The Queen v KMD (No 3)
[2017] NTSC 95
•26 July 2017
CITATION:The Queen v KMD & Ors (No 3) [2017] NTSC 95
PARTIES:THE QUEEN
v
KMD
and
CHIEF EXECUTIVE OFFICER DEPARTMENT OF HEALTH
and
CHIEF EXECUTIVE OFFICER DEPARTMENT OF CORRECTIONAL SERVICES
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:21319440
DELIVERED: 26 July 2017
HEARING DATES: 21 and 22 February, 8 March, 19 April, 13 June and 11 July 2017
FURTHER WRITTEN
SUBMISSIONS: 24 and 25 July 2017
JUDGMENT OF: Hiley J
CATCHWORDS:
CRIMINAL LAW - mental impairment – Part IIA of the Criminal Code (NT) - periodic review of custodial supervision order under s 43ZH(2) of the Criminal Code (NT) - application by supervised person for release on a non-custodial supervision order - Court satisfied that the safety of the supervised person or the public will be seriously at risk if the person is released on a non-custodial supervision order - custodial supervision order confirmed.
CRIMINAL LAW - mental impairment – Part IIA of the Criminal Code (NT) - periodic review of custodial supervision order under s 43ZH(2) of the Criminal Code (NT) - application by supervised person under s 43ZH(2)(b)(ii) of the Criminal Code (NT) for variation of conditions of custodial supervision order to allow her to reside outside a custodial correctional facility - no alternative suitable accommodation available - application refused.
CRIMINAL LAW - mental impairment – Part IIA of the Criminal Code (NT) - periodic review of custodial supervision order under s 43ZH(2) of the Criminal Code (NT) - application by CEO of Department of Health to add a condition requiring the supervised person to accept treatment offered and medication prescribed - no utility in adding such a condition - application refused.
Attorney General v David [1992] 2 V.R. 46; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Nigro v Department of Justice [2013] VSCA 213; (2013) 234 A Crim R 1; The Queen v KMD [2015] NTSC 31; The Queen v KMD (No 2) [2017] NTSC 18, referred to.
Richards v The Queen [2007] VSCA 174, distinguished.
Criminal Code (NT) s 43ZA(2), s 43ZA(3), s 43ZH (2), s 43ZJ, s 43ZK, s 43ZM, s 43ZL, s 43ZN(1), s 43ZN(2); Mental Health and Related Services Act1998 s 14
REPRESENTATION:
Counsel:
Crown:P Usher
Supervised Person: D Grace QC with G McMaster
CEO Department of Health: G Macdonald
CEO Department of
Correctional Services: G Macdonald
Solicitors:
Crown:Office of the Director of Public Prosecutions
Supervised Person: Ward Keller
CEO Department of Health: Solicitor for the Northern Territory
CEO Department of
Correctional Services: Solicitor for the Northern Territory
Judgment category classification: C
Judgment ID Number: Hil1716
Number of pages: 47
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe Queen v KMD & Ors (No 3) [2017] NTSC 95
No. 21319440
BETWEEN:
THE QUEEN
Crown
AND:
KMD
Supervised Person
AND:
CHIEF EXECUTIVE OFFICER DEPARTMENT OF HEALTH
AND:
CHIEF EXECUTIVE OFFICER DEPARTMENT OF CORRECTIONAL SERVICES
CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered Ex tempore 26 July 2017)
Relevant background
This is a continuation of an annual review under s 43ZH of the Criminal Code (NT) that commenced on 12 May 2016.
KMD has sought an order under s 43ZH(2)(a) that she be released on a non-custodial supervision order (NCSO). Alternatively she sought an order under s 43ZH(2)(b)(ii), varying the conditions of the CSO to allow her to reside outside the Holtze Correctional Facility.[1] The Chief Executive Officers of the Department of Health and the Department of the Attorney-General and Justice (the CEOs) and the Director of Public Prosecutions (DPP) contend that the Court should confirm the CSO, in accordance with s 43ZH(2)(b)(i).
Prior to the commencement of this review, and subsequent to the hearing on 15 December 2015 when KMD’s CSO was varied to permit day release to the Cottages, two reports were received from forensic psychiatrist Dr Miach, one dated 11 March 2016 (Ex SO29) the other 13 April 2016 (Ex SO30), and one report from forensic psychiatrist Dr Walton, dated 11 May 2016 (Ex SO31).
The matter was adjourned for two main reasons:
(a)to await the outcome of an application to the Mental Health Review Tribunal (MHRT) for orders compelling KMD to undergo treatment for her condition; and
(b)to enable KMD’s lawyers to seek a further report from Dr Walton that expressly dealt with the question of risk, and responsive reports from Dr Miach and or Dr Parker.
On 18 July 2016 the Mental Health Review Tribunal declined to make orders compelling KMD to undergo treatment. Although the Tribunal concluded that KMD has a mental illness and that as result of the mental illness she requires treatment that is available at an approved treatment facility, the majority was not satisfied that without the treatment she was likely to cause serious harm to herself or someone else or suffer serious mental or physical deterioration.[2] Their reason for this was that she was being held in custody at the Holtze Correctional Facility, “a highly constrained and closely supervised custodial environment.”[3]
Dr Walton provided a further report on 30 August 2016 (Ex SO32) and Dr Parker provided a further report on 6 January 2017 (Ex SO33). Dr Walton and Dr Parker were examined and cross-examined on 21 February 2017 and psychologist Mr Re Acacio the following day, 22 February.
Mr Re Acacio has spent a lot of time with KMD, more than 50 sessions since December 2015. These included about 26 sessions between December 2015 and April 2016 involving cognitive behaviour therapy (CBT). At the time of the hearing on 21-22 February 2017, he was the only one of the many people who have been involved in KMD’s care who she trusted, and appeared to get on with. Unfortunately KMD ceased to engage with Mr Re Acacio soon after he gave his evidence at that hearing.
It was agreed during that hearing that the Court would be assisted by a detailed risk assessment of KMD, to be conducted with the assistance of Mr Re Acacio.
In light of the refusal of the Mental Health Review Tribunal to make orders compelling KMD to undergo treatment for her condition the Court was requested to determine whether the Court had the power to make such orders. On 8 March 2017 the Court decided that it did not have such power[4] and made directions for the provision of written submissions to be provided shortly thereafter.
On 5 April 2017 forensic psychiatrist Dr Das provided a further report (Ex SO37). It attached a detailed risk assessment using the Historical Clinical Risk Management Guide (the HCR-20 risk assessment) and an Individual Care Plan (ICP). Dr Das replaced Dr Miach as KMD’s treating psychiatrist with the Forensic Team of Top End Mental Health Service (FMHT) from December 2016. The HCR-20 risk assessment was signed by Dr Das, Mr Re Acacio and Ms De Garr, a Registered Mental Health Nurse and KMD’s FMHT case manager. It assessed the risk of KMD causing violence to one or more other people, inter alia, if she was released on a NCSO. The ICP was prepared by FMHT and signed by Ms De Garr, but not by KMD.
