Director of Public Prosecutions v Ua
[2018] VSC 423
•31 July 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0259
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| U A[1] |
[1]Suppression order made pursuant to s 17 of the Open Courts Act 2013 applies to this proceeding.
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JUDGE: | COGHLAN JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 December 2017 & 27 February 2018 |
DATE OF JUDGMENT: | 31 July 2018 |
CASE MAY BE CITED AS: | DPP v UA |
MEDIUM NEUTRAL CITATION: | [2018] VSC 423 |
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CRIMINAL LAW — Sentence — Infanticide — Slashed throat of 13-month-old daughter — Guilty plea — History of schizophrenia — Acute worsening of psychotic and depressive symptoms post-partum — Received treatment at Thomas Embling Hospital while on remand — Crown concession that imprisonment inappropriate — Treatment to be co-ordinated by Forensicare, Community Correctional Service and area mental health service under Community Correction Order — Community Correction Order of 30 months’ duration with, inter alia, mental health assessment and treatment conditions imposed — Crimes Act 1958 s 6.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A Grant | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr T R Marsh | Victoria Legal Aid |
HIS HONOUR:
U A, on 11 December 2017, you pleaded guilty to the infanticide of your daughter, N. She was 13 months old when you killed her by slashing her throat on 5 June 2017.
The commission of infanticide arises in your case because you caused N’s death when the balance of your mind was disturbed, at the time, because you had not fully recovered from the effect of having given birth to her within the previous two years.[2] The crime of infanticide carries a maximum term of imprisonment of five years.[3]
[2]Crimes Act 1958 s 6(1)(a).
[3]Crimes Act 1958 s 6.
On the morning of 5 June 2017, you were at home with your three daughters and one son, who were aged between one and four years. At about 10.30 am, you were in the bedroom with N when you cut her throat with a knife. At about 10.38 am, your husband called you on the phone and you told him what you had done. He called your brother, who came to the house and confirmed what had happened to N. Your brother then called ‘000’. Police arrived about 11.00 am. You were arrested and have been in custody since that day.
On the plea, the prosecutor tendered a Summary of the Prosecution Opening which he read to the Court, setting out the circumstances and events leading up to the commission of your offence:
She was born in Africa … She was 28 years old at the time of the incident that forms the basis of the charge.
…
Ms [U A] completed her secondary education before undertaking nursing studies at the Australian Catholic University. She deferred her tertiary studies to return to Kenya where she met her future husband … She didn’t subsequently resume her studies.
After her marriage, Ms [U A] returned to Australia. Her husband … who had applied for a visa to immigrate to Australia, remained in Kenya. She was pregnant with her first child when she returned to Australia. About three months into the pregnancy she suffered a miscarriage. Following the miscarriage, her mental health declined and she became very depressed and told her husband that he needed to ‘escape’. Her husband, who was still in Kenya tried to support her and asked her to come back to Kenya to be with him until he successfully obtained his visa and she accepted that offer and returned to Kenya.
After she arrived in Kenya she again fell pregnant and … she gave birth to her son [Y] … Ms [U A], [her husband] and their son [Y] moved to live in Australia.
Shortly after Ms [U A] and her family arrived in Australia, her mother returned to Kenya and Somalia to visit some family members as she had not seen them for 25 years. In 2013, while she was in Kenya, … her mother, became ill and died. Ms [U A] was very close to her mother and was devastated by her death. In the period that followed, her mental health again declined rapidly.
In the period that followed, Ms [U A] gave birth to three daughters …
Also during that period, Ms [U A]was admitted to the Northern Psychiatric Unit, which was part of the Northern Hospital, on a number of occasions. In 2013 after the birth of [Y], she was diagnosed with paranoid schizophrenia and postpartum depression. That condition was managed with medication but returned after the birth of each of her children. In 2016, after the birth of [N], Ms [U A] and [her husband] sought advice and received some treatment which would avoid the birth of any further children.
Ms [U A] struggled to manage her schizophrenia and she resisted taking her medication as she believed that it was poisoning her and affecting her ability to be a good mother and wife. As a result, she often failed to take the medication that had been prescribed and that inevitably led to a relapse and to further admissions to the Northern Psychiatric Unit as an in-patient. When she was not taking the prescribed medication, Ms [U A] suffered delusions and paranoia. She believed that members of her family were plotting against her and trying to kill her. She also told treating doctors that God wanted her to kill members of her family, and that she would kill them by stabbing or poisoning them. She also told treating physicians that she believed that her family were terrorists and disclosed other delusional beliefs.
