IMO major review of Derek Ernest Percy
[2010] VSC 179
•31 March 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 1469 of 1998
IN THE MATTER of a Major Review of Derek Ernest Percy pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
IN THE MATTER of an application by Derek Ernest Percy for a variation of a Custodial Supervision Order
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 18 & 19 August 2009 (Cummins J) | |
DATE OF JUDGMENT: | 31 March 2010 | |
CASE MAY BE CITED AS: | IMO major review of Derek Ernest Percy | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 179 | |
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CRIMES MENTAL IMPAIRMENT MAJOR REVIEW – Reviewee detained in custody in a prison – Whether Court satisfied that release on a non-custodial supervision order would seriously endanger the safety of members of the public – Application to vary place of custody – Relevant principles – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 35, 39, 40, 75 – Charter of Human Rights and Responsibilities Act 2006 ss 7, 22.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P. Higham | Victoria Legal Aid |
| For the Secretary of the Department of Human Services | Mr P.J. Matthews | Department of Human Services |
| For the Director of Public Prosecutions | Ms J. Carpenter | Office of Public Prosecutions |
| For the Attorney-General | Ms K. Judd SC with | Victorian Government Solicitor |
| For the Secretary of the Department of Justice | Mr G. Gilbert | Corrections Victoria |
HIS HONOUR:
This is the third major review under s 35 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”) relating to Derek Ernest Percy (“the reviewee”). Also before the Court is a Notice of Application by the reviewee for variation of a custodial supervision order. By that Notice, the reviewee seeks to have his custodial supervision order varied to a non-custodial order.
The reviewee’s forensic history is long. On 10 April 1970, he was found not guilty of the murder of 12 year old Yvonne Tuohy on the grounds of insanity. He was ordered to be detained until the Governor’s pleasure became known. He remained so detained until the Act came into effect in 1998. He was then deemed to be the subject of a custodial supervision order for 25 years from 20 July 1969 (the date he first went into custody).
Major reviews were undertaken by Eames J (as he then was) in 1998 and Kellam J (as he then was) in 2004. This major review was commenced by Cummins J in August 2009. It remained uncompleted due to his Honour’s ill-health at the time of his retirement in November. These reasons should therefore be read in conjunction with the reasons of their Honours Justices Eames and Kellam.
The parties have agreed that I could decide the matter on the basis of the material which had been tendered before Cummins J and the transcript of evidence heard by him. Counsel for the reviewee agreed with that course and specifically took no objection to the fact that during my time as Director of Public Prosecutions, I was present at a presentation by Victoria Police relating to the allegation that the reviewee was involved in other murders. In the result, the existence of those allegations was bound up with the circumstances surrounding these applications.
The importance of the allegations is that they interfered substantially with the progress which the reviewee was able to make over the period since the last major review.
Kellam J, in his decision,[1] confirmed the custodial order and declined to order the transfer of the reviewee to Thomas Embling Hospital.[2] Towards the end of his reasons, Kellam J observed:[3]
[1] [2004] VSC 67.
[2]During the hearing, the applicant had, through his counsel, informed Kellam J that he no longer sought transfer to the hospital.
[3] Ibid paragraphs 91-98.
In my view, the appropriate course is for Corrections Victoria to endeavour to engage with the reviewee in a sex offender program of the type they have agreed before me to provide to him. This is a program which will be provided in prison.
It is far too early to assess whether any progress can be made in this regard. However, that said, I accept the evidence given before me that Corrections Victoria has an established regime for treatment of sex offenders and for persons suffering from psycho-sexual disturbances, although perhaps not as extreme or entrenched as that suffered by the reviewee. I accept the evidence given before me that expertise in this regard has developed apace in recent years and that there have been recent changes which will enable long-term prisoners to participate in such a program and that a place will be found for him in such a program. I accept the evidence of Ms Owen that a custom made treatment regime can be designed for the reviewee and will be provided to him if he proves to be amenable to treatment.
There has been some assessment of him already in the prison. To a limited degree, the reviewee has engaged with a therapist, Margaret Lancaster. Thus, the evidence before me is that resources for providing appropriate therapy are available in the prison system.
The consequence of the program being provided in prison are that the circumstances in which the reviewee presently lives and engages in his hobbies and, indeed, his employment, will continue without disruption to his life.