Written submissions were provided on behalf of KMD on 7 June 2017, a further report by Dr Walton on 9 June (Ex SO38) and the hearing resumed on 13 June. The hearing was further adjourned to 11 July due to the illness of KMD. Further written submissions were provided on behalf of KMD on 10 July and on behalf of the CEOs on 11 July. Further oral submissions were made on 11 July.
Main legislative provisions
Section 43ZH(2) provides as follows:
(2) On completing the review of a custodial supervision order, the court must:
(a)vary the supervision order to a non-custodial supervision order unless satisfied on the evidence available that the safety of the supervised person or the public will be seriously at risk if the person is released on a non-custodial supervision order; or
(b)if the court is satisfied on the evidence available that the safety of the supervised person or the public will be seriously at risk if the person is released on a non-custodial supervision order:
(i)confirm the order; or
(ii)vary the conditions of the order, including the place of custody where the supervised person is detained.
Other provisions of particular relevance are ss 43ZM and 43ZN. Those provisions apply whenever the Court is determining whether to make an order under Part IIA, which, of course, will include an order of the kind that is contemplated in s 43ZH.
Section 43ZM has a heading, ‘Principle court to apply when making order’. It reads as follows:
In determining whether to make an order under this Part, the court must apply the principle that restrictions on a supervised person's freedom and personal autonomy are to be kept to the minimum that is consistent with maintaining and protecting the safety of the community.
It can be seen from that section that the principle has two parts:
(a)keeping the restrictions on a supervised person’s “freedom and personal autonomy” to “a minimum”; and
(b)ensuring that the orders are “consistent with maintaining and protecting the safety of the community”.
KMD’s barristers, Mr Grace QC and Ms McMaster, rightly emphasise the importance of this provision. Other provisions in Part IIA need to be applied with this important provision in mind. This applies to s 43ZH(2) and may be of some assistance in construing relevant parts of it, in particular the requirement that the Court be “satisfied on the evidence available that the safety of the supervised person or the public will be seriously at risk if the person is released on a non-custodial supervision order”.
Similarly s 43ZN provides further instruction as to how other provisions such as those in s 43ZH(2) must be applied. Section 43ZN(1) provides that:
(1) In determining whether to make an order under this Part, the court must have regard to the following matters:
(a)whether the accused person or supervised person concerned is likely to, or would if released be likely to, endanger himself or herself or another person because of his or her mental impairment, condition or disability;
(b)the need to protect people from danger;
(c)the nature of the mental impairment, condition or disability;
(d)the relationship between the mental impairment, condition or disability and the offending conduct;
(e)whether there are adequate resources available for the treatment and support of the supervised person in the community;
(f)whether the accused person or supervised person is complying or is likely to comply with the conditions of the supervision order;
(g)any other matters the court considers relevant.
Section 43ZN(2) prohibits the Court making an order releasing a supervised person from custody, whether conditionally or otherwise, or significantly reducing the supervision to which the supervised person is subject, unless it:
(i) has obtained and considered at least two reports from a psychiatrist or other expert;
(ii) has considered reports submitted under ss 43ZJ & 43ZK. Those will include, inter-alia, a diagnosis and prognosis of the person’s mental condition, details of treatment, therapy, counselling and other services that the supervised person has provided with, details of any changes to the prognosis, and details of any changes to the plan for managing the mental condition;
(iii) has considered reports prepared by the victim or next of kin of the victim under s 43ZL; and
(iv) is satisfied that the victim and the next of kin of the supervised person were given reasonable notice of the proceedings (s 43ZN(2)(b).
Two reports under s 43ZL have been received from each of two of KMD’s victims, RL Snr (her ex-partner and father of RL Jnr) and RL Snr’s mother ROL; firstly on 17 November 2015, secondly on 20 February 2017.
Overview of submissions
The primary contention on behalf of KMD was that the Custodial Supervision Order should be varied to a Non-custodial Supervision Order. This is the prima facie position under s 43ZH(2)(a) and is consistent with other objectives within Part IIA in particular, s 43ZN. Such an order must be made “unless [the Court] is satisfied on the evidence available that the safety of [KMD] or the public will be seriously at risk if [she] is released on a NCSO.” Counsel for KMD submits that the Court cannot be so satisfied.
Alternatively, counsel submitted that if the Court is so satisfied, the conditions should be varied so that she is detained somewhere other than at a custodial correction facility, relevantly the Holtze Correctional Facility – s 43ZH(2)(b)(ii).
Counsel for the CEOs and for the DPP opposed the orders sought by KMD and contended that the Court should be “satisfied on the evidence available that the safety of KMD or the public will be seriously at risk if KMD is released on a Non-custodial Supervision Order.” Counsel for the CEOs also sought the addition of a condition requiring KMD to accept treatment offered and medication prescribed by the Top End Health Service on behalf of the CEO of Health.
Relevant history
An appropriate starting point is the Reasons for Decision of Riley CJ on 3 June 2015, when he made the Custodial Supervision Order.[5] Prior to making that decision, his Honour had been provided with a substantial body of evidence, and in particular, evidence from a number of psychiatrists and other mental health practitioners who had been involved in KMD’s care and also reports from forensic psychiatrist Dr Walton.
At [37] to [40] his Honour referred to the relevant legislation, pointing out that the legislation required that the Court should not make a Custodial Supervision Order committing KMD to custody in prison unless it was satisfied that there were no practical alternatives, given her circumstances. His Honour pointed out that there is a strong legislative presumption in favour of the liberty of the subject.
His Honour set out the provisions of s 43ZN(1) and said, at [39]:
In my opinion determination of these matters involves a balancing of competing considerations. The likelihood of the person being a danger to herself or another person and the need to protect others must be balanced against the desire to ensure the liberty of the individual. The consequences for the individual who, it must be remembered, has been found not guilty of criminal activity by virtue of mental impairment, may be quite serious including ongoing detention or living under onerous supervision. The risk assessment must reflect both the likelihood of conduct of concern occurring and the magnitude of the harm that may result from any such conduct.
I note that these considerations are consistent with those identified in a number of Victorian decisions to which this Court was referred. His Honour continued, at [39]:
The legislation calls for an assessment of the degree of likelihood of the occurrence of the risk along with the nature of the risk and its consequences. Some level of risk will, almost always, be present. The extent of the risk must be weighed in the balance in determining the nature of the supervision order to be imposed.[6]
His Honour also pointed out, at [40]:
Given the nature of these proceedings, which have the potential to impact in a significant way upon the liberty of a subject, it seems to me that the level of satisfaction required to be reached should be guided by the principle in Briginshaw.[7]
His Honour then referred to the psychiatric evidence, and said, at [44]:
There is a consensus of psychiatric opinion that, at a minimum, KMD is suffering from a delusional disorder and that is the principle working diagnosis. Dr Kini, with whom Dr Ventura agreed, expressed the opinion that schizophrenia is a differential diagnosis. Dr Walton observed that a diagnosis of delusional disorder inevitably raises a differential diagnosis of paranoid schizophrenia. However he was of the opinion that there is insufficient evidence of schizophrenia and his opinion is that the preferred diagnosis is delusional disorder.
