State of New South Wales v Butterfield

Ms Butterfield's history

1. I referred briefly above ([3]) to Ms Butterfield's most serious offending. Her criminal history otherwise began in 1996 with various offences of malicious damage, unlawful entry, drug possession and resisting police. A table annexed to this judgment sets out all her offences of or relating to violence but details in relation to some of the more serious matters are provided below. State of NSW v Butterfield criminal history extract (17287, docx)
2. On 23 September 1997, she committed her first malicious wounding offence. She stabbed a taxi driver twice after he insisted she pay her fare. At the time she was on bail for an assault occasioning actual bodily harm. She was sentenced to 16 months imprisonment, with a non-parole period of 12 months, commencing on 27 April 1998.
3. On 5 November 2000, Ms Butterfield wounded her neighbour with intent to cause grievous bodily harm. This is a "serious violence offence" within the meaning of s 5A of the Act. Her neighbour saw that she was bleeding from self-inflicted cuts to her wrists and came to her assistance. Ms Butterfield became "extremely angry". She selected the largest available knife in her kitchen and stabbed her neighbour five times. A psychiatric report by Dr Michael Giuffrida included that Ms Butterfield had the most seriously disturbed borderline personality disorder that he had ever come across. A sentence of 6 years, with a non-parole period of 3 years, was imposed.
4. In 2002, while in custody, Ms Butterfield committed two further assaults - one of which caused actual bodily harm.
5. In 2003, she was charged with murder in respect of an incident at Emu Plains Correctional Centre. The victim was a fellow inmate and erstwhile friend with whom she shared a unit. It included a kitchen which provided Ms Butterfield access to knives. Using a carving knife, she stabbed her friend 33 times. Some of the wounds were so forceful they penetrated the victim's entire body.
6. The Crown accepted a plea of guilty to manslaughter. The sentencing judge, Newman AJ, found it "disturbing" that "there was absolutely nothing to suggest that the victim had done anything to provoke the prisoner into carrying out an attack". [1] Tragically, the attack occurred after Ms Butterfield had been downgraded to minimum security and had voiced her concern that she might harm someone. [2]
7. Dr William Lucas, Dr Olav Nielssen and Dr Michael Giuffrida agreed in their reports that Ms Butterfield suffered from a severe personality disorder with borderline features and had "extremely guarded" hopes of rehabilitation. [3] Newman AJ imposed a sentence of 12 years, with a non-parole period of 7 years.
8. Since then, Ms Butterfield has on eight occasions been charged with assaulting other inmates and correctional staff. Her behaviour has ranged from throwing apples and urine at guards to attacking an inmate with a sharpened toothbrush. [4] Her inmate profile is replete with further incidents of her making threats of violence or assaulting people. It also reveals her many incidents of self-harm.
9. In summary, Ms Butterfield's criminal and custodial history comprises many acts of sudden and unprovoked violence. Ms Butterfield has used any available weapon to cause harm to herself or others. There is no doubt that this is all largely attributable to her enduring personality order. There is no question that she continues to pose an unacceptable risk of harming herself and members of the community, including staff, inmates and patients of custodial and medical facilities.

The 2015 CDO

1. On 3 November 2015, Rothman J granted the State's application for a five-year CDO. His Honour published reasons on 4 July 2016. He found that Ms Butterfield had a long history of unprovoked violence. [5]
2. Ms Butterfield refused to be interviewed by the two court-appointed psychiatrists, Dr Anthony Samuels and Dr Jeremy O'Dea. They agreed in their reports that there was no evidence of a psychotic disorder, but rather Ms Butterfield suffered from a pervasive personality disorder (with both borderline and anti-social personality disorder features). [6] Rothman J noted [7] that Dr Samuels said he had not seen many female offenders with personality dysfunction as severe as Ms Butterfield. Dr Samuels also wrote: [8] "What is clear is that she 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."
3. Dr O'Dea considered an argument that Ms Butterfield's "ongoing cluster of symptoms and signs may be better understood as a major psychiatric illness, such as a Major Mood Disorder and/or Schizophrenic illness (rather than, or indeed, in addition to, a severe personality disorder". However, he did not appear to favour that view because Ms Butterfield's symptoms and signs did not respond to treatment, medications and admissions to hospitals. [9]
4. Nonetheless, he considered she could be regarded as having a "mental illness" within the definition of s 4 and be a "mentally ill person" within the terms of s 14 of the Mental Health Act. He opined that Ms Butterfield required long-term treatment and may not become suitable for release within five years. He suggested admission to a secure psychiatric hospital, such as the Forensic Hospital, under a CDO. [10] As will be seen, the legislation does not permit that course.
5. Dr Samuels was of the view that there was no definitive answer to the question of how long a CDO should last. He wrote: "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." [11]
6. A risk assessment report dated 9 February 2015 was prepared by Ms Naomi Prince. She found that Ms Butterfield presented a high risk of further violent offending, chiefly because of her personality disorder. [12] Ms Prince commented that Ms Butterfield's mental health had not been treated adequately in custody, such that Ms Butterfield herself did not want to be let out for fear of harming someone. [13] Ms Prince, while noting how important it would be to assist Ms Butterfield with self-managing her behaviour, expressed doubt that she will ever be able to self-manage. [14]
7. Dr Samson Roberts, consultant forensic psychiatrist, provided a report dated 10 May 2015 to assist in consideration whether the CDO application should be brought. He considered that Ms Butterfield's condition was reflective of a Personality Disorder with features characteristic of a Mixed Borderline and Antisocial Personality Disorder. He considered the reporting of psychotic symptomatology but noted that the overwhelming features remined those of a Personality Disorder. He also noted "the overwhelming impression of those clinicians who have undertaken face-to-fact assessments is that Ms Butterfield is not suffering from a Schizophrenic illness or a Major Mood Disorder beyond the inevitable instability of mood attributable to her personality pathology". [15]
8. Rothman J concluded that Ms Butterfield posed an unacceptable risk of further violent offending, and that the risk could not be managed under an ESO. In determining the length, his Honour was particularly concerned that shorter periods of detention would be deleterious to Ms Butterfield's mental health, which had deteriorated because of the application and surrounding media attention. [16] A longer order would give her more time for treatment between applications.

