Director of Public Prosecutions v Drake (a pseudonym)
[2016] VCC 1858
•6 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Suitable for Publication |
Case No. CR-06-01416
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATRICK DRAKE (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE SMITH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 October 2016 |
| DATE OF ORDER: | 6 December 2016 |
| CASE MAY BE CITED AS: | DPP v Drake (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1858 |
REASONS FOR DECISION
---Subject: Major Review of Non-Custodial Supervision Order
Catchwords: Whether Order should be confirmed or revoked – whether, if the Order was revoked, the person would be likely to endanger themselves or other people generally.
Legislation Cited: Crimes (Mental Impairment and Fitness to be Tried) Act 1977; Mental Health Act 2014
Cases Cited: NOM v DPP [2012] VSCA 198; Briginshaw v Briginshaw (1938) 60 CLR 336
Sentence: Non-Custodial Supervision Order confirmed.
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APPEARANCES: | Counsel | Solicitors |
| For the Secretary to the Department of Health and Human Services | Ms M Wilson | Department of Health and Human Services Legal Services |
For the Attorney-General | Ms M Jenkins | Victorian Government Solicitors Office |
| For the Director of Public Prosecutions | Ms J Carpenter | Office of Public Prosecutions |
| For Reviewee | Ms K Grinberg | Victoria Legal Aid |
HIS HONOUR:
1 Patrick Drake[1] committed a number of offences on 9 October 2005 near Craigieburn in Victoria.
[1]Patrick Drake is a pseudonym.
2 He was charged with:
(a)reckless driving that placed other persons in danger of death;
(b)reckless driving that placed other persons in danger of serious injury;
(c)dangerous driving causing serious injury to one Gary Major; and
(d)reckless driving causing serious injury to Gary Major.
3 It appears that the nature of his driving on that occasion consisted of erratic driving at high speed, overtaking unsafely, forcing other vehicles off the road and eventually colliding with Mr Major, causing him serious injury.
4 On 22 May 2007, a jury found Mr Drake was not fit to stand trial pursuant to s.12(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1977 (“the Act”).
5 On 20 August 2007 a judge of this Court ruled that he was satisfied that the evidence established the defence of mental impairment. Accordingly, a verdict of not guilty because of mental impairment was recorded in respect of each of the charges.
6 On 19 November 2007 a Non-Custodial Supervision Order (“the Supervision Order”) was made in respect of Mr Drake by the judge pursuant to s.26 of the Act.
7 A review of that Order was conducted on 27 November 2009. On that date, the judge ordered that the Supervision Order made by him be confirmed.
8 The matter before me involves a Major Review of the Supervision Order pursuant to s.35 of the Act.
9 A substantial number of expert reports were tendered in evidence. These dated back to May 2006 and were as recent as October 2016. They consisted of reports from:
(a)Dr Michael Epstein, psychiatrist, dated 5 May 2006 and 28 June 2007;
(b)Dr Kate Roberts, psychiatrist, dated 9 August 2007;
(c)Dr William Glaser, psychiatrist, dated 1 October 2007;
(d)Dr Kevin Ong, psychiatrist, dated 22 July 2014, 29 May 2015 and 24 August 2016;
(e)Mr Chris Kelly, psychologist, dated 23 October 2014 and 9 February 2015;
(f)Dr Siddhartha Dutta, psychiatrist, dated 17 March 2015;
(g)Associate Professor Andrew Carroll, psychiatrist, dated 5 May 2015;
(h)Mr Peter Stanislawski, psychologist, dated 8 September 2016;
(i)A substantial number of reports from the Department of Health and Human Services (“the Department”) dated between 29 June 2009 and 4 October 2016; and
(j)Dr Ash Takyar and Dr MJ Graham dated 24 March 2010.
10 Further, a number of witnesses gave oral evidence at the hearing of this matter and were cross-examined. Those witnesses were Ms Lisa Cardillo, an employee of the Department; Mr Stanislawski; Dr Ong; and Sarah Green,[2] who is a sister of Mr Drake.
[2]Sarah Green is a pseudonym.
11 With regard to a number of the earlier reports to which I have referred, the opinions expressed therein are not so relevant to the issue currently before me, but are useful in providing background material. In particular, the report of Dr Glaser of 1 October 2007 contained a helpful background. Dr Glaser had been Mr Drake’s treating psychiatrist since about 1999.
