Application by BT
[2020] VSC 409
•11 June 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2017 05306
| IN THE MATTER of an application by BT to vary a custodial supervision order to a non-custodial supervision order pursuant to s 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| and |
| IN THE MATTER of an application by BT for further extended leave |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 June 2019 |
DATE OF JUDGMENT: | 11 June 2019 |
DATE OF REASONS | 3 July 2020 |
CASE MAY BE CITED AS: | Application by BT |
MEDIUM NEUTRAL CITATION: | [2020] VSC 409 |
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MENTAL IMPAIRMENT – Application for variation of CSO to a NCSO – In the alternative, application for further extended leave - Agreement between the parties that the CSO should be varied – Applicant caused serious injury to father whilst suffering psychotic illness – Illness in remission – Compliance with medication – Insight into illness and early warning signs of relapse – Strong supports – Low risk of future violent offending – Application supported by treating experts, Secretary and Attorney-General – CSO varied to NCSO – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 32, 39 and 40.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Dhanji | Victoria Legal Aid |
| For the Secretary to the Department of Health and Human Services | Ms E Frawley | Department of Health and Human Services |
| For the Attorney-General | Ms D Costaras | Victorian Government Solicitors Office |
| For the Director of Public Prosecutions | Ms J Carpenter | Mr J Cain, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant (‘BT’) was the subject of a Custodial Supervision Order (‘CSO’). She applied for variation of the CSO to a non-custodial supervision order (‘NCSO’). In the alternative, she applied for a further grant of extended leave. The applications were made pursuant to ss 31 and 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’).
The application for variation of the CSO to a NCSO was not opposed by either the Secretary to the Department of Health and Human Services, for whom Ms Frawley appeared, or the Attorney-General, for whom Ms Costaras appeared. As a result, the proceedings were conducted in commendably economical fashion, in which two expert reports were tendered, one expert was called, and brief submissions were made by all parties.
Having heard the applications on 11 June 2019, I made orders on that date varying the CSO to a NCSO, in the terms set out in this judgment. I indicated that I would publish my reasons for my decision at a later time. These are those reasons.
Background
On 3 April 2011, when aged 23 and in the grip of a psychotic illness, BT poured methylated spirits on her father and set him alight, resulting in serious injury to him. Her deluded thoughts had her act in the belief that her father had sexually abused her when she was a child.
On 16 March 2012, a consent mental impairment hearing proceeded before Kaye J[1] in this Court. BT was indicted on one charge of intentionally causing serious injury. At the conclusion of the trial, his Honour found BT not guilty because of mental impairment.[2] On 27 April 2012, Kaye J, having declared BT liable to supervision under Part 5 of the Act, made a custodial supervision order with a nominal term of 20 years, expressed to commence on 3 April 2011. BT was committed to Thomas Embling Hospital, where she progressed through treatment and was eventually granted unsupervised leave in the community. On 29 June 2017, she was granted extended leave by a judge of this Court.[3] On 13 June 2018, BT was granted further extended leave by another judge of this Court.[4]
[1]As he then was.
[2]Section 21(4) of the Act.
[3]Re BT [2017] VSC 400R (T. Forrest J, as he then was.)
[4]Re T [2018] VSC 336R (Emerton J, as she then was.)
Having now spent two 12 month periods in the community on extended leave, in addition to earlier periods of unsupervised leave, BT now seeks a variation of her CSO to a NCSO.
The law
The application for a variation of the CSO to a NCSO is made by BT under s 31 of the Act.
Section 32 of the Act provides:
(1) On an application under section 31 for variation of a custodial supervision order or on a review of a custodial supervision order directed under section 27(2) or on a further review of a custodial supervision order directed under subsection (5) or section 33(2), the court must, by order -
(a) confirm the order; or
(b) vary the place of custody; or
(c) subject to this section, vary the order to a non-custodial supervision order.