Management of Ms Butterfield under the 2015 CDO

1. Ms Butterfield has spent her time in custody at Silverwater Women's Correctional Centre as a Category 4 (maximum security) inmate, [17] with occasional periods in hospital for treatment following self-harm incidents. She has been housed at the Mum Shirl Unit (MSU), which caters to female inmates with mental illnesses, personality disorders and who are at risk of self-harm. [18]
2. On 2 June 2020, Ms Butterfield was transferred to the Willet West Transitional Unit after three months with no self-harming. [19] This is a less secure unit which allowed Ms Butterfield to be in a cell without cameras and to engage in work as a sweeper. On 29 June 2020, however, she self-harmed and reported hearing "voices" telling her to do so. [20] She was moved to the Mental Health Screening Unit (MHSU) for inmates with acute mental health issues. Her MHSU cell has two cameras and a multi-disciplinary team on standby to assist with her treatment. At present, she remains at the MHSU. [21]
3. I have been provided with various incident reports from January 2019 through to July 2020. [22] These confirm that Ms Butterfield's recent time in custody has been marked by violence and self-harm, as well as threats of the same. The incidents of violence include attacking a doctor who was attempting to administer local anaesthetic in treating a self-inflicted leg wound, attacking correctional officers with hot tea, her colostomy bag, a drip pole, a walking crutch, hot water and a foil tray of food. It has been necessary for officers to intervene and physically restrain her on some of these occasions. She has also attacked an inmate by throwing hot water. On one of those occasions she said, "I am going to kill again, I will kill when I get out", but officers talked her down.
4. On 19 July 2020, while in a room at Concord Hospital for treatment she told officers she needed to use the bathroom. When her ankle shackles were removed, she lunged at an officer and had to be physically restrained. [23] She later disclosed that she intended to take the officer's firearm and use it to kill herself. [24]
5. As recently as 8 November 2020, Ms Butterfield suddenly lunged towards the neck of a nurse who was taking her blood and had to be restrained. [25]
6. She has not completed any group-based treatment programs due to her violent behaviour. She was due to start the EQUIPS Aggression program on 3 October 2019 but was segregated on that date after attacking a staff member. [26] She remains suitable to restart EQUIPS if it is available in her future placement. [27]

Improvement over the past 5 years

1. From 2016 to late 2018, Ms Butterfield's condition was relatively stable. [28] She appears to have deteriorated in the lead-up to the review of her CDO, resulting in a particularly volatile number of months in 2019 (some incidents have been referred to above). [29]
2. In September 2019, Ms Butterfield was started on Clozapine. [30] This is a particularly potent anti-psychotic medication for treatment-resistant conditions that can only be prescribed if a patient fails to respond to two or three other medications. [31] There was a period of instability while the dosages were adjusted and Ms Butterfield came off other prescriptions. [32] However, this now appears to have been partially successful - Ms Butterfield reported to her treating doctors that while the voices had not been eradicated they had at least faded into the background. [33]
3. Ms Butterfield participated in one-on-one counselling with Senior Psychologist Sang Cheung to learn how to self-regulate her aggression. [34] She appears to have improved; she can warn staff when she has intrusive thoughts of harming them or herself, and she sometimes seeks to remove self-harm implements from her cell before she used them. [35] On one occasion in June 2020, she advised correctional officers that she had thought of self-harm in the night but had resisted the voices and offered to surrender any sharp objects if required. [36] A month later, she advised a staff member that she had contemplated attacking him and a nurse that morning. [37] Dr Natasha Rae, psychiatrist, has reported that the Clozapine has enabled Ms Butterfield to "verbalise her distress", which has made it easier to treat her. [38]

