Director of Public Prosecutions v Yuot
[2025] VSC 97
•7 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0292
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| EMMA YUOT | Accused |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 20, 22 March and 7 June 2023 |
DATE OF RULING: | 7 June 2023 |
DATE OF REASONS: | 12 March 2025 |
CASE MAY BE CITED AS: | DPP v Yuot |
MEDIUM NEUTRAL CITATION: | [2025] VSC 97 |
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CRIMINAL LAW – Special Hearing – Murder – Finding that the accused committed the offence charged – Accused declared liable to supervision - Report under s 41 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 recommended placement on custodial supervision order (‘CSO’) at Thomas Embling Hospital – Section 47 certificate confirmed bed available – Parties agreed CSO appropriate - Custodial supervision order made under s 26 of the Act – Nominal term of 25 years – Matter to be brought back for review after 7 June 2026 – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 17, 26, 27, 28, 39, 40, 41, 42, 47.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R Harper | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr T Marsh | Bowler & Co |
HIS HONOUR:
Introduction
Emma Yuot was brought before the Supreme Court on a single charge of murder. On 14 February 2023, the Honourable Justice Incerti found Ms Yuot unfit to stand trial under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’), and determined that she was unlikely to become fit to stand trial within 12 months of that finding.[1] The matter proceeded to a special hearing before me. Following the jury’s finding, on 22 March 2023, that Ms Yuot committed the offence charged, at a disposition hearing on 7 June 2023, I ordered that Ms Yuot be committed to a custodial supervision order (‘CSO’) under the supervision of the Victorian Institute of Forensic Mental Health (‘Forensicare’). The order runs from 21 January 2021 for a nominal term of 25 years, and is set for review before the Court on a date after 7 June 2026. What follows are my reasons for imposing the CSO.
[1]See R v Yuot [2023] VSC 47.
Background
At the time of the murder, Ms Yuot was living with her husband, their two sons (aged two and four at the time) and her mother-in-law, the victim. Tensions had been growing between Ms Yuot and her mother-in-law throughout 2020 to early 2021, culminating in the victim asking Ms Yuot and her son to leave her home. Shortly after being asked to move out, on the morning of 21 January 2021, Ms Yuot took a large knife from the kitchen, entered the victim’s bedroom, and stabbed her in the left side of her chest and above her left knee. Ms Yuot then left the scene with her two children.
Approximately one hour later, the victim was discovered by her neighbour, conscious. She alerted the neighbour to her injuries and an ambulance was called. While being transported to the Royal Melbourne Hospital, the victim was asked by an attending paramedic if she knew who stabbed her and she replied ‘Emma’. She died in hospital eight days later, from complications of a single stab wound to the chest.[2]
[2]Transcript of Proceedings DPP v Yuot – Special Hearing (Supreme Court of Victoria, Tinney J, 20 March 2023) 51.16-21, 52.11-15 and 54.2-3 (‘Special Hearing Transcript’).
Ms Yuot subsequently made admissions to stabbing the victim in the leg, both in a police interview and in recorded phone conversations with her husband from custody.
At the special hearing, the defence did not challenge the prosecution case and did not raise the defence of mental impairment.[3] The jury returned a finding that Ms Yuot committed the offence, per s 17(1)(c) of the Act.
[3]Special Hearing Transcript (n 2) (Mr T Marsh) 98-99.
Following the jury finding, I declared Ms Yuot liable to supervision under Part 5 of the Act, and ordered both a report under s 41(1) and a certificate under s 47 of the Act. I also remanded her in custody to a date to be fixed. [4]
[4] The Act s 19.
The law
Under Part 5, Section 26 of the Act relevantly provides:
(1)If a court declares that a person is liable to supervision under this Part, the court must make a supervision order in respect of the person.
(2) A supervision order may—
(a) commit the person to custody (custodial supervision order)—
(i) subject to subsection (3), in an appropriate place; or
(ii) subject to subsection (4), in a prison; or
(b)release the person on conditions decided by the court and specified in the order (non‑custodial supervision order).