While she never disclosed any threat to her children, family members noted that she didn’t always react or interact with her children in an appropriate manner. For example on one occasion when a medical practitioner was conducting a home visit, she didn’t respond to [N] when she was crying hysterically. She also was observed to pick [N] up by one arm and almost drop her. Also during the same period, Ms [U A] made several allegations that her husband and other family members had been violent towards her. Those allegations were investigated but found to have been fallacious.
Turning to the deceased, [N]. She was the youngest child of Ms [U A] and [her husband]. She was 13 months old when she died and at that time she wasn’t walking but had learnt to crawl. … [N] was described by family members as an affectionate baby who often wanted to be around others.
I have outlined five incidents that led up to the incident that's the subject of the charge. The first incident occurred on 12 November 2013. Ms [U A], her husband and two eldest children were living in a bungalow … in Reservoir. That property was owned by Ms [U A]’s father. Three of her siblings also lived in the main house on that property. At approximately 5.00 am, Ms [U A] was in bed with her husband and their two children … Ms [U A] had not been sleeping well and had recently experienced delusions and paranoia, which included a belief that her husband was having an affair with an unknown person.
After she woke she went into the kitchen and took a knife from the kitchen drawer. She returned to the bedroom and stabbed her husband in the face with the knife. [Her husband] tried to protect himself and the children as Ms [U A] stabbed him a further seven times. He grabbed the children and ran out of that bungalow towards the main house.
The incident woke those in the main house and Ms [U A]’s father and brother … ran towards the bungalow. They then took the children into the main house and the police were called. [Her husband] was taken to the Austin Hospital. The wound to his forehead was sutured and he received treatment for other wounds to his hand and a bite to his right arm. Neither of the children were physically injured.
Ms [U A] was taken to the Preston police station. She was examined and deemed unfit to be interviewed before she was taken to the Northern Hospital and admitted as an involuntary patient. She was referred to mental health services and subsequently diagnosed as suffering from schizophrenia and postpartum depression. She commenced treatment which included medication, electroconvulsive therapy and psychiatric counselling.
On 30 November 2013 she was discharged on a Community Treatment Order. A risk assessment conducted at that time deemed her to be a low risk to her family. However police were concerned and they sought an intervention order which was granted. The order prohibited Ms [U A] from being within five metres of [her husband] and her children, and as a result she moved to live with her brother … [in] Reservoir.
On 30 November 2013 Ms [U A] was arrested and interviewed in relation to causing the injury to [her husband]. [He] however declined to pursue any charges and the prosecution didn’t occur. However, on 3 December 2013 the Heidelberg Magistrates’ Court issued an interim intervention order. On 25 February 2014 the Magistrates’ Court imposed a 12 month order in the same terms. The order was later varied to allow Ms [U A] to return home to live with her family. After that time Ms [U A] continued to live with her brother but spent some time visiting her family in the bungalow.
In early 2014 Ms [U A] and [her husband] sought the assistance of the Department of Health and Human Services to obtain housing and childcare. DHHS were unable to assist with housing as [her husband] didn’t have a rental history, and they also declined to assist in providing childcare.
The second incident occurred on 6 December 2013. On that occasion Ms [U A] attended the emergency department of the Northern Hospital with [her husband] and her brother … at 12.30 am. She told doctors that her husband was the devil and that she was considering protecting herself and her sisters by stabbing him to death. She didn’t make any threats towards the children on that occasion, and as a result the Community Treatment Order was revoked, but unfortunately as there were no beds available they sent her home.
On 11 December 2013 at 5.17 pm [her husband] took Ms [U A] back to the emergency department at the Northern Hospital as her condition had deteriorated. On this occasion, she was admitted. She advised doctors that a number of issues had led to the deterioration in her condition. Those issues included the unavailability of childcare, the lack of accommodation, and her inability to care for her children. Those treating her made arrangements to follow up and attempted to resolve those issues.
On 13 December 2013 Ms [U A] was discharged from hospital into the care of [her husband] on a Community Treatment Order. On 17 December 2013 Ms [U A] and [her husband] attended a medical review appointment in which they sought assistance to obtain some childcare and accommodation. They were advised that the request would be followed up.
At the same time [her husband] and Ms [U A] contacted other services in an attempt to obtain the assistance they were seeking. DHHS declined their application for housing as [her husband] was unemployed, and they were placed on a waiting list for childcare.
Over the next 12 months Ms [U A]’s mental health stabilised. [Her husband] was able to find employment and family assistance and childcare were arranged for [Y] and [A]. Finally in June 2014, DHHS provided accommodation for the family.
In September 2014 Ms [U A] sought a discharge from the Community Treatment Program at the Northern Hospital, and in November 2014 that discharge was granted. In March 2015, [M] was born. And prior to her birth Ms [U A] disclosed that she was experiencing paranoia, depression and other symptoms that were similar to those that she’d experienced prior to the birth of her other children. As a result she was admitted to the Austin Parent-Infant Mental Health Program.
