Director of Public Prosecutions v O'Malley
[2012] VCC 1272
•5 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01770
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT EDWARD O'MALLEY |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 September 2012 | |
DATE OF SENTENCE: | 5 September 2012 | |
CASE MAY BE CITED AS: | DPP v O'Malley | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1272 | |
REASONS FOR ORDER
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G. Coghlan | |
| For the Accused | Ms F. Todd |
HER HONOUR:
1 MS COGHLAN: Good morning, Your Honour, I appear on behalf of the Director in that matter.
2 HER HONOUR: Thank you, Ms Coghlan.
3 MS TODD: Good morning, Your Honour, I appear for Mr O'Malley and could I present my thanks for Your Honour's flexibility in assisting in this date problem that we had?
4
HER HONOUR: Not at all. Perhaps if I just go ahead and sentence
Mr O'Malley - he is here - and announce what the orders will be.
5 MS COGHLAN: Yes, Your Honour.
6 HER HONOUR: Then we can finetune it from there; is that a good idea?
7 MS COGHLAN: Yes, thank you.
8 MS TODD: As Your Honour pleases.
9 HER HONOUR: All right.
10 MS COGHLAN: I can indicate we have received a copy of the draft.
11 HER HONOUR: Yes.
12 MS COGHLAN: We are all in agreement that they are the appropriate orders.
13 HER HONOUR: Thank you.
14 MS COGHLAN: Can I just indicate, Your Honour, that in relation to - I believe it was paragraph 6, that is an optional matter for Your Honour, in terms of listing it for a 12 monthly review. The reports will be provided, no matter what, 12 monthly, but as to whether Your Honour wants to have the matter listed each year, it is a matter for Your Honour.
15 HER HONOUR: I see. If the reports are made available, there is probably no need for that. Presumably that could be changed, if necessary.
16 MS COGHLAN: That is right, yes.
17 HER HONOUR: All right, I will probably exclude that, I think, as I go along.
18 MS COGHLAN: As Your Honour pleases.
19 HER HONOUR: Thank you for that.
20 Robert Edward O'Malley, you have pleaded not guilty to one charge of arson and one charge of reckless conduct endangering life. The pleas of not guilty were entered on the basis of the defence of impairment due to mental illness.
21 On 11 November 2009 at about 7.30 am, you set fire to the curtains in your apartment in Nicholson Street, Carlton. The Fire Brigade and police attended and found you in the corridor in a distressed state. You told the police you had called 000 and then lit the fire to create smoke signals, like the American Indians. The police took you to hospital and you were restrained under s.10 of the Mental Health Act.
22 The events that led to the lighting of the fire commenced the previous day, when police had been called to your apartment and found you pacing backwards and forwards and talking to yourself. You told the police that you were physically and mentally sick and wanted to end your life. You were taken to hospital and released later that night.
23 At about 6 am the next morning, a fire alarm was activated in your apartment block and the fire brigade attended but found that it was a false alarm. It was believed you had tampered with it, causing it to be activated. It was soon after that, that you set fire to the curtains in your apartment. The fire resulted in damage to the apartment, costing $55,913.
24 You remained in St Vincent's Hospital until 19 November, diagnosed with having had an episode of manic psychosis consistent with schizoaffective disorder and you were treated with antipsychotic medication. You were then transferred to the Royal Melbourne Hospital as an involuntary patient, and treatment continued there. Finally, you were discharged on 11 December on a Community Treatment Order under the Mental Health Act.
25 You admitted to the police that you had lit the fire when you were interviewed in February 2010. You said that you had tried to put the fire out and admitted that other people in the building were possibly in danger from the fire and you had done nothing to notify anyone.
26 At the request of your legal representatives, the psychiatrist, Dr Lester Walton, provided a report which confirmed that you were likely suffering a bipolar disorder rather than schizophrenia and that you were acutely psychotic at the time you triggered the false alarm and when you lit the fire. He said you were therefore deprived of the capacity to meaningfully distinguish between right and wrong. He also said you had some insight into your mental illness having caused your misconduct.
