Murder victims' families call for NSW forensic patient and mental health reform
Wendy Robinson's parents were murdered in their Western NSW home in 2014. (ABC Western Plains: Zaarkacha Marlan)
When the person who killed Wendy Robinson's parents was granted escorted day leave, she says she felt "sick and fearful".
"He could bump into community members he may know, and that concerns me," she said.
Ian and Margaret Settree were murdered in their home in western New South Wales in 2014.
Margaret and Ian Settree were killed inside their home by someone they knew in 2014. (Supplied)
Their killer admitted to the crime but was found not guilty by reason of mental illness and cannot be identified for legal reasons.
Since then, he has been confined to a forensic health facility, overseen by the Mental Health Review Tribunal.
For years, Ms Robinson found solace in knowing her parents' killer was locked away.
But that comfort was shattered in September last year when he was transferred to a medium-security facility and granted escorted day leave.
Every six months, Ms Robinson attends tribunal hearings, where she presents her concerns about her parents' murderer. But each appearance reopens old wounds.
She does not need to attend but feels the onus is on her to ensure her fears are noted and considered.
"You just keep hearing, 'He's doing well, he's progressing, he's responding to treatment'," she said.
"I'm concerned that yes, they're doing well while they're medicated and on a program, but once they're back out in society, what's going to happen?"
The Cobar home where Ian and Margaret Settree were killed. (Supplied: Wendy Robinson)
Ms Robinson is among a growing number of victims' families calling for reform regarding the tribunal's power to grant leave to forensic patients who have committed serious crimes.
They argue the current system prioritises offender rehabilitation over the safety and mental wellbeing of victims' families.
Growing push for change
Luke Furlong can recall the day he feared his father's killer would attack him.
Mr Furlong's father, Michael, was murdered outside a western Sydney electronics store in 2002.
Luke Furlong says he was fearful when his dad's killer absconded from a mental health facility in 2020. (Supplied)
The killer, a paranoid schizophrenic, was found not guilty by reason of mental illness and placed in psychiatric care.
In 2020, he absconded while on day release from a NSW Central West mental health hospital.
Mr Furlong said he was not notified of the escape and only learned about it from his uncle, leaving him terrified.
"I didn't go to work for the next few days. I ended up sitting at home [because] I was scared," he said.
"I thought, 'What if he wants to come and attack one of us?' Given that he's not mentally sound, you just don't know what he's going to do."
Luke Furlong and his father Michael, who was murdered in 2002. (Supplied)
Similarly, Rebekah and Dominic Porter launched a parliamentary petition after learning that the person who killed their 10-year-old daughter, Brigette, was granted supervised day leave.
The petition reached 21,550 signatures and was debated in the NSW legislative assembly in October.
It called for an inquiry into the Mental Health Review Tribunal's practices and reforms to victims' support services to better support families impacted by serious crimes.
In response, the NSW government has introduced the Mental Health Legislation Amendment Bill to parliament in a bid to strengthen oversight of the Mental Health Review Tribunal.
Under the proposed changes, decisions regarding leave, other than escorted leave, would require approval by current or former judicial officers.
The bill would also clarify the tribunal can restrict or prohibit forensic patients' access to social media and online communication while on leave or release.
Ms Porter said she believed it was a "good step forward" but more changes were needed, particularly to make processes more respectful to victims during hearings.
"Simple things like just having their IT systems sorted out so that we can actually hear and have access to those hearings, better records, victims having greater input and greater say in those tribunal hearings," she said.
A delicate balance for the tribunal
The biggest complexity for the Mental Health Review Tribunal, according to former president Daniel Howard, involves balancing the rights and rehabilitation of mentally ill offenders with public safety.
He said each decision regarding leave or release was anchored in legislation, which required assessing the safety of patients, registered victims and the public.
"Every six months, the tribunal evaluates a patient's treatment based on expert advice and medical reports," he said.
"It looks closely at how the person has improved since the previous hearing."
Each tribunal panel includes three members with extensive experience in mental health, including a lawyer, a psychiatrist and a qualified member.
Daniel Howard says the tribunal has to balance the rehabilitation of mentally ill offenders and public safety. (ABC News: Robert Koenig-Luck)
Mr Howard said the tribunal gets "a pretty good sense of where a person is up to in their progress back to wellness".
"Some people have been in the forensic hospital in high security for quite a long time and whilst you would hope you'd never say a person will never be able to get leave and release, there are some cases that are much harder than others," he said.
