IMO a major review of Joseph Brown
[2017] VSC 325
•14 June 2017
| IN THE SUPREME COURT OF VICTORIA | Not restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2011 04108
| IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) | |
| and | |
| IN THE MATTER of a major review of Joseph Brown (a pseudonym) |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 June 2017 |
DATE OF RULING: | 14 June 2017 |
CASE MAY BE CITED AS: | IMO a major review of Joseph Brown |
MEDIUM NEUTRAL CITATION: | [2017] VSC 325 (first revision dated 22 June 2017) |
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CRIMINAL LAW – Crimes mental impairment – Further major review of custodial supervision order – Intellectual disability and bipolar affective disorder – Whether safety of the reviewee or members of the public would be seriously endangered as a result of release – Custodial supervision order confirmed – Further review ordered in 5 years’ time – Crimes (Mental Impairment and Unfitness to be Tried) Act, ss 35, 39 and 40.
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APPEARANCES: | Counsel | Solicitors |
| For the Reviewee | Ms S Delaney | Victoria Legal Aid |
| For the Secretary to the Department of Health and Human Services | Ms M Wilson | Department of Health and Human Services |
| For the Attorney-General of Victoria | Ms M Chorn | Victorian Government Solicitor’s Office |
| For the Director of Public Prosecutions | Ms R Youssef | Office of Public Prosecutions |
HER HONOUR:
The reviewee is on a custodial supervision order (‘CSO’). His CSO is due for major review under s 35(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’).
The purpose of the review is to determine whether the reviewee can be released from the CSO. On a major review of a CSO, the court must vary the order to a non-custodial supervision order (‘NCSO’), unless it is satisfied that the safety of the person subject to the order, or members of the public, will be seriously endangered as a result of the release of the person on an NCSO. If the court is so satisfied, then it must confirm the order, or vary the place of custody.
Background
In 1987, the reviewee was alleged to have raped and killed a co-resident at the residential facility where they were both living. He had been diagnosed with marked retardation, cerebral palsy, and bipolar affective disorder.
In 1988, a jury found the reviewee unfit to plead. He was ordered to be kept at Pentridge Prison, at the Governor’s pleasure. Upon the enactment of the Act in 1997, he became the subject of a CSO. The CSO’s nominal term of 15 years expired on 7 December 2003.
The first major review of his CSO was conducted on 11 May 2012 by Curtain J. Her Honour concluded that it was appropriate to confirm the CSO. She ordered that a further major review be conducted in five years’ time.
That further major review came on for hearing before me on 9 June 2017. No party to the proceeding sought a variation of the CSO, or a grant of extended leave. The Attorney-General, and the Secretary to the Department of Health and Human Services (‘DHHS’), both submitted that the safety of the community required that the CSO be confirmed.
At the conclusion of the review hearing, I made an order confirming the CSO. These are my reasons for making that order.
Relevant statutory provisions
The review was conducted under s 35 of the Act, which relevantly provides as follows:
35 Major reviews
(1) The court that made a supervision order must undertake a major review of the order—
(a) at least 3 months before the end of the nominal term of the order; and
(b) thereafter at intervals not exceeding 5 years for the duration of the order.
(2) The purpose of a major review is to determine whether the person subject to the order is able to be released from it.
(3) On a major review, the court –
(a) if the supervision order is a custodial supervision order –
(i)must vary the order to a non-custodial supervision order, unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will be seriously endangered as a result of the release of the person on a non-custodial supervision order; or
(ii)if so satisfied, must confirm the order or vary the place of custody;
…
In conducting a major review, the court is not bound by evidentiary rules or practices, but may inform itself in relation to any matter in such manner as it thinks fit (s 38).
In considering the application of s 35 of the Act, I must have regard to the principles identified in s 39, and to the matters identified in s 40, of the Act. Section 39(1) relevantly provides that, in deciding whether to vary a CSO to an NCSO, or to grant extended leave, 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.
The Court of Appeal in NOM v Director of Public Prosecutions (Vic)[1] stated that s 39 requires the court to ‘balance the interest of the liberty of the detainee with protection of the community and in doing so assess risk factors which, in turn, depend upon value judgments.’[2]
[1]NOM v DPP [2012] VSCA 198 (“NOM”).
[2]NOM at [21].
Section 40(1) outlines a number of factors that must be taken into account:
(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.
In addition, s 40(2) provides that the court cannot vary a CSO to an NCSO unless it:
(a) has obtained and considered the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on—
(i) the person's mental condition; and
(ii) the possible effect of the proposed order on the person's behaviour; and
(ab) in the case of a person who is subject to a supervision order, has obtained and considered the report of a person having the supervision of the person subject to the order; and
(b) has considered the report submitted to the court under section 41(1) or (3) (as the case may be); and
(c) is satisfied that the person's family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and
(d) has considered any report of the family members or victims made under section 42; and
(da) … ; and
(e) has obtained and considered any other reports the court considers necessary.
