State of New South Wales v Butterfield

Background

1. The defendant was born in July 1974 and is, chronologically, a mature woman. She has a long criminal history. That criminal history usually relates to unprovoked violence.
2. The defendant was charged with her first criminal offences in April 1996 at the age of 21. These offences included charges for multiple malicious damage, a number of drug related offences and unlawful entry.
3. The defendant was charged for an offence of violence, being assault police, in September 1996 and there were further offences of assault, assault occasioning actual bodily harm, resist arrest (aggravated by a weapon), malicious damage to property and unlawful possession of a knife in a public place, each of which was committed in the years that followed.
4. On 23 September 1997, the defendant committed an offence of malicious wounding against a taxi driver by stabbing him with a knife in his upper arm and lower chest. The catalyst for that attack was that the taxi driver had asked her to pay for her taxi fare. She was on bail for assault charges at the time of the offence. As a result of her conduct she was convicted of malicious damage, malicious wounding and evading a taxi fare and had imposed upon her a sentence of 12 months' imprisonment in relation to the malicious wounding charge.
5. On 5 November 2000, the defendant was sentenced to six years' imprisonment with a non-parole period of three years, for an offence of malicious wounding with intent to cause grievous bodily harm. This time, the defendant stabbed her neighbour five times with a kitchen knife. The catalyst for this offence was that the defendant was self-harming and the neighbour intervened to help her.
6. The index offence, the manslaughter, was committed on 7 May 2003, while the defendant was serving the sentence imposed on 5 November 2000. The victim had been stabbed 33 times to the head, torso and limbs with a kitchen knife in what was an unprovoked attack.

Mental State

1. The Court has before it a number of psychiatric and psychological reports and reports from community corrections officers. Each is to the same effect. The defendant has a number of significant disorders. It is appropriate to quote Dr Samuels' Report in the following terms: "Ms Butterfield has a long history of mood instability, anxiety and, from time to time, suffers from transient psychotic symptoms with persecutory features. She has attained some therapeutic benefit from various combinations of psychotropic medications at certain junctures. … At this point there is no evidence that she has consistently manifested symptoms of an Affective Anxiety of Psychotic Disorder that reaches the threshold of a sustained DSM-5 diagnosis. There is, however, consensus amongst the numerous psychiatrists and psychologists who have seen Ms Butterfield over the years that she suffers from Pervasive Personality Disorder of the Cluster B type with both anti-social and borderline features. In terms of DSM-V she certainly fulfils the majority of criteria for Borderline Personality Disorder in that she has: 2. A pattern of unstable and intense interpersonal relationships characterized by alternating between extremes of idealization and devaluation. 3. Identify disturbance: markedly and persistently unstable self image or sense of self. 4. Impulsivity in at least two areas that are potentially self-damaging. 5. Recurrent suicidal behaviour, gestures, or threats, or self-mutilating behaviour. 6. Affective instability due to a marked reactivity of mood. … 8. Inappropriate, intense anger or difficulty controlling anger (e.g., frequent displays of temper, constant anger, recurrent physical flights). 9. Transient, stress-related paranoid ideation or severe dissociative symptoms. She may experience chronic feelings of emptiness and there probably also are: 1. Frantic efforts to avoid real or imagined abandonment. Ms Butterfield also fulfils most of the criteria for Anti-social Personality Disorder (301.7) in that: A. There is a pervasive pattern of disregard for and violence of the rights of others occurring since age 15 years, as indicated by the following: 1. Failure to conform to social norms with respect to lawful behaviours as indicated by repeatedly performing acts that are grounds for arrest. … 3. Impulsivity or failure to plan ahead. 4. Irritability and aggressiveness, as indicated by repeated physical fights or assaults. 5. Reckless disregard for safety of self or others. 6. Consistent irresponsibility, as indicated by repeated failure to sustain consistent work, behaviour or honour financial obligations. 7. Lack of remorse, as indicated by being indifferent to or rationalizing having hurt, mistreated, or stolen from another. This is a chronic condition which seems to have become more entrenched over time. She is often prescribed psychotropic medications for symptom relief. These have included Valproate, Venlafaxine, Chlorpromazine and Olanzapine. She does sometimes require antipsychotic-type medications when her paranoid symptoms become intense …."
2. The other psychiatric and psychological reports are in or to the same effect. Unfortunately, the defendant is a troubled person.

