Bezrukov v Director of Public Prosecutions
[2015] VCC 599
•8 April 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-08-01609
IN THE MATTER OF an Application under s31 of the Crimes (Mental Impairment and Unfitness to be tried) Act 1997
and
IN THE MATTER OF
| MAXIMILIAN BEZRUKOV (a pseudonym) | Applicant | ||
| v v | |||
| DIRECTOR OF PUBLIC PROSECUTIONS | First Respondent | ||
-and-
THE SECRETARY TO THE DEPARTMENT OF HUMAN SERVICES Second Respondent AND HEALTH
-and-
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA Third Respondent
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 March 2015 | |
DATE OF DECISION: | 8 April 2015 | |
CASE MAY BE CITED AS: | Bezrukov v DPP & Ors | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 599 | |
Reasons for Revocation of Non-Custodial Supervision Order
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Subject: CRIMES MENTAL IMPAIRMENT
Catchwords: Application for revocation of non-custodial Supervision Order
Legislation Cited: Crimes (Mental Impairment and Unfitness to be tried) Act 1997, sections 31,33,39,40
Cases Cited:Fowler v The Secretary to the Department of Health & Ors [2014] VSCA 231; NOM v DPP & Ors [2012] VSCA 198
Ruling: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Delaney | Victoria Legal Aid |
| For the Attorney-General | Ms. Greenham | Victorian Government Solicitor’s Office |
| For Department of Human Services | Mr Bruno | Department of Human Services |
| For DPP | S. Graham | Solicitor for Office Public Prosecutions |
HER HONOUR:
1 This is an application for revocation of a non-custodial supervision order, pursuant to section 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”). That order was imposed on 22 March 2010, following a finding that the Applicant was unfit to be tried on the charges before court by reason of mental impairment. The order had a nominal duration of 20 years.
2 Application having been made for revocation of the order, pursuant to s 33 of the Act the court must either confirm the order, vary its conditions, vary it to a custodial supervision order, or revoke it.
3 The principles upon which the Court must act in deciding the application are set out in s39 and s40 of the Act. Under s39(1), 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. Under s40, 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.
4 Evidence consisted of reports and oral evidence from two psychiatrists - Dr Grant Lester, a consultant forensic psychiatrist, who in his role with Forensicare was supervising psychiatrist of the applicant from mid-2012, and Dr Gregor Schutz, a consultant psychiatrist, who has supervised the psychiatric treatment of the applicant at the St Kilda Road Clinic. In addition, oral evidence was given by Mr Justin Rowe, an occupational therapist, who has been the applicant’s case manager through the St Kilda Road Clinic for the last three years.
5 I was satisfied at the outset of the hearing that the required notice, including to the victim[1] of the applicant’s offence, and to the applicant’s family members, had been given. I was satisfied that no response had been received from the persons notified. The DPP took no further part in the hearing.
[1]The name of the victim will not be used in order to protect his privacy.
6 The Attorney General and the Secretary of the Department of Human Services and Health were represented by counsel at the hearing. Neither opposed revocation of the order.
The offending
7 On 19 February 2007 the applicant physically attacked his then supervisor at work. Having used a pretext call to lure that man to a secluded basement area of the work premises, the applicant crouched in waiting, wearing a mask, and then leapt at the man and inflicted a sustained beating which caused serious injury, and only ceased when another worker saw what was occurring and obtained assistance to end the assault. The applicant was arrested and charged. It is now believed by doctors that he had been experiencing increasing symptoms of mental ill health over two to three months before this incident, including delusional suspicions about the victim, but that no one including the applicant himself was aware of that occurring.
Events between offence and Court findings
8 At the time of the offence, the applicant’s mental health condition had not been diagnosed. He was living alone. After the offence he did not return to his previous or any other employment.
9 Some 18 months later, he was found by a housing worker in a debilitated state after fasting for some weeks. He was admitted to The Alfred Hospital’s inpatient psychiatric unit, noted to have suffered a significant deterioration in his mental and physical health, and diagnosed with first episode psychosis likely to be paranoid schizophrenia. He was admitted involuntarily. His treatment included a course of electro-convulsive therapy, and he was commenced on anti-psychotic medication, Risperidone. He remained an inpatient for a month, then was discharged for follow-up to the Alfred’s Junction Community Mental Health Service, St Kilda.
10 The applicant came before the Court on a charge of intentionally (or alternatively recklessly) causing serious injury. Initially he refused legal representation, but after a series of adjournments and the obtaining of psychiatric reports, on 28 January, 2010 he was found unfit to be tried by reason of mental impairment, and a verdict of not guilty due to mental impairment was directed to be entered. After further evidence and hearing, a non-custodial supervision order (‘NCSO’) was made, on 22 March 2010. That order had a nominal duration of 20 years.
History under the Non-custodial Supervision Order
11 There have been no review hearings in relation to this order, but reports from Forensicare as to his progress under the non-custodial supervision order have been made annually.
12 The Applicant’s diagnosis continues to be of paranoid schizophrenia, and he remains on Risperidone. He has been in remission for several years, and remains compliant with the medication, the dosage of which has only had to be varied moderately on occasions.
13 He has continued to attend the St Kilda Road Clinic of The Alfred approximately monthly, for treatment and case management. His care has been supervised since August 2010 by Dr Gregor Schutz, consultant psychiatrist, whom he has seen two to three monthly, and has been seen more frequently by the registrar and case manager. He is reported to attend reliably as was a condition of the NCSO.
14 The applicant lives independently, in satisfactory and stable accomodation, and although he is on a waiting list for Director of Housing accommodation, he would only want to live in the same general area as he does now, to remain close to where his son lives. He receives the Disability Support Pension, and manages his own finances. He has had no paid employment since the offending, but for some years now has worked as a volunteer at an Opportunity Shop run by the Salvation Army, now working four days a week there. He has told Dr Schutz that he finds meaning and purpose in this work, and it gives him contact with other people.
15 He has a son now aged 14 who lives with his ex-wife. There was a period in which his son came to live with him, and although this ceased, he continues to see his son regularly.
16 Although he used cannabis in the past, and still was doing so in 2012, he has ceased its use. He has not abused alcohol apart from one period many years before the offending. He claims to have abstained from cannabis for some three years, random urine screens have been negative, and on presentation to doctors there has been no suspicion that he had been using cannabis.
Medical Opinions
17 Dr Schutz provided a report and gave oral evidence including the following.
· The applicant’s compliance has been impeccable and he has no consistent concerns with him;
· In relation to his medication – he is on 3mg of Risperidone which is a usual maintenance dose for schizophrenia; he has been on 3 to 4 mg throughout, and should remain taking this medication;
· There has been no evidence of positive symptoms such as disorganized thinking or delusions since he has been seeing him; there may be some blunted mood but he is quite engaged in his activities.
· He has superficial understanding of his illness – agrees that he has in the past had some symptoms such as hallucinations and accepts that doctors say that he meets the diagnosis of schizophrenia, says he has moved on from past anger at events, but does not see a clear path connecting previous symptoms with his behaviour in offending.
· His personality style is that he respects the views of professionals, and is likely to defer to opinions of his doctors that he continues to need treatment and to take medications prescribed.
· Dr Schutz is of the view that the applicant does not need the legal co-ercion of the NCSO to continue to comply with treatment, and doesn’t need ongoing case management. It is preferred that clients be managed in the least restrictive manner suitable.
· Dr Schutz works also in private practice and is prepared to bulk bill, and would be able to see the applicant monthly in private practice. If the NCSO is revoked, he would not be immediately discharged from the St Kilda Clinic, but remain on the books until they were confident he was engaging with the new arrangements for his treatment. The plan is to continue treatment of the applicant through his private practice, as they have a good working relationship, and to reduce the frequency of attendances if things are going well. However, as the doctor continues to be a consultant at the St Kilda Rd clinic, he could get the applicant back into care there or The Alfred quite quickly if he felt it needed. If the applicant consents, there would also be contact made with his family – at least his son – and with the applicant’s supervisor at work, to inform them to make contact in case there were signs of mental illness.
· Dr Schutz expects that if the applicant remains compliant with his medication and absent new stressors in his life there is a high prospect of him being well.
· If Dr Schutz saw signs of deterioration or relapse in his mental health, which he would not expect to be sudden, he would give more assertive medical care, up to daily monitoring or admission to hospital. If he lost contact with the applicant he would arrange for someone at the Alfred Health to go out to visit him, and if there were signs that he had stopped taking his medication and would not resume, the doctor would consider applying for an assessment order with a view to a treatment order from the Mental Health Tribunal.
· There is a relapse plan developed between the patient and the clinic.
· Dr Schutz believed revocation of the order would be significant as it would be empowering to be outside the public system, and would recognize that the applicant had taken a lot of steps and made a lot of effort to recover from his illness.
18 Dr Lester provided a report and gave oral evidence including the following.
· He has been supervising the order, the aim being to ensure compliance by the patient, which involves liasing and keeping in contact with the treating team, and intermittent reviews of the patient himself.
· Overall the applicant’s illness has remained in remission and stable; he has been essentially compliant with his medication and that has been the primary treatment. He has overall been remarkably compliant with his medication during the whole period of the Order.
· He self-reported an instance in 2012 of not taking the medication for 72 hours, the reason being that he was at his ex-wife’s home looking after their son who was ill, and had not brought the medication with him. The fact that he self-reported that lapse in taking his medication when next seen at the Junction Clinic, was evaluated by Dr Lester who concluded that the lapse was not an adverse indication.
· His insight into his offending has improved but remains limited. He accepts that in the months before the offence he was not well, but has not quite come to the position of accepting that his illness was linked with the offending. His insight and attitude varies on this. He accepts that he did a wrong act and says he would not do it again, but still thinks the victim deserved punishment although it should not have been him to do so.
· He has clung to the belief that the victim had the soul of a murderer. He also has beliefs about the KGB following him, and apparently clings to the belief of Russian authority being bad. How much of this comes from his own experiences in Russia is unknown.
· He has certainly improved in the important area of accepting that he was not well when he committed the offence and that he needs to see doctors and follow their advice in taking medication.
· There is a risk of recurrence of illness, but the real question is how to manage the risk. The positives are long-term accommodation, that he is working four days a week in a supportive environment of a charity, and is seeing his son regularly at weekends. The cessation of cannabis use is another positive is his long-term willingness to take medication which is mainly because he has a good relationship with his doctor and has seen some improvements himself from being on the medication.
· Any relapse or deterioration would be expected to develop over time – of at least a few weeks.
· There would be no particular concern if the applicant were to go overseas as he plans to do to Israel (where he lived for some years), providing he would have where to live, would take his medication, and should take a letter to doctors.
· Dr Lester had no fears about him being with his son, who lived with him for a period which the applicant enjoyed. He was not aware whether the son knew the signs if his father’s mental health deteriorated.
· He does not need assertive case management, but does need to remain on Respiridone indefinitely. Dr Lester would have concern if the applicant were discharged into the care of a GP rather than his psychiatrist. He is well known to his treating team, and if he were becoming unwell and in particular not attending appointments he would expect that team to take steps to invoke the Mental Health Act provisions, and Dr Schutz with his dual role could do that.
· Dr Lester considers that there is a stigma for patients from being on a Supervision Order and that has adverse effect, although the positive of the order is a reminder of the potential consequences of non- compliance. His view is that the Order has served its purpose and there is no ongoing need for it.
· The applicant is now coming to a crucial time transitioning into non-supervised life in the community, and he did doesn’t need his photo or name in the media, which has happened on occasions, fostering fear that the person who has been under the order is “mad”, and for that reason Dr Lester supports non-publication of the applicant’s name.
19 Mr Rowe, the applicant’s case manager, co-signed Dr Schutz’s report. He says that his role as the applicant’s case manager (since 2013) has been largely nominal, because the applicant’s housing has been stable, as has his work as a volunteer, and his compliance with medication and attendance at the clinic, so Mr Rowe’s role has been mainly to support him and complete quarterly reports for Forensicare.
Considerations – under sections 39 and 40(1)(c)
20 I have taken into account the authorities to which I was referred, especially of Fowler[2] and of NOM[3]. I approach the application on the basis that if the risk of harm is low, then the NCSO should be revoked, and to find a risk of harm it must be likely and not merely possible.
[2]Fowler (a pseudonym) v Secretary to the Department of Health & Ors [2014] VSCA 231
[3]NOM v DPP & Ors [2012] VSCA 198
21 Taking into account the above noted points from the evidence of Dr Lester and Dr Schutz, I am satisfied that although the Applicant still has a psychiatric diagnosis of schizophrenia, his illness has remained stable and in remission since he was placed on the NCSO more than 5 years ago. He has remained compliant with his medication which has not required much adjustment over those years. He has accepted his doctors’ advice as to his diagnosis and treatment. He has expressed the intention to remain compliant with recommended attendance and medication, and it is planned that this continue through the consultant psychiatrist, Dr Schutz, with whom he has had a good therapeutic relationship since that doctor took over his supervision almost 5 years ago.[4]
[4] S 40(1)(a)
22 Apart from expected continuity in treatment, there are a number of factors of everyday life that are likely to support ongoing stability in his condition. In particular, he is working four days a week at work that he finds meaningful, albeit unpaid, has regular contact with his teenage son, has ceased cannabis use, is in receipt of the Disability Support Pension and has stable long-term accommodation. Even though he is on a waiting list for Director of Housing accommodation, he would only move to somewhere in the same general geographic location so as to remain hear his son. He has a degree of social contact through his work, and on seeing his son, and also interacts with his treating team.[5]
[5] S 40(1)(e)
23 He has not shown any signs of symptoms of his underlying illness for some years. Dr Schutz intends if the applicant gives permission, to alert family and a work supervisor to what signs to recognise and who to contact if symptoms of mental illness start to emerge.
24 The applicant is not considered to pose any threat to his son, who for a time lived with him without harm and without a destabilization of the applicant’s mental health condition.
25 The risk of harming himself which caused his initial admission to hospital and led to the diagnosis of his mental illness has not been repeated since that time, and that is now more than six years ago.
26 Although there is clearly some risk associated with his being considered to have only limited insight into the link between his mental illness and the offence in question, and to still hold to some distorted views about the victim of that offence needing punishment, I accept Dr Lester’s opinion that it is important that he has accepted that he been medically diagnosed with schizophrenia, and that he is prepared to defer to doctors’ views that he requires ongoing treatment by way of attendances on his psychiatrist and ongoing medication. Although he interacts with other people at his volunteer work, there is no suggestion that he has posed any risk to any of them, having been compliant with his medication and not exhibiting any symptoms of his illness.
27 If his mental health deteriorated significantly, or if he failed to attend for treatment or take medication, I am satisfied that Dr Schutz would set in motion steps to bring the applicant back under the care of Alfred Health, and if necessary invoke provisions of the Mental Health Act to have him assessed for a treatment order. Although the prospect of coercive action such as under the Mental Health Act will not necessarily support the revocation of an NCSO[6], the likely ongoing involvement of the same treating psychiatrist, Dr Schutz is an important aspect in my view of the safeguards likely to be in place[7].
[6]Fowler at para [26]- [27]
[7]Re NR per Kellam J, cited in Fowler at [26]
28 Despite there being some risk of deterioration or relapse into symptomatic mental illness, I am satisfied that were that to occur it would be over time, at least over some weeks, and that there are now people likely to notice and reasonable safeguards that should pick that up and enable steps to be taken to address his symptoms before they could reach a stage that might pose risk to himself or others.[8]
[8]S 40(1)(c)
Conclusion
29 Having reviewed the evidence and the submissions, I am satisfied that the application should be granted. Pursuant to s 33 of the Crimes (Mental Impairment and Unfitness to be tried) Act 1997, the non-custodial supervision Order I made on 22 March 2010 is revoked.
30 I am also satisfied that pursuant to s 75 of the Act, there should be no publication of information that might identify the applicant. That is because I am satisfied that to identify him may risk his mental health. The order I shall make is that until further order, there be no publication of any information which might identity the Applicant. Publication of this case may be made using a pseudonym: Maximilian Bezrukov.
31
I was asked to also suppress his address but that seems to me to be unnecessary as nothing in my reasons for decision is likely to identify his address.
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