12 It was not in dispute that Mr Drake suffered from a mild level of intellectual disability present since birth, as well as long-standing psychiatric problems which had been present since at least 1997.
13 He had first come to psychiatric attention in 1997, when he was hospitalised in a psychiatric facility after an incident involving a girlfriend. His subsequent hospitalisation was precipitated by a number of distressing behaviours involving a young female neighbour. The precise details of those behaviours are unknown to me.
14 After that psychiatric hospitalisation, Mr Drake returned to the family farm but could not cope. Soon after, the farm was sold and he was admitted to a community residential psychiatric facility and did reasonably well there. He was seen, at that time, by a psychiatrist, Dr Julian Davis, who considered that his main problem was that of a “reactive psychosis”[3] in the context of depression arising from a number of life changes.
[3]Exhibit S, at page 3 of his report
15 Up until this time, Mr Drake had resided with his family on the family farm. After the bulk of the farm was sold, he remained living in a house on the farm on a small acreage. He eventually was accommodated in a Melbourne specialist facility for people with an intellectual disability. Initially he did quite well but by the beginning of 2000 he was refusing to comply with prescribed medication and started to exhibit obvious hallucinations, became mute, was neglecting his hygiene and self-care and was making bizarre, paranoid accusations regarding fellow residents and staff including threats to assault people.
16 He required treatment as an involuntary patient and made significant improvement. He was able to maintain that improvement over the subsequent five years until the time of the alleged offences in 2005.
17 Dr Glaser considered that he had improved considerably in terms of functioning and mental state until the time of those alleged offences. He was living independently and had been able to obtain employment on a farm. He possessed a motor vehicle driver's licence at that time.
Dr Glaser had seen Mr Drake both before and after the alleged offences of October 2005. He noted that by June 2005, about three months before the offences, Drake was starting to display a number of uncharacteristic behaviours including occasional staring into space, waking very early and becoming somewhat ruder than his normal polite self.
18 He examined him after the alleged offences occurred and noted that he was unshaven and dishevelled compared with his normal immaculate presentation. He seemed to be suspicious and guarded and felt that he was unable to trust the disability service workers who were trying to assist him. He had been impulsively spending money on items of no use to him and was neglecting to buy himself food. He needed to be reminded to do even simple tasks at work.
19 Dr Glaser stated that, from past experience, he recognised these were all signs of relapse into his long-standing psychiatric disorder. His antipsychotic medication was increased and his psychiatric state improved considerably over the next few months.
20 Dr Glaser noted that Mr Drake's psychiatric symptoms when florid had caused considerable distress to himself and others around him resulting in multiple accommodation changes because of his challenging behaviours in 1997 and 1999, contact with the criminal justice system in 1999 and, after a long period of stability, further contact with the criminal justice system following the alleged offences of 2005.
21 Dr Glaser considered that when Mr Drake was psychiatrically well he was able to function at quite a high level, living semi-independently, assisting in managing his finances, working in appropriate employment such as a sheltered workshop, and enjoying appropriate social and recreational activities by participating in a number of services and programs auspiced by Disability Services.
22 As at October 2007, Dr Glaser considered that Mr Drake's future risk of reoffending could be reduced to virtually negligible levels by ongoing monitoring and treatment of his psychiatric condition, as well as a continuation of the support programs which he was then receiving from Disability Services. As I understand it, Dr Glaser ceased to practice shortly after that date.
23 Mr Drake has received support for many years from Disability Client Services Case Management, Hume Region, based at Shepparton. That body coordinates and facilitates case planning meetings with other services who support Mr Drake in relation to accommodation, outreach services, and supported employment. He was seen regularly by a psychologist, Chris Kelly, mostly on a fortnightly basis. He has resided for a considerable period of time in supervised accommodation with other residents.
24 In 2011, a private psychiatrist, Dr Michael Maloney, took over his care. Mr Drake continued to receive fortnightly anti-psychotic medication and his behaviour was monitored fortnightly by Mr Kelly.