The present application

1. As noted above, a key issue in the present application is whether Ms Butterfield should be admitted to the Forensic Hospital or remain in custody.
2. When a CDO is made, a warrant must issue which authorises the person to be kept in a correctional centre, s 20 of the Act. The Forensic Hospital is not declared to be a "correctional centre" pursuant to s 225 of the Crimes (Administration of Sentences) Act 1999 (NSW). It is a declared "mental health facility" for the purposes of the Mental Health Act. For this reason, if Ms Butterfield is to be the subject of a CDO, she could not be placed at the Forensic Hospital. The only mechanism of such a placement being made would be if there was no CDO in force, and she was found to be a "mentally ill person", as defined in s 14 of the Mental Health Act, and could thereby be involuntarily admitted and detained as authorised by s 12 of that Act.
3. The Mental Health (Forensic Provisions) Act 1990 (NSW) provides (in Pt 5 Div 3) for the transfer of a person "imprisoned" in a correctional centre to a mental health facility. There is also provision for the person to be transferred back to a correctional centre. Such transfers are ordered by the Secretary of the Ministry of Health. A person who is the subject of a transfer from a correctional centre to a mental health facility while serving a sentence of imprisonment or while on remand is known as a "correctional patient" for the time they are in the mental health facility. There is no provision for the transfer of persons who have been committed to a correctional centre pursuant to a CDO. None of the provisions of the Mental Health (Forensic Provisions) Act relating to "correctional patients" are apt to apply to a person the subject of a detention order. [39] The orders that might be made that would enable Ms Butterfield to go to the Forensic Hospital is something to which I shall return.
4. Some of the evidence provided at the hearing by the various experts concerned the security of the Forensic Hospital. It is the most secure psychiatric facility in the state. [40] It relies on "therapeutic security", whereby a psychiatric and psychological team build relationships with and learn the triggers of patients so that violence can be pre-empted and prevented or deescalated. [41] There are no cameras but a high nursing staff ratio (1:1 or 2:1). [42] The staff are trained in restraint techniques and equipped with "therapeutic restraint" equipment, which includes adjustable handcuffs that allow for participation in group activities while restricting the ability to assault. [43] Seclusion is available, but only as a last resort to manage short-term risks and for the most limited time possible. [44] (Further general information about the Forensic Hospital (although not specifically the women's ward, the Austinmer unit) and other mental health facilities may be found in the judgment of Johnson J in State of New South Wales v Windle (No 3) [2017] NSWSC 727 at [92]-[95].)
5. Dr Tobias Mackinnon, co-director of Forensic Mental Health at Justice Health and acting clinical director for the Community Forensic Mental Health Service (CFMHS), was confident that the Forensic Hospital could manage Ms Butterfield's risks and had in fact managed similar patients in the past. [45] He would be comforted by the hospital having the option of returning Ms Butterfield to custody, if necessary. [46] (Of course, that would not be possible on the present state of the legislation as it would require a CDO to be in force; something which would prevent admission to the Forensic Hospital in the first place.)
6. In custody, by comparison, Ms Butterfield is handcuffed during escorts, guarded by two officers and is kept in a camera-monitored cell. [47] Her access to objects of self-harm (sharps; hair dye etc) can be limited. [48] As one of the court-appointed experts, Dr Richard Furst, put it, one is a gaol with medical staff, the other is a hospital without security. [49]
7. In custody, Ms Butterfield's treatment team is more reliant on medication because they do not have the options of the Forensic Hospital. [50]
8. The safety of the community includes the safety of all of Ms Butterfield's prospective treating staff and fellow patients at the Forensic Hospital. There is a very real issue as to whether the level of risk she poses is too great a risk for the Forensic Hospital to manage. Dr Furst's evidence provokes concern about this aspect.

