Children's Court New South Wales Medium Neutral Citation: R v Louie [2024] NSWChC 10 Hearing dates: 21 June 2024 Date of orders: 21 June 2024 Decision date: 21 June 2024 Jurisdiction: Criminal Before: Children's Magistrate Hayes Decision: Community Treatment Order made Catchwords: CHILDREN — CRIME — Community Treatment Order — Youth Koori Court Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW) Mental Health Act 2007 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Mental Health (Criminal Procedure) Act 1990 (NSW) Cases Cited: Bugmy v The Queen [2013] HCA 37 Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 R v Dickison [2004] NSWCCA 457 KT v R [2008] NSWCCA 51 R v Israil (2002) NSWCCA 225 Texts Cited: Bugmy Bar Book Bureau of Crime Statistics and Research (BOCSAR) December 2023 Closing the Gap Summary Report by Dr Don Weatherburn and Jessie Holmes Mental Illness Defence and Diversionary Orders by Magistrate Huntsman Category: Principal judgment Parties: Louie (Young Person) Representation: Mr Hong (Prosecutor) Ms Gillies (Solicitor for the Young Person) File Number(s): 2023/00345099 Publication restriction: Pseudonyms have been used to protect the identity of the Young Person. JUDGMENT PARTIES/PROCEEDINGS 1. Louie is Pitjantjatjara (of the Central Australian Desert). 2. Louie is 17 years old. 3. Louie has six sets of serious offences, all with several sequences. Many involve violence and/or weapons. 4. The Court is asked to make a Community Treatment Order (CTO) under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act). 5. A CTO is a legal order. It sets out the terms of compulsory treatment under which a person must accept medication and therapy, counselling, management, rehabilitation, and other services while living in the community: s 51 of the Mental Health Act 2007 (NSW) (MHA). 6. It is implemented by a mental health facility that has developed an appropriate treatment plan. 7. If a person breaches a CTO by not complying with the conditions of the Order, the person may be taken to a mental health facility and given appropriate treatment, including medication. 8. A CTO is opposed by the prosecution because of the seriousness of the charges. 9. Ironically, there is an argument that in matters involving children, serious matters are ideally suited to be diverted from the criminal justice system to better achieve the Act's three key objectives of community safety, appropriate responses that decrease reoffending, and the efficient and effective use of court resources. BACKGROUND 1. Separate to these matters, Louie is a Youth Koori Court (YKC) participant for other offences. 2. The YKC suitability assessment discloses that Louie had limited knowledge of his culture and partial contact with family. 3. At the time Louie had no stable accommodation. Louie had no school, training or employment. Louie had significant fines and had been admitted into custody 3 times. 4. Louie was asked what he thought contributed to his offending. Louie flagged his mental health, his use of violence, his family trauma and his lack of pro-social connections. 5. Louie was admitted to the YKC. 6. The Action and Support Plan focussed on Louie's cultural supports, accommodation, employment, mental health and addressing Louie's propensity for violence and knife use. 7. Louie was charged with further offences whilst on the YKC and was bail refused. 8. Ms Gillies arranged for a full Mental Health Assessment Report. 9. Based on Louie's presentation, the collateral history, and in consultation with Dr RB (a child, adolescent and forensic psychiatrist); SC, psychologist, concluded that Louie met the legal definition of a "mentally ill person" according to the MHA. Louie has diagnoses of schizophrenia and conduct disorder. 10. Since September 2023 Louie reported auditory hallucinations to custodial staff. He reported hearing a voice that told him to kill himself. Louie reported episodes of paranoia that were driven by auditory hallucinations. He reported hearing derogatory voices and an angry voice that told him that people were talking "shit" about him and he needed "to act". Louie reported delusions of reference including that people on the television could listen in on him and he had received messages from the radio. 11. On 28 November 2023 Louie reported to Dr AP, psychiatrist at Cobham Youth Justice Centre, that "voices in my head tell me to do shit" and were always aggressive. 12. Dr AP saw Louie on 20 February 2024, and she reported the medication was helping reduce Louie's positive psychotic symptoms. Louie continued to experience auditory hallucinations one to two times per day and had some paranoia with a sense of being watched. 13. Louie reported chronic anger and irritability. He had an interest in knives and reported carrying knives on his person. He reported to Dr AP he had armed himself in response to paranoid delusions. He reported to Dr AP flashbacks of past traumatic events. In December 2023, upon commencing medication Louie reported distressing nightmares. When Louie was asked, he was unable to identify any triggers or patterns to his aggression. He stated his medication had assisted with his psychotic symptoms and his goal now was to work on anger management. 