Supreme Court New South Wales Medium Neutral Citation: R v Loughrey [2011] NSWSC 1456 Hearing dates: 4/11/2011 Decision date: 29 November 2011 Jurisdiction: Criminal Before: Fullerton J Decision: Not guilty by reason of mental illness Catchwords: CRIMINAL LAW - murder - intent to murder - trial by judge alone - defence of mental illness - special verdict Legislation Cited: Criminal Procedure Act 1986 Mental Health Act 2007 Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Waterlow [2011] NSWSC 326 Category: Principal judgment Parties: The Crown Matthew Peter Loughrey (Accused) Representation: Counsel A McCarthy (Crown) P Hamill SC (Accused) Solicitors Director of Public Prosecutions (Crown) Mitchell Lawyers (Accused) File Number(s): 2011/4767 Judgment 1HER HONOUR : On 5 January 2011 Matthew Peter Loughrey, a mental health patient at Bloomfield Hospital in Orange, attacked a nurse, Emily Pritchard, whilst armed with a knife. She suffered multiple lacerations to her hand. Another nurse, Robert Fenwick, intervened and was fatally stabbed in the chest. He also received injuries to his face, right wrist, palm and thumb, upper right forearm and left ring finger. 2On 30 September 2011 Mr Loughrey was charged with wounding Ms Pritchard with intent to murder her and with the murder of Mr Fenwick. 3On 25 October he was arraigned before me and pleaded not guilty to both charges on the grounds of mental illness as provided for in s 22 of the Mental Health (Forensic Provisions) Act 1990 ("the Act"). 4With the consent of the Director of Public Prosecutions, and with leave granted under s 132 of the Criminal Procedure Act 1986, the trial was fixed for 4 November 2011 and to proceed on that date without a jury. 5The sole issue at trial was whether Mr Loughrey had discharged the onus of establishing that he should be acquitted of both charges on the grounds of mental illness pursuant to s 38 of the Act. This is sometimes referred to as a special verdict. The defence is made out if I am satisfied that, more probably than not, at the time of the offences Mr Loughrey was suffering from a mental illness such that he did not know that what he was doing was wrong. 6In R v Waterlow [2011] NSWSC 326 Hidden J, in considering the test for mental illness as I have stated it, also said: [17] The test was explained by Sir Owen Dixon in his summing-up to the jury in a murder trial in Canberra in 1933, in which the issue was mental illness: The King v Porter (1936) 55 CLR 182. Although couched in the language of a past generation, it would be difficult to find a more lucid explanation of it. Speaking of the accused in that trial, His Honour said (at 189-90): "... The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by "wrong"? What is meant by wrong is wrong having regard to the everyday standards of reasonable people." 7The Crown did not seek to persuade me that a special verdict ought not be entered in this case. 8By consent, and without objection, the Crown tendered: an agreed statement of facts; a number of witness statements; transcripts of recorded conversations between police and Mr Loughrey; a transcript of a recorded conversation between police and Mr Fenwick on the day of the attack; photographs of Ms Pritchard's injuries and the knives used in the attack; and a medical report from Dr Samson Roberts, consultant forensic psychiatrist, dated 31 August 2011. 9Mr Hamill SC relied upon the following psychiatrists' reports: (1)Dr Stephen Allnutt, dated 3 May 2011 and 13 July 2011; (2)Dr Olav Nielssen, dated 12 June 2011; (3)Dr Bruce Westmore, dated 26 July 2011. 10The psychiatric reports from all four consultant psychiatrists reflect a uniformity of opinion that at the time of the fatal attack upon Mr Fenwick and the attack upon Ms Pritchard Mr Loughrey was suffering from a mental illness that deprived him of the capacity to consider the moral or legal consequences of his behaviour. 11Mr Hamill also tendered selected material from the compendious medical records relating to Mr Loughrey's care at Bloomfield which included records of the treatment he has received from other health services dating from the time when the need for medical intervention for his mental disability was first identified as a young boy. Mr Hamill also relied upon a statement from Mr Loughrey's mother, which was received after the hearing but with the express consent of the Crown. 12No oral evidence was called in the proceedings. Facts 13Bloomfield Hospital is a mental health care facility providing acute and non-acute inpatient care for the residents of Orange, Bathurst, Dubbo, Broken Hill and surrounding areas. 14In January 2010 Mr Loughrey was admitted to Dubbo Base Hospital under Schedule 1 of the Mental Health Act 2007 after having kicked, punched and pushed his mother with whom he was then residing at Goodooga, a relatively remote rural community near Brewarrina in north-western New South Wales. She raised her concerns about her son's behaviour with the hospital but attempts to have him assessed at that time were thwarted by floods. The hospital notes record that the assault was committed while Mr Loughrey was expressing delusional thoughts. These are not further described. Prior to his eventual admission to Dubbo Base Hospital, his mother reported that he was agitated and ransacking the house for poison, apparently with the intention of committing suicide. When emergency services arrived at his mother's home he swam across the river and hid, not returning until the following morning. 