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District Court 29 July 2014

R v Crispe (No 3)

[2014] NSWDC 207

Other
CRIMINAL LAW MENTAL HEALTH NATURE AND CIRCUMSTANCES OF OFFENDER CONDITIONAL RELEASE ORDER

Citation: R v Crispe (No 3) [2014] NSWDC 207
Court: District Court of New South Wales
Date: 29 July 2014
Judge(s): Cogswell SC DCJ

Background

The offender was a person subject to the Mental Health (Forensic Provisions) Act 1990 (NSW) and appeared before the District Court for determination of her release status. Her legal representative made a primary application for final conditional release, and a secondary application for an adjournment coupled with interim conditional release to allow for further psychiatric assessment.

The offender had no criminal convictions and had been subject to a community treatment order as a bail condition since December 2012. That order had been lifted by her treating mental health service in May 2014, reflecting her progress. She attended a local temple daily and had a documented history of non-violent and rehabilitative behaviour since the events giving rise to the proceedings.

An apprehended violence order was in place protecting a named family member. The court had before it a report from a temple vice-abbot who had observed the offender's behaviour over an extended period, as well as information from Auburn Community Mental Health. Further updated psychiatric assessment by the treating psychiatrist, Dr Furst, had not yet been completed.

  • Whether the court had sufficient information to make a final conditional release order under s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW)
  • Whether, in the alternative, an adjournment with an interim conditional release order was appropriate
  • Whether the statutory test under s 39(2), requiring satisfaction on the balance of probabilities that the safety of the offender or any member of the public would not be seriously endangered, was met for either purpose

Decision

The court declined the primary application for final conditional release. Cogswell SC DCJ found that, while the available material was positive, it was insufficient to establish the required satisfaction on a longer-term basis that the safety of the offender or any member of the public would not be seriously endangered by her release. A further psychiatric report from Dr Furst was necessary before a final determination could be made under s 39.

The court accepted that the secondary application for adjournment and interim conditional release was appropriate. Several factors supported satisfaction of the s 39(2) test for the shorter period of the adjournment: no reported misbehaviour since the relevant events, no criminal convictions, the supportive temple report, successful completion of the community treatment order, the existence of an apprehended violence order, and the offender's agreement to comply with psychiatric recommendations.

The court proceeded to make a conditional release order rather than a bail order, noting the distinction. The matter was adjourned to allow an updated assessment by Dr Furst, with the offender to return before the court in October 2014 for final determination.

Orders Made

  • The offender was released conditionally under s 39 of the Mental Health (Forensic Provisions) Act 1990 (NSW), subject to the following conditions:
  • Compliance with any apprehended violence order in place
  • Continued residence at her home address
  • No approach, contact, or attempted contact with the protected family member or either of her children during the adjournment period
  • Attendance at an appointment with Dr Richard Furst and compliance, in consultation with her legal practitioners, with any recommendations he made regarding counselling or medication that her legal practitioners regarded as reasonable
  • Attendance before the District Court at Sydney on 9 October 2014 at 10am
  • A transcript of proceedings, including judgments from the preceding day, was directed to be provided to the court for revision by 3 October 2014
  • The Registrar was directed to notify the Minister for Health and the Mental Health Review Tribunal of the orders and to provide the Tribunal with reasons, orders, and copies of tendered exhibits

Key Takeaways

  • Under s 39(2) of the Mental Health (Forensic Provisions) Act 1990 (NSW), a court must be satisfied on the balance of probabilities that the safety of the offender or any member of the public will not be seriously endangered before any release order is made, whether final or interim.
  • The District Court treated the safety test as applicable to both final and interim conditional release orders, not merely to final determinations, making the quality and currency of psychiatric evidence directly relevant to any release application.
  • An interim conditional release order under s 39 is a distinct mechanism from bail, and the court drew that distinction explicitly in declining to characterise the order as bail.
  • Positive indicators short of a comprehensive psychiatric report, including a documented history of non-violent behaviour, completion of a community treatment order, observational evidence from a community figure, and the existence of protective orders, were sufficient to satisfy the statutory test for the limited duration of an adjournment.
  • Where a final determination under s 39 requires up-to-date psychiatric evidence, an adjournment with interim conditions can serve as the appropriate bridging mechanism while that evidence is gathered.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 39(1) and s 39(2)

Cases:
- No cases were cited in the judgment.