Jimmy Mansfield (a pseudonym) v Commissioner of Police
[2022] QChCM 1
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- Jimmy Mansfield (a pseudonym) v Commissioner of Police[2022] QChCM 1
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Jimmy Mansfield (a pseudonym) v Commissioner of Police[2022] QChCM 1
Jimmy Mansfield (a pseudonym) v Commissioner of Police[2022] QChCM 1
MAGISTRATES COURT OF QUEENSLAND
CITATION: | Jimmy Mansfield (a pseudonym) v Commissioner of Police [2022] QChCM 1 |
PARTIES: | JIMMY MANSFIELD (a pseudonym) (Applicant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO: | Mount Isa CCM 739/21 & 747/21 |
PROCEEDING: | Bail Application |
COURT: | Children’s Court, Mount Isa |
DELIVERED ON: | 3 February 2022 |
DELIVERED AT: | Mount Isa |
HEARING DATES: | 24 and 27 January 2022 |
MAGISTRATE: | E. Mac Giolla Rí |
APPEARANCES: | Mr Maltby, Resolute Legal, Applicant Sgt Cooper, QPS, Respondent Ms Douglas, Youth Justice |
Ms Maloney, Court Liaison Officer with the Department of Child Safety, provided much appreciated assistance to the Court in her role as a representative of the child’s guardian, the Chief Executive of Child Safety.[1]
Prior to publication, a copy of this judgement was sent to all parties, including Child Safety for their comment as to whether it was adequately anonymised. No changes were requested.
Material
[1] In determining this bail application, I have considered the following material:[2]
- a)Psychological Cognitive Assessment by “Ms A”, Psychologist, 2/7/2021
- b)Functional Assessment Report, “Ms B”, Occupational Therapist, 13/9/2021
- c)Jimmy’s ‘not for production’ criminal history, 13/12/2021
- d)Affidavit of objection to bail, PSC Emily Jane West, 13/12/2021
- e)Conditional Bail Program, author Wayne Blackman, 15/12/2021
- f)Notice of intention to exercise power, 17/12/2021
- g)Affidavit of Georgina Chinner, 17/12/2021
- h)Affidavit of Objection to bail, PSC Emily Jane West, 17/12/2021
- i)Email to the Court from Ms Maloney, CLO, Child Safety, 17/12/21
Charges
[2] Jimmy is a moderately cognitively impaired 16-year-old First Nations young man charged with the following 10 offences, all committed in December 2021:
# | Offence |
1 | Wilful Damage – graffiti |
2 | Stealing |
3 | Enter Premises and commit/break |
4 | Receiving |
5 | UUMV |
6 | Enter Dwelling and commit |
7 | Receiving |
8 | Obstruct Police |
9 | Obstruct Police |
10 | Attempted Enter Dwelling at night armed in company |
[3] Generally speaking, there were two phases of offending. The first phase is alleged to have involved:-
- (a)Stealing a car and driving it around Mount Isa ;
- (b)Stealing from a car; and
- (c)Stealing a phone from an employee at the youth shelter at which he was residing.
[4] The subsequent offending is said to have started with breaking into a motel and running amok and thereafter running from police. These offences, if proven, would demonstrate that he had breached his curfew, though that is not, in itself, an offence. He was granted watchhouse bail after the motel offence and, immediately upon release, is alleged to have committed the offence of breaking into an unoccupied dwelling and stealing property with a value in the order of $2,000.
[5] All the offending is said to have occurred with other young people.
Conduct of the matter
[6] Jimmy appeared in Mount Isa Magistrates Court on 14 December 2021 charged with charges 2, 3, 4 & 5. A bail application was adjourned until 16 December 2021 for the provision of a conditional bail program by Youth Justice. On 16 December 2021 he was granted bail on the conditions that he comply with a curfew and a conditional bail program and reside at an address approved by the department of Child Safety.
[7] On 17 December 2021 he was to appear again having been arrested in relation to charges 1, 6, 7, 8, & 9 earlier that day, with charges 6-9 having been committed while on bail for the earlier offences. He was remanded overnight and appeared again on18 December 2021 and was refused bail. The matter was adjourned to 4 January 2022, when he was, again, remanded in custody until 18 January 2022.
