Director of Public Prosecutions v Kifamunyanja
[2019] VCC 803
•5 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01666
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ISMAIL KIFAMUNYANJA |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 May 2019 | |
DATE OF REASONS: | 5 June 2019 | |
CASE MAY BE CITED AS: | DPP v Kifamunyanja | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 803 | |
REASONS FOR DECISION
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Subject: CRIMINAL LAW
Catchwords: Reasons for order – Sexual Penetration of a child under 16 – Found unfit to stand trial – Found to have committed all charges – Custodial Supervision Order.
Legislation Cited: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; Disability Act 2006; Sex Offenders Registration Act 2004.
Sentence: Custodial Supervision order for a period of 10 years; Undertake the Intensive Residential Treatment Program; First review to take place 18 months from date of order; Sex Offender Registration reporting for 15 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Buckland | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr R. Lawrence | Pica Criminal Lawyers |
HIS HONOUR:
1 Ismail Kifamunyanja, on 27 May 2019 I made the following orders:
(1) Ismail Kifamunyanja be committed to custody, that is a Custodial Supervision Order.
(2) The appropriate place is Disability Forensic Assessment and Treatment Service of 100 Yarra Bend Road in Fairfield.
(3) That within the Disability Forensic Assessment and Treatment Service, Ismail Kifamunyanja be ordered to undertake the Intensive Residential Treatment Program.
(4) That this order is to take effect as at 4 June 2019.
(5) That the nominal period of this order is set at 10 years to operate from 23 February 2017.
(6) Pursuant to s27(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”), order that the matter be brought back to the Court for review 18 months from today’s date.
I further noted that pursuant to s34 of the Sex Offenders Registration Act 2004, the length of your reporting period is 15 years.
2 Below I set out my reasons for making those orders.
3 Ismail Kifamunyanja, on 26 September 2014, when you were aged but 20 years, you were interviewed under caution in respect to three charges of sexual penetration of a child under 16, alleged to have occurred the previous day. You were released without charge, however, on 19 January 2015, you were charged. Your committal did not take place until 30 and 31 May 2017 and you were committed to stand your trial.
4 Prior to your committal, on 1 February 2017 you were charged with other offences and remanded in custody. Your bail in respect to the 25 September 2017 offences was revoked on 23 February 2017 and until 4 June 2019, you have remained in custody, but not always in prison. The latter charges were discontinued.
5 On 11 September 2017, an investigation into your fitness to stand trial was conducted. It was common ground between the Crown and defence experts called on the investigation that you did not meet the criteria for fitness and accordingly the jury empanelled to determine the issue found you unfit to stand your trial.
6 Based on the reports filed for the investigation into your fitness to stand trial, I formed the view that you would not be fit to stand trial within 12 months of the investigation.
7 Between 12 and 15 September 2017, pre-hearing argument took place and the complainant’s evidence was pre-recorded.
8 On 8 November 2017, a jury was empanelled for your special hearing and on 14 November the jury returned findings that you had committed each of the three offences of sexual penetration of a child under 16 years set out in Indictment F10352695.2.
9 Following the jury’s findings, I ordered a Certificate under s47 and a report under s41 of the Act. The further hearing of your matter was adjourned to 15 December 2017.
10 By the time of the hearing on 15 December 2017, I had received the s47 Certificate that stated that there were no available places for you at the Thomas Embling Hospital. Further, I had received the s41 report authored by Dr Katinka Morton, psychiatrist, who recommended that your matter be adjourned for six months. In her report dated 13 December 2017, Dr Morton recorded that from 22 March 2017 to 28 July 2017, you had been admitted to the Thomas Embling Hospital. Further, Dr Morton noted that your intellectual disability and your diagnosis of schizophrenia. At the time of her interview with you, you were psychiatrically unwell and unwilling to be treated. You were not capable of being supervised in the community. It was intended that you be assessed at Ravenhall Correctional Centre and that should your mental state deteriorate further you would require re-admission to Thomas Embling Hospital under the Mental Health Act.
11 Subsequent to Dr Morton’s report of 13 December 2017, I received the following reports and certificates:
(1)a neuropsychological report from Dr Linda Borg dated 4 April 2018;
(2)a further report from Dr Morton dated 29 June 2018 together with a s47 Certificate dated 28 June 2018 certifying “There is currently no bed available at Thomas Embling Hospital for Mr Kifamunyanja to be placed in the custody of the Victorian Institute of Forensic Mental Health, through the making of a Custodial Supervision Order”;
(3)a report from Dr Louise Mills, psychologist, dated 30 June 2018;
(4)a document described as a “Addendum to Assessment of Service Level 1 Report” (made by Dr Mills) dated 23 August 2018 under the hand of Marcus Coats, Acting Manager of Clinical Services, Disability Forensic Assessment and Treatment Service.
