IMO an Application for grant of extended leave by PEL
[2009] VSC 650
•4 December 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9413 of 2009
NOTE: The name and address of the forensic patient and any information which may identify him have been suppressed from publication by Order of the Court.
IN THE MATTER of an application pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
- and –
IN THE MATTER of an application for a grant of extended leave by “PEL”
Applicant
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 December 2009 | |
DATE OF JUDGMENT: | 4 December 2009 | |
CASE MAY BE CITED AS: | IMO an Application for grant of extended leave by PEL | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 650 | |
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CRIMES MENTAL IMPAIRMENT - Application for extended leave – Relevant principles –Leave granted – Further review ordered in 12 months time – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 32, 39 and 40.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J. Garner | Victoria Legal Aid |
| For the Secretary of the Department of Human Services | Ms A. Ring | Department of Human Services |
| For the Director of Public Prosecutions | Ms J. Carpenter | Office of Public Prosecutions |
| For the Attorney-General | Ms C. Melis | Victorian Government Solicitor |
HIS HONOUR:
It is my intention to grant the application for the following reasons.
This is an application by PEL for the variation of a custodial supervision order or, in the alternative, for the grant of extended leave.
The history of the applicant is a protracted one. The history is usefully set out by Kellam J in his reasons for granting extended leave to the applicant on 8 December 2000.[1]
[1][2000] VSC 575R.
The applicant was deemed to be subject to a custodial supervision order under the Crimes (Mental Impairment & Unfitness to be Tried) Act 1997 (“the Act”) for a period of 25 years from 25 June 1990, when an order was made under s 420 of the Crimes Act 1958 by Beach J that he be kept in strict custody until the Governor’s pleasure became known. The Governor made his pleasure known on 14 March 1991 when he ordered that the applicant be kept in strict custody in such places the Director-General, Office of Corrections may from time to time determine. It follows that the present custodial supervision order expires on 25 June 2015.
The most important features of the applicant’s history are that he was first granted extended leave in December 1998. In December 1999, the applicant applied for variation of a custodial order which was refused, but extended leave was granted until December 2000. Further applications were made for the variation or extension of the supervision order which were listed to be heard on 9 November 2000, the applicant’s leave however, was suspended on 6 October 2000 and application was made to this Court for revocation of the order granting extended leave.
On 8 December 2000, the application for extended leave proceeded. The applications for revocation and variation were withdrawn. The application for extended leave was granted on conditions. On 15 October 2001, the extended leave which had been suspended on 4 September 2001 was revoked.
The applicant next made application for extended leave by notice dated 2 September 2008. On 5 December 2008 that application was granted to operate from 5 December 2008. The applicant has been on leave since that date.
The primary application is pursuant to ss 31 and 32 of the Act for the variation of a custodial supervision order operating from 25 June 1990. Section 31 of the Act allows for the making of an application for variation of a supervision order. Section 32 of the Act deals with the variation of custodial supervision orders. For present purposes, the important provisions are contained s 32(2) and (3) which will be set out in my reasons.
The condition precedent imposed by s 32(3)(a) has been fulfilled. The applicant has completed all but a few hours of this year and he did complete 12 months leave in 1998 and 1999. That leaves the matters raised in s 32(3)(b) to be next addressed, and finally it will be necessary to address the issues pertaining to s 32(2); that is, the safety of the applicant and the community at large. The exercise is to be conducted in the context of s 39 of the Act and having regard to the matters set out in s 40 of the Act.
I notice that when the applicant was granted his most recent period of extended leave by Cummins J, to operate from 5 December 2008, it was necessary for the Court to have been satisfied with regard to the matters outlined in s 57(2) of the Act. That is, the Court may grant an application under s57(1) if satisfied on the evidence available that the safety of the forensic patient or forensic resident or members of the public will not be seriously endangered as a result of the forensic patient or forensic resident being allowed extended leave. Reference is made in the Act by note to ss 39 and 40.
No complaint is made that the applicant has failed to abide by the conditions imposed in relation to his extended leave, nor is complaint made here that there has been any breach of conditions in the intervening months.
