by the front of the shirt and swung the knife downward, striking the victim in his right eye, then pulled the knife away. AA witnessed the defendant strike the victim with the knife.
11. The victim immediately fell to the ground bleeding and screaming in pain. The knife blade had entered the victim's right eye causing major bleeding.
12. MC looked back and saw the victim on the ground. CW and DA approached the victim and saw his eye was swollen closed and bleeding.
13. FB and KC intervened, with one of them picking up a child-sized bicycle and using that to knock the defendant to the ground. EW then held the defendant on the ground and asked him what had happened.
14. When the defendant did not answer, EW let him get up. The defendant ran around towards the back of House 10 and hid in a tent on the back veranda of the house.
15. FB took the knife and threw it onto the roof of House 6 Abbotts Camp.
16. Police and Ambulance arrived soon after. Police officers located the defendant hiding in the tent and arrested him at 12:58pm. He was conveyed to the Alice Springs Watch House where he was later charged for this offence.
[17 – 20 deleted]
21. The victim was conveyed to the Alice Springs Hospital by St Johns Ambulance where he received treatment to the stab wound to his right eye. His right eye was irreparably damaged and he has lost sight in that eye permanently. This injury constitutes serious harm.
The finding referred to in [3] triggered the operation of s 43I (2)(a) Criminal Code. After the Crown Facts had been read out in court and formally admitted, I declared the accused liable to supervision under Division 5 of the Criminal Code. I remanded him in custody,[5] and ordered an assessment by a psychiatrist, with a report to be provided to the Court.[6] My principal concern was to obtain advice as to the appropriate supervision regime, whether custodial or non-custodial, and if non-custodial, as to appropriate conditions for a non-custodial supervision order.
Further consideration was adjourned to 19 June 2020. However, there were delays in the assessment of the accused and the provision of a specialist report, and further consideration was adjourned to 30 July 2020, then to 14 August 2020, and subsequently to 21 August 2020. By the last occasion, the Court had received two reports from Dr Joey Q Le, forensic psychiatrist, dated 22 July and 20 August 2020. In the first of those reports, Dr Le described the accused as having a history and presentation consistent with long-standing paranoid schizophrenia, complicated by a history of volatile substance use and misuse of alcohol and cannabis. Dr Le had regard to an earlier psychiatric assessment, carried out in December 2014, and expressed the view that the accused’s cognitive functioning had deteriorated to some extent over the six-year period. Dr Le said it was impossible to know whether the deterioration was attributable to progression of schizophrenia, ongoing substance misuse, or a combination of the two.[7] Dr Le explained that the accused’s schizophrenia is “chronic, long-standing and remains partially symptomatic.” The illness must be seen as permanent. Although further treatment may reduce the impact of his delusional beliefs, they are likely to remain, at least in part, irrespective of treatment. If his insight improves, he may be able to learn not to act on his delusional beliefs in a manner which causes harm to other people.[8]
In relation to appropriate treatment and management, Dr Le recommended that the accused’s access to alcohol, cannabis and volatile substances be restricted as much as possible. He recommended that the accused continue to receive treatment with long-acting injectable antipsychotic medication. He recommended that treatment with a specific recommended antipsychotic be continued indefinitely, provided that it was reasonably well tolerated. If treatment were discontinued, there was a possibility of a substantial relapse in the accused’s schizophrenia, which could well cause him (1) to believe that he was a police officer (a grandiose belief) and (2) to behave in accordance with that delusion and attempt to enforce laws that he believed had been broken.
Section 43ZN of the Criminal Code requires the court to consider whether, if released, a supervised person would be likely to endanger himself or another person because of his mental impairment, condition or disability. Dr Le believes that the primary risk factors associated with the accused’s mental illness are poor adherence to treatment and exacerbation of psychotic symptoms due to substance use. However, if the accused continues to receive treatment with antipsychotic medication at an appropriate dose and if his opportunity to use substances is minimised, there would be a relatively low risk of endangerment to himself or other persons.[9]
By the time the two reports of Dr Le had been provided to the court, counsel for the accused, Ms Cooper, had brought an application for bail. The application was considered by the Court on 14 and 21 August 2020. The accused relied on s 43I (3A) Criminal Code, which states that the court must not make an interim order remanding a person in custody in a custodial correctional facility unless the court is satisfied that there is no practical alternative given the circumstances of the accused person. Logically, that sub-section also requires that such an interim order should not be continued unless the court is satisfied that there is no practical alternative. Counsel for the accused contended that (unlike the situation prevailing on 14 May 2020) there was now a practical alternative and that, pending finalisation of the court’s consideration, bail should be granted to Mr Doolan pursuant to s 43I (3)(a) Criminal Code.