The third incident occurred on 21 May 2015. At 11.30 pm Ms [U A] took [M] and left the family home without any shoes, money or other belongings. She called the police and alleged that [her husband] had been controlling her financially, was brutalising her at home and had unreasonable expectations of her regarding domestic duties. She claimed that she had tried to leave him several times, however on each occasion he threatened to kill her and that her father had granted [her husband] permission to kill her if she tried to leave.
The police subsequently attended and provided Ms [U A] and [M] with crisis accommodation. They subsequently contacted [her husband] who advised them of her mental issues, and as a result the police involved contacted a Crisis Assessment Team and arranged for them to assess Ms [U A]. During that assessment Ms [U A] stated that she had been experiencing symptoms of depression, but was not considered to be at such a high level of risk that she required involuntary treatment. She asked police to initiate an intervention order on her behalf, but later asked for the order to be revoked as she had made the complaint while she was mentally unwell. However, the order was not revoked and remained in place.
On 23 May 2015 Ms [U A]’s mental health deteriorated further and she was again admitted as an involuntary patient. On 12 June 2015 she was again discharged from hospital and placed on a Community Treatment Order for a period of 26 weeks.
While on that order Ms [U A] did not engage with those providing her with treatment. She avoided appointments and actively avoided answering or responding to phone calls. She also provided those treating her with misleading information about the treatment provided by her general practitioner. She told clinicians that she didn’t believe in the validity of the treatment order and didn’t believe that she had to comply with it. She declined assistance and referrals that were offered and refused to discuss the welfare of her children.
On 3 July 2015 Ms [U A] contacted Northcote police and alleged that her brother and sister had stolen [her husband’s] and her passport as they wished to conduct terrorist activities. Northcote police contacted her mental health clinicians and notified DHHS Child Protection. While she was speaking to police Ms [U A] locked [M] in the house. [M] was crying hysterically but Ms [U A] didn’t seem to react to her distress. Clinicians subsequently contacted Ms [U A] and she advised that [Y] and [A] were being cared for by her extended family, and [her husband] had made those arrangements to provide her with some respite and assist in her recovery.
On 3 July 2015 Ms [U A] sought treatment to prevent her from becoming pregnant, and she as a result of that request was placed on a waiting list.
On 4 September 2015 Ms [U A] and her family left Australia for a holiday in Somalia. In November 2015 the family was to return to Australia. However, shortly before they were due to leave [Y] became ill and the airline refused to accept him as a passenger. As a result [her husband] returned to Australia on his own. Ms [U A] and the children remained in Somalia and didn’t return until February 2016.
After she returned to Australia, Ms [U A] refused to make contact with her treatment providers and during that time the Community Treatment Order lapsed. On 5 May 2016 Ms [U A] gave birth to [N]. On 14 July 2016 Ms [U A] was again admitted as an involuntary patient at the Northern Psychiatric Unit. [Her husband] had noticed that her paranoia, delusions and persecutory beliefs were increasing. She was diagnosed as suffering a relapse of the post-partum psychosis, and her clinicians realised that she had not been taking appropriate medication since July 2015.
On 2 August 2016 she was discharged from hospital and placed on a Temporary Treatment Order. That order was made permanent by the Mental Health Tribunal on 10 August 2016.
Turning to the fourth incident. On 6 August 2016 [her husband] took Ms [U A] to the Northern Hospital as she was of the belief that her father was trying to kill her. She also kept repeating ‘Something is going to happen.’ And ‘I’m going to do something.’ As a result she was admitted as an in-patient in the psychiatric unit and later discharged on 11 August 2016.
As Ms [U A] was resistant to taking her medication, her doctors at that time prescribed depot medication which had to be injected on a regular schedule. At that time [her husband] also took six months’ leave without pay to care for the children and to assist Ms [U A] in her recovery. In the months that followed Ms [U A] appeared to be managing her symptoms and medication, and the Northern Psychiatric Unit was considering a full discharge. At [that time] Ms [U A and her family] moved to live … in Reservoir.
On 15 May 2017 [her husband] contacted the Northern Psychiatric Unit and noted that Ms [U A] appeared to be deteriorating. He noted that she was acting in a jealous and paranoid manner and had been accusing him of having an affair. [Her husband] requested that someone attend their house to assess Ms [U A] the following day.
This is when the fifth incident occurred. On 16 May 2017 doctors contacted [her husband] and advised that a home visit would not be necessary as Ms [U A] appeared to have stabilised. They advised that if things became critical that he should contact an ambulance or the police. Later that day Ms [U A] and [her husband] had an argument after she learnt that he had contacted the Northern Hospital. [Her husband] then contacted the Crisis Assessment Team who advised him to call the police.