Before hearing the application, I had read the following written material in support:
EXHIBIT 1 - Report of Professor Dolan.
EXHIBIT 2 - Report of Dianne Lee case manager, dated 11/10/09.
EXHIBIT 3 - Report of Dr Trillia dated 29/10/08.
EXHIBIT 4 - Report of Dr Andrew Carroll, dated 27/10/2008.
EXHIBIT 5 - Report of Shelly Smith, case manager, dated 28/10/2008.
EXHIBIT 6 - Affidavit of the applicant, dated 4/12/2008.
EXHIBIT 7 - Affidavit of Greig Douglas, dated 3/12/2008.
EXHIBIT 8 - Letter of B.A. Gardens, dated 3/12/2008.
EXHIBIT 9 - Letter from Banyule Community Health, dated 25/11/2008.
EXHIBIT 10 - Affidavit of the applicant, dated 30/11/2009.
EXHIBIT 11 - Affidavit of Meredith Anne Douglas, dated 29/11/2009.
EXHIBIT 12 - Affidavit of Greig Douglas, dated 29/11/2009.
EXHIBIT 13 - Letter from the North West Employment Group, dated 17/11/2009.
EXHIBIT 14 - Letter from the Banyule Health, dated 2/12/2009.
I will return later to the other three exhibits.
Professor Dolan and Ms Lee both gave evidence before me and the reports from them set out above were tendered as Exhibits 1 and 2 respectively. The affidavits of Mr L, Mrs Douglas and Mr Douglas, were tendered and became Exhibits 11 and 12 respectively.
It is perhaps an understatement to say that the applicant had done badly in the system and, although he had had various leaves up until 2001, he has been a long term patient in Thomas Embling Hospital since 4 September 2001. It is true to say that he lacked insight to both the circumstances of the incident offence and to his own mental impairment.
Almost from the time of his entering into the system he had trouble with some abuse of alcohol but largely substance abuse, mainly amphetamines. He is also engaged in a series of destructive relationships, some of them with fellow patients. The women involved in those relationships commonly had substance abuse problems.
In 2007, the applicant’s position began to improve and he was transferred to the Jardine Unit at Thomas Embling. In December 2007, he was placed on Aripiprazole and he remains on that medication which he manages personally.
The question to be determined is whether or not, pursuant to s 32(2), the Court is satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order.
Consideration must be given to the risks which exist, having regard to the history of the applicant, the incident offending and the plans for his management in the future. It is fair to say that the position of the applicant has changed dramatically since 2006. At the hearing before Cummins J on 5 December 2008, the reports referred to above from Dr Triglia and Dr Carroll were tendered and they both gave evidence.
Dr Carroll has known the applicant since October 2000, at which time he was the applicant’s treating psychiatrist in the community, which continued until the applicant was admitted to Thomas Embling in September 2001. He had also seen the applicant nine times in 2008. He reported on a number of matters but, in particular, on risk assessment, where he said:
“In making its determination, the court will be concerned with [PEL]’s potential for risks of endangerment to himself or others in the event of him being granted Extended Leave. In order to provide a final opinion with respect to these issues, this report will consider both static (historical) and dynamic (changeable) risk factors, for harm to self and others.”
He then deals with the static risk factors and dynamic risk factors. He made proposals for a community management plan but his final opinion was in the following terms:
“[PEL] is a 42 year old gentleman with paranoid schizophrenia and chronic myeloid leukemia, both of which are in remission due to pharmacological treatment. Since the index offence in 1989, [PEL] has had a complicated trajectory through rehabilitation at least in part due to difficulties in complying with supervisory conditions placed upon him. He also has a significant history of substance misuse, most notably amphetamines.
Over the past year or so, his presentation has significantly improved, apparently secondary to a number of changes, perhaps most notably commencement on an antipsychotic which is free from the troubling side effects which previous impaired him. He now presents as insightful and is making excellent use of his time out in the community. He is understandably keen to be discharged on extended leave and is expressing a full commitment to co-operation and transparency with his community treating team should this happen.