Risk of Offending

1. Dr Samuels assesses Ms Butterfield's risk of committing further violent offences as high. He describes the static risk factors including a very long history of criminal offending and aggression, her numerous institutional infractions, her severe and pervasive Personality Disorder and her history of substance misuse.
2. In the Dynamic Risk Factors he has included her mood instability, difficulty coping with interpersonal interactions, responses from other people, access to weapons and substances and perceptions of being mistreated. Dr Samuels also includes the significant depression that is suffered more often than not and the suffering of paranoid ideation and homicidal thoughts and fantasies.
3. Dr Samuels assessed the Actuarial Risk Factors on the ratings of level of Service Inventory, Historical Clinical Risk and Psychopathy Checklist all of which suggest a profile in keeping with a high-offending risk. Dr Samuels concludes that the factors that he mentions, together with his clinical knowledge of Ms Butterfield over a number of years, suggests that she poses an ongoing risk of committing further serious violence.
4. The defendant is, in Dr Samuels' words, a person who "does represent an extreme type of offender". Dr Samuels expresses the view that in his long experience (of which the Court is aware) he has not seen many female offenders "with personality dysfunction as severe as Ms Butterfield". He concludes, after raising some doubt as to the various actuarial measures because she is at the extreme end of offending behaviour, with the following comment: "What is clear is that she [Ms Butterfield] has an enormous capacity for violence, she is impulsive, unpredictable and if she is in a setting where she is not contained, has access to substances, weapons, encounters people who are likely to upset or aggravate her, and she is suffering low mood, anxiety and paranoid thinking, this is a volatile mix which could lead to a serious act of violence."
5. Further, Dr Samuels takes the view that Ms Butterfield's comment that she does not feel safe to be released, coupled with her express thoughts and fantasies of killing or harming her step-mother and her father is concerning.
6. The only alternatives to the Court in a situation of an offender of this kind is the imposition of an Extended Supervision Order or a Continuing Detention Order. Plainly, in terms of the Act and the jurisdiction conferred on the Court, one or other of such orders would be appropriate. Dr Samuels expresses the opinion that an ESO is impractical in terms of managing the offender because her level of risk is too high for an ESO to be implemented (see p 33 of the Report).