The argument escalated and Ms [U A] struck [her husband] to the face twice. He then barricaded himself and the children in a bedroom until he was certain that she had left the house. [Her husband] and the Northern Psychiatric Unit then both contacted the police who attended their home. Ms [U A] told the police that [her husband] had put a ‘hex’ on her and that he was having an affair. She also disclosed that she had put a ‘death hex’ on him. The police then arrested Ms [U A] pursuant to s 351 of the Mental Health Act 2014 and took her to the Northern Hospital.
Ms [U A] was assessed and told that she was to be admitted. She told the mental health professionals who assessed her that she wanted to go home, and while they were organising a bed for her she absconded.
On 17 May 2017 at approximately 2.30 pm she returned home and was aggressive and accusatory towards [her husband]. She told him that she believed he was having an affair. [Her husband] called the police who attended and again arrested Ms [U A]. She was taken back to the Northern Hospital. As she was being admitted she attempted to abscond three times. As a result she was physically restrained.
While she was held as an involuntary patient her social worker, Rebecca Wells, contacted several services to obtain support for the family. She contacted the Oakhill Maternal Child Health Nurse, Barbara Sims, who advised that despite being 12 months old, [N] had never been brought to the clinic. She advised that she had tried to arrange several appointments but Ms [U A] had not responded. She also advised that she had previous contact with the family and was concerned about the manner in which Ms [U A] interacted with her other children.
On 25 May 2017 Ms [U A] was discharged from the Northern Psychiatric Unit.
On Friday 28 May 2017 the Northern Psychiatric Unit contacted [her husband], who advised that he now realised that Ms [U A] needed to stay on medication and he would encourage her to do so. He stated that she seemed to be in good spirits and was looking after their children. He stated that he didn’t have any concerns for the safety of the children or Ms [U A]’s ability to properly care for them. He also indicated that he had to return to work the following week.
On 2 June 2017 Ms [U A] attended her final medical review before the incident which resulted in [N]’s death. She reported that she ‘wasn't feeling herself’, and that her last relapse was because she was ‘trying to be someone else’. The clinician discussed her medication and the best way to administer it with a view of ‘weaning her off’ the medication.[4]
[4]Transcript of Plea, DPP v [U A] (Supreme Court of Victoria, S CR 2017 0259, Coghlan JA, 11 December) 3–15 (‘Transcript’).
It is necessary to set those background matters out in detail so as to give a reasonable understanding of your background and its importance to your offending.
After your arrest, you were not interviewed about the event because you were assessed as being mentally unwell.
Police carried out a forensic examination of your house and recovered the knife which was used to inflict the single wound to N’s neck. That stab wound was found to be the cause of death.
You were remanded to the Dame Phyllis Frost correctional facility. Between 7 June and 21 June 2017 you made a number of phone calls to your husband which demonstrated that you were mentally unwell.
On the plea, I received a Victim Impact Statement from your husband. In that statement, he said that he was very upset by the event but that he has largely recovered from it. I interpolate that he has given you very significant support since these events occurred.
On 24 September 2017, Associate Professor Andrew Carroll, Consultant Forensic Psychiatrist, provided a psychiatric report. Shortly thereafter, you offered to plead guilty to this charge and that offer was accepted by the prosecution.
Your position is slightly unusual, in the sense that your mental disturbance does not relate merely to your having given birth to N. That is so because you suffer from schizophrenia, which was an underlying condition prior to N’s birth.
Associate Professor Carroll put it in this way. Under the heading ‘Eligibility for Infanticide’ he said:
Although her first psychotic episode, and several subsequent relapses, have occurred in the months following her giving birth, [U A] suffers from schizophrenia, rather than simply a mental illness that is confined to postpartum episodes. The postpartum period is a high-risk time for relapses in general, and in [U A]’s case this risk would have been further heightened by:
• her persistent refusal of long-term maintenance antipsychotic medication;
• the stress of caring for a growing young family in the context of relative socioeconomic adversity;
• the occurrence of 4 post-partum periods in the space of less than 5 years.
However, in hindsight, it appears that [U A] never became fully mentally well, in terms of being fully free of at least some psychiatric symptoms (which varied between being psychotic and depressive in nature) at any stage following the psychotic episode that occurred soon after the birth of her youngest daughter in May 2016. In this sense, she did not fully recover from the effect of giving birth to her child (the deceased) who was born less than two years prior to the date of offending. ·
Ultimately, eligibility for an infanticide disposition is a matter for the Courts rather than the expert witness, but based on my own understanding of Section 6 of the Crimes Act 1958, I believe that in all the circumstances, [U A] would meet the criteria for infanticide in respect of the killing of her baby daughter.[5]
[5]Report of Associate Professor Andrew Carroll dated 24 September 2017 [179]–[181] (‘Çarroll Report’).