Certainly I accept the evidence given before me by Professor Mullen and by Professor Ogloff that the Thomas Embling Hospital has the capacity to provide a sophisticated sex offender program on an individual basis. I accept that there are good reasons as a matter of principle why a person who has been found not guilty of the serious crime of murder on the grounds of crimes mental impairment should not be detained in a prison.
However, taking into account the fact that Corrections Victoria will provide such a program, and notwithstanding the serious issue of principles the reviewee being now the only person in a Victorian prison who has been found not guilty of the crime of murder on the ground of insanity, the transfer to the forensic psychiatric facility at the Thomas Embling Hospital is, in my view, not appropriate or justified.
If the reviewee genuinely engages with those who are now prepared and, as I have said, have in effect undertaken to this court to provide, both psychiatric and psychological assistance to him in the nature of a sex offender program, it may well be that at some further review it will become a matter of serious consideration as to whether such a transfer from prison to a psychiatric hospital should take place. That is all in the future and depends greatly upon whether the reviewee is prepared to engage with his therapists and upon whether such engagement reveals any possibility that the serious danger which the reviewee now presents to the community can in any way be reduced.
However, I do not consider a transfer from prison to be appropriate at this time. In all of the circumstances I do not propose to direct that there be a further review in a lesser period than an interval not exceeding five years as required by s.35(1)(b) of the Act.
What followed for the reviewee after the making of that order can be set out in summary form.
Following the hearing in March 2004, the reviewee was transferred to Ararat. This was done to facilitate his engagement in “individual-based treatment” provided by the Department of Corrections as part of the Sex Offenders Programme. A treatment programme commenced in May 2004 and continued until January 2005 and involved 25 individual sessions with psychologist, Sara Noakes. The sessions were reasonably positive and the reviewee was making some progress when the treatment came to an end. At this time, the reviewee became the subject of ongoing police investigation into a series of unsolved murders which occurred more than 40 years ago. That has involved the reviewee’s appearance at two inquests, one in New South Wales and one in Victoria. Although it is not absolutely clear from the material, no final resolution has been reached in relation to those matters. The reviewee, at least, is of the belief that nothing will come of those matters and to some extent Acting Assistant Commissioner Money is of the same view.
As a result of a request by the Homicide Squad for an interview, the reviewee was transferred to Port Phillip in the early part of 2005. He was classified as a maximum security prisoner. His treatment programme ceased. He remained in Port Phillip until December 2005 when he was transferred to maximum security at Barwon. Earlier, in December 2005, he had been to Sydney for the coronial inquest referred to above.
In February 2006, the reviewee was visited by Dr Karen Owen, a psychologist, as the person in charge of the Sex Offenders Programme. Dr Owen had the oversight of the treatment of the reviewee by Ms Noakes. Dr Owen offered the reviewee an opportunity to engage in an alternative treatment programme. The reviewee declined on the basis that the other criminal matters had not been resolved, that his placement was uncertain and that Ms Noakes, with whom he had built a rapport, had left the Department.
He expressed, as at least some part of that rationale, that if he were to be convicted of some other offence he would be sentenced to life imprisonment and this treatment would be in vain.
It should be observed that the treatment anticipated by Kellam J had by then been interrupted for a complete year.
The reviewee was in maximum security either at Port Phillip or Barwon until he was personally reclassified with a medium security rating by Acting Assistant Commissioner Brendan Money, who is in charge of Offender Management Services for Corrections Victoria. As a result, he could be transferred to Ararat and there would be no bar to his transfer to Marngoneat Correctional Centre subject to the matters which I will address below.
Acting Assistant Commissioner Money was told by the reviewee that he did not want to move until this review had been resolved and that he did not wish to engage “in clinical intervention” until all of his court matters have been resolved. It is not surprising that a person who has been detained for more than 40 years places high importance on his ability to have a settled regime, his wariness that he might be transferred only to be re-transferred is also understandable.
The reviewee is currently detained at Port Phillip as a medium security prisoner. I will resolve this review, but I simply do not know whether all other outstanding matters have been resolved.
Although the application for variation of the custodial order was before me, it was not seriously contended that I could be satisfied pursuant to s 32(2) “on the evidence available that the safety of the person subject to the order or member of the public will not be seriously endangered as the result of the release of the prisoner on a non-custodial supervision order”. The part of the application which seeks to vary the place of custody, pursuant to s 32(1)(b), still falls to be considered.