As of October 2023, there were 637 forensic patients in New South Wales, including 39 correctional patients — down from 735 the previous year, according to the latest annual report from the NSW Mental Health Review Tribunal.
During the reporting period, the tribunal held 1,548 hearings, slightly fewer than the 1,590 conducted the year before.
It issued 28 new conditional release orders, up from 27, and 14 unconditional release orders, down from 23.
Mr Howard acknowledged the tension between victims' need for justice and patient rehabilitation but emphasised that the system was designed to prioritise both.
Under the NSW Mental Health Act, the identities of forensic patients are kept confidential to protect their rehabilitation efforts.
"It's to enable the full issues to be discussed at the hearing without impairing the forward progress of the patient," Mr Howard explained.
"[Forensic patients] are often working very hard to get back into a position where they feel comfortable and safe again in society.
"You don't want patients to be terrified to go into the community because they fear vigilantism."
While some believe the tribunal operates behind closed doors, Mr Howard insists it is not as secretive as it seems.
Victims and their families are allowed to attend hearings in person or online and present submissions, which the tribunal considers when making decisions about leave and release.
"It's perfectly understandable and valid for forensic patient victims and their families to want to ensure that a person isn't prematurely released or prematurely given leave over and above the level of leave that is safe," Mr Howard said.
"The tribunal will take that into account."
More needed for victims
A 2017 inquiry into the NSW Mental Health Review Tribunal, led by former NSW Supreme Court judge Anthony Whealy, examined the balance between care for mentally ill patients and public safety.
It made 30 recommendations to better reflect victims' experiences and improve transparency.
While some changes have been made, including replacing the verdict of "not guilty by reason of mental illness" with "act proven but not criminally responsible" in 2020, families believe more is needed.
Wendy Robinson is continuing to fight to keep her parents' killer locked away. (ABC Western Plains: Zaarkacha Marlan)
Ms Robinson, who continues to fight for changes to forensic patient legislation, feels victims are often left on the sidelines.
"It feels forensic patients are being treated better than their victims," she said.
"I get so tired sometimes, but there's something there — perhaps the memory of Mum and Dad — that drives me to keep going."
One of the central concerns for victims' families is the lack of a criminal record for forensic patients once they are released.
"If a forensic patient is pulled over by police, there's no record — they have a clean slate," Ms Robinson said.
"I find that appalling and quite dangerous for society."
Orange independent MP Phil Donato welcomed the government's recent bill, but still wanted mandatory electronic tracking for all forensic patients when they were in the community.
"The government has embraced that technology for DV perpetrators, it's already used for people on parole by Corrective Services and I would have liked to see that as part of this bill," he said.
According to Mr Howard, forensic patients are "almost always" monitored closely in some way by mobile phone, once granted leave.
"They're required to check in with their case managers regularly," he said.
"And the system is quick to react if someone goes AWOL."
While Mr Howard believed the system was robust, he acknowledged there was always room for improvement.
NSW Minister for Mental Health Rose Jackson was not available to be interviewed, but in a statement said the new legislation was an "important step forward" in response to concerns raised by victims, their families and community members about the current system.
"We will continue to work with experts, stakeholders and those with lived experiences to ensure we have a system which supports communities across our state when dealing with these complex matters," she said.
Luke Furlong believes the forensic health system isn't working. (Supplied)
However, for Mr Furlong, the balance still feels off, and that changes, such as more counselling for victims' families, are needed.
"The system, as it is, just doesn't work," he said.
"I don't understand how you can put killers back on the streets and sleep at night."
Ms Robinson believed more money should be invested in the NSW mental health system.
"Let's fix the problem before it gets worse and gets to murder," she said.
"We need to provide facilities, provide staffing and training."
Ms Jackson said the NSW government was delivering a $700 million statewide mental health infrastructure program, including investment in forensic units, to help deliver appropriate care within therapeutic environments.
The NSW government also invested $2.4 million in the Mental Health Review Tribunal to enable it to improve records, upgrade IT systems and develop a new case management system.
The ABC also contacted the NSW Department of Health and the Attorney-General, who both directed questions to the Minister for Mental Health.
Ms Jackson did not answer specific questions including how the government would address victims' families fears of being overlooked during tribunal decisions, whether there was an investigation into what happened to Mr Furlong, or the call for electronic monitoring.
She also did not address what support was available for forensic patients in the community once released.
Additional reporting by Joanna Woodburn.