It is that opinion which forms the basis of the plea. I observed on the plea that this was a case where the defence of mental impairment and the crime of infanticide, to a large degree, intersected. Although I expressed some personal reservations about whether this is truly a case of infanticide, because of the view taken by Associate Professor Carroll, and by counsel for both parties, it is not for me to take a different view. In reality, it is that difficulty which has made the final resolution of this case so difficult.
For completeness, I set out your history as it was put on the plea by your counsel:
She was born in Somalia … Her family fled the civil war in Somalia when she was only two. She and her growing family remained in a refugee camp in Kenya for eight years before obtaining refugee status and emigrating to Australia in 1998 when she was 10.
Despite the fact that she had not received any structured education in the refugee camp, she passed Year 12 in Australia, she gained entry to RMIT and then to the Australian Catholic University to study nursing. She dropped out of those studies after her mother suffered a heart attack. She took over responsibilities for raising her younger siblings. Relevantly, her mother has a history of schizophrenia. It appears from statements of family members that that illness has been more or less managed through the antipsychotic Risperidone.
Her marriage to [her husband] was an arranged union. She travelled to Kenya to meet and marry him. She has no criminal history and she falls to be sentenced as somebody of good character. She is now 28.[6]
[6]Transcript 36–7.
Your more recent history is set out above in the prosecution opening.
Associate Professor Carroll formed the view that you were psychotic at the time of these events, and, on the whole of the material, that must be so. At the time, you suffered from delusional beliefs. Associate Professor Carroll, under the heading ‘Recommendations or proposals for future treatment’, said:
Given the gravity of the recent events and the fact that her longitudinal treatment history is marked by poor insight and intermittent engagement, I would recommend a sustained period of inpatient rehabilitation from a service skilled in dealing with persons with a history of serious violence in the context of mental illness. Ideally, she would be gradually reintegrated into the community and ultimately resume her role as a mother and wife. In the longer term, she is certainly capable of further education and employment if she chooses those avenues.
She now requires antipsychotic medication for the rest of her life.
In due course, formal psychotherapy to assist her to grieve and also to understand her mental illness, will also be required.[7]
[7]Carroll Report [200]–[202].
On 26 July 2017, you were transferred to Thomas Embling Hospital pursuant to s 276 of the Mental Health Act 2014 on a Secure Treatment Order. You have remained there since.
On the plea, I received a letter dated 11 December 2017 from Dr Fiona Toal, Consultant Forensic Psychiatrist, Forensicare, who was then your treating psychiatrist. She said under the heading ‘Summary and opinion’:
Ms [U A] is a 28-year-old married women with three young children who was admitted to Thomas Embling hospital on 26/07/2017 following being charged with infanticide. Ms [U A] has a diagnosis of schizophrenia and was under the active treatment of her community team when the alleged offence occurred on 5th June 2017.
Ms [U A] has recently changed medication with significant improvement observed. She is notably warmer during interactions with staff and her children, she is more open and forthcoming during interviews facilitating a more comprehensive assessment of her mental state and she is engaging openly in psychology sessions.
However she continues to demonstrate several positive features, which in the context of her relatively recent serious violent behaviour indicate she requires ongoing inpatient treatment in an acute psychiatric unit until her treatment and response to medication is optimised. I would recommend that she continues to be treated in an inpatient unit so that she receives a full assessment of her response to her new medication and possible addition of an augmenting agent to optimise her response in the future.
She would benefit from ongoing work with psychology, social work, family support and cultural supports and engagement in parenting classes in the future. This will support her through her grief in conjunction with addressing her evolving insight into her past behaviour and future need for treatment and assist in her building increased confidence and skills in the future.
In the event that she receives a custodial outcome her multidisciplinary psychiatric care will continue in Thomas Embling Hospital, a specialist centre for Forensic Mental Health.
In the event of a non-custodial outcome we will liaise with her Area mental health service to arrange transfer via an Inpatient Assessment Order via the Mental Health Act 2014 to the acute psychiatric unit of her local hospital. I have spoken previously with her local service Clinical Director and they have advised that a planned admission is not possible prior to any proposed release date due to the pressure of available beds. However they have indicated they will admit her to the acute inpatient unit once a bed becomes available. Therefore it is likely she will remain in the first instance for a number of weeks on a temporary treatment order in Thomas Embling Hospital whilst this transfer is arranged.
Prior to any transfer of care we will facilitate a comprehensive handover between the two treating teams, including the Forensic Clinical Specialist from her local service to attend. We are keen to highlight our observed persistence of her symptoms when she seems superficially well and organised. With the benefit of time in this unit we have gained increased knowledge of her subtle presentation and she has revealed more information regarding her own warning signs to relapse. Currently however she remains symptomatic and requires further acute treatment to optimise her response to her new medication regime.