The Director of Public Prosecutions filed an affidavit, setting out the measures taken to notify the persons required to be notified under s 38C of the Act. The primary victim is deceased, and had no known relatives. Notice was given to the reviewee’s two sisters; however, no reports were received in response to those notices.
The reviewee’s history
Details of the reviewee’s history were set out in the reasons of Curtain J dated 15 June 2012,[3] and in the annual reports that the DHHS have filed with the court since 2013.
[3][2012] VSC 253R.
The reviewee is a 59-year-old man who has an intellectual disability, as defined under the Disability Act 2006. He has also been diagnosed with cerebral palsy, which has mildly affected his gait and his motor skills. In addition, he has been diagnosed with bipolar affective disorder and numerous paraphilia.
His current status is that of forensic resident subject to a CSO, which requires him to reside in an approved residential facility. He has been a resident at his current accommodation since February 2000. From 1974 until then, he was a resident in DHHS training centres, except for the period of time he spent in Pentridge Prison.
For the purposes of this major review, reports were specifically prepared by Dr Carolyne Thompson, dated 30 April 2017, and Mr Gaetano Ravida, dated 25 May 2017. Dr Thompson and Mr Ravida also gave oral evidence.
Dr Thompson is a senior clinical practice adviser for the DHHS, and a registered psychologist. She is based within the Department’s Complex Clients Unit in the Client Outcomes & Service Improvement (‘COSI’) branch. The COSI branch supports service delivery to certain individuals with complex needs, including those with an intellectual disability. In Dr Thompson's role, she provides risk assessments and intervention when required, for individuals with an intellectual disability who come into contact with the criminal justice system. In this case, Dr Thompson's primary involvement has been conducting risk assessments in relation to the reviewee, for the purposes of reporting to the court under the Act.
Mr Ravida is a disability justice practitioner and advanced case manager at DHHS. He is also based within the COSI branch, which currently provides all case management services for residents subject to a supervision order at the residential facility at which the reviewee resides (‘the Facility’). The Facility provides supported accommodation to its residents, all of whom have various levels of disability. The site as a whole is not secure. However, a small section of the Facility provides highly structured long-term accommodation to individuals who are unable to live in the community due to their risk profiles. There are five beds in this part of the Facility, which is where the reviewee resides. That section is locked and staffed 24 hours per day.
The reviewee’s current care team consists of staff members from the Facility, Disability Forensic and Treatment Service (‘DFATS’) clinicians, and his case manager, Mr Ravida. The team holds monthly clinical meetings at the Facility, to discuss his program and monitoring requirements.
Mr Ravida is responsible for the implementation of service plans, and providing reports to the Forensic Leave Panel under the Act. Mr Ravida meets with the reviewee regularly to supervise his progress, and to ensure that his needs are adequately met.
In addition, the reviewee receives psychiatric treatment and monitoring through DFATS Community Forensic Dual Disability Services (‘CFDDS’). Through that service, he is reviewed on a three monthly basis, to monitor his psychotropic medications for bipolar affective disorder and various paraphilia. He is also required to attend yearly intensive clinical reviews with a psychiatrist at CFDDS.
The reviewee has had extensive psychotherapeutic treatment to assist him with managing intrusive and risky behaviours towards women, but with little success. A positive behaviour program was introduced in 1995, to assist him with implementing behaviour management strategies.
A risk assessment report, dated 29 June 2015, by Mr Martin Marcus of DFATS, provided an assessment with respect to the reviewee’s overall risk of sexual re-offending. In his report, Mr Marcus assessed the reviewee as at moderate to high risk of committing further offences, based on his historical and dynamic factors. The report made a number of recommendations aimed at managing his level of risk whilst improving his quality of life, such as: remaining at the Facility; engaging in supported community access; encouraging family support; attending Latrobe Lifeskills Program; and engaging with the CFDDS to monitor his medication and mental health.
A further risk assessment was conducted by Dr Thompson on 15 March 2017, with the assistance of Mr Gordon Jarrett, the reviewee’s key support worker at the Facility. The assessment examined the reviewee’s sexual behaviour over the past 12 months and any noticeable changes in the past two to three months.
Dr Thompson’s opinion was that there had been no decrease in risk from the previous risk assessment, and the reviewee’s risk profile remains moderate to high in terms of his risk of re-offending. She endorsed the recommendations of Mr Marcus in his earlier report, with an emphasis on the importance of predictability and structure for the reviewee in managing his risk. In particular, Dr Thompson said that it is important to have consistent, experienced and well-informed staff who are familiar with the unique indicators of his risky behaviours.
