A further major review of the custodial supervision order of RD
[2020] VSC 788
•25 November 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S ECI 2019 03665
| IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| and |
| IN THE MATTER of a further major review of the custodial supervision order of RD |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 November 2020 (On the papers) |
DATE OF JUDGMENT: | 25 November 2020 |
CASE MAY BE CITED AS: | A further major review of the custodial supervision order of RD |
MEDIUM NEUTRAL CITATION: | [2020] VSC 788 |
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MENTAL IMPAIRMENT – Major review of custodial supervision order – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, s 35 – Whether varying order to a non-custodial supervision order would seriously endanger the safety of RD or members of the public – Variation supported by Secretary to the Department of Health and Human Services, the Attorney-General, and RD – Unchallenged expert evidence – Order varied to non-custodial supervision order.
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APPEARANCES: | Counsel | Solicitors |
| For the Reviewee | Victoria Legal Aid | |
| For the Secretary to the Department of Health and Human Services | Department of Health and Human Services | |
| For the Attorney-General | Victorian Government Solicitor’s Office | |
| For the Director of Public Prosecutions | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
In March 1988, when he was 21 years old, RD killed his mother by stabbing her multiple times. He was under the influence of paranoid schizophrenia at the time. On 8 August 1989, he was found not guilty of murder on the grounds of insanity, and ordered to be detained until the Governor’s pleasure was known. On 19 April 1998, upon the commencement of Schedule 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’), he was deemed to be subject to a custodial supervision order (‘CSO’) with a nominal term of 25 years, deemed to have run from the day on which the Governor’s Pleasure order was made. The nominal term has now expired.
In compliance with the Act, major reviews were conducted in this Court in 2014,[1] 2016[2] and 2018.[3] On each occasion, RD’s CSO was confirmed. On the latter occasion, RD was granted extended leave for a period of 12 months, commencing on 30 November 2018. I granted a further period of 12 months’ extended leave on 27 November 2019.
[1] [2014] VSC 552R (Coghlan JA).
[2][2016] VSC 269R (Beale J).
[3][2018] VSC 744R (Tinney J).
By virtue of the orders made on 30 November 2018, this matter is again before the Court for a further major review. Prior to the review, email communication to the Court from the Department of Health and Human Services indicated that the parties are agreed that the matter could be determined on the papers and that the appropriate outcome would be that the CSO to which RD is subject be varied to a non-custodial supervision order (‘NCSO’) on the conditions proposed by Dr Shannon Reid (‘Dr Reid’) in his report dated 14 October 2020.
For the reasons that follow, the CSO currently in place is varied to a NCSO with the conditions to which I have referred.
Manner of determination
On 31 March 2020, a protocol for ‘on the papers’ determination of matters under the Act was published by the Court following consultation with interested parties.[4] This protocol, which was established in response to the COVID-19 pandemic, allows for determination of certain matters without the need for a hearing, where appropriate and where consented to by the parties. In the present matter, RD, the Secretary to the Department of Health and Human Services (‘the Secretary’) and the Attorney-General of Victoria (‘the Attorney’) were each in agreement that it was appropriate for the matter to be determined on the papers. As is customary in these matters, the Director of Public Prosecutions (‘the Director’) took no position.
[4]‘Managing Crimes Mental Impairment Applications During COVID-19’ Supreme Court of Victoria (Web page, 31 March 2020) <
Accordingly, I agreed to determine the matter on the papers, being satisfied that it was in the interests of justice to do so.
The law
This hearing is governed by s 35 of the Act, which relevantly provides that:
(1)…
(2)The purpose of a major review is to determine whether the person subject to the order is able to be released from it.
(3)On a major review, the court—
(a)if the supervision order is a custodial supervision order—
(i)must vary the order to a non-custodial supervision order, unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will be seriously endangered as a result of the release of the person on a non-custodial supervision order; or
(ii)if so satisfied, must confirm the order or vary the place of custody;
…
(4)If the court confirms a custodial supervision order on a major review, the court may grant extended leave to the person subject to the order, without the need for a separate application for leave, if the court could have granted extended leave to the person on an application under section 57.