In the future, following a sustained period of objectively observed sustained improvement and engagement with the key players in her new treating team as an inpatient (including social worker, nursing staff, psychologist and cultural support worker), I would recommend a gradual cautious discharge from hospital. This will facilitate repeated assessments of her mental state and allow monitoring for deterioration in the context of the stressors of returning to a less clinically supported environment. This episode of care would probably best be achieved via admission to a SECU with a rehabilitative focus with gradual discharge to a mobile support team as suggested by Dr Cidoni.
In the future I would recommend that she will require long term psychiatric follow up given her repeated history of severe episodes of psychosis which have been associated with violent behaviour. Her history indicates that the post-partum period is a time of particular risk along with periods when she is non-compliant with medication or disengages with treatment.
I would also recommend longitudinal psychological work to address both her insight into her illness, its link to potential future violence and support her through the evolving grief that will likely arise in the context of her developing increased appreciation of the tragic set of events that have occurred.[8]
[8]Report of Dr Fiona Toal dated 4 May 2018 [21]–[30].
It was plain at the conclusion of the plea that, although the parties agreed that a simple term of imprisonment was not an appropriate sentence, the question of your safety, the safety of your family and the community would have to be at the forefront of any disposition.
On your behalf, Mr Marsh submitted that a Community Correction Order (‘CCO’) would be appropriate. The prosecutor, Mr Grant, submitted that I should give consideration to the imposition of a Court Secure Treatment Order pursuant to s 94B of the Sentencing Act 1991, although he conceded that there were problems about using that regime. Mr Marsh submitted that a Court Secure Treatment Order was inappropriate in your case, because, pursuant to s 94C, if a point were reached at which it was no longer necessary for a you to be a security patient, you would have to serve the balance of the period of any such order by way of imprisonment, unless released on parole.
I decided that it was appropriate to seek a pre-sentence report pursuant to s 8A of the Sentencing Act 1991, but that I would begin the process by seeking a report from Forensicare with particular reference to the management of your treatment if a CCO were to be imposed.
I subsequently received a report dated 25 January 2018 from Dr Anthony Cidoni, Consultant Psychiatrist. In his report, Dr Cidoni said, under the heading ‘Opinion and Recommendations’:
Ms [U A] had recurrent postpartum psychoses which are consistent with a diagnosis of schizophrenia. She has had a depressive component that, in my opinion, has not been substantial enough to diagnose schizoaffective disorder in the alternative.
There is no doubt in my opinion the condition was in frank relapse at the time of the offending.
I am very concerned that, despite her previous history, neither her, her husband, the mental health services or others, detected the extent of symptoms/deterioration in her mental state and I am concerned at the discharge from hospital on 26 May 2017 that occurred within the same episode of illness that the offending occurred in. I note that Ms [U A] denied symptoms, as she is now, and that her husband thought she was well enough to come home.
She denies any current symptoms and I note she has the flattened affect which is very characteristic of schizophrenia. I note that she is very guarded, has a history of poor insight and denial of symptoms and I would suspect that there are indeed residual psychotic symptoms that she is not disclosing.
Her current treatment is appropriate and I agree with Dr Taol that an inpatient admission, after her release from Thomas Embling Hospital, would be appropriate to assist to engage her with a mental health service to monitor her mental health in an inpatient setting while she leave custody, to ensure she has a robust relapse prevention plan with recognition of early warning signs.
I share Dr Taol’s concern that an inpatient admission post-release may be brief given that Ms [U A] will be denying symptoms. This is concerning, as discharge to the community in the setting of ongoing symptoms and associated risk would be problematic.
Whilst I recognise that it must be very difficult for Ms [U A] to discuss the offending, I am concerned about Ms [U A]’s superficial and somewhat dismissive approach to the serious offending that she has engaged in. I would have hoped that with psychological input that she would have achieved an appreciation of the seriousness of the offending, the sequence of events that led to it and an appreciation of the risk associated with future relapses.
Further psychological work around understanding her symptoms, the need to acknowledge and report them accurately and the need for treatment is necessary and should occur as an inpatient.
In relation to the specific questions posed by the court, in the event that a Community Corrections Order is imposed, Forensicare will liaise with the Northern Hospital from so that Ms [U A] may be able to be transferred on an Inpatient Assessment Order under the Mental Health Act as soon as a bed becomes available. I note that area mental health services do not have the resources to facilitate more lengthy admissions in their acute admission units, and that the SECU services may facilitate longer admissions.
I would anticipate that such a requirement for inpatient transfer would be able to be implemented in the week subsequent to the court date and the treatment through the area mental health service can involve liaison with the Corrections worker.
