R v McKellar (No 6)

[2014] NSWSC 1169

Supreme Court

New South Wales

Medium Neutral Citation:

R v McKellar (No 6) [2014] NSWSC 1169

Hearing dates:

22 August 2014

Decision date:

22 August 2014

Jurisdiction:

Common Law - Criminal

Before:

Button J

Decision:

(1) The offender is to be detained in a mental health facility.

(2) The Mental Health Review Tribunal may determine from time to time the particular defined mental health facility in which the offender should be detained.

Catchwords:

MENTAL HEALTH - Mental Health Review Tribunal determined that offender suffering from mental illness - whether possible to order detention other than in a defined mental health facility

Legislation Cited:

Mental Health Act 2007 (NSW), ss 4, 109
Mental Health (Forensic Provisions) Act 1990 (NSW), ss 3, 24(2), 24(3), 27

Cases Cited:

Director of Public Prosecutions v Khoury [2014] NSWCA 15
State of New South Wales v TD [2013] NSWCA 32

Category:

Procedural and other rulings

Parties:

Regina
Shane Thomas McKellar

Representation:

Counsel:
Mr J Pickering SC (Crown)
Ms C Davenport SC (Defendant)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Blair Criminal Lawyers Pty Limited (Defendant)

File Number(s):

2011/180041 2011/167627

EX TEMPORE Judgment

1. On 17 April 2014 I imposed a limiting term upon the offender after a special hearing was determined in favour of the Crown. I also referred the offender to the Mental Health Review Tribunal ("the Tribunal") pursuant to s 24(2) of the Mental Health (Forensic Provisions) Act 1900 (NSW) ("the Act").

1. On 8 July 2014 I received a notification from the Tribunal of its determination with regard to whether or not the offender is suffering from mental illness, pursuant to s 24(2) and 24(3) of the same Act. A detailed report was provided that stated unequivocally that the offender is indeed suffering from a mental illness. The report invited me to proceed to make an order under either ss 27(a) or 27(b) in accordance with the recent decision of Director of Public Prosecutions v Khoury [2014] NSWCA 15.

1. Section 27 of the Act is as follows:

27 Orders Court may make following determination of Tribunal after limiting term is imposed

If a Court is notified by the Tribunal of its determination in respect of a person under section 24 (3), the Court may:

(a) if the Tribunal has determined that the person is suffering from mental illness or that the person is suffering from a mental condition for which treatment is available in a mental health facility and that the person, not being in a mental health facility, does not object to being detained in a mental health facility-order that the person be taken to and detained in a mental health facility, or

(b) if the Tribunal has determined that the person is not suffering from mental illness or from a mental condition referred to in paragraph (a) or that the person is suffering from such a mental condition but that the person objects to being detained in a mental health facility-order that the person be detained in a place other than a mental health facility.

1. The report also effectively recommended, pursuant to ss 46 and 47 of the Act, that the offender be detained at the Metropolitan Reception and Remand Centre, a placement that he has had for quite some time and within which he is settled and progressing well.

1. However, I became concerned about whether the Metropolitan Reception and Remand Centre is a mental health facility as defined in s 3 of the Act by reference to s 4 of the Mental Health Act 2007 (NSW) and the Government Gazette.

1. That is because s 3 of the Act provides that a "mental health facility has the same meaning as it has in the Mental Health Act 2007." Section 4 of the Mental Health Act states that a mental health facility "means a declared mental health facility or a private mental health facility". A declared mental health facility "means premises subject to an order in force under s 109." A private mental health facility "means premises subject to a licence under Division 2 of Part 2 of Chapter 5."

1. Section 109 of the Mental Health Act is as follows:

109 Establishment of declared mental health facilities

(1) The Director-General, by order published in the Gazette:

(a) may declare any premises to which this section applies and that are specified or described in the order to be a declared mental health facility, and

(b) may, in the same or another order so published, name the premises so specified or described, and

(c) may, in the same or another order so published, limit the provisions of this Act or the purposes under this Act for which the facility is a declared mental health facility.

1. The Metropolitan Reception and Remand Centre has not been the subject of an order published in the Gazette.

1. There is nothing to suggest that the Metropolitan Reception and Remand Centre could be a "private mental health facility" as defined.

1. Separately, I also became concerned whether, as a matter of statutory construction in light of the determination of the Tribunal that the offender suffers from a mental illness, I could order his detention in a place that is not a defined mental health facility: see generally the decision of the Court of Appeal in State of New South Wales v TD [2013] NSWCA 32.

1. Because of my concerns I had the matter relisted to obtain the assistance of counsel for each party. I also respectfully invited, through my Associate, a representative of the Tribunal to attend and assist me as a friend of the court; that invitation was declined.

1. Having heard the submissions of the parties, I have come to the view that s 27(a) of the Act is engaged, because the Tribunal has determined that the offender is suffering from mental illness. That requires that I order that he be detained in a defined mental health facility. Because the Metropolitan Reception and Remand Centre is not so defined, I cannot order that he be detained there, even though I fully accept the recommendation of the Tribunal that it would be in the best interests of the offender and the community for him to be held at that location.

1. In light of the fact that I do not consider that I am empowered to accept the recommendation of the Tribunal, and in light of the fact that I have not been provided with any alternative recommendation, I consider that I should not be overly prescriptive in my order. The parties are content with that course.

1. Finally, I respectfully suggest that, when making notifications to a Court pursuant to s 24(3) of the Act in cases where the Tribunal has determined that an offender is suffering from mental illness, it could be helpful for the Tribunal to state whether a recommended placement is a defined mental health facility.

1. For the foregoing reasons I make the following orders:

(1)   The offender is to be detained in a mental health facility.

(2)   The Mental Health Review Tribunal may determine from time to time the particular defined mental health facility in which the offender should be detained.

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