Director of Public Prosecutions v Pidgeon (a pseudonym)

[2016] VCC 1180

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

LIAM PIDGEON (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	5 May 2016, 19 July 2016
DATE OF JUDGMENT:	2 August 2016
CASE MAY BE CITED AS:	DPP v Pidgeon (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1180

REASONS FOR JUDGMENT
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Flynn	OPP
For the Accused	Mr M. Phillips	VLA

HER HONOUR:

1On 5 May 2016 I found Liam Pidgeon[1] not guilty of arson by reason of mental impairment.

[1] Liam Pidgeon is a pseudonym. 

2I incorporate without reading again my reasons for so finding into these reasons.

3As a result of the finding of not guilty by reason of mental impairment, by s.23 of the Crimes (Mental Impairment and Unfitness to be Tried) Act I must either declare Mr Pidgeon to be liable to supervision under Part 5 of the Act, or order he be released unconditionally.

4By s.39 of the Act, in deciding whether to make a person liable to supervision, I must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to a minimum consistent with the safety of the community.

5Section 40 sets out the matters to which I must have regard in deciding whether to make a person liable to supervision.

6Relevant to this case, they are these:

(a)  the nature of the person’s mental impairment;

(b)  the relationship between the impairment and the offending conduct;

(c)  whether the person is, or would if released, be likely to endanger themselves, another person, or other people generally because of his mental impairment;

(d)  the need to protect people from such danger;

(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.

7By s.40(2) I cannot order a person to be released unconditionally unless certain preconditions have been met.  The relevant sub paragraphs are:

(a)  that I have obtained and considered the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person on their mental condition and the possible effect of the proposed order on their behaviour;

(b)  that I have considered the report submitted to the court under s.41(1);

(c)  that I am satisfied that the person’s family members and victims of the offence with which the person was charged have been given reasonable notice of the hearing at which the release is proposed to be ordered;

(d)  that I have considered any report of the family members or victims made under s.42N.

8The offending conduct that brought Mr Pidgeon into contact with the criminal justice system for the first time in his life at the age of 56 was the burning down of the rented property in which he had lived for many years.  He himself suffered significant injuries as a result of smoke inhalation.  He has of course not been able to return to the premises.  By the time of the special hearing before me, Mr Pidgeon was again living in the community, his schizophrenia properly and appropriately managed by the resumption of clozapine, and he has suffered no relapse.  He is now living in a boarding house.  He is and has been for quite a considerable time in receipt of a disability support pension.  He has limited family contact and support and has lived independently in the community but for the periods of hospitalisation required when he has lapsed into psychosis.

9A report under s.41 by Dr Katinka Morton, consultant forensic psychiatrist of the non-custodial supervision order program at Forensicare and dated 4 July 2016, has been provided in accordance with the requirements of the Act.

10Dr Morton had been provided with the summary of prosecution opening dated 4 May 2014, the report of Dr Maria Triglia dated 1 February 2016, and the report of Dr Leon Turnbull dated 15 October 2015.  Those reports were the material relied upon at the hearing at which I found Mr Pidgeon not guilty by reason of mental impairment.  In addition, Dr Morton had been provided with Mr Pidgeon’s Forensicare file.  She interviewed Mr Pidgeon on 29 June 2016, and following the interview with Mr Pidgeon spoke to Dr Michael Lee, consultant psychiatrist to the Peninsular Area Mental Health Service, which is the area mental health service responsible for providing mental health services to Mr Pidgeon.

11On the history given by Mr Pidgeon to Dr Morton, he was first diagnosed with schizophrenia in 1990.  He was originally treated with the oral antipsychotic medication trifluoperazine and then an injectable medication, flupenthixocol.  He did not respond well to either of those medications and was commenced on clozapine as a result.  On two previous occasions in 1999 and 2011, he discontinued clozapine without consultation with his treating team.  On both occasions he experienced a relapse of psychosis and was recommenced on clozapine after psychiatric admission.  He explained those two previous episodes of clozapine non-compliance had been due to his belief at the time that he thought that things were good enough and he did not need it anymore.

12Mr Pidgeon is now 57 and has no criminal history.  He is a man of high intelligence.  He told Dr Morton he had completed a Bachelor of Science in theoretical physics before becoming unwell, and was a lapsed member of Mensa.

13The report he gave Dr Morton of the circumstances leading up to the events that bring him before the court and in particular of ceasing his medication, of the psychotic symptoms he then experienced, and of the belief that he was cooperating with God and compelled to set his unit alight were consistent with the accounts given to Dr Turnbull and Dr Triglia.

14Significantly Mr Pidgeon was noted to become visibly distressed when asked about his beliefs at the time he set his unit alight, saying he continued to experience flashbacks.  He told Dr Morton that he would never again cease taking his medication without consultation with his psychiatrist.  He said he was aware that he had never had an episode of psychosis since commencing clozapine, other than when he discontinued his dosage.  He said that the index offence had been so terrible that he believed he had learned his lesson.  One of the sadnesses of this case is that Mr Pidgeon had viewed his landlord as a friend.  He is deeply sorry for what he did and for the consequent loss of one of the few friendships he has had.  He has consistently demonstrated remorse for the events and considerable anxiety about the court proceedings.  I am satisfied that that has been a significant motivating factor in his resumption of his medication and cooperative re-engagement with his treating team.

15Mr Pidgeon sees his treating psychiatrist at Peninsular Health, Dr Lee, twice yearly.  He sees his medical officer each month and his case manager fortnightly.  In addition he has regular contact with a rehabilitation support worker, Sarah.  She has accompanied him to court on each occasion.  She sees him at least fortnightly and often more frequently depending on his care needs.  She takes him to have his regular clozapine blood tests and when he collects his prescriptions as well as assisting him to attend other appointments.

