R v Adams

• 10 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

Judgment 1 His Honour: The offender was born on 11 August 1982. On 25 January 1999, at the age of 16, she stabbed her mother with a knife causing serious injury. The offender was taken into custody on 26 January 1999 and was detained at the Yasmar Juvenile Justice Centre, where she attended the Sunning Hill School within the centre precincts. On 23 July 1999, when not yet 17 years of age, she stabbed a teacher with a knife during a cooking class at the school, killing him. 2 The offender was found unfit to be tried. She is of low intelligence and suffers from a severe personality disorder. At a special hearing conducted before me without a jury, I found, pursuant to s19(1) of the Mental Health (Criminal Procedure) Act 1990 (hereafter "the Act"), that, on the limited evidence available the offender committed the offence of malicious wounding with intent to cause grievous bodily harm in relation to the first episode, and the offence of manslaughter in relation to the second episode. Those findings were made in a judgment delivered by me on 12 September 2001. I directed the entry of verdicts accordingly. The verdicts constitute a qualified finding of guilt and do not constitute a basis in law for a conviction: the Act, s22(3). 3 The finding of manslaughter in relation to the second episode was made pursuant to s23A of the Crimes Act 1900. The offender was charged with murder, but I found that the offender's capacity to control herself was substantially impaired by an abnormality of mind arising from the personality disorder. I reduced what would otherwise have been a finding of murder to manslaughter on that account. 4 The scheme of the Act is then as follows. 23(1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court: (a) must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment; and (b) where the Court would have imposed such a sentence, must nominate a term, in this section referred to as "a limiting term", in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence. (2) . . . . . (3) . . . . . (4) In nominating a limiting term in respect of a person or imposing any other penalty or making any other order, the Court may, if it thinks fit, take into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods related to the offence). (5) A limiting term nominated in respect of a person takes effect from the time when it is nominated unless the Court, after taking into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods related to the offence), directs that the term be taken to have commenced at an earlier time. 24(1) If in respect of a person a Court has nominated a limiting term, the Court: (a) must refer the person to the Mental Health Review Tribunal; and (b) may make such order with respect to the custody of the person as the Court considers appropriate. (2) If a Court refers a person to the Tribunal, the Tribunal must determine whether or not: (a) the person is suffering from mental illness; or (b) the person is suffering from a mental condition for which treatment is available in a hospital and, where the person is not in a hospital, whether or not the person objects to being detained in a hospital. (3) The Tribunal must notify the Court which referred the person to it of its determination with respect to the person. 27 If a Court is notified by the Mental Health Review Tribunal of its determination in respect of a person under section 24(3), the Court may: (a) if the Tribunal has determined that the person is suffering from mental illness or that the person is suffering from a mental condition for which treatment is available in a hospital and that the person, not being in a hospital, does not object to being detained in a hospital - order that the person be taken to and detained in a hospital; or (b) if the Tribunal has determined that the person is not suffering from mental illness or from a mental condition referred to in paragraph (a) or that the person is suffering from such a mental condition but that the person objects to being detained in a hospital - order that the person be detained in a place other than a hospital.

