The State of New South Wales v Butterfield (Preliminary)

[2015] NSWSC 1374

Supreme Court

New South Wales

Medium Neutral Citation:	The State of New South Wales v Butterfield (Preliminary) [2015] NSWSC 1374
Hearing dates:	18 September 2015
Decision date:	18 September 2015
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Two qualified psychiatrists (to be agreed between the parties) be appointed to conduct separate psychiatric examinations of the defendant and to furnish their reports to the Court on the results of those examinations by 4.00pm on 9 October 2015
Catchwords:	CIVIL LAW – preliminary hearing under s 15(3) Crimes (High Risk Offenders) Act 2006 (NSW) – where defendant is accepted to be high risk violent offender – where it is accepted that there is evidence capable of satisfying the court that there is a high degree of probability that the defendant poses an unacceptable risk of committing a serious violence offence if she is not kept under supervision – two qualified psychiatrists to be appointed to examine defendant – defendant directed to attend those examinations
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW)
Category:	Principal judgment
Parties:	The State of New South Wales (Plaintiff) Rebecca Jane Butterfield (Defendant)
Representation:	Counsel: Mr C Birch SC (Plaintiff) Mr M Johnston (Defendant)   Solicitors: Crown Solicitors Office Legal Aid NSW
File Number(s):	2015/252997

Judgment

1. HIS HONOUR: The State of New South Wales (“the State”), by summons filed on 28 August 2015, applies for a continuing detention order in respect of Rebecca Jane Butterfield (“the defendant”) pursuant to Part 3 of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”). This is the preliminary hearing in respect of that application; s 15(3).

2. The defendant is currently serving a term of imprisonment for the fatal stabbing of a fellow inmate at the Emu Plains Correctional Centre on 7 May 2003. She was charged with murder, but the Crown accepted a plea of guilty to manslaughter on the grounds of substantial impairment by abnormality of mind. The defendant was sentenced to 12 years imprisonment dating from 4 November 2003 and expiring on 3 November 2015, with a non-parole period of 7 years. The non-parole period expired on 3 November 2010, but the defendant remains in custody, having been refused parole.

3. The matter has been listed for final hearing on 30 October 2015. On that day the State will be seeking a continuing detention order under s 17(1)(b) of the Act for a period of 5 years, or, alternatively, an extended supervision order for a period of 5 years pursuant to s 17(1)(a) of the Act.

4. At the hearing today, the State sought an order that two qualified psychiatrists be appointed to conduct separate psychiatric examinations of the defendant and to furnish their reports to the Court, and directing that the defendant attend those examinations: s 15(1)(i). Before making this order, I must be satisfied that matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or an extended supervision order: s 15(4).

The defendant’s criminal history

5. The defendant has a lengthy criminal history and has been sentenced for a number of serious offences of (usually unprovoked) violence. She has been in custody since 5 November 2000. The defendant was charged with her first criminal offences in April 1996 when she was 21 years old. These included charges for multiple malicious damage offences, a number of drug related offences and unlawful entry. Her first charge for an offence of violence, assault police, was in September 1996. Further offences of assault, assault occasioning actual bodily harm, resist arrest (including with a weapon), malicious damage and custody of knife in public place were committed in the following years.

6. She was on bail for assault charges on 23 September 1997 when she committed an offence of malicious wounding against a taxi driver, stabbing him with a knife in his upper arm and lower chest when she was asked to pay the taxi fare. She was convicted of malicious damage, malicious wounding and evade taxi fare and received a sentence of 12 months imprisonment in respect of the malicious wounding.

7. On 5 November 2000, the defendant was sentenced to 6 years imprisonment with a non-parole period of 3 years for an offence of malicious wounding with intent to cause grievous bodily harm. The defendant stabbed her neighbour five times with a kitchen knife after her neighbour saw the defendant self-harming and attempted to help her.

8. The defendant was serving her sentence at the Emu Plains Correctional Centre in respect of the aforementioned offence when she committed the index offence on 7 May 2003. The victim was a fellow inmate and a friend of the defendant. The defendant stabbed the victim at least 33 times to the head, torso and limbs with a kitchen knife in an entirely unprovoked attack. The defendant later claimed that at the time of the offence she was frustrated because she had not received a larger dosage of her medication.

The defendant’s mental health history

9. The defendant has a history of self-harm. She was receiving ongoing assistance from the Community Mental Health Team throughout July 1999. On 31 July 1999 she was scheduled to the psychiatric unit at Bloomfield Hospital where she assaulted her treating doctor and nurse. She has a history of threatening to harm police officers.

10. There are numerous examples of the defendant attempting to self-harm whilst in custody, including setting fire to her overalls causing burns (October 1997); cutting her throat so that it required suturing (October 2003); attempting to hang herself (April 2005); lighting a fire in her cell causing herself severe burns (March 2008); and striking her head about 105 times in one incident (January 2009).

11. A report of Dr Roberts, psychiatrist, dated 10 May 2015, is before the Court. Dr Roberts diagnosed the defendant as suffering from a Personality Disorder of a Mixed Borderline and Antisocial type of the most extreme degree. He noted that while she has spent lengthy periods housed in psychiatric wards, she has not been diagnosed with a psychotic illness. His prognosis for the defendant was negative, finding that her condition had not improved over time (as is typical of personality disorders) and concluded that her condition is one of indefinite duration.

The defendant’s risk of re-offending

12. A risk management report of Ms Vicki McCarthy dated 11 March 2015 and a risk assessment report by Ms Naomi Prince, psychologist, dated 9 February 2015 were provided to the Court. In the latter, Ms Prince concluded that the defendant presents a high risk of violent reoffending. She placed the defendant “in the high risk category [of violent reoffending] relative to people who have offended violently” ([141]). Ms Prince explained that the defendant’s severe personality disorder is central to this risk and emphasised the defendant’s own recognition of the fact that she is not ready to return to the community because she is unable to guarantee the safety of herself or others ([141]).

13. Dr Roberts also made an assessment of the defendant’s risk of re-offending, concluding that she poses “an extreme risk of engaging in a further serious violent offence” (14). He described the defendant as “an unpredictable person who has responded with aggression without identifiable provocation” (14).

Determination

14. Counsel for the defendant does not dispute that the defendant is a ‘detained violent offender’ within the meaning of s 13C of the Act. Nor is it disputed that the index offence of manslaughter is a ‘serious violence offence’ under s 5A of the Act.

15. Having regard to the material before the Court, I am satisfied that at the final hearing the Court would be likely to find that the defendant is a high risk violent offender pursuant to s 5E and this is accepted by counsel for the defendant. It is also accepted and I am satisfied that there is evidence capable of satisfying the Court that there is a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if she is not kept under supervision: s 5E.

16. The defendant does not oppose the making of the order sought by the State. Accordingly, I propose to make that order. I agree with counsel for the defendant that the remaining orders sought in the summons can be dealt with at the final hearing.

Orders

17. I make the following orders:

1.   Two qualified psychiatrists (to be agreed between the parties) be appointed to conduct separate psychiatric examinations of the defendant and to furnish their reports to the Court on the results of those examinations by 4.00pm on 9 October 2015.

2.   The defendant is directed to attend those examinations.

3.   The Plaintiff is to file and serve any further evidence and written submissions upon which it intends to rely by 4.00pm on 16 October 2015.

4.   The defendant is to file and serve any evidence and written submissions upon which she intends to rely by 4.00pm on 27 October 2015.

5.   List the matter for final hearing on 30 October 2015.

6.   Grant liberty to the parties to apply on 24 hours’ notice.

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Decision last updated: 18 September 2015