In terms of risk assessment, there is nothing in his history to suggest he is at significant risk of harm to himself. In terms of risk of violence to others, he has a moderate loading of historical risk factors for this. This highlights the need to maintain vigilance with respect to his dynamic changeable risk factors for violence. The most notable of these in his case are: active psychotic symptoms; substance misuse (particularly amphetamine or cannabis); exposure to destabilisers such as illicit substances, anti-social peers or dysfunctional relationships; and non-compliance with treatment and supervision. At the present time, all of his dynamic risk factors appear to be well managed and accordingly I would assess his current risk of harm to others as being low. Moreover, I would anticipate that his risk of harm to others will continue to be low even if the Court is minded to grant him Extended Leave.”
Dr Triglia also had experience treating the applicant at various times. Dr Triglia too had access to a number of other people responsible for the management of PEL at various times, in addition to a large number of reports previously submitted to the Court. It was clear at the time the matters that I referred to, from 1998 through to 2001, that a large number of reports had been prepared and submitted to the Court. There were also later reports that Dr Triglia was able to access.
The first matter of note in Dr Triglia’s report addressed the leave the applicant had been granted by the forensic leave panel when he was at Thomas Embling Hospital. She said this:
“He was again granted unlimited unescorted leave in April 2007 and overnight leave, one night per week, in June 2007. This was increased to two and in December 2007 to three nights overnight leave per week. He has therefore been accessing the maximum allowable leave from the hospital since December 2007. There have been no further breaches of leave conditions. He has complied with regular urine drug and breathalyser screenings including some conducted unannounced at his residence, and there have been no positive results since September 2006. There have been no concerns about any deviations from leave destinations.”
Under the heading “Risk Assessment”, she said this:
“The main identified area of risk is harm to others and this is currently considered to be low. In terms of risk of harm to himself, the only known episodes of attempted suicide occurred in the context of active psychotic symptoms after the offence. The risk of harm to himself will therefore not be considered further.”
Dr Triglia then went on, in “Summary and Opinion”, to say this:
“[PEL] is a 42-year-old single part time horticulturist on a custodial supervision order. He has a psychiatric diagnosis of paranoid schizophrenia in full remission and polysubstance abuse in remission. His current admission commenced in September 2001 and was complicated in the first several years by repeated substance use, breach of leave conditions, negative attitudes to and poor engagement in treatment. With hindsight, it is likely that many of these difficulties arose as a consequence of residual psychotic symptoms, both positive and negative. Since being able to achieve much better symptom control on modest doses of antipsychotic treatment, he has progressed through a rehabilitation program allowing him to reintegrate into the community. He has been accessing the maximum allowable leave from the hospital since December 2007. There have been no incidents of violence during the admission and there has been no substance use or breaches of any leave conditions since September 2006.
[PEL] has shown improvements in a number of domains. His mental illness has stabilised and he has dealt with the demands of life threatening illness and a rehabilitation program. He has made significant gains in insight, particularly his understanding of the need for ongoing treatment. He has maintained abstinence from alcohol and all illicit substances since September 2006. He has found stable and supportive employment which he enjoys and provides him with self esteem and meaning. Important dynamic risk variables have been addressed and have improved.
It is my view [PEL] has progressed as far as is possible within the hospital setting. I believe it’s likely that if he were discharged, he would comply with the proposed treatment and supervision plans outlined by Dr Carroll. I understand this would consist of weekly contacts, at least initially, with Dr Carroll or Ms Smith and random urine drug screening. I believe that this would be adequate to detect any changes in [PEL]'s mental state if it were to occur. It is my opinion that he would therefore pose a low risk to members of the community if he were to be discharged from hospital at this time.”
A year has passed. PEL has satisfactorily been on extended leave during that period. In that context, Professor Dolan reported, under the heading “Progress in the community in the last 12 months”:
“He lives alone at XXXX but regularly visits his mother and family members with whom he now has a good relationship. He is not in an intimate relationship. He works part time at Brunswick Employment Agency (BEA) following his completion of his Certificate III in horticulture. He was offered permanent part time work as a crew supervisor and has recently been promoted to a more responsible position in recognition of his contribution to this venture. He is now employed 4 to 5 days a week. He finds the work enjoyable and copes well with the responsibility he is given. His self-esteem has improved considerably.