5 As a matter of convenience, there was no sharp division between the special hearing in this case and the next phase in the proceedings. Following my judgment, given on 12 September 2001, counsel sought an opportunity to supplement the submissions received at an earlier stage. That occurred on 19 October 2001, when I reserved my decision concerning the matters remaining to be decided. 6 The function of a limiting term is to limit the period for which a person unfit to be tried can be detained for the offence or offences the subject of the special hearing: Mitchell (1999) 108 A Crim R 85 at [30]. In that connection, the scheme of the legislation cured the previous situation, where persons who were unfit to be tried were detained indefinitely without a court determination as to whether an offence had been committed. On expiry of the limiting term, the offender is released, unless detained as a continued treatment patient pursuant to s89 of the Mental Health Act 1990 (because of mental illness or disability, and there being no other means of dealing with the person). 7 The over-arching principle in fixing a limiting term is that it must be the best estimate of the sentence the court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence or offences and the person had been found guilty of the offence or offences: the Act, s23(1). I am, therefore, to make a determination having regard to the objective gravity of the offences and the subjective circumstances of the offender having regard to the range of considerations which would be taken into account after conviction at an ordinary trial. The considerations include the offender's mental state at the time of the offences and since. 8 Any matter of aggravation must be found beyond reasonable doubt. Any matter of mitigation may be found on a balance of probabilities. 9 The objective features of the two offences are recorded in my judgment of 12 September 2001. The first offence was premeditated. The offender had been in care from the age of four following sexual abuse, and was later abused while in care. The offender blamed her mother for her mistreatment. She went in search of her with a knife, and stabbed her with the intention of causing her serious harm. 10 The same cannot be said of the second offence. Although the intention to cause at least serious harm was inescapable, the act was done on impulse, with no planning, without provocation and with no discernable motive. 11 As to the offender's mental state, Dr Westmore described her personality disorder as "extreme" and "severe", and her consequent behavioural disturbances as "extreme". Behavioural disturbances included "her impulsivity, her lack of judgment, her lack of boundaries, the uncontained aggression". Dr Wilcox and Dr Brown agreed with Dr Westmore's diagnosis. I accept that evidence. It is reviewed in detail in my judgment of 12 September 2001. 12 As found in my judgment of 12 September 2001, the offender had a pathological fascination for knives and other sharp objects. There was a history of incidents involving violence and the threat of violence. The offender had limited capacity to control her behaviour in this respect. On the day of the homicide, as found in my earlier judgment, the offender was in a highly aroused state, initiated by access to and handling of a knife or knives. Her tendency to violent behaviour, the availability of a knife, her highly aroused state and her inability to control her impulses combined to produce the tragic consequence. 13 Dr Brown is a visiting medical officer, attached to Mulawa Correctional Centre, Silverwater. Her other professional appointments include clinical lecturer in psychiatry at the University of Sydney and Royal North Shore Hospital. She has been the offender's treating psychiatrist since July 1999, that is, since shortly after the offender's major offence. I have mentioned her opinion concerning the offender's mental state. In recent months, there had been some calming effect from prescribed medication. Prison staff were supportive in maintaining access to treatment for her. 14 Dr Brown was seeing the offender every month or two. In private practice, Dr Brown said, the offender would be seen on a weekly basis. Dr Brown also said she would prefer the offender to be accommodated in a secure facility with hospital staff, but no such facility exists for women prisoners in this state. Accommodation in the general prison population had not been considered as a reasonable possibility. 15 Whether the offender would ever overcome her aggressive, impulsive tendencies was uncertain. According to Dr Brown, that could occur with maturity, in her late twenties or thirties. The prospect was, however, reduced by not being able to provide the offender with intensive psychotherapy due to the limited resources available in the prison system. 16 The opinion of the three psychiatrists who gave evidence was unanimous that, in her current mental state, the offender posed a serious threat to herself and to others, and that secure confinement with close supervision was required. 17 Evidence was also given by Ms N Jess, a senior correctional officer, stationed at Mulawa. She had been the offender's case officer since the offender's transfer to Mulawa in July 1999. She saw her daily and reviewed her status monthly. 18 When first transferred to Mulawa, in July 1999, the offender was accommodated in the Mum Shirl Unit for about a year. She was then transferred to the segregation section of the Multi-Purpose Unit, which was staffed 24 hours a day. Freedom of movement within that section was more restricted than in other parts of the gaol. The offender was confined to her cell from 5 pm to 8 am and from 12 noon to 2 pm. That was some three and a half hours per day longer than for inmates in the general prison population. 