R v BS [2019] NSWSC 935

Supreme Court New South Wales

Medium Neutral Citation: R v BS [2019] NSWSC 935 Hearing dates: 23 July 2019 Date of orders: 24 July 2019 Decision date: 24 July 2019 Jurisdiction: Common Law Before: Hidden AJ Decision: Not guilty by reason of mental illness Catchwords: CRIMINAL LAW – trial by judge alone – killing of 5 year old boy by his father – defence of mental illness Cases Cited: Hawkins v The Queen (1994) 179 CLR 500 R v Minani (2005) 63 NSWLR 490; [2005] NSWCCA 226 The King v Porter (1933) 55 CLR 182 Category: Principal judgment Parties: Regina (Crown) BS (Defendant) Representation: Counsel: M Hobart SC (Crown) M Johnston SC (Defendant)

Solicitors: Solicitor for Public Prosecutions (Crown) Streeton Lawyers (Defendant) File Number(s): 2018/179808 Publication restriction: Nil

Judgment 1. This is a tragic case. The accused is on trial before me, sitting without a jury, for the murder of his 5 year old son. There is no issue that he killed the child. He relies upon the defence of mental illness, and there is no issue about that either.

Facts 1. In written submissions by the Crown prosecutor there is a summary of the relevant facts, which are agreed. They are, in any event, established by the substantial evidentiary material in the Crown bundle which is in evidence. My recitation of the facts is drawn for the most part from those agreed facts. 2. The offence occurred in the morning of 8 June 2018 at the home where the accused lived with his partner and the deceased child, their son. The accused attacked the child brutally, causing his death, in the course of a psychotic episode. 3. The accused has a history of mental illness, having been diagnosed with schizophrenia in late 2003. Over the ensuing years there were a number of admissions to hospital, voluntary and involuntary, and he was under the care of Community Mental Health Services. He was prescribed medication in various forms, with which he was not always compliant, and he has been subject to a community treatment order. A detailed account of his condition and treatment in the period leading up to the offence is set out in the agreed facts. 4. On 19 April 2018 the accused attended Hornsby Hospital and was assessed by mental health professionals. The accused described "feeling pressured to save the world, having delusional thoughts involving the devil and difficulty sleeping". He told the medical officers that "he wanted to sleep and pass away peacefully to save the world". A consulting psychiatrist who examined him noted that he was suffering from "a relapse of psychoses." 5. The accused was voluntarily admitted to hospital and he was prescribed an atypical antipsychotic, Aripiprazole. The first dose was administered on 1 May 2018. He had no side-effects and he consented to commencing a long acting injection. He had been on Quetiapine and his dose was increased to 300mg. During his admission his mental state improved. 6. However, his mental state deteriorated two days after his discharge. He expressed a "wish to die", and he was calling his father and his child "the devil". He was assessed by the Castle Hill Community Mental Health Team on 21 May 2018 and attended their Centre on 22 May, where he declined an appointment with a psychiatrist. 7. The accused's partner believed that his attitude towards his son had changed since his release from hospital on 19 May. She began sending their son to the accused's mother's home because she was "scared" for the child. 8. On 29 May 2018, the accused failed to attend his scheduled appointment at the Community Mental Health Centre at Castle Hill, but on 30 May, his partner contacted the Centre and arranged for the accused to attend later that morning. He did attend and said he was doing well. He was experiencing auditory hallucinations, but denied believing he was no longer in control of his own thoughts and actions and denied any thoughts or plans to hurt himself or others. 9. On that occasion the accused said that he had ceased his oral Aripiprazole seven days earlier as he had run out of prescriptions. He and his partner were advised to return home. The Mental Health Centre contacted them and faxed a prescription for the Aripiprazole to a local pharmacy. 10. On 1 June 2018, the accused told the Mental Health Team that he was having auditory hallucinations, was agitated and staying in bed. On 4 June, he, his partner and his mother attended the Mental Health Team, and he said that he was having auditory hallucinations that "were trying to control him." 11. On 5 June he and his partner again attended the Mental Health Team. He was anxious and restricted and he had deteriorated over the last few days. He was experiencing delusional ideation and auditory derogatory hallucinations, as well as bizarre delusional ideas involving the devil and religion. He was assessed as having ongoing psychotic symptoms and was relapsing. The level of risk was regarded as low to moderate, and it was determined that he required additional or alternative antipsychotic medication. 12. Aripiprazole Depot (400 mg) was administered to the accused that day. The management plan included cessation of oral Aripiprazole, commencement of 100 mg of Quetiapine in the morning and 300mg in the afternoon, and a further 100 mg of Quetiapine in the afternoon if required. He was to be reviewed in two weeks. 13. The accused's partner told the clinician that he was saying that the child was "a very bad kid". On return from this appointment the accused told his partner that he was having thoughts that the child was the devil. Arrangements were made for his mother to care for the child overnight. 14. On 6 June, the accused, his partner and his mother attended the Community Mental Health Centre at Hornsby seeking a voluntary admission for the accused due to his ongoing delusional thoughts. They conveyed their concerns about the child's safety as well as the accused's deteriorating mental state. During the meeting, the clinician recorded the following notes: "Mother made statements such as 'how do I sleep at night? I worry that I will wake up and find my grandson dead as [the accused] has snapped overnight'." 1. They said that they were hoping for a voluntary admission at Hornsby Hospital, but were advised that there were no beds available there. They were told they could wait in Emergency until a bed became available, which was declined. The mother said she would take the accused to another hospital until he was admitted. Later that afternoon, the accused's partner was advised that he had taken some medication and had settled down. 2. On 7 June, the accused attended the Hills Community Centre, where he advised that his son was "safe". That afternoon, he collected the child from his school and then picked up his partner from her work at an Epping Nursing Home. They got fish and chips and returned home. Later that night they went to bed. The child initially slept in the same bed as the accused and his partner, but then he moved to a smaller mattress nearby.