(2) The court must not vary a custodial supervision order to a non-custodial supervision order during the nominal term unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order.
(3) In the case of a forensic patient or forensic resident -
(a) the court must not vary a custodial supervision order to a non-custodial supervision order (whether during or after the nominal term) unless the forensic patient or forensic resident has completed a period of at least 12 months extended leave granted by the court under section 57; and
(b) in deciding an application to vary a custodial supervision order to a non-custodial supervision order, the court must take into account whether or not the forensic patient or forensic resident has complied with any conditions of their extended leave.
(4) If the court varies a custodial supervision order to a non-custodial supervision order before the end of the nominal term, that nominal term continues to run.
(5) The court may direct that the matter be brought back to the court for further review at the end of the period specified by the court.
(6) A direction may be given under subsection (5) more than once.
Section 39(1) of the Act provides:
In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, the court must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Section 40 of the Act relevantly provides:
(1) In deciding whether or not to make, vary or revoke an order under Part 3, 4, 5 or 5A in relation to a person, to grant extended leave to a person or to revoke a grant of extended leave, the court must have regard to –
(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.
(2) The court cannot order a person to be released unconditionally or otherwise release a person from custody under Part 3, 4 or 5, or 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) in the case of an application for extended leave has considered the leave plan filed under section 57A; and
(e) has obtained and considered any other reports the court considers necessary.
(3) Subsection (2)(c) does not apply if section 38C provides that notice is not to be given, or need not be given, to a family member or victim.
(4) The court cannot make a further grant of extended leave for a person who is on extended leave at the time of the application unless the court has obtained and considered -
(a) 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 further grant on the person’s behaviour; and
(b) the leave plan filed under section 57A.
Expert evidence
Two expert reports were tendered to the Court in the proceeding. These were the reports of:
i.Dr James Belshaw, dated 20 May 2019;[5] and
ii.Donna Melia, dated 7 May 2019.[6]
[5]Exhibit B.
[6]Exhibit C.
Dr Belshaw was called to give evidence during the hearing. In the end, by agreement between the parties, Ms Melia, who was present in Court during the hearing, was not called to give evidence. Her statement was tendered as an exhibit.
Report of Dr Belshaw
Dr Belshaw, a consultant forensic psychiatrist within Forensicare’s Community Treatment and Transition Team (‘CTT’), has been BT’s treating psychiatrist since August 2017. He provided a report and sworn evidence which was considered by Emerton J on the occasion of the last application for extended leave.
In the twelve months preceding the compilation of his most recent report, Dr Belshaw interviewed BT on 11 occasions, including home visits and meetings with her mother. He also took part in joint reviews with her long-term and cohabiting partner. He supervised five CTT psychiatry registrar reviews during the period, and two six-monthly collaborative intensive case reviews. For the purposes of preparing his report, Dr Belshaw reviewed all of these clinical contacts, together with the regular CTT Case Manager Reviews which occurred monthly. Furthermore, he reviewed and took into account a wealth of other reports and Forensicare medical records of BT.
Dr Belshaw set out key aspects of the background of BT in the report, including her psychiatric history which commenced sometime before the index offence. I will not set out that background and history in detail here. Suffice to say that BT’s psychotic symptoms began to manifest at the age of 21 in the context of abuse of illicit substances and alcohol. Her symptoms included paranoia, auditory hallucinations, referential ideation, and behavioural instability, including self-harm. She underwent several voluntary admissions into psychiatric inpatient units in 2009 and 2010. She was diagnosed with a psychotic illness and trialled on several anti-psychotic medications, but apparently, she was continuing to use cannabis and ice whilst using these. In the context of her continuing drug abuse and partially treated psychotic illness, BT developed the complex delusions that eventually led her to attack her father.