Assessment of endangerment in the context of the Act is concerned with the ‘chance, risk or peril of some harm materialising’,[5] where the focus of serious endangerment lies with the gravity of harm that may result if the risk were to materialise.[6] It is oft-noted that a highly probable risk of minor harm may not amount to serious endangerment, whereas a mathematically improbable risk of grave harm may satisfy the Court of such a criterion. [7]
[5]See NOM v Director of Public Prosecutions (2012) 38 VR 618, 637 [58] (Redlich and Harper JJA and Curtain AJA) (‘NOM’).
[6]Ibid 639 [64].
[7]Ibid 639 [63], citing Re Percey, Farrell and RJO (1998) 102 a Crim R 554, 556 (Eames J).
In determining whether to vary a CSO to a NCSO, the Court must apply the overriding principle in s 39(1) that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community. The Court must also have regard to the following matters set out in s 40(1):
(a)the nature of the person's mental impairment or other condition or disability; and
(b)the relationship between the impairment, condition or disability and the offending conduct; and
(c)whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and
(d)the need to protect people from such danger; and
(e)whether there are adequate resources available for the treatment and support of the person in the community; and
(f)any other matters the court thinks relevant.
As explained by the Court of Appeal in NOM v Director of Public Prosecutions[8], the interaction between these two sections is as follows:
Section 39 requires a value judgment informed by the competing considerations stated in the provision. Section 40(1) requires an evaluation of the appellant’s mental condition and progress and an assessment of risk against discrete but interrelated criteria. These assessments call for value judgments in respect of which there is room for reasonable differences of opinion. No particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The discretionary character of the decision is not displaced by the mandatory requirements that the judge ‘must apply’ the principle in s 39 or ‘have regard to’ the factors in s 40.[9]
[8]NOM (n 5).
[9]Ibid 633 [47] (citations omitted).
Finally, s 40(2) of the Act provides that a Court cannot significantly reduce the degree of supervision to which a person is subject unless it:
(a)has obtained and considered the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on—
(i)the person's mental condition; and
(ii)the possible effect of the proposed order on the person's behaviour; and
(ab) in the case of a person who is subject to a supervision order, has obtained and considered the report of a person having the supervision of the person subject to the order; and
(b)has considered the report submitted to the court under section 41(1) or (3) (as the case may be); and
(c)is satisfied that the person's family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and
(d)has considered any report of the family members or victims made under section 42; and
(da) …
(e)has obtained and considered any other reports the court considers necessary.
The affidavit of Louise Wilkinson of the Office of Public Prosecutions, sworn on 11 November 2020, outlines compliance with the Director’s obligations to notify relevant persons of the major review under s 38C(2)(a) of the Act. No report under s 42 has been received.
The balance of the relevant criteria under s 40(2) are satisfied by the report of Dr Shannon Reid dated 14 October 2020.
Psychiatric history and the index offence
RD’s psychiatric history, index offence, time in custody and subsequent treatment and progress have been well-rehearsed in previous judgments of the Court. These matters are not repeated here in detail.
RD is now 54 years old. He has an established diagnosis of schizophrenia after first coming into contact with psychiatric services during adolescence. In the period preceding the commission of the index offence, RD was non-compliant with prescribed medication. He experienced suicidal and homicidal thoughts and was plagued by command auditory hallucinations directing him to kill his mother.
Following the index offence in 1988, RD was housed in numerous custodial and psychiatric facilities before settling at Thomas Embling Hospital (‘TEH') in 2000. After being trialled on various anti-psychotic medications, RD commenced taking clozapine in 2005. He has been free from acute psychotic symptoms since.
Contemporary expert material
The Court has received two reports in relation to this review. These were the reports of:
(a)Dr Shannon Reid, dated 14 October 2020; and
(b)Ms Donna Melia, dated 2 October 2020.
Dr Reid
Dr Reid, a consultant forensic psychiatrist in the community transition and treatment (‘CTT’) team at the Victorian Institute of Forensic Mental Health (‘Forensicare’), has been RD’s treating psychiatrist since he was first granted extended leave in November 2018. Dr Reid was previously involved in RD’s care on the Jardine Unit of TEH, between March and August 2016. In preparing his report, Dr Reid had access to an extensive range of material, including a large number of past reports to the Court and RD’s clinical file at Forensicare. The focus of his report is RD’s progress over the two periods of extended leave to which he has been subject.