15The hospital notes also record that he had been discharged from the Dubbo Mental Health Inpatient Unit in December 2009 after a 52-day admission with no definite diagnosis but with what was described as definite evidence of psychosis with delusions and some (mild) thought disorder. His toilet habits were described as bizarre with associated poor personal hygiene. Prior to his discharge, attempts were made to find him a placement to deal with what were described as his chronic problems, which apparently proved unsuccessful. 16He was detained as an involuntary patient at the Dubbo Base Hospital in January 2010 for 36 days before being transferred to Bloomfield where it was envisaged that he would benefit from a program specific to his needs, addressing first his toileting problem and then the need for him to develop appropriate socialisation skills to facilitate his integration into the community. The discharge summary notes that he was thought disordered on transfer and would likely require long-term antipsychotic therapy possibly with Clozapine, an antipsychotic medication with particular efficacy in the treatment of resistant schizophrenia over other antipsychotic medication . It is clear that Clozapine was not incorporated into his treatment regime at Bloomfield. It was also noted at that time that he had a history of poor compliance with medication which he took impulsively and infrequently. 17The order for his admission as an involuntary patient expired in April 2010. He remained at Bloomfield as a voluntary patient thereafter until his arrest on 5 January 2011. He has been remanded in custody since that time. 18At the time of the stabbing Mr Loughrey was receiving what Dr Nielssen regarded as relatively low doses of the antipsychotic medications Quetiapine 400mg and Risperidone 2mg at night, together with 1200mg of valproate twice daily. It is only since his remand that he has received treatment with Clozapine. After a recent review of Mr Loughrey's current mental functioning, Dr Roberts confirmed that his condition has improved which he attributes directly to a review and monitoring of his medication, in particular the incorporation of Clozapine. He said that Mr Loughrey had less thought disorder with less intrusion of delusional material into his conversation. He continues to be managed by a low dose of the antidepressant Sertraline and the mood stabiliser Sodium Valporate. He also takes a thyroid replacement medication, Thyroxine, at a dose of 50 micrograms per day. 19Dr Roberts said that with a closely monitored treatment regime with Clozapine, he would expect Mr Loughrey to continue to improve over the upcoming months. He said that the question of complete remission remains uncertain. 20At the time of his arrest Mr Loughrey resided at the "Moonya Cottages", a unit within the Bloomfield Hospital grounds where patients aged between 18 and 65 with severe mental illness are housed. The cottages are self-contained with a kitchen and living area to which the patients have unrestricted access. The patients residing in the cottages are considered to be at low risk of self harm, or harming others. Dr Scott Clark, Clinical Director of Psychiatry for the Greater Western Area Health Service, advised that the patients at Moonya Cottages are considered to be capable of living in shared accommodation and to actively engage in various rehabilitation programs, both on and off the Bloomfield campus, with the potential to transition to living in the wider community in time. 21These patients are also assessed as unlikely to leave the hospital of their own accord although, so far as Mr Loughrey was concerned, it appears that there was no impediment or restriction on him being able to leave Bloomfield if he wished, subject to leave being applied for and granted. This was Mr Loughrey's mother's understanding. It is also reflected in the clinical notes from Bloomfield. On 7 June 2010 there is a note to the following effect: I explained to MHW (Mental Health Worker from Lightning Ridge) that we were not doing anything for [Mr Loughrey] here except for medication and as he is a voluntary patient he is free to go as he is a voluntary patient he is free to go as the Psychiatrist feels this is the most suitable arrangement for [Mr Loughrey] at this stage. 