25 Notwithstanding that his behaviour had been considered to be stable for the 12 months leading up to early November 2011, on 1 November of that year, a report from Ms Deb Smith and Ms Cecily Fletcher of Disability Client Services, Hume Region, recommended that the Supervision Order continue in its then current form.[4] Similar recommendations were made by Ms Smith and Ms Fletcher in a report dated 9 November 2012,[5] and by Ms Smith and Ms Cardillo, in reports dated 14 November 2013[6] and 17 November 2014.[7]
[4]Exhibit O, at page 3 of their report
[5]Exhibit N, at page 3 of their report
[6]Exhibit M, at page 3 of their report
[7]Exhibit J, at page 4 of their report
26 In a report dated 23 October 2014, the psychologist, Mr Kelly, stated that when Mr Drake is mentally unwell, he showed disinhibited and reckless behaviour; he interacted inappropriately with community members; he became impulsive and had an elevated mood.[8] In that report, Mr Kelly said that he had not seen that type of behaviour in the eight months leading up to October 2014.
[8]Exhibit K, at page 2 of his report
27 The most recent report from Mr Kelly was that dated 9 February 2015. He said there:
“I am aware that over the past ten years … [Drake] had had several relapses in his mental health status. This has been shown by elevated moods along with fluctuating periods of lowered mood, becoming irritable and erratic, non-compliance, uncooperativeness, paranoia, grandiose thoughts, acting in an aggressive way and generally withdrawing.
…
He currently receives an Intra-muscular injection of Paliperidone, Risperidone and as a mood stabilizer, Sodium Valproate.
I understand these medications are well tolerated and he currently has few side effects. This type of intervention is required for the remainder of … [Drake’s] life. If he was not provided with treatment and assistance, he could become unwell again.
At present I am pleased to say that … [Drake’s] mental health status has been quite stable over the past 8 months.
In my opinion the reason for this is due to his ongoing supported accommodation where he receives 24 hour staff intervention and support. He also has meaningful occupation during the day and he receives outreach support where he is assisted in accessing community settings.
Again, at present his medication regime appears to have stabalised (sic) his psychotic illness. As with many people who suffer from a psychiatric condition, medication requires constant review and alterations in medications to obtain therapeutic doses and levels can take place two to three times a year (sic).
…
Support staff working with … [Drake] have received training and education so that they are aware of any signs or symptoms that would indicate a relapse or deterioration in his Mental Health Status.
Dr Patel, a Consultant Forensic Psychiatrist from Disability Forensic and Treatment Services, outlined behaviours of concern which would indicate a deteriorating state of mental health. These behaviours include: outburst of aggression, disruptive behaviours, stalking, voyeurism, fetishism, theft, leaving his place of residence without permission and notice, refusing to participate in activities with co-residents, threats to harm others and having a heightened sense of entitlement.”[9]
[9]Exhibit W, at page 4 of his report
28 Mr Kelly stated that he would oppose any request for Mr Drake to own a motor car, or to take charge of a motor vehicle. Mr Kelly recommended that the Supervision Order be revoked. That was in February 2015. No further or current report from Mr Kelly was tendered.
29 In a report dated 10 February 2015, Ms Smith and Ms Cardillo noted that Mr Drake was then currently stable and had been “relatively stable for the previous eight months, other than in relation to an incident in December-January 2014, which was only mild, and from which he recovered quickly.”[10] I point out that those dates are a little confusing. In their report of February 2015, Ms Smith and Ms Cardillo also noted that when talking to Mr Drake about the Supervision Order, he did not appear to have a clear understanding of what the Order was about, or how he was to comply with it. They opined that if the Supervision Order was revoked, it would not impact upon Mr Drake in any way. Nothing would change in his life, and he would continue to receive the same level of care, support and funding that he was currently receiving. They recommended that the Supervision Order be revoked.
[10]Exhibit X, at page 2 of their report
30 Mr Drake's psychiatric health is currently monitored by a psychiatrist,
Dr Siddhartha Dutta. In a report by him, dated 17 March 2015, he noted that Mr Drake was then receiving the following psychotropic medications – paliperidone, sodium valproate, benztropine and paliperidone injections.[11] He was then residing in a twenty-four hour supervised environment, was engaged in three days a week of supported workshop and two days per week of outreach services. At that time, Dr Dutta noted that Mr Drake presented as:
“… completely settled in his mental state, there are no positive psychotic symptoms, although he displays the negative symptoms of Schizophrenia. There is no risk of harm to himself or others and no risk of absconding.”[12]
[11]Exhibit H, at page 1 of his report
[12]Exhibit H, at page 1 of his report
31 At that time, Dr Dutta noted that Mr Drake had not displayed any early warning signs since June 2014 (that is, for the previous 9 months). He considered that if Mr Drake could remain at the same accommodation in a supervised manner for an indefinite period, any signs of relapse of the illness could be identified early and managed proactively, thus minimising any risks emanating from the illness.