The Court's Function

1. The Act empowers the Court on application to make a Continuing Detention Order extending the period of control of a high-risk violent offender beyond the original sentence of imprisonment. The primary object of the Act in relation to such offenders is to provide for the extended supervision and continuing detention of violent offenders who pose a high risk so as to ensure the safety and the protection of the community: see s 3(1) of the Act. Rehabilitation is also a purpose or object of the Act.
2. The Court must be aware and operate on the basis that the Act is intended to be protective and not punitive: Attorney-General for New South Wales v Gallagher [2006] NSWSC 420; Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5] and [44].
3. The relevant threshold requirements for a Continuing Detention Order are contained in s 13C of the Act, which is in the following terms: "13C Application for high risk violent offender continuing detention order (1) An application for a high risk violent offender continuing detention order may be made only in respect of: (a) a detained violent offender, or (b) a supervised violent offender. (2) A 'detained violent offender' is a violent offender who, when the application for a continuing detention order is made, is in custody in a correctional centre (referred to in this Part as the offender's 'current custody'): (a) while serving a sentence of imprisonment by way of full-time detention: (i) for a serious violence offence, or (ii) for an offence under section 12, or (iii) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i) or (ii), or (b) pursuant to an existing continuing detention order or emergency detention order. (3) An application in respect of a detained violent offender may not be made more than 6 months before: (a) the end of the offender's total sentence, or (b) the expiry of the existing continuing detention order or emergency detention order, as appropriate. (4) A 'supervised violent offender' is a violent offender the subject of an extended supervision order or an interim supervision order who: (a) has been found guilty of an offence under section 12 in respect of that order, or (b) because of altered circumstances, cannot be provided with adequate supervision under an extended supervision order or interim supervision order. (5) An application in respect of a supervised violent offender who is serving a sentence of imprisonment by way of full-time detention may not be made more than 6 months before the end of the person's total sentence. (6) The Supreme Court must not make a continuing detention order on an application referred to in subsection (4) (b) unless it is satisfied that circumstances have altered since the making of the extended supervision order or interim supervision order and those altered circumstances mean that adequate supervision of the offender cannot be provided under an extended supervision order or an interim supervision order."
4. The defendant is clearly a person who is in a correctional centre serving a sentence of imprisonment for a serious violence offence (s 13C of the Act) as that term is defined in s 5A(1) of the Act. An application can only be made during the course of a violent offender being in custody. That condition has been satisfied.
5. Apart from those procedural requirements, a Continuing Detention Order can only be made if an offender meets the definition of "high risk violent offender" (s 5E of the Act). On the evidence before the Court, it is clear that: 1. The defendant is over 18 years of age; 2. The defendant has been sentenced to imprisonment; 3. The sentence of imprisonment followed conviction for manslaughter which is, pursuant to s 5A of the Act, a serious violence offence; 4. The offence for which the defendant was convicted was constituted by conduct that caused the death of another person (s 5A(1)(a) of the Act); 5. The Court is satisfied to 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(2) of the Act); 6. I have considered the safety of the community, the reports received from the psychiatrists who have examined the defendant, the results of other assessments prepared by psychiatrists and psychologists, including psychometric testing, the reports of Corrective Services, which are before the Court, the defendant's criminal history, the views of the sentencing court at the time that sentence was passed and generally the other factors referred to in s 17(4) of the Act.
6. There is little doubt that the safety of the community and the degree to which the defendant poses a risk of violent offending is such that some order ought to be made. The only real issue is whether that order should be a Continuing Detention Order or an Extended Supervision Order and in either case for what duration should it be made. Of course, if an Extended Supervision Order were the outcome of the exercise of the Court's evaluation, the Court would need to turn its mind to the conditions under which the defendant would operate in such a supervision order.
7. From the foregoing, it is clear that I have formed the view 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 the subject of an order of some kind. While it is unnecessary (see s 5E(3) of the Act) for the Court to come to the view that the risk of the defendant committing a serious violence offence is more likely than not, nevertheless, that is the view the Court has formed. The combination of disorders and psychoses suffered by the defendant and her history of criminal violence leads inexorably to the view that if unsupervised this defendant would more likely than not commit a serious violence offence.
8. In forming the view that the defendant poses an unacceptable risk, I note what is said to be a different approach by members of the Court. One approach is that the term "unacceptable risk" ought be given its everyday meaning in the context of the provisions in which they appear and having regard to the objects of the Act: see State of New South Wales v Thomas [2011] NSWSC 307, amongst others.
9. The other manner in which "unacceptable risk" is determined is in the balancing exercise in which one or more judges of this Court have followed the approach of the Western Australian Court of Appeal: Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 176 A Crim R 110 and Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 198 A Crim R 149 at [27]. In this approach, the likelihood of committing a further serious violence offence, together with the gravity or likely gravity of such an offence, is balanced with the consequences of an order on the offender. (For a discussion on the two approaches, see Attorney General of New South Wales v McGuire [2015] NSWSC 152, per Hoeben CJ at CL at [41] - [43]. Hoeben CJ at CL, in his analysis, preferred the "everyday meaning" approach adopted by RA Hulme and McCallum JJ).
10. In my view, the difference between the two approaches is a difference without distinction. In each case there is a concentration on the terms in s 5E(2) of the Act. The term "unacceptable risk" in s 5E(2) of the Act must be given its ordinary everyday meaning in the context of the Act, achieving the harmonious goals and the objects of the Act itself: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355.
11. However, that is not the end of the process. The provisions of s 5E(2) define who may be made the subject of a high risk violent offender order and make the classification of the offender as a high risk violent offender a condition precedent to the making of an order under s 17.