His Honour then talked a little bit about the likely onset of KMD’s condition. At [45], he said:
There was agreement between the psychiatrists that KMD’s mental health had deteriorated in the time leading up to the incidents of 7 May 2013. However there was disagreement as to her condition following that date. Dr Kini and Dr Ventura expressed the view that her mental health must have continued to deteriorate in the absence of treatment. The onset of delusion commenced some-time after the birth of her first child and continued through to 7 May 2013.
I should have indicated that the child, RL Jnr, was born in 2006. They, that is Drs Kini and Ventura, were of the opinion that in the absence of further treatment, her condition was likely to have suffered further serious deterioration since then.
Riley CJ proceeded to refer to evidence of Drs Kini and Ventura which was to the effect that KMD may be regarded as likely to cause serious harm to others. His Honour obviously relied upon that evidence, along with their evidence that some treatment, whether voluntary or involuntary, was required. His Honour noted that KMD had been in custody by then for two years without any further incident and that that might suggest that the fears may not be as real or immediate as first thought. At [46] he said:
However, Dr Kini pointed out that there had been a period of some years before the incident of 7 May 2013 during which KMD suffered a delusional condition without evidence of violence and then the act of significant violence occurred.
His Honour proceeded to reach conclusions concerning the risk posed by KMD. His Honour observed that there was a direct conflict between the psychiatrists on that issue, that is, the question of risk posed by KMD. His Honour said, at [51]:
Dr Walton thought the risk of further violence from KMD is low. He had consulted with her on numerous occasions from 2013 until the present. … He noted there had been no reports of violence, threats of violence or other untoward behaviour on the part of KMD during the time she has been in custody. He did not think that her mental state had deteriorated during her time in custody, and he was unaware of any basis for a suggestion that deterioration had occurred.
Riley CJ referred to Dr Walton’s opinion that the very severe act of violence which occurred on 7 May 2013 arose out of a particular set of circumstances, where she was convinced her child was being harmed. His Honour observed that Dr Walton also noted that KMD had suffered from delusions for some years before that time and had not committed any act of violence. He also referred to Dr Walton’s comment that she believed that her son was being sexually abused. So, Dr Walton had expressed the view that the risk of her causing harm to other people was low and [Dr Walton] was ‘cautiously optimistic’ that she could be safely released into the community.
Riley CJ said that Drs Kini and Ventura had a quite different view of the level of risk posed by KMD to those victims and to others in the wider community. They expressed the view that because she had not been treated, her illness would have seriously deteriorated over time and that she is likely to cause serious harm to others. They described the risk as a high level of risk. The rationale for that opinion was expressed in a joint report of theirs as arising from her deluded beliefs which were initially confined to her former partner; that is RL Snr and then expanded to include two other friends of RL Snr. They observed that her “beliefs became more systematised such that she believed there was a paedophile ring”, which involved judges, senior police, Freemasons, RL Snr’s mother and others. Both psychiatrists were of the view that clinical notes revealed that she “is incorporating more people in her paranoid beliefs while in custody.” At [56] his Honour, again referring to those psychiatrists, said that their view was that: “The deterioration in her mental health contributed to her actions on 7 May 2013.”
His Honour went on to say that the question of risk is very difficult to assess. And all the more so in her case, because of a number of refusals on her part to cooperate with those who were attempting to assess her and the possible levels of risk.
At [58] his Honour said: “The fact that KMD had informed Dr Walton that she was satisfied that the child is not being further abused, if it reflected her true beliefs, was a matter to be considered in assessing her level of risk, but would need to be considered along with other factors”. He said: “Dr Kini said that such a comment, if it be true, is a sign of reduction of risk and of progress but would need to be the subject of further assessment which he had not been able to undertake because of his strained relationship with her.”
Similarly at [59] his Honour pointed out that Dr Ventura had said during cross-examination that “no conclusion could be drawn until the claimed beliefs of KMD had been tested.” Dr Ventura, amongst other things, said that she was sceptical of KMD's statement that she now believes her child was not being further abused. Dr Ventura was “sceptical of that statement in isolation without knowing what she believes about the multitude of the other delusional beliefs that she held.”
In [60] and [61], his Honour expressed those conclusions. He said:
[60] In my opinion KMD does, presently, present a danger to other people who might already be or may become caught up in her deluded beliefs regarding the well-being of her son. I accord significant weight to the opinion of Dr Walton and have given his opinion that the risk is low anxious consideration. However, it seems to me that the risk that KMD poses to others is of a higher order. There is no dispute that she has experienced delusional beliefs since some time after the birth of her son. Those beliefs intensified over time and expanded to encompass a wider group of people than at the start. On 7 May 2013 the intensity of the beliefs led to the extremely violent events that I have described. Since that date KMD has been in custody and under constant supervision. She has not been subjected to any meaningful treatment. The only indications that there has been an improvement in her mental state are that there have been no further incidents of violence or threatened violence and her statement that she does not consider her son to be under present threat of sexual abuse. As to the former, I note that she has been within the prison system and under constant supervision. Possible triggers for intensifying her beliefs are not present in that environment. As to the latter, there has been no investigation of whether the claim is genuine and, if so, whether it signifies that she would not seek to visit violence upon the immediate victims of her actions on 7 May 2013 or others who were the subject of her deluded beliefs. As presently informed it seems to me that much will depend upon the environment in which she finds herself. The psychiatrists agree that she continues to suffer under the same deluded beliefs as existed at 7 May 2013.
[61] In my opinion an order for custodial supervision must be made because, if KMD is not in custody, she is likely to be a danger to those people whom she incorrectly believes were a danger to her son and may still be a danger to her son. The level of risk of similar conduct is difficult to assess but the consequences of such conduct are extreme. She has demonstrated the lengths to which she will go because of her deluded beliefs. I am not satisfied that the danger has abated.
Although the Court did not have to be satisfied that the safety of KMD or the public will be seriously at risk if KMD is released on a NCSO, it had to have regard to the matters in s 43ZN. It also had to be satisfied that there was “no practical alternative given [KMD’s] circumstances” to her being committed to custody in a custodial correctional facility – s 43ZA(2).
Shortly before delivering his reasons for making the orders His Honour expressed strong concerns about the lack of suitable accommodation outside the Darwin prison for KMD and the risk of her being kept in a custodial correctional facility indefinitely unless alternative accommodation could be found for her. His Honour was clearly conscious of the importance of provisions such as s 43ZM and the risk to the safety of KMD and the public.
Counsel for KMD urged His Honour to make a NSCO.[8] Counsel relied heavily on a report by Dr Walton. After careful consideration, particularly of the reports of Dr Walton on the one hand, and the reports of Drs Kini and Ventura on the other, his Honour rejected counsel’s request and ordered the CSO, although that involved KMD being placed in the Holtze Correctional Facility. His Honour rejected a proposal for the accommodation of KMD at a residence in Batchelor.[9] By ordering a CSO His Honour must have considered that the risks to the safety of KMD and the public were so serious as to warrant a CSO, despite the severe infringement on KMD’s liberty necessitated by her living in a custodial correctional facility, rather than ordering an NSCO albeit on strict conditions.