Were a custodial sentence be imposed, it would be appropriate for Ms [U A]’s treatment at Thomas Embling Hospital continue and the above issues could be addressed there.
In terms of the role of Forensicare, Forensicare Community Services are available for primary and secondary consultation with the area mental health service should they require it to assist in Ms [U A]’s management. I would see a particular role for a consultation prior to any plan to discharge to the community.
Forensicare also coordinates the forensic clinical specialist which are specialist mental health clinicians within each service and that includes the Northern Area Mental Health Service, so that coordinator of that service at Forensicare is available to consult with the forensic clinical specialist of the Northern Hospital if needed.
In terms of intensity of her community follow-up, I would recommend that she be considered for mobile support team follow-up which is more intensive than a clinic based follow-up that she has had in the past.[9]
[9]Report of Dr Anthony Cidoni dated 25 January 2018 [27]–[40].
It can be observed from Dr Cidoni’s report that your situation was particularly complex. I therefore had listed a further hearing on the plea on 27 February 2018, at which Dr Cidoni gave evidence.
Dr Cidoni told me that as a result of discussion with Dr Toal, he had become aware that your mediation had been changed after the preparation of his report. He told me it would take three to six months to determine the efficacy of the new regime. That information was important because, in the past, you had been reluctant to take medication and were guarded about discussing your present mental health state. Dr Cidoni suggested that, in the meantime, you should remain at Thomas Embling Hospital.
Mr Grant submitted that I should seek a further report from Dr Toal, and I agreed to do so. I also sought a pre-sentence report from the Secretary as to your suitability for a CCO. I sought particular information as to what conditions might be imposed to facilitate your transfer from Thomas Embling Hospital to the appropriate mental health service, and, eventually, your release into the community, on a CCO.
I received a report dated 27 April 2018 from Ms Jackie Bernardi on behalf of Community Correctional Services. You were assessed as unsuitable for a CCO at that time, in particular, because you were in the earlier stages of recovery and had a history of non-compliance with your treatment.
I also received a report from Dr Toal dated 4 May 2018. In her report under the heading ‘Summary and recommendations’, she said:
Ms [U A] has recently changed medication with significant improvement observed. She is notably warmer during interactions with staff and her children, she is more open and forthcoming during interviews facilitating a more comprehensive assessment of her mental state and she is engaging openly in psychology sessions.
However she continues to demonstrate several positive features, which in the context of her relatively recent serious violent behaviour indicate she requires ongoing inpatient treatment in an acute psychiatric unit until her treatment and response to medication is optimised. I would recommend that she continues to be treated in an inpatient unit so that she receives a full assessment of her response to her new medication and possible addition of an augmenting agent to optimise her response in the future.
She would benefit from ongoing work with psychology, social work, family support and cultural supports and engagement in parenting classes in the future. This will support her through her grief in conjunction with addressing her evolving insight into her past behaviour and future need for treatment and assist in her building increased confidence and skills in the future.
In the event that she receives a custodial outcome her multidisciplinary psychiatric care will continue in Thomas Embling Hospital, a specialist centre for Forensic Mental Health.
In the event of a non-custodial outcome we will liaise with her Area mental health service to arrange transfer via an Inpatient Assessment Order via the Mental Health Act 2014 to the acute psychiatric unit of her local hospital. I have spoken previously with her local service Clinical Director and they have advised that a planned admission is not possible prior to any proposed release date due to the pressure of available beds. However they have indicated they will admit her to the acute inpatient unit once a bed becomes available. Therefore it is likely she will remain in the first instance for a number of weeks on a temporary treatment order in Thomas Embling Hospital whilst this transfer is arranged.
Prior to any transfer of care we will facilitate a comprehensive handover between the two treating teams, including the Forensic Clinical Specialist from her local service to attend. We are keen to highlight our observed persistence of her symptoms when she seems superficially well and organised. With the benefit of time in this unit we have gained increased knowledge of her subtle presentation and she has revealed more information regarding her own warning signs to relapse. Currently however she remains symptomatic and requires further acute treatment to optimise her response to her new medication regime.
In the future, following a sustained period of objectively observed sustained improvement and engagement with the key players in her new treating team as an inpatient (including social worker, nursing staff, psychologist and cultural support worker), I would recommend a gradual cautious discharge from hospital. This will facilitate repeated assessments of her mental state and allow monitoring for deterioration in the context of the stressors of returning to a less clinically supported environment. This episode of care would probably best be achieved via admission to a SECU with a rehabilitative focus with gradual discharge to a mobile support team as suggested by Dr Cidoni.