[8] By 18 January 2022 he had left the watchhouse and was detained at the Cleveland Youth Detention Centre but refused to leave his unit to attend the video conferencing suite for his appearance. Mr Maltby, by then appointed by Legal Aid Queensland to represent Jimmy, agreed to the matter being adjourned to 25 January 2022, on which date he applied for bail. I reserved judgement. I had intended to hand down judgement on the morning of 27 January 2022, but I had some issues to raise with the parties at that time. Having heard further submissions and obtained further information I refused bail and gave a brief summary of my reasons but indicated I would reserve my full reasons, which I publish now.
Criminal History
[9] Jimmy committed the first offence to which he was found or pleaded guilty in June 2015. At that time was 10 years old. Jimmy’s history records many charges that have been withdrawn or dismissed – particularly offences when he was between the ages of 10 and 13 years of age, which leads to an irresistible inference that the prosecution accepted that he did not have the mental capacity to commit criminal offences at those times.
[10] As against that, he was twice sentenced for offences in Mount Isa Magistrates Court during this period: in 2015, when he was 10, and 2018 when he was 12.
[11] Since June 2019, when Jimmy was 14, he has been sentenced for many offences. His offending involves property offending and violence. A relatively small portion of those offences were committed in calendar year 2021, but the history does not allow me to understand whether that is because of a ‘de-escalation’ in his offending or an increased amount of time spent in detention and out of the community. Prior to the charges presently being considered, he was last released from detention on 1 December 2021.[3]
Reports of Psychologist and Occupational Therapist
[12] A psychologist, “Ms A” prepared a comprehensive psychological cognitive assessment in July 2018. The report was ordered by a judicial officer. The timing of the report coincides with the withdrawal/dismissal of a large number of criminal charges against Jimmy. I infer that the discontinuation of the charges was because of Ms A’s report.
[13] At the time the report was written Jimmy was 13 years of age and on bail. Ms A appears to have conducted a thorough examination of his child protection history. The report contains the following relevant background information about Jimmy at that time:
- a)He was exposed to alcohol in utero.
- b)When he was two years old he fell from 2 metres, landing on his head.
- c)Many assessments had previously been conducted on Jimmy, though he appears never to have co-operated with any of the reporting clinicians.
- d)All previous reports had been for the purposes of ‘others’ rather than Jimmy, (i.e. Courts, lawyers, teachers). She found no reports focused on how best to care for Jimmy.
- e)A November 2017 psychiatric report concluded that he had a moderate intellectual impairment, possibly as a result of Foetal Alcohol Spectrum Disorder (FAS-D)
- f)Another report suggested a diagnosis of Reactive Attachment Disorder manifesting in poor emotional regulation, self-harm and aggressive behaviours.
- g)He had no meaningful pro-social connections. His was (and is) a world of paid carers, police and lawyers and, in particular, “[t]here is no one in his life that has a positive role to play just because they care for him or love him”.
[14] The cognitive testing conducted on Jimmy placed him in the bottom 0.3% of the population and showed that he appeared to be “cognitively functioning at age of approximately 5-6 years old”. Ms A writes that his functioning is too low to allow him to understand his problems and that this can lead to further long-term psychological issues.
[15] On the question of capacity, Ms A said Jimmy had limited capacity to understand his then current legal situation or the consequences of his behaviour and he had limited capacity to provide instructions.
[16] Ms A’s conclusion is that too many assessments have been written on Jimmy and that case planning for him had to move from assessment to ‘holistic treatment’. It is useful to quote the final part of the report in full:
“Treatment that focuses on behaviour change is unhelpful and not productive for Master [Mansfield]. Treatment needs to focus on providing support via NDIS funding to include wrap around service to be with Master [Mansfield] in 24 hour care type treatment model where he can learn to do basic daily activities and engage in meaningful activities that he enjoys. Master [Mansfield’s] intellectual disability impairs his ability to control his own emotions. I recommend that Master [Mansfield] be referred to a Paediatrician (part of his NDIS plan) to commence a medication regime to assist in managing his moods.”