The CSO was varied on 15 December 2015 to enable KMD to attend the Cottages during the day. It had been recommended that she be given that opportunity to get out of the prison environment at least during the day, so she could engage in some of the activities available at the Cottages. The Cottages are attached to the Holtze Correctional Facility and administered by the Department of Health rather than the Department of Correctional Services. This was also the time when Mr Re Acacio began providing her with Cognitive Behaviour Therapy. However, after attending the Cottages for several months, KMD decided not to continue doing that.
The evidence
Diagnosis
I turn now to the evidence that has been presented before this Court on this review application. As I have already said, all of the medical practitioners agree that KMD is suffering from a delusional disorder. The only person who does not agree with that is KMD. It is agreed by all of the medical experts that her delusional disorder was a major factor behind her conduct in May 2013. As I said, it seems that the onset of the delusion commenced sometime after the birth of her first child in 2006. The current diagnosis is much the same as that which was recorded by the Chief Justice in the reasons discussed above.
Dr Walton continues to maintain his reservations as to whether or not KMD has schizophrenia. The other mental health practitioners and professionals who have been involved, including Drs Miach, Parker, Corbu, Kini, Ventura and Das, are all of the opinion that she has a differential diagnosis of schizophrenia. All agree, including Dr Walton, that she has a psychotic illness.
Dr Das, in his recent report, also used the term “delusional disorder with paranoid features”. He says that she has that disorder. It is a disorder of a continuous nature and involves persecutory types of delusions, but it comes under the rubric of schizophrenia spectrum illness.
Treatment
All of the doctors, including Dr Walton, have recommended that she take antipsychotic medication. The view of all of the doctors, with the possible exception of Dr Walton, is that if she were to be subject of an appropriate course of antipsychotic medication, it would be beneficial to her.
The evidence suggests that whilst such medication and treatment is likely to benefit people with schizophrenia, the likely benefits are not so obvious in relation to people with delusional disorders who do not have schizophrenia. That explains why Dr Walton is not so confident of its likely benefit to KMD if it were to be administered to her. Having said that, Dr Walton has always been of the view and has repeated the view that it is worth trying. If it is tried and is unsuccessful, at least it can be ruled out as a form of medication that would potentially assist her.
KMD refuses to undergo such treatment for several reasons. Firstly, and probably fundamentally, she believes that she does not have a relevant mental illness. Secondly, she experienced side effects from a single occasion when antipsychotic medication was administered to her in 2014. Thirdly, she has expressed a belief that modern medication is evil.[10]
Other forms of treatment
KMD has also been provided with cognitive behaviour treatment. As I have mentioned, Mr Re Acacio assisted with about 26 sessions between 22 December 2015 and 13 April 2016. In his report of April 2016 Mr Re Acacio said that she showed insight into her heightened anxiety prior to the offence of 7 May 2013 and that she conceded that she should have sought medical help prior to then. He said in his report of April 2016 that she would continue to benefit from cognitive behaviour treatment in her relationships.
However, when this matter came back for review before the Chief Justice on 16 March 2016 his Honour expressed the view that the cognitive behaviour treatment had not resulted in any noticeable shift in her paranoid delusional beliefs.[11] In his more recent report of this year Dr Das has said that the cognitive behaviour treatment was ineffective in addressing her core delusional beliefs.[12]
Mr Re Acacio gave evidence before this Court on 22 February. When he gave that evidence he said that KMD had decided that cognitive behaviour treatment would not be suitable for her because she would never lose the belief that her son had been sexually abused. The therapy had ended in about April 2016, which was at about the same that Mr Re Acacio wrote his earlier report and expressed the opinions that I have noted. He said in his evidence that in about April 2016 his brief was then changed to what is called ‘supportive counselling, which was by and large directed at helping KMD cope with prison life. He also said that KMD had told him that she was not willing to engage with anybody except him.
Reduction and cessation of engagement
That leads me to discuss KMD's reduction and cessation of engagement. I have already mentioned the single attempt at antipsychotic medicine in September 2014. I have also mentioned the strained relationship with Dr Kini and hence him expressing some difficulty with being able to assess whether or not she really believed that her child was not being further abused.
There was further disengagement after Dr Miach wrote a report on 13 April 2016. I refer to Dr Das' report of 5 April this year, where he says, at [5.2]:
There has been further disengagement of Ms KMD with psychiatric professionals. Except for transient interactions with Drs Ellis, Smith, Ventura, Parker and Miach, she has never engaged with her key psychiatric professionals which included her consultant psychiatrist and case manager - the forensic mental health nurse. Ms KMD has, however, maintained a therapeutic relationship with the Forensic Team psychologist, Mr Re Acacio, who provided a full court of CBT to her up until April 2016, and continues to provide general counselling.
As I mentioned, she apparently had a good relationship with Mr Re Acacio until shortly after the hearings in February of this year. Dr Das took over from Dr Miach as the psychiatrist responsible for KMD's care in December last year. He said that he had made three attempts to meet with KMD at the Correctional Centre along with her case manager and that she refused to meet with him on all three occasions, namely on 8 December 2016, 9 March 2017 and 20 March 2017.
Subsequently, attempts have been made to engage her with a new case worker, Ms Hannah Moren, accompanied by an Aboriginal health worker, Ms Bridges. It appears that those attempts to engage have also been unsuccessful. KMD has also, at one stage, expressed a level of distrust even towards Dr Walton and her legal advisers. So much appears in Dr Walton's report of 30 August 2016.
Her level of engagement is summarised in the HCR-20 report at pages 12-13:
Other than cooperation with Dr Miach for a short period, and A/Prof Parker for the purpose of the 2015 assessment, and then with psychologist Re Acacio for Cognitive Behaviour Therapy and, more recently, supportive counselling, KMD has consistently demonstrated noncompliance with treatment including medication as well as assessment or engagement with her case manager, consultant forensic psychiatrist or treating team.
…
Ms KMD's engagement with mental health professionals has progressively declined over the last 18 months other than the period of Cognitive Behaviour Therapy with Psychologist Mr Re Acacio. In early 2016, there was some evidence of her talking and engaging with members of the forensic mental health team. However, this has declined and the current presentation is that she steadfastly refuses to see her case manager and consultant psychiatrist.
KMD’s current position
KMD does not accept that she has a mental illness or that she was suffering from mental illness at the time of her offending conduct in May 2013. That emerges from a number of the reports including that of Dr Parker of 30 October 2015.[13] Dr Walton, in his report of 30 August 2016, agrees with that and, in particular, that KMD “does not acknowledge that she may have, or had, a delusional disorder.”[14] Dr Walton also pointed out that she is quite distrustful of psychiatrists.[15]
KMD maintains there is nothing wrong with her and that she should be released from any form of supervision.
Insight into her condition, its origins and its treatment
Dr Das, Dr De Garr and Dr Re Acacio, who compiled the risk assessment report (Ex SO37), expressed some views about her belief as to her mental condition.