The expert evidence generally

1. There is a significant dispute in the expert evidence as to whether Ms Butterfield is schizophrenic. There is no dispute that she has antisocial and borderline personality disorders, but these are not mental illnesses. Under s 31 of the Mental Health Act, mentally disordered persons can only be detained in a mental health facility for a maximum of three days, three times a month. Schizophrenia is a mental illness that would enable continual detention in the Forensic Hospital. I am wary of making an ESO that would have the effect of requiring Ms Butterfield to be discharged into the community should it be determined that she is not mentally ill.
2. Dr Richard Parker, psychologist, prepared a Risk Assessment Report dated 7 May 2020. He interviewed Ms Butterfield and reviewed her previous reports and case notes. Ms Butterfield's mental health issues have occupied much of her time in custody, leaving less opportunity for criminogenic intervention. [51] He found that her offending arose from "a pattern of thinking, fuelled by chronic shame, which was brought on by a number of sexual assaults and her perception of injustices in the legal system". [52] She regulates her emotions by harming others and herself.
3. Dr Parker concluded that Ms Butterfield posed a high risk of further violent offending if released into community. He noted her recent schizophrenia diagnosis may allow for placement in a mental health facility. [53]
4. There are several reports and letters from Dr Callum Smith, consultant forensic psychiatrist, which were prepared in advance of her various court appearances. Dr Smith was Ms Butterfield's treating psychiatrist at Silverwater until he transferred to the Forensic Hospital in August 2020. In the most recent of his reports, dated 21 January 2020 he indicated that she suffers from schizophrenia. That report was supplementary to one dated 27 November 2019. Dr Smith found that Ms Butterfield was being much more open than she had been previously about her psychotic symptoms, including that she had heard voices for 15 years; they tell her to harm herself or to harm staff members; and she hears them through the prison loudspeakers. At times they are overwhelming, though the Clozapine has helped dull them. [54]
5. Dr Natasha Rae is Deputy Clinical Director of Custodial Mental Health within the Justice Health and Forensic Mental Health Network. She was part of Ms Butterfield's treatment team when she worked at Silverwater from about 2012 until 2015 and then against since taking up her current position in 2018. In the latter role, she was initially in a supervisory role with Dr Smith and has been Ms Butterfield's primary treating psychiatrist since Dr Smith's transfer to the Forensic Hospital in August 2020. [55]
6. Dr Rae provided a report of 31 July 2020 [56] as well as giving evidence at the hearing. She reported that Ms Butterfield heard voices but, following the Clozapine prescription, was better able to vocalise her emotions. Her condition started worsening from May 2020 due to the upcoming review of her CDO. [57]
7. Dr Rae was of the opinion that Ms Butterfield had, over the past 20 years, maximised the psychiatric and psychological benefits of custody. [58] As to the prospect of a further CDO being made (as opposed to Ms Butterfield being transferred to the Forensic Hospital) she said in her evidence: [59] "My concern is that if she were to remain in custody in the status quo, where she's very isolated, she has no opportunity, very minimum opportunities for social integration, and very limited access to therapeutic activities, that in the best case scenario her risk would remain unchanged and the worst case scenario it would be so catastrophic for her in terms of losing all hope that her risk may, particularly to herself, but also to others, may in fact increase."
8. As to the diagnosis of schizophrenia, Dr Rae found it difficult to put Ms Butterfield's symptoms in any particular box; she was just dealing with Ms Butterfield holistically as she presented. She neither agreed nor disagreed with a proposition that Ms Butterfield's symptoms were not the result of an underlying mental illness but were a manifestation of her severe personality disorder. [60]
9. Dr Furst, consultant forensic psychiatrist, provided a report dated 11 November 2020 and gave evidence. He had been Ms Butterfield's treating psychiatrist between 2009 and 2011. He represented a minority opinion among the array of experts who gave evidence, but it was expressed in quite serious and concerned tones.
10. Dr Furst described Dr Smith's schizophrenia diagnosis as "highly questionable and likely spurious". [61] He was concerned by the high level of medication being administered to Ms Butterfield based on this diagnosis. He was worried that the diagnosis was founded on Ms Butterfield's self-reports of voices, which were inconsistent. [62] Ms Butterfield claimed to be hearing voices continually - sometimes one and sometimes multiple voices. Dr Furst gave evidence that schizophrenics experience voices in "sporadic episodes". If someone was hearing voices continually, Dr Furst said, you would expect them to present as much more debilitated than Ms Butterfield. [63] In addition, the voices would have been treated by the Clozapine, which is itself only prescribed as a third or fourth resort after other anti-psychotics have failed. [64] As Dr Furst put it: "Once someone starts Clozapine, the average patient responds to a dose of 300 to 500 milligrams of Clozapine and gets fairly complete remission. She is on double that amount and extra anti-psychotics and extra anti-psychotropics with apparently no response, because she is making it up." [65]
11. Dr Furst was of the view that Ms Butterfield is malingering; making up symptoms for legal gain. She is pretending to have a mental illness because she wants to go to the Forensic Hospital. [66]
12. Dr Furst concluded that Ms Butterfield was "one of the most dangerous women in Australia". [67] It was "almost certain" that she will self-harm or harm another person. [68] He was frustrated by the two years Ms Butterfield had spent in his care as a transferred correctional patient at Long Bay Hospital, which did not result in any therapeutic success. [69] He warned that admitting Ms Butterfield to the Forensic Hospital would "be a free for all in terms of access to potential weapons and ways of harming people in that unit. It really would." [70] It would be "unsafe" and "diagnostically inappropriate". [71] Dr Furst was particularly concerned about the risk to other patients. [72]
13. Dr Yolisha Singh, forensic psychiatrist, was the other court-appointed expert. She disagreed with Dr Furst in her report of 10 November 2020 and in her concurrent evidence. She was of the opinion that Ms Butterfield is schizophrenic and also has post-traumatic stress disorder, borderline personality disorder and alcohol use disorder. [73] She reported that the psychotic symptoms may have been masked by the personality disorder. [74] She assessed Ms Butterfield as being at a high risk of future violence, particularly given her resistance to treatment (through a lack of insight, variable compliance and aggression). [75] That risk may be reduced if she responds well to treatment in the Forensic Hospital. [76]
14. As to the Clozapine, Dr Singh noted that there had been some reduction in some of Ms Butterfield's symptoms reported in the last few months and that it was not unheard of for people to resist Clozapine. [77] Dr Singh pointed to an incident in 2014 when Ms Butterfield was seen responding to voices as evidence beyond the self-reports. [78] Even without the schizophrenia diagnosis, Dr Singh believed that Ms Butterfield would be found mentally ill under the Mental Health Act because of her cluster of symptoms. [79]
15. Dr Singh was also convinced that the Forensic Hospital (where she works in the adolescent intervention unit) could manage Ms Butterfield's risk of violence. [80]
16. Dr Mackinnon and Dr Gabrielle Gibson, forensic psychologist, prepared a "Problem Behaviour Management Report" on 21 October 2020 to assess Ms Butterfield's risk management needs. They noted the limited opportunities in custody for social work, occupational therapy and diversional therapy. They expect her mental health to deteriorate if she remains in custody. [81] Although they were concerned by the environmental changes and disruption of relationships that would occur if Ms Butterfield was transferred to the Forensic Hospital, they opined that her own preference for the transfer and the experience of Forensic Hospital staff might offset the risks. [82] They concluded that Ms Butterfield would only progress in her rehabilitation and reintegration if transferred to the Forensic Hospital. [83]
17. Dr Mackinnon, in a letter dated 24 November 2020, [84] wrote that it was "likely" that Ms Butterfield would be found to be suffering from a mental illness such that she could be "scheduled" under the Mental Health Act. In evidence, he agreed that if Dr Furst was right and there was no schizophrenia, then she could not be detained in the Forensic Hospital. [85]