32 I also note that in Associate Professor Carroll's report of 5 May 2015, he records that in March 2014, Mr Drake was “brought in by police and admitted to a psychiatric unit for just over a fortnight” with reports of deterioration in self-care and abuse towards staff.[13]
[13]Exhibit G, at page 5 of his report
33 In May 2015, Mr Drake’s matter was listed for Major Review by this Court. Shortly before the matter was scheduled to be heard, a report was obtained from Associate Professor Andrew Carroll, a Consultant Forensic Psychiatrist, dated 5 May 2015. It is, in my opinion, a significant one. Associate Professor Carroll made a number of points which I consider are of relevance to this review.
(a)Mr Drake lacked any insight at all into his mental health problems. He denied any difficulties, past or present, with his mental health or behaviour. He did not know what his medication was for and he was getting sick of taking it. He showed no understanding of why staff might be currently concerned about his behaviours;
(b)When asked about hearing voices, Mr Drake had stated “I used to about a month ago, but don’t now ….”[14] He was apparently unable to embellish upon that remark in any way;
[14]Exhibit G, at page 3 of his report
(c)He had recently displayed a number of behaviours which, while not indicative of full-blown relapse, were nonetheless known to be early-warning signs commonly seen in Mr Drake’s case prior to a more profound deterioration of his mental health. Specific behaviours had included:
·Spinning, whereby Mr Drake literally spins on the spot for brief periods of time at home;
·Sitting next to unknown females at a café and mimicking their behaviours;
·Starting to do something and then blanking out;
·Wandering off when on a group outing.
(d)At the time (May 2015), he noted that Dr Dutta was concerned about this evidence of early-warning signs and was considering the option of a major change in his pharmacological regime, specifically, a switch to the antipsychotic medication, Clozapine. There is no evidence that this change took place but I note that Dr Ong, in his report dated 29 May 2015, stated that, were Mr Drake to be prescribed Clozapine he would need to be monitored for ‘potential serious side effects’ which the Disability Forensic Assessment and Treatment Service (“DFATS”) would be unable to provide;[15]
(e)Mr Drake had had a number of psychiatric admissions between November 2012 and December 2014:
·In November 2012, he had been admitted involuntarily when he was brought in by police because of deteriorating behaviour over the previous few months.
·In December 2012, he was re-admitted to hospital for two-and-a-half weeks because of poor compliance with medication and “walking into traffic”[16].
·In September 2013, he was admitted to a psychiatric hospital again for two months. He had been picked up by police after complaints from the public. He had engaged in various concerning behaviours, including following a fourteen-year-old girl, walking in traffic, walking in driveways, spending over $1,000 on female clothing, underwear and jewellery, following and staring at unknown females, being uncharacteristically aggressive to his family, engaging in episodes of random laughter, and engaging in uncharacteristically silly behaviours, such as letting down tyres of vehicles and placing nails under them.
·In March 2014, he was again brought in by police and admitted to a psychiatric unit in Shepparton for just over a fortnight. There had been a deterioration in the previous fortnight when his self-care had deteriorated, and he was being abusive to staff in an uncharacteristic way.
·He was again admitted to hospital on 10 June 2014 after missing an injection of medication and being non-compliant with his tablets.
·On 12 December 2014, he was noted to have been walking away from his residence to unknown destinations and that his mental state had deteriorated noticeably. He had engaged in risk-taking behaviour and was proving difficult to redirect by staff. On this occasion, he received intensive support from the Area Mental Health Services and his medication was adjusted without the need for admission to hospital.
