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Supreme Court 9 March 2023

R v Brass

[2023] NSWSC 203

Other
MENTAL HEALTH CRIMINAL PROCEEDINGS ORDERS FOLLOWING SPECIAL VERDICT S 33(1)(B)

Citation: R v Brass [2023] NSWSC 203
Court: Supreme Court of New South Wales
Date: 9 March 2023
Judge(s): Wilson J

Background

In December 2022, the Supreme Court returned a special verdict under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) in criminal proceedings involving the defendant. A special verdict in this context means the court found the defendant committed the act charged but was not criminally responsible due to mental health impairment. Following that verdict, the defendant was ordered to be detained at the Forensic Hospital pending further court orders.

The defendant was subsequently transferred to the Bunya Unit at Cumberland Hospital, an inpatient mental health rehabilitation facility. The matter returned to court in March 2023 to determine the appropriate ongoing detention and treatment arrangements.

The court had the benefit of reports from the defendant's treating psychiatrist, Dr Mukherjee, as well as updated reports from two independent psychiatrists, Dr Adam Martin and Dr Stephen Allnutt, and the Mental Health Review Tribunal's reasons for its December 2022 orders.

Legal Issues

  • What order should the court make under s 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) regarding the defendant's ongoing detention and treatment?
  • Whether the defendant's clinical progress and risk profile supported immediate release into the community, or whether continued detention in a medium-security inpatient setting was appropriate.
  • How ongoing oversight of the defendant's treatment and community transition should be structured between the court and the Mental Health Review Tribunal.

Decision

Issue 1: Clinical assessment and risk of community release

The treating psychiatrist, Dr Mukherjee, reported that the defendant had made a good recovery from her acute mental illness, demonstrated insight into her condition, and was compliant with medication (at [5]). However, he assessed that discharging her into the community in the near future would carry a moderate to high loading of future violence risk factors, given her vulnerability to stressors, increased responsibilities, and reduced access to clinical support in a community setting (at [6]-[7]). Dr Mukherjee considered that a staged, graduated approach to community release was the most appropriate path (at [8], [10]).

Issue 2: Appropriate placement

The court accepted the clinical opinion that continued treatment at the Bunya Unit was the best course at this stage. That facility offered medium security, ongoing rehabilitation, structured planning for eventual community transition, and support for sustained medication compliance (at [9]). The independent psychiatrists, Drs Martin and Allnutt, broadly agreed that the defendant posed a low risk to the community but remained in need of further treatment before any community placement (at [12]).

Issue 3: Ongoing oversight and community transition

Wilson J was satisfied that, while the defendant's condition had substantially improved and the risk she posed had significantly reduced, she remained a person in need of care in a medium-security environment (at [13]). The court accepted the joint position of the parties that the Mental Health Review Tribunal was better placed than the court to review the defendant's progress and manage her transition plan over coming months, given the Tribunal's capacity for regular hearings with clinicians and relevant parties attending in person (at [14]).

Orders Made

  • The defendant is to be detained at the Cumberland Hospital, Bunya Unit, Inpatient Mental Health Rehabilitation Service at Westmead, or at such other place as the Mental Health Review Tribunal determines from time to time, until released by due process of law (pursuant to s 33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)).
  • The Victim Impact Statement received from the defendant's eldest child is to be disclosed to the defendant's legal representatives only, and must not be further disclosed to any other person or institution (pursuant to s 30N(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW)).
  • The Registrar is directed to provide a copy of that Victim Impact Statement to the Mental Health Review Tribunal (pursuant to s 30N(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW)).
  • The Registrar is directed to notify the Minister for Health and the Mental Health Review Tribunal of the making of these orders as soon as practicable, and to provide the Tribunal with copies of the court's reasons and the three psychiatric reports.

Key Takeaways

  • Following a special verdict under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a court making orders under s 33(1)(b) must assess both the treatment needs of the defendant and the protection of the community, not simply the degree of clinical improvement achieved (at [13]).
  • Substantial improvement in a defendant's mental health, including medication compliance and insight into illness, does not of itself render immediate community release appropriate where clinical opinion identifies ongoing vulnerability to stressors and residual risk factors (at [5]-[7]).
  • A graduated, staged approach to community reintegration, building in structured excursions and transitional support before full discharge, was endorsed by the Supreme Court as the preferred clinical and risk-management framework in this case (at [8], [10]).
  • The Mental Health Review Tribunal was identified as the more appropriate body to oversee the defendant's ongoing progress and eventual transition to the community, given its capacity for frequent, clinically informed hearings (at [14]).
  • Under s 30N of the Crimes (Sentencing Procedure) Act 1999 (NSW), the court directed that a Victim Impact Statement be disclosed to the defendant's legal representatives on a restricted basis and provided to the Mental Health Review Tribunal to inform its future consideration of the matter.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Not stated