At [5.6] of his report of 5 April 2017 Dr Das says:
Ms KMD continues to protest to correctional staff about her detention in DCC which she sees as unfair and that she is a “political prisoner”. She believes that she should be released into the community and does not need supervision or treatment because she does not pose a risk and her significant offence of 2013 was a one-off event.
At the bottom of page 10 of the HCR-20 risk assessment the authors say, under the heading, 'Violence Risk':
There is evidence to suggest that KMD's poor insight into her mental disorder with her minimising and/or rationalising her violence and risk factors heightens her proneness to violence although, in the context of Ms KMD's continued refusal to engage in the assessment process, this is unclear.
She has continued to verbalise her delusional beliefs recently and these have been linked to her violent behaviour.
She continues to deny that she poses a risk to others in any form and does not think she should be detained in a custodial setting.
She fails to acknowledge the seriousness of her behaviour in terms of harm to others.
Dr Das, at [5.9] of his report, also talked about his attempts to engage with KMD. He said:
During [his] first [attempt] to meet with KMD [they] briefly met … and KMD spoke to us for five minutes before walking away. She was wearing dark glasses, appeared tidy and kempt and greeted us. She courteously said that she would not talk to us. She said in passing the following:
There are legal developments as regards her case and this will be played out in court by her solicitor, in regards to the hearing on 16th Dec.
She will not see anyone from forensic mental health, as she does not feel the need to.
She has been wrongly convicted and has had an 'unfair trial'. She thinks she should have been offered a ‘plea bargain’.
She said she should not be under the Part IIA of the Mental Health Act.
She said she needs to be out of prison. When I asked her where she said the community.
I told her we are not here to treat on this occasion, but to talk to her, she replied that she would not accept treatment in any case and will not talk to me either.
She said that she wanted to see the psychologist Re Acacio.
As I have already mentioned, KMD continues to hold the belief that she cannot benefit, not only from counselling or treatment but, in particular, from antipsychotic medication.
In his report in 2014 Dr Ellis recorded that Ms KMD was of the strong beliefs that her son had been sexually abused by RL Snr and his friends and that she still believed that and also she had strong beliefs that this was all part of a paedophile ring including a lot of other people.
In his report of 5 April 2017 Dr Das said, at [5.4]:
Ms KMD’s presentation has indicated she continues to harbour her belief system about her son being abused and her ex-partner being part of the conspiracy, and that she has been victimised and incarcerated as a cover up and multiple agencies are involved in this.
KMD has told others, including prison staff, that a paedophile ring was responsible for this situation. She has also told her lawyers that she no longer fears that her son is in grave danger because he is now old enough to protect himself. In light of this her lawyers have submitted that therefore removes the likelihood of her reoffending.
I do not accept that necessarily removes the likelihood of reoffending. It seems to be another example of her lack of insight and her tendency to say things that might assist her aim; that is to obtain complete release into the community without supervision. Also, as I have said, she continues to hold the belief that her son was sexually abused by a paedophile ring.
As I mentioned, when he gave his evidence on 22 February this year, Mr Re Acacio was positive about KMD's engagement with him and he expressed the view that she had shown some improvement and development in relation to self-regulation of her feelings and emotions. Unfortunately that engagement seems to have ceased soon afterwards.
When Dr Walton gave evidence at the hearing on 21 February this year he was asked whether, following the therapy and counselling that Mr Re Acacio had been giving her, there had been some gains in terms of KMD’s understanding and insight into her own behaviours. His answer was: “To a limited extent”. He went on to say: “It seems that there was a positive therapeutic relationship built up between her and Mr Re Acacio”.[16]
There are some other matters that are relevant to KMD’s insight into her condition and its origins and treatment. These include that she has tended to trivialise the injuries that were done to her victims and the impact upon them. These were outlined in Dr Parker's report of 30 October 2015.[17]
There is evidence, as outlined in the report of Dr Das at [5.3], that she gets angry with therapists who she considers do not agree with her beliefs.[18] She has frequently complained that other medical practitioners misunderstand or misquote her, and there are references to various interactions with correctional officers for being irritable, confrontational, and sometimes threatening if her demands are not met.
All of those things lead me to have great concern about her insight into her condition and its origins and her need for treatment.
Refusal to engage or co-operate
Also, it is clear that as a result of KMD’s refusal to engage or cooperate with medical practitioners, it has become more difficult for people to assess her condition and to provide her with counselling and advice.
I conclude that KMD is not prepared to participate in an assessment and counselling except on her own terms, nor is she prepared to follow advice concerning her treatment, let alone a further trial of antipsychotic medication.
The HCR-20 risk assessment referred to future proposals or suggestions for KMD's future management. At page 14 appears this recommendation:
The recommendation of her treating forensic mental health team is that she engages professional services in the form of psychiatric care, educational, vocational, risk reduction psychological treatment programs, monitoring, supervision and paramount of all - medication treatment.
The risk assessment goes on to say, also on page 14, that:
The plans for professional services in the future remain inadequate because:
a) She fails to acknowledge the diagnosis and the risk issues raised by her psychiatric professionals.
b) She refuses any form of supervision by psychiatric professionals.
c) Her plans do not target critical risk factors.
d) She presents with a stance that a release from a custodial setting will immediately make her compliant and supervisable (without any demonstration of a significant period of engagement in treatment prior to this). She also believes that she should be managed outside of a custodial setting.
…
Our opinion is that, therefore, there will be significant problems with professional services.
Prognosis and Risk to safety of KMD or others
Deterioration in KMD’s condition
I now turn to the question of her prognosis and the risk to the safety of KMD or others.
There is a considerable body of evidence which suggests that her condition has been deteriorating. I have already referred to what Riley CJ said at [34] of his reasons about the views expressed by most of the doctors, namely that her mental health had deteriorated in the time leading up to the incidents of 7 May 2013 and in the period following that, and that her condition would continue to deteriorate in the absence of further treatment.
The HCR-20 risk assessment expresses similar concerns. At the bottom of page 8:
There has been a serious deterioration in Ms KMD's mental illness over a period of time during which she has not received psychiatric treatment. The deterioration in her mental health significantly contributed to her actions at the material time, thereby demonstrating the link between deterioration in her mental health and her propensity for engaging in serious violence towards others.
Then at the bottom of page 10 is the passage that I have already referred to under the heading “Violence Risk”:
There is evidence to suggest that Ms KMD’s poor insight into her mental disorder with her minimising and/or rationalising her violence and risk factors heightens her proneness to violence.
The risk assessment also refers to what the authors describe as “Instability”. At page 12, the HCR-20 risk assessment states:
There is evidence of cognitive instability as evidenced by her distorted attributional style (blaming all problems that she faces to others on a conspiratorial theme), being quick to blame others for her activities.
Under the heading “Affective (emotional)” the authors said:
She has demonstrated over the last 18 months ample evidence of affective instability such as dejection, distress, anxiety, irritability, anger, volatile mood, and 'hair trigger anger'.
I have also already referred to the reference at page 14 of the risk assessment regarding her engagement with practitioners over the last 18 months or so. At the top of page 14 is this conclusion:
[KMD’s disengagement] not only denotes a lack of responsiveness, but also deterioration in her mental illness delusional disorder.
