District Court New South Wales Medium Neutral Citation: R v Munday (No 3) [2021] NSWDC 629 Hearing dates: 19 November 2021 Date of orders: 19 November 2021 Decision date: 19 November 2021 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Referred to Mental Health Review Tribunal. Conditional release order. See [37] Catchwords: CRIME – Arson - intentionally cause fire and be reckless as to its spread - multiple offences CRIME - Special hearing - Judge Alone hearing – Person unfit to be tried - verdicts "act proven but not criminally responsible"- consequential orders MENTAL HEALTH - Criminal proceedings — Person unfit to be tried - Special hearing – defence of cognitive impairment established – consequent orders - is detention necessary? Legislation Cited: Bail Act 2013 Crimes Act 1900 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Cases Cited: Attorney General of NSW v X (2013) 235 A Crim R 17; [2013] NSWSC 1392 R v Munday (No 2) [2021] NSWDC 628. R v Munday [2021] NSWDC 374 R v Siemek [2021] NSWSC 1292 R v Siemek (No. 2) [2021] NSWSC 1293 R v Tonga [2021] NSWSC 1064 Texts Cited: COVID-19 (coronavirus) Response, Corrective Services NSW; https://www.coronavirus.dcj.nsw.gov.au/services/corrective-services/impact-of-covid-restrictions Category: Consequential orders Parties: Warren Fletcher Munday (the defendant) Director of Public Prosecutions Representation: Counsel: Ms S Hall (for the defendant) Ms A Hughes, Solicitor Advocate (for Director of Public Prosecutions) Solicitors: Morrisons Law (for the defendant) File Number(s): 2020/00247037 JUDGMENT Introduction 1. In 2020 Warren Fletcher Munday was arrested and charged with a number of counts of intentionally causing a fire being reckless as to the spread of the fire to vegetation on public land or land belonging to another: s203E(1) Crimes Act 1900. Mr Munday has an intellectual disability. As a consequence of that disability he has no real understanding of the court process and could not participate in a trial. He was found to be unfit to be tried: R v Munday [2021] NSWDC 374. 2. On 11, 12 and 13 October 2021 a special hearing was heard at Wollongong District Court pursuant Part 4 Division 3 to Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act). On 22 October 2021 I delivered my reasons for reaching a verdict on each count of "proven but not criminally responsible" but did not enter the verdicts: R v Munday (No 2) [2021] NSWDC 628. 3. Before returning and recording the verdicts, I asked counsel what disposition they were seeking: s33 the Act. Madam Crown said public safety demanded Mr Munday be detained until review by the Mental Health Review Tribunal (the Tribunal). Ms Hall SC, in response, said the status quo should be maintained, as Mr Munday had not offended during his remand period. She indicated she was surprised by the application and was not ready to meet it. She said there was a case for conditional release but that the defendant would need time to respond to the Crown application and make a case for conditional release. 4. Mr Munday could not be entered into custody had I recorded and entered the verdicts on the 22 October 2021 as he was not physically before the court. He had been on strict bail and was appearing via AVL from his solicitor's office. The quarantine arrangements in place to reduce spread of the Coronavirus required Community Corrections be given 3 days' notice before a defendant was taken into custody. The temporary emergency practice at Wollongong District Court had been to defer entering custodial orders and vary bail requiring a personal attendance at the court at a specified time so the verdict and consequent orders could be pronounced and entered and the person taken into custody. Section 33 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 1. Section 33 of the Act is clear in its terms. Once a special verdict of "proven but not criminally responsible" is returned, a defendant can be: 1. remanded in custody : s33(1)(a) or 2. detained: s33(1)(b) or 3. released conditionally or unconditionally:s33(1)(c) or. 4. "other" orders can be made: s33(1)(d). 1. There is an additional and critical qualification to those options: "The court must not make an order for the release of a defendant unless it is satisfied, on the balance of probabilities, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant's release:" s 33 (3). My emphasis. 1. To date this qualification in the new Act does not appear to have arisen as defendants were in custody during their trial or hearing as no issue of release was raised and community safety did not need to be considered: R v Tonga [2021] NSWSC 1064; R v Siemek [2021] NSWSC 1292. But, where the defendant has been on bail after verdict, s 33(3) would appear to prevent their release unless the court determines the safety of the defendant or any member of the public will not be seriously endangered. 2. Although s 33 contemplates the possibility that after verdict a "remand" order can be made, that remand can only be custodial – not a bail order. The Bail Act 2013 would no longer apply once I enter a verdict as Mr Munday will become a "forensic patient", to whom Part 5 of the Act applies. 3. Accordingly, if I had returned and enter the special verdicts I could not then continue bail until the question of whether a release order was to be made or not was debated and determined. As, I can't order a person's release until I am satisfied in the terms set out in s 33(3). Similarly, as noted above I could not adjourn and grant bail until that occurs. 