14. On 22 February 2024 the Mental Health Review Tribunal (MHRT) found Louie was mentally ill and granted a Forensic Community Treatment Order (FCTO) for 6 months. 15. On Louie's release from custody this was varied to a CTO. 16. Louie has completed most of his Action and Support Plan tasks. This includes adherence to the CTO, developing cultural connections, obtaining stable accommodation, and becoming gainfully employed. 17. Louie now regularly appears at his YKC reviews from his work site in regional NSW. 18. Louie is unfailingly polite, respectful to the Elders, better connected to culture and has not offended since his last release from detention. ONUS OF PROOF and STANDARD OF PROOF 1. A party who asserts facts bears the evidentiary onus of proving them on the balance of probabilities. EVIDENCE Means by which a Magistrate may be informed 1. Section 10 of the Act states for the purposes of this Part, a Magistrate may inform himself or herself as the Magistrate thinks fit. Facts 1. The Court has the agreed facts relating to the six sets of matters. 2. The maximum penalty for some of the offences, such as Possess a Prohibited Weapon (3 counts), carry 14 years imprisonment. 3. One armed with Intent to Commit an Indictable Offence involved 3 zombie knives, a samurai sword and an axe. This offence has a maximum period of 7 years imprisonment. A second similar offence involved a sword. 4. The Court of Criminal Appeal has frequently observed that the use of a knife is a feature that specially aggravates the seriousness of an offence: R v Dickison [2004] NSWCCA 457 at [23]. 5. Some offences involved vulnerable victims, some offences were committed in company, some were committed in the presence of a child, and some were committed for financial gain. 6. The 'Use Offensive Weapon to Prevent Lawful Detention' were committed whilst on conditional liberty. 7. The maximum penalty for 'Custody of Knife' has doubled from two years to four years. Record 1. Louie's record tends to suggest his conduct is a pattern of behaviour rather than an aberration. The Justice Health Confidential Medical Report 1. The report opines that Louie's treatment is best managed under a Community Treatment Order (CTO) by way of s 20 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. There are reasonable grounds to believe that no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate or available to Louie. 2. Louie would likely benefit from a CTO and in 'our' opinion, he meets criteria as outlined in s 53, part 5 (a)-(d) of the Mental Health Act 2007. This is evidenced by: "…a history of non-adherence to treatment and disengagement from supports. This has contributed to a relapse into an active phase of mental illness and subsequent deterioration. Care and treatment in custody under psychiatric supervision has resulted in a partial amelioration of symptoms and prevention of deterioration. Louie has a continuing condition (schizophrenia), non-compliance with treatment will significantly raise his risk of symptom relapse/recurrence." 1. The report argues a CTO would ensure ongoing assertive case management and support, ongoing medication treatment, regular psychiatric reviews, access to services to meet Louie's recovery orientated goals, as well as preventing further decompensation and further risk of harm to himself and the community. Without effective treatment and psychiatric oversight Louie poses an elevated risk of reactive aggression which appears, at least partially, driven by auditory hallucinations and paranoid delusions. 2. The treatment plan is provided. Bugmy Bar Book and Louie 1. The Bugmy Bar Book comprises expertly reviewed research. 2. Succinctly, the Executive Summary of select chapters conclude: "The forcible removals of Aboriginal and Torres Strait Islander children have had long-term, intergenerational traumatic impacts on individuals and their families and descendants." "Parental incarceration and experiences of out-of-home care are themselves factors which may increase the likelihood of a person coming into contact with the criminal justice system." "Research shows a significant correlation between juvenile involvement in criminal activity, a history of abuse or neglect, and a history of being placed in care." "Homelessness is 'one of the most potent examples of disadvantage in the community… Australian research has found that the most consistent predictors of long-term homelessness are interactions with substance abuse, mental illness, and the out-of-home care system." "The Australian Law Reform Commission has recognised that 'links between lack of employment opportunity, lack of educational attainment, and subsequent entry into the criminal justice system are well established'." "The experience of incarceration may result in poor mental health outcomes, both by exacerbating existing mental health conditions and causing new experiences of poor mental health. Adverse mental health impacts may be especially pronounced for people with backgrounds of trauma and may compromise a person's ability to engage with and benefit from support upon release." 