(3) The court must not make a supervision order—
(a) committing a person to custody in an appropriate place; or
(b)providing for a person to receive services in an appropriate place or from a disability service provider or the Secretary to the Department of Health and Human Services—
unless it has received a certificate under section 47 stating that the facilities or services necessary for the order are available.
(4)The court must not make a supervision order committing a person to custody in a prison unless it is satisfied that there is no practicable alternative in the circumstances.
…
Regarding the decision to make a supervision order, s 39 relevantly provides:
Principles to be applied:
(1) In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, the court must apply the principle that restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Section 40(1) further provides:
Matters to which the court is to have regard
(1) In deciding whether or not to make, vary or revoke an order under Part 3, 4, 5 or 5A in relation to a person, to grant extended leave to a person or to revoke a grant of extended leave, the court must have regard to—
(a) the nature of the person's mental impairment or other condition or disability; and
(b) the relationship between the impairment, condition or disability and the offending conduct; and
(c)whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and
(d) the need to protect people from such danger; and
(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.
If the court determines that a person is liable to supervision under Part 5, s 41 relevantly provides that:
(1) …the appropriate person must arrange to have prepared and filed with the court that made the declaration a report, prepared by a registered medical practitioner or registered psychologist, on the mental condition of the person containing—
(a) a diagnosis and prognosis of the condition or an outline of the person's behavioural problems; and
(b) the person's response to treatment, therapy or counselling (if any); and
(c) a suggested treatment or other plan for managing the condition.
Section 42 relevantly provides:
(1) For the purpose of -
(a) assisting the counselling and treatment processes for all people affected by an offence; and
(b) assisting the court in determining any conditions it may impose on an order made in respect of a person under this Act or in determining whether or not to grant a person extended leave—
a family member of the person or a victim of the offence may make a report to the court.
Section 47 relevantly provides:
(1) A court must request the Secretary to the Department of Health and Human Services to provide the court with a certificate of available services if the court is considering –
(a) imposing a supervision order on a person –
(i) committing a person to custody in a designated mental health service or residential treatment facility
….
(2) A certificate of available services must—
(a) state whether or not there are facilities or services available for the custody, care or treatment of the person (as the case requires); and
(b) if there are, give an outline of those facilities or services.
Section 28(1) provides that a court must set a nominal term of 25 years for a supervision order, where a person is found to have committed the offence of murder at a special hearing.
Section 28(4) further provides:
(4)In setting a nominal term for a supervision order, the court must declare the day from which the nominal term runs.
Section 27 provides:
(1) A supervision order is for an indefinite term.
(2) When making a supervision order, the court may direct that the matter be brought back to the court for review at the end of the period specified by the court.
Evidence
A s 41 report by Dr Kate Roberts, Consultant Forensic Psychiatrist, was tendered prior to the disposition hearing.[5] Dr Roberts summarised Ms Yuot’s personal and family history in brief, noting that she was born in Sudan, had emigrated to Australia in 2015 via refugee camps, that she was a victim of domestic violence in a previous relationship,[6] and that she has two children living in Sudan, and two living in Australia. The report noted that Ms Yuot has no contact with her ex-husband (the son of the victim) or the two children they share.
[5] Dated 16 May 2023.
[6]Psychiatric Court Report of Dr Kate Roberts, 16 May 2023 at [18] (‘Dr Roberts Report’), noted that Dr Rakov, Consultant Psychiatrist, in her report dated 27 May 2022, opined that Ms Yuot likely had a diagnosis of Post Traumatic Stress Disorder, stemming from this history of domestic violence.
Dr Roberts opined that Ms Yuot has an established diagnosis of recurrent psychotic disorders, most consistent with schizophrenia, although her condition has been described as atypical schizophrenia by some treating professionals in the past. She noted that Ms Yuot had had several admissions to psychiatric units in the past, and classified her psychotic episodes as typically brief, and able to be quickly treated with relatively modest doses of antipsychotic medication. She outlined the circumstances of Ms Yuot’s two admissions to the Marrmak Unit (Psychiatric Unit) since being in custody at Dame Phyllis Frost Centre.