In general, that application involves consideration of the same aspects relevant to a major review.
Section 35(3) relevantly provides that:
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.
It is contended on behalf of the reviewee that the evidence regarding his forensic profile is not entirely satisfactory. The evidence of Professors Mullen and Ogloff indicates that not very much is known clinically about the reviewee, notwithstanding that he has been in custody in excess of 40 years.
It is not submitted, however, that the available evidence does not support the conclusion “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”.
That issue is best summarised by Professor Ogloff in his report, where he said[4]:
[4] Report of Professor Ogloff dated 7 July 2009.
Risk of reoffending
While it is normally the case that systematic or statistical prediction schemes are more useful than unstructured clinical judgment for identifying the factors that have been found to empirically predict sexual offending, the fact is that in Mr Percy’s case, the prediction of risk is very difficult to assess with any degree of certainty. The reason being that, fortunately, events such as the acts committed by Mr Percy are incredibly rare and there has been no well constructed and systematic study of this population. The research that does exist is limited to case studies or small samples. Thus, the validity of any conventional violence or sexual offence risk instruments in this matter would be suspect. On those conventional measures (e.g. Statio-99, Risk for Sexual Violence Protocol), his level of risk would be characterised as being in the medium to high risk range.
Based on my clinical appraisal of Mr Percy’s risk for future harm, informed by empirical research on sexual violence and re-offending, it remains my opinion that Mr Percy presents a high risk of re-offending in a violence and sexual manner. As indicated in my 2003 report, and alluded to above in this report, the particular concern is the extent to which the intense, sadistic, paedophilic fantasies that he is known to have experienced for at least five years, beginning when he was 15 or 16 years old are still present. As noted above, given the intensity and specificity of the fantasies, and the fact that he acted on them in the index offence, it is highly unlikely that the fantasies abated as readily as Mr Percy would have us believe. Indeed, by his own early admission, the fantasies were entrenched by his use of them as a masturbatory aid and the intensity of the fantasies led to him abducting, torturing, and brutally killing his young victim.
Not only are sadistic sexual homicides particularly rare, but in my experience it is very unusual for an offender to be able to engage in the range of fantasies they have. In Mr Percy’s case, though, he persisted to abduct and carry out the acts against Yvonne Tuohy despite being challenged by the young boy, Shane Spiller. Many of the acts he committed against Miss Tuohy were things about which he had written in the writings seized at the time he was arrested.
Contemporary scholarship in risk assessment suggests that when faced with a high level of historical risk for violence, such as in Mr Percy’s case, one must be convinced by a significant, long-term change in behaviour that exists across situations, prior to determining that the risk for violence has actually reduced. Given that Mr Percy has never been in a situation where his past history of sexual violence is tested, it is impossible to say at this time that there has been any significant change in that level of risk. As such, it is my opinion, based on the information available, that should he be released from a secure setting, Mr Percy would present a high risk of re-offending in a sexually violent manner.
Summary and opinion
Despite the years that have elapsed since my last report, little has changed for Mr Percy from a risk assessment perspective. Although he has received some treatment, that treatment was of relatively brief duration (25 sessions) and ceased some four years ago. Mr Percy has not elected to return to treatment so long as the pending investigations are underway and while he is at Port Phillip Prison.
Mr Percy does not suffer from a major mental illness at the present time. He is of above average intelligence and he has no history of substance abuse or dependence. Mr Percy meets the criteria for a diagnosis of Paraphilia, namely Paedophilia and Sadism. Mr Percy also meets the criteria for a diagnosis of Schizoid Personality Disorder. Indeed, he is a loner and he is emotionally withdrawn and distant. He engaged in activities in isolation and does not engage with others. Indeed, even on the night before the offence, Mr Percy went to a drive-in theatre alone. Such behaviour is atypical for a young sailor on leave.
In his favour, Mr Percy’s level of interpersonal engagement continues to improve, though is still atypical for a man his age. This is likely due to the fact that as he ages, some of the more extreme characteristics of his schizoid personality are becoming tempered.
