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Supreme Court 1 July 2022

R v Risi (No 2)

[2022] NSWSC 879

Other
MENTAL HEALTH CRIMINAL PROCEEDINGS SUBSEQUENT DISPOSITION BEST PLACEMENT IN FORENSIC HOSPITAL

Citation: R v Risi (No 2) [2022] NSWSC 879
Court: Supreme Court of NSW
Date: 1 July 2022
Judge(s): R A Hulme J

Background

Following a special hearing, the Supreme Court returned special verdicts finding that the acts in question were proven but that the defendant was not criminally responsible due to mental health or cognitive impairment. This decision deals with the consequential question of what orders should be made for the defendant's detention and placement.

The defendant has mental health and cognitive impairments that were the subject of expert psychiatric assessment. The central issue at this stage was not guilt or innocence, but the appropriate disposition to protect both the community and the defendant.

The Court had before it reports from two forensic psychiatrists, including a report from Dr Richard Furst dated 13 June 2022, which addressed the defendant's disposition and rehabilitation needs.

Legal Issues

  • Which of the available options under s 33 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) should apply to the defendant's disposition.
  • Whether the defendant should be detained, and if so, in what type of facility.
  • What role the Mental Health Review Tribunal should play in determining the defendant's ongoing placement.

Decision

Issue 1: Available Disposition Options

Section 33 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 provides four possible outcomes following a special verdict. These are: an interim order; detention in a place and manner the Court thinks fit; unconditional or conditional release; or any other appropriate order (at [1]-[5]). The Court ruled out release as impractical and not sought by either party, and considered itself in a position to make a final rather than an interim order (at [2], [4]).

Issue 2: Appropriate Placement

Dr Furst, described by the Court as a highly eminent forensic psychiatrist with extensive experience in correctional and forensic hospital settings, recommended placement at the Forensic Hospital, a secure facility equipped to manage both the security risks and treatment needs of people with the defendant's impairments (at [8]-[9]). The Court placed significant weight on that recommendation (at [9]). However, rather than order direct placement itself, the Court ordered interim detention in a correctional facility pending the Mental Health Review Tribunal's determination of the defendant's further placement, and directed that Dr Furst's recommendation be commended to the Tribunal for urgent consideration (at [11]).

Issue 3: Prospect of Release

The Court noted that no fixed date for release applies. The Mental Health Review Tribunal will conduct regular reviews, with community safety as the paramount consideration. In light of Dr Furst's findings, the Court observed that release was unlikely for a considerable period (at [10]).

Orders Made

  • The defendant is to be detained in a correctional facility until released by due process of law, pending the Mental Health Review Tribunal's determination as to the place of his further detention.
  • The court registry is directed to forward the reports of Dr Allnutt and Dr Furst to the Mental Health Review Tribunal.
  • The Court commends to the Mental Health Review Tribunal, for consideration at the earliest opportunity, Dr Furst's recommendation contained on page 5 of his report dated 13 June 2022.

Key Takeaways

  • Under s 33 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a court has four disposition options following a special verdict, including detention, conditional or unconditional release, or any other order it considers appropriate (at [1]-[5]).
  • The Supreme Court placed substantial weight on the opinion of a highly regarded forensic psychiatrist recommending placement in the Forensic Hospital, recognising that facility as specifically designed for individuals with the defendant's combination of security risk and treatment needs (at [8]-[9]).
  • Where the Supreme Court considers direct placement in the Forensic Hospital appropriate but the Mental Health Review Tribunal holds jurisdiction over final placement, the Court may order interim correctional detention while commending expert recommendations to the Tribunal for urgent consideration (at [11]).
  • Community safety is the paramount consideration governing any future release from detention following a special verdict, and the Mental Health Review Tribunal carries ongoing responsibility for reviewing such cases (at [10]).
  • A special verdict finding acts proven but no criminal responsibility does not lead automatically to immediate therapeutic placement; an interim period in a correctional facility may follow while the appropriate oversight body determines the permanent placement (at [10]-[11]).

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) , s 33

Cases
- Not stated