In the Matter of AG (No 3)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2022 0151

In the Matter of Sections 32 and 33 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:	5 August 2025
DATE OF JUDGMENT:	5 August 2025
CASE MAY BE CITED AS:	In the Matter of AG (No 3)
MEDIUM NEUTRAL CITATION:	[2025] VSC 472

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CRIMINAL LAW — Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 — Sections 32 and 33 — Review of custodial supervision — Applicable considerations — Homicide — Paranoid schizophrenic — Non-custodial supervision order confirmed.

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APPEARANCES:	Counsel	Solicitors
For AG	Mr J Dalrymple	Victoria Legal Aid
For the Director of Public Prosecutions	No appearance	Ms A Hogan, Solicitor for Public Prosecutions
For the Attorney-General	Mr D Zajd	Victorian Government Solicitor
For the Secretary to the Department of Health	Mr C Grant	Legal Services and Integrity Branch, Department of Health

HIS HONOUR:

Introduction

On 29 September 2015, whilst acutely psychotic, ‘AG’[1] killed his mother. As a result he was charged with her murder.
[1]Although he changed his name earlier this year, it is convenient to continue to use the initials ‘AG’.
On 12 October 2015, following a trial, I found AG not guilty of murder by reason of mental impairment. Pursuant to 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.
I made a supervision order with respect to AG under s 26(1) of the Act on 2 December 2015; and, as required by s 28, I set a nominal term of 25 years, commencing 29September 2014. AG was then admitted to Thomas Embling Hospital (‘TEH’) as a forensic patient.
Almost eight years later, on 9 September 2022, on his application — supported by the Secretary to the Department of Health (‘Secretary’) and by the Attorney-General — I granted AG extended leave under s 57(1)(a) of the Act.[2]
[2]See In the Matter of AG [2022] VSC 534 (‘EL Reasons’).
Subsequently, 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).
On 6 August 2024, I dealt with an application by AG under ss 31(1) and 32(1)(c) of the Act, for an order that his custodial supervision order be varied to a non-custodial supervision order (‘NCSO’). That application was also supported both by the Secretary and the Attorney-General. I granted that application, and ordered that AG’s custodial supervision order be varied to a NCSO, subject to enumerated conditions. I further ordered pursuant to s 32(5) of the Act 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 the order. That review is now before me.[3]
[3]See In the Matter of AG (No 2) [2024] VSC 462, [8]–[15] (‘NCSO Reasons’).
For the reasons that follow, I will confirm the NCSO, and will make orders, first, that pursuant to s 33(2) of the Act, 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; and, secondly, that pursuant to s 75 of the Act, any information that might enable the applicant to be identified must not be published.
Statutory regime
I need not repeat the details of the statutory regime that applied when I made the NCSO, and other orders, on 6 August 2024. The relevant provisions of the Act are set out in my reasons for making those orders.[4]
[4]NCSO Reasons, [8]–[15].
On a review of a NCSO under s 32(2) of the Act — which this is — s 31(1) provides that the court may either confirm the order; vary the conditions of the order; vary the order to a custodial supervision order; or revoke the order. As I have said, I will confirm it.
By reason of s 39(1), the court must apply the principle that ‘restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community’. The court must also take into account the matters enumerated in s 40(1).[5]
[5]I need not repeat them. See NCSO Reasons, [13].
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 Prosecution Specialist with the Office of Public Prosecutions, sworn 30 July 2025, that relevant victims have been notified. And I note that, at the time Ms Carpenter swore her affidavit, no victim or family member had furnished a report.

Based on the reports provided by consultant psychiatrists, Dr Jeanne O’Bryan and Dr Emmanuel Costuna, and Social Worker and Key Clinician, Ms Bianca Mitchell,[6] supplemented in the case of Dr O’Bryan and Ms Mitchell by oral evidence, I am satisfied that AG presently does not present a serious danger to members of the public or to himself.
[6]Dr O’Bryan’s report is dated 1 July 2025 (‘O’Bryan report’); Dr Costuna’s report is dated 30 Jume 2025 (‘Costuna report’); and Ms Mitchell’s report is dated 19 June 2025 (‘Mitchell report’).