22I do note, however, that Mr Loughrey told his mother that on one occasion he had walked down the main road leading to Orange (which is approximately 3.5km from the hospital) until a staff member recognised him and brought him back to hospital. In addition, before Mr Loughrey could visit his family in Sydney over the 2010 Christmas period, it was necessary that he apply for leave which was to be subject to the approval of a psychiatrist, doubtless with a view to ensuring that he was provided with adequate medication for self administration. When he left on that occasion he was supplied with enough medication for a month. He left Bloomfield on 24 December 2010 but returned four days later as his mother apparently resolved not to take him home to Goodooga as planned. The evidence was silent as to why this was so. 23It would appear to me that whilst Mr Loughrey may have officially had no restriction or impediment to being able to leave Bloomfield, his movements were nonetheless controlled to some extent. This has some significance in light of what Mr Loughrey said to Mr Fenwick after the struggle and when he had been disarmed. The day of the incident 24Ms Pritchard and Mr Fenwick arrived to work at 2.45pm on 5 January 2011. Mr Loughrey was well known to Mr Fenwick. Mr Fenwick was an experienced psychiatric nurse who had been working at Bloomfield for many years. He was aged 63 at the time of his death. Ms Pritchard completed her training as an Endorsed Enrolled Nurse and qualified in April 2010. She commenced work at Bloomfield in September/October 2010. She was aged 20. She worked two shifts in the Moonya Cottages prior to the incident, a night shift when she did not engage with any of the patients, and a day shift when Mr Fenwick introduced her to the patients, including Mr Loughrey. That was on 4 January 2011. 25On 5 January 2011 she said that they were preparing to commence their rounds of the Cottages when Mr Fenwick received a telephone call from Mr Loughrey inquiring as to who would be the nurse accompanying him on his rounds that day. Mr Fenwick told him that it was none of his business. Ms Pritchard said that she observed Mr Loughrey following them whilst on their rounds. 26Mr Fenwick said that he and Ms Pritchard arrived at Cottage 10 just after 3.30pm. Whilst he administered an injection to a male patient in one of the bedrooms of the cottage Ms Pritchard waited outside to afford the patient some privacy. She then saw Mr Loughrey standing at the door of the cottage. He said, "Is Bob there? Is he busy?". She told him that Mr Fenwick was busy. Mr Fenwick (who apparently overheard the conversation) told Mr Loughrey to go away and that he would be out in a minute. Mr Loughrey then proceeded to open the door. Ms Pritchard directed him not to come inside but to wait for Mr Fenwick outside. Mr Loughrey then lunged at her with what she described as a serrated knife, severely lacerating her right hand which she had raised to protect her face. She screamed and ran into the bedroom passing Mr Fenwick as he headed out of the bedroom towards Mr Loughrey. As she cowered on the floor by the bed she saw Mr Fenwick wrestling with Mr Loughrey who was, according to Mr Fenwick, wildly swinging punches. The patient was at this time face down on the bed. Mr Fenwick repeatedly told Mr Loughrey to drop the knife. He refused saying, "Just let me kill her. I want to kill her". It was at this time that he saw the knife and managed to push Mr Loughrey against the screen door. Mr Loughrey continued to resist Mr Fenwick's attempts to contain him. Mr Fenwick told police that he felt a punch to his chest and then realised he was losing a lot of blood. He then said that as he attempted to manoeuvre Mr Loughrey outside he was cut on the back of the hand. Mr Fenwick eventually used a broom both to hit out at Mr Loughrey and to defend himself against the continued attack. He said he managed to send an alert via the two-way radio. He said that when Mr Loughrey backed off a little (that is, after Mr Fenwick had been stabbed) he said "I want your car keys. Where are your car keys?". 27As Mr Fenwick and Mr Loughrey were wrestling inside the cottage Ms Pritchard could see that the front of Mr Fenwick's shirt was soaked in blood. She also alerted security, and then pleaded with the patient to get up and help. He got up off the bed and ran to where Mr Loughrey was continuing to lunge at Mr Fenwick. Eventually the patient managed to shove Mr Loughrey towards the front door and outside where he endeavoured to contain him on the front lawn. Ms Pritchard ran out of the back of the cottage and around the side to the front by which time security had arrived. One of the security guards escorted Mr Loughrey a short distance from the scene and sat him down under a nearby tree. Mr Loughrey said to him, "I've stabbed Bob". He also said that he was aiming for Mr Fenwick's heart and that the knife broke and the rest of the knife was in his coat pocket. A knife with a broken blade was found by police on the pathway in front of the cottage. The blade was found in Mr Loughrey's jacket which was found on the lawn. A second knife was found in the grass nearby. 28Mr Loughrey was immediately taken to the acute adult unit at Bloomfield Hospital within the hospital complex where he was spoken to by Dr Patfield, psychiatrist. 29Mr Fenwick was conveyed to Orange Base Hospital in a critical but stable condition and was later that evening transferred to Westmead Hospital in Sydney. On 6 January 2011 he died from a stab wound to the chest that penetrated his heart. The wounds to his hands and wrists were considered defensive injuries. 