IMO Wilson
[2016] VSC 426
•26 July 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CI 2016 0066
| IN THE MATTER of the Bail Act 1977 |
| and |
| IN THE MATTER of an Application for Bail by Cheryl Ann Marie WILSON |
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JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 June & 26 July 2016 |
DATE OF JUDGMENT: | 26 July 2016 |
CASE MAY BE CITED AS: | IMO Wilson |
MEDIUM NEUTRAL CITATION: | [2016] VSC 426 |
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CRMIMINAL LAW – Bail application – ‘Show cause’ situation pursuant to s 4(4)(c) Bail Act 1977 – Cause not shown – Indictable offence with a weapon – Attempted murder – Applicant has pleaded not guilty by reason of mental impairment – Applicant has an established diagnosis of schizophrenia – Alleged offending took place in the context of a psychotic episode – Applicant had refused medication in the weeks leading up to the alleged offending – Regular methamphetamine use over the preceding 12 months – Prior convictions and prior relevant matters involving violence and threats to kill – Delay – Likelihood of obtaining a non-custodial supervision order – Availability of stable accommodation – Risk of relapse – Unacceptable risk of causing harm to others and of re-offending – Bail refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Peter Rose QC | Office of Public Prosecutions |
| For the Applicant | Ms Emily Clark | Stary Norton Halphen |
HER HONOUR: (ex tempore)
The applicant has applied for bail. Because of the nature of the charges against her, pursuant to s 4(4)(c) of the Bail Act, she must show cause why her detention in custody is not justified.
On 11 February 2016, the applicant was arrested and charged with a total of four offences, including a charge of attempted murder. The victim in the charge of attempted murder is the applicant’s mother. It is alleged that the applicant slit her mother’s throat.
On the day in question, the applicant attended her mother’s address, which she had been doing daily for some time leading up to the event in question. It is alleged that the applicant came up behind her mother, grabbed her mother by the hair and pulled her head back. The applicant was holding a black serrated kitchen knife with which she cut her mother’s throat from right to left, twice. It is further alleged that the applicant then came around in front of her mother and stabbed her in the same spot with the point of the knife.
The applicant is also charged with intentionally causing serious injury and common law assault arising from the same set of circumstances. She faces a further charge of possessing a controlled weapon, which is unrelated to those circumstances.
The applicant does not dispute that the incident involving the assault on her mother occurred as alleged. She intends to plead not guilty to the charges on the basis of mental impairment.
On 26 May 2016, the applicant was committed for trial and the matter proceeded by way of hand-up brief. The applicant entered pleas of not guilty to the charges. The prosecution has arranged for Forensicare to assess the applicant on 22 August 2016. The proceeding is listed for directions in September 2016, when it will be determined whether the proceeding goes forward as a consent matter. If so, it is likely that there will be a disposition of the proceeding this year.
The applicant has a longstanding diagnosis of schizophrenia in respect of which she was being treated by an area mental health service — known as ‘the Harvester Clinic’ — as a voluntary patient at the time of the alleged offending. However, she had become non-compliant with her medication. Prior to the alleged offending, she had last received her fortnightly anti-psychotic injection on 15 January 2016 and she had not taken her oral medication since November 2015.
The applicant was using methamphetamine over this period. Indeed, she had been using methamphetamine for a period of at least 12 months prior to the alleged offending in February 2016. This was known to the Harvester Clinic, and the consultants there expressed concern about it, but the applicant refused treatment for substance abuse.
Dr Andrew Carroll, forensic psychiatrist, assessed the applicant in custody on 5 May 2016 and prepared a report dated 11 May 2016, in which he expressed the opinion that the applicant was fit to plead and had a defence of mental impairment available to her.
Dr Carroll saw the applicant again prior to the hearing today. He gave evidence in the application, along with Dr David Finn, the principal clinician at the Harvester Clinic. I will deal with the evidence of the clinicians presently.
The Crown opposes bail on the grounds that:
(a)the applicant is charged with an indictable offence involving the use or threatened use an offensive weapon, namely a knife, and she is required to show cause which justifies the grant of bail pursuant to s 4(4)(c) of the Bail Act;
(b)there is an unacceptable risk that the applicant, if released on bail, will endanger the safety or welfare of members of the public; and
(c)there is an unacceptable risk that the applicant will commit an offence while on bail.
In particular, the Crown submits that releasing the applicant on bail presents an unacceptable risk of harm to the applicant’s mother, who lives no more than 400 metres away from the applicant’s accommodation. The applicant’s mother has stated to police that she does not want the applicant to get out of prison because she is afraid that the applicant will come back and kill her.
The Crown submits that the applicant is unpredictable and has a history of carrying knives and prohibited weapons. It further submits that the applicant does not have any support network, has a drug problem which causes her to become non-compliant with her medication and lives in a neighbourhood which she admits is not ideal for managing her drug problem and is proximate to her mother, who is fearful of her.