27
The prosecution arranged for a report to be obtained through Forensicare and this was provided by Dr Grant Lester, whose opinion was in broad agreement with that of Dr Walton. On the basis of the reports, it was agreed by the parties that the defence of mental impairment was established. Accordingly, a hearing took place on 26 June 2012, during which evidence was heard by
Dr Walton and Dr Lester, and submissions were made as to the appropriate finding and disposition. I made a finding, under s.20(4)(a) of the Crimes (Mental Impairment and Fitness to be Tried) Act 1997, that you were not guilty by reason of impairment due to your mental illness.
28 A report was also produced, prepared by Dr Emma Radford, your treating psychiatrist under the CTO. She reported on your admission to hospital in August 2011 under an involuntary order following a manic episode characterised by poor sleep, elevated mood, pressured speech and grandiose beliefs. You had taken yourself to the St Kilda Crisis Centre seeking help and you were able to identify that you were manic. You had relapsed in the context of smoking marijuana and amphetamines a few weeks earlier, as well as non-compliance with medication. Dr Lester gave evidence and said this indicated lack of insight into illicit substances causing damage to your health and into the need for medication.
29 Dr Lester explained that this relationship with Dr Radford is a voluntary one and that she, Dr Radford, expressed the concern in her report that if you were to be placed on stringent supervision conditions, it might jeopardise your progress by having a negative effect on you. Dr Lester disagreed, saying that quarterly reports, some restrictions on the freedom to travel and regular drug testing were the extent of intrusion pursuant to supervision. He thought the psychotic episode in August 2011 suggested the potential for recurrence of the illness and for potential self harm was at least moderate, and that non-custodial supervision would provide a safety net, although he agreed that you had not been subject to any involuntary order since then.
30 The prosecution submitted that a non-custodial supervision order should be made, whereas the defence, on your behalf, submitted that you should be released unconditionally. I considered the submissions and the matters under s.40 of the Act, and ruled that you were liable to a non-custodial supervision order for a period of seven and a half years. I gave reasons for that decision, and need not repeat them here. The case was then adjourned for a report under s.41 to be obtained, and a certificate under s.47.
31
Dr Lester saw you again on 1 August and provided a report, stating that you have been well and compliant with your medication. You are attending appointments regularly with Dr Radford and your case manager, Ms Lewis, and you are seeing a psychologist fortnightly. However, you report that you are still using cannabis and amphetamines from time to time, but are aware of the risks and prepared to continue trying to work towards abstinence.
Dr Lester said you were candid about this. Although you are still socially isolated, at the time of reporting you were a member of a band and enjoying being involved with music.
32 Dr Lester concluded that you now represent a low to medium risk of recurrence of your illness, and hence of offending directly related to that illness. He said you now have good insight into your illness, and considered that it is appropriate to place you on a non-custodial supervision order. He attached a number of recommended conditions reflecting the treatment plan, which I propose to make part of the order.
33 The supervisor will be the Victorian Institute of Forensic Mental Health, known as VIFMH, to be managed by Forensicare, and your treatment will be undertaken by the Inner West Area Mental Health Service. Initially, you will be seen quarterly by Forensicare, who will then seek quarterly reports from your treating service. Forensicare will report annually to the court under s.41 of the Act. Those matters are set out in the certificate of available facilities and services, and are summarised in the letter from Forensicare.
34 I order that pursuant to s.26(2)(b) of the Act, you be released on a non-custodial supervision order with the following conditions:
1) That you be under the supervision of the Victorian Institute of Forensic Mental Health or their delegate.
2) That you reside at a location known and approved by the authorised psychiatrist of the institute.
3) That you abide by the lawful directions of the authorised psychiatrist of the institute, or the nominee of that person or their delegate.
4) That you comply with treatment and testing, and attend appointments as directed by the authorised psychiatrist of the institute or their nominee.