1. SC's report notes that Louie's symptoms occur on a background of complex trauma, attachment disruption and chronic homelessness. Louie displays paranoid delusions, auditory hallucinations, serious disorder of thought form, and severe disturbance in mood. 2. Louie's mother was a member of the Stolen Generation – forcibly removed. Louie's mother was connected to the Northern Territory. She grew up on a mission off Country. Louie has 9 siblings – described by others as half siblings. 3. Louie's father was incarcerated over periods of time. 4. Louie was placed in care. His child protection history included being removed from his mother at around 4 years. Louie experienced developmental trauma including exposure to domestic abuse, familial substance use, excessive discipline, and neglect (supervision and education). Previously there was an AVO protecting Louie from his father. Louie told Dr AP, a psychiatrist with Justice Health NSW, that he felt unwanted. 5. Despite being in foster care, Louie experienced homelessness and returned regularly to live with his mother and brother. He told Dr P this was a high conflict environment. Louie told Associate Professor K, a psychiatrist with Justice Health NSW, that earlier this year his mother paid for a train ticket for Louie to travel to Sydney to live with his father. Upon arrival, Louie's father was not home; and Louie slept outside the door. Louie lived in a hotel paid for by DCJ and then with a Youth Service in Western Sydney. 6. Dr AP noted Louie had a history of school suspensions for aggressive behaviours. 7. Louie told custodial staff he briefly engaged in counselling when he was 12. Louie reported experiencing anxiety and depression from around age 10. He reported to Associate Professor K a suicide attempt at age 14 by way of cutting his wrist. A GP recommended an antidepressant at age 14 but Louie said he declined this. 8. Upon releases from detention Louie's medication compliance in the community was described as erratic. BOCSAR 1. In Bugmy v The Queen [2013] HCA 37, the High Court held: "An offender's childhood exposure to extreme violence and alcohol abuse may explain the …recourse to violence when frustrated such that…moral culpability for the inability to control that impulse may be substantially reduced." 1. Dr Don Weatherburn and Jessie Holmes, in the Bureau of Crime Statistics and Research (BOCSAR) December 2023 Closing the Gap Summary Report, argue: "Indigenous Australians are over-represented in prison, not because they are disproportionately targeted by police for committing minor offences or because they are treated more harshly by the courts than their non-Indigenous counterparts. Less than one per cent of the Indigenous sentenced prisoner population is serving time for a public order offence. The majority (62%) are in prison for a serious violent offence, break and enter (15%) or breaching a non-custodial order imposed on them for earlier offending (11%) (Australian Bureau of Statistics 2013). Indigenous Australians are over-represented in prison because they are over-represented in crime, particularly violent crime." 1. Dr Don Weatherburn and Jessie Holmes claim that: "If you want to produce a lasting reduction in offending, you need to start by improving developmental outcomes in infancy and adolescence." 1. The cost of mental health services, especially those targeted at early intervention, ought to be considered against the enormous costs associated with the incarceration of juveniles and adults and the high rate of recidivism amongst offenders with mental health disorders as confirmed by a NSW Bureau of Crime Statistics and Research (BOCSAR) study. 2. BOCSAR's Director, Dr Don Weatherburn, concluded: "Increased investment in treating prisoners with a comorbid disorder would not only make the community safer, it would save money by reducing the rate of re-offending and return to prison." Brief history of Mental Health diversions in NSW 1. The Crimes Legislation Amendment Bill 2002 amended s 33 of the Mental Health (Criminal Procedure) Act 1990 (MHCPA) to enable a Magistrate, who determines that a defendant is a mentally ill person, to make a community treatment order for mandatory treatment, under the Mental Health Act 1990 (MHA). 2. The rationale for the amendment was that under s 33 of the MHCPA, an accused person suffering a mental illness may be discharged subject to conditions. Often the same person will be a candidate for a Community Treatment Order, and then be required to go through the process set out under the MHA; in particular, Part 3 of Chapter 6. To avoid the person having to undergo two separate hearings, a matter may be disposed of under s 33 and, at the same time, a CTO made, provided that the specified requirements under the MHA are met. 3. The MHCPA was replaced by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act). 4. In the second reading speech Mr Mark Speakman, the then Attorney General said that the Act: "…aims to recognise that people who come into contact with the criminal justice system who have mental health impairment or cognitive impairment may require a legal response different from the response to those who commit crimes wilfully." "The bill has three overlapping primary objectives. First and foremost, it aims to protect victims and the community. Secondly, it aims to ensure that people with mental health impairment or cognitive impairment who commit crime receive the treatment, support and supervision they need to get well and to prevent reoffending. Thirdly, it provides clear language, structure and processes, enabling efficient and effective responses to people with mental health and cognitive impairment who come into contact with the criminal justice system." "The 1990 Act provides that diversion orders are only applicable to offences dealt with summarily by the Local Court and are not available to defendants who are facing more serious charges heard in the District Court or the Supreme Court." "Diversion can benefit both the offender and the wider community by addressing the causes of offending. It serves to reduce reoffending by addressing, treating and/or controlling the offending behaviour." "A 2019 study conducted by the Kirby Institute of the University of New South Wales showed that among those with a serious mental illness receiving a treatment order by the court rather than a punitive sanction, the reoffending rate was 12 per cent lower than the punitive sanction group." "The study indicated that diversion into treatment is associated with a significantly reduced risk of reoffending, regardless of the type of offence with which that person was charged." "Diversion orders are currently made under section 32 of the 1990 Act, enabling diversion into care, support and treatment, and section 33, which enables diversion of an acutely unwell person to a mental health facility for an assessment and treatment." "Orders under section 32 of the 1990 Act are made in fewer than 2 per cent of criminal cases dealt with by the Local Court, with even fewer under section 33." ISSUES NOT IN DISPUTE 1. Louie is a mentally ill person. 2. All requirements for the making of a CTO under the MHA have been met in respect of Louie. 3. There is a proposed satisfactory CTO. ISSUES IN DISPUTE 1. Whether the Court should make an order for the discharge of Louie, for these serious offences, subject to conditions of a CTO. THE LAW APPLICABLE 1. Under s19(c) of the MHCIFPA a Magistrate may make an order for the discharge of the defendant, unconditionally or subject to conditions, into the care of a responsible person. 2. A Magistrate under s 20(1) of that Act may make a CTO as an option when dealing with a matter under s 19(c). 3. A CTO must be in accordance with the Mental Health Act 2007 and all the necessary requirements under that Act must be met (save the holding of an inquiry) before such an order can be made: s 20(1) and (2). 4. The Act does not provide guidance as to the Court's exercise of discretion to deal with a matter by way of a CTO. 5. Section 15 does not apply if the defendant is a mentally ill person or a mentally disordered person: see s 12(3). 6. Nevertheless, the s 15 considerations may provide a guide in determining the appropriateness of a CTO. 7. Those considerations are: 1. the nature of the defendant's apparent mental health impairment or cognitive impairment; (mentally ill, long-standing affliction, obvious significant degree to which the young person is unable to control conduct). 2. the nature, seriousness and circumstances of the alleged offence; (ordinarily the more serious the offending, the more important will be the public interest in punishment for the protection of the community). However, in Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159 per Howie J at [17] observed: "It should be emphasised that what is being balanced is two public interests, to some extent pulling in two different directions. It is not a matter of weighing the public interest in punishment as against the private interest of the defendant in rehabilitation." For children, there is greater emphasis on rehabilitation (both a public interest and private interest), and a genuine interest in diverting mentally ill children from the criminal justice system. 1. the suitability of the sentencing options available if the defendant is found guilty of the offence; (likely a control order but for age, Bugmy factors, mental illness causally related to offending: per Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, 100 days spent in detention already and excellent prospects of rehabilitation). 2. relevant changes in the circumstances of the defendant since the alleged commission of the offence; compliant with YKC Action and Support Plan – including CTO, stable accommodation, work and developing cultural connections. 3. the defendant's criminal history is significant but, in hindsight, related to mental illness. 4. whether the defendant has previously been the subject of an order under this Act or s 32 of the Mental Health (Forensic Provisions) Act 1990; (No). 5. whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan; (Yes). 6. whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public; (less likely if compliant with a CTO – has been compliant for 5 months). 7. other relevant factors. 