4. While s 33(1)(d) allows me to make "other orders"; s33 read as a whole prevents the making of a "release order" without first determining the s 33(3) question. 5. Had I adjourned the detention release argument after verdict I would have had to order the defendant be remanded in custody. On 22 October 2021 my options were: 1. enter the verdict and issue a detention warrant, 2. delay entering the verdict for 3 days until Mr Munday could attend the court and then remand him in custody; or 1. allow him a longer period of bail before formally returning the verdicts indicated in my judgement. 1. Accordingly, and despite having given my reasons, I deferred returning and entering the verdicts and orders and making referral to the Tribunal until today to give the defence had a time to make their case for conditional release. Today's Detention application 1. This afternoon, I formally returned special verdicts on each 29 counts in the Indictment of "proven but not criminally responsible". Noting I had given my reasons on October 2012. 2. I have received and reviewed a supplementary report from Dr Pullman, of 21 October 2021. I have a copy of Mr Munday's "Criminal History- Bail Report" and a breach report from 2015. 3. There is also evidence that on 8 June 2020 at about 9pm one of Mr Munday's neighbours, when he saw him in a street near his home with what appeared to be a jerry can (fuel container) and was sufficiently concerned that he called the police. No action was taken against Mr Munday. 4. Dr Pullman recommends treatment by experts experienced in working with intellectual disability, impulse control and fire setting behaviours. At least one nominated expert currently works for Justice Health and might be able, if free, to assist if Mr Munday is held in gaol. 5. The defence tendered a report from a psychiatrist, Dr Jeyachandran of 16 November 2021 and letters from; Illawarra Community Mental Health, Mr McNiece, Ms Crawford, Ms Lester and Mr Munday. 6. In Dr Jeyachandran's opinion Mr Munday in addition to his intellectual disability has a long standing psychotic illness that is amenable to treatment and he has shown a good response to medication, augmented by ongoing care through an Acute Care Team within the Illawarra Shoalhaven Local Health District. He concludes his report "considering his vulnerabilities. Community based treatment is highly likely to be more beneficial than prison based treatment." And that "services are available that can cater to his needs and vulnerabilities." 7. The letter from Illawarra Community Mental Health confirms Mr Munday has engaged with that service on a weekly basis since 15 September 2021. 8. Mr McNiece reports Mr Munday was "deeply traumatised" by his time in custody before being granted bail. He said "his time in gaol had a huge effect on him. Warren told me he never wants to go back to jail ever again. That he will do whatever is required of him to stay in the community. He said that he will never light another fire." He said Mr Munday had responded well to all the help he had been getting during this case. 9. His cousin, Ms Crawford, confirmed these conclusions. She lives nearby. She now supervises him daily and ensures he takes his medication; she intends to keep doing so. 10. Another cousin Ms Lester has been living with him. She says he was always compliant with directions and he has not reoffended nor breached bail conditions. She too is fearful if he returns to prison as he has never before had contact with criminals and drug takers. As he is naïve and willing to help others she fears he will be taken advantage of. He is not violent and is not attuned to deal with violence. She will continue to provide daily supervision. An application has been lodged for NDIS funding. 11. In his letter to me Mr Munday said "Your honor I will never do this again I been good for a 11 month fire is not my thin life is too short to do this again.. I got Better thing to do than lite then fires…" (sic) The letter displays little insight as he still believes others have told lies about him but it is a statement of good intention. Submissions 1. Ms Hughes, for the Crown, submitted that Mr Munday should be detained until further order of the Mental Health Review Tribunal (the Tribunal). As it is not established Mr Munday did light the fires she voiced a concern that he may repeat his acts now the pressure of the hearing is off. There is no guarantee that Mr Munday's current control and restraint can be sustained. The fires were lit in all weather conditions. If a fire takes hold people could be hurt. She also noted Dr Jeyachandran's opinion persecutory beliefs continue enhancing potential danger. 2. Ms Hall submitted the most appropriate order was for conditional release on the same or similar conditions to his earlier bail. She submits the special hearing has had an impact as Mr Munday now has some appreciation of what he was doing. He has gone a year without offending. In addition, there have been additional and critical changes to his care supervision and oversight. He is now connected with Illawarra Community Mental Health. Custody would breach these connections. Consideration 1. Section 33 of the Act is directed to the protection of persons in the community, together with the welfare of the person who has committed the act which gives rise to the special verdict: Attorney General of NSW v X (2013) 235 A Crim R 17; [2013] NSWSC 1392 at [87]-[92]; R v Siemek (No. 2) [2021] NSWSC 1293. 