5) That you abstain from the abuse of alcohol and from the use of illicit drugs.
6) That you do not leave the State of Victoria without the written permission of the authorised psychiatrist or the institute, or their delegate.
35 I order that, pursuant to s.28 of the Act, the nominal term of non-custodial supervision order be seven and a half years.
36
I declare that pursuant to s.28(4) of the Act, the nominal term shall run from
5 September 2012, today's date.
37 I direct that the Secretary of the Department of Health arrange for the preparation and filing with the court, at intervals of not more than 12 months, for the duration of the order, a report containing the matters required by s.41(3) of the Act.
38 I direct that a copy of this order and a transcript of the proceedings of today be made available to the institute.
39 I order that, pursuant to s.35(1)(a), the matter be brought back before the court for review at least three months before the expiration of the nominal term of this order.
40 There may be some other matters. I will just hear from Ms Coghlan about those.
41 MS COGHLAN: Thanks, Your Honour. I think that covers it. Just having a look at the terms of the order, I think that Your Honour has addressed all the matters that need to be addressed.
42 HER HONOUR: All right.
43 MS COGHLAN: The only other matter is in relation to a 464ZFAAA order.
44 HER HONOUR: What does AAA say?
45 MS COGHLAN: It is specific about cases where there is a finding of not guilty by reason of mental impairment.
46 HER HONOUR: So it is specifically for this type of proceeding?
47 MS COGHLAN: Precisely, yes.
48 HER HONOUR: Is that the same as any other order, but specific for this - - -?
49 MS COGHLAN: This kind of finding of fact, I suppose, Your Honour.
50 HER HONOUR: So 464 - - -
51 MS COGHLAN: ZF.
52 HER HONOUR: ZF.
53 MS COGHLAN: AAA.
54 HER HONOUR: Thank you.
55 MS COGHLAN: Similarly, it has provisions that Your Honour must be satisfied that the nature of the circumstances is serious enough to make an order, and also that it is justified in all of the circumstances. I think on the last occasion, Your Honour, it was indicated that that order would be opposed. I understand that is no longer the case.
56 MS TODD: That is so, Your Honour.
57 HER HONOUR: Thank you. Therefore, I shall make that order.
58 MS COGHLAN: Thank you, Your Honour. I have draft orders here but can I say the police station which is closest to where Mr O'Malley lives has now been changed, so this order has been written on a - I think it would be more appropriate that my instructor send through a corrected order by email, just to save having to hand amend each one?
59 HER HONOUR: All right, I will explain to Mr O'Malley the ramifications of that order.
60 MS COGHLAN: Thank you, Your Honour.
61 HER HONOUR: Mr O'Malley, this is an order that enables the police to obtain a forensic sample of saliva from you, and you attend a police station to have that done. I am obliged to simply tell you that the police do have the power to use reasonable force to obtain the order if necessary, but I trust that will not be the case.
62 Nothing else from you, Ms Coghlan?
63 MS COGHLAN: Your Honour, I should only mention that there are no family reports or victim reports in this matter. Sometimes in cases, those things are provided, but given the nature of the offences here, there is no direct victim.
64 HER HONOUR: I see.
65 MS COGHLAN: Furthermore, I understand that Mr O'Malley's family is not involved really in the process of his supervision, for example, in any way. So no reports have been provided to them and they are obviously not victims or related to the matter in any other way.
66 HER HONOUR: I see.
67 MS COGHLAN: Thank you, Your Honour.
68 HER HONOUR: Thank you, Ms Coghlan. Anything from you, Ms Todd?
69
MS TODD: No, Your Honour, only just to confirm that last point, being that
Mr O'Malley has lived very independently from his family for many years.
70 HER HONOUR: Yes, I understand that. Thank you. Thank you very much to counsel and instructors for your assistance in this case over the last few months.
71 MS COGHLAN: Thank you, Your Honour.
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