Background and Opinion

AG was born on 16 April 1979. He was aged 35 years when his mother died, and is now aged 46 years. When he killed his mother, he was floridly psychotic.
I need not here repeat the circumstances of the killing. They are set out in my reasons finding AG not guilty of his mother’s murder. Having regard to my previous involvement in the matter, I am familiar with the relevant circumstances.
It is also unnecessary to recount the progression of AG’s serious mental illness up to the point when his mother died. It is summarised in my reasons for granting extended leave.[7]
[7]EL Reasons, [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.[8]
[8]Ibid [19]–[56].
Similarly, it is not necessary to recapitulate my reasons for granting the NCSO which is under review.[9]
[9]NCSO Reasons, [22]–[27].
For the purposes of the current review, Dr O’Bryan, a consultant psychiatrist with Forensicare, recommended the confirmation of the NCSO. In her opinion, the NCSO ‘remains the appropriate oversight that is necessary and least restrictive currently, considering recent changes and upcoming challenges for [AG]’.[10] Importantly, her report contained the following:[11]
[10]O’Bryan report, [52].
[11]O’Bryan report, [43]–[50].
[43]Since being on the NCSO, [AG] has remained fully adherent to all his appointments, medications, and requirements of his NCSO. His mental state has remained stable and there have been no reported incidents of violence, aggression, or inappropriate behaviour. His living situation has remained stable, although he has recently acquired a new property with his father and they are in the process of moving.
[44][AG] has demonstrated an ability to continue to engage with regular mental health reviews in a community setting, remain abstinent from substance abuse, independently reintegrate into the community, enlist the support of his GP and care team to address physical health issues and maintain a relatively productive social repertoire.
[45][AG] has not required any periods of involuntary treatment or admission to psychiatric facilities since being on the NCSO.
[46]To our knowledge, [AG] has not engaged in any substance use or further offending.
[47][AG] remains at a low risk of future and imminent violence in the current setting. This is due to the stability of his mental state, full compliance with treatment, consistent engagement with his community treating team and psychosocial supports.
[48]While [AG]’s progress on the NCSO over the last 12 months has been commendable, the NCSO and Bayview House teams have both highlighted that he is currently navigating a number of significant life changes, including the sale of his father’s house with an upcoming residential move, planned bariatric surgery, a legal name change, and ongoing identity development. Given his vulnerability to stress and avoidant coping strategies, there is a concern that these psychosocial stressors may increase his vulnerability to relapse which would likely increase his risk of interpersonal violence.
[49]Although both teams agreed that there was a low risk of [AG] disengaging from treatment, some level of psychological dependency on Forensicare had been noted, which was not uncommon after such a long and largely positive therapeutic relationship. It would be ill-advised to withdraw this long-term supportive therapeutic relationship during a period of significant change in [AG’s] life.
[50]There was consensus that while [AG] was functioning well, it would be clinically prudent to observe him for a longer period of stability, particularly in light of upcoming significant psychosocial stressors, before recommending revocation of the NCSO. Key areas of concern included [AG]’s response to potential disruptions to his new identity or current stability, and how he managed these stressors independently of forensic supports.
Dr Costuna, a consultant psychiatrist with Bayview House (part of Peninsula Health, providing mental health care to people on the Mornington Peninsula), is AG’s current treating psychiatrist. He reported that ‘no clinicians have observed evidence of even a modest recurrence in psychotic symptoms’, and he said that AG ‘has consistently demonstrated a sound level of insight into what type of subjective experiences are akin to psychotic level processing and has a pervasive fear of their recurrence’.[12] Dr Costuna also observed:[13]
[33][AG] has consistently demonstrated an appreciation of his vulnerability to psychosis again in the future and accepts that he will need to regularly take antipsychotic medications for the rest of his life. He reports a satisfaction with his current regimen.
[34]Until very recently, our team did not have any reasons for concerns with regards to compliance however upon a recent check with his dispensing pharmacy, I was informed that [AG] had failed to pick up his weekly blister pack on 9 June 2025 as he was going away to stay with a friend.
[35]This interruption in treatment is believed to have been limited to one week. [AG] did not report any experience of relapse of symptoms as a result.
[12]Costuna report, [15].
[13]Costuna report, [33]–[35].
Significantly, Dr Costuna also reported:[14]
[40]Across the course of my involvement with [AG] there has not been any concerns relating to suicidal thinking or transient periods of heightened risk to self.
[41]The current treating team are not aware of any instances of violence, aggression or hostile intent towards others during his episode of care.