The evidence in support of the bail application is summarized in the following paragraphs.
Dr Bernhard Kuepper, a specialist in general medicine and cardiology, employed by the Northern Territory Department of Health in the Central Australia Health Service, provided a report dated 11 August 2020 in which he referred in particular to the accused’s psychogenic polydipsia which had led to repeated acute admissions to hospital.[10] Dr Kuepper considered that the measures in place at the Alice Springs Correctional Centre (restriction for long periods of time to a cell with no water supply) were inadequate to appropriately deal with that condition without causing undue hardship to the accused.
Ms Stephanie Van Son, engaged by the Mental Health Association of Central Australia (MHACA), is the accused’s NDIS specialist support
co-ordinator. She stated that the NGO organisation CSS (‘Care Support Serve’) would be providing supported independent living with trained disability workers, one-on-one 24 hours a day, to meet the accused’s health care needs. A fully furnished home had been secured, available immediately. Funding would be provided by the NDIS. In addition, Mr Peter Veltman, of the organisation ‘Challenging Minds’, an accredited mental health social worker and specialist behaviour support clinician (funded by the NDIS), would work with Mr Doolan and his care team to facilitate his transition into the community. Funding was also available for allied health professionals (specifically an occupational therapist and speech pathologist) to assess and support Mr Doolan in developing his communication skills.
A document issued by the National Disability Insurance Agency confirmed that an amount in excess of $257,000 had been allocated under the NDIS to support the accused for the period 23 June 2020 to 23 June 2021.
Ms Mandy Coppen, an experienced social worker who is the Case Manager, Mental Health, Northern Territory Government Central Australian Health Service, provided a report dated 22 June 2020. She confirmed that she had worked as Mr Doolan’s case manager from August 2017 through to the time of his incarceration in late July 2019. She stated that she would resume his case management after his release. She expressed the belief that Mr Doolan posed no threat to himself or members of the community on release because of the measures intended to be put in place. Notwithstanding that the accused’s brother and his brother’s family live at Abbott’s Camp, Alice Springs, Mr Doolan has been told that he could not return to live there because he is very vulnerable in the Camp environment. Ms Coppen nonetheless intends to ensure that the accused’s connection to his family is maintained. Ms Coppen says that the accused is an ideal candidate for rehabilitation because he has learned to live in a gaol environment with many restrictions.
Counsel for the accused also tendered an affidavit affirmed by Taiwo Abraham, an experienced mental health nurse who holds the position of Manager of the Forensic Mental Health Service in Alice Springs. The affidavit set out details of the accused’s background, his living arrangements prior to his most recent period of imprisonment, and his living/care arrangements in the Alice Springs Correctional Centre. Significantly, the accused had not engaged in behaviours of concern while in the controlled prison environment. He had been placed in the ‘at risk’ cell on two occasions because of stress related to isolation. He had been co-operative and compliant with prescribed antipsychotic medication. If granted bail, the accused would be case-managed by Community Mental Health Services for review and medication and his psychogenic polydipsia would be treated by Central Australian Aboriginal Congress, a medical service. Although Ms Abraham appropriately acknowledged the risk factors, she referred to the significant level of support to be provided by the NDIS ‘package’. It was her professional opinion that the accused was unlikely to pose a risk to the community and unlikely to endanger himself or any other person if granted bail.