[15]Exhibit F, at page 2 of his report
[16]Exhibit G, at page 4 of his report
34 Associate Professor Carroll made reference to a report from Sheeraj Moorolia (case manager at Goulburn Valley Area Mental Health Service), dated 1 May 2015 (which was not separately tendered), which he quoted as stating:
“… [Mr Drake] has been showing early warning signs, and has been reportedly wandering off without letting the resident staff know of his whereabouts.”[17]
[17]Exhibit G, at page 6 of his report
35 Associate Professor Carroll concluded that Mr Drake was then a 56-year-old man who has an intellectual disability complicated by a severe psychotic illness. He thought that his psychotic illness was best characterised as a schizo-affective disorder showing elements of both schizophrenia and bipolar affective disorder. He noted that Mr Drake generally abided by the conditions of his community treatment order under the Mental Health Act 2014 except when he was unwell. He considered that his risk of offending and of harm to himself, and to others more generally, is determined by the risk of his underlying psychotic illness.
36 Professor Carroll considered that over the three-year period prior to May 2015, Mr Drake had not had stable mental health for more than a period of months at a time. When at his worst, he had engaged in behaviours such as following females that has placed both others and himself at significant risk of emotional and physical harm. He considered that whilst he had not formally been charged in relation to these behaviours, at least some of those actions appear to have amounted to criminal acts.
37 Professor Carroll concluded that Mr Drake remained at a:
"… high risk of relapse in terms of his schizo-affective disorder and that his medication regime is not yet optimised. The risk of offending I would accordingly estimate as moderate." [18]
[18]Exhibit G, at page 8 of his report
38 He considered that Mr Drake’s condition was such that he will always be at significant risk to relapse into an actively psychotic state. That risk could not be eliminated, but it could, in his view, be best mitigated by long-term oversight involving a consultant psychiatrist. In his report he said:
“… it would appear that long-term access for … [Drake] to a consultant psychiatrist in the public sector is only assured if he remains subject to a Non-Custodial Supervision Order.”[19]
[19]Exhibit G, at page 8 of his report
39 I accept, on the basis of oral evidence from Dr Ong at the hearing of the Review, that the statement regarding long-term access to a consultant psychiatrist only being assured if he was subject to a Supervision Order is not correct.
40 The Major Review hearing scheduled for May 2015 was adjourned on a number of occasions principally relating to Mr Drake’s mental health. At one stage, counsel then representing him advised the Court that his condition was such that he could not provide instructions relating to the Review. A number of adjournments were applied for and granted. Eventually, the matter came on for hearing before me on 27 October this year. At that hearing, no further report from Associate Professor Carroll was tendered. This was regrettable, in my view.
41 At the time of the adjournment of the hearing of the Review in May 2015, Mr Drake's then counsel further advised that a significant change of medication was being considered for him. Accordingly it was considered appropriate for any such change to be given a chance to take effect before taking the matter further. It appears from reports tendered that his medication has been altered but not so as to introduce Clozapine as had been previously considered.
42 Dr Ong has seen Mr Drake on a number of occasions prior to 2015. In May 2015, in readiness for the scheduled hearing, he provided a report in which he stated:
“Given that … [Drake] currently receives individualised support, primary case management and accommodation coordinated through Disability Services, they are [the] most appropriate supervisor of the NCSO. Forensicare is available to provide specialist advice to Area Mental Health Services in relation to clients with forensic issues, such as … [Drake] and the operation of Non-Custodial Supervision Orders. This kind of involvement by Forensicare is part of its usual role as Victoria’s forensic mental health service and is not contingent on … [Drake] being subject to an NCSO or Forensicare being the named supervisor of the NCSO”.[20]
[20]Exhibit E, at page 2 of his report
43 In that report Dr Ong does not appear to have expressed a view as to whether the Supervision Order should be revoked or confirmed.
44 In a more recent report dated 24 August 2016, Dr Ong made the following points:
(a)the present circumstances indicated that Mr Drake was currently stable. There did not appear to be any indication at that time with regard to symptoms of major mental illness. He agreed with Associate Professor Carroll's views that Mr Drake's risks of reoffending are intimately linked to a deterioration in his mental health. He noted Professor Carroll's belief that Mr Drake would only receive ongoing appropriate follow-up in the public sector, should he remain on a Supervision Order, and I won't repeat my comments concerning that;
(b)whilst the Supervision Order does ensure the need for input by a psychiatric service, whether public or private, it was Dr Ong's opinion that a Supervision Order "may be somewhat a heavy-handed way of ensuring such service is provided"; [21]
(c)ultimately Dr Ong considered that the decision of where Mr Drake was best treated should be left to his current therapeutic team – the Goulburn Valley Area Mental Health Service. Should they see fit, in the end, to discharge him from their care to either his general practitioner or private psychiatrist, it would be imperative that a Relapse Management Plan be developed with the general practitioner and private psychiatrist to ensure early intervention in the event of deterioration in Mr Drake's mental state.
