Director of Public Prosecutions v Tzoumanis
[2020] VCC 2037
•15 December 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00261
| IN THE MATTER OF a court-directed review and application for variation of a non-custodial supervision order under ss33(2) and 29(1) of the Crimes (Mental Impairment and Unfitness to be Tried) act 1997 DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER TZOUMANIS |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 May, 5 June, 24 August, 14 September, 12 October, 16 November 2020 | |
DATE OF DECISION: | 15 December 2020 | |
CASE MAY BE CITED AS: | DPP v Tzoumanis | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 2037 | |
REASONS FOR DECISION
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Subject: CRIMINAL LAW
Catchwords: Not guilty by reason of mental impairment - one charge of stalking and three charges of making threats to kill – review of NCSO - emergency apprehension – application to vary NSCO to CSO
Legislation Cited: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Decision:Confirmation of non-custodial supervision order - I direct that the matter be brought back in 12 months’ time for review
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APPEARANCES: | Counsel | Solicitors |
| For the Attorney-General | Ms M Pekevska | Victorian Government Solicitors Office |
| For the Accused For the Department of Health & Human Services | Mr P O’Halloran Mr D Bruno | Victoria Legal Aid Department of Health & Human Services |
HIS HONOUR:
1 On 21 August 2017, Mr Tzoumanis was found not guilty by reason of mental impairment pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”) in respect to one charge of stalking and three charges of making threats to kill.
2 On 6 August 2018, Mr Tzoumanis was placed on a Non-Custodial Supervision Order (NCSO) under s26 of the Act.
3 On 2 November 2018, a review of Mr Tzoumanis’ NCSO took place, and the order made on 6 April 2018 was confirmed. A review of Mr Tzoumanis’ Supervision Order was to take place within 12 months of 2 November 2018.
4 On 19 July, Mr Tzoumanis was made subject to an emergency apprehension under s30(1) of the Act after he failed to comply with the conditions of his NCSO. Mr Tzoumanis was taken, detained and treated at Thomas Embling Hospital pursuant to s30(2) of the Act.
5 On 22 July 2019, an application was made by the Secretary to the Department of Health and Human Services (“the Secretary”) to vary Mr Tzoumanis’ NCSO to a Custodial Supervision Order (“CSO”) under s29 of the Act.
6 The Secretary’s application was initially listed for hearing on 18 November 2019 to be heard concurrently with the review of Mr Tzoumanis’ NCSO under ss27(2) and 33 of the Act.
7 On 31 October 2019, Dr Sobia Khan, consultant forensic psychiatrist employed by Forensicare, provided a report to the court and the parties setting out the history in respect to Mr Tzoumanis’ treatment and conduct under the NCSO, and requested an adjournment of the hearing of the review and the application for six months for assessment and treatment of Mr Tzoumanis to be completed.
8 On 18 November 2019, Mr Tzoumanis had dispensed with the services of Victoria Legal Aid but, at my request, Victoria Legal Aid appeared to assist me in the hearing.
9 Ms Wilkinson, solicitor, who appeared on behalf of the Director of Public Prosecutions, did so pursuant to the Director’s statutory obligations and, having fulfilled them, was excused.
10 On the application, Ms Pekevska of counsel, acting on instructions from the Attorney-General (“the Attorney”), made application to vary Mr Tzoumanis’ NCSO to a CSO under ss29 and 33 of the Act.
11 Mr Bruno, of counsel, appeared on behalf of the Secretary, and Mr O’Halloran of counsel appeared on behalf of Victoria Legal Aid to assist the court.
12 Based on Dr Khan’s report, Mr Bruno submitted that it was appropriate for the court to adjourn the hearing of the Secretary’s application for variation as well as the review of the NCSO for a period of six months.
13 Dr Khan gave evidence on the application, and her report dated 31 October 2019 became Exhibit A on the application.
14 Initially, Ms Pekevska was without instructions in respect to the application for an adjournment. However, after the luncheon adjournment she had received instructions from the Attorney supporting a six-month adjournment of the proceedings.
15 Mr Tzoumanis opposed the application and further rejected any opinions held by Dr Khan and was of the view that he was healthy to the extent that he should be released into the community.
16 Based on Dr Khan’s report and the evidence that she gave on the application, together with the attitude of the Secretary and the Attorney, I was of the opinion, that the matters should be adjourned in accordance with Dr Khan’s recommendation. I ordered that the matters be adjourned to 18 May 2020.
17 On 18 May 2020, the matters came before me again. Mr O’Halloran appeared on behalf of the applicant. Mr Pekevska appeared on behalf of the Attorney, and Mr Bruno appeared on behalf of the Secretary. By the time that the application came before me on 18 May 2020, Dr Khan had provided a further report dated 11 May 2020 to the court and the parties.