16Mr Pidgeon collects his prescriptions for his psychotropic medications and dispenses them himself into a dosette box each week.  He takes his medication unsupervised.  He has been reliably doing that since July 2015.  That is, within two months of the index offence.

17When Dr Morton examined Mr Pidgeon, she observed that his affect was normal in range and reactivity and congruent.  His speech was normal in rate and volume and his thoughts were linear in form.  He demonstrated good levels of insight into the abnormality of his past religious delusional beliefs and demonstrated insight into his mental illness and the need for treatment.  He denied any thoughts of harming others or acting in any way to contact the victims, his landlords.  No current self-harm ideation was present.

18Mr Pidgeon's rehabilitation support worker, Sarah, and his treating psychiatrist Dr Lee confirmed that Mr Pidgeon was well engaged with his treating service, and compliant with his medication and with the follow-up recommended by the Area Mental Sealth Service.  Significantly they both confirmed the correctness of the history Mr Pidgeon gave in relation to his engagement with the Area Mental Health service and his compliance with his medication.

19Dr Morton was satisfied that Dr Lee has appropriate mechanisms in place to ensure compliance including regular serum clozapine levels to confirm compliance, discussions regarding clozapine compliance in reviews and giving consideration to the use of the Mental Health Act to enforce treatment should there be any concerns about non-adherence to treatment in the future.

20A report from Dr Lee dated 12 July confirms that Mr Pidgeon’s mental state has returned to his premorbid level.  That is, he remains chronically unwell but is no longer influenced by delusional ideas or thought insertion.  He is insightful in relation to the arson, and aware it is a consequence of his ceasing his medication.  Dr Lee confirms compliance with the medication, attendance at all appointments with the recovery clinician and Mr Pidgeon's denial of any thoughts of, or intent to cause harm to others.  Dr Lee says he believes Mr Pidgeon is well-managed by his treating team and does not require more stringent supervision.

21Dr Morton concluded her report in these terms.

"Mr [Pidgeon] is a 57-year-old disability support pensioner with a well-established diagnosis of chronic paranoid schizophrenia.  Mr [Pidgeon]'s illness has been well treated with clozapine and is not complicated by poor engagement or substance abuse.

There is no other history of offending and Mr [Pidgeon] presents without comorbid personality dysfunction.

With his psychosis now well-controlled with treatment, I assess Mr [Pidgeon]’s current risk to others to be low.

In terms of his future risk of offending, I believe that this risk will be consequent to any relapse of psychosis.  Mr [Pidgeon] himself states that he has only ever been psychotic when non-compliant with clozapine.  Although this is the third episode of non-compliance with clozapine documented, Mr [Pidgeon] now presents stating a commitment to lifelong compliance with medication.  In particular Mr [Pidgeon] has been devastated about the consequences of his behaviour while unwell.  He expresses profound regret about the damage to property caused, and he notes the loss of an important friendship with his previous landlord.

In addition, Mr [Pidgeon]’s treating team describe a willingness to treat Mr [Pidgeon] under the Mental Health Act 2014 should he become non-compliant with treatment, and an awareness of the risks associated with a relapse of psychosis.

I consequently do not believe that an NCSO is required to minimise Mr [Pidgeon]’s risk to the community.  I believe this risk is currently minimised by the optimal treatment from Mr [Pidgeon]’s area mental health service."

22There has been no challenge to Dr Morton’s opinion.

23Having regard to these matters, I am satisfied that Mr Pidgeon suffers from chronic paranoid schizophrenia, and that the offending conduct in which he engaged was brought about as a result of a psychotic episode consequent upon his ceasing of his clozapine.  I am satisfied that but for the paranoid delusional state into which he rapidly descended upon the cessation of his medication, the offending behaviour would not have occurred. 

24I am satisfied that he is now again compliant with his medication, demonstrates good insight into his mental illness and the need for medication, and has been so devastated by the consequences of the offending conduct that his assurance that he will not again cease taking clozapine without consultation with his treating medical team is an assurance that can be relied on with some confidence.  I am further satisfied that he is receiving appropriate care, indeed, optimal treatment from his area mental health service, and that the risk of non-compliance would readily be able to be identified by his treatment team.  I am satisfied that they have indicated their preparedness to take appropriate action under the Mental Health Act in order to avoid a relapse into psychosis. 

25I am satisfied therefore that the risk that Mr Pidgeon would, if released, be likely to endanger himself, another person or other people generally because of his mental illness is low, and that the need to protect people from such danger is properly and adequately contained by the treatment regime he is currently under and provided by his Area Mental Health Service.  I am satisfied there are adequate resources available for the treatment and support of Mr Pidgeon in the community, and that there are no other relevant matters to take into consideration.

26I am satisfied having regard to Dr Morton’s opinion and the reasons for it which I have set out and which I accept, and having regard to the principle in s.39 that restrictions on a person’s freedom and personal autonomy should be kept to a minimum consistent with the safety of the community, that an NCSO is not required to minimise Mr Pidgeon’s risk to the community and that the appropriate order is to release him unconditionally.

27I do that also being satisfied that there has been as much compliance as is reasonably possible with the requirement to notify Mr Pidgeon’s family members and the victims of the offence, and that those people who with reasonable endeavours have been able to be contacted have indicated that they do not wish to be heard or to attend the hearing.

28I therefore order that Mr Pidgeon be unconditionally released.

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