Citation: R v MB (No. 4) [2015] NSWSC 593
Court: Supreme Court of New South Wales
Date: 20 May 2015
Judge(s): Bellew J
Background
The offender was found, on limited evidence, to have committed the murder of another person at North Strathfield on 18 November 2010. Following that finding in December 2014, Bellew J nominated a limiting term of 20 years and referred the offender to the Mental Health Review Tribunal, with an interim order for detention in an appropriate facility.
The Mental Health Review Tribunal subsequently determined, in March 2015, that the offender was suffering from a mental illness and remained unfit to be tried. The Tribunal also determined that her existing arrangements for care, treatment and detention as a forensic patient at the Forensic Hospital should continue.
This decision arose from the Tribunal's request that the court make consequential orders under section 27 of the Mental Health (Forensic Provisions) Act 1990 specifying the place of detention, following receipt of the Tribunal's notification and reasons in April 2015.
Legal Issues
- Whether the court retained any residual discretion to decline to make an order under section 27 of the Mental Health (Forensic Provisions) Act 1990 following a limiting term determination
- What order should be made regarding the place of detention for the offender, given the Tribunal's findings
Decision
Issue 1: Scope of the court's power under section 27
Bellew J confirmed that, once a limiting term has been determined, the court has no residual power to release the offender by simply declining to make a section 27 order (at [5]). Section 27 does not confer a discretion to make no order at all. Rather, it confers a power to determine the place where a person found by the Tribunal to be suffering from a mental illness should be detained (at [5]), as confirmed by the Court of Appeal in Director of Public Prosecutions v Khoury [2014] NSWCA 15.
Issue 2: Appropriate place of detention
The Tribunal had determined that the existing arrangements at the Forensic Hospital should continue. Neither the Crown nor the solicitor for the offender sought to be heard on the Tribunal's request (at [6]). In those circumstances, Bellew J made orders directing that the offender be taken to and detained in the Forensic Hospital.
Orders Made
- The offender is to be taken to, and detained in, a mental health facility, namely the Forensic Hospital.
- The Registrar is to forward a copy of the reasons to the Deputy President of the Mental Health Review Tribunal.
Key Takeaways
- Under section 27 of the Mental Health (Forensic Provisions) Act 1990, once a limiting term has been imposed, the sentencing court has no discretion to make no order at all: the provision mandates that a place of detention be determined (at [5]).
- The Supreme Court applied the Court of Appeal's reasoning in DPP v Khoury [2014] NSWCA 15, confirming that section 27 operates to determine where detention occurs, not whether it occurs (at [5]).
- Where the Mental Health Review Tribunal has found an offender to be suffering from a mental illness and has specified a recommended place of care, that determination informs the court's exercise of its section 27 power (at [6]).
- The court's role at this stage of proceedings is consequential and administrative in nature: following receipt of the Tribunal's notification under section 24(3), the court acts on the Tribunal's findings rather than conducting a fresh merits inquiry (at [4]-[7]).
Legislation and Cases Referenced
Legislation
- Mental Health (Forensic Provisions) Act 1990
Cases
- Director of Public Prosecutions v Khoury [2014] NSWCA 15
- R v MB (No 2) [2014] NSWSC 1755
- R v MB (No 3) [2014] NSWSC 1796