[21]Exhibit E, at page 4 of his report
45 Dr Ong gave oral evidence at the hearing and was cross-examined. He noted that an incident which had occurred in November 2015, when Mr Drake behaved abnormally whilst participating in ten-pin bowling, was an early sign of deterioration in his mental health, but not a relapse as such. He considered that his last actual relapse had been caused by a change of medication. He considered that the biggest factors were environmental ones. He was aware that some of these early warning signs included him becoming abusive, purchasing lingerie, spitting, walking into traffic, walking for long distances in severe heat conditions.
46 Dr Ong confirmed that the involvement and input of Forensicare would not depend upon the Supervision Order being confirmed. He noted that Forensicare was not involved at the present time.
47 Mr Drake’s current treating psychologist is Mr Peter Stanislawski. He has been counselling Mr Drake monthly since early November 2015. In his report of 8 September 2016,[22] Mr Stanislawski made the following points:
[22]Exhibit C
(a)Mr Drake had very little insight into his offending;
(b)his diagnosis was one of Schizophrenia/Schizoaffective Disorder, together with a mild intellectual disability;
(c)he noted Mr Drake had had a variety of changes to his antipsychotic/ mood stabilisation regimen over the past few years and that none of those regimes had provided lasting stability to his mental health;
(d)he noted that the previous consideration of a significant switch in medication to Clozapine did not appear to have occurred;
(e)in November 2015, Mr Drake had been observed behaving unusually in the course of ten-pin bowling. He was walking down the alley, and appeared to be disorientated. Paramedics had attended. He was allowed to continue bowling and then return to his residence where he was observed to be talkative and confused. Following the incident, Dr Dutta had increased his fortnightly depot and prescribed Stelazine, to be monitored by way of daily updates from house staff. In addition, he was visited every second day by the Area Mental Health staff. He understood from those staff that Mr Drake had not required mental health intervention since November 2015 and his medication had not been altered in that time.
(f)he noted Mr Drake's longstanding history of purchasing women's garments and stealing women's underwear, following young women and loitering in stores which were staffed by young women. He noted that, some five years ago, Mr Drake's mother had requested that he only visit the family under supervision by his sisters, by reason that at a family function, Mr Drake had been observed fixated with his 14 year old niece. I was advised at the hearing by counsel acting for Mr Drake that at the current time, he is now apparently quite welcome at all family functions;
(g)when his health deteriorates, Mr Drake can be verbally abusive to others, including staff, members of the community and in the past, neighbours. He noted that Mr Drake would be at risk because of this behaviour towards females and wandering through traffic;
(h)he considered that Mr Drake's risk rating is assessed as in the moderate risk range for future offending behaviour because he is very dependent on environmental factors to manage his risk. He agreed with Professor Carroll, that the nature of any future offending would be difficult to determine;
(i)Mr Stanislawski recommended that Mr Drake remain a client of Area Mental Health Services indefinitely, and recommended that he remain on a Supervision Order.
48 Mr Stanislawski also gave oral evidence at the hearing and was cross-examined. He considered that Mr Drake could deteriorate quite quickly if not monitored. He had read Dr Ong's report of 24 August 2016, and the report of Ms Smith and Ms Cardillo dated 4 October 2016. He stated that neither of those reports had caused him to change his opinions expressed by him in his own report.
49 The report of Ms Smith and Ms Cardillo of 4 October 2016 outlined Mr Drake's current treatment and daily routines. In summary, it appears that he is coping well with his current accommodation and gets on well with his fellow residents. He cooks for them three times a week, is often busy on weekends with either accommodation staff or outreach staff. He is sometimes taken to football games in Melbourne or to a local hotel for meals, or to the local cinema. He spends time attending to a vegetable garden at the accommodation unit. He is taken for a coffee at the local shops from time to time, and has the opportunity to do personal shopping under supervision. He is a member of the local ten-pin bowling team and attends bowling sessions twice per week. He is unsupervised at bowling and is transported home by one of the members of the team. In her report, Ms Smith states that, "There has been no issues reported concerning [Mr Drake's] attendance and participation in this program”. [23] I am not quite sure what she meant by program, and I am uncertain as to why she said that there had been no issues given that it was common ground between the parties that there was an incident in November 2015 at the bowling alley which had necessitated the attendance of paramedics.