In his report, Dr Reid confirms that RD continues to be treated with 325 mg of clozapine per night. This medication is self-administered and there have been no issues with compliance throughout the period of extended leave. While testing has typically shown RD’s clozapine levels to be at the lower end of the therapeutic range, Dr Reid cites no concerns with this and notes that the dosage is sufficient to manage RD’s remission of psychosis.
RD continues to reside at his privately owned apartment in an inner suburb of Melbourne. He predominantly lives off frozen meals and has reportedly made little progress in developing his domestic skills over the period of extended leave. This issue is largely moderated by the assistance RD receives through the National Disability Insurance Scheme (‘NDIS’).
Dr Reid reports some improvement in RD’s self-care over the period of extended leave. While the CTT team’s ability to properly monitor this has been limited by the COVID-19 pandemic, it is noted that no issues have been reported to the CTT team by those persons still involved in RD’s care on an in-person basis. In any event, to the extent that RD may face challenges in caring for himself or his environment, it is Dr Reid’s opinion that such issues can be mitigated by professional supports.
Turning to personal supports, Dr Reid notes that RD’s main contact is his brother. They were meeting regularly prior to the onset of the COVID-19 pandemic, and currently have regular telephone contact. Dr Reid observes that the relationship between RD and his brother is supportive, moderated by what Dr Reid perceives to be the ‘necessary difficulties’ attached to RD’s role in the loss of their mother.
In terms of RD’s employment, Dr Reid notes that he was working in the workshop of one employer up until its closure in December 2019. He thereafter commenced working with a different but similar organisation in January 2020. In July 2020, RD decided to suspend his work commitments due to concerns regarding the coronavirus. In Dr Reid’s opinion, this decision was appropriately considered in view of RD’s vulnerability and the possible consequences if he were to contract the virus. RD is able to resume his position with the relevant organisation when he feels safe to do so.
While RD had described enjoying the social aspects of his working environment, he has since denied any feelings of loneliness or boredom arising from his current situation. Dr Reid observes that RD enjoys his interactions with retail and hospitality staff in his local area and has developed a sense of belonging in his community. This has also helped to temper the loss of RD’s usual leisure activities (such as attending markets, galleries and the like), which have been curtailed in the face of the COVID-19 pandemic.
Overall, notwithstanding RD’s initial trepidation associated with community transition, Dr Reid notes that RD has successfully navigated his return to the community whilst maintaining a stable mental state. RD has consistently described feeling comfortable and relaxed in both his home and community environment.
In terms of risk assessment, Dr Reid notes a history of violence relating to the index offence and likely preceding aggression towards his parents during his period of unstable illness. While there is a history of bizarre behaviour related to illness, there is no history of antisocial behaviour. There is a recent history of some commitment to employment. There is no history of substance abuse beyond his current dependence upon nicotine and caffeine. He has a chronic psychotic disorder but no history of personality problems that limit his ability to be empathetic to the considerations of others.
Against the relevant risk factors, Dr Reid notes that RD’s illness has been in sustained remission for many years. There is no evidence of enduring violent attitudes or recent thoughts of suicide or self-harm. Further, RD has not been involved in any significant incidents of concern, such as any ill-judged or impulsive actions, since his acquisition of extended leave. RD has engaged well with treatment and supervision in the community. The stability which he has shown since the introduction of clozapine has been maintained throughout the period since he was discharged from hospital, including the difficult time since the onset of the COVID-19 pandemic.
While RD’s recollection of his symptoms is limited, he understands that he has a psychotic disorder requiring ongoing treatment. He is willing to commit to this over the long term. He also has a fair appreciation of the nexus between his illness and the index offence. RD’s resolve and sense of responsibility to manage his illness was further strengthened after visiting his parents’ gravesites in May 2019.
