In the Matter of AG (No 2)
[2024] VSC 462
•6 August 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0151
| In the Matter of Sections 31 and 32 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| In the Matter of an Application by AG |
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JUDGE: | PRIEST JA |
WHERE HELD: | Melbourne |
DATE OF ORDERS: | 6 August 2024 |
DATE OF JUDGMENT: | 6 August 2024 |
CASE MAY BE CITED AS: | In the Matter of AG (No 2) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 462 |
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CRIMINAL LAW — Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 — Sections 31 and 32 — Application for variation of custodial supervision order to non-custodial supervision order — Homicide — Paranoid schizophrenic — Applicable considerations — Non-custodial supervision order granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance | Victoria Legal Aid |
| For the Director of Public Prosecutions | No appearance | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Attorney-General | No appearance | Victorian Government Solicitor |
| For the Secretary, Department of Health | No appearance | Legal Services and Integrity Branch, Department of Health |
HIS HONOUR:
Introduction
On 29 September 2015, whilst floridly psychotic, ‘AG’ killed his mother. He was subsequently charged with murder.
Following a trial, on 12 October 2015 I found AG not guilty of his mother’s murder by reason of mental impairment. By virtue of s 23(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’), I declared that AG was liable to supervision under Part 5.
Subsequently, on 2 December 2015, I made a supervision order concerning AG under s 26(1) of the Act; and, as required by s 28, I set a nominal term of 25 years, commencing 29 September 2014. AG was then admitted to Thomas Embling Hospital (‘TEH’) as a forensic patient.
On 9 September 2022, I granted AG’s application for extended leave — which was supported by the Secretary to the Department of Health and the Attorney-General — under s 57(1)(a) of the Act.[1] The following year, on 22 August 2023, I made an order that, upon the expiration of the order made on 9 September 2022, AG ‘be granted extended leave that he be absent from his place of custody up to and including 8 September 2024’ (on specified conditions).
[1]See In the Matter of AG [2022] VSC 534.
Pursuant to ss 31(1) and 32(1)(c) of the Act, AG applied for an order that his custodial supervision order be varied to a non-custodial supervision order.[2] The application was supported both by the Secretary to the Department of Health and the Attorney-General (and, as is usual in such cases, the Director of Public Prosecutions did not seek to appear before the court).
[2]Alternatively he sought further extended leave.
Given the attitude of the parties, I have determined the application ‘on the papers’.
For the following reasons, I will grant the application that AG’s custodial supervision order be varied to a non-custodial supervision order, subject to enumerated conditions.
Application of the statutory regime
Pursuant to s 32(2) of the Act, during the nominal term the court must not grant an application under sub-s (1)(c) ‘unless 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’. I am so satisfied.
Further, by virtue of s 32(3)(a), the court must not vary a custodial supervision order to a non-custodial supervision order unless AG has completed a period of at least 12 months extended leave granted by the court under s 57; and, by virtue of s 32(3)(b), in deciding an application to vary a custodial supervision order to a non-custodial supervision order, the court must take into account whether or not AG has complied with any conditions of his extended leave. AG has completed close to two years’ extended leave granted by the court under s 57; and, I am satisfied, has complied with the conditions of that extended leave.
Given my state of satisfaction of those matters, it is appropriate that I grant AG’s application to vary the existing custodial supervision order to a non-custodial supervision order. Pursuant to s 32(5) of the Act, I will direct that the matter be brought back to the court for further review at the end of a period of 12 months.[3]
[3]By virtue of s 32(4), the ‘nominal term continues to run’.
In deciding to vary the custodial supervision order, pursuant to s 39(1) of the Act, I have endeavoured to 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 have also had regard to the matters set out in s 40(1), including the nature of AG’s mental impairment (or other condition or disability); the relationship between the impairment (or condition or disability) and the offending conduct; whether AG is, or would if released be, likely to endanger himself, another person, or other people generally because of his mental impairment; and the need to protect people from such danger.