30Ms Pritchard suffered a sharp laceration to the ulnar border of the right little finger that severed the tendons and nerves in that finger. Mr Loughrey's account to Dr Patfield 31At about 4pm (that is, within 30 minutes of the attack) Mr Loughrey was detained under the authority of a Mental Health Schedule signed by Dr Patfield. In his statement he says: [Mr Loughrey's] account of events was somewhat confused but he said the following. (I refer to my notes made shortly after the interview). "I tried to get the female but the male got in the way". He told me twice that he had heard that a local chiropractic practice called "Spine Alive" had the ability to "bring them back to life". His thinking was disorganised but he appeared to believe that if he killed a nurse, Spine Alive would be able to bring him or her back to life. He seemed to agree with my suggestion that he must have been angry with the nurse - he said of the female nurse in a dismissive voice that she was "just a typical Australian". ... My assessment after my brief interview and review of his history was that he was suffering from an acute paranoid psychosis. Aggression had apparently not been a major issue in the past but he clearly appeared to be dangerous at this point. He was made an involuntary patient under the Mental Health Act with the plan that he be managed in the MHICU with individual monitoring by security staff, at least overnight. He was prescribed appropriate antipsychotic medication. He was taken into police custody the following morning. Mr Loughrey's admissions to police 32At 4.29pm police attended the secure unit and had a conversation with Mr Loughrey in which he admitted stabbing Mr Fenwick and Ms Pritchard. Although there was no objection to the tender of the interview, I raised with counsel my concerns at its reliability in circumstances where Mr Loughrey was a mental patient and had within the previous 30 minutes been administered antipsychotic medication by Dr Patfield; where police (quite legitimately) pressed Mr Loughrey to account (or to try to account) for his behaviour by repeated questioning; and where some of his answers suggested that he decided to harm, if not to kill Mr Fenwick and Ms Pritchard in retaliation at the quality of the treatment he was receiving at the hospital. Were this a predominating rationale for Mr Loughrey arming himself and stabbing both nurses the defence of mental illness might not have been available to him. However, upon closer analysis of what Mr Loughrey told police throughout the interview and what he had told Dr Patfield within a very short time of the assaults , and after taking into account that a transcript of the police interview in a question and answer format might convey a sense of ordered thinking that an audio recording might belie, I have concluded that Mr Loughrey's attempt to explain his conduct does not derogate from the conclusions reached by the consultant psychiatrists as to his mental functioning and capacity at the relevant time. 33Mr Loughrey was interviewed by each of the consultant psychiatrists over intervening months and each reported upon his diminished capacity to consider the moral or legal consequences of his behaviour. They also took into account what Mr Loughrey told police which did not dissuade them from coming to the independent, but ultimately collective, view that Mr Loughrey's mental illness was such that the defence of mental illness was open to him . I will consider their evidence in detail later. Suffice to note at this time that all doctors reported that they had difficulty in obtaining a coherent account of the offence from Mr Loughrey. Dr Westmore noted that Mr Loughrey provided "a very disorganised, dislocated, over inclusive history which was a reflection of his continuing psychotic state". Dr Allnutt said that he "presented as tangential, moving off the topic and it was difficult to follow his logic; he had difficulty staying on task; he frequently asked [him] what was the question I had asked". 34Mr Loughrey told police that he broke into the Nurses Station, which was attached to the cottage in which he resided, to obtain the knives that he ultimately used in the attack and, it would seem with that intention. Later in the interview he said that he got the knives because he wanted to "get the keys and drive away". This was consistent with what he told Mr Fenwick minutes after the attack. He was unable to explain why he would resort to getting a knife if he merely wanted to obtain a key to drive away from the hospital. 35Mrs Loughrey provided the following information in regard to Mr Loughrey's driving skills: Matthew used to drive around our property, which comprises approximately 22000 acres. Whilst he could drive, he never obtained a provisional or unrestricted driver's licence although at one stage he held a learner's permit, however, he hardly drove at all on a public road, perhaps at most, only on two or three occasions. 36She also informed me that her son spent time over Christmas in Sydney with her family and that on his return to Bloomfield on 28 December 2010 he did not appear to her to have any objection or resistance to being returned to the hospital. 