[17] An occupational therapist, Ms B, conducted an assessment with a view to getting Jimmy an NDIS package. Her functional assessment indicated a 65% impairment in relation to cognition and life activities, a 62% impairment in relation to understanding and communication, a 40% impairment in interpersonal interactions and relationships and a 56% impairment in community, social and civic life. Ms B recommended “specialist supports who are familiar with [his] challenging behaviours and de-escalating situations” as well as formal supports to participate in community, social and civic activities. In particular, Jimmy would benefit from strategies to approach and manage his behaviours that impact on community participation and interpersonal skill.
[18] Ms B’s assessments and recommendations are very much in line with the psychologist’s views.
Jimmy is in the custody of the Chief Executive of the Department of Child Safety
[19] The information provided by Ms Maloney, the Court Liaison Officer with the Department of Child Safety, indicated that Jimmy has been in the care of the Chief Executive of her Department since 2015, though Ms A’s report notes his child protection history started in 2008, when he was only 3 years of age. The Chief Executive of Ms Maloney’s department has been Jimmy’s legal guardian since 2015. As noted above, Jimmy has been committing offences since at least 2015.
[20] Ms Maloney advised the court that in December 2021 she had a discussion with the psychologist, Ms A. Ms Maloney’s impression was that Ms A wanted to resile from or explain her earlier recommendation about Jimmy’s care, i.e.:
“[t]reatment needs to focus on providing support via NDIS funding to include wrap around service to be with Master [Mansfield] in 24 hour care type treatment model.”
[21] Ms Maloney said that when she spoke to Ms A on the 23rd or 24th of December 2021 she “advised to further clarify her recommendation that she wasn’t referring to [Jimmy] being in a treatment facility as such. No such thing exists in Queensland. But rather that he access a departmental placement that is 24 hour staffed, which our placements are, and have the NDIS supports visit with him in that placement provider, and provide that support to the youth workers in understanding his NDIS needs.”[4]
[22] Ms A was said to be producing a letter to that effect but that it could not be prepared at this time for the bail hearing because she was on leave.
[23] There have been three previous indications that Child Safety are reluctant to act on Ms A’s treatment recommendation (as originally set out in the cognitive assessment report):-
- (a)Child Safety has not, since 2018, acted on the recommendation.
- (b)The Child Safety email providing information to the Court on 17 December 2021 sought to resile from Ms A’s report saying, among other things, “the assessment and recommendations are no longer considered current.” The court was referred to Ms B’s functional assessment report and her recommendations. The tenor of the email was that Ms A’s conclusions could be set to one side.
- (c)Although Child Safety had provided Ms B’s report to the defence for the bail hearing on 24 January 2022, it became clear during the course of the hearing that Child Safety had not provided Mr Maltby with Ms A’s report.
[24] It is curious that Child Safety would ask the court to consider Ms A’s report ‘non-current.’ There is simply no reason to choose between the two reports. Although Ms B’s report is more recent, it refers uncritically to Ms A’s report. Ms B is not qualified to do a cognitive assessment and does not purport to do one. The functional assessment does not and could not make the cognitive assessment less than ‘current’. Ms B’s report is clearly for a different purpose and is consistent with, complimentary to and based on Ms A’s report.
[25] The question of whether Child Safety has appropriate care in place for Jimmy, if released, is relevant to the issue of bail, particularly s 48AAA. If Ms A’s recently stated opinion is that he can be cared for appropriately (reducing his risk of reoffending) in an ordinary Child Safety placement then it will be easier for Jimmy to get bail because such a placement is available to him. As I understand matters, Child Safety has no intention of putting in place a 24-hour specialist care arrangement in place, as the literal meaning of Ms A’s written report suggests.
[26] I therefore need to resolve this issue of Ms A’s purported ‘clarification’ of her recommendation. In doing so, I find that despite Ms Maloney’s report of her conversation with Ms A, the written recommendation in the cognitive assessment is clearly what Jimmy and the community need if he is to avoid committing further offences, that is, a “24 hour care type treatment model” with specialist supports dedicated to him. I make that finding because:-
- (a)That is the literal meaning of Ms A’s written recommendation.
