In the matter of an application by LD
[2019] VSC 9
•24 January 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2017 04199
| IN THE MATTER of an application for extended leave pursuant to section 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) |
| – and – |
| IN THE MATTER of an application by LD |
---
JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 October 2018 |
DATE OF JUDGMENT: | 24 January 2019 |
CASE MAY BE CITED AS: | In the matter of an application by LD |
MEDIUM NEUTRAL CITATION: | [2019] VSC 9 |
---
CRIMES MENTAL IMPAIRMENT — Application for further extended leave — Whether the safety of the applicant or members of the public will be seriously endangered as a result of the applicant being allowed further extended leave — Whether granting application would be consistent with principle that restrictions on a person’s freedom and personal autonomy should be kept to minimum consistent with safety of community — Whether applicant would be likely to endanger himself or any other person or people generally — Further extended leave granted on conditions - Crimes (Mental Impairment and Unfitness to the be Tried) Act 1977 (Vic) ss 39, 40 and 57.
---
APPEARANCES: | Counsel | Solicitors |
| For the applicant | Ms A Wong | Victoria Legal Aid |
| For the Attorney-General of Victoria | Ws S Wallace | Victorian Government Solicitor’s Office |
| For the Secretary to the Department of Health and Human Services | Ms E Frawley | Department of Health and Human Services |
HIS HONOUR:
LD makes an application pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘the Act’) for a further grant of extended leave from the Thomas Embling Hospital (‘TEH’), subject to the same conditions as the existing grant. Both the Attorney-General of Victoria (‘the Attorney-General’) and the Secretary to the Department of Health and Human Services (‘the Secretary’) are supportive of the application for further extended leave.
The index offence occurred on 1 May 2002, when LD killed a co-resident at LD’s boarding house while floridly psychotic. LD had been non-compliant with treatment in the lead up to the index offence and was displaying various signs of psychosis, including auditory hallucinations, persecutory and grandiose beliefs.
A detailed description of the circumstances that gave rise to the making of LD’s custodial supervision order (‘CSO’) are set out in the Summary of Proceedings and Facts of the Case filed by the Office of Public Prosecutions in 2010. A description of the event and the surrounding circumstances are also to be found in the various judgments of the Court, the last of which is that of Coghlan JA dated 20 October 2017. I do not need to rehearse those circumstances again.
On 12 September 2011, LD was found not guilty of murder by reason of mental impairment. On 25 November 2011, LD was placed on a CSO for a nominal term of 25 years. Pursuant to that order, LD was admitted to the TEH and spent the next six years under the rehabilitation regime before being granted extended leave on 20 October 2017. LD has been residing in the community since this time.
Legislative framework
The application for further extended leave is made pursuant to s 57(1) of the Act, which provides:
(1)An application for extended leave for a forensic patient or forensic resident may be made to the court that made the supervision order to which they are subject—
(a)in the case of a forensic patient, by the forensic patient or the authorised psychiatrist for the designated mental health service;
(b)in the case of a forensic resident, by the forensic resident or the Secretary to the Department of Health and Human Services.
Section 57(2) provides that an application for further extended leave may be granted if I am satisfied on the evidence available that the safety of the applicant or members of the public will not be seriously endangered as a result of the applicant being allowed extended leave.
The meaning of ‘serious endangerment’ requires the consideration of both the level of risk that a harmful event might occur, and the gravity of the harm that might be caused if the risk were to materialise. Thus, a highly probable risk of minor harm might not amount to serious endangerment, whereas a mathematically improbable risk of grave harm might do so.[1] In making that judgment, I am bound to consider the guiding principle identified in s 39 of the Act, which provides:
(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.
[1]In the Matters of Major Reviews of Percy, Farrell and RJO (1998) 102 A Crim R 554, 566 (Eames J); cited with approval in NOM v DPP (2012) 38 VR 618, 628 [63] (Redlich and Harper JJA and Curtain AJA) (‘NOM‘). On serious endangerment generally: see also NOM (2012) 38 VR 618, 635–40 [54]–[65].
I am also required to have regard to the list of considerations identified in s 40(1) of the Act. Those considerations are:
(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.
With respect to the evaluation of mental condition and making a risk assessment, the Court of Appeal in NOM v DPP said:
Section 39 requires a value judgment informed by the competing considerations stated in the provision. Section 40(1) requires an evaluation of the appellant’s mental condition and progress and an assessment of risk against discrete but interrelated criteria. These assessments call for value judgments in respect of which there is room for reasonable differences of opinion. No particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The discretionary character of the decision is not displaced by the mandatory requirements that the judge ‘must apply’ the principle in s 39 or ‘have regard to’ the factors in s 40.[2]
[2](2012) 38 VR 618, 633 [47] (Redlich and Harper JJA and Curtain AJA) (citations omitted).
Section 40(4) provides that a further grant of extended leave cannot be made unless I have obtained and considered the report of at least one registered medical practitioner or registered psychologist who has personally examined the person on that person’s mental condition and the possible effect of a proposed further grant on that person’s behaviour, together with a leave plan filed pursuant to s 57A. I have received the report of Dr Shannon Reid dated 11 September 2018, which satisfies the requirements under ss 40(4)(a) of the Act. Dr Reid is LD’s treating psychiatrist at the Community Treatment and Transition (‘CTT’) Programme of the Community Forensic Mental Health Service (‘Forensicare’).