37Mr Loughrey also informed police that after encountering difficulty gaining access to the Nurses Station he caused some damage. ( I t would appear that he smashed a coffee mug and dented a number of the doors of nurses' lockers. He told Dr Nielssen that he knew where the knives were kept in a locked drawer and he forced it open because he "felt so angry".) After ultimately getting the knives he said he put them in the top pocket of his jacket and went to find Mr Fenwick and Ms Pritchard in order to confront them. He said he put the knives in his jacket in order to avoid suspicion and "so they wouldn't see them until it was too late for them". While this also suggests a degree of rational forethought, for the reasons I have discussed it does not, in my assessment, undermine the availability of the defence of mental illness. 38Mr Loughrey told police that he had obtained the knives because he was "sick of being in hospital". When questioned by police as to the reason why he used the knives to attack the nursing staff he said: I'm sick of the medicines, I think they're going around in circles. I think they have no records of my past, they're just simply going over old, old medicines, and I just, I just have no one, no one, no feedback. And no one to supervise, so I just wanted to do something. I felt angry, I felt angry quite often and other things. ... My diagnosis changes every time I talk to a psych nurse. I'm sure the computer says something different every time... ... They just stick to the treatments in the Mental Hospital. They seem to just repeat them over, they don't seem to keep any records of what they've already tried. 39Mr Loughrey said that when he arrived at Cottage 10 on 5 January he learnt that Mr Fenwick was administering an injection to another patient. He said: ... I thought that was my chance. So I stepped in, and I knew there would be a ... struggle. And she withdrawed (sic), to the male nurse who was trying to finish giving the injection. And he, he charged up. 40He said that he struck Ms Pritchard with the knife before she ran into the room and before Mr Fenwick intervened on her behalf. He said that he "didn't have much of a plan" and that he "didn't think it out". However, he subsequently said that he intended to aim for Ms Pritchard's chest with the knife but that he: ... didn't get the chance. [He] missed the chance. And [he] missed the head and [he] missed the back of the neck. 41The following exchange then took place between Detective Senior Constable Grey and Mr Loughrey: Q: Is your reason in wanting to stab her in those locations, is that intentionally to inflict serious injury upon her or to kill her? Even if it was just a spur of the moment thing, what was going through your mind... A: It would have been better off over the top of the head. That would have killed her ... Bob. I suppose I should of hit him on the top of the head too, he wouldn't of known it. Q: Alright. So basically you're telling me you didn't have a plan but your intention was to go there to seriously hurt this nurse or to kill her with the knives. Is that right? ... Or was it the case that you just hadn't... A: Look ... I wanted to do something. I've had nothing to do for days. People don't talk to me. Q: Alright. So ... A: ... something to do ... kill someone and ... people read about it with my diagnoses. Q: Alright. So you've got to a stage where you've had enough? A: ... I don't like the... community and the other patients don't talk to me. And the staff have to do their work and won't ... [inaudible] without me. No one takes me on car trips because I'm an embarrassment on the Tetralin. [Tetralin is a hydrocarbon whose molecular structure is similar to naphthalene. There is no evidence as to whether his clothing was treated with Tetralin. It would certainly not be ingested.] 42Later in the interview, when he was further questioned as to whether he intended to kill Ms Pritchard, he said that it was his intention to "knock her out, unconscious". 43He said that Mr Fenwick approached him and tried to wrestle the knife from his hand. He said that Mr Fenwick "didn't seem to want to hurt [him]". He described Mr Fenwick as a "nice person, a very nice person". He said that he stabbed Mr Fenwick "once and again and again" to his chest and neck/shoulder area. He agreed that the patient that Mr Fenwick had been tending to before the attack pushed him out the door of the cottage and attempted to overbear him. Mr Loughrey said that when he showed the other patient the knife he "backed off". Mr Loughrey said that Mr Fenwick picked up a broom and began hitting him with it. He said that he managed to get hold of it and continued to stab Mr Fenwick in the chin/neck/collarbone area. He said he heard Mr Fenwick instruct Ms Pritchard to press her duress alarm after which security and other staff members arrived at the scene. 44When further questioned about his intentions, the following conversation took place between Mr Loughrey and Detective Senior Constable Grey: Q: Do you know why you did, Matthew do you... A: ... just thought I'd do something. Q: So this incident happened because you just needed to let people know what? That you're not getting the treatment that you need? That you're not happy with the medication you need, I'm just... A: I'm not achieving anything. People are frightened of me. And they, they just fob me off with anything. Q: Alright. What aren't you achieving? What do you want to achieve? A: You wouldn't believe me. Q: Do you want to tell me or not? A: [No reply] Q: Well what did you have to achieve by getting the knives? A: I told you I would have been better off aiming at the top of their heads. It would have killed either of them. Q: Did. You said... A: It just would have knocked them unconscious until, until somebody raised the alarm. But I probably would have had a lot of (blood?)