18 Based on of the contents of Dr Khan’s report, Mr O’Halloran, on behalf of Mr Tzoumanis, made an application for a further adjournment. Mr O’Halloran sought the adjournment because he sought copies of original documents referred to by Dr Khan in her report of 11 May 2020. These documents, it was submitted, were required in order to properly cross-examine Dr Khan in respect of her opinion.
19 In addition, correspondence had passed between Department and those representing Mr Tzoumanis, which had not been received by those representing the Attorney. Further, Mr O’Halloran required the additional documents in order to confer with Professor Carroll in anticipation of Professor Carroll preparing a report on behalf of Mr Tzoumanis.
20 I ordered that the matter be adjourned to 24 August 2020 for mention. I further directed that the respondent, Mr Tzoumanis, issue a subpoena for the documents that were referred to directly or indirectly, or by necessary inference, in the email of Sharon Healey dated 15 May 2020 (Exhibit A on the application), and that the subpoena be returnable on Friday, 5 June 2020 at 10.00am.
21 I further directed that if Forensicare was considering releasing Mr Tzoumanis into the community at a date earlier than 24 August 2020, they were to notify the court so that the basis for Forensicare considering releasing Mr Tzoumanis into the community could be considered by me as part of the review process.
22 On 24 August 2020, the matter was further adjourned for mention on 14 September 2020. In addition, I made further procedural orders.
23 On 14 September 2020, the matter was adjourned to 12 October 2020.
24 Prior to a hearing held on 12 October 2020, Dr Khan provided a further report dated 5 October 2020. Associate Professor Andrew Carroll, consultant forensic psychiatrist, had provided a report dated 20 August 2020 and filed with the court on 24 August 2020.
25 During the hearing, Dr Khan’s report of 31 October 2019 became Exhibit A. Her report of 11 May 2020 became Exhibit B. The letter of Dr Khan dated 20 August 2020 together with an email of Will Tucker, with four attachments dated 22 September 2020, became Exhibit C. Dr Khan’s report of 4 July 2020 became Exhibit D. Dr Khan’s report of 5 October 2020 became Exhibit E. An email from Mr Will Tucker from the Department dated 9 October 2020, became Exhibit F. Dr Khan gave evidence in respect to Mr Tzoumanis’ progress whilst at Thomas Embling Hospital. There had been a stabilisation of Mr Tzoumanis’s treatment and of his mental disorder with the use of the drug Clozapine.
26 In addition, those who treated Mr Tzoumanis at the Thomas Embling Hospital were hopeful that he could be transferred to a secure extended care unit (SECU) at the Mid-West Area Mental Health Service that unit being known as the Adult Mental Health Rehabilitation Unit (AMHRU). Dr Khan and Associate Professor Carroll had conferred as early as August concerning Mr Tzoumanis’ continued apprehension at the Thomas Embling Hospital whilst he was subject to a NCSO.
27 Ultimately, Dr Khan was satisfied that Mr Tzoumanis’ treatment could be effectively provided for in a secure extended care unit.
28 In order to ensure that such a transfer could take place, the Secretary made application that the hearing be adjourned. This application was not opposed by Mr Tzoumanis and, ultimately, I adjourned the final hearing of this matter until 16 November 2020.
29 On 16 November 2020 the final hearing of the application made by the Secretary and the Review of the NCSO took place. Once again Mr Bruno appeared on behalf of the Secretary, Ms Pekevska appeared on behalf of the Attorney, and Mr O’Halloran appeared on behalf of Mr Tzoumanis.
30 Dr Khan was called and gave evidence that Mr Tzoumanis had remained stable in his mental state and behaviour at the Bass Unit at the Thomas Embling Hospital. Further, Mr Tzoumanis had not displayed any re‑emergence of acute symptoms of psychosis such as paranoia. Whilst Mr Tzoumanis did not believe that he experienced any enduring symptoms of mental illness, he nevertheless accepted treatment. That treatment was by way of Clozapine, and Mr Tzoumanis seemed to be responding well to the dose that he was then on. Further, Mr Tzoumanis remained involved with drug and alcohol counselling.
31 Mr Tzoumanis had been recommended for campus leave within the hospital with the easing of the COVID‑19 restrictions, and his leaves had gone well with no concerns. The Office of the Chief Psychiatrist had also eased restrictions on leave in the community, and Mr Tzoumanis did have escorted leave in the community approved for him. However, Mr Tzoumanis had not availed himself of that opportunity as at 16 November 2020.
