STATE OF TASMANIA v BINIYAM ROBERTSON 16 DECEMBER 2024
COMMENTS ON PASSING SENTENCE JAGO J
On 23 May 2023, Mr Robertson was found not guilty of multiple offences in the Magistrates Court on the ground that he was insane at the relevant time. Those offences were:
- One count of destroy property
- One count of unlawfully possess dangerous article in a public place
- Two counts of assault with indecent intent
- One count of expose person
- One count of trespass
- One count of fail to comply with a direction of a police officer
- One count of stealing
I have read and considered the magistrate’s findings in respect to this matter. It is apparent the finding of insanity arose from the defendant’s experience of symptomology of a longstanding, underlying condition of schizophrenia.
A psychological report referred to by the magistrate in his decision notes: “Mr Robertson’s major mental illness resulted in acutely impaired judgment and insight at the time of the index offences. He was admitted to in-patient psychiatric care under the Mental Health Act following the index offences and was described by treating staff as ‘floridly psychotic'”.
Section 21 of the Criminal Justice (Mental Impairment) Act provides that in the case of such a verdict, one of the orders set out in that section is to be made. Section 21(2) of the Act provides that only the Supreme Court may make a restriction order or supervision order.
Following his finding, the magistrate sought further evidence from mental health experts regarding the appropriate disposition of the matter. The magistrate had before him two reports, one from Dr Georgina O’Donnell and one from Dr Rajan Darjee, both of which concluded a restriction order was necessary. Given the history of Mr Robertson’s mental health, the unpalatable and unprovoked nature of his behaviours and the direct nexus between Mr Robertson’s underlying mental health condition and his offending, it was obvious that the only real options for disposition were either a restriction order or a supervision order.
Accordingly, the magistrate was compelled to send the matter to this Court for disposition.
In my view, the Criminal Justice (Mental Impairment) Act is not particularly clear as to the appropriate manner in which this Court, not having been involved in the initial findings, should proceed upon the matter being referred by a magistrate. Counsel for the State and counsel for Mr Robertson both submitted, and I agree, that it was necessary for this Court to be independently satisfied as to the appropriate disposition of the matter.
Accordingly, I embarked upon a sentencing hearing in which I received as evidence, the agreed facts that were before the learned magistrate which established the factual basis of the offending. I took in as evidence all the mental health reports that were available to the magistrate including, two reports of Dr Darjee dated 5 December 2022 and 6 September 2024, and reports from Dr Georgina O’Donnell, dated 9 February 2023 and a supplemental report dated 1 November 2023. I also heard evidence from Dr Rajan Darjee on the sentencing hearing. Additionally, I have received and considered a letter from Dr Sonny Atherton, a psychiatrist currently engaged in the treatment of Mr Robertson at the Wilfred Lopes Centre. That letter provides the Court with information pertaining to his current mental health status and his ongoing management plan.
I have also been provided with a report pursuant to s 33 of the Criminal Justice (Mental Impairment) Act. I note I am to be guided by the principles set out in s 34 of the Act and must take into account the matters prescribed in s 35(1) of the Act.
As I have already commented, both Dr Darjee and Dr O’Donnell were united in their view that a restriction order was appropriate. Having heard evidence from Dr Darjee, he remains of the opinion that a restriction order is appropriate in all of the circumstances. The primary factors supporting this conclusion are Mr Robertson’s longstanding history of schizophrenia, the difficulties that have been encountered in treating his condition, Mr Robertson’s lack of appropriate support within the community and Mr Robertson’s reluctance to be compliant with directions from mental health professionals, and in particular, recognise the need for and take his medications. Since his initial psychotic presentation in 2017, Mr Robertson has had more than ten admissions to psychiatric wards. His psychotic symptoms are described as chronic, and even with assertive treatment, those systems are not fully ameliorated. There have been ongoing difficulties in the treatment of Mr Robertson’s mental health by virtue of lack of engagement with psychiatric treatment and follow up requirements, limitations in insight, acrimony with mental health services, use of illicit substances, homelessness, lack of family support, lack of preparedness or understanding of the need to adhere to appropriate medication. Indeed, Mr Robertson has expressed to treating psychiatrists his desire to leave the State so as to “disentangle” himself from mental health services.
When in the community, Mr Robertson has been resistant to regular contact with forensic mental health services. It is described that even when he is relatively well, he has limited insight into his mental illness and is reluctant to take medication. The medication that is most successful in treating Mr Robertson’s schizophrenia is Clozapine. This cannot be administered by way of a depot medication.