He has a reasonable social network and attends social events as part of his work but has also been able to maintain stable friendships with several ex patients of Thomas Embling Hospital and sees them regularly. His relationship with his family, in particular mother and brother has significantly improved.
He has been attending all appointments with staff at the Community Forensic Mental Health Service regularly (at least monthly). His mental state has remained stable for the last 12 months and he's well managed on his current medication. Insight is good.
Since discharge he has attended drug and alcohol counselling at the Banyule Community Centre. He continues to receive support and is well engaged with his counsellor, Ms Maeve O'Driscoll whom he has been seeing since 2006. As far as I am aware, his urine and drug screens and his hair analysis confirm that he has remained abstained from illicit drugs.”
She then, later in the report, set out the proposed community management plan:
“If [PEL] is converted to an NCSO status, his case management will be transferred over to AMHS (North Eastern Area Mental Health Service).
He would continue to meet with a Forensic psychiatrist on a 3 monthly basis as part of our NCSO programme and regular reports on his progress would be provided to court as part of the conditions of his order.
1. One, his treating psychiatrist at North East Area Mental Health Service will have primary oversight of his psychiatric treatment, including the prescription of his antipsychotic medication and the monitoring for illicit substance abuse.
2. His case management will be transferred from the Forensicare Case Management Team to AMHAS Team who will review him on a monthly basis and provided written reports to Forensicare that inform quarterly reports provided to the court.
3. The most notable practical change as a result of the change in status to NCSO would be that in the event of a serious relapse, he would be certified under the Mental Health Act and treated in his local AMHS hospital which would be at Austin Health Acute Psychiatric Unit, rather than having his suspended leave suspended and he be returned to Thomas Embling Hospital.
4. His crises plan will be revised to reflect the latter and the change in case management and oversight. His area mental health service has had a number of patients on NCSOs in their service, and this service like others in the Melbourne area, receive education from Forensicare's NCSO Coordination Program on the legal and practical issues relating to such patients.
In the event that [PEL] is granted an NCSO, Forensicare and North East Area Mental Health Service will draw up a formal memorandum of understanding to articulate the various roles.”
Finally in her report, Professor Dolan, under the heading, “Risk Management” said this:
“In terms of future risk variables, his plans are realistic. He shows good insight into the need for ongoing medication and is fully compliant with all aspects of his treatment and monitoring. He has no side effects of his current medication, is happy to continue taking it and the physical health benefits he has experienced since the change to Aripiprazole have served to reinforce compliance. He now has very realistic views about the need for long term psychiatric medication and treats his mental health problems in a similar fashion to that of his physical illness. There is a strikingly positive change in his attitude to his rehabilitation compared to his presentation in early 2000, as he now shows that he is highly responsive to treatment, planning and suggestions. His short and long term plans are realistic and feasible. He intends to continue with all of his current activities, including drug and alcohol counselling and paid employment on a part time basis. He is much more aware of potential future stressors and the impact of exposure to destabilisers and he now enjoys family support for over 2 years. His mother has good insight into the nature of mental health problems and is likely to alert the treating team of any concerns about deterioration in his mental health in the future. He also enjoys the support of his friends, his siblings, and his community health team and employers at BEA.
His most notable future potential destabiliser would be another intimate relationship with an unsuitable substance abusing partner. This has not been an issue in the 12 months as he is wary of such trajectory. A relapse into substance abuse would be of significant concern, but the last 12 months have shown that he is committed to abstinence and ongoing counselling from drug and alcohol services.”
It is fair to say that in evidence before me, Professor Dolan and Ms Lee regarded the applicant as having done extremely well in his rehabilitation in recent years and ought to be regarded as somewhat, if not entirely, out of the ordinary. They both emphatically support this application.
The applicant has significantly engaged with and has the support of his mother, brother and adoptive father. He is in active employment. All those persons mentioned above, that is family members and employers, are ready to look out for any signs of relapse.