Submissions

1. The State submitted that Ms Butterfield is not suitable for an ESO because there is no evidentiary foundation for it and there are no ESO conditions that could address her high risk of further violence. The State relied on Dr Furst's opinion that it would be too dangerous for both staff and other patients to admit Ms Butterfield to the Forensic Hospital. The State noted that Ms Butterfield has made some progress and there have been periods of stability over the past two years. This was suggested to demonstrate that a further CDO would assist Ms Butterfield to rehabilitate (per s 3(2) of the Act).
2. The State was adamant that Ms Butterfield should not go into the community. (Ms Butterfield agreed with this.) The State submitted that there is a risk that, if an ESO was made, Ms Butterfield might end up in the community (either during the period it would take to assess her suitability for the Forensic Hospital, or if she were to be discharged upon an assessment that she was not, or no longer, a mentally ill person). The State maintained its application for a five-year CDO; also submitting that anything less than three is not open on the evidence.
3. Senior counsel for Ms Butterfield strongly opposed a further five-year CDO, even while conceding that she "presents as a high risk of committing a further serious violence offence if released into the community". [86] He noted that no one is suggesting that Ms Butterfield should go into the community - rather, the question is the mechanism of her transfer to the Forensic Hospital. He submitted that there is reason to be optimistic about the rehabilitative progress she might make in the Hospital. On the evidence of Dr Mackinnon and Dr Singh, it was submitted that it was highly likely she would be found to be mentally ill, notwithstanding Dr Furst's opinion.
4. Counsel submitted that I should make an ESO on the expectation that Ms Butterfield would be transferred to the Forensic Hospital and the ESO would be suspended until her discharge, some years into the future. Counsel pointed to a similar transfer having been facilitated by the orders made in State of NSW v Windle (No 3).

