Director of Public Prosecutions v Tzoumanis
[2018] VCC 1855
•2 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00261
CR-17-01476
IN THE MATTER OF A REVIEW OF NON-CUSTODIAL SUPERVISION ORDER
PURSUANT TO s27(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
BETWEEN
| THE SECRETARY FOR THE DEPARTMENT OF JUSTICE AND REGULATION |
| v |
| CHRISTOPHER TZOUMANIS |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 November 2018 | |
DATE OF RULING: | 2 November 2018 | |
CASE MAY BE CITED AS: | DPP v Tzoumanis | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1855 | |
REVIEW OF NON-CUSTODIAL SUPERVISION ORDER
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Subject: CRIMINAL LAW and MENTAL IMPAIRMENT.
Catchwords: Review of Non-Custodial Supervision Order – Stalking – Community Care Unit – Community Treatment Order – Whether Order should be varied to Custodial Supervision Order – Risk to the Community.
Legislation Cited: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
Sentence: Order Confirmed with Review to occur in 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Secretary to The Department of Human Services | Ms. S Varney | The Department of Health and Human Services |
| For the DPP | Ms E James | Solicitor for the Director of Public Prosecutions |
| For the Attorney-General | Ms J Greenham | Victorian Government Solicitors Office |
| For Mr Tzoumanis | Mr B Johnston | Victoria Legal Aid |
HIS HONOUR:
1 On 6 April 2018, pursuant to s26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”) I released you, Christopher Tzoumanis on a Non‑custodial Supervision Order with the nominal period of 5 years with the following conditions:
(a)You be supervised by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or their delegate;
(b)You reside at a location known and approved by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or their delegate;
(c)You abide by the lawful directions of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or their delegate or their nominee;
(d)You comply with the testing, treatment and attend appointments as directed by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or their delegate or nominee;
(e)You abstain from the abuse of alcohol and from the use of illicit drugs; and
(f)You not leave the State of Victoria without the permission of the authorised psychiatrist or the delegate of the Victorian Institute of Forensic Mental Health. This includes overseas travel, which must be approved by the authorised psychiatrist or the delegate of the Victorian Institute of Forensic Mental Health.
2 I further ordered pursuant to s27(2) of the Act that your matter be brought back to me for review at the end of six months.
3 On Friday, 2 November 2018, I heard evidence in respect of the review. The Director of Public Prosecutions was represented by Ms James of Counsel who tendered Exhibit A, an affidavit of Ms Julie Carpenter deposing that the requirements of s38C of the Act had been met in that family members and victims have been contacted by the Director’s office in respect to the review. Those persons have elected not to provide reports, as they are permitted to do if they so wish. Thereafter Ms James withdrew and played no further part in the proceeding.
4 The Secretary to the Department of Human Services was represented by Ms Varney of Counsel, who called Dr Amy Preston, psychiatry registrar employed by Forensicare, and tendered a report dated 12/10/2018 prepared by her and overseen and signed by Dr Anthony Cidoni, consultant forensic psychiatrist, Director of Clinical Services – Community Operations, Forensicare, as Exhibit B. It was the opinion of both Dr Preston and Dr Cidoni that the Non-custodial Supervision Order (“NCSO”) was the most appropriate option for Mr Tzoumanis and that he continue to reside in a community care unit (“CCU”) and that he commence regular offence-related psychological intervention. (See paragraph 56 of the report.)
5 Ms Varney also called Mr Tzoumanis’s treating psychiatrist, Dr Singh, and tendered as Exhibit C a series of reports. The first from Rohits Sharma, registered psychiatric nurse, and Mr Tzoumanis’s case worker that was signed by Dr Singh and Mr Matthew Schoemaker, the Nurse Unit Manager of the Community Care Unit, Mercy Mental Health, where Mr Tzoumanis resides. Also tendered as part of Exhibit C was the report of Dr Singh dated 19 October 2018 and a further report of Rohits Sharma dated 19 October 2018. Further, Ms Varney called on behalf of the Secretary Matthew Schoemaker, a registered psychiatric nurse of Grade 5 level, who is based at the CCU where Mr Tzoumanis resides.
6 The Secretary’s submissions were that Mr Tzoumanis should remain on the Non‑custodial Supervision Order of 6 April 2018.