[42]Based on my involvement with [AG] and having reviewed his psychiatric history, I am of the opinion that he currently presents a low danger both to himself and the community.
[14]Costuna report, [40]–[42].
Also significantly, Dr Costuna expressed the following opinions:[15]
[45]With respect to whether [AG’s] supervision order be revoked, confirmed or varied my view is consistent with that of the Forensicare team who have a longer standing and comprehensive clinical relationship with [AG]. I recommend that [AG’s] order be confirmed for a further 12 months with a view to reassessment at the next review.
[15]Costuna report, [45].
Finally, Ms Mitchell, a Mental Health Clinician with Bayview House, who has conducted regular face-to-face case management reviews with AG since December 2024 (including mental state examinations), supported the confirmation of the NCSO for a further 12 months. In her report, she observed:[16]
[14][AG] consistently reports a stable mood on review, generally rating it as 8/10, with no recent episodes of depression or affective dysregulation. [AG] has some vulnerability to situational stressors—most recently evident in the context of selling family property—which may affect his routine (e.g. reduced engagement in exercise, increased food intake). However, these fluctuations have been short-lived, and [AG] demonstrates a capacity to reflect on these changes with support and to resume adaptive behaviours.
[15]There are no current concerns regarding substance use, which has remained in remission since 2014. [AG] consistently denies any suicidal ideation, self-harm, or thoughts of harm to others. [AG’s] judgment and insight remain intact, and his risk of relapse or harm is currently assessed as low, contingent upon continued adherence to treatment and avoidance of substances.
[16]In summary, [AG] appears to present as having a stable mental state and is actively engaged in rehabilitation and community reintegration. [AG’s] schizophrenia is in long-term remission, and while he retains a lifelong vulnerability to relapse, there is no evidence at present of decompensation or behavioural risk.
[16]Mitchell report, [14]–[16].
Ms Mitchell also said:[17]
[19]It is acknowledged that the treating team was recently informed that [AG] had missed a week of medication collection from the pharmacy during the week commencing 9 June 2025. The pharmacy reported that [AG] had advised he would be away in the Ballarat area during that period. On 1 July 2025, the writer contacted [AG] to discuss the missed medication. [AG] confirmed that he had not collected his Webster Pack due to being away and denied experiencing any adverse effects on his mental state.
[17]Mitchell report, [19].
Analysis
AG’s conduct on 29 September 2015 had extremely grave consequences. At the time, however, he was floridly psychotic, leading to his acquittal based on mental impairment. His psychotic symptoms have now been in remission for some years. Based on the available medical evidence, it appears to be probable that his symptoms will remain in remission so long as AG continues to take prescribed anti-psychotic medication at an appropriate dosage. Indeed, the evidence demonstrates that AG has spent close to a decade with his serious psychiatric disorder under control. That is a cause for optimism.
The burden of the expert opinion before the court is that AG does not pose any substantial risk of endangering himself or others whilst he is properly medicated. Indeed, the gist of the expert opinion is that AG poses a low risk of endangering himself or others so long as he is appropriately supervised, monitored and medicated.
Acknowledging that AG had missed a week of medication collection from the pharmacy during the week commencing 9 June 2025, I consider that incident of non-compliance with his treatment regime to be of little moment. As Dr Costuna observed, this interruption in treatment seems to have been limited to one week, and the applicant did not experience any relapse of symptoms as a result.
I am satisfied by the evidence that AG poses a low risk of endangering himself or others so long as he maintains an appropriate dosage of medication. I am also satisfied by the evidence that, whilst subject to the NCSO, AG will have supervision to properly monitor his condition, so as provide an adequate measure of protection to the community were AG to begin to suffer a relapse. I remain of the view that 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 NCSO.[18]
[18]NCSO Reasons, [24].
Almost three years ago, when granting extended leave to the applicant I said:[19]
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.
[19]EL Reasons, [60]; NCSO Reasons, [25].
Based on the evidence before me, as I have indicated those observations remain apposite.
Finally, I note that the Secretary and, ultimately, the Attorney-General, supported the confirmation of the NCSO.
Conclusion
In light of the foregoing, I consider it to be appropriate to confirm the NCSO made on 6 August 2024. So as to ensure that AG’s condition and his compliance with the order are monitored, consistently with the opinions of Dr O’Bryan, Dr Costuna and Ms Mitchell, 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)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’), the non-custodial supervision order with respect to [AG] made on 6 August 2024 is confirmed on the same conditions.
2. Pursuant to s 33(2) 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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[2025] VSC 472

5 August 2025