At the time of her assessment, Dr Roberts opined that Ms Yuot’s current mental state was stable and free of psychotic symptoms; and consistently, that there was no evidence of elevated risk to herself or others.
Dr Roberts’ opinion on Ms Yuot’s risk assessment of future violence, based on assessment using the HCR-20,[7] was as follows:
The overall current assessment is consistent with a person with a significant future risk history should she be released into the community without further exploration into her attitudes towards the offending and to her coping strategies, future personal and psychological supports and future living and social circumstances. Her clinical state requires further input to improve insight. Currently risk management strategies are underdeveloped and will require concerted multidisciplinary team collaboration with Ms Yuot. [8]
[7]Historical Clinical and Risk Management 20.
[8] Dr Roberts Report (n 6) [30].
She noted that Ms Yuot showed some insight into her offending:
She thought she was unwell at the time of the offence and had acted in a disproportionate way. She understands that medication has assisted in her recovery, and she expressed a desire to continue taking it to avoid becoming unwell in the future. [9]
[9] Dr Roberts Report (n 6) [39].
Ultimately, Dr Roberts recommended that Ms Yuot be admitted to Thomas Embling Hospital (‘TEH’) on a CSO.
The Victorian Institute of Forensic Mental Health (‘Forensicare’) also provided a certificate of available services under s 47 of the Act, confirming that a bed was available to Ms Yuot at TEH.
At the hearing, the Crown indicated that a report under s 42 from a family member of the victim would be provided shortly after the hearing. Upon querying the Office of Public Prosecutions (OPP), the Court was notified on 24 February 2025 that no s 42 report had been received.
Submissions
Ms Harper,[10] for the Crown, submitted that on the basis of the available material, I should make a CSO under s 26, with a nominal term of 25 years.
[10] As she then was. Her Honour has since been appointed to the County Court.
Mr Marsh, who appeared for Ms Yuot, submitted that the nominal term of the CSO should run from the date Ms Yuot entered custody, being 21 January 2021.[11]
[11]Transcript of Proceedings DPP v Yuot – Disposition Hearing (Supreme Court of Victoria, Tinney J, 7 June 2023) 3 (‘Disposition Hearing Transcript’).
Both Counsel submitted that, while not required by the legislation, it would be appropriate for me to exercise the discretion under s 27(2) to set down a date for review of the order. Ms Harper proposed a review period of two years, [12] whereas Mr Marsh opined that a review within a period between two and five years would be appropriate,[13] as ‘a way of ensuring that the forensic mental health system remains responsive to and accountable to the courts who are the ultimate authority in relation to these orders’,[14] balanced against the nature of Ms Yuot’s condition.
[12] Ibid 3.
[13]Ibid 5.
[14]Disposition Hearing Transcript (n 11) 6.
Mr Marsh further submitted that I could make the CSO prior to the court’s receipt of the foreshadowed s 42 report, as consideration of reports under s 42 is not a pre-condition to the making of a CSO, whereas it is in circumstances where a court orders the release of a person unconditionally, or significantly reduces the degree of supervision to which they are subject. [15]
[15] The Act s42(2)(d).
Analysis
Having regard to the factors set out in s 40(1) and applying the principle of parsimony set out in s 39, as well as considering Dr Roberts’ report provided under s 41 and the certificate of available services under s 47, I determined that it was appropriate pursuant to s 26 of the Act that Ms Yuot be made subject to a custodial supervision order under the supervision of the Victorian Institute of Forensic Mental Health.
I agreed with the parties’ submissions that I should exercise my discretion under s 27(2) to set a review period, and determined that a review date after 7 June 2026 was appropriate.
The terms of Ms Yuot’s CSO are set out in my order of 7 June 2023.
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