For her part, the applicant submits that cause is shown by reason of the following matters in combination:
(a)delay;
(b)her mental health has stabilised while in custody and she is now compliant with her medication;
(c)she has not failed to answer bail in more than 15 years and has not failed to appear in court in almost 14 years;
(d)she has not been convicted of an offence involving serious violence since 21 January 1994;
(e)she has stable accommodation available to her and is at risk of losing her long-term residence if she does not return to continue her tenancy;
(f)she is prepared to adhere to strict bail conditions, including requirements that she report to police and comply with treatment, and be prohibited from leaving Victoria; and
(g)should she be found ‘not guilty’ of the offences charged by reason of mental impairment, it will be open to the sentencing court to impose a non-custodial supervision order.
It is true that the applicant has not been convicted of a serious violence-related offence since 1994. However, she has an extensive criminal history and there are a number of other relevant matters.
In September 2008, the applicant was involved in an incident at a Shell petrol station in Station Road, Melton, that involved her threatening to kill the attendant, filling a five litre jerry can with petrol, walking into the store and pouring the fuel over the floor while yelling, ‘If you don’t call the police, I’m going to blow this place up’. The applicant was holding a cigarette lighter in her hand at the time. A customer wrestled with her and was able to subdue her until the police arrived. The applicant made partial admissions when she was interviewed by police, and advised that she had psychiatric issues. Charges, including reckless conduct endangering life, arson and extortion were subsequently discharged due to the applicant’s mental impairment.
On 6 August 2007, the applicant’s house burned down. Two days later, on 8 August, the applicant made accusations against her mother concerning the death of her children (who had in fact died in a house fire many years earlier) and said to her mother on a number of occasions, ‘I will cut your throat, I will burn your house down’. She was restrained by her stepfather and, following her arrest, remanded in custody for a period of seven weeks. The applicant’s mother later withdrew her complaint and the matter itself was withdrawn.
Prior to these incidents and since, there were and have been a number of other more conventional criminal matters, such as burglary, theft, obtain property by deception and driving whilst disqualified. The applicant has failed to appear and failed to answer bail on a number of occasions, although, as her counsel pointed out, not for a considerable period of time.
As to the applicant’s penchant for carrying knives and prohibited weapons, in 1993, the applicant stabbed the father of her two eldest children in the chest. She was given a prison sentence of 18 months, wholly suspended. In January 1997, the applicant was convicted of entering the Melbourne Magistrates’ Court with a pair of knuckledusters. In 2013, she was convicted of possessing an offensive weapon on court premises; in July 2015, she was arrested for carrying a knife into Sunshine Magistrates’ Court.
The applicant has a very sad personal history. In February 1995, her 2½ year old twin sons died in a house fire. Her first contact with mental health services was in 1997 due to depression. In 2004, another of the applicant’s houses burnt down. A third house occupied by the applicant burnt down in August 2007, as I have already indicated.
In his report, Dr Carroll opines that at the time of her alleged offending, the applicant was suffering from severe psychotic symptoms. Her mental health history indicates a clear history of schizophrenia with poor compliance in the months leading up to the event in question. While the picture is clouded by her methamphetamine use, it is clear that the applicant’s severely disturbed mental state on the day was due to a relapse of schizophrenia, rather than being a substance-induced psychosis.
Dr Carroll states that the applicant is compliant with her medication regime and that her mental health has stabilised. He opines that the applicant is now in complete remission from schizophrenia. Her mental state is stable, with no current mood or psychotic symptoms and she has excellent insight into her mental health problems. He further opines that the applicant’s mental health management in custody appears to have been excellent. Given that her future risk of serious harm to herself or others appears to be entirely linked to her mental state, Dr Carroll assesses the applicant’s current risk of harm to self or others is assessed to be low.
However, according to Dr Carrol, if bail is granted, it would be appropriate for the applicant to attend for ongoing mental health treatment with her local area mental health service, and he opines that close liaison by the courts with her treating team at the prison would be essential in order to facilitate the linkage with her community-based team, and it would be appropriate to provide for the applicant to be monitored regarding the possibility of relapse into substance misuse.
Dr Finn from the Harvester Clinic gave evidence that if the applicant is released on bail, she will attend a meeting at midday tomorrow with one of the consultants to determine whether she meets the criteria for detention under the Mental Health Act, enabling the Clinic to enforce treatment. He anticipates that as the applicant’s mental state is currently good, she may not be eligible for treatment under the Mental Health Act, which means that she would have to consent to treatment through Odyssey.
The applicant, since the last hearing of this application for bail, has endeavoured to put in place provision for drug and alcohol counselling in the community. She was found to be unsuitable for a residential rehabilitation program at Odyssey House, but has obtained an appointment on 1 August 2016 for one on one counselling in the community.
The Australian Community Support Organisation Limited (‘ASCO’) has advised that it would be able to assist in linking the applicant to services and taking her to appointments for a period of six weeks post-release.