A matter that has arisen in the last 12 months concerns the reviewee’s medication regime. In October 2016, the reviewee was hospitalised after having seizures. In November 2016, Androcur (an anti-libidinal medication) was withdrawn from his treatment regime, due to concerns that three small lesions on his brain may have developed as a result of his use of that medication.
Since stopping using Androcur, the reviewee has exhibited an increase in sexualised behaviours. They have ranged from staring at women, to hiding behind corners and appearing fixated on women, and (on one occasion) coming out of a bathroom naked and requesting for a towel from a female staff member (despite having access to towels). He has also been urinating in the bathroom sink, cupboards and in other inappropriate places. This behaviour was noted by staff at the Facility to be consistent with his previous diagnosis of urophilia. The reviewee has also shown a decrease in his tolerance to frustration, through a short temper, bossiness, irritability and resistance to following instructions.
The reviewee’s relationship with his two sisters and their families is a major protective factor. He values their ongoing support, and their relationship dynamics are regarded as socially positive and rewarding.
Dr Thompson was of the view that the main protective factor for managing his risk is his participation in the Facility, which is a highly supervised and structured environment. In addition, the Facility is particularly mindful in ensuring that staff members who work with him are provided with adequate information, and that only experienced staff who can identify his unique indicators of offending behaviours are allowed to accompany him in the community. She warned that any transfer to a less restrictive facility, without the same level of supervision and monitoring, would be likely to lead to an increase in his risk profile.
In conclusion, Dr Thompson said that the reviewee’s clinical record indicates that he continues to rely on staff to provide ongoing assistance and intervention when out in the community. She further observed that an escalation in the sexualised behaviours following the cessation of Androcur suggests that his risk of re-offending has remained, despite the long-term treatment that has been provided to encourage positive behaviour change.
Given all those circumstances, Dr Thompson supported the confirmation of the CSO.
The reviewee’s case manager, Mr Ravida, supported Dr Thompson’s various observations and opinions.
He outlined the ongoing support the Facility provides to the reviewee, which includes implementing behaviour management strategies, skill development programs, maintaining and developing contacts with persons in his private and professional network, supervised access to the community and supported participation in recreational and social activities.
Mr Ravida noted that the reviewee has been granted permission by the Forensic Leave Panel to attend both community-based and on-site events for a prescribed number of hours per month. Since 1 February 2017, the reviewee has been granted up to 16 hours per month of unescorted on-ground leave at the Facility, which must be monitored by the Facility staff through ‘line of sight’. In addition, he has been granted up to 32 hours of escorted off-ground leave per month, for personal development and community participation purposes, and up to 10 hours per month for group recreational activities. The escorted off-ground leave is supported by experienced staff, who are familiar with the reviewee’s unique needs.
Mr Ravida also notes that he is in the process of facilitating an access request to the National Disability Insurance Scheme on the reviewee’s behalf. The purpose of the request is to explore and determine any further disability support needs and whether these needs can be met through the scheme.
Reasons for confirming the custodial supervision order
The reviewee has an intellectual disability, and he has also been diagnosed with cerebral palsy, bipolar affective disorder and various paraphilia. Previous reports have established a correlation between his intellectual disability and his offending conduct, and noted that the violence exhibited during the index offence was related to his intellectual disability. His diagnosis of bipolar affective disorder also means that he is likely to experience symptoms associated with a manic episode, such as sexual disinhibitions, and increased energy and drive.
In assessing whether the reviewee is likely to endanger himself or the community because of his mental impairment, it is important to consider his static risk factors such as his diagnosis and history of problematic behaviours. The reviewee has a significant history of intrusive and sexualised behaviours, despite having received extensive psychotherapeutic and psychiatric treatments over the years. Both Dr Thompson and Mr Ravida opine that his risk of sexual violence to others, particularly women, is most effectively managed through a highly structured and supervised environment, as is presently provided by the Facility.
Weighing against the static risk factors are the dynamic factors such as the reviewee’s positive relationship with his sisters. However, there has been no suggestion for him to move to a supported accommodation near his sisters. In any event, Dr Thompson warned that unless he were to move to an environment that mimics the Facility, his risk of violence would increase in a less restrictive environment.
Having regard to all the evidence available, including the reports of Dr Thompson, Mr Marcus and Mr Ravida, and to the matters identified in s 40 of the Act, I was satisfied that the safety of the reviewee and members of the public would be seriously endangered if he was released into the community on an NCSO.
Accordingly, I confirmed the reviewee’s current CSO, and directed that the there be a further major review in five years’ time.
The existing suppression order made by Curtain J on 11 May 2012, under s 75 of the Act, remains in force. That means that, until further order, there can be no publication of any matter which might directly or indirectly enable identification of the reviewee or the victim.
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