Mr Robertson’s mental illness is described as complicated and difficult to treat due to its early onset, prominent negative symptoms with associated cognitive decline, lack of ongoing assertive treatment by mental health services when in the community, resistance to treatment with standard anti-psychotic medications, substance misuse, lack of compliance with treatment and management in the context of his limited insight and unrealistic expectations for the future. His significant mental illness is seen as being a primary risk factor for future sexually abusive behaviours.
Following his arrest, Mr Robertson was remanded in custody, his bail having been refused. On 20 October, 2022 he was, somewhat unexpectedly, bailed from custody. Whilst in the community, he was homeless and described as being psychiatrically unwell. This period on bail culminated on his presentation and admission to Launceston General Hospital. He was experiencing delusions and was thought disordered. He was returned to Wilfred Lopes Centre on 8 December 2022, pursuant to an order under s 63 of the Mental Health Act. He was described as remaining “actively symptomatic throughout that admission, despite assertive pharmacotherapy”. Subsequently an order was obtained pursuant to the Mental Health Act, allowing for Mr Robertson’s transfer back to the Royal Hobart Hospital for specialised treatment not available at the Wilfred Lopes Centre. He was commenced on Clozapine – as noted, an anti-psychotic medication usually only utilised when other forms of anti-psychotic medication have proved ineffective. There was improvement of the symptomology of Mr Robertson’s schizophrenia on that medication, although his symptoms were not completely ameliorated. There was a second period of community release attempted in October 2023. Again, that period of release was relatively short lived as Mr Robertson was largely non-complaint during the period with mental health requirements and was returned to the Wilfred Lopes centre.
The current suggestion is that Mr Robertson is improving in terms of the management of his schizophrenia, but this is largely attributed to the supervised treatment he is receiving within Wilfred Lopes. All of the mental health professionals, including his treating psychiatrist at Wilfred Lopes, are of the view that there is a significant risk that if Mr Robertson is released back into the community without prior significant rehabilitation, and a firm plan for ongoing support, his mental health will again deteriorate with consequential risk to both the community and himself. As already noted, he has minimal support within the community, his relationship with his family having fallen apart. At present, in my view, there is no feasible alternative plan for managing him within the community. I have been provided with details of an NDIS plan that would be available to Mr Robertson within the community. Stable accommodation would be available, which is a positive, but the one-on-one support that would be available would be limited to 3-4 hours per day and directed towards developing daily living skills. He would not be supervised by a mental health professional. Significantly also, the NDIS workers cannot compel Mr Robertson to take his medication or attend his medical appointments. Without some mandate around compliance with his medication and mental health appointments, I do not consider the NDIS plan provides, at this point, sufficient protection to either Mr Robertson or to the community.
In my view, whilst Mr Robertson’s mental health condition, with the consequential limitations on his insight and preparedness to acknowledge the need for treatment, remains as entrenched as it is, there is simply not adequate resources for his treatment and support within the community. I am satisfied, therefore, that he would not be likely to comply with the conditions of a supervision order. Such an order would not sufficiently obviate the said risks and, in my view, it is not an appropriate order bearing in mind Mr Robertson’s limited supports within the community, which means his compliance with his mental health treatment regime needs to be self-motivated. He is simply not at the point where he is yet able to do that.
A restriction order will, of course, mean that Mr Robertson will remain in custody for an undefined period. However, as Dr Darjee described in some detail in his evidence, there are benefits to this option because under a restriction order, he will remain at the Wilfred Lopes Centre where his rehabilitation and mental health needs can be specifically addressed and managed. This includes continuation of anti-psychotic therapy, together with a graduated leave plan. Appropriate accommodation and supports can be identified within the community and Mr Robertson can be given the opportunity to demonstrate a preparedness to sustain adherence to a treatment programme, abstinence from illicit substances and appropriate engagement with community-based mental health supports. He will have the opportunity to demonstrate that his risks can be acceptably managed within the community through graduated periods of more extended leave, with the benefit that such leave periods can be reduced or halted if it is considered necessary. Previous attempts to manage Mr Robertson within the community have proved unsuccessful and have introduced significant risk factors to both Mr Robertson and members of the public. This underlines the need, in my assessment, for a very graduated approached, intimately supervised by mental health professionals who are familiar with the complexities of Mr Robertson’s conditions.
It follows that I am satisfied that the only appropriate disposition in this case is a restriction order. Accordingly, I order that Mr Robertson be admitted to and detained in a secure mental health unit until this order is discharged by this Court.