7 Ms Greenham of counsel, appeared on behalf of the Attorney-General, who submitted, for reasons I will deal with later, that the order should be varied to a Custodial Supervision Order.
8 Mr Tzoumanis was represented by Mr Johnston of Counsel.
9 Dr Preston consulted with Mr Tzoumanis on 2 July 2018 by herself and again on 12 October 2018, accompanied by Dr Cidoni. In her evidence, Dr Preston described Mr Tzoumanis’s mental state as “relatively stable” (see Transcript (“T”) 25, L4), although he still held beliefs that his victim was putting thoughts into his head and using witchcraft to control him. Later, she described Mr Tzoumanis as being accepting of his medications for some time and that there has been definite improvement in his mental state. She was of the opinion that he was at a stage where he can move on and start some meaningful psychological therapy which could help him gain insight into his illness as well as victim empathy. (See T27 and 28.)
10 Dr Preston was of a view that the CCU provided a number of benefits in respect to Mr Tzoumanis and managing any risk that he may pose in that it was a secure environment, he was seen by mental health professionals at least once a day and it allowed for the enforcement of the curfew that had been imposed upon him by his treaters. Further, Mr Tzoumanis’s current treatment regime and accommodation allowed for the control of any drug use or abuse.
11 Dr Preston assessed Mr Tzoumanis’s risk of recurrence of stalking as low should he remain in his present location but should he be released into the community where he was not subject to a Non‑custodial Supervision Order, his risk of recurrence of stalking would be moderate. (See T32 and 33.)
12 Contained in the report of Rohits Sharma dated 19 October 2018, as part of Exhibit C, were references to what were described by Ms Sharma as “angry thoughts towards current treating team at CCU” as expressed by Mr Tzoumanis. Two of these references related to utterances made by Mr Tzoumanis on 13 June 2016, the first being his dissatisfaction with his care and that he wanted oral medication as opposed to depot medication and was going to get a second opinion in respect to his treatment. The second instance of the expression of angry thoughts was towards his treating psychiatrist, Dr Singh, who he believed gave untrue evidence in respect of an application for a Community Treatment Order which is presently on foot, indicating to a member of staff within the CCU that “I will spit on him”.
13 Under cross-examination Dr Preston stated that at the time of writing her report she was aware of the first two expressions of angry thoughts when she made her risk assessment. However, she was not aware of the third which is said to have occurred on 5 October 2018 where Mr Tzoumanis talked about his ex-girlfriend and stated, “She’s ruined my life” and “I'm waiting for the whore to have children and then … “. He is then said to have raised his hand to represent a gun and made the action and sound of representing firing the gun. Having been made aware of this incident, Dr Preston did not alter her opinion in respect of the risk assessment that she had made.
14 Dr Singh gave evidence that he saw Mr Tzoumanis every six to eight weeks and that Mr Tzoumanis was seen by a psychiatric registrar on a fortnightly basis. Further, Mr Tzoumanis was observed by staff within the CCU on a daily basis and they made entries into the CCU’s computer system at the end of every shift in respect to the patients housed at the CCU. Further, Mr Tzoumanis’s progress within the CCU was monitored on a monthly basis by the clinical review committee of the Mercy Mental Health Community Care Unit.
15 Dr Singh swore that Mr Tzoumanis was compliant with his medication, although not happy about having to take it. Further, Mr Tzoumanis had attended all his appointments with the psychiatric registrar.
16 In respect to Mr Tzoumanis’s delusional beliefs, in my view Dr Singh was uncertain as to whether Mr Tzoumanis adhered to them as he had informed Dr Singh that he had been subject as a child to conduct consistent with witchcraft. This, according to Dr Singh, made the situation very confusing from time to time and ultimately he opined that in respect to Mr Tzoumanis’s offending behaviour, that Mr Tzoumanis was ambivalent as to whether it was right or wrong. (See T51 and 52.)
17 In respect of any risk that Dr Singh may be at the hands of Mr Tzoumanis, he was aware of the incident that took place on 5 October 2018. However, he swore that whenever he had seen Mr Tzoumanis he did not feel at risk and if he did, he would change Mr Tzoumanis’s psychiatrist. (See T67, L13-23.) Earlier he had described his relationship with Mr Tzoumanis as very good; that he had no problem with him and never had any problem with him. (See T66, L17-21.)