The supplementary report of Dr Joey Q Le noted that the accused had an overall ‘medium’ risk of future violence when assessed in accordance with HCR-20 V3, a structured professional judgment tool used by psychiatrists and psychologists to assess an individual’s risk of future violence. Dr Le considered that it was relevant that the index offending occurred in the context of either untreated or inadequately treated schizophrenia. Based on reports of a number of persons involved in the accused’s care, that circumstance no longer applied. The accused had been compliant with all prescribed pharmacological treatment. Dr Le confirmed that the very high level of community supports, referred to above, were likely to substantially mitigate the accused’s risk of future violence arising from delusional beliefs. Moreover, provided that the supported accommodation and access to support workers 24 hours a day remained on foot, there was no reason to expect that the accused would discontinue treatment. For an additional security measure, Dr Le considered that the court should impose a condition that the accused that must be accompanied by a support worker whenever he left his residence.
I accepted the opinions and recommendations of Dr Le, supported by the other evidence referred to in paragraphs [11] to [15]. Accordingly, on 21 August, I granted bail to the accused on the following conditions.
That Mr Doolan:-
a) Reside as directed by CEO Department of Health (“the CEO”) and the treating team;
b) Comply with all rules and conditions of the residence and do nothing to be evicted;
c) Comply with all reasonable directions of the CEO, treating team and the NDIS service providers;
d) Only leave the residence as approved by the CEO, treating team or NDIS service providers and while accompanied by a member of the treating team or NDIS service provider;
e) Co-operate in all treatment advised and services provided by the CEO, treating team and NDIS service providers, and attend all scheduled appointments;
f) Continue taking and receiving all medication as prescribed or varied by the CEO;
g) Abstain from any use of alcohol, illicit drugs, or volatile substances, and from any threatening or violent behaviour; and
h) Cooperate fully in any testing for alcohol or illicit drugs, including by provision of breath and bodily samples requested by staff of the CEO Correctional Services;
i) Not contact or attempt to contact FB.
Further consideration was then adjourned to 15 September 2020 to enable all parties to consider the medical evidence and the draft orders proposed for non-custodial supervision of the accused.
Under s 43ZC Criminal Code, a supervision order is for an indefinite term. However, s 43ZC is subject to s 43ZG, subsection (1) of which requires that, when the Court makes a supervision order, it must fix a term “in accordance with subsection (2), (3) or (4) which is appropriate for the offence concerned”.
Subsection (2) of s 43ZG requires that the term fixed under subsection (1) be “equivalent to the period of imprisonment or supervision (or aggregate period of imprisonment and supervision) that would in the Court’s opinion have been the appropriate sentence to impose on the supervised person if he or she had been found guilty of the offence charged”.
The offence charged carried a maximum period of imprisonment of 14 years. Although the accused did not commit an offence, his conduct in striking the victim to his right eye with a knife was a very serious example of an offence committed contrary s 181 Criminal Code. The victim suffered excruciating pain and, notwithstanding very prompt treatment, the permanent loss of sight in the affected eye. The obvious consequence has been the reduction in his field of vision. Ms Ingles informed the court that the victim is without an eyeball. He weeps constantly from the eye socket, which requires constant wiping. He will have to take medication daily for the foreseeable future, if not for the rest of his life. In his victim impact statement, the victim says that he becomes very sad when he looks at himself in the mirror. He is also concerned about the prospect of total blindness if anything were to happen to his other eye.
The hypothetical sentencing exercise under s 43ZG (2) requires the Court to assume that the supervised person has been found guilty of the offence charged, and thus by necessary implication that mental impairment was not such as to affect the making of that assumed finding by providing a defence under s 43C (1) Criminal Code. Nonetheless, s 43ZG does not otherwise exclude the application of ordinary sentencing principles, and thus the symptoms of the supervised person’s schizophrenia (his persecutory delusion) may still be taken into account to reduce his moral culpability. For that reason, the hypothetical sentencing exercise required by s 43ZG Criminal Code is not an appropriate vehicle for denunciation, or general or specific deterrence. Those sentencing objectives should be moderated. However, protection of the community still remains a significant sentencing objective. While it is true that community protection will be achieved by ongoing supervision under the conditions of a non-custodial supervision order, the required hypothetical sentencing exercise is based on the supervised person having been found guilty of the offence charged, in which case there may have been supervision (whether under the terms of a suspended sentence or as a condition of parole) but not the enhanced supervision provided under the terms of a non-custodial supervision order.