At the adjourned hearing, a close friend of the applicant’s, Mr Kenneth Hughes, attended and gave evidence that he is available to provide emotional and social support on a daily basis and that he would also assist the applicant to attend all area mental health appointments, as well as assisting her to meet reporting obligations.
As a result of the foregoing, I accept that the matters highlighted by Dr Carroll as being appropriate were the applicant to be granted bail are in place or in the course of being put in place.
Notwithstanding all of these matters and the significant efforts that have been made by the applicant and on her behalf, I am not satisfied that the applicant has shown cause.
In my view, the delay involved in resolving the charges against the applicant has not been inordinate and it does not threaten to be. The applicant will be assessed by Forensicare next month. If a conclusion is reached in line with the opinion of Dr Carroll, there should be minimal delay in dealing with the applicant’s offending under the Crimes (Mental Impairment) Act.
Most importantly, a number of the applicant’s ‘show cause’ arguments are based on the possibility that the applicant will be released back into the community on a non-custodial supervision order if she establishes a defence of mental impairment. That proposition is disputed by the Crown. Without wishing to second guess expert opinion as to the risk presented by the applicant, I also consider it to be unlikely that a non-custodial supervision order will be imposed at the outset, given the diagnosis of schizophrenia, the catastrophic consequences of the applicant’s psychotic episodes in the past, her history of non-compliance with medication, her history of substance abuse and the nature of the alleged offending itself, involving as it does the ongoing concerns for the safety of her mother. In my view, it is much more likely that a custodial supervision order will be imposed initially, at least for a short period of time.
This means that the arguments concerning the need for the applicant to be bailed in order to retain her public housing fall away or become much less important.
In any event, I consider that that accommodation, while notionally stable, is far from optimal in terms of managing the challenges of the applicant’s drug use and therefore also her mental health issues. She would be exposed on a daily basis to the persons Mr Rose QC described as her ‘cronies’, from whom she acquired or with whom she used ice in the past. She would be a target for people who have previously known her as an ice user. She has said herself that she would be better off living elsewhere. In addition, it is too close to her mother, who remains fearful of the applicant.
As to the factors relating to the applicant’s record of answering bail and the asserted absence of violent offending since 1994, given the episodes in 2007 and 2008 to which I have referred, and the incidents involving weapons, I do not accept these factors as showing cause why the applicant should not be detained in custody.
It was submitted on behalf of the applicant that she should be granted bail so as to have the opportunity to prove that she can live safely in the community, as this may affect her chances of obtaining a non-custodial, as opposed to a custodial, supervision order. Whether this is so may depend on how long she remains on bail. If the charges are disposed of this year, which is a real possibility, a period of six months or less spent on bail is unlikely to affect the type of supervision order that is ultimately made, given the applicant’s long history of offending and the long lead up to the alleged offending.
I consider that if the applicant were to be granted bail to return to her flat, there would be an unacceptable risk of harm to her mother and possibly to other members of the community. The applicant’s psychotic episodes in the past have led to particularly dangerous behaviour. The evidence before me is that she abused ice over a protracted period in 2015 and early 2016 and that, as a consequence, her compliance with her medication lapsed. This in turn led to the very serious offending that is now alleged. As I understand the position, in the 12 months prior to the alleged offending, the applicant was using ice fairly consistently and her mental health was deteriorating to the point where she refused medication. It was known to the treating clinic that the applicant was using ice and that her mental state was deteriorating. However, at no time was she assessed as requiring compulsory treatment. I make no judgment about that. The Clinic saw itself as acting in accordance with the Mental Health Act and no doubt it was. It is the Clinic’s role to treat, not to police.
However, nothing has changed since then, other than that the applicant has had another psychotic episode resulting in harm to a person that could well have ended even more badly than it did.
The applicant has proposed a number of bail conditions which go some way to reducing the risk that she will offend in this manner while on bail. These include fortnightly drug testing by the Harvester Clinic and authorising the Clinic to contact the police if the applicant refuses treatment or to submit to the drug testing.
Putting aside that the Clinic is clearly not entirely comfortable with assuming a policing role of this kind, I am not persuaded that these conditions, along with reporting and other standard conditions, sufficiently reduce the risk that she will harm others while on bail.
There was evidence before the Court that the use of ice can bring on psychotic episodes very quickly, even when a person is taking anti-psychotic medication. The Crown has expressed concern that the applicant will take drugs, fall into a drug induced psychosis and then move to harm her mother. I share that concern. Dr Carroll gave evidence that anyone can become psychotic as a result of methamphetamine use, but that the threshold is lower for a person who suffers from schizophrenia, such as the applicant.
In my view, the applicant would need very close monitoring and supervision if released on bail. She would also need to be well entrenched in a drug rehabilitation program. I am not persuaded that such circumstances exist.
In the circumstances, I have formed the view that there is an unacceptable risk that the applicant will again become non-compliant with her medication. This makes her an unacceptable risk of causing harm to others and of re-offending.
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