...[inaudible]...to do the same thing. Q: Well what would be the objective of knocking them on the head and knocking them out? A: Stabbing them on top of the head, I would have knocked them out I imagine, and they have got to arrive at hospital to be stabilised I'd imagine. See I believe in these ... chiropractors that I believe in, they bring people back when things happen to them. Q: Chiropractors? A: Yeah ... I think they're witch doctors, they must be. I saw a fellow in Lightning Ridge, ... I was accused of not taking my medicine, the same afternoon I saw, after I saw him in the morning. You can feel the pulling inside your body as he runs the electricity over the outside. Q: And this is someone you went and saw is it? A: Yes, in Lightning Ridge ... and people survive. Q: Alright ... explain to me. And this is the last time I'll ask you. Can you explain to me why you took the knives and confronted the two nurses? What was your intention? A: Because I stabbed them. It doesn't change the fact that I've stabbed them at... Q: So why did you stab Bob then? A: The other, some of the English nurses humour me. And I changed my mind. Q: Is the reason you stabbed Bon, is because he got in between you and the female nurse? A: Yeah. He was serious. Q: He was serious? A: He, even though he's an old man, he didn't humour me. Q: He responded serious because it was serious situation Matthew, and he was trying to stop you. Did you think that might be the case? That he didn't want you to hurt the female nurse. Can you see Bob, why Bob would do that? Do you understand why Bob do that, to protect someone? A: I suppose for a duty of care. Q: And this is the last time I'll ask you this, and you don't have to answer which I've told you the whole time. Was it your intention to kill that female nurse with the knives? A: It was my intention to knock her out, unconscious. Mr Loughrey's mental health 45Mr Loughrey has over the years been described as a "diagnostic dilemma". He has received a variety of diagnoses including developmental disorder, conduct disorder, autistic spectrum disorder (including Asperger's syndrome), schizotypal personality disorder, schizophrenia and bipolar affective disorder. Not surprisingly, this has been productive of a variety of treatments and interventions culminating in his residency at Bloomfleld Hospital . Since early childhood he has been treated with the following medications: methylphenidate, dexamphetamine, thioridazine, fluoxetime, risperidone, amisulpride, olanzapine, mirtazapine, pimozide, venlafaxine, sodium valporate, quietapine, sertraline. 46Mr Loughrey was born in 1977 in Sydney. He was 33 at the time of the stabbing and is currently 34 years of age. He is an only child. His parents' marriage had frequent separations and reconciliations before they finally divorced in 1979 when Mr Loughrey was about 3 years old. He had limited contact with his father growing up. He reported being exposed to domestic violence as a child. 47His development was considered normal until the age of 18 months when his mother first noticed some "slowness" in his development. At the age of 3 he stopped talking for a period. Between the ages of 6 and 8 he was admitted to Arndell Children's Unit, a child and adolescent psychiatry unit at the Royal North Shore Hospital in Sydney, after his mother reported hyperactivity, impaired concentration, a low frustration threshold, delayed speech and a severe speech dysfunction. 48Upon discharge from Arndell he was deemed within the "normal" range of development for his age, apart from his speech disorder. He attended school until the age of 10 after which he was home-schooled by his mother. 49He was admitted to Arndell a second time between the ages of 13 and 16. At the age of 16 or 17 years he moved to Goodooga with his mother and maternal grandmother. 50Mr Loughrey has a long history of behavioural problems with social isolation and poor social skills. He also has a history of aggression. He told Dr Allnutt that at the age of 13 or 14 he had been arrested for smashing a window and that he hit a police officer when he was at school. He recalls pushing something into his grandmother and breaking her finger. In the past he has threatened hospital staff, damaged hospital property, attempted to set fire to an inpatient unit and assaulted a staff member with a flaming torch and, as I have noted, assaulted his mother which resulted in his being scheduled in January 2010. 