Additionally, s 40(2) provides that the court cannot vary a custodial supervision order to a non-custodial supervision order unless the court:
(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.
Section 42 requires me to take into account a report provided by a family member of the victim. I am satisfied on the basis of an affidavit of Julie Carpenter, a legal practitioner with the Office of Public Prosecutions, sworn 29 July 2024, that relevant victims have been notified. In the result, Mr Anthony John Guy, father of the applicant and husband of the deceased, provided a report, dated 12 July 2024 — the contents of which I have taken into account — supporting the present application.
Based on the evidence of consultant forensic psychiatrist, Dr James Belshaw, and of Mental Health Nurse, Ms Zahra Jafari — constituted by the contents of their exhibited reports both dated 3 July 2024 — I am, as I have said, satisfied that AG presently does not present a serious danger to members of the public or to himself.
Background and Opinion
AG was born on 16 April 1979. He was aged 35 years when his mother died, and is now aged 45 years. At the time that he killed his mother, he was floridly psychotic.
I need not here recapitulate the circumstances of the killing. They are set out in my reasons finding AG not guilty of his mother’s murder, and are also set out in a Summary of Proceedings and Facts of the Case filed by the Solicitor for Public Prosecutions and dated 12 August 2022. Given my previous involvement in the matter, I am familiar with the relevant circumstances.
Moreover, I need not recount the progression of AG’s serious mental illness up to the point when his mother died. It is summarised in moderate detail in my reasons for granting extended leave.[4]
[4]In the Matter of AG [2022] VSC 534, [12]–[16].
It is also unnecessary to discuss the psychiatric (and associated) evidence that was before me when I granted extended leave, or the details of his treatment up to that time. Once more, it is summarised in my earlier reasons.[5]
[5]Ibid [19]–[56].
In his report, Dr Belshaw — who previously provided a report and gave evidence on the application for extended leave[6] — said he has been AG’s allocated psychiatrist since August 2021. He said Forensicare’s Community Treatment and Transition (‘CTT’) team supported AG’s application to vary the custodial supervision order to a non-custodial supervision order. Among other things, Dr Belshaw made the following observations:[7]
[62]At approximately the age of 30 years [AG] began to experience psychotic symptoms, but he did not seek support via mental health services due to his lack of insight and a lack of understanding of mental illness within his immediate family members.
[63]Untreated, his mental health deteriorated gradually over a period of four years, characterised initially by a decline in his functioning, before extending to include a range of florid psychotic symptoms including auditory hallucinations and conspiratorial and religiose delusions. A brief contact with local mental health services in early 2014 did not result in any significant treatment gains due to [AG’s] poor compliance and a lack of assertive treatment of his symptoms, which were erroneously attributed solely to illicit substance abuse. Ultimately within three months of discharge from the public mental health services to a local GP he fatally attacked his mother in the context of non-compliance with prescribed medications and ongoing psychotic symptoms.
[64][AG’s] progress since the index offence has been underpinned by remission of the positive symptoms of schizophrenia via treatment with amisulpride (an antipsychotic medication). He has however continued to experience residual negative symptoms of schizophrenia, which impacted his motivation and led to difficulties in other recovery domains, such as his motivation and maintaining his physical health.
[65]During two periods of Extended Leave [AG] has successfully transitioned back to full-time living in the community. There have been no issues with mental state decline, substance abuse or problematic behaviours. His risk of future violence has remained low since his return to reside with his father.
[66]In my opinion his recovery within the comparatively intensive and specialised ministrations of the CTT team has been optimised. In the event that the CSO [custodial supervision order] is varied to an NCSO I believe that his proposed care team, comprising the Peninsula AMHS, Forensicare NCSO team, NDIS supports, GP, and his family members will provide him with an opportunity to further individuate away from the restrictive environs of the forensic mental health service, whilst ensuring that his remains stable, adequately monitored and thus ensuring that his risk of future violence remains low.