Determination

1. Neither party contended for anything other than what is indicated above. [87]
2. There is some awkwardness, or artificiality, in Ms Butterfield's position. The State has applied for a CDO. Both parties agree that the preconditions for making a CDO are established. That is a matter for the Court's judgment, but the reality is that the evidence is all one way. No-one has suggested that an ESO is appropriate now, or in the foreseeable future. Yet, that is what the Court is being asked to order.
3. Senior counsel for Ms Butterfield relied upon State of New South Wales v Windle (No 3) where Johnson J fashioned orders for a CDO but in terms that contemplated it being revoked and replaced by an ESO as soon as a place in the Forensic Hospital became available. That is in fact what occurred: State of New South Wales v Windle (No 4) [2017] NSWSC 1155. Mr Windle was being held in the Long Bay Hospital. There was no place presently available in the Forensic Hospital and there was no community placement option either. The experts were unanimous that he was a mentally ill person and that there would be no doubt about him being admitted to and kept at the Forensic Hospital. What the Court is being asked to do in the present case is somewhat different; and the facts pertaining to Mr Windle are also somewhat different.
4. Admission to the Forensic Hospital presently depends upon a determination being made under s 12 of the Mental Health Act that Ms Butterfield should be involuntarily admitted and detained on the basis she is a "mentally ill person" and "no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person". If the superintendent of the facility, or his/her delegate, is not of that opinion, the detention of the person must be refused, or discontinued (s 12(2)).
5. It would not be enough if Ms Butterfield was found to be a "mentally disordered person" (defined in s 15). That would mean that pursuant to s 31 of the Mental Health Act she could not be involuntarily detained for longer than periods of 3 days and no more than 3 times per month. The practical effect of this is that if she is a mentally ill person there would be scope to involuntarily detain her. If not, the universally held opinion would be that she is a mentally disordered person and therefore could not be detained indefinitely. In that case, the ESO proposed by senior counsel for Ms Butterfield, would be the only measure protecting the safety of the community. Nobody suggests that an ESO would adequately protect the community now or in the foreseeable future.
6. There is controversy about whether Ms Butterfield suffers from schizophrenia. Some doctors in recent times have formed that opinion: Dr Rae and Dr Smith, with support from Dr Singh and Dr Parker. Dr Singh also said that regardless of schizophrenia, Ms Butterfield would otherwise satisfy the concepts of "mental illness" and "mentally ill person" in ss 4 and 14 of the Mental Health Act. [88]
7. Dr Furst takes a different view and his opinion is not one that can be lightly rejected. It is one that accords with other doctors who have considered Ms Butterfield's case in the past: Drs Samuels, O'Dea, Roberts, Lucas, Nielssen and Giuffrida. Dr O'Dea considered what is in effect the view of the current prevailing majority but did not favour it.
8. Mr Johnston SC sought to counter the concern about Ms Butterfield not being admitted to the Forensic Hospital (or admitted but later discharged). He submitted there was "another level of protection" provided in the Act by way of the emergency detention order provisions. It was also suggested that if there were to be any delay in a place being available at the Forensic Hospital, a short CDO could be made as was done in State of New South Wales v Windle (No 3).
9. Recourse to the emergency detention provisions would involve the State bringing an application under s 18CA for an order under s 18CB: [89] 18CB Making of emergency detention orders (1) The Supreme Court may make an emergency detention order if it appears to the Court that the matters alleged in support of the application for the order would, if proved, establish that because of altered circumstances, the offender poses an unacceptable and imminent risk of committing a serious offence if the emergency detention order is not made. (2) The Supreme Court is not to make more than one emergency detention order in respect of the same occasion of altered circumstances.
10. The difficulty with this proposal is that the power to make an emergency detention order is predicated upon there being "altered circumstances" that have created a situation of "unacceptable and imminent risk of committing a serious offence". That is inapt in circumstances where it can be said now with virtual certainty that Ms Butterfield poses such a risk if she is not detained. Arguably, the only alteration of circumstances would be that she would not be "detained" by the alternative means contemplated, namely as an involuntary patient at the Forensic Hospital. I say "arguably" because the prospect of Ms Butterfield being found not to be a "mentally ill person" for the purposes of involuntary detention under the Mental Health Act is not entirely unforeseeable.
11. In short, the availability of emergency detention orders does not appear to provide the "protection" against the risk that Ms Butterfield might be discharged into the community that was suggested.