Following her arrest for the index offence, BT was detained in the Dame Phyllis Frost Centre (‘DPFC’) on 5 April 2011. She was treated for her psychotic illness, diagnosed as schizophrenia, in the Marrmak Unit[7] before being transferred to Thomas Embling Hospital (‘TEH’) and then to the Barossa Unit at DPFC. She was tried on various anti-psychotic medications before being started on clozapine[8] in January 2012. She has been maintained on clozapine ever since that time on varying doses, in conjunction with other medications. From the commencement of treatment with clozapine, her auditory hallucinations remitted and her delusions regarding sexual abuse receded.
[7]A psychiatric unit within DPFC.
[8]A medication prescribed for cases of treatment-resistant schizophrenia.
With the exception of one unwitnessed alleged altercation with another patient in August 2011, there were no other recorded incidents of violence by BT during her period of custodial supervision. Her behavioural symptoms desisted following stabilisation of her mental state.
BT was at all times fully compliant with her medication during her time in TEH. She also completed several psychological and rehabilitative groups, as well as individual courses of therapy.
In August 2013, she commenced escorted leave outside TEH, graduating to unescorted leave by March 2014.
BT commenced an intimate relationship with a male co-patient in 2013.
BT formed positive working relationships with staff within TEH and was invited to join several consumer representative committees including the Forensicare Consumer Advocacy Group (‘CAG’). She engaged well with educational services and completed certificates in horticulture and a number of other fields.
BT commenced overnight leave in 2015. In September 2016, she and her partner obtained rental accommodation in Box Hill. She began overnight leave to this property and gradually increased her residence there to three nights per week. From 2017, she was also granted overnight leave to visit her partner’s mother in Bairnsdale.
BT was granted 12 months of extended leave on 29 June 2017, whereupon she began living at the Box Hill property full-time. Her finances were stable and she was in receipt of a disability support pension. Her partner utilised overnight leave to visit her at the Box Hill property until he was granted extended leave in October 2017, whereupon they began living full-time together.
Dr Belshaw set out the progress of BT during the first twelve months of extended leave. She engaged in a well-structured routine, which included ongoing education and other activities, regular and appropriate contact with those in control of her treatment, full compliance with medication, and no adverse results to drug screening.
Dr Belshaw noted that in his May 2018 psychiatric report, he had concluded that the first twelve months of extended leave were viewed as being successful, with no change in BT’s mental state and no behaviours of concern. Her overall risk of future violence had been rated as low. Were she to continue to remain stable and compliant, and to progress satisfactorily with her recovery goals, it was anticipated that the CTT would support an application for variation of her CSO to a NCSO in the next six to twelve months.
Dr Belshaw highlighted two main areas that needed to be addressed by BT before progressing to a NCSO. The first was the need to prioritise her plans and life goals, including her desire to start a family with her partner. The second was to engage with the specialist input required to further her desire to recommence a connection with her mother and sisters.
On 13 June 2018, BT was granted a further 12 months extended leave. Dr Belshaw, in his report, outlined the continuing excellent progress of BT during that period. During this time, BT continued to live with her partner in Box Hill, and then went through the process of moving into a larger, permanent flat in Ringwood. This move went well, and Dr Bellsaw, on the occasion of visits there, found the property to be ‘safe and organised’.[9]
[9]Exhibit B [84].
BT underwent meetings with the CTT in which the issue of her desire to commence a family was discussed. The risks associated with this were explained to BT. She and her partner agreed to accept the advice of the treating team in respect of the most appropriate time to consider family planning in more detail. In more recent discussions with the CTT, BT has continued to express her willingness to accept advice from any treating team in relation to family planning issues and the potential implications of a planned pregnancy. She has expressed no immediate plans to start a family, but described it as something she would like to do after a year or two on a NCSO.
From June to December 2018, BT’s dosage of clozapine was gradually reduced because her clozapine serum levels were noted to be too high. This process of reduction in the dosage had no apparent effect on her mental state or behaviour.
During the most recent period of extended leave, BT found that the increased workload of her TAFE horticulture diploma was causing her stress. She ultimately decided that the demands of the course were too great, and chose to focus her energies elsewhere, pursuing her interest in other matters.