As is characteristic of Mr Percy, he remains guarded with me and other mental health professionals. While this may be understandable, particularly since he is yet again under investigation for other offences, he has not been able to fully engage in treatment and to move forward. He received some treatment in 2004/2005, though it was only a beginning. Mr Percy is now back in a maximum security institution which, to my knowledge, is standard protocol for a prisoner under investigation. Thus, rather than making any progress since the last review, arguably Mr Percy has taken a step backwards. While Mr Percy has stated that he is motivated for treatment, he has chosen not to recommence treatment for the time being. To this end, Mr Percy said to me that ‘if I was to get convicted of a murder, I would get a life sentence and there’d be no point for treatment’.
There is an ongoing question in Mr Percy’s case as to whether custody should be transferred from Corrections Victoria to the Victorian Institute of Forensic Mental Health. Indeed, Mr Percy is the sole person in Victoria who was found Not Guilty by Reason of Insanity (as it was then known) to be held in custody in prison. Mr Percy does not require the facilities of the Thomas Embling Hospital for any conventional psychiatric treatment for mental illness. It is the case, however, that the Victorian Institute of Forensic Mental Health has the resources and capacity to provide Mr Percy with the level of treatment required to address the matters pertaining to his sexual offending. Mr Percy remains willing to transfer to the Thomas Embling Hospital – ‘if it is permanent’.
As I noted in my 2003 report, even with treatment, there is no assurance that Mr Percy could be successfully treated to the point where he could safely be released from custody. In addition to his treatment needs, Mr Percy is a highly institutionalised man. He has been incarcerated continuously for 40 years. He has never lived independently and he has never had an intimate relationship. His life is devoid of virtually all features that would constitute a ‘normal life’. Perhaps the only detail of his life that shares any semblance of normalcy is that he has been regularly employed for most of his time in prison. Any long-term consideration of his release would need to include an integration plan.
Taken together, I make the following recommendations in light of the current proceedings:
1. Mr Percy continues to present a high level of risk for violent sexual re-offending. As such, he requires ongoing detention in a secure facility.
2. Mr Percy requires an ongoing period of treatment with an experienced psychologist or psychiatrist to address his sexual disorder and level of risk it represents. Until this can occur, over the long-term, it will be difficult to ascertain whether any changes have been made in Mr Percy’s situation. Ideally such treatment should occur in a therapeutic environment as that offered by the Thomas Embling Hospital or Marngoneat Prison.”
Based on that opinion, which was subsequently confirmed in evidence, I am affirmatively satisfied of the matters in s 35(3)(a)(i) and do not need to separately consider s 32(2). There was no challenge to the Professor’s conclusion regarding risk.
I am then faced with the application to vary the place of custody both under s 32(2) and pursuant to s 35(3(a)(ii).
It is in this context that I am asked to have regard to the Charter of Human Rights and Responsibilities Act 2006 (“the Charter”). I am satisfied that s 32 of the Charter applies and I will interpret the provisions of the Act in a way compatible with human rights.
In accordance with the Charter, the reviewee gave Notice to the Attorney-General and the Victorian Human Rights and Equal Opportunities Commission as questions which arise in the interpretation of the Act. The portions of the Notice relevant for present purposes are:
2. The questions of law are
(a) Whether the Applicant’s right to humane treatment when deprived of liberty (s.2) is and would continue to be breached by his present and any further incarceration at Port Phillip Prison under an extension of an existing Custodial Supervision Order made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
(b) Whether his present or any further incarceration at Port Phillip Prison under the extension of an existing Custodial Supervision Order is and would be a continuing unreasonable limitation on his rights (s.7) in that the Department of Human Services, the Office of Corrections and the Department of Justice have an obligation to provide the least restrictive means available to achieve the purpose of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
(c) Whether the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 should be interpreted in a way that in [sic] compatible with human rights.
3. The interpretations sought are
(a) That the applicant’s incarceration in a maximum security prison after a period of forty years at the Governor’s pleasure and subsequently under a Custodial Supervision Order breaches his right to humane treatment.
(b) That there is an evidentiary burden on the Department of Justice, the Office of Corrections and the Department of Human Service to show that there are no less restrictive means in providing for the protection of the community from any perceived risk from the applicant under a custodial Supervision Order than his present incarceration.
(c) That the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 should be interpreted consistently with its purposes, as compatible with human rights.
4. The applicant does not seek a declaration of inconsistency with the Charter of Human Rights and Responsibilities.
In support of the matters contended for in the Notice, written submissions were provided on behalf of the reviewee. Submissions were also provided on behalf of the Attorney-General.
