R v Norman Steven FIELD

LEGISLATION CITED : Mental Health (Criminal Procedure) Act 1990 - ss 38(2), 39, 41(1), 41(2)

CASES CITED : R v Line [2004] NSWSC 1148 R v Xu [No 2] [2005] NSWSC 70

COUNSEL : C Maxwell QC - Crown C Bruce - Offender

SOLICITORS : S Kavanagh - Crown S O'Connor - Offender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

JUDGMENT 1 HIS HONOUR: Norman Field was charged that on 20 April 2006 he murdered his mother. After a trial by judge alone, I found him not guilty of that offence on the grounds of mental illness. The question then arose as to what order I should make pursuant to s 39 of the Mental Health (Criminal Procedure) Act 1990 (the Act) as to the disposition of Mr Field in light of the verdict given. The matter was stood over for further hearing and Mr Field was remanded in custody pursuant to s 38(2) of the Act. 2 Mr Field is aged 46 years and suffers from chronic paranoid schizophrenia. The killing occurred at a time when he was undergoing an episode of his mental illness during which he had a delusional belief that his mother was trying to poison him. 3 Dr Westmore in a report of 20 June 2007 noted that the illness suffered by Mr Field was "generally treatment resistant". He stated:

"I would not recommend that Mr Field be provided with any type of conditional release if that involves him being released into the community. He requires long term psychiatric support and supervision. It would however be appropriate for him to be managed in a secure forensic facility such as the Bunya Unit attached to the Cumberland Hospital or in Morisset. The prison environment is not at all suitable for mentally ill offenders, they tend to be victimised and intimidated by other prisoners, frequently they do not receive medication or prompt medical care." 4 Dr Delaforce was of the opinion that a "significant problem" with the release of Mr Field from prison was his failure to take antipsychotic medication such that there was a risk of violent behaviour. However he concluded;

"It nevertheless remains, that ……on the balance of probabilities that safety of Mr Field or any member of the public will not be seriously endangered by Mr Field's release from prison to the community". 5 Section 39 of the Act relevantly provides:

39 Effect of finding and declaration of mental illness

(1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate.

(2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release. 6 The section permits the court to make orders including as to the place of detention of the person. In R v Line [2004] NSWSC 1148 Simpson J made orders allowing the person to be released from custody on certain specified conditions. In R v Xu [No 2] [2005] NSWSC 70 Kirby J made similar orders. 7 Of course any orders made by the Court do not finally dispose of the issue as to what arrangements should be made for the placement and treatment of Mr Field. The Act contains a scheme for the review of "forensic patients", which term includes persons such as Mr Field who have been found not guilty of an offence on the grounds of mental illness, by the Mental Health Tribunal. The Tribunal is required to review a person found not guilty on the grounds of mental illness as soon as practicable after such a finding has been made: s 41(1) of the Act. One of the Tribunal's functions is to make recommendations for the detention and treatment of a forensic patient to the relevant Minister: s 42(2) of the Act. 8 At the hearing before me a question was raised by the Crown Prosecutor as to the propriety of a court making orders for the placement and treatment of a person, such as Mr Field, in light of the statutory scheme of review contained in the Act. But it seems to me that the scheme of the Act contemplates that both the court and the Mental Health Tribunal will perform the function of determining how a forensic patient is to be dealt with under the Act and s 39 would have no work to do if the court simply refused to make orders authorised under that section on the basis that the Tribunal has the function and duty to make recommendations for the placement and treatment of the person to the Minister. Of course an order made by the court would operate according to its terms whereas the Tribunal can only make recommendations which the Minister may or may not adopt. Section 41(1) of the Act imposes a duty on the Tribunal to review a person found not guilty on the grounds of mental illness regardless of the orders made by the court under s 39. Therefore the Tribunal will review the position of Mr Field and make recommendations to the Minister even if I were to order his release on certain conditions. 9 On the issue of what orders I should now make the defence called evidence from Dr Giuffrida. He prepared a report dated 12 September 2007 containing an assessment of whether Mr Field could become a patient of the Bunya Unit under a conditional release order. At the time of the assessment Mr Field was under antipsychotic medication. His mental state was described as "the best it had been for years". He thought that he was "relatively well" and was in communication with his father by letter and telephone. 10 Dr Giuffrida's report contains the following:

It is first of all clear that Mr Field suffers from a severe treatment resistant chronic paranoid schizophrenia and had suffered sudden unheralded relapses of psychosis while on antipsychotic medication and which resulted in the stabbing death of his mother in April 2006. He further has a long and difficult history with serious alcohol dependence for which there has been no apparent treatment interventions including periods of detoxification or rehabilitation.

Mr Field continues to suffer from active symptoms of his psychosis including the belief that his mother is still alive and this has all been an elaborate pretence to keep him locked up in gaol and that custodial officers are conspiring to have an inmate harm or kill him.

There are therefore a number of significant risk factors in Mr Field's case such that he could not reasonably be conditionally released into the community safely. I agree with Dr Westmore that Mr Field requires long term psychiatric support and supervision and this must necessarily initially occur in a hospital situation.

The problem with any proposal to conditionally release Mr Field to the Bunya Forensic Unit at Cumberland Hospital is that conditional release implies just that, that is that he should not be detained and whilst in the past for example in the case of Debra Gay Line, she was conditionally released on a finding of being not guilty on the grounds of mental illness to the Bunya Forensic Unit but she had by that time recovered well and represented nil or negligible risk to the safety of the community.

Dr Giuffrida was not willing to accept Mr Field into the Bunya Unit as a forensic patient on conditional release because he was not in a position at the current time to be released into the community. 11 Dr Giuffrida prepared a further report dated 20 September 2007. He had reconsidered the position in light of the wording of s 39 and recommended that an order be made transferring Mr Field to the Bunya Unit once a bed became available with a condition that he be allowed escorted ground leave and escorted outside day leave. The report contains details of the security arrangements at the Unit which indicates that it is a medium secure establishment in which there is monitoring and control of the passage of patients into and out of the Unit. 12 On 6 December 2006 Dr Giuffrida gave evidence before me. He was unable to indicate when it was that a bed might be available for Mr Field. There are 24 beds within the Unit which is designed specifically for forensic patients. The Unit is designed to provide a plan of treatment and rehabilitation toward the release of the patient into the community. The patient moves through various stages of security in order to aid readjustment from secure custody to living within the community. Many of the patients find their way into the Unit as a result of a recommendation from the Mental Health Tribunal. 13 The order that Dr Giuffrida recommended was one that provided for detention at the Unit when a placement was available. Thereafter conditional release to the community would have to be by the Minister on advice from the Tribunal. However Mr Field could not be placed in the Unit unless I authorised release on escorted leave into the grounds and ultimately escorted leave into the community. If I did not make such an order then it is unlikely that the Minister would consider Mr Field for placement in the Unit within the next 18 months. 14 A further report from Dr Giuffrida dated 7 December 2007 was tendered to me when the matter was listed before me for further submissions on 7 December indicating that two orders similar to that sought from me have been made in the District Court. The Crown indicated that it had no objection to me making an order in similar terms. 15 I have considered all the material and it appears to me that I should make an order of the nature sought by Mr Field. Order 16 Pursuant to s 39(1) of the Mental Health (Criminal Procedure) Act 1990 I order that Norman Steven Field be detained in the custody of the Department of Corrective Services until he can be transferred to the Bunya Forensic Unit at the Cumberland Hospital when a place is available for him. On being transferred to that Unit, he is to be detained in the custody of that Unit provided that, if it is thought appropriate by the person in charge of that Unit, he may be released on escorted leave in the grounds of the Cumberland Hospital or escorted leave within the general community. I recommend that while he is detained in the custody of the Department of Corrective Services he be housed in a hospital or such other place where he can receive treatment for his mental illness. **********

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