2. There are no concerns that if released Mr Munday will endanger himself but there is an issue about whether he would be endangered in custody. Mr Munday is older, he is not in good health and he has an intellectual disability. If detained today the only place of detention presently available is a gaol. He would be subject to quarantine and lock downs designed to protect prisoners from Coronavirus infection. He would not have ready access to outside mental health practitioners or any programmes. Treatment options from external providers are very limited, if not impossible, during the pandemic: COVID-19 (coronavirus) Response, Corrective Services NSW; https://www.coronavirus.dcj.nsw.gov.au/services/corrective-services/impact-of-covid-restrictions; viewed 1/11/2021 3. Gaol is an intrinsically violent environment. And like all violent environments the most vulnerable are most at risk. He could suffer harm in gaol. 4. If he is not detained there is a risk that he may again light fires at night. He has real no insight into his offending behaviour and the risks posed by the fires, at all: Dr Pullman report 14 July 2021 at page 9/10. Obviously, if a fire is lit and takes hold in dry grass and then spreads to other properties a member of the public or a fire fighter might be endangered. 5. I note however that while the potential for a fire to seriously endanger a person has to be considered, since the fires started on the block many years ago there are no examples of the safety any member of the public being seriously endangered. That said many residents have been alarmed and property has been endangered and it may be that only NSW Fire and Rescue intervention has prevented such harm. 6. Currently Mr Munday is well supported in the community by his guardian, Mr McNiece and his cousins Ms Crawford and Ms Lester and the Acute Care Team, Illawarra Shoalhaven Local Health District. Determination 1. It is important to emphasise that Mr Munday is not being sentenced or punished by the Court. On balance, while there is a possibility if the he is allowed to remain in the community he may again start a fire, the risk of a member of the public being seriously endangered is slight. Any risk, could, as it has been to date, moderated by strict conditions. 2. I am satisfied, on the balance of probabilities, that the safety of the defendant or any member of the public will not be seriously endangered by his release. I reach that determination on the basis that: 1. Since being admitted to bail the defendant has not breached his bail conditions. 2. There is no evidence any further fires have been lit, despite the defendant continuing to live near to the site of the fires. 3. Mr Munday has the support of his family on a daily basis 4. He has the support of the Illawarra Shoalhaven Local Health District 5. He is taking his medication. 6. His experience of gaol on remand has had a deterrent impact on him. 1. It is also important that the community understands that the effects of the verdict which has been returned, and orders which the Court will make. While Mr Munday will remain on conditional release he is now a forensic patient. 2. As a forensic patient Mr Munday will now come under the supervision of the Tribunal. Section 34 of the Act requires the Court to refer Mr Munday to the Tribunal following a special verdict of act proven but not criminally responsible and where, as in this case, no order for unconditional release is to be made. His case will be reviewed by the Tribunal as soon as practicable, and he will be subject to review at six-monthly intervals: s.78 the Act. 3. The Tribunal will consider again whether he is to be placed in custody or detention. And if he is, he will not be released until the Tribunal is satisfied that the safety of any member of the public, or of Mr Munday, will not be seriously endangered by his release: s 84(2) the Act. His release may be on conditions and, if any of those conditions are breached, or his mental condition deteriorates to a point where he may be a serious danger to others, the Tribunal may order that he be apprehended and further detained: s.109 the Act. Orders and Directions 1. I make the following orders: 1. Pursuant to s.33 (c) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 an order for conditional release of the defendant on the following conditions 1. Obey all directions of the Mental Health Review Tribunal. 2. Attend all appointments with or organised by the Mental Health Review Tribunal. 3. Reside at 1 Hilltop Avenue, Lake Heights, NSW 2502, 4. Not to be absent from 1 Hilltop Avenue, Lake Heights NSW 2502 NSW between the hours of 7pm and 7am unless in the company of Daniel Mc Niece, Beth Crawford or Therese Lester or order of the Mental Health Review Tribunal. 5. Continue to engage with the Illawarra Shoalhaven Local Health District services and attend psychological or psychiatric appointments and take prescribed medication. 1. Pursuant to s.34 Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the Court refers Warren Fletcher Munday to the Mental Health Review Tribunal. 1. I make the following further directions: 1. The Registrar is to notify the Minister for Health and Medical Research, as soon as practicable, of the making of these orders. 2. The Registrar is to notify the Mental Health Review Tribunal, as soon as practicable, of the making of these orders and is to provide to that Tribunal the following documentation: 1. a copy of the Court's reasons for verdict and for making these orders; 2. copies of exhibits from the trial including the reports of Dr Ashcar and Dr Pullman; 3. Copies of exhibits from today's detention application. ********** 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: 22 November 2021