If RD’s CSO were to be varied to a NCSO, his day-to-day treatment would transition from being administered by the CTT team at Forensicare, to the Northern Area Mental Health Service (‘NAMHS’) in the community. RD’s overall supervision would be retained by Forensicare via its NCSO team, some members of which team have significant familiarity with him as a result of their previous work at TEH. He has already met his NAMHS case manager and psychiatrist, and it is expected that his NDIS worker and occupational therapist would continue to support him.
He has suitable, long-term accommodation. His personal supports are limited, but he is comfortable with them, and the limited aspect of the supports is moderated by his professional supports, and the ongoing support from his brother.
Dr Reid is of the expectation that RD will continue to respond well to treatment and supervision. There are currently no foreseen situations which would be likely to expose him to significant levels of stress.
In expressing his opinion and recommendations, Dr Reid stated, in part:
[RD] appears to have solidly negotiated his return to the community. He has achieved a position of stability of mental state and general circumstance and it is of note that his accommodation and current supports are available to him into the long term. While his illness affects his ability to care for himself and his environment to some degree, he has compensated for this with the assistance of professional supports.
…
The risk of harm to others and himself that is associated with [RD] if he is granted a Non-Custodial Supervision Order or a renewal of Extended Leave is low.
The Community Treatment and Transition Team and the Non-Custodial Supervision Order team of Forensicare are in support of [RD’s] application for a Non-Custodial Supervision Order.[10]
[10]Report of Dr Reid, [50], [53] and [54].
Ms Melia
Donna Melia, a senior registered psychiatric nurse in the CTT team at Forensicare, has been the applicant’s case manager since February 2020. She has previously worked with RD in her capacity as a nurse at TEH. Ms Melia’s report is based on her own contact with RD, liaison with others involved in RD’s care, and RD’s clinical records from Forensicare.
She confirms that she has developed a good rapport with RD. He understands the requirement to engage with and be supervised by the CTT team, and has been open in discussing his treatment goals, mental state, historical information, and planning for a NCSO. He is accepting of his mental illness, she opines, has developed a good insight into his early warning signs and is accepting of the need for ongoing treatment and care.
She summarises the various community linkages and supports utilised by RD. He has already developed a good rapport with his newly allocated NDIS support worker, who has been providing in-home support for him during the COVID-19 restrictions. Further supports are arranged through the NDIS including an occupational therapist.
Ms Mellia summarised the employment situation of RD, which has been curtailed due to the pandemic. He continues to express a desire to return to work when it is safe for him to do so.
Ms Mellia details the steps already taken to introduce RD to NAMHS, the focus of which has been to enable him to establish rapport in the lead up to a change to a NCSO. Initial engagement was good. RD has indicated a willingness to engage with the NAMHS clinicians and shows an understanding of their roles.
RD continues to reside independently in his conveniently located apartment. He is supported in maintaining his environment by the occupational therapist and the NDIS support worker. He enjoys living independently, and has stated a desire to continue to live independently, with supports.
Ms Mellia notes the continuing support to RD from his brother.
In setting out her opinions and recommendations, Ms Mellia states, in part:
RD has made great gains towards his recovery goals in the last 12 months of his Extended Leave. [He] remains satisfied with his current routing and lifestyle. [RD] identifies that his goals are to remain well, to engage meaningfully with treating clinicians and relevant stakeholders such as his National Disability Insurance Scheme (NDIS) supports and maintain his physical wellbeing. He has coped well with the COVID-19 situation and has adapted to the circumstances.
[RD] has engaged well with the Community Treatment and Transition Program (CTTP) and has managed his transition into the community on Extended Leave very well. He has maintained stable mental health and is compliant with his medication. He continues to demonstrate insight into his mental illness, early warning signs, and relapse symptoms. He has complied with all his Extended Leave conditions. I do not feel that a further period of Extended Leave would be of benefit as [he] has remained clinically stable. He remains to date in remission of psychotic symptoms.
[RD] is accepting of his diagnosis of schizophrenia and is willing to remain on anti-psychotic medication on an ongoing basis.
[He] lives in stable, private, and secure accommodation on his own. There have been no identified issues when CTTP clinicians have attended his home.
[RD] has indicated that he will continue to engage with relevant community supports if granted an NCSO including NDIS Me-Well supports and his general practitioner.[11]
[11]Report of Ms Mellia, [51]-[55].