This progressive lack of responsiveness, together with a decline in her mental state has a significant adverse impact on the risks that she poses.
Finally, at page 16, the authors express the view that:
Ms KMD’s mental state has deteriorated over the last 18 months with near total lack of engagement with key members of her treating team. She has become more hostile, resistive to treatment and evasive about her mental inner world. Personal impediments to her responsiveness include her current antagonistic personality presentation and extreme suspiciousness.
Her delusional disorder remains untreated, and it is well known in the evidenced based literature that the duration of untreated psychosis has a detrimental effect on future prognosis.
In his evidence on 21 February 2017 Dr Walton was asked some questions about possible deterioration in her condition. This included discussion about the fact that KMD had frequently complained that professionals were either misunderstanding or misquoting her, that she had become distrustful of psychiatrists, and that she maintained the view that her son was sexually abused in the past.
Dr Walton was also asked about some of the other things that have happened while she has been in prison. He was asked this question about her situation in August 2016, which was the last time when Dr Walton had seen her prior to the hearing on 21 February:
And it’s fair to say that … your experience at that time could be increasing paranoia on Ms KMD’s part? --- Look, that's a possibility. I would be reluctant to classify that change of attitude as clear cut evidence of paranoid delusions. It’s possible. But I think – of course I haven’t seen her again subsequently because I haven't tested for this – but my understanding is that as she has settled down after these life events have passed by, generally speaking the whole situation with her is more quiescent now. So I’ll be surprised if I met up with her again that that same attitude would be present.[19]
The attitude being referred to was her attitude of being distrustful not only of psychiatrists generally but also of him and her lawyers.
In summary, the risk assessment, at page 16, is to the effect that her mental state has deteriorated and she has become more hostile and the like. There were similar observations in the summary of the findings at page 17 of the risk assessment:
In terms of perpetuating factors, her consistent presentation with a theme of impaired insight, denial of a mental illness, complete refusal to engage in psychiatric assessment, outright hostility to monitoring agencies can be seen as perpetuating agencies. Associated with this is a longstanding delusional disorder which has remained untreated and there is now a progressive deterioration in her overall presentation.
I conclude on the basis of all that, that there has been a deterioration in KMD's mental condition since his Honour made the custodial supervision order in 2015.
Risk
I now turn to the main question, which is the question of the risk that she poses to others or would pose to others if she were not in the custodial situation that she is presently in, or in some custodial situation.
That is addressed in the HCR-20 risk assessment. Towards the bottom of page 17, under the heading “Risk Scenarios”, the authors said:
If Ms KMD commits violence in the future, the most likely scenario is a repeat of her past violence. In this scenario, she is likely to act on her delusional system of her son being abused, and the perception that she is subject to victimisation and persecution by her ex-partner, his associates or government agencies and officials.
Likely victims are her ex-partner Mr RL, people associated or related to him and from the past history, bystanders may become potential victims. Such an act of violence may involve use of a weapon (gun and moving car used to cause harm in the past), and may involve harassment, stalking and kidnapping.
This is a reference back to the conduct in which she engaged in on 7 May 2013.
The authors went on to say:
Such an act of violence is likely to cause serious psychological and physical harm to the victims and the likelihood of a fatality is possible.
The imminence of such a scenario is difficult to predict. Early warning signs may be difficult to detect because of Ms KMD's guardedness and unwilling to be subject to monitoring of her mental state and thought process. Such a scenario is likely to be of low frequency, however potentially associated with a catastrophic outcome.
Under the heading “Case Management”, at page 18, the authors said:
The clinical team is of the opinion that her risks can only be effectively managed on a Custodial Supervision order within the current setting and consider the Non-Custodial supervision order will not be able to effectively manage the risks that she poses.
A number of doctors have also expressed opinions about risk. Back in April 2016, Dr Miach said:
While the incidence and frequency of any future offending may be considered low, the magnitude and severity of the consequences in the event of an incident would be high.
Dr Parker in his report of 6 January 2017, at page 2, said:
Outside of prison, with normal life stresses and despite that the supportive psychotherapy offered by Re Acacio has at times been of some positive effect, it is likely that KMD will once again experience elevated levels of brain dopamine and this uncontrollable rise in this brain dopamine would result in serious risk of behaviour dangerous to individuals or the public, including the possibility of behaviour similar to her original offence. Recent literature points to possible brain deterioration and increased disability from mental illness in the context of no medication or poor compliance with regular medication for schizophrenia.
I pause here to note that Dr Parker was acting on the assumption that KMD does suffer from schizophrenia, which is an assumption that Dr Walton does not rule out but does not accept in the absence of further information. Also Dr Walton pointed out that Dr Parker's comments about brain dopamine should be treated with some caution because she has not been assessed in that regard.
In his evidence on 21 February 2017, Dr Parker:
(a)maintained the position that KMD remains a significant risk of serious offending if she was to return to the community if she was not treated with medication.
(b)considered the potential for paranoia and that her persecutory ideation is likely to fix on another individual at a particular point in time if she gets distressed. It won't necessarily be the Ls. So potentially the community or other individuals are at risk if she is out and about in the community without that dopamine vulnerability being more controlled.
(c)KMD has been in a very controlled situation in prison, but when she is out and about in the community, she would be exposed potentially to other stressors and a component of such a stressor may be the object of the persecutory ideation.
Dr Walton also gave evidence on 21 February 2017. As I said, he did not agree with some of the assumptions that Dr Parker made concerning levels of dopamine. Dr Walton assessed KMD's dynamic risk as low. It is relevant that I refer back to what he said at page 8 of the transcript. He was asked this question:
What do you say is her present dynamic risk of causing injury to members of the community? --- Well I wouldn’t see the community at large as ever having been really at risk. The issue that seemed to drive her originally in terms of what occurred was of course the strong belief that her son was being sexually abused. Now that is now historical for her. My understanding is that she is not of the view that he is at risk currently. So that would seem to take the heat out of that particular dynamic. And you know, time has passed, she’s not an unintelligent woman. She is well aware in terms of the restraints upon her that [should] she cause any sort of concern, let alone reoffend, that she would be promptly returned to the prison. And overall she seems to be a reasonable risk now.
When Mr Acacio gave his evidence on 22 February 2017 he also considered that her risk would be much lower than it previously was. That was mainly because of her willingness to engage with him when he was providing her with cognitive behavioural therapy and the general counselling thereafter. However, as I said, she ceased to engage with him shortly after the February hearing. Accordingly, whatever opinions he may have held in February must now be tempered with the views subsequently expressed by him and the two others who prepared the HCR-20 risk assessment.
Senior counsel for KMD contends that little weight should be attached to a number of things. Firstly, little weight should be attached to Dr Parker's opinions because he has not had any meaningful contact with KMD since October 2015. However, I do attach significant weight to his opinions, not only because of his position in the hierarchy but also with his overall familiarity with KMD's case.