Ms Cooper submits that the supervised person was, at the time of offending, a 29-year-old man with no criminal history, who suffered from chronic long-standing schizophrenia. He was significantly affected by his delusional beliefs: the persecutory belief that he had been the victim of violent assaults over a lengthy period of time and grandiose belief that he was a policeman. Ms Cooper also submits that her client’s period on remand was significantly more onerous than that experienced by other prisoners because of the difficulties associated with the management of his psychogenic polydipsia in prison, referred to by me in [11].
Pursuant to s 43ZG(1) read with s 43ZG(4) Criminal Code, I was of the opinion that a term of imprisonment of four years would have been the appropriate sentence to have imposed on the supervised person if he had been found guilty of the offence charged.
Accordingly, I today fixed a term of four years for the purposes of the supervision order. The term so fixed was backdated to reflect time spent in custody, and was deemed to have commenced on 10 September 2019, pursuant to s 43ZG (4B) Criminal Code.
Based on my acceptance of the same evidence relied on to grant bail to the accused, I determined that I should make a non-custodial supervision order pursuant to which the supervised person would be released into the community under appropriate conditions. The final orders are as follows:
1. Declaration that Barry Doolan (“the supervised person”) is liable to supervision under Division 5, pursuant to s 43I (2)(a) Criminal Code.
2. The supervised person is subject to a non-custodial supervision order pursuant to s 43ZA (1)(b) Criminal Code.
3. A term of four years is fixed pursuant to s 43ZG (1) read with s 43ZG (2) Criminal Code.
4. The term of four years is deemed to have commenced on 10 September 2019 pursuant to s 43ZG (4)(b) Criminal Code.
5. The appropriate person is to file and serve a report for the purposes of a major review pursuant to s 43ZG (5) by close of business Monday 17 April 2023, and the matter is listed for major review on Thursday 27 April 2023 at 9.00 am.
6. While subject to the non-custodial supervision order, the supervised person is to remain under the care and treatment of the Chief Executive Officer, Department of Health (the CEO), and the National Disability Insurance Scheme service providers.
7. The supervised person shall:
a.Reside as directed by the CEO and his treating team;
b.Comply with all rules and conditions of the residence and do nothing to cause him to be evicted;
c.Comply with all reasonable directions of the CEO, his treating team and his NDIS service providers;
d.Only leave the residence as approved by the CEO, treating team or NDIS service providers and while accompanied by a member of the treating team or an NDIS service provider;
e.Co-operate in all treatment advised and services provided by the CEO, treating team and NDIS service providers, and attend all scheduled appointments;
f.Continue taking and receiving all medication as prescribed or varied by the CEO;
g.Abstain from any use of alcohol, illicit drugs or volatile substances, and from any threatening or violent behaviour;
h.Co-operate fully in any testing for alcohol, illicit drugs or volatile substances, including by provision of breath and bodily samples requested by staff of the CEO Correctional Services; and
i.Not contact or attempt to contact FB.
8. If the supervised person breaches any condition of this order, a member of the Northern Territory Police is authorised to take him into custody and convey him to the Alice Springs Correctional Centre. If that occurs, the General Manager of the Correctional Centre is authorised to receive the supervised person and hold him in safe custody to be brought before this Court as soon as practicable.
9. The appropriate person is to file and serve a periodic review report pursuant to s 43ZK by close of business on Thursday 16 September 2021.
10. The matter is listed for periodic review on Thursday 30 September 2021 at 9.00 am.
11. The parties have liberty to apply.
--------------------------------
[1] Report dated 12 September 2019, page 6.9.
[2]Report dated 12 September 2019, page 6.4, with reference to the criteria for the defence of mental impairment in s 43C (1) (a) and (b) Criminal Code.
[3]See R v Madrill [2013] NTSC 23; 275 FLR 449 at [25].
[4]Exhibit P-1. The Crown Facts have been edited, inter alia, to anonymize the names of the victim and witnesses.
[5]Criminal Code, s 43I (3)(b).
[6] Criminal Code, s 43I (3)(c) & (d); s 43 ZJ.
[7]Report Dr Joey Q Le, 22 July 2020, page 10, 280-290.
[8]Ibid, page 13, 390-400.
[9]Report Dr Joey Q Le, 22 July 2020, page 13, 375-380.
[10]Polydipsia characterised by excessive fluid intake in the absence of physiological stimuli to drink.
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