R v Risi (No 2) [2022] NSWSC 879

Supreme Court New South Wales

Medium Neutral Citation: R v Risi (No 2) [2022] NSWSC 879 Hearing dates: 1 July 2022 Decision date: 01 July 2022 Jurisdiction: Common Law Before: R A Hulme J Decision: 1. That until released by due process of law, I order that Mr Risi be detained in a correctional facility pending the determination of the Mental Health Review Tribunal as to the place of his further detention. 2. I direct the court registry forward to the Mental Health Review Tribunal the reports of Dr Allnutt and Dr Furst that have been tendered in these proceedings. 3. The Court commends for the consideration of the Mental Health Review Tribunal at the earliest opportunity the recommendation of Dr Furst contained on page 5 of his report of 13 June 2022. Catchwords: MENTAL HEALTH — Criminal proceedings — special verdict of act proven but not criminally responsible — subsequent disposition —recommendation of psychiatrist as to best placement of offender — danger to fellow inmates in correctional facility — best placement in Forensic Hospital Legislation Cited: Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 33 Category: Principal judgment Parties: Regina Michele Noel Risi Representation: Counsel: Mr K McKay SC (Crown) Ms M Avenell SC (Offender)

Solicitors: Solicitor for Public Prosecutions Legal Aid File Number(s): 2020/96878

Judgment 1. HIS HONOUR: Having returned special verdicts at the conclusion of a special hearing in relation to this matter, the potential outcome hereafter is governed by the options set out in s 33 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). 2. The first option provides for an interim order until the Court is in a position to make a final order, but I feel the Court is in a position to make a final order at this point. 3. The second option is that Mr Risi be detained in a place and manner that the Court thinks fit until released by due process of law. 4. The third option is that he could be released unconditionally or conditionally from custody. That is not suggested by either side and is really impractical in the circumstances. 5. The fourth option is broad and provides that the Court can make any other order it thinks appropriate. 6. There is concern raised about where Mr Risi is placed in the final part of the report of Dr Richard Furst, consultant forensic psychiatrist, dated 13 June 2022 Under the heading "Disposition/Rehabilitation Needs" Dr Furst wrote: "Having regard to Mr Risi's clinical and treatment needs and likelihood of becoming non-compliant with treatment in a custodial setting, as has been evident over the last 12 months, I believe there is no doubt that he would be better placed in a hospital setting than in the main gaol environment of New South Wales. Placement in the Forensic Hospital, apart from providing psychiatric treatment and rehabilitation, and assisting in managing his diabetes, would also assist in mitigating the risk that Mr Risi would otherwise pose to fellow inmates during a lengthy period of incarceration, especially if he was not properly medicated and treated. He is prone to interpreting other inmates, especially of Arabic, Lebanese and Italian heritage, as being a threat to him. He has acted impulsively in the past, including acts of violence to his own father and lethal violence to Mr Weller. In my opinion, Mr Risi could easily kill, either a fellow inmate or kill himself, if he was left to his own devices in a mainstream prison without adequate supervision and without adequate medication. For those reasons, that is, his clinical needs, treatment needs and risk profile, I would strongly recommend that a mental health defence under s 28 of the Act is more appropriate as an option for Mr Risi and for the community at large than s 23A of the Crimes Act 1900. I would also recommend that, in the event that Mr Risi is found to be not criminally responsible under s 28, that he be detained at the Forensic Hospital until released by the Mental Health Review Tribunal at some later date, probably many years into the future." 1. I will make a few observations about this for those who are present. 2. On the Court's understanding, the Forensic Hospital that Dr Furst suggests is an appropriate placement for Mr Risi is a secure facility, designed to meet the needs for security and treatment of people with the impairments that Mr Risi has. People who present the risks that Dr Furst has spoken about are well-catered for in an environment such as that. 3. Dr Furst is a very eminent forensic psychiatrist. For a long time his work has included working with people in correctional facilities and at the Forensic Hospital - people like Mr Risi with mental health and cognitive impairments. He is an expert whose opinion is respected widely, and I place great weight on it. 4. There is one further thing I should add. There is no definite time or date placed upon when Mr Risi might become eligible for release. It is a matter that will be under regular review by the Mental Health Review Tribunal, which is the body set up to monitor and review cases such as this. Safety of the community is the paramount consideration that is given before contemplation of release of a person such as Mr Risi. Having regard to what I have just read from the report of Dr Furst, his release is not likely to be for some considerable period of time. 5. I propose to make orders within the terms of the Act that are designed to align with what has been recommended by Dr Furst. 6. The orders I make is this: 1. That until released by due process of law, I order that Mr Risi be detained in a correctional facility pending the determination of the Mental Health Review Tribunal as to the place of his further detention. 2. I direct the court registry forward to the Mental Health Review Tribunal the reports of Dr Allnutt and Dr Furst that have been tendered in these proceedings. 3. The Court commends for the consideration of the Mental Health Review Tribunal at the earliest opportunity the recommendation of Dr Furst contained on page 5 of his report of 13 June 2022.