Counsel also submitted that I should not attach much weight to the opinions expressed by Dr Das. The main reason for that was because he was unable to engage with KMD the opinions that he and others formed were missing important factual bases. Counsel was also critical of Dr Das for his reliance upon the observations of others such as Dr Kini and Dr Ventura. Contrary to those submissions, I do attach significant weight to the opinions of Dr Das. To a large extent they are based upon the detailed HCR-20 risk assessment, which involved three professionals, one of whom was Mr Re Acacio.
Counsel also stressed that in his report dated 9 June 2017 (Ex SO38) Dr Walton “states, effectively that KMD is at low risk of causing harm to others.” This is because she now considers her son is old enough to defend himself and therefore there is no need for her to intervene.[20]
I do not agree that Dr Walton was saying that KMD is at low risk of causing harm to others. What he said in his report of 9 June 2017 (when responding to Dr Das’ report of 5 April 2017) was:
It is apparent that Dr Das regards [KMD] as being at high risk of harm to herself or others. He rates [KMD] at being of significant risk of repeating a similar act of violence to the index offence, seemingly on the basis that she continues to entertain deluded thoughts about her son being a sexual abuse victim and that this core delusion has not changed over time. This is only partly correct. [KMD] does maintain her belief that her son was a sexual abuse victim but that is now historical. She now sees him as old enough to defend himself were he to become a target again and therefore there is no need for her to intervene.
So, I do not see that passage as supporting the submission that Dr Walton was saying in effect that KMD was at low risk of causing harm to others. Moreover, Dr Walton proceeded to criticise what Dr Das had said about KMD being at risk of self-harm. That is a different point to her risk to others. Dr Walton went on to say that in his view, Dr Das' rating of KMD being at risk of self-harm was nothing short of speculative. Dr Walton did not otherwise address the question of risk of harm to others.
On page 2 of that report, Dr Walton, after talking about self-harm, said:
What does seem to be clear from the reports of clinical staff and Corrections is that [KMD] has been exhibiting some signs of irritability and uncooperativeness. In my view it is hazardous to attribute that to mental disorder, which could be the explanation, but she simply speaks of her growing sense of frustration.
I note the recommendation of the clinical team that they believe risk management requires ongoing custodial care. To state the obvious, that is the safest option and may be the only current option due to a lack of resources but that ought to be clearly specified. I would simply invite comparison with prisoners who have committed similar offences and their ultimate management when inevitably released into the community.
Dr Walton did not say anything further on the question of risk to others. I should add that KMD's belief that her son is now safe is not something new. She said as much to Dr Walton back in 2014, prior to his report of 22 May and prior to the decision of this Court in June 2015.
Counsel for KMD also referred to the fact that there has not been any conduct over the last four years or so, that is since May 2013, suggesting that she has a tendency to be violent and that therefore I should infer from that that there is less of a risk of her being violent if she is released from that custodial setting.
On the other hand, it is relevant to note that during the five or six years preceding her offending in May 2013 there was no suggestion that she displayed any such tendencies to be violent, despite the fact that she was manifesting her symptoms of delusional disorder during that time. Secondly, I am not aware of any particular event or trigger that set off that violent conduct on that particular day. It was some three months or more since the father had been granted the custody of RL Jnr by the Family Court. I have already referred to various passages in the decision of the Chief Justice concerning that. It is also relevant to note that she has been in a very controlled environment during the last four and a half years or so and consequently not been exposed to any particular stressors that might cause her to react in a violent way. I am aware of a number of unfortunate events that have occurred, including the passing of her mother and being told that her partner and younger son may be moving, and she has dealt with those.
In terms of risk of self-harm, Dr Das pointed out in [6.2] of his report that the function of the risk assessment, that is the HCR-20 risk assessment, was to focus on the question of violence. This is defined to be violence to others, not the risk of self-harm. I agree with Dr Walton that there is a certain amount of speculation about her risk of self-harm, unlike the risk to others that she has previously demonstrated by her conduct on 7 May 2013. There is no evidence, that I am aware of, of her ever attempting self-harm in the past, so I consider there to be minimal, if any, risk of self-harm.
Section 43ZN
I now turn briefly back to the factors set out in s 43ZN(1). The first, s 43ZN(1)(a), is whether she is likely to, if released, endanger herself or another person because of her mental impairment, condition, or disability. On the basis of the material that I have already gone through, I do consider that she is likely to endanger another person because of her mental impairment.
The next item, s 43ZN(1)(b), concerns the need to protect people from danger. I do consider that there is a need to protect people from danger, not only the previous victims, RL Snr and his mother, but others. It will be recalled that there was another man, Mr I, who had become involved later in the car chase and he was also shot. There is a risk that other people might also be put in danger.
The third element, s 43ZN(1)(c), concerns the nature of the mental impairment. Counsel for KMD submitted that her impairment is one of a fixed and narrow compass. Secondly, that there had been no deterioration in her mental state since July 2013. Thirdly, that KMD no longer believes that her son is in any danger and fourthly, therefore as a result of that, the fundamental motivation for her conduct in 2013 is now gone.
I do not agree that her condition is one of a fixed and narrow compass. Part of the difficulty has been not being able to assess more accurately what her condition is. I do not agree that her condition is of a fixed and narrow compass. And, as I have said, the evidence does suggest deterioration in her mental state since July 2013.
Section 43ZN(1)(d) concerns the relationship between the mental impairment and the offending conduct. Counsel submitted that her offending was directly related to her delusion, and that she was trying to protect her child from further sexual abuse at the hands of her former partner.
As I have already read out from the Chief Justice’s remarks, his Honour said: “Her conduct on 7 May is explained by her mental impairment. Her actions resulted from her deluded but genuinely held beliefs regarding the welfare of her son.” Much of that supports what counsel contended. But as I have said, those actions do not only involve the people who she thought were abusing her son, that is the father, RL Snr. Her conduct also involved her actively pursuing in a motorcar, and shooting, innocent members of the public, including, the child’s grandmother and Mr I.
Section 43ZN(1)(e) requires the Court to have regard to “whether there are adequate resources available for treatment and support in the community.” Regrettably, the answer to that question seems to be no.
Section 43ZN(1)(f) looks at the question as to whether the supervised person is likely to comply with conditions of a supervised order. It is very clear to me that she is not likely to comply. In particular there appears now to be a complete refusal to engage with medical practitioners. The risk assessment also suggests that there may be some further difficulties following the recent breakup of her relationship with her partner.
Section 43ZN(1)(f) refers to “other matters”. Counsel submitted that, consistently with the aims of s 43ZM to preserve her freedom and personal liberty, I should make a Non-Custodial Supervision Order and that she could be subject of various conditions, monitoring devices and the like. However, as I said, it seems that her desire is to be completely free in the community. In any event, I am not satisfied that those kind of mechanisms would protect the community.
Alternative accommodation
In relation to alternative accommodation, counsel for KMD stressed the desirability of KMD being accommodated somewhere other than in a custodial correctional facility and that such orders can be made whether she is under a Custodial Supervision Order or a Non-custodial Supervision Order.
Consistently with the provisions that I have already talked about, particularly in ss 43ZM and 43ZA(2), the Court should attempt to use its powers under s 43ZH(2)(b)(ii) to detain KMD in another place, that is, outside a custodial correctional facility. Riley CJ had regarded those provisions and was forced to conclude that there was no practicable alternative to committing KMD to a custodial correctional facility. Regrettably, that still appears to be the case.