Section 38C(2)(d) of the Act requires the Director of Public Prosecutions to notify victims and family members of an application for extended leave ‘if the granting of the application would significantly reduce the degree of supervision to which the person is subject’. The Director has indicated that she does not intend to notify victims or family members of the hearing on the basis that it was anticipated that the grant of further extended leave, if granted on the terms proposed, would be in similar terms to the current grant, and would not result in any significant reduction in the degree of supervision of LD.
Applicant’s psychiatric history
LD is a 31-year-old person with an established diagnosis of schizophrenia, which is currently in remission.[3] LD’s illness developed against a background of childhood trauma and instability, and was exacerbated by polysubstance abuse and poor compliance with medication.
[3]Previous diagnoses have described LD as suffering with schizoaffective disorder.
Records show that from the age of 16 or 17, LD began experiencing symptoms of this illness, including elevated mood, disorganised and disinhibited behaviour, persecutory and referential ideas, grandiose delusions, and auditory hallucinations. Over the ensuing years, LD was treated, albeit unsuccessfully, with various antipsychotic medications.
LD had four inpatient hospital admissions between 2005 and 2009, which were generally precipitated by substance abuse and poor compliance with medication. LD was managed as an outpatient on a community treatment order (‘CTO’) between admissions, however, was discharged from the CTO just two weeks prior to the index offence due to poor compliance and engagement.
At the time of the index offence, LD was residing in a boarding house with a number of other residents, including the deceased. The relationship between LD and the deceased was volatile, with LD alleging that the deceased had previously threatened LD with a knife. On two occasions police were called to intervene following instances of physical aggression between LD and the deceased.
In the days preceding the index offence, LD consumed several bottles of wine and crushed LD’s antipsychotic medication (quetiapine) in an attempt to accelerate the sedative affects. LD began experiencing auditory hallucinations instructing LD to kill the deceased, and believed these commands to be emanating from ‘mother earth’ or a ‘new world order’. Against this background, LD developed a belief that the deceased was ‘demonic’, and that there ‘would never be peace’ unless LD killed the deceased.
Following LD’s arrest for the index offence on 11 November 2010, LD was initially remanded at Melbourne Assessment Prison, before being transferred to TEH on 18 November 2010.
LD successfully progressed through the various acute and rehabilitative units at TEH, before being officially discharged from TEH on extended leave on 20 October 2017.
Contemporary psychiatric and clinical evidence
LD has now been the subject of a grant of extended leave for almost 12 months. The evidence of LD’s progress over this time has been summarised in the report of Dr Shannon Reid, LD’s psychiatrist at the CTT, dated 11 September 2018.
According to Dr Reid’s report, LD has a diagnosis of schizophrenia, which is currently being treated with olanzapine (antipsychotic) 30mg per day and sodium valproate (mood stabiliser) 1500mg twice per day.
Dr Reid confirms that LD has remained compliant with medication whilst on extended leave, as borne out by screening of sodium valproate in LD’s serum levels. LD has shown no evidence of relapse, and has attended all review appointments.
Dr Reid opines that LD demonstrates good insight into LD’s illness and treatment, and is able to engage meaningfully in conversation about the costs and benefits of medication and treatment. Additionally, Dr Reid observes that LD is able to identify the early warning signs of relapse, including rapid weight loss, poor sleep, irritability, reduced social inhibitions, a desire to cease medication and elevated mood.
Following LD’s grant of extended leave in early 2018, LD reported a ‘flat mood’ of moderate intensity, as well as lack of motivation, to LD’s treating team. The possibility of a mood disorder was considered, but it was found that the symptoms were more likely to be stemming from LD’s transition to full-time community living, as distinct from any specific mood disorder. LD’s physical health issues, cessation of studies, and scant daily routine were also identified as likely contributors to LD’s poor motivation. Positively, Dr Reid reports LD’s motivation began improving in August of this year, consistent with LD’s commencement of work as a cleaner.
Dr Reid reports that there has been no evidence of any illicit substance use during LD’s period of extended leave, however, cites some concerns in relation to LD’s levels of alcohol consumption. Recent assessments of LD’s liver functioning reveal a consistent increase in the enzyme gamma-glutamyl transferase, which is often, albeit, not exclusively, associated with excessive alcohol consumption. Dr Reid notes that these levels may also, in part, be affected by LD’s cholesterol lowering medication.
Dr Reid notes that the recommendation of LD’s treating team is that LD not drink more than three standard alcoholic drinks per occasion, or any more frequently than twice weekly. Notwithstanding this, a diary maintained by LD shows that LD has been drinking up to six alcoholic beverages every four to ten days, and on one occasion, two days in a row. Dr Reid opines that these records are still ‘largely approximate’, and do not necessarily reflect the full extent of LD’s levels of alcohol consumption.
Positively, Dr Reid reports that there has been no evidence of clinical deterioration associated with LD’s alcohol consumption whilst on extended leave. However, of some concern, Dr Reid notes that an ultrasound examination of LD’s liver has revealed evidence of fatty-liver disease.
Dr Reid reports that LD suffers with a number of other health issues, including obesity, asthma (exacerbated by smoking), hypertension, gastro-oesophageal reflux, hypercholesterolemia, back pain and a hand tremor. These conditions are largely managed by LD’s general practitioner, and are treated with medication where possible.
In regard to LD’s gambling history, Dr Reid notes that LD initiated a self-imposed ban at certain gambling venues in the lead up to LD’s previous grant of extended leave, and gradually reduced LD’s antipsychotic medication (aripiprazole) in an effort to control impulse behaviours. Whilst LD initially engaged the assistance of ‘Gamblers Anonymous’, LD ceased contact earlier this year, citing that LