Director of Public Prosecutions v Bailey (Ruling No 2)
[2018] VSC 332
•22 June 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0128
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN PATRICK BAILEY |
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JUDGE: | KAYE JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 June 2017, 4 December 2017, 23 March 2018, 22 June 2018 |
DATE OF RULING: | 22 June 2018 |
CASE MAY BE CITED AS: | DPP v Bailey (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 332 |
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CRIMINAL LAW – Murder – Verdict entered of not guilty by reason of mental impairment – Report received under s 41 of Crimes (Mental Impairment & Unfitness to be Tried) Act 1997 – Custodial supervision order imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Rochford QC | Solicitor for Public Prosecutions |
| For the Accused | Ms F Todd and Ms A Beech | McNamaras Barristers & Solicitors |
HIS HONOUR:
The accused man, Stephen Patrick Bailey (‘Bailey’), was charged on indictment with one count of the murder of his mother, Penelope Bailey, at Mont Albert North on 5 October 2015. He pleaded not guilty to that charge on the grounds of mental impairment.
Before a jury was empanelled in the matter, the prosecution and the defence both agreed that the evidence established the defence of mental impairment. Accordingly, it was common ground that, pursuant to s 21(4)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’), I should hear the evidence without a jury. On 11 April 2017, I conducted that hearing. Having heard the evidence, I found that I was satisfied, on the balance of probabilities, that Bailey had established a defence of mental impairment. I therefore directed that a verdict of not guilty, on the grounds of mental impairment, be recorded.[1] I also declared, under s 23(a) of the Act, that Bailey was liable to supervision under Part 5 of the Act, and I remanded him in custody, pursuant to s 24(1)(b) of the Act. The hearing of the matter was adjourned, initially to 28 June 2017, pending receipt of a report under s 41(1) of the Act, and a certificate of available services under s 47. Subsequently, it was adjourned on three further successive occasions to 4 December 2017, 23 March 2018 and 22 June 2018, pending receipt of the s 47 certificate.
[1]DPP v Bailey [2017] VSC 195.
At the adjourned hearing, on 28 June 2017, I was provided with a report by Dr Sonny Atherton and Dr Kate Roberts, Forensicare, pursuant to s 41 of the Act. However, I was advised that, at that time, there was no bed currently available for Bailey at Thomas Embling Hospital. I was provided with a certificate to that effect, together with an accompanying letter by the corporate lawyer of Forensicare. In that letter it was explained that all of the beds, that were available for those requiring involuntary treatment at Thomas Embling Hospital, were occupied, and that there were then thirteen male prisoners, who had been certified, and who required such treatment at the hospital, but who were waiting for a bed to become available. It was then anticipated that a bed would not be available for Bailey for a further period of six months. As a consequence, I adjourned the hearing to 1 December 2017. The hearing date was subsequently re-fixed to 4 December for administrative reasons.
At that adjourned hearing, on 4 December 2017, I was provided with a further report by Dr Atherton and Dr Roberts dated 29 November 2017, pursuant to s 41 of the Act. However, I was advised that, at that time, there was still no bed currently available for Bailey at Thomas Embling Hospital, and I was provided with a certificate to that effect. At that time, I was also advised that it was not anticipated that a bed, for the accused, would become available at Thomas Embling Hospital for a further period of six months.
At the further adjourned date, on 23 March 2018, I was provided with a further report by Dr Atherton dated 21 March 2018, pursuant to s 41 of the Act. However, I was advised that, at that time, there was still no bed currently available for Bailey at Thomas Embling Hospital, and I was provided with a further certificate to that effect. I was advised that it was not anticipated that a bed, for Bailey, would become available at Thomas Embling Hospital for a further period of six months. At that hearing, I had available, and had provided to counsel, a letter written to another judge of this Court by Mr Tom Dalton, the chief executive officer of Forensicare, and Dr Danny Sullivan, the executive director, Clinical Services of Forensicare. That letter outlined, in some detail, the factors that explained the limited availability of beds for psychiatric patients at Thomas Embling Hospital. Put simply, the need for such beds, to accommodate forensic patients, security patients, and compulsory patients, far exceeded the number of beds available at Thomas Embling Hospital for those patients.
I have now received, and read, a certificate of available services pursuant to s 47 of the Act, dated 19 June 2018, certifying the facilities that are available for Bailey at Thomas Embling Hospital.
Before determining the disposition of this matter, it is appropriate to acknowledge that Penelope Bailey was the direct victim of the offence in respect of which I have entered the verdict of not guilty. At the time of her death, Mrs Bailey was only 59 years of age. The Victim and Family Member Reports describe her as a kind, gentle and caring person, who was much loved by her family. The circumstances in which she died must have been particularly terrifying for her, and it was appalling for her to have died in such violent circumstances, in her own home, at the hands of the son to whom she had given much care and support.
I have also been provided with, and read, the Victim and Family Member Reports of Penelope Bailey’s mother, Vivienne Kerr, of her brothers Peter Kerr and Paul Kerr, her sister Elizabeth Kerr, her nieces Olivia Kerr and Georgia McMahon, and her former husband Christopher Bailey. Penelope Bailey’s death, and the circumstances in which it occurred, has been of considerable grief to each of them, and to the whole of her family. Mrs Kerr’s statement movingly describes her profound sorrow resulting from the tragic loss of her daughter.
I turn, then, to the question of the supervision order that I should make under Part 5 of the Act. At each of the adjourned hearings, and at today’s hearing, I have received a number of reports relating to Mr Bailey’s mental state, treatment and disposition while he has been in custody after the initial hearing before me on 11 April 2017. Before outlining the substance of each of those reports, it is convenient, first, by way of background, to summarise the evidence on the basis of which I was satisfied, on the balance of probabilities, that Bailey had established the defence of mental impairment under s 20(1) of the Act. In essence, I reached that conclusion, by reason of a combination of the following four factors or matters, namely:
(1)The evidence of the deterioration of Bailey’s mental state during the period of four years before the index offence, including his treatment by a crisis assessment and treatment team for a period of two weeks in October 2013.[2]
(2)Evidence of Bailey’s mental state in the period shortly before, and shortly after, the index offence. That evidence included observations made of Bailey by his sister Belinda, and her partner Edward Bryant, four days before the index offence, observations by his other sister Shannon on the day of the offence, and observations by the paramedic who attended to him after he was located by the police on the evening of the offence. It also included evidence of the recordings of Bailey’s interactions with the police on that night.[3]
(3)Evidence of assessments made of Bailey, successively, by Dr Jenepher Darkis, the consultant psychiatrist, at the Royal Melbourne Hospital, by Dr Caroline Simms of the Thomas Embling Hospital, by Dr Douglas Bell, psychiatrist, at the Melbourne Assessment Prison, and by Dr Clare McInerney at the Metropolitan Remand Centre.[4]
(4)The uncontradicted evidence of Dr Adam Deacon, consultant psychiatrist, and Dr Mark Ryan, consultant forensic psychiatrist, that Mr Bailey has a diagnosis of schizophrenia, and that he was severely psychotic at the time of the offence, so that he was not able to reason with sense and composure as to the wrongful nature of his actions, and thus qualified for a finding of mental impairment under s 20 of the Act.[5]
[2]Ibid [21]–[32].
[3]Ibid [33]–[36].
[4]Ibid [37]–[38], [50]–[51].
[5]Ibid [41]–[66].
It is in the context of that evidence that I have received and read a number of reports that have been provided to the Court on each of the adjourned hearings, and for today’s hearing.
As mentioned, before the first adjourned hearing of 28 June 2017, I received, the report of Dr Sonny Atherton, Senior Psychiatry Registrar, Forensicare, and Dr Kate Roberts, Consultant Forensic Psychiatrist, Forensicare, dated 27 June 2017, which was provided to the Court pursuant to s 41 of the Act.