The reviewee placed reliance upon s 7 of the Charter, which provides:
Human rights-what they are and when they may be limited
(1) This Part sets out the human rights that Parliament specifically seeks to protect and promote.
(2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including-
(a) the nature of the right; and
(b) the importance of the purpose of the limitation; and
(c) the nature and extent of the limitation; and
(d) the relationship between the limitation and its purpose; and
(e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.
(3) Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater extent than is provided for in this Charter) or destroy the human rights of any person.
The right sought to be protected and promoted in this case is that contained in s 22, which provides:
Humane treatment when deprived of liberty
(1) All persons deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
(2) An accused person who is detained or a person detained without charge must be segregated from persons who have been convicted of offences, except where reasonably necessary.
(3) An accused person who is detained or a person detained without charge must be treated in a way that is appropriate for a person who has not been convicted.
It was submitted on behalf of the reviewee that s 22 would be breached by his detention in maximum security, in this case his detention variously at Barwon and Port Phillip.
In particular, reliance is placed upon s 22(2) to be read in conjunction with s 7(2)(e). (The reviewee submitted that the terms of s 22(2) directly applied to his position). Although ss 22(2) and (3) may or may not apply in strict terms to a reviewee, it is argued on his behalf that by analogy they do apply.
Further, it was submitted that various policy considerations employed by the Office of Corrections, which “compelled” the Office to detain the reviewee in maximum security, were inconsistent with his human rights.
In the argument advanced on behalf of the Attorney-General, it was submitted that the provisions of the Act recognise the human rights of the reviewee and the Charter is therefore not otherwise engaged. That argument is based upon s 39 of the Act.
Section 39 of the Act provides:
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.
I am persuaded by that argument. I will act in accordance with s 39. In so doing I recognise the human rights of the reviewee and have regard to them.
On the other hand, even if it were accepted that the words of s 35(1)(b) of the Act did impugn the rights described in s 22 of the Charter, in carrying out the balancing exercise required by s 7 of the Charter the presence of s 39 in the Act leads me to the same conclusion.
I am also satisfied that the question of the holding of the reviewee in maximum security and the rules which govern it are, as was in submitted on behalf of the Attorney-General, “beyond the scope of the proceeding”. It is unnecessary for me to consider whether the reviewee may have separate rights in proceedings to which any of the relevant Departments may become a party.
The question then arises as to where it is that the reviewee should be detained consistent with s 39.
On the one hand, both Professors Mullen and Ogloff suggest that a programme could be developed at Thomas Embling Hospital for the reviewee so that he could have treatment. Although it will be observed that in his report Professor Ogloff also thought that “Marngoneet” was an alternative.
Marngoneet is a facility operated by the Department of Corrections. It was described by Acting Assistant Commissioner Money in his affidavit where he said:
27. In the future, should it be necessary for reasons of Mr Percy’s treatment, it would also be possible for Mr Percy to be transferred to the Marngoneet Correctional Centre, which is a modern, medium security facility which provides intensive treatment and offender management programs for prisoners. The decision to move Mr Percy to Marngoneet Correctional Centre can be made by me personally, given the special significance of this case, or through the review processes set out above involving the local review panels and the Sentence Management Unit.
28. The physical design of Marngoneet maximises normal living conditions and minimises institutionalisation, shapes social interaction, provides small living units and promotes significant levels of personal and social responsibility. The design includes industry, education, recreation and program facilities that provide service providers and prisoners with a setting that supports security, safety, learning and behavioural change. I am confident that, in the absence of any changes to Mr Percy’s risk profile, that both Mr Percy’s needs and risk factors could be adequately managed at the Marngoneet Correctional Centre.
Miss Penelope Golias, who was, at the time of making her affidavit in August 2009, the Acting Manager of the Sex Offenders Programme for Corrections Victoria, swore:
Treatment available to Mr Percy
16. The progress report prepared by Ms Noakes dated 24 June 2005, states that in her opinion, Mr Percy should be given the opportunity to continue to engage with offence specific treatment with the aim to work towards being open and ready for group treatment at a later stage. The progress report was written approximately five months after Mr Percy’s one on one treatment ceased and was written from Mr Percy Annual Review conducted by Sentence Management Unit in July 2005.