12. The level of risk that Ms Butterfield poses is substantial. Her past conduct indicates the risk she poses to the community has been realised with extremely serious consequences. There is little to indicate that this risk has dissipated to any significant degree in more recent years, or that it is likely to do so for the foreseeable future. Nothing appears to have changed in relation to Ms Butterfield's predilection for sharp objects when available. Her outbursts of violence can be unpredictable in that they are not responsive to anything that is rationally and objectively provocative. They can be constituted by acts which have occurred suddenly with no or little forethought of the consequences. They are indicative of an inability to restrain or regulate her behaviour. Without intervention and restraint being immediately available, the consequences can be extremely serious, perhaps even fatal.
13. While the consequences of Ms Butterfield's risk being realised have been relatively minor in recent times when compared to events in 1997, 2000 and 2003, that has largely been a result of the nature of her confinement. Some of the events may well have ended with disastrous outcomes if not for the timely intervention of trained staff who have been nearby.
14. I accept that the proposal that Ms Butterfield being admitted to the Forensic Hospital might be beneficial from a clinical perspective; that is, where the focus is more upon treatment. However, that is not to say that currently she is just kept locked up and is not receiving any treatment. There is force in the submission made by counsel for the State that the CDO that has just expired, and the new CDO that it now asks to be made, are not just matters of "containment for containment's sake". There are reports that describe the circumstances of her recent confinement and treatment that confirm this [90] and I have alluded to other evidence, such as that of Dr Rae.
15. During the course of the hearing, the Court was informed that the presently unavailable option of transferring a person who is the subject of an interim or continuing detention order from a correctional centre to a mental health facility is likely to change in the near future. The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) received assent on 23 June 2020 and is to commence on a day to be proclaimed. The best information available is that this is likely to be in "early 2021".
16. It would not seem appropriate to assume the certainty of the new Act coming into force, but it should be recognised as a likely prospect. Counsel for both parties as well as some of the experts who gave evidence have the understanding that the new legislation will allow for the transfer of someone held under an interim or continuing detention order from a correctional centre to a mental health facility (and back). The practical effect of this is said to be that if a CDO is made as sought by the State, Ms Butterfield may be transferred to the Forensic Hospital by administrative action. The likelihood of that occurring, assuming the legislation does allow for it, is beset by several issues including whether there is acceptance that it is an appropriate thing to do. I propose to proceed on the basis that it cannot be assured.
17. I propose to accept the opinion of Dr Furst, supported as it is in the way I have described. In other words, I do not accept that making orders that would facilitate Ms Butterfield being able to seek admission to the Forensic Hospital (at least under the current legislation) sufficiently recognises the paramount consideration of community safety. I accept that the alternative opinions favouring transfer to the Forensic Hospital are well-considered and have been expressed by highly respected professionals. It is understandable that an approach that might offer the best hope for a positive therapeutic outcome would be attractive. However, I propose to make a continuing detention order.
18. The term of the order will not be for the full five years sought by the State. That is too long, having regard to the fact Ms Butterfield has already been subject to a five-year order. While Dr Furst favoured a period of five years, Dr Singh spoke in terms of an order of at least three years. [91] If it should eventuate that there can be a transfer to the Forensic Hospital, I note Dr Rae spoke of treatment at that facility for a period of two to five years. [92]
19. The determination of the length of the order has been guided by the expert assessment. Another consideration is something that was observed during the hearing which is not determinative, but not irrelevant. It is that a person who is the subject of a relatively long CDO should have a practical and realistic possibility of making an application to the Court at some stage during its term to vary or revoke the order. This is permitted by s 19 of the Act and may be appropriate if circumstances have changed so that a reduction of the term, or revocation entirely, has become appropriate. However, persons who are the subject of such orders are not best placed to assess whether making such an application has become appropriate.
20. There is requirement in s 19(2) of the Act for the Commissioner of Corrective Services to provide reports yearly (at least) to the Attorney General. Such reports are to include whether the Commissioner considers the continuation of the CDO is necessary and appropriate: s 19(3). There is, however, no requirement for such reports to be provided to the detainee's legal representative (who will usually have been the Legal Aid Commission of New South Wales). I note there is a practical provision in s 18CC(2)(a) for the Legal Aid Commission to be notified of emergency detention applications. It is difficult to understand why there could not be a similar requirement for it to be provided with the annual reports that are sent to the Attorney General pursuant to s 19(2). The need for this is clearly practical; persons who are subject to continuing detention orders are often unlikely to be people who have a ready facility for accessing legal advice because of personal issues and/or the circumstances of their custodial confinement.
21. I propose to make an order for a period of three years.

