STATE OF TASMANIA v KURTIS JOHN FOWLES 17 DECEMBER 2024
COMMENTS ON PASSING SENTENCE JAGO J
On 21 November 2024, I found Mr Fowles not guilty of two counts of attempted murder on the ground that he was legally insane at the time. The finding of insanity arose because I was satisfied that, at the time of the relevant acts, Mr Fowles was afflicted with a mental disease, namely bipolar affective disorder with a differential diagnosis of schizo-affective disorder, to such an extent that he was rendered incapable of knowing that the acts were ones which he ought not to do. My reasons were published in Tasmania v Fowles [2024] TASSC 68 and I do not stay to repeat the factual basis that now attends this exercise.
The procedure for dealing with persons found not guilty by reason of insanity is governed by the Criminal Justice (Mental Impairment) Act 1999 s 21. That section provides for the making of a restriction order, a supervision order, a treatment order, an order releasing Mr Fowles subject to conditions, or an order releasing him unconditionally. In making the decision, I am guided by the principles set out in s 34 of the Act and I must take into account the matters prescribed in s 35(1) of the Act. Section 34 provides that I should determine the matter by applying the principle that restrictions upon Mr Fowles’ freedom and personal autonomy should be kept to the minimum, consistent with the safety of the community. I must have regard to the nature of Mr Fowles’ mental impairment and consider whether, if he is in the community, he is likely to endanger any other person, and whether there are adequate resources available for his treatment and support within the community. I should consider the likelihood of him complying with any conditions imposed in respect to a supervision order if he is in the community.
I have considered the evidence given on the trial by Dr Jordan and have had the benefit of an additional report provided by him, dated 2 December 2024, in which he specifically addresses his opinion as to appropriate orders that may be imposed going forward.
I also record that I have been provided with a report pursuant to s 33 of the Act, reflecting the attitude of Mr Fowles’ next of kin and the complainant in this matter. The remarks of Mr Fowles’ parents indicate they had very limited appreciation of the severity of Mr Fowles’ mental health condition prior to this incident, but now have a far greater appreciation of that and a much better understanding of the need to ensure Mr Fowles follows an appropriate mental health regime, including remaining abstinent from the use of any illicit substances. The comments of the complainant in this matter clearly demonstrate that he has been terribly affected by Mr Fowles’ behaviour. Since the incident, he has experienced a number of difficulties, and he remains concerned that Mr Fowles may again behave in a violent fashion. Whilst his views are entirely understandable given the traumatic nature of the incident he endured; I need to assess his comments bearing in mind he may not have a full appreciation of the extent of the impact of the mental disease upon Mr Fowles.
Having regard, however, to the violent, dangerous and unprovoked nature of this attack and its direct nexus to Mr Fowles’ underlying mental health condition, in my assessment the only real options for disposition of this case are either a restriction order or a supervision order. A restriction order is an order requiring Mr Fowles to be admitted to and detained in a secure mental health unit until the order is discharged. A supervision order is an order releasing Mr Fowles under the supervision of the Chief Forensic psychiatrist on such conditions as to supervision and otherwise as the Court considers appropriate.
Following this incident, Mr Fowles was taken into custody. There was subsequently an order under the Mental Health Act mandating Mr Fowles’ mental health treatment. He was transferred to Risdon Prison on 5 August 2022 and continued to be psychiatrically managed at that place. He was bailed in December 2023 and his mental health condition has been treated in the community since then. It is reported that he continues to receive a variety of psycho-tropic medications, which are overseen by his community mental health team. His interactions with the community mental health team are described as being excellent and his mental state has been stable since being back in the community. He has been compliant with his mental health treatment, shown insight into the need for such and there has been no need for any treatment to be mandated by an order under the Mental Health Act.