[23]Exhibit A, at page 3 of their report
50 Ms Smith agreed with Mr Stanislawski's assessment that Mr Drake would continue to present with behavioural risks primarily and characteristically related to deterioration in his mental health, however she did not consider that a Supervision Order was necessary for the mitigation of those risks. She agreed with Dr Ong's opinion that a Supervision Order may be a somewhat
heavy-handed way of ensuring Mr Drake's access to, and compliance with, psychiatric treatment. She, on behalf of the Department, recommended that the Supervision Order be revoked.
51 In addition, Mr Drake's sister, Sarah Green[24], gave evidence. Statements prepared by her earlier were tendered. Her evidence was that she considered that Mr Drake was currently stable and had settled into his supported accommodation, and that the various services were now working together and consistently to provide best practice support for her brother.
[24]Sarah Green is a pseudonym
52 That evidence is, of course, of somewhat limited use to me, in that it is expert opinion evidence which plainly she is not qualified to give. Nevertheless, it is not irrelevant that a close family member considers that currently his treatment is progressing appropriately, and he appears at least to her eye, to be stable.
53 I turn now to applicable principles to be applied in an application or a review such as this.
54 Pursuant to s.38C of the Act, I am satisfied that the Director of Public Prosecutions has given notice of the hearing to each family member of Mr Drake, and each victim of the offences for which Mr Drake was charged. Ms Green has made a report to the Court pursuant to s.42 of the Act. No other report under that section was received. I have read the earlier statement made by Mr Drake's other sister, Norma Young.[25] She resides overseas.
[25]Norma Young is a pseudonym
55 Under s.35 of the Act, on a Major Review of a Non-Custodial Supervision Order the Court may confirm the order, vary its conditions, or revoke it.
56 Section 39 of the Act provides that, in deciding whether to make, vary or revoke a supervision order, 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.
57 Section 40 of the Act sets out a number of matters to which the Court is to have regard in deciding whether or not to make, vary or revoke a Supervision Order. These are as follows:
(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.
58 Each counsel appearing at the hearing referred me to the decision of NOM v DPP.[26] There, the Court of Appeal enunciated the following principles:
[26](2012) 38 VR 618
(a)these proceedings are inquisitorial, not adversarial, and no party bears an onus of proof;
(b)the evidentiary standard is the civil standard, informed by the principle in Briginshaw v Briginshaw.[27] Mere mechanical comparison of probabilities is not sufficient; the Court must feel an actual satisfaction of the existence of a fact in issue before it can be found;
(c)the concept of “endangerment” is about the risk or chance, not gravity, of the potential harm. A person will not necessarily be “likely to endanger themselves or others” if the chance of the harm eventuating is minimal, even if the harm contemplated is substantial;
(d)the risk must be “more than merely possible”;
(e)a decision to confirm a Supervision Order should not ordinarily rest on the edifice of expert concessions that there may be a technical and unlikely risk that the persons subject to the Order may endanger themselves or others. Accordingly, the Court does not require “any psychiatrically underwritten guarantees that persons subject to such orders pose no possible danger”[28] before revoking an NCSO;
(f)the “entire regime” provided for by the Mental Health Act 2014 is a relevant consideration in determining whether the NCSO is necessary;
(g)the fact that the nature and degree of the restrictions on the person’s freedom and autonomy would have no significant practical effect does not provide a basis for refusing to revoke the order.[29]
[27](1938) 60 CLR 336
[28]NOM at paragraph [65]
[29](Supra) at paragraph [71]
59 It is an important principle behind a Supervision Order that supervision is a restriction on liberty and autonomy, and can be justified only where it is found to be necessary. The fact that the nature or degree of legal restrictions on a particular individual's liberty may be regarded as inane, facile or practically ineffectual, cannot justify preservation of the status quo where the restriction is not the minimum necessary to accord with the safety of the community. If it was not necessary to impose any restriction on the reviewee, Mr Drake in this case, to ensure the safety of the community, a statutory regime informed by the principle of parsimony did not allow for the consideration of the degree of inconvenience to the reviewee to justify non-revocation of the Order.[30]
[30](Supra) at paragraph [71]