18 The treating staff at Mercy Mental Health were of a view that Mr Tzoumanis had progressed so well in his treatment that they had recommended to the Victorian Institute of Forensic Mental Health that he be discharged into the community. (See T65, L15-24.)
19 Dr Singh accepted that Mr Tzoumanis had no insight into his mental illness however, he did understand that what he had done was wrong but Dr Singh felt unable to comment as to whether Mr Tzoumanis felt any empathy for his victim. Rather, Dr Singh analysed Mr Tzoumanis’s situation as being one where Mr Tzoumanis no longer focussed on his victim but rather focussed on himself. (See T73, L14-17.)
20 As part of the reports that formed Exhibit C, at page 5 of each of the reports, there were set out a record of urine drug screens conducted on Mr Tzoumanis. On 19 April 2018, 26 April 2018 and 7 May 2018, in respect of random urine tests conducted on those days, Mr Tzoumanis proved positive for the presence of Benzodiazepine, amphetamine and Benzodiazepine in each of those tests respectively. Thereafter, in respect to planned urine screens as requested by Mr Tzoumanis, conducted on 7 June 2018, 13 June 2018 and 3 September 2018, his urine screens proved negative. Dr Singh was not concerned in respect to the presence of Benzodiazepine in Mr Tzoumanis’s urine as that class of medication was freely available within the CCU and a patient may request a drug of that class at any time to assist in sleep or the like and if that was the case, so far as Mr Tzoumanis was concerned, a urine test would prove positive. (See T79.)
21 Ultimately, Dr Singh was content for Mr Tzoumanis to be released into the general community. However, Dr Singh acknowledged that despite his assessment he was subject to the directions of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or their delegate or nominee in respect to the circumstances in which Mr Tzoumanis would be treated; namely, within the CCU at Mercy Mental Health.
22 During the course of the hearing, it became unclear as to the length of the Community Treatment Order (”CTO”) to which Mr Tzoumanis is subject. To clarify this issue and to deal with other matters, Mr Matthew Schoemaker was called by Ms Varney, counsel for the Secretary, and was confident he was of the view that the CTO was for a period of 6 months. Mr Schoemaker gave additional evidence in respect to the expression of angry thoughts by Mr Tzoumanis and he described those as being expressions of frustration of being stuck in the system. (See T87, L14-21.)
23 Mr Schoemaker, who has had regular contact with Mr Tzoumanis at the CCU, was of the opinion that Mr Tzoumanis had insight into his offending however, there had not been a lot of gain in respect to making ground in respect to empathy. (See T88, L25-31.)
24 Ultimately the concerns expressed by Ms Greenham of Counsel on behalf of the Attorney being:
(1)Mr Tzoumanis being a potential threat to his treating psychiatrist, Dr Singh,
(2)His statements made in respect to his victim on 5 October 2018, and
(3)Mr Tzoumanis’s positive drug screen to methylamphetamine,
that were the basis of The Attorney’s application to vary the present order to a Custodial Supervision Order in my opinion, came to nought.
25 Mr Tzoumanis is subject to a CTO, he resides at a CCU where he is in daily contact with health professionals who monitor him and report on him. Mr Tzoumanis is compliant with his medication and curfew condition. He works at a part time job five (5) nights per week and swims and attends a gymnasium when not at his grandmother’s home during the day. In my opinion, whilst the evidence establishes that Mr Tzoumanis is still psychiatrically unwell, and has no insight into his illness he has progressed to a point where those who are treating him are satisfied that he ought be released into the community.
26 Mr Tzoumanis will not be released into the community as the authorised psychiatrist of the Victorian Institute of Forensic Mental Health will not approve such a move. Further, it is intended that Mr Tzoumanis will undergo psychological therapy with the aim that in the future he will gain insight into his illness and empathy for his victim. I am satisfied that the terms of the order made on 6 April 2018, when combined with the Community Treatment Order which Mr Tzoumanis is subject to, are sufficient to manage any risk that he may pose to the community.
27 Accordingly, I confirm the order made on 6 April 2018 and I direct that Mr Tzoumanis be reviewed in 12 months’ time.
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