1. Other relevant factors include: that if the matters were defended and Louie was mentally ill - so to be not responsible according to law for his actions and the Court did not impose a CTO, or stay proceedings, then the Court must dismiss the charges. In R v McMahon [2006] NSWDC 81 Berman J at [6] says: "As far as those suffering from mental illness are concerned, the law is, and has been for many years, that people who do not know the quality and nature of their acts, or who do not know that their acts are wrong, are not guilty of an offence (known since 1843 as the M'Naghten test)." Further, Berman J at [12] notes: "The finding that a person is not guilty on the grounds of mental illness is not a finding that the person should be free. It is merely a finding that the person was not criminally responsible for his or her actions." Berman J at [11] observes: "…indeed the law has mechanisms in place to protect society and its members from those who are mentally ill." The only mechanism in the Local and Children's Court in these such matters is a CTO. 1. Other relevant factors also include: Relevant to Mr Hong's submissions that some of the offences are too serious to be dealt with by way of a CTO is, the now President of the Mental Health Review Tribunal (MHRT), Magistrate Huntsman's observations in her paper: Mental Illness Defence and Diversionary Orders, referencing the Law Reform Commission (LRC) in its review: People with Cognitive and Mental Health Impairments in the Criminal Justice System, Criminal Responsibility and Consequences, May 2013 (Report 138). "The LRC observed that the fact that a defendant found NGMI (not guilty on the grounds of mental illness) in the Local Court must be discharged under common law creates an anomaly: the more serious the crime, the greater the likelihood that diversion will not be suitable, and the defendant will be dealt with according to law, and if found NGMI will be discharged." "The LRC concluded: Defendants charged with minor offences may be diverted…" (Noting that prosecutors usually do not take issue with MH diversions for less serious matters). "…whereas those charged with more serious offences…" (Noting that prosecutors generally take issue with MH diversions for serious matters). "…may have to be discharged without supervision or treatment." 1. Other relevant factors also include: 1. The s 6 principles of the Children (Criminal Proceedings) Act 1987. 2. In KT v R [2008] NSWCCA 51 at [22]-[26]; (2008) 182 A Crim R 571 ("KT"), McClellan CJ at CL stated: "In recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation." 1. In R v Israil (2002) NSWCCA 255 Spigelman CJ said: "...adopting the diversionary route does not mean that a defendant is not exposed to punishment. While an order under s.32(3) is not custodial in the strict sense, it may involve the imposition of conditions restricting a discharged defendant's freedom of movement and actions." 1. Louie remains in the YKC with significant surrounding supports. 1. While the usual length of a CTO is 6 months, a CTO can be made for up to 12 months. DECISION: INTEGRATING THE FACTS AND LAW 1. The Act's three key objectives of community safety, appropriate responses that decrease reoffending, and efficient and effective use of court resources are achieved by a CTO. 2. Diversion can benefit both the young person and the wider community by addressing the causes of offending. It serves to reduce reoffending by addressing, treating and/or controlling the offending behaviour. 3. Earlier targeted intervention, particularly for young people with trauma marred by dispossession, parental incarceration, out of home care experiences, exposure to domestic abuse, homelessness and fragmented education may reduce future serious offending – with a likely consequence of reducing First Nations over-representation in detention/prison. 4. CTOs, particularly for adolescents, produce a lasting reduction in bad behaviours by improving developmental outcomes. 5. Increased investment in treating persons with a mental illness would not only make the community safer, but it would also save money by reducing the rate of further allegations and the possible return to detention. 6. The cost of mental health services, especially those focussed on early intervention are to be considered against the enormous costs associated with the incarceration of juveniles. 7. The Act provides that diversion orders are only applicable to offences dealt with summarily and are not available to defendants who are facing more serious charges. 8. If young people who are charged with minor offences are diverted and those charged with more serious offences are not, then if the Court finds a young person not guilty on the grounds of mental illness the young person may have to be discharged without supervision or treatment. 9. Whilst the law has mechanisms in place to protect society and its members from those who are mentally ill, the only appropriate mechanism in the Local and Children's Court in such matters is a CTO. ORDERS 1. In each matter the Court orders the discharge of Louie into the care of the O… Community Mental Health and Drug and Alcohol Service (the mental health facility) for implementation of the Community Treatment Order in accordance with the Mental Health Act 2007 for a period of 6 months. 2. Louie is required to be present, at the reasonable times and places specified in the order to receive the medication and therapy, counselling, management, rehabilitation and other services provided in accordance with the treatment plan. 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: 09 July 2024