51Mr Loughrey is single and has never had a partner. He has been on a disability support pension since the age of 16. The only employment he had undertaken is delivering newspapers and working in a sheltered workshop until the age of 16. Mental state at the time of the offence 52As I have noted above, the consultant psychiatrists hold the unanimous view that at the time of the stabbing Mr Loughrey was suffering from a disease of the mind that prevented him from recognising the moral wrongfulness of his actions and compromised his capacity to understand the nature and quality of his actions. With the exception of Dr Nielssen, all doctors diagnosed Mr Loughrey with schizophrenia. Dr Nielssen diagnosed Mr Loughrey with pervasive developmental disorder and a psychotic illness which he did not further identify. Dr Westmore diagnosed a chronic paranoid schizophrenic illness. Dr Allnutt was of the opinion that although Mr Loughrey manifests a combination of an autistic spectrum disorder and a chronic psychotic disorder he would likely meet the criteria for a diagnosis of schizophrenia. Dr Roberts diagnosed Mr Loughrey with schizophrenia based upon the account provided by him of the stabbing which reflected a chronic psychotic illness characterised by delusions and gross disorder of thought. 53In addition, all doctors reported that Mr Loughrey appeared to have delusional beliefs in relation to the consequences of stabbing Mr Fenwick and Ms Pritchard, in that he expressed a belief that his actions would not inflict any or any lasting physical harm as he thought that they could somehow be revived or their injuries healed. 54Dr Roberts said that Mr Loughrey: ...[held] the expectation that medical and allied health services would be able to rectify any injuries inflicted as a result of his conduct and that they would be able to bring people back to life. It is apparent that Mr Loughrey was not of the belief, at the time of the incidents for which he is before the Court, that his conduct would have resulted in death. 55Dr Nielssen reported that Mr Loughrey repeatedly expressed the view that Mr Fenwick could somehow be revived by the hospital. Dr Allnutt reported that when he asked Mr Loughrey what had led him to commit the offence he stated: I thought the health system could save the nurses from any damage I did to them ... I was trying to prove I could do things on the TV, I thought I could recover [Mr Fenwick's] health ... I thought they'd bring him back by giving him a blood transfusion. 56Dr Westmore noted that: [Mr Loughrey] was suffering from a disease of the mind (a chronic paranoid schizophrenic illness) which would have totally compromised his capacity to know that he ought not to do the act [of stabbing] and that the act was wrong. 57Dr Allnutt explained that he come to the view that Mr Loughrey was suffering from a disease of the mind compromising his capacity to understand the nature and quality of the actions because: ... it does not appear that he understood the full impact of the consequences of his actions at the time of the offence as he believed that despite stabbing somebody in some way the outcome would not be as severe as it was ultimately and that this belief was derived from his disordered thinking due to mental illness. 58He went onto say: ... in my view the incomprehensibility of his reasoning for acting in the manner that he did, is a function of the degree of irrationality in his reasoning and decision making process at the material time; but that at the material time, he felt justified in acting in the manner that he did and incapable of reasoning about the wrongfulness of his actions with a moderate degree of sense. 59Dr Nielssen observed that: ... the information available about his mental state around the time of the offences and the observations of Mr Loughrey during recent intervals all indicate that he was acutely mentally ill at the time of the offence, rather than acting in response to grief. I believe Mr Loughrey has the defence of mental illness open to him as he has a severe form of mental illness that would be recognised in law to be a disease of the mind, which gave rise to a defect of reason in the form of bizarre beliefs about the staff members and the likely effect of his actions. His grossly disturbed state of mind prevented him from reasoning with sense or composure about the likely consequences of his actions or recognising that his actions were morally wrong... Mr Loughrey was not receiving adequate treatment 60It was the collective view of the forensic psychiatrists that at the time of the stabbing Mr Loughrey was not properly diagnosed as suffering from schizophrenia and, accordingly, not monitored or maintained on appropriate doses of antipsychotic medication. 61Dr Nielssen observed that: Mr Loughrey was given a diagnosis of hypomania and then schizophreniform (schizophrenia-like) psychosis after his admission to Dubbo Hospital [in January 2010]. However, it seems from the entries in the medical records and Dr Patfield's statement that he had not been given a firm diagnosis of psychotic illness during the months he spent in Bloomfield Hospital, despite treatment with a low dose of antipsychotic medication in that time. From an examination of the entries in the medical records, there appears to have been an increase in disruptive behaviour in the period before he went on leave and in the days between returning from leave and the offences. Mr Loughrey attributed the change to a reduction in the dose of medication, but the medical records show that he was receiving treatment with the same low doses during the four days he was on leave [when he returned to Sydney to spend time with his family over Christmas], assuming he took the medication as prescribed. 