That report is detailed and thorough. At that time, Bailey continued to reside within the St Paul’s Psychosocial Rehabilitation Unit at Port Phillip Prison, as there were no beds available for him at Thomas Embling Hospital. He appeared to have partially responded to the anti-psychotic medication, Olanzapine, but, at the current dose, he continued to experience many symptoms which resembled, albeit at lower intensity, symptoms that characterised the acute psychosis that he experienced in the lead up to the offence. In particular, he was experiencing intermittent exacerbations of persecutory ideas relating to the ‘Mime Order’, a sense that he was in danger of being harmed or killed while he was in the St Paul’s Unit, delusional perceptions relating to the body language of other people, misperceptions relating to the identities of other persons, referential ideas relating to the television, possible auditory hallucinations or auditory misperceptions, and persisting ideas relating to the ‘Gods’ from whom he still believed he was receiving messages. He expressed feelings of significant guilt and regret relating to the index offence. There was no change in his anti-psychotic medication, namely, Olanzapine at 15 mg per day, as well as the anti-depressant medication Escitalopram, 20 mg daily.
The report noted that Bailey did not present with a history of significant behavioural problems or disordered conduct in his childhood or adolescent development, and there were no overt traits of psychopathy or of a personality disorder, including anti-social personality disorder.
Dr Atherton and Dr Roberts expressed the view that if Bailey were not to adhere to his medication, there would be a significant risk that his psychotic symptoms would increase in intensity, with an increased risk of violence. The fact, that Bailey continued to experience active psychotic symptoms, meant that it was likely that his illness was, at that time, under-treated, and it was likely that he would require an increased dose of anti-psychotic medication, which might result in additional side effects. Dr Atherton and Dr Roberts agreed with the views of Dr Ryan and Dr Deacon, namely, that the nature and time-course of the symptoms, and the accompanying function decline which had been described, are consistent with the diagnosis of schizophrenia, with overt symptoms evident since at least 2013, but with symptoms potentially present for a number of years before that.
Dr Atherton and Dr Roberts considered that Bailey should be admitted to a forensic hospital, in order to provide an opportunity for acute psychiatric treatment in the first instance. That treatment would be directed to gaining better therapeutic control over Bailey’s persisting psychotic symptoms, ideally in an acute forensic in-patient setting, where it would be possible to closely monitor his response to treatment, risks and mental state. In the medium to longer term, once the acute psychotic symptoms were better controlled, the focus would shift to forensic rehabilitation goals. That treatment would be directed to reducing the risk of psychotic relapse, and to recognition of early warning signs, understanding the role of medication, and understanding the relationship between the accused’s mental illness and his risk of violence. It was recommended that treatment should be administered at Thomas Embling Hospital on a custodial supervision order, in order to enable those interventions to take place. Dr Atherton and Dr Roberts stated that while Bailey was awaiting a bed at Thomas Embling Hospital, his mental health could continue to be treated in the St Paul’s Unit at Port Phillip Prison, where he should continue to take the prescribed anti-psychotic and anti-depressant medications, under supervision of the psychiatric team at that unit.
As mentioned, before the second adjourned hearing on 4 December 2017, I received a further report, dated 29 November 2017, from Dr Atherton and Dr Roberts. At that stage, the accused remained in the care of the St Paul’s Psycho-Social Rehabilitation Unit at Port Phillip Prison. His medication had been increased, and he was then on two prescribed anti-psychotic medications, namely, Olanzapine 30 mg per day, and Amisulpride 400 mg per day, together with the anti-depressant Escitalopram.
In their report, Dr Atherton and Dr Roberts noted that Bailey still experienced a range of persisting symptoms of psychosis, that included delusional perceptions, delusional misidentifications, ideas of reference, auditory hallucinations, command phenomena, and grandiose and persecutory ideas, that included that he was at risk of harm through the mechanisms of the Mime Order, with the overarching involvement of the ‘Gods’ from which he felt he still received messages and thought directives. Bailey again expressed feelings of guilt and regret relating to the index offence. It was noted that he seemed to be able to recognise his psychotic symptoms, but his insight was incomplete. Dr Atherton and Dr Roberts stated that their opinions and recommendations remained unchanged from their first report. Bailey’s overall presentation was consistent with the diagnosis of schizophrenia. They were of the view that Bailey’s ongoing treatment should occur at Thomas Embling Hospital on a custodial supervision order, but that, in the meantime, he should engage with counselling and therapeutic programs at the St Paul’s Unit of Port Phillip Prison.