- (b)Child Safety’s current model of care for Jimmy is not based on the literal meaning of her recommendation and that current model has done little or nothing to keep either Jimmy or the community safe.
- (c)Ms Maloney reported that her best guess was that ‘very little’ of Jimmy’s $55,000 NDIS package had actually been spent last year. I find that to be inconsistent with the implementation of even the current model of care supposedly in place for Jimmy.[5]
- (d)Ms A’s report was written more than three years ago and on the same day she interviewed Jimmy, which gives weight to its recommendations and makes changes to those recommendations at three years remove difficult to understand.
- (e)Ms A’s further recommendation that working on changing Jimmy’s behaviour is unhelpful (or pointless) is consistent with Jimmy needing a model of care above and beyond what might be available to other children in care.
- (f)It is consistent with Ms A’s other finding that Jimmy is cognitively functioning at the level of a 5–6-year old.
- (g)It is consistent with Ms B’s recommendation that he have “specialist supports who are familiar with [his] challenging behaviours and de-escalating situations”.
- (h)Child Safety’s contention that there are no longer significant challenges around behaviour regulation and aggression is difficult to reconcile with the fact that in September 2021 Jimmy was sentenced for 3 x AOBH and 1 x Common Assault, all of which occurred on 5 May 2021.[6]
- (i)While I accept that there may have been some changes in Jimmy’s cognition and needs in the 3+ years since Ms A’s report was written, there is no more recent cognitive assessment available to suggest what those changes might be.
- (j)The weight that I give to the report of the conversation with Ms A is not sufficient to displace (a)-(h) above. In saying this, I don’t doubt that a relevant conversation took place but without context and a compelling explanation for the proposed clarification I decline to act on it as it appears so plainly against the weight of all the other evidence as to Jimmy’s needs.
[27] Ultimately, the placement being offered by Child Safety is to a standard residential facility in Mount Isa, with no extra or specialised staff to deal with Jimmy and no realistic prospect of any NDIS services anytime soon due to an absence of available services in Mount Isa. Nevertheless, it has a ratio of 1 worker to 2 children. There is a day phase of 16 hours where workers engage with the children and a night phase of 8 hours where the children are expected to sleep but there are workers on duty to intervene should the children want to leave or need assistance. A comprehensive proposed schedule of activities for Jimmy was tendered by Child Safety on 27 January 2022, the morning this judgement was due to be handed down. The activities are, essentially, the same as the activities that were available to him when he was released on 1 December 2021. It is suggested that the schedule represents an improvement on the 1 December position because the program is in place in advance of Jimmy’s release. Although this is to be welcomed, for someone with Jimmy’s high needs it does not represent a material improvement.
[28] Ms Maloney indicated that due to the level of staff turnover in Mount Isa it would be difficult to envisage a situation where Jimmy would be cared for by a person with whom he could bond or form an attachment at the proposed placement. Ms Maloney agreed that the research suggests that such bonding and attachment are critical to children in Jimmy’s position. Ms Maloney suggested that perhaps members of his own family could fulfill this role, but I note my summary of Ms A’s background facts at [13], above, which included the observation that he has “no one in his life that has a positive role to play just because they care for him or love him.” The material available to me does not satisfy me that there has been any material change in this aspect of Jimmy’s life.
[29] Unfortunately, the placement offered is the exact same placement Jimmy was in when he was committing the offences for which I am considering bail. It is not only potentially unsuitable, but it has been demonstrated to be unsuitable.
Conditions at Cleveland Youth Detention Centre
[30] I raised with the parties on 27 January 2022 that the Court has been advised through other channels that staff shortages at CYDC mean that children detained there are spending 70% of their time either locked in their cells for 24 hours a day or locked in their units and only able to socialise with 3 others for a couple of hours at a time. In these conditions children cannot access recreation or education. Mr Honnef, ATSILS’ Mount Isa Children’s Court duty lawyer was available to give the Court a detailed confirmation of the above by recounting his correspondence with a worker at CYDC on this issue. It has been established to my satisfaction that, if refused bail, Jimmy will be detained in profoundly inappropriate conditions.