12. Then, pursuant to the terms of s 13C of the Act, an application is made for such an order and, pursuant to the terms of s 17 of the Act, the Supreme Court may determine the application by making one of three determinations, namely: an Extended Supervision Order; a Continuing Detention Order; or by dismissing the application. It is at the point of the exercise of the Court's jurisdiction under s 17 and in determining the outcome of the application that the balancing exercise occurs.
13. In order to make an order for a continuing detention order, the Court must be satisfied that the defendant is a high risk violent offender under s 5E(2) of the Act but then, in having regard to those matters defined in s 17(4) of the Act, including any other matter the Court considers relevant, the Court is required to consider the effect of the order on the defendant.
14. In other words, in my view, both lines of authority are correct. The term "unacceptable risk" is construed in the way one ordinarily construes the terms in a statute and the effect of an order that may be sought on an offender is then balanced in relation to the risks to society in coming to a conclusion as to whether the application should be dismissed or one or other of the orders (either a supervision or detention order) ought be made.
15. The unacceptability of the risk posed by this defendant is undoubted. She has been variously described as suffering from personality disorders, borderline personality disorder, mixed borderline and antisocial disorders, borderline personality disorders with antisocial traits, transient psychotic episodes and she has a history and tendency to engage in violent, extremely dangerous conduct.
16. Dr Samuels opines, with which opinion I agree, that the conditions do not exist which would allow Ms Butterfield to be the subject of an Extended Supervision Order. In those circumstances and taking account of the effect of continuing detention on anybody, the following applies: 1. The conditions precedent to the issue of a Continuing Detention Order have been satisfied; 2. The Court ought exercise its jurisdiction to issue a Continuing Detention Order.
17. I turn then to the length of time for such an order. Ordinarily, I start from a preliminary view that the State should, without being oppressive, come back before the Court as early as it may be possible for there to be a substantial improvement in the defendant's behaviour. The maximum period for any Continuing Detention Order is five years. That is a significant period in anyone's life.
18. Ms Butterfield is currently housed at Silverwater in the Mum Shirl Unit, which is a specialised unit focused on therapeutic interventions and programs. Her continuing detention raises significant problems for Correctional Service staff. The complexity of the defendant's behavioural issues, particularly her ongoing risk of self-harm and risk of harm to others, presents an obvious challenge in her management.
19. The evidence before the Court establishes that the management of the defendant is based on a plan that firstly seeks to treat her humanely, secondly, seeks to meet adequately her medical and other needs and, thirdly, that she is provided, subject to the issues of harm to self and others, with opportunities to participate in activities and interact with others (see Exhibit H).
20. The defendant has been diagnosed with serious psychiatric disorders. Dr Samuels has expressed the opinion that it is possible, with further maturation and psychological treatment, for the defendant to experience changes to her underlying neurobiological processes. He has said: "Conceivably over time some of her more extreme behaviours, impulsivity and emotional dysregulation may ameliorate. It is possible that her inter-personal relationships with her father and step-mother could also change. There certainly is a possibility that in the course of the next five years her level of risk could reduce to a level where there is a possibility of a graded re-integration into the community."
21. Dr Samuels, when asked of the timing of any custodial situation and when it should be reviewed made this comment: "It is, in my view, unlikely that her clinical picture is going to change dramatically over the next five years unless there is some change in her psychiatric status or a medical condition of some sought intervenes."
22. I infer that the medical intervention of which Dr Samuels makes mention is that to which Dr O'Dea refers when he notes the possible therapeutic option of a trial of clozapine (an anti-psychotic medication indicated for the treatment of previously treatment-resistant schizophrenia), which Dr O'Dea suggests may be a reasonable course of action, but would require admission to a maximum secure psychiatric hospital (Exhibit C).
23. The PBDS Progress Report (Exhibit F) sets out the defendant's current behaviour and the continuing involvement of the Personality and Behavioural Disorder Services of Corrective Services in the management of the defendant's difficulties. It confirms the continuing problems and the increasing mental health symptoms (including auditory hallucinations) suffered by the defendant.
24. There is evidence that some of the defendant's threats of self-harm or engagement in self-harm are premeditated for the purpose of forcing officers to enter her cell and enabling her to increase her opportunities for violence against the officers. This is a sad, but disturbing set of facts. The prognosis for the defendant is at best guarded.
25. Ultimately, the discretion as to the period of the Continuing Detention Order has been based on the foregoing and on the Report of the psychologist at PBDS (Exhibit E), which is before the Court. The defendant is seen individually on a weekly basis for psychological contact. That psychological contact is in accordance with well-known and prescribed procedures.
26. Exhibit E, the Report of Ms Terry, makes clear that any progress will likely take significant time and remain dependent on her assessed risk to others, to herself and the problems associated with suicidal behaviour. In part, it will depend upon the defendant's compliance with medication and psychiatric care. At times, the Report suggests, the defendant has shown periods of significant progress, but her ongoing assessed high risk remains and it is difficult to provide a timeline or timeframe for treatment planning.
27. Most importantly, the opinion, expressed in Exhibit E, and the facts set out therein make clear that over the past 12 months the defendant's mental health appears to have deteriorated, with increasing periods of transient psychotic symptoms and a reduction in motivation to participate actively in psychological contact. The view on the psychologist is that the deterioration was consistent with and caused (at least in part) by the publishing of an article in the newspaper, which referred to the defendant and the high risk offenders legislation.
28. Essentially, the Progress Report from Ms Terry and the other psychologists and experts with whom Ms Terry is working (including the senior psychologist) expresses the opinion that the deterioration in the defendant's mental health symptoms, including the auditory hallucination, was exacerbated by the publicity given to her case, exacerbated by this very application and deteriorated each time the matter came before the Court.
29. In those circumstances, to have more frequent reports to the Court and shorter periods of detention will have the effect of making the defendant's condition deteriorate with each application. This is a result that should be avoided at all costs.
30. In summary, for the reasons summarised above, I made the orders I did on 3 November 2015.

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