Orders

1. The following orders are made: 1. Rebecca Butterfield is subject to a continuing detention order pursuant to sections 5C and 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 for a period of three years commencing today. 2. A warrant for Ms Butterfield's committal to a correctional centre for the period of the continuing detention order is to issue.

Endnotes

1. R v Rebecca Butterfield [2004] NSWSC 550, [7] (at JM-1 Tab 28 p 274).
2. Prince report [142] (JM-1 Tab 24)
3. R v Rebecca Butterfield [25].
4. Throwing apples - 3 October 2019 - JM-1 tab 31; Throwing urine - 18 January 2007 at JM-1 tab 35; Toothbrush attack - 6 September 2012 - JM1 tab 32
5. State of NSW v Butterfield [6].
6. State of NSW v Butterfield [12].
7. State of NSW v Butterfield [17]
8. Dr Samuels report 12 Oct 2015, p31 (JM-1 tab 23)
9. Dr O'Dea report 29 Oct 2015 (JM-1 Tab 22). I note that the written submissions for the plaintiff include (at [82]) a misapprehension of Dr O'Dea's opinion in [36] of his report.
10. Dr O'Dea report [37]-[43]
11. Dr Samuels report at p 32; (JM-1 Tab 23)
12. Prince report [141] (JM-1 Tab 24)
13. Prince report [140], [142]
14. Prince report [143]-[144]
15. Dr Roberts report 10 May 2015 at pp 12-13 (JB-1 Tab 37)
16. State of NSW v Butterfield [46]-[48].
17. Inmate profile history pp 3, 11 (JM-1 Tab 2)
18. Cheung report p 1 (JM-1 Tab 8).
19. PBDS Report p 3 (JM-1 Tab 10).
20. Cheung report p2 (JM-1 tab 8).
21. Tcpt 5.15 (Rae).
22. JM-1 Tab 39 (2nd volume).
23. Incident reports at JM-1 Tab 39.
24. Snr Ass Superintendent Christoff report p3 (JM-1 tab 7)
25. JM Affidavit of 20 November 2020, Annexure B.
26. Parker RAR [56] (JM-1 Tab 4)
27. PBDS report p5 (JM-1 Tab 10)
28. Smith 27/3/19 letter p 2 (JM-1 Tab 16)
29. PBDS Report pp2-3 (JM-1 Tab 10)
30. PBDS Report p4 (JM-1 Tab 10)
31. Tcpt 27.19
32. PBDS p4
33. PBDS p4; JH Record 9.12.19 (JM-1 Tab 12); JH Record 4.12.19 p2 (JM-1 Tab 13)
34. PBDS p4
35. PBDS p3
36. OIMS 29.06.20 (JM-1 Tab 40 p 460).
37. OIMS 23.07.20 (JM-1 Tab 40 p 463)
38. Dr Rae 31.7.20 (JM-1 Tab 6 p 98).
39. For example, s 60(2) provides, in effect, that time spent in a mental health facility by a correctional patient counts towards the sentence of imprisonment the person is required to serve. There is no similar provision that such time counts towards the period of a detention order under the Crimes (High Risk Offenders) Act.
40. Tcpt 9.14
41. Tcpt 9.36
42. Tcpt 16.27
43. Tcpt 15.45-16.23, 36.40, 55.27
44. Tcpt 16.37, 56.9, 58.47
45. Tcpt 56.32
46. Tcpt 51.30
47. MSU Transition Management Plan (JM-1 tab9)
48. MSU Transition Management Plan (JM-1 tab 9)
49. Tcpt 36.15
50. Tcpt 12.15
51. Dr Parker RAR [55] (JM-1 Tab 4)
52. Dr Parker RAR [74].
53. Dr Parker RAR [73], [78]
54. Dr Smith's reports of 27 November 2019 and 21 January 2020 (JM-1 tabs 11 and 14)
55. Tcpt 5.33
56. JM-1 Tab 6
57. Dr Rae (JM-1 Tab 6 p 98).
58. Tcpt 10.6
59. Tcpt 10.9
60. Tcpt 11.45
61. Furst report 11/11/20 p6 (Judge's folder tab 8).
62. Furst report pp 7, 12, 25; Tcpt 29.35
63. Tcpt 23.18ff
64. Tcpt 27.20
65. Tcpt 27.23
66. Tcpt 26.49-27.48
67. Furst report p22
68. Furst report p22
69. Tcpt 25.20
70. Tcpt 36.29
71. Tcpt 42.47
72. Tcpt 38.35
73. Singh report 10/11/20 p33 (Judge's folder Tab 9)
74. Singh report p35.
75. Singh report p40
76. Singh report p41
77. Tcpt 28.18
78. Tcpt 24.6
79. Tcpt 33.50
80. Tcpt 36.36
81. Mackinnon and Gibson report 21-10-20 p 13 (paper bundle)
82. Mackinnon and Gibson p 13.
83. Mackinnon and Gibson p 15.
84. (JM-1 tab 13)
85. Tcpt 51.38-52.6
86. Written submissions for the defendant [19]
87. Tcpt p60.15; p70ff
88. Tcpt pp33-34
89. Urgent ex parte applications can be made as well pursuant to s 18CA.
90. Report of Romy Christoff, Sen Ass Superintendent, Functional Manager - Therapeutics, Silverwater Women's Correctional Centre, 28 July 2020, and report by Sang Cheung, Senior Psychologist, Mum Shirl Unit, 23 July 2020, report by A/Senior Psychologist Rochelle Pateman, Personality & Behavioural Disorders Services, 10 June 2020 (JM-1 Tabs 7, 8 & 10)
91. Tcpt 67.40
92. Tcpt 19.40 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. Decision last updated: 18 January 2021