Decision
[31] Factors militating against granting Jimmy bail include the following:
- (a)He appears to be unable to abstain from committing offences. His first offence, wilful damage on 1 December 2021 was committed on the same day he was released from detention and he was granted bail twice[7] over the course of the offending that is currently before the Court.
- (b)Jimmy has a history of committing many property offences and violent offences, some of them relatively serious offences.
- (c)Ms A’s report says that Jimmy has the cognitive ability of a child aged approximately 5-6 years of age and suggest that care/treatment models that focus on trying to change Jimmy’s behaviour will not be work.
- (d)Ms A made recommendations for his treatment that, on the material available to me, have not been put into action by the Department of Child Safety.
- (e)The proposed bail address, provided by Child Safety, is the same address he was living at when he committed the offences he has applied for bail on and, indeed, the location of one of the offences.
- (f)He was in breach of a curfew at the time he committed some of the offences and he committed some of the offences while on bail.
- (g)Section s 48AAA of the YJA, as there is arguably a risk that offences endangering the safety of the community will be committed.
- (h)While s 48AA(6) qualifies s 48AAA and precludes me from considering a lack of family or suitable accommodation as a ground for refusing bail, the main issue for Jimmy is the care and treatment he will receive, rather than accommodation per se, leaving no application for s 48AA(6).
[32] Factors that weigh in favour of granting bail include:-
- (a)The youth justice principles, particularly the imperative that detention be the very last resort and for the least amount of time appropriate in the circumstances.
- (b)The offences for which he seeks bail are not of the most serious kind.
- (d)There is a very real doubt, on the material available to me, about Jimmy’s fitness to plead and instruct.
- (e)The question of fitness may require reports to be obtained and, if required, it is likely that these reports will take some months to prepare. If I refuse bail the child may have to remain in custody for that time.
- (f)Jimmy has done 44 days detention already.
- (g)The situation at CYDC, his likely place of detention, is dire and he will likely be required to spend as much as 70% of his time there locked alone in his cell or in his unit, deprived of education and recreation.
- (h)Ms A’s report says that Jimmy has the cognitive ability of a child aged 5-6 years. Locking him up seems unusually cruel, harsh and apt to harm him.
- (i)When the matter was mentioned on the morning of 27 January 2022 Ms Maloney advised me that Jimmy is ready to make a big effort at bail this time and passionate about making the most out of his opportunity if he is granted bail.
[33] Ultimately, I refuse bail. Without an appropriate placement Jimmy presents as an unacceptable risk of committing offences that will endanger the community. In those circumstance, I am required by law to refuse him bail as there are no conditions that I can impose that would adequately mitigate the risk involved absent an appropriate placement.
[36] I will gladly revisit this question of bail if Child Safety can find more suitable placement and care arrangement for Jimmy.
Footnotes
[1] Ms Maloney’s assistance was vital to the Court in piecing together Jimmy’s background and interactions with Child Safety and I am very grateful for her help in this difficult area.
[2] Items a, c and d were provided to the Court for the bail hearing on 16 December 2021. The balance of the documents provided at different times in the run up to 25 January 2022.
[3] See email of Ms Maloney 17 December 2021.
[4] I initially understood that Ms Maloney believes that Ms Richards is now saying that an ordinary Child Safety placement is fine for Jimmy as long as there are some NDIS services. This was clarified somewhat on 27 January 2022 when Ms Maloney advised that Ms Richards did not think that Jimmy needed to be cared for by anyone more skilled than a standard Child Safety youth worker – I infer that this assumes that additional NDIS services are ‘wrapped around’ that care.
[5] Ms Maloney suggested that this was because Jimmy spent a large part of 2021 in detention and that service providers could not access him in CYDC. Ms Douglas for Youth Justice, which runs CYDC, could not point to any reason why service providers would not have been able to access CYDC until late in 2021 when Omicron hit. Alternatively, Ms Maloney suggested that service providers were booked up and unavailable. Whatever the explanation, he plainly hasn’t been receiving care intended for him.
[6] Compare Ms Maloney’s email of 17 December 2021 with the ‘not for production’ criminal history.
[7] Once by the Court and once at the Watchhouse.