(5)a neuropsychological report dated 21 February 2019 from Dr Linda Borg;
(6)a s41 report dated 8 April 2019 by Dr Mark Ryan, consultant forensic psychiatrist, Director of Clinical Services, Inpatients Forensicare;
(7)a second Addendum to Assessment of Service Level 1 Report dated 20 March 2019 under the hand of Natalya O’Keefe and countersigned by Jayne Dennis and Dr Matthew Frize, psychologist and General Manager of the Disability Forensic Assessment and Treatment Service;
(8)a certificate of available services from the Secretary of the Department of Health and Human Services dated 5 April 2019 setting out that:
“The two custodial facilities operated by the Department for individuals who are subject to a Custodial Supervision Order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 are:
the Long Term Residential Program (“LTRP”); and
the Intensive Residential Treatment Program (“IRTP”) within the Disability Forensic Assessment and Treatment Service (“DFATS”)
DFATS has assessed Mr Kifamunyanja as suitable for the IRTP but cannot receive him before 4 June 2019.”
and
(9)the report of Dr David Thomas, psychiatrist, dated 1 April 2019.
12 Pursuant to s152(2)(c) of the Disability Act 2006 a residential treatment facility under the Disability Act is an appropriate facility for the purposes of a custodial supervision order made under s26 of the Act.
13 Following a number of administrative adjournments on 27 May 2019 I heard evidence from Dr Mark Ryan and Dr Matthew Frize in respect to you and your future management. In essence, consistent with the contents of their reports, it was confirmed that since the original report of Dr Morton, you have become compliant with your psychiatric treatment and the taking of both your depot and oral medication. Having become compliant with your medication, your psychiatric condition has improved and you have gained some limited insight into your psychiatric illness and your need to comply with treatment. Further, the improvement in your psychiatric health permitted further neuropsychological testing to be conducted on you. The testing demonstrated that you have a mild disability, a term of art, but on testing 99 per cent of the population would do better than you. However your scores in the numerous areas tested had improved with your improved mental health. The more recent testing by Dr Borg demonstrated that you have a capacity to learn and it was common ground between Dr Ryan and Dr Frize that in accordance with the certificate provided by the Department of Health and Human Services dated 5 April 2019, that you be subject to a Custodial Supervision Order and be under the supervision of Disability Forensic Assessment and Treatment Service at 100 Yarra Bend Road, Fairfield, and that you undertake the Intensive Residential Treatment Program.
14 The one condition that was required by both Dr Frize and Dr Ryan was that there be set in place a structure whereby you would receive your depot medication as well as oral medication and that should you become non-compliant, that there be a psychiatric service available to hold you in custody pursuant to my order.
15 The appropriate community-based psychiatric service for persons held at Disability Forensic Assessment and Treatment Service is provided by St Vincent’s Hospital.
16 During the course of the hearing, it was confirmed in Court that St Vincent’s Hospital would provide the requisite psychiatric treatment for you whilst you remained at the Disability Forensic Assessment and Treatment Service at 100 Yarra Bend Road in Fairfield. Ms Giavanni of St Vincent’s Hospital orally referred you from St Vincent’s to the Department of Health and Human Services in respect to your care by way of an Intensive Residential Treatment Program. This referral included the administration of your depot medication and prescription for your oral medication. Further, Ms Giavanni confirmed that in the event of an acute psychiatric episode, that you would be admitted to St Vincent’s Psychiatric Ward for the purposes of treatment. Further, Ms Giavanni undertook to confirm these matters in writing to both the prison authorities and the Disability Forensic Assessment and Treatment Service.
17 The referral and the undertaking in respect of psychiatric treatment is needed because there are no psychiatric nurses at the Disability Forensic Assessment and Treatment Service. Your depot medication must be administered by a psychiatric nurse and your oral medication must be prescribed by a medical practitioner. The staff at the service in Fairfield can supervise you taking your oral medication, Mr Kifamunyanja.
18 Effectively, you will be treated by psychologists at the Disability Forensic Assessment and Treatment Service with the aim in mind that should you respond favourably to treatment, that you may be able to be released into the community perhaps within two years from 4 June 2019. Much will depend upon your continued compliance in respect of your regime of medication and your progress whilst at Fairfield.
19 Accordingly, you are committed to custody, that is a Custodial Supervision Order in conformity with the orders that I made on 27 May 2019.
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