As mentioned, at the adjourned hearing of 23 March 2018, I was provided with a further report by Dr Atherton dated 21 March 2018. In that report, Dr Atherton stated that the accused’s psychiatric presentation remained essentially unchanged since the last report of December 2017. In particular, Bailey continued to experience distressing, persecutory and grandiose psychotic symptoms that were described in the earlier reports. His mental state fluctuated to some degree, where he might go several days reporting minimal symptoms, but then he would appear to experience more intense symptoms which exacerbated intermittently. At that stage, Bailey had been attending therapeutic groups at Port Phillip, and, specifically, a mental health recovery group. His response to anti-psychotic treatment had, overall, been partial only.
Since the previous report in December 2017, Bailey had been trialled on the anti-psychotic medication, Amisulpride, but that medication had been weaned. The anti-psychotic medication, Quetiapine, which was then being currently trialled up to a dose of 400 mg per day. Bailey remained on Olanzapine, at a total dose of 30 mg per day, with additional doses available on an ‘as needs’ basis. In addition, the accused remained on the antidepressant medication Escitalopram. At that time, the medication Clozapine (that was considered overall to be the most effective anti-psychotic medication) was being considered as an option. However, it was difficult to initiate that medication in the prison environment, because the administration of it involved complex monitoring requirements that were not available in prison.
Finally, before today’s hearing, I was provided with a report by Dr Mark Ryan dated 19 June 2018, the purpose of which was to update the Court with the current mental state and condition of Bailey. Dr Ryan has reported that Bailey has a well-established diagnosis of schizophrenia. He is compliant with his medication. The current medication administered to him involves a combination of two anti-psychotic medications, Olanzapine and Quetiapine, as well as the anti-depressant, Escitalopram.
Dr Ryan has reported that Bailey is settled in his behaviour and there have been no incidents of any significance. However, he has struggled with motivation and is socially withdrawn. His mood has improved since commencing anti-depressants, but at times he has contemplated suicide, and he has considerable issues with guilt, grief and loss. Dr Ryan has noted that Bailey continues to experience symptoms of schizophrenia with delusional ideas of variable intensity, with referential, persecutory and grandiose aspects, and fluctuating insights. At times he has experienced auditory perceptual abnormalities in the form of distant, usually unintelligible, voices.
In conclusion, Dr Ryan noted that Bailey has a treatment resistant schizophrenic illness, and that he suffers ongoing distressing psychotic symptoms despite treatment with two anti-psychotic medications. Dr Ryan agrees with recommendations of previous reports that Mr Bailey requires management on a custodial supervision order.
Conclusion
The principles and factors that are to be taken into account, in determining the disposition of Mr Bailey, are prescribed in s 39 and s 40 of the Act. In a case such as this, where there was a direct causal relationship between Bailey’s psychosis and his offending, and where the offending was so serious, the protection of the community, and of Bailey himself, from harm must be preeminent considerations. The evidence clearly demonstrates that Mr Bailey has, for some time, suffered a serious psychiatric illness, and at the time of the index offence, he was severely psychotic. In the period of 14 months since he was found not guilty on the grounds of mental impairment, Bailey has responded only partially to the regime of medication administered to him while he has been in custody. He continues to suffer significant and persistent symptoms of his schizophrenic illness.
In those circumstances, it is clear that, in the interests of the community, and of Mr Bailey himself, the only appropriate order to be made in this case is the imposition of a Custodial Supervision Order.
Accordingly, pursuant to s 26(2)(a)(i) of the Act, I order that the accused, Stephen Patrick Bailey, be liable to a Custodial Supervision Order in an appropriate place, namely Thomas Embling Hospital. Pursuant to s 28 of the Act, I fix the nominal term of the supervision order for the prescribed period of 25 years from 7 October 2015. I commit Mr Bailey to the custody of the Victorian Institute of Forensic Mental Health.
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