19 The Mum Shirl Unit is for psychiatric inmates. The offender attended the Unit for educational and recreational activities, including music lessons and pottery, Monday to Friday, and sports activity on Sundays. The offender also attended group therapy sessions there, conducted by a staff psychologist, and periodic one to one sessions with the psychologist. The offender was allowed contact with the main gaol population in the Sacred Garden at the prison. She had been assisted greatly by having a mentor from the main gaol population who visited her daily. The offender assisted in the wing laundry and did some grounds maintenance under supervision. She had contact with a special needs teacher who was addressing literacy and numeracy. 20 The offender had goals: to be housed in the main population of the gaol and to work with the main gaol population. Although the offender's aggressive behaviour had diminished in incidence and severity over the time she had been at Mulawa, Ms Jess did not suggest that such goals were likely to be achieved in the foreseeable future. 21 The considerations relevant to the exercise of the Court's discretion in sentencing an offender were stated in Veen v The Queen (No.2) 164 CLR 465 (at 476) as follows: [S]entencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. Purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. 22 The balancing exercise is nowhere more acute than in cases where mental disorder or mental disability has contributed to the crime. On the one hand, the discouragement of others by example, that is, general deterrence, is generally regarded as deserving less weight in such a case because it is considered inappropriate to use such a person in that way: Scognamiglio (1991) 56 A Crim R 81, 86; Letteri (NSWCCA, 18 March 1992, unreported). On the other hand, whilst protection of the community cannot justify a sentence that is disproportionate to the gravity of the crime: Veen (No.2) at 472 ff, that consideration may be of greater importance in the case of a mentally disturbed offender: Engert (1995) 84 A Crim R 67, 68 and 71, and may offset the offender's mental condition which would otherwise be a potentially mitigating feature of the case: Garforth (NSWCCA, 23 May 1994, unreported) at 11-12; Street (NSWCCA, 17 December 1996, unreported) at 35-37. 23 There is no persuasive evidence of the offender having felt remorse for either crime. That, no doubt, is a function of her mental disorder and of her intellectual disability. The absence of remorse does not count against her, but remorse is not available as a mitigating consideration. 24 To my mind, the predominant considerations in this case are, on the one hand, retribution for wilful injury and then for taking a human life; and, on the other hand, the very low level of moral culpability involved in either offence by reason of the offender's mental state. I also take into account, in mitigation, the offender's youth and the harsh conditions under which she is kept. 25 I mention, in passing, that it is no part of my function to determine what responsibility others have or might have for the conditions which contributed to the homicide. 26 I have read the victim impact statement, written by Mr Bremner's father on his own behalf and on behalf of the deceased's family. They have suffered a terrible loss which nothing the court can do would repair. I am precluded by law from taking into account the effect of Mr Bremner's death on them, when fixing a limiting term in this case. I understand their resentment in that regard and, in particular, of the attention which the court has paid to the offender's situation rather than to theirs. I also understand that no penalty is adequate from a family's perspective. The court's function is, however, to make a different kind of judgment, taking into account the considerations to which I have referred in the way I have mentioned. 27 Pursuant to s23(1)(a) of the Act, I indicate that, if the special hearing had been a normal trial against a person fit to be tried, with conviction for each of the offences charged, I would have imposed sentences of imprisonment in each case. Were I imposing such sentences in isolation from each other, I would have fixed a sentence for the malicious wounding offence of one year and six months and for the offence of manslaughter of 5 years and 6 months. 28 Section 23(5) enables me to take into account the period during which the offender has been in custody, that is from 26 January 1999 to date, and to backdate the term accordingly 29 Pursuant to s23(1)(b) and applying the principle of totality, for the offence of malicious wounding with intent to cause grievous bodily harm, I nominate a limiting term of one year, commencing on 26 January 1999 and expiring on 25 January 2000. For the offence of manslaughter I nominate a limiting term of five years commencing on 26 January 2000 and expiring on 25 January 2005. 30 Pursuant to s24(1)(a), I refer the offender to the Mental Health Review Tribunal. 31 Counsel agree that the appropriate order pursuant to s24(1)(b) is that the offender be kept in strict custody. That order would operate pending any further order of the Court in response to a determination by the Tribunal. The offender is presently accommodated at Mulawa Correctional Centre under conditions which are unsuitable and inhumane. She should, on the evidence before me, be accommodated in a secure psychiatric hospital ward, receiving appropriate treatment which is not available to her in prison. However, on the evidence before me, no such facility exists in New South Wales for females in this offender's mental condition. The situation may require more thorough examination by the Court when the Tribunal has made its determination. Meanwhile, as an interim measure, I make the order proposed by counsel. I order, pursuant to s24(1)(b), that the offender be held in strict custody. 32 In summary:

(1) For the offence of malicious wounding with intent to cause grievous bodily harm, I nominate a limiting term of one year, commencing on 26 January 1999 and expiring on 25 January 2000;

(2) For the offence of manslaughter, I nominate a limiting term of five years commencing on 26 January 2000 and expiring on 25 January 2005;

(3) I refer the offender to the Mental Health Review Tribunal;

(4) I order that the offender be held in strict custody. -o0o-

Last Modified: 11/26/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.