In the matter of an application by ‘BS'
[2019] VSC 651
•24 September 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 06702
IN THE MATTER of a court ordered review of a custodial supervision order pursuant to s 27(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
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IN THE MATTER of ‘BS’
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JUDGE: | WEINBERG JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 September 2019 |
DATE OF ORDERS: | 17 September 2019 |
DATE OF REASONS: | 24 September 2019 |
CASE MAY BE CITED AS: | In the matter of an application by ‘BS’ |
MEDIUM NEUTRAL CITATION: | [2019] VSC 651 |
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CRIMINAL LAW – Mental Impairment – Major Review – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 27(2), 32(1)(a), 32(5) – Order confirmed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Dhanji | Victoria Legal Aid |
| For the Director of Public Prosecutions | Ms R Marques | Mr J Cain, Solicitor for Public Prosecutions |
| For the Attorney-General | Ms B Goding | Victorian Government Solicitor |
| For the Department of Health and Human Services | Ms S Varney | Solicitor to the Secretary to the Department of Health and Human Services |
HIS HONOUR:
On 17 September 2019, I made an order pursuant to s 32(1)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘Mental Impairment Act’) confirming a Custodial Supervision Order (‘CSO’) made by myself on 20 August 2013, requiring the reviewee to continue to be detained under that supervision order. I further ordered that the matter be brought back to this Court for review after three years from 17 September 2019.
I indicated that I would, in due course, provide brief reasons for confirming that CSO. These are those reasons.
The reviewee, ‘BS’, was found not guilty of two charges of murder, by reason of mental impairment, after a special hearing in the Trial Division. As indicated, he was placed on a CSO on 20 August 2013.[1]
[1]DPP v Smith [2013] VSC 438.
The matter came back before this Court in 2016 for a further review of the initial CSO of 2013. On 31 August 2016,[2] pursuant to s 32(5) of the Mental Impairment Act, I ordered that the matter return to this Court for a further review in three years’ time. The purpose of the 2019 review was to determine whether the CSO should remain in force, be varied in some way, or be changed to a non-custodial supervision order.
[2]In the matter of an application for a further review of a custodial supervision order of ‘BS’ [2016] VSC 524.
It was the unanimous view of the parties, these being relevantly the reviewee, the Secretary of the Department of Health and Human Services, the Attorney-General, and the Director of Public Prosecutions, all of whom were represented before me, that the CSO should be confirmed.
The background to this matter can be found set out in my reasons for judgment dated 20 August 2013. In summary, the ‘index offences’ occurred on 16 December 2011, when the reviewee stabbed both his parents to death at their home in Vermont South. Having been found not guilty by reason of mental impairment, I ordered that the reviewee be placed on a CSO for a nominal term of 25 years. As indicated, the matter came back before me in August 2016, and that CSO was confirmed.
The present review is governed by s 32 of the Mental Impairment Act. That section provides:
32 Variation of custodial supervision orders
(1)On an application under section 31 for variation of a custodial supervision order or on a review of a custodial supervision order directed under section 27(2) or on a further review of a custodial supervision order directed under subsection (5) or section 33(2), the court must, by order—
(a) confirm the order; or
(b) vary the place of custody; or
(c)subject to this section, vary the order to a non-custodial supervision order.
(2)The court must not vary a custodial supervision order to a non-custodial supervision order during the nominal term 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.
(3)In the case of a forensic patient or forensic resident—
(a)the court must not vary a custodial supervision order to a non-custodial supervision order (whether during or after the nominal term) unless the forensic patient or forensic resident has completed a period of at least 12 months extended leave granted by the court under section 57; and
(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 the forensic patient or forensic resident has complied with any conditions of their extended leave.
(4)If the court varies a custodial supervision order to a non-custodial supervision order before the end of the nominal term, that nominal term continues to run.
(5)The court may direct that the matter be brought back to the court for further review at the end of the period specified by the court.
(6) A direction may be given under subsection (5) more than once.
The review, just like the one that I conducted in 2016, falls to be considered by reference to the matters set out in ss 39 and 40 of the Mental Impairment Act. Section 39(1) provides:
39 Principle to be applied
(1)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.
Section 40 relevantly provides:
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, 5 or 5A 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.
…
Section 38C requires the Director of Public Prosecutions to give notice of the review to each family member of the reviewee, and each victim of the offence with which the reviewee was charged. Section 40(2)(d) requires the Court to take into account reports provided by family members, or the victim, if it is considering reducing the degree of supervision or ordering unconditional release. I have received a report from a family member of the reviewee, and have taken its contents into account.
The reviewee’s present medical condition is summarised in a report prepared by Dr Gideon Dubow, dated 8 August 2019. Dr Dubow is a consultant psychiatrist at Forensicare and was the reviewee’s treating psychiatrist between February 2016 and 24 July 2019. In his report, Dr Dubow confirmed a diagnosis of schizophrenia, and indicated the treatment presently being afforded to the reviewee. Dr Dubow reports that the reviewee has continued to suffer from many of his long-standing delusional beliefs. He has impaired cognitive functioning, limited insight, and poor social skills.
Nonetheless, Dr Dubow has seen signs of improvement since the last review in 2016. He concludes that the reviewee’s fixation on residual delusions has markedly diminished. The reviewee is said to be more focused on reality-based thoughts and activities. He is better able to accept that his beliefs arise from a mental illness, and he is exhibiting greater trust in staff who are responsible for his welfare.
As evidence of the reviewee’s gradual progress and increasing mental stability, he was granted unescorted leaves in the community in November 2017. He used these leaves responsibly for activities such as shopping, photography, attending libraries, and engaging in Tai Chi. He also participates regularly in gardening and horticulture activities. He has completed TAFE courses in hospitality and business, and engages in group and individual psychology sessions.
Dr Dubow observes that the reviewee has few personal supports, and his family contacts are limited to an aunt in Queensland. Despite this, his record at Thomas Embling, and in the community on unescorted leaves is said to be ‘unblemished.’ He gets along well with staff and fellow patients. He is said to be honest and trustworthy.
On 24 July 2019, he was transferred from the Bass (sub-acute) Unit to the Daintree (rehabilitation) Unit of Thomas Embling. Dr Dubow regards this transfer as a significant step towards the reviewee’s rehabilitation and eventual successful community reintegration. His risk of reoffending is assessed as being only moderate in the medium term. That risk would increase if he were to reside in the community at this time.
It was on the basis of this unchallenged evidence that I concluded that the reviewee is still suffering from a form of schizophrenia which is substantially treatment resistant. Any future transition into the community should be done in a staged manner involving first day leave, and then overnight leaves to a body such as a Community Care Unit attached to an Area Mental Health Service.
In accordance with the principles set out in ss 39 and 40 of the Mental Impairment Act, I was satisfied that the safety of the reviewee, or members of the public, would still be seriously endangered if he were to be released at this time from Thomas Embling on either a non-custodial supervision order, or on extended leave.
Accordingly, and for these reasons, I ordered that the CSO be confirmed.
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