Ms Mellia notes that RD has claimed to be ready to ‘move on from Forensicare’, and has expressed the belief that he feels capable of engaging with the new services including the NAMHS who have been given a comprehensive handover.
Based on the above factors, Ms Mellia expresses her support for a variation of the CSO to a NCSO.
Submissions of the Secretary
A written outline of submissions on behalf of the Secretary indicates that the Secretary seeks that the CSO be varied to a NCSO subject to the conditions set out in the appendix of the report of Dr Reid. The outline sets out the applicable legal principles and the way in which the expert evidence touches on the relevant considerations. The outline indicates that the Secretary relies on the expert reports, and in particular, the risk assessment of Dr Reid. It asserts, reliant on RJE v Secretary to the Department of Justice,[12] that the Court should be slow to depart from the expert risk assessment of Dr Reid in circumstances where the facts are uncontested and the report is cogent and unchallenged. Furthermore, it asserts that supervision is a restriction on liberty and can only be justified where it is necessary.[13]
[12](2008) 21 VR 526, [18].
[13]NOM (n 5).
Analysis
The purpose of this major review is to determine whether RD can be released from his CSO. The Court is required to vary the CSO to a NCSO unless satisfied, based on the available evidence, that the safety of RD or the community will be seriously endangered as a result. The decision on this issue is to be informed by the cumulative considerations set out in s 40(1).[14]
[14]See Hammond (a Pseudonym) v Secretary to Department of Health and Human Services [2018] VSCA 356 [44] (‘Hammond’). While the discussion in Hammond focuses on the language used in s 32(2) of the Act, expressed in slightly different terms to s 35(3)(a)(i) of the Act, in my view the principle can equally be applied in this case with respect to the interrelationship between ss 35(3)(a)(i) and 40(1). See also Re GB [2019] VSC 4 [20]-[22] (Macaulay J).
RD has an established diagnosis of schizophrenia, in remission since 2005. The commission of the index offence in 1988 was intrinsically linked to his illness. Against a background of some 30 years in psychiatric institutions, RD was initially apprehensive to leave TEH. He has now been residing in the community for two years without any evidence of mental state deterioration or relapse of psychotic symptoms. He has remained compliant with medication, treatment and supervision, and there have been no significant incidents of concern. Therefore, it can be accepted that RD has demonstrated an ability to safely subsist in the community with appropriate supports. It is the expert evidence before the Court that, if RD were to transition to a NCSO, or be granted further extended leave, his risk of harm to himself and others would be low. It is submitted that the resources available to RD, including via Forensicare, the NAMHS and the NDIS, are adequate to support him in the community on a NCSO whilst maintaining this low-risk profile.
In the event that RD were to be non-compliant with the conditions of a NCSO or pose a serious endangerment to himself or others, he could be apprehended and returned to TEH under s 30 of the Act. Further, if for any reason it was no longer viable for RD to remain on a NCSO, an application could be made to vary his NCSO to a CSO under s 31(1) of the Act.
Overall, in circumstances where RD has been assessed as presenting a low risk of harm to himself and others if his CSO were varied to a NCSO, it is clear that a variation of his CSO to a NCSO would be the most appropriate outcome and least restrictive option consistent with community safety.
Conclusion
After considering the available evidence, having regard to the factors set out in s 40(1) and applying the principle of parsimony in s 39, I am satisfied that RD and members of the public will not be seriously endangered as a result of RD’s CSO being varied to a NCSO on the conditions proposed by Dr Reid. I therefore vary the CSO to a NCSO.
In accordance with the position of RD and the Secretary, I will order that the matter be listed for a further review within two years’ time.[15]
[15]The Secretary initially took no position on an appropriate timeframe for a further major review. See Secretary’s Submissions [31]. However, in an email dated 9 November 2020, the Court was advised on behalf of the Secretary that parties consented to the matter returning to the Court for further review in two years’ time. The solicitor for the Attorney later clarified by email dated 10 November 2020 that she takes no position on the timing of future reviews, or matters relating to suppression.
I will also confirm the continuing operation of the non-publication order I made pursuant to s 75 of the Act until further order of the Court.
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