She and her partner remained active members of Forensicare’s CAG. She was regularly employed to give talks to TEH patients about the deleterious effects of illicit drugs on mental health.
Following a referral by the CTT to the Bouverie Centre in Brunswick, BT and her mother began a course of joint family therapy. The family therapy, itself a potentially stressful process for BT, was successful in reuniting her with her mother, and in due course, with her elder sister as well. There was no deterioration in her mental state through this process. Attempts to reunite with her father and younger sister have not, thus far, progressed, due to the current unwillingness of her father.
There was one occasion in the past year when BT had failed a drug test, showing a positive to codeine. This followed an occasion in which a GP who was not her regular GP had prescribed an opioid-based analgesic and an amphetamine-based weight loss medication during a consultation for a physical injury. BT raised the issue of both prescriptions at her next CTT review and complied with advice to discard the medications immediately. Dr Belshaw noted that BT continues to hold anti-drug attitudes, having recognised their impact on her mental health in the past. She consistently reported moderate consumption of alcohol, and no illicit drug use.
One of the positive features of BT’s progress over the past year was the fact that in spite of the introduction of a number of stressors, she showed no deterioration in her mental state, which remained stable at all times.
In respect of his mental state assessment of BT on 12 May 2019,[10] Dr Belshaw found BT to be ‘warm, reactive and polite’. She demonstrated a very good knowledge of her early warning signs of psychotic relapse, and an acceptance that her previously held views of having been sexually abused were delusions. She accepted the diagnosis of schizophrenia, and understood that medication, therapy and support were of benefit in keeping the disease in remission. She expressed sincere remorse for the index offence, and also expressed the hope of reconciling with her father in the future.
[10]Incorrectly stated as 2018 in the report.
In terms of his assessment of BT’s risk of future violence, Dr Belshaw noted that BT has several historical risk factors which are considered to be static and unmodifiable, including the violent index offence. As a result, her baseline risk of violence ‘remains in the moderate range’.[11]
[11]Exhibit B [99].
Dr Belshaw went on to say:
In terms of current, dynamic risk factors for violence, [BT] has had no recent issues with insight into her illness, active symptoms of schizophrenia, increased violent ideation, or affective or behavioural instability. She has been fully compliant with treatment plans and has been abstinent from illicit substance use and alcohol abuse since the index offence. She has shown an increased resilience to stress and managed to achieve several recovery goals in the preceding 12 months, including reunification with her mother and eldest sister and moving to a permanent property.
Her overall risk for future violence remains low. The main area for ongoing input to maintain this low risk of future violence will be continuing to support [BT] during family therapy and continuing to monitor her mental state.[12]
[12]Ibid [100]-[101].
Dr Belshaw noted that a decision by BT to attempt to conceive may increase her risk of future violence. Such a decision would necessitate specialist perinatal psychiatric assessment and may require a change in medication. There are no immediate plans for this, however, so it cannot be included in the current risk assessment.
In the Opinion section of his report, Dr Belshaw confirmed that BT has an established diagnosis of schizophrenia. He had the following to say:
Positively, since being admitted to the TEH and commenced on clozapine, [BT’s] mental state significantly stabilised within several months. There have been no issues with violent or disorganised behaviours since that time. She has engaged fully with all aspects of her recovery, including individual and group psychological work at the TEH, occupational pursuit and compliance with medication. In the preceding 12 months the successful undertaking of family therapy with her mother and eldest sister appeared to have benefited her mental health further.
[BT’s] schizophrenia is currently in sustained remission...
In my opinion [BT] has completed all of the key recovery goals that should provide her with a safe, stable and continued transition into the community. Her remaining recovery goals include reunification with her father and future exploration of the possibility of starting a family with her partner. Based on her progress to date, I do not believe that she requires the input of the Community Treatment and Transition team to successfully achieve these goals. Furthermore, issues related to family planning could be impeded by her continued preclusion from local area mental health services as Forensicare does not offer specialist perinatal psychiatric services.[13]
[13] Ibid [106]-[108].
In conclusion, Dr Belshaw supported BT’s application for a variation of the CSO to a NCSO. He proposed conditions which were all reflected in the orders made on 11 June 2019. He recommended that if the variation was made, that the NCSO be reviewed after 12 months. That recommendation was also reflected in the final orders I made.
Sworn evidence of Dr Belshaw
Dr Belshaw gave impressive evidence before me in which he confirmed the accuracy of his report, and provided an update to the Court on a number of matters.
He indicated, in particular, that the proposed meeting with the Outer East Area Mental Health Service (‘AMHS’) mentioned in his report at paragraph 85 had taken place on 21 May 2019.
Dr Belshaw described to the Court the changes which would result to the supervision of BT’s condition. In short, the role of the CTT as the primary treating team would be transferred to the local AMHS. However, Forensicare would continue to be involved in a supervisory capacity. At Forensicare, her case would be transferred to the NCSO team and they would oversee the primary treating team. BT would continue to be subject to the same conditions as presently, and would not lose any services.
Dr Belshaw indicated that his opinion as to BT’s low risk of future violence would not change if the order was varied to a NCSO. When he had judged her risk to be low in the past, that process had already factored in the potential of a service transfer within 3 to 6 months of when he had assessed her.
In his evidence, Dr Belshaw made it clear that the changing details of the supervision and treatment conditions for BT would still provide a high level of supervision and treatment which would be sufficient to minimise the risks of a recurrence in her condition.
When asked what would be the type of offending conduct which might arise were the risks of violent offending to materialise, Dr Belshaw said that it was difficult to say. She had suffered no relapses since the index offence. It was therefore difficult to predict what any recurrence of her symptoms would look like.
Dr Belshaw described BT as having been exceptionally compliant with her medication throughout her time on a CSO. Furthermore, she has excellent insight into both the deleterious effect of illicit substances and the need to comply with her medication. Her compliance with the conditions of her two periods of extended leave had also been very good.
If the order was varied and something went wrong, such as BT failing to take her medication or using illicit substances, Dr Belshaw detailed the steps he expected would take place to remedy the situation.
When asked to explain his position in supporting the variation of the order, Dr Belshaw said, in short, that BT had complied with all of the conditions of the CSO and the conditions of extended leave since it commenced 24 months ago. This was proof that she has managed her transition from the institutionalised setting of TEH back to the community well without any change in her mental state. She had achieved all the goals devised collaboratively with her treating team. Future recovery goals included progressing towards the less restrictive environment that a NCSO would permit.
Dr Belshaw explained his reason for suggesting the imposition of a review within the next 12 months.
In cross-examination by Ms Costaras, Dr Belshaw gave some evidence about the reason why clozapine was introduced, and the implications of the use of that medication where pregnancy was concerned. He spoke of the possible scenarios were pregnancy to be contemplated. The local AMHS had been informed of the risks and the discussions which had been had with BT.
When asked whether taking into account the prospect of pregnancy would change the assessment of risk of violent offending, he said it would, but to a degree that would be difficult to calculate off the top of his head. As an approximation, the risk could increase to medium. However, the important thing would be the next step, as to how such risks would be managed.
He gave further evidence about the frequency of ongoing reviews of BT and steps which would be taken were there to be any changes in her mental state.
In respect of the cessation of contact between BT and some of her nominated carers during the periods of extended leave, Dr Belshaw expressed the view that she nonetheless had a reasonable social network including her immediate family members, and that numerous other inputs could fulfil the role of nominated carer.
Asked about the partner of BT, Dr Belshaw noted that the relationship appeared very stable and had done for a number of years. The relationship itself was deemed to be a protective factor.
In respect of the incident involving the prescription of inappropriate medications, that was described by Dr Belshaw as a ‘good learning point’.[14]
[14]Transcript 30.
In cross examination by Ms Dhanji for the applicant, Dr Belshaw reiterated that he was aware of no issues which had arisen during the course of BT’s progression from no leave through to overnight leave, and eventually, to extended leave.
BT had shown an ability over time to deal with changes to her treating team structure and had also developed coping strategies to manage other stressors as well.
In respect of the desire of BT to start a family, that could not be considered as a risk factor according to the risk assessment method used by Dr Belshaw as it was not going to occur within the next six months.
At the end of cross examination by Ms Dhanji, Dr Bellshaw reiterated his opinion that BT would be able to be safely monitored in the community if the CSO was varied to a NCSO. He was satisfied that the level of ongoing supervision and support would be sufficient to minimise the risk of a recurrence in her condition.
Report of Donna Melia
Donna Melia, a Senior Registered Psychiatric Nurse employed by Forensicare, has been BT’s Case Manager at the CTT since December 2018. She had previously known BT in her capacity as a nurse at TEH while BT was hospitalised there. She prepared a report intended to be read in conjunction with Dr Belshaw’s report. She had resort to a large body of material in her preparation of the report, including the overall Forensicare file. The report focused on the involvement of BT with the CTT since commencing on extended leave in June 2017.
Ms Melia detailed the good level of involvement shown by BT with the CTT during the extended leave periods. Ms Melia herself described having developed a good rapport with her.
She stated that BT had developed good insight into her early warning signs.
She detailed the involvement of BT with the National Disability Insurance Scheme, through which a support worker, a counsellor and a Me-Well coordinator had been assigned to her.
Mention was also made of the family counselling engaged in by BT. The relationship between BT and her mother had improved significantly over the last 12 months. BT and her mother communicate regularly by text message and see each other regularly at family therapy, and outside that arrangement. That reflects their joint commitment to reunification, opined Ms Melia. There has also been a reconciliation with her older sister, and BT hopes to eventually reconcile with her father and younger sister.
BT was described by Ms Melia as being in a supportive and positive relationship with her partner (now fiancé).
In respect of BT’s accommodation, Ms Melia described it as being maintained to a very high standard, and as being ‘permanent, stable, and appropriate’.[15]
[15]Exhibit C [50].
In respect of her opinion, Ms Melia stated that BT has made great gains towards recovery in the last 12 months of her extended leave. She has engaged well with the CTT and managed her transition into the community very well. She has maintained stable mental health and adherence to her medication. She continues to demonstrate insight into her mental illness and the early warning signs of relapse.
Ms Melia expressed the view that a further period of extended leave would be of no benefit.
Based on all of the evidence, Ms Melia indicated her support for BT’s application to vary her CSO to a NCSO.
Submissions
Brief and helpful submissions were made on behalf of the Secretary, the Attorney-General, and the applicant. All were at one that the appropriate course for the Court to follow was to vary the CSO to a NCSO. In light of the unanimity of approach, I will not summarise the submissions. They appear in the transcript at pages 37 to 43.
Analysis
As a preliminary matter, I note that I am satisfied, as a result of an affidavit sworn by Louise Wilkinson of the Office of Public Prosecutions, and the submissions of Ms Carpenter who appeared on behalf of Director of Public Prosecutions at the commencement of the hearing before being excused, that the requirements of s 40(2)(c) of the Act have been met. No family member sought to be present or to provide a report under s 42.
I would not be entitled to vary the CSO to a NCSO unless
satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order.[16]
[16]The Act, s 32(2).
As T Forrest J stated in his decision on the first application for extended leave in this case:
The meaning of ‘serious endangerment’ requires the consideration of both the level of risk that a harmful incident might occur and the gravity of the harm that might be caused were that risk to materialise. Thus, a highly probable risk of minor harm might not amount to serious endangerment, whereas a mathematically less probable risk of grave harm might well do so.[17]
[17]Re BT [2017] VSC 400R [8].
It is clear that I am called upon to exercise a judicial discretion. As the Court of Appeal stated in NOM v DPP:[18]
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.[19]
[18](2012) 38 VR 618.
[19]Ibid [47].
I approach the task with which I am faced on the understanding that no onus or burden of proof rests on any party to this proceeding.[20] Furthermore, the authorities indicate that the principle in Briginshaw v Briginshaw[21] would apply to my reasoning.[22]
[20]Ibid [72].
[21](1938) 60 CLR 336.
[22]NOM vDPP (2012) 38 VR 618; In the matters of the major reviews of Percy, Farrell and RJO (1998) 102 A Crim R 554, 564 (Eames L); PL (No 4) [2004] VSC 21R (Kaye J); In the matter of SKD [2009] VSC 363 (Whelan J).
Every indication on the evidence is that the serious mental illness which caused BT to carry out the index offence has been in remission for many years, once she was stabilised on clozapine. There have been no repetitions of violent behaviour by her. From an early time since her admission to TEH, she developed considerable insight into her illness, and awareness of the early warning signs of a possible relapse. She quickly developed a strong understanding of the role illicit drug use played in her illness, and of the imperative to never use illicit drugs again. She has readily and consistently complied with not only the requirements of medication, but the need for other treatment. She has embraced all that has been required of her during her recovery. Over a number of years, culminating in the last two years of extended leave, she has made very impressive steps towards reintegration into the community outside hospital. She has formed a long-term and stable relationship. She has made a new home for herself outside the hospital. She has developed an array of supports and interests. In difficult circumstances, she has reconciled with her mother and one of her sisters, with realistic hopes of reconciling also with her father and younger sister in time. She has accepted change, and thrived under the pressures that change and other possible stressors have applied to her.
An experienced psychiatrist has expressed the opinion that she poses a low risk of future violence to herself and others if her current CSO is varied to a NCSO. Indeed, the evidence clearly was, and I accept, that the risk of future violent conduct would not increase from its current level were that variation to be made.
The significant step which would be represented by the variation I am requested to make has been a long time coming, and is the culmination of years of careful treatment and supervision of BT, and, on her part, years of compliant, stable, and appropriate behaviour.
Having considered all of the matters I was required to have regard to under s 40(1) of the Act, and applying the principle in s 39 that the restrictions on BT’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community, I was satisfied on the available evidence before me that the safety of BT or members of the public would not be seriously endangered as a result of the release of BT on a NCSO.
Conclusion
Accordingly, I made the following orders:
1.Pursuant to section 32(1)(c) of the Act, the Custodial Supervision Order made by the Honourable Justice Kaye on 27 April 2012 is varied to a Non-Custodial Supervision Order on the following conditions:
a)That the Applicant be supervised by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH) or his or her delegate;
b)That the Applicant reside at a location known and approved by the authorised psychiatrist of the VIFMH or his or her delegate;
c)That the Applicant abide by the lawful directions of the authorised psychiatrist of the VIFMH or his or her delegate;
d)That the Applicant comply with treatment, testing and attend appointments as directed by the authorised psychiatrist of the VIFMH or his or her delegate;
e)That the Applicant abstain from the abuse of alcohol and from the use of illicit drugs;
f)That the Applicant not leave the state of Victoria without the written permission of the authorised psychiatrist of the VIFMH or his or her delegate. This includes overseas travel, which must be approved by the authorised psychiatrist of the VIFMH or his or her delegate.
2.It is directed pursuant to section 32(5) of the Act that this matter be brought back to the Court for further review on or before 11 June 2020.
3.This proceeding is subject to a non-publication order under section 75 of the Act, prohibiting, until further order, the publication of any evidence in the proceeding, the content of any report put before the Court in the proceeding or any information that might enable the Applicant to be identified.
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