Counsel for the Attorney-General opposed variation and submitted in favour of a further period of extended leave. That submission was based upon the applicant’s poor record when on leave in the past. It was submitted that the minimum period of 12 months had elapsed for extended leave, as required under s 32. Counsel expressed concern that the involvement of the North East Area Mental Health Service had not been spelled out in sufficient detail and that no formal memorandum of understanding had yet been entered into.
Counsel further emphasised that the risk factors in relation to entering into an inappropriate relationship were still present, and further submitted that if moved to a non-custodial supervision order then the amount of professional care open to the applicant would be reduced and correspondingly, increase the risk factors.
I am not satisfied that any of those matters, although important, were individually or in combination capable of dissuading me from making an order. After hearing the evidence of both Professor Dolan and Ms Lee, I am satisfied that nearly all the matters raised do not preclude making the order. In particular, it became clear that the applicant had already engaged with the North East Area Medical Service and in particular with Martha Aliferis, who would be his case manager, at least for the time being.
Professor Dolan was confident that the issue of the memorandum of understanding could be adequately dealt with and that the removal of professional services to the applicant would be staged over a period of time. Professor Dolan was also prepared to place great trust in the applicant’s family to give him the help he needed, particularly if his condition began to deteriorate.
In one sense, one more year on extended leave is attractive. But separately, I do have the right to bring the applicant back before me under s 32(5). It should also be noted that in addition to such action as may be taken under the Mental Health Act, there are a number of provisions of the Act which would assist in dealing with the applicant if anything did go wrong.[2]
[2]See ss 29, 30, 30A, 31 and 33 of the Act.
I am satisfied that the appropriate steps have been taken to notify the family members and victims of the index offence of these proceedings as required by s 38C and s 38E, and the rights that they have to inform me of any relevant matters. The affidavit of Louise Wilkinson dated and filed 1 December 2009, and marked Exhibit 13, confirm these matters. Two reports have been received. One from EL. EL was the second husband of the applicant’s mother, he adopted PEL. His report is very positive and supportive.
A report has been received from [GL], the mother of the deceased. Her report is a reminder to us all of the abject grief suffered by those whose loved ones are killed in circumstances such as these. She does not appear to have any understanding of the influence of mental impairment in such a case. There is nothing in the report however, which would give rise to any risk factors in relation to this case. She does not live in this State.
I have given consideration to the matters set out in s 40(1) and received the relevant material referred to in s 40(2) and had regard to the principles set out in s 39. I am satisfied pursuant to s 32(2) that on the evidence available, the safety of the applicant and members of the public will not be seriously endangered as a result of the applicant’s release on a non-custodial supervision order.
I am satisfied that the custodial supervision order should be varied to a non-custodial supervision order, the nominal term of 25 years remains in place. I impose the following conditions:
(A) The applicant remain under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health, Forensicare or his or her delegate.
(B) That the applicant reside at XXXX or another address approved of by the authorised psychiatrist at Forensicare or his or her delegate.
(C) That the applicant comply with treatment and tests and attend appointments as directed by the authorised psychiatrist or his or her delegate, the treating psychiatrist or case manager.
(D) That the applicant undergoes random urine drug tests and random blood tests as directed by the authorised psychiatrist or his or her delegate.
(E) Either the applicant abstains from the use of illicit drugs and the abuse of alcohol.
(F) That the applicant not leave the State of Victoria without the written permission of the authorised psychiatrist or his or her delegate.
I direct that the matter be brought back to court for further review on 3 December 2010. I further direct that the reports tendered in evidence, the reports furnished pursuant to s 83, the transcript of this proceeding be placed in a sealed envelope and remain on the Court file to be opened only upon the order of a judge.
[PEL], what has happened is that I have granted the application for variation a custodial order to a non-custodial order. That is the next step. You have had leave at the hospital and extended leave now. The next step is to go out on the non-custodial order. Because - as I think you would be pretty aware, you did not do so well in the past, and we are talking about what is a pretty long time ago, I understand that - I think it is better if I just have another look at things in 12 months’ time. If things go along in the way that they have been going, that will not be an issue to anyone, then in 12 months’ time, I will consider whether it needs to be reviewed in the future.
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