Counsel identified a number of other Part IIA matters, where the supervised person has been accommodated outside a custodial correctional facility and in some case, successfully reintegrated back into the community.
I agree that KMD should be accommodated somewhere other than in a custodial correctional facility. However, the CEOs have not identified any accommodation which they consider appropriate for her. Apart from the significant financial cost that this would entail, the CEOs are concerned that this would be unlikely to assist KMD or the community in a meaningful way. This is largely for two reasons;
(a)her continuing denial of her mental illness; and
(b)her refusal to accept the advice of experts concerning the treatment and management of her mental illness.
Counsel for KMD and judges of this Court have been critical of the fact that there appears to be no alternative accommodation for people like KMD outside of a custodial correctional facility. Consequently, she remains under the control and supervision of those administering that facility and, in effect is a prisoner, even though she is not in fact a prisoner.
Counsel for the CEOs point out that there are relevant differences between KMD’s situation and that of the other supervised persons who have been provided with alternative accommodation:
(a)some of those people were not mentally impaired;
(b)more importantly, all of those people;
(i) acknowledged that they were mentally ill and accepted their diagnosis;
(ii) engaged with and cooperated with health practitioners who were caring for them; and
(iii) were prepared to continue to comply with their care plan and with conditions requiring them to accept the advice, counselling and treatment recommended by their professional carers.
Consequently, the risk posed by them to the safety of themselves and the public could be assessed, monitored and managed, thereby (to quote this important part of s 43ZM) “maintaining and protecting the safety of the community.”
Counsel for KMD also submitted that the Court has the power to commit a supervised person to a place under a Non-custodial Supervision Order even if the CEOs do not provide a certificate of the kind that is normally provided under s 43ZA(3). Counsel referred to a Victorian Court of Appeal decision of Richards v The Queen[21]. Counsel for the CEOs say, that there is no such power. I have perused the Court of Appeal’s decision in Richards. I note that the relevant provision, s 47 of the Victorian legislation, is quite different to the relevant provisions in the Northern Territory legislation. I find the decision of little, if any, assistance in construing the Court’s powers under section Part IIA.
In view of the conclusions that follow, I do not consider it necessary for me to decide this point. Even if counsel’s contentions were correct and the Court did have the power to make such an order without a certificate, I do not consider that it would be appropriate to do that in the present matter, particularly as the Court has not been informed of any place that it could consider “appropriate”. If such a place does ever become available for KMD, I would expect the Court to be informed of that.
Conclusions
I consider that there is no relevant improvement in KMD’s condition since the time when she was placed under the Custodial Supervision Order. Rather her condition is probably worse on account of her lack of insight and her refusal to accept professional advice. I consider that her lack of insight and her refusal to trust and engage with mental health practitioners is a product of her mental illness.
The risk that she poses to the safety of the public remains serious if she is not in a custodial setting. Although the likelihood of her committing further acts of violence remains difficult to predict, if that were to occur, the outcome could be “catastrophic”.[22] The magnitude and severity of the consequences in the event of such an incident would be high.[23] Applying the approach and language used in another Victorian case to which I was referred, Attorney‑General v David[24], the risk is significantly more than “trifling” or “negative”. The risk of catastrophic harm occurring to a member of the public is not insignificant.
Counsel for KMD submitted that, in effect, KMD is being imprisoned and punished for refusing to take antipsychotic medication. Whilst that might be her perception, it is not the case. She is in a custodial correctional facility because she is a serious risk to the community. But for her mental impairment, she would have been convicted and sentenced to about 16 years’ imprisonment in such a facility.
Until she accepts the diagnosis, which is the diagnosis of every expert, including Dr Walton, that she does have a mental illness, and until she accepts advice and recommendations of mental health practitioners and undertakes counselling and assessment, it is likely that her mental illness will deteriorate and a risk to the safety of the public will remain or get worse.
I am satisfied on the evidence available that the safety of the public will be seriously at risk if KMD is released on a Non-custodial Supervision Order.[25] I confirm the existing Custodial Supervision Order.[26]
Variation of existing order
In relation to the request on the part of the CEOs to vary the existing order, I do not propose to make that variation order. I do not consider that there is any utility in me making that order unless and until KMD changes her mind about counselling and treatment and I very much doubt that that is likely to occur in the near future. KMD is fully aware of the advice of many, many practitioners that it is in her interests to engage in such counselling and assistance. By me imposing such a condition, it is clear that it going to be disobeyed and that there would be nothing that a court could do to enforce the condition. It might be different if she was under a Non-custodial Supervision Order, but she is not.
I am also concerned that if I did attach that condition, it may be misconstrued by some people. Some might think that, contrary to my decision on the previous occasion,[27] the Court was authorising someone to administer antipsychotic medication against the will of KMD. I would not want people to think that they could do that because there was such a condition. I decline to add that as a condition.
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[1] Outline of Submissions on behalf of the Defendant, 17 February 2017 [8].
[2] S 14(b)(ii) Mental Health and Related Services Act 1998 (MHRS Act).
[3] Mental Health Review Tribunal, KMD Reasons for Decision (29 July 2016) (MHRT Reasons) per Richard Bruxner at [75], Suzi Kapetas agreeing.
[4] The Queen v KMD (No 2) [2017] NTSC 18 (KMD [No 2])
[5] The Queen v KMD [2015] NTSC 31 (KMD [No 1]).
[6] A very helpful discussion of similar, but different, legislative provisions is to be found in Nigro v Department of Justice (2013) 234 A Crim R 1.
[7] Briginshaw v Briginshaw (1938) 60 CLR 336.
[8] Transcript, 3 June 2015 at p 9.
[9] Transcript, 3 June 2015 at p 16.9
[10] Transcript, 16 March 2016 at p 8.
[11] Transcript, 16 March 2016 at p 8.
[12] Dr Das’ report, 5 April 2017 at [5.2].
[13] Dr Parker’s report (Ex SO19), 30 October 2015 at p 3.2.
[14] Dr Walton’s report (Ex SO32), 30 August 2016 at p 3.2. See too transcript, 21 February 2017 at p 10.8.
[15] Transcript, 21 February 2017 at p 12.3.
[16] Transcript, 21 February 2017 at p 6.5.
[17] Dr Parker’s report, 30 October 2015 at p 4.1.
[18] Dr Parker’s report, 30 October 2015 at p 6.5.
[19] Transcript, 21 February 2017 at p 12.
[20] Further Submissions on behalf of the Defendant, 10 July 2017 at [23].
[21] Richards v The Queen [2007] VSCA 174.
[22] HCR-20 Risk Assessment, 5 April 2017 at p 17.9-18.2.
[23] Dr Miach’s report (Ex SO30), 13 April 2016 at p 6.6.
[24] Attorney‑General v David [1992] 2 V.R. 46.
[25] S 43ZH(2).
[26] S 43ZH(2)(b)(i).
[27] The Queen v KMD (No 2) [2017] NTSC 18.
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