32 Mr Tzoumanis had been accepted as appropriate for treatment at AMHRU a Secure Extended Care Unit, and Dr Khan gave evidence as to the services available to Mr Tzoumanis at AMHRU, that included access to three consultant psychiatrists and a multidisciplinary treatment model involving access to social workers, psychologists, and specialist nursing.
33 Dr Khan affirmed that if Mr Tzoumanis is confirmed to go to AMHRU, there will be a Memorandum of Understanding signed between Forensicare and Mid West Services, including the treating psychiatrist and the Director of Clinical Services for AMHRU.
34 Dr Khan affirmed that Mr Tzoumanis accepted that his treatment at AMHRU is likely to span over months and not just weeks, and he also accepted that part of the process would include developing relationships at the Werribee Community Care Unit (CCU) with a view to a “stepdown” to the Werribee CCU for further consolidation of his rehabilitation and continuation of his treatment.
35 Dr Khan was cross-examined by both Mr Bruno and Ms Pekevska, principally to confirm the conditions under which Mr Tzoumanis would be housed and treated at the AMHRU.
36 Ultimately, each of the parties submitted that it was appropriate that Mr Tzoumanis’ NCSO be confirmed. However, Ms Pekevska, on behalf of the Attorney, sought conditions to any proposed orders, being that there be a residential condition so that, should it be proposed that Mr Tzoumanis leave the AMHRU to be housed at a CCU, the matter would automatically come back to me to review whether that was an appropriate step to be taken in Mr Tzoumanis’s treatment in all the circumstances. In addition, whilst it was accepted by Mr Bruno on behalf of the Secretary, and Mr O’Halloran on behalf of Mr Tzoumanis, that the next review should take place in 12 months, Ms Pekevska submitted that the matter ought be brought back to the court in three months by way of mention in order to monitor Mr Tzoumanis’ progress at the AMHRU or in the alternative that a report as to Mr Tzoumanis’s progress should be provide to the court after three months.
37 Mr Tzoumanis, as at 16 November 2020, had been housed at the Thomas Embling Hospital pursuant to an emergency apprehension made on 19 July 2019. The final hearing of the Secretary’s application and the review of Mr Tzoumanis’ NCSO took many months to finalise because of the complexity of the issues that impacted upon Mr Tzoumanis’ mental health. In particular, Mr Tzoumanis despite the advice of his treating doctors had been resistant for many months to being treated with Clozapine. Due to Mr Tzoumanis’ resistance to being treated with Clozapine, assessment of his mental condition and his risk to the community took many months, and varied from time to time, owing to Mr Tzoumanis’ changing behaviour.
38 Upon becoming agreeable to being treated with Clozapine, Mr Tzoumanis’ mental state had stabilised to the point where he was suitable for campus leave within the hospital and escorted leave within the community. Further, he was suitable for discharge from the Thomas Embling Hospital to an adult mental health rehabilitation unit (AHMRU), which is a secure unit (SECU) where his treatment would be monitored in anticipation of him “stepping down” to a community care unit (CCU), with it being anticipated that he would remain at a CCU for some months prior to release into the community.
39 Bearing in mind the principles to be applied as set out in s39 of the Act, and the matters to which I must have regard under s40 of the Act in respect to the application made by the Secretary to the Department of Health and Human Services pursuant to s29(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act, I confirm the order made on 6 April 2018.
40 In respect to the review pursuant to s33(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act, I confirm the order made on 6 April 2018.
41 As to the submissions made by Ms Pekevska as to a residential condition to be added to the NCSO made in respect of Mr Tzoumanis and that the matter be returned to court within three months, in my opinion each of these conditions are unnecessary. It is proposed that Mr Tzoumanis will be in the secure unit for months. His treatment with Clozapine will be supervised by psychiatrists and a multi-disciplinary team. This treatment and supervision will be performed pursuant to a Memorandum of Understanding between Forensicare and Mid -West Mental Health Services. In my opinion, it is the judgement of the clinicians as to Mr Tzoumanis’ progress at the AMHRU and the stability of his mental health that is critical to whether he is suitable to be transferred, or, to use the term of art, “stepped down”, to a community care unit.
42 Further, should Mr Tzoumanis become non-compliant with his medication or become non-compliant generally with treatment, then Dr Khan still retains her power pursuant to s30 of the Act in respect to emergency apprehension of Mr Tzoumanis. Accordingly, I see little utility in placing a residential condition on the present NCSO, nor, bearing in mind the length of time it is anticipated that Mr Tzoumanis would be housed within a secure extended care unit, in bringing him back to court within three months of 16 November 2020.
43 Accordingly, pursuant to s33(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act, I direct that the matter be brought back in 12 months’ time for review.
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