In the future I would recommend that she will require long term psychiatric follow up given her repeated history of severe episodes of psychosis which have been associated with violent behaviour. Her history indicates that the post-partum period is a time of particular risk along with periods when she is non-compliant with medication or disengages with treatment.
I would also recommend longitudinal psychological work to address both her insight into her illness, its link to potential future violence and support her through the evolving grief that will likely arise in the context of her developing increased appreciation of the tragic set of events that have occurred.[10]
[10]Report of Dr Fiona Toal dated 5 May 2018 [22]–[30].
I had both of those reports forwarded to the parties seeking further submissions. I received further submissions from Mr Marsh dated 8 June 2018 and Mr Grant dated 27 July 2018. Mr March continues to argue for a CCO. Mr Grant accepts, in general, the appropriateness of a CCO, but foresees some practical difficulties relating to compliance with the initial reporting condition.
On 30 July 2018, I received a report from your current treating psychiatrist at Thomas Embling Hospital, Dr Jaydip Sarkar, Consultant Psychiatrist. Dr Sarkar gave evidence in court today that your present progress is satisfactory. He confirmed that, if I were to release you on a CCO, Forensicare would continue to treat you at Thomas Embling Hospital under an Inpatient Temporary Treatment Order under the Mental Health Act 2014 until a bed becomes available at an appropriate mental health service. At that point, Forensicare will facilitate your inpatient transfer to the service, with your treating team at Thomas Embling Hospital providing a comprehensive handover of your mental condition and treatment regime to the team at the hospital, which will include a detailed risk management plan.
When you are deemed suitable for discharge by the authorised psychiatrist from inpatient treatment, your reintegration in to the community will be supervised and co-ordinated by Community Corrections under the CCO.
My associate had contacted both Thomas Embling Hospital and the relevant Community Correctional Service and had been informed that the mandatory reporting condition under the CCO can be met by way of an audio-visual link, but I was informed this morning that, if a CCO is ordered, your reporting can be done in person.
I then had to consider whether or not I would impose a term of imprisonment on you in addition to a CCO. Such a course would be largely artificial, since any term of imprisonment that I would impose would be absorbed by the period of pre-sentence detention that you have spent on remand, largely at Thomas Embling Hospital. The time you have spent at Thomas Embling Hospital has been important to your treatment and preparation for release back into the community and I have taken it into account in determining the appropriate sentence. I do not believe that the imposition of a term of imprisonment is necessary in your case.
My decision to impose a CCO in this case is predicated upon the following changes in your circumstances:
(a) that you have responded positively to your medication;
(b) that you are less resistant to taking your medication;
(c) that you appear to have developed some insight into your condition and this offending;
(d) that your husband is more aware of the need to act urgently if your condition should deteriorate;
(e) that you will not be released from Thomas Embling Hospital until a risk management plan has been developed in consultation with an appropriate mental health service. That is it anticipated that you will only be released into an inpatient mental health service;
(f) that in the community, your care will be supervised by Forensicare Serious Offender Consultation Service; and
(g) that because of your history with mental health services and because of this offending, any deterioration in your condition and associated risks would be more readily identifiable.
In the circumstances, I have decided that it is appropriate that you be released on a CCO for a period of 30 months. In addition to the standard conditions that apply to all CCOs, the additional conditions that apply to this Order, commencing from Condition 8, are:
8) You must be under the supervision of a Community Corrections Officer during the period of this Order;
9) You must undergo mental health assessment and treatment as directed by the authorised psychiatrist at the Victorian Institute of Forensic Mental Health, until you are discharged from the Thomas Embling Hospital;
10) Upon your discharge from the Thomas Embling Hospital pursuant to Condition 9, you must undergo mental health assessment and treatment as directed by the authorised psychiatrist at your designated mental health service;
11) Subject to Condition 10, and subject to a referral by Community Corrections and acceptance of that referral by the Victorian Institute of Forensic Mental Health, you must undergo mental health treatment as directed by the Forensicare Serious Offender Consultation Service;
12) Subject to Conditions 9, 10 and 11 you must undergo mental health assessment and treatment as directed by the Secretary (or delegate);
13) You must appear before this Court for a review of your compliance with this Order at 9.30 am on 31 January 2019 and any other date that this Court appoints during the course of this Order; and
14) A report be provided by the Secretary (or delegate) in the course of each review under Condition 13.
I have set out under ‘Other Matters’ that, as at the date of this CCO, your three children are the subject of Interim Accommodation Orders made by the Family Division of the Children's Court, which contain certain conditions with which you are required to comply.
I declare pursuant to s 6AAA of the Sentence Act 1991 that but for your plea of guilty, the Court would have imposed a sentence of imprisonment of three years and six months with a minimum non-parole period of two years. I direct that this declaration and its details be entered into the records of the Court.
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