In summary then, in the last 12 months in which Mr Fowles has been in the community, he has been well managed by his community mental health team, his mental health has been stable, he has been accepting of the need for ongoing treatment and the ongoing treatment that he has been receiving appears to have been effective. There has been no suggestion of any deterioration in his mental health in that timeframe.
I acknowledge that such factors weigh in favour of an order that Mr Fowles simply be released on a condition that he continue to comply with the directions of his community mental health team. However, the severity of the behaviour, and the inextricable link between the deterioration in his mental health and his behaviour, needs careful consideration. There needs to be a balance between the risk Mr Fowles may pose to the community if he again becomes unwell, and the principle that his autonomy should be restricted as minimally as possible.
In his report of 2 December 2024, Dr Jordan notes:
“Given the circumstances of the index offences, it will be essential that a community mental health team judicially oversees the treatment into the future. … Mr Fowles is imminently treatable with appropriate medication and any team treating Mr Fowles into the future will have the benefit of a known diagnosis and the capacity to detect, at an early stage, if deterioration in his mental health again becomes apparent. It is likely that any deterioration into the future would have markers similar to his presentation during the early months of 2022.
The index offences were most serious but prior to that, there is little or no evidence that Mr Fowles had any history of any interpersonal violence. He is not considered to possess any particular form of personality disorder and in particular, there is no evidence of anti-authoritarian or anti-social traits. Mr Fowles, before his mental health decline, had regular employment, a supportive family, and a good network of friends. … Mr Fowles has remained wholly abstinent from substances since released on bail and it was evident at recent interview that he has no intention of returning to such use … he is considered to have developed good insight into the nature of his mental disorder but it is likely that this understanding can be further emboldened with the expert input of his future or current mental health team.”
I am satisfied, given all the material available to me, that Mr Fowles’ mental health has been adequately managed within the community since his release on bail. I am also satisfied that Mr Fowles has good insight into the severity of his mental health condition and has a preparedness to accept treatment in respect to the same. His surrounding support network also has a better understanding of his mental health conditions and thus will have the capacity to be more aware of any deterioration in his mental health into the future.
I am satisfied, therefore, that there are adequate resources for Mr Fowles to be released and treated in the community, and that he will be compliant with any conditions imposed upon him. Therefore, consistent with the principles enunciated in s 34 of the Act, I do not consider it is necessary to impose a restriction order. I consider it appropriate, however, to impose a supervision order. The making of a supervision order has the benefit of permitting the Forensic Mental Health team to apprehend Mr Fowles if there is reason to believe that Mr Fowles is likely to contravene the supervision order or, more particularly, if there has been or there is likely to be a serious deterioration in his mental health, and a risk of harm to either himself or members of the community arises. A supervision order has the benefit of allowing the Forensic Mental Health team to take Mr Fowles to an approved hospital, or secure mental health unit, without any additional steps having to be undertaken. In my view, such an additional layer of protection is warranted, given the severity of the offences and given Mr Fowles’ mental health condition deteriorated relatively rapidly, and with significant consequences.
In all of the circumstances, I determine a supervision order is appropriate. I make the following order. I release the defendant and make a supervision order, subject to the following conditions:
- That during the period of the supervision order Mr Fowles must comply with all reasonable directions of the Chief psychiatrist, or his nominee, as to the following:
- the taking of medication;
- submission to treatment;
- attendance and engagement with medical and health practitioners for the purposes of assessment, consultation, treatment and review; and
- travel to and from the State of Tasmania.
- During the period of the supervision order, he must not use any illicit substances and he must submit to testing for the presence of such substances if directed to do so by the Chief psychiatrist or his nominee.
- During the period of the supervision order, he must permit staff from Forensic Community Mental Health Services and/or Adult Community Mental Health Services to visit him as and when required, and he must permit such staff access to his place of residence for the purpose of such attendances.
- During the period of the supervision order, he must inform Forensic Community Mental Health Services and/or Adult Community Mental Health Services of his place of residence and contact number ,and advise of any change in such details within two working days of their occurrence.