[6]See ibid [37]–[50].
[7]Emphasis added.
Ms Jafari, AG’s case manager, also provided useful information concerning his progress. I found her report very helpful. In the circumstances, however, I need not attempt to summarise it.
Analysis
It must be acknowledged that the offence which led to the applicant’s acquittal based on mental impairment was serious, in that its consequences were grave. In my view, however, AG bears little (if any) moral culpability for the killing of his mother, given that he was floridly psychotic at the time. His psychotic symptoms are now in remission, and, so far as I can glean from the evidence, will remain so as long as he continues to take the prescribed anti-psychotic medication at an appropriate dosage. Although it has been less than a decade since he killed his mother, AG has spent a number of years with his serious psychiatric disorder under control. I consider such an extended period of remission as a cause for optimism.
Nothing in the evidence leads me to the conclusion that AG poses any appreciable risk of endangering himself or others whilst he is appropriately medicated. Rather, the burden of the expert opinion is that he poses a low risk of endangering himself or others so long as he is appropriately supervised, monitored and medicated.
In my opinion, having regard to the evidence, AG’s paranoid schizophrenia is amenable to control by anti-psychotic medication, and, indeed, his psychosis has been in remission for an extended period of years. He poses a low risk of endangering himself or others if released into the community, so long as he maintains an appropriate dosage of medication. I am satisfied by the evidence that, in the community, he will have such supervision as will adequately monitor his condition, and as will provide a proper measure of protection to the community were AG to begin to relapse into florid mental illness. The safety of the community will not be appreciably deleteriously affected by AG being given the ‘freedom and personal autonomy’ afforded by the making of the orders sought.
When granting extended leave to the applicant I said:[8]
The evidence demonstrates that AG’s paranoid schizophrenia is amenable to control by anti-psychotic medication, and, indeed, his psychosis has been in complete remission for an extended period of years. It appears that he poses a low risk of endangering himself or others if released into the community, so long as he maintains an appropriate dosage of medication. I am satisfied by the evidence that, in the community, he will have such supervision as will adequately monitor his condition, and as will provide a proper measure of protection to the community were AG to begin to relapse into florid mental illness. The safety of the community will not be appreciably deleteriously affected by AG being given the ‘freedom and personal autonomy’ afforded by the making of the orders sought.
[8]In the Matter of AG [2022] VSC 534, [60].
Given what has transpired in the almost two years since I made those observations, the opinions that I expressed have been reinforced.
Conclusion
In light of the foregoing, and being satisfied as required by s 32(2) of the Act, in my view it is appropriate to make an order varying the existing custodial supervision order to a non-custodial supervision order. So as to ensure that AG’s condition and his compliance with the order are monitored, however, I will order that the matter be brought back to the court for further review at the end of a period of 12 months.
Accordingly, I will make orders in the following terms:
1. Under s 32(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’), the custodial supervision order with respect to [AG] made on 2 December 2015 is varied to a non-custodial supervision order, subject to the following conditions, that:
(a) He be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH) or their delegate;
(b) He complies with the lawful directions of the authorised psychiatrist of the VIFMH or their delegate;
(c) He complies with such treatment, testing, case management, medical and other appointments as directed by the authorised psychiatrist of the VIFMH or their delegate;
(d) He reside at an address known to and approved by the authorised psychiatrist of the VIFMH or their delegate;
(e) He not leave the State of Victoria without the written permission of the authorised psychiatrist of the VIFMH or their delegate, first obtained;
(f) He abstain from the abuse of alcohol and from the use of illicit drugs.
2. Pursuant to s 32(5) of the Act, it is ordered that the matter be brought back to the court for further review at the end of a period of 12 months from the date of this order.
3. Pursuant to s 75 of the Act, it is ordered that any information that might enable the applicant to be identified must not be published.
4. Reserve liberty to apply.
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