62I have come to the view on the evidence before me that Mr Loughrey's behaviour on the day of the incident is best understood by reason of a confluence of factors, including the complexity of his underlying condition, a subclinical or at least undetected exacerbation of symptoms of schizophrenia in the days leading up to the attack and, most critically, his ability to obtain access to knives enabling him to inflict serious and fatal injuries on nursing staff - actions that originated in disordered thought which were then coloured by a series of intersecting/contradictory and delusional beliefs. While I venture to suggest that were he adequately managed and were his behaviour more closely monitored, his uncontrolled impulse to arm himself and launch an attack on the nurses may have been avoided, thereby protecting Ms Pritchard from the risk of injury and preventing Mr Fenwick's tragic death as he heroically went to her aid. I do not, by that observation, attribute blame to any particular health care professional or those who are responsible for the management of Bloomfield Hospital (and what I must assume is a process of reviewing the appropriateness of a particular patient being treated as low risk and housed in the Cottage environment), if for no other reason than that this proceeding is not the forum for an inquiry of that kind. Victim impact statements 63I received victim impact statements from Ms Pritchard, Mr Fenwick's wife, Jan Fenwick and his daughter, Kate Fenwick, which I have taken into account in the way I am permitted under the law. 64Ms Pritchard said that the attack has had a physical, emotional, social and psychological impact on her life. She has not regained full feeling in her finger. She suffers from Acute Post-Traumatic Stress Disorder including flashbacks, anxiety, bad dreams and depression. She has noticed a decline in her mood since the attack, which she said has impacted upon her relationships with friends and family. 65Ms Pritchard's work life has also been affected. She said that her sleeping patterns have been disturbed due to persistently bad dreams. This consequently impacts on her ability to attend work. When she is able to attend for work, her duties are restricted. She says: ... I am unable to work in the areas I once would have liked to work, I am unable to work shifts and earn penalty rates, and I am unable to perform certain tasks at work which then leads to judgmental comments from some colleagues... 66Mrs Fenwick has suffered significant grief, having lost her husband of 33 years who she described as a "companion in every way... a calm, reassuring, kind man who was [her] friend as well as [her] partner". I understand entirely the difficulty Mrs Fenwick has in coming to terms with the manner in which her husband died. She expressed feelings of persistent loneliness, sorrow, despondency and heartache, which I accept unreservedly. 67Ms Kate Fenwick has retained memories of the times she shared with her father. Her loss is compounded by not having been able to say goodbye to him, arriving at the hospital after he lost consciousness. She has struggled to regain stability in her life since her father's death. She has experienced various psychological repercussions including disturbed sleeping patterns, a recurring feeling of discomfort around knives and scissors, and a greater sensitivity to the topics of death, killing and mental illness. 68In what I regard as an entirely mature and commendably balanced way, Ms Fenwick expresses regret that the mental health system and Bloomfield Hospital failed to provide the care that Mr Loughrey deserved as a mentally ill patient. She is bewildered at how he had both means and opportunity to access the knives that killed her father. 69I extend my deepest sympathies to Mr Fenwick's family. I also recognise the impact of the incident on Ms Pritchard. I commend her for what I regard as her courage in continuing to pursue a career in nursing when for another young person in her situation a career change would have been entirely understandable. 70I well appreciate that these proceedings and my findings will not ameliorate the unimaginable grief that Mr Fenwick's family has suffered as a result of the senseless death of a beloved son, father and husband and, while I accept that anger and disappointment may surface from time to time in his family and in Ms Pritchard's thoughts and intrusive memories, in our system of justice only the mentally competent are punished as criminal offenders. 71In the special facts of this case I am satisfied that justice has been done under the law by returning a verdict of not guilty by reason of mental illness. Orders 72Until released by due process of law I order that Matthew Peter Loughrey be detained under s 39 of the Mental Health (Forensic Provisions) Act 1990 at the Long Bay Prison Hospital subject to the review of the Mental Health Review Tribunal under s 44 of the Act. 73In light of Mr Loughrey's current treatment and the regime for his future management, the parties have agreed that I recommend that the Mental Health Review Tribunal give consideration to transferring him to the Forensic Hospital at Malabar as soon as is practicable. ********** 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: 29 November 2011