60 It was submitted on behalf of the Attorney-General here that the order ought to be confirmed.
61 Submissions made on behalf of Mr Drake and the Department were that the Order should be revoked.
62 Counsel for the Director of Public Prosecutions made no closing submissions.
63 I intend to confirm the Supervision Order.
64 I accept the submissions made on behalf of the Attorney-General in particular. I note that Mr Stanislawski recommends that Mr Drake remain on the Supervision Order.
65 I accept that Mr Drake falls within a moderate risk range for future offending behaviour, and that whilst he has currently been in a period of reasonable stability for some 10 months, over the years since 1997 there have been frequent and rapid relapses resulting in Mr Drake being incapable of managing his illness.
66 Whilst it is correct that Mr Drake has generally been treatment compliant, he rarely informs, deliberately or otherwise, of changes in his medical health. It is not until there are obvious warning signs that steps can be taken.
67 I accept that when Mr Drake's mental health deteriorates, he often becomes verbally abusive to others, absconds, and has often wandered into traffic. Of significant concern is that on occasions he appears to become fixated on young women. Such behaviour may pose a risk to others and to Mr Drake himself, including a risk of retaliation from others.
68 I accept that Mr Drake requires oversight by consultant forensic psychiatrist indefinitely, because his mental health is unpredictable. Even if it may not be correct, strictly speaking, that Mr Drake’s oversight and treatment by such a psychiatrist depends upon him being on a Supervision Order, I am satisfied that the effect of such an order will virtually guarantee that this occurs.
69 I note Dr Ong has stated that he believes a Supervision Order might be a somewhat heavy-handed way of ensuring that a psychiatric service is provided, however Dr Ong appears to stop somewhat short of an opinion that the supervision order should be revoked, or that it is unnecessary. It appears to me that Dr Ong is to a large extent, occupying neutral territory.
70 The Department and the reviewee both submit that the risk of endangerment from Mr Drake to himself and to others is a low one. It is submitted that it is unlikely that he would relapse or offend or be a danger to himself or others.
71 I consider that the evidence of Mr Stanislawski is contrary to this. He considers that Mr Drake is a definite risk due to the possibility of relapse of his psychotic illness and incapacity to self-report early warning signs of relapse. I accept that this risk is likely to remain at an unacceptable level.
72 It is correct that Mr Drake does appear to have been reasonably stable for some ten months, however I do not consider that this is a particularly long period in all of the circumstances. He has been effectively under virtual full-time observation and supervision for many years. The history of events between 2011 and 2015 referred to earlier in these Reasons, indicate that notwithstanding such high levels of supervision, he has relapsed and requires relatively urgent treatment and attention on a number of occasions.
73 I accept that, even if the fact that the nature and degree of the restrictions on Mr Drake brought about by the existence of the Supervision Order may be of no significant practical effect, this does not provide a basis for refusing to revoke the Supervision Order.
74 However, I do consider that the fact that a confirmation of the Supervision Order will not, in any way, compromise his current lifestyle, treatment that he is currently receiving, accommodation or other activities is one of the matters that I may take into account when exercising my discretion as to whether the order should be confirmed or revoked.
75 In all of the circumstances, I do consider that, if the Order was revoked, Mr Drake would be more likely to endanger himself or other people generally, because of his mental impairment.
76 I accept that there is a need to protect people from such danger. I consider that at this time, confirming the Supervision Order would reflect the minimum restrictions on Mr Drake's freedom and personal autonomy consistent with the safety of the community.
77 Further I note that Mr Drake's mother is elderly and in poor health. She resides in Shepparton. One of his sister's resides in New Zealand and the other resides in Melbourne. I note that many of Mr Drake's relapses appear to have been brought about, or at least influenced by, environmental changes for him. I consider that there is a likelihood that any serious illness or death to his mother, with whom he is very close, may well amount to such an environmental change and increase his risk of relapse.
78 Having regard to the principles set out in ss39 and 40 of the Act, I am satisfied that the appropriate order in this case is to confirm the
Non-Custodial Supervision Order.
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