17. It is my understanding from my discussions with Acting Assistant Commissioner Money that Mr Percy has now indicated that he might consider engaging in some intervention or support once his outstanding legal matters are resolved and he is moved from Port Phillip Prison. Due to the time that has expired since his last engagement with treatment, it would be necessary for Sex offender Programs to meet with Mr Percy and conduct a detailed clinical risk/needs assessment of Mr Percy before I am able to comment on the most appropriate form of treatment for him.
18. However, should Mr Percy remain in the correctional system and be willing and suitable for the treatment program recommended by Ms Noakes, the Sex Offender Programs Prison Program, run from the Marngoneet Correctional Centre in Lara, Victoria can offer Mr Percy a number of different treatment intervention pathways, including individual ‘one on one’ treatment with a clinician and, when and if he is ready, group treatment. I understand that it is likely that Mr Percy will, at least initially, be reclassified to Ararat Prison after the conclusion of these legal proceedings and forthcoming coronial inquest. The Manager, State-wide Clinical Services, Dr Annie Thomas, has indicated that Corrections Victoria’s Clinical Services would be able to provide intervention to Mr Percy at Ararat Prison. The focus of the intervention would be treatment readiness to assist in reengaging Me Percy in offence specific treatment. If Mr Percy is willing to engage in offence specific treatment, an assessment by Sex Offender Programs will be conducted and advice regarding Mr Percy’s intervention plan will be provided to Acting Assistant Commissioner Money. I understand from my discussions with Acting Assistant Commissioner Money, that he will arrange Mr Percy’s transfer to Marngoneet Correctional Centre if and when it is appropriate.
It should be noted that in her progress report dated 24 June 2005, Ms Noakes indicated the reviewee had started to make some progress. In particular, she noted that although the reviewee had commenced treatment with an expectation that he would be able to prove he no longer posed a risk to the community, as treatment progressed he became more interested in the issues of how and why he came to offend. That at least was an indicator of a willingness to engage in the therapeutic process. As a result of the improved engagement, his sessions increased from fortnightly to weekly between September 2004 and February 2005.
That would lead me to conclude that there are possible therapeutic outcomes within the prison system. That is reinforced by Acting Assistant Commissioner Money’s knowledge from an association with the reviewee. It became clear from his evidence that Money was very conscious of the plight of the reviewee in the past and that he would do what he could to alleviate it.
Professors Mullen and Ogloff are particularly concerned that the reviewee is the only person in Victoria who is detained in a prison having been acquitted by a jury on the grounds of insanity. That is exacerbated by the fact that his detention has now been for 40 years. It follows that they are both of the view that a better solution should be found for the reviewee than detention in a prison. In particular, incarceration in a maximum security prison since such incarceration led to the suspension of treatment for the reviewee since early 2005.
I am also of the view that in part the views of Professors Mullen and Ogloff are formed by their knowledge that few treatment options were available in the past and of course by the immediate history of the reviewee.
Were it not for the evidence of Acting Assistant Commissioner Money, I would have regarded the prospects of the reviewee in the prison system as bleak.
I do not regard the fact that the reviewee is the only prisoner who has not been transferred to hospital as of itself justifying transfer. It is simply one of the considerations in a very difficult case. That argument existed at the time of the major reviews in 1998 and 2004, but did not carry the day.
It seems to me that in particular, Professor Mullen was concerned that the alternative was maximum security in a prison because that is what has happened to the reviewee in the more recent past. That is no longer the position.
As I have already outlined, although the attitude of the reviewee is understandable, attempts were made in 2006 to recommence his treatment which he refused in the circumstances which I have set out. It also appears that the reviewee could have returned to Ararat in September 2009 when he was re-classified but he declined.
Without going so far as saying that the reviewee is in part the cause of his difficulties, it does demonstrate how complicated the process of the review is.
In his report, Professor Ogloff said that the reviewee did not want to go to Thomas Embling Hospital unless the transfer was to be permanent. In his evidence, however, it was put to Professor Ogloff that the reviewee could go to Thomas Embling Hospital on a temporary basis, i.e. for about six months, to see how he went. He agreed that it was possible that a transfer to Thomas Embling Hospital could take place, to be reviewed after a trial period of six months and that this is the option suggested by counsel on behalf of the reviewee. It is not clear what would happen if the reviewee “failed” the trial, except that it would be inevitable that he would be returned to prison. If he is, at some date in the future, charged with some serious criminal offence, his transfer back to prison would also be inevitable.
Professor Ogloff also recognises the possibility of the transfer of the reviewee to Marngoneet, but thought his possible treatment there would be confined to traditional sex offender treatment, which he would not regard as suitable for the reviewee. I do not take the joint recommendation of Money and Golias to be confined to a traditional sex offenders program.
As outlined above, s 35(3) of the Act requires me to vary the order to a non-custodial order or confirm the order or “vary the place of custody”.
As I have already pointed out, s 39 applies “In deciding whether to make, vary or revoke a supervision order” and applies to my task here pursuant to s 35. The Act also requires me to take into account the factors set out in s 40.
40 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 or 5 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.
(2)The court cannot order a person to be released unconditionally or otherwise release a person from custody under Part 3, 4 or 5, or significantly reduce the degree of supervision to which a person is subject, 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)in the case of an application for extended leave—has considered the leave plan filed under section 57A; and
(e)has obtained and considered any other reports the court considers necessary.
(3)Subsection (2)(c) does not apply if section 38C provides that notice is not to be given, or need not be given, to a family member or victim.
(4)The court cannot make a further grant of extended leave for a person who is on extended leave at the time of the application unless the court has obtained and considered—
(a)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 further grant on the person's behaviour; and
(b)the leave plan filed under section 57A.
It is not urged on me that in this case the factors described in s 40(1)(a) to (e) could be resolved in a way which was favourable to the reviewee, or in a way which for many years yet, could be resolved in favour of the reviewee.
It was not urged on the Court that s 40(2) would have application in this case.
The question ultimately to be addressed is where the reviewee is to be detained consistent with the application of the principle “that restrictions on a person’s freedom and personal autonomy should be kept to a minimum consistent with the safety of the community”.
The argument in favour of the transfer to Thomas Embling Hospital can be expressed relatively simply. The reviewee has been found not guilty of murder by reason of insanity (the then equivalent of mental impairment). If he were so acquitted today, he would be admitted to hospital (specifically in Victoria, Thomas Embling Hospital). I accept on the unchallenged evidence of Professors Mullen and Ogloff and Dr Bell the Assistant Clinical Director (Inpatient Operations) for Thomas Embling Hospital, that this is the practical reality, but it does not accord with the legal position in Victoria.
Section 26 of the Act 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 contracted service provider or the Secretary to the Department of 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.
* * * * *
(8) A person who is detained in custody in an appropriate place under a supervision order is deemed to be in the custody of the Secretary to the Department of Human Services.”
It follows that even though it is very unlikely, on the evidence, the possibility exists of a person who is the subject of a supervision order being detained in prison. I do not regard s 26(4) of the Act as otherwise relevant.
I do not regard the argument as compelling, principally because it might involve an analysis of whether or not the reviewee would now be found not guilty on the ground of mental impairment. I do, however, have regard to the proposition that subject to s 26(1), (2)(a)(ii) and (4), a person in like position to the reviewee would be detained in a hospital.
The next consideration is that the reviewee is the only person in Victoria who has been acquitted by reason of the equivalent of mental impairment, who is detained in prison. That is an important consideration, but not one which can inform me as to the appropriate outcome of this case.
It cannot, for instance, be a justification for saying that it alone compels the transfer of the reviewee to hospital. It does not compel the conclusion that even in an ideal system it would lead to such transfer.
This particular case involves a consideration of what in the long be in the best interests of the reviewee and ultimately the community. It is fair to say that on the whole of the evidence the prospects of the reviewee even being released is remote. The reasons for that conclusion are complex and, to a major degree, driven by what has happened in the last forty years.
In viewing the competing places of detention, Professors Mullen and Ogloff are confident that a treatment programme could be developed for the reviewee at Thomas Embling. Dr Bell, while accepting the possibility, is less confident. What does become clear is that it would be an individual programme which, although providing treatment, would not be treating any found psychiatric disabilities from which the reviewee suffers.
It would have the external advantage of being in a setting which is therapeutic, rather than penal, but it would be very restricted generally and because of the movement of visitors, particularly children, there would be additional restrictions which would not apply to other patients at the hospital. The reviewee would also be held with patients suffering psychiatric illness, at least some of whom displaying acute symptoms of their disorder. A person who is not suffering from a psychiatric disorder, but is instead being detained for other treatment, would find themselves in a difficult position. It would be unlikely that the reviewee would have employment at Thomas Embling and his access to computers would be at least as limited as it is at Port Phillip and perhaps even more so. His protection may also be problematic. Dr Bell in his report said:
Thomas Embling Hospital has not been designed with…long term segregation in mind and the only setting in which this could occur would be the very restrictive environment of a seclusion suite. If Mr Percy were assaulted in Canning unit, then it might be possible to consider his transfer to Bass unit, a subacute transitional 20 bed male unit. Exactly the same issue would apply in Bass unit. The options are very limited.
Although Dr Bell has indicated that it would be possible to provide a s 47 certificate of available services, such a certificate has not been provided. Professor Ogloff is confident that services could be provided. It is submitted that I should vary the place of custody for six months to see if a programme to which the reviewee could respond could be developed and to see whether he could and would cope with the arrangements at Thomas Embling.
The most powerful argument is that a non-convicted person, if he is to be detained, should be detained in a therapeutic environment in a hospital.
On the other hand, the reviewee has been in the prison system now for forty years. It is not surprising he is regarded as being institutionalised. It follows that routine is very important to him. He has expressed the desire that if he be transferred to Thomas Embling, that it be permanent. His present arrangements at Port Phillip are similar to those he previously had at Ararat, although there are some restrictions based on his status as a protected prisoner.
What is now known is that when last given the opportunity to engage in treatment, shortly after the last major review, the reviewee did participate and that treatment was regarded as successful, success being able to be achieved at a lower level for the reviewee because of his substantial and complicated history. He is prepared to engage in treatment now.
The treatment stopped and it became a common theme from many of the witnesses that it did not recommence largely because of the reviewee’s wishes in the matter. It must be noted that it did not remain in abeyance just because of administrative changes made by Corrections Victoria, but that was an important factor.
I have observed and I accept that the reviewee’s decision was to some extent understandable for a person in his position. I proceed on the basis that for a significant part of the last five years, treatment has been available to him.
When the evidence of Dr Bell, Professor Ogloff and Acting Assistant Commissioner Money is taken together, I am not satisfied that it can be said that the detention of the reviewee in Thomas Embling Hospital would be less restrictive than being held in a prison. I am satisfied that unless there is some dramatic change, for example the applicant being charged with or convicted of a serious offence, then he would not be held in maximum security. If any of those events were to occur, I anticipate that the reviewee would not wish to engage in treatment in any event.
Since s 40(1)(f) requires me to take into account any other matter which I regard as relevant. I am entitled to have regard to what effect the transfer of the reviewee would have on the management and operation of Thomas Embling Hospital, as well as on him. There is significant potential for his presence at Thomas Embling Hospital to be disruptive.
The reviewee suffers from no identifiable psychiatric disorder. In that sense, he is not treatable in a psychiatric hospital. He would receive treatment to deal with his paraphilia with schizoid personality disorder. That is treatment which a sexual offender would receive. That treatment, although available at Thomas Embling, is treatment to be provided through the community treatment arm, rather than the hospital as such. The treatment is treatment which would be provided as an adjunct to the traditional treatment provided at the hospital.
I am not satisfied that there is any reason to believe that the quality of the treatment to be provided at Thomas Embling Hospital would be more advantageous to the reviewee than that which I anticipate would be available in the prison system, particularly at Marngoneet. That is particularly so having regard to the earlier success of Ms Noakes.
I do not accept that a six month trial at Thomas Embling satisfactorily addresses the situation of the reviewee. The major difficulty about such a transfer is that it is almost impossible to measure what would constitute a successful trial. One view might be taken by the reviewee, another by the clinicians and yet a third by the hospital management.
For completeness I note that in their reports the victims support the detention of the reviewee in prison.
The Court was not convinced of the efficacy of a transfer in 1998 or 2004. I am not now convinced. I do understand that the appearance of a non-convicted person being treated in a hospital is appealing, but I am not convinced that in this particular case it can necessarily be said that such an outcome is in the interests of the reviewee or the community.
I therefore, on the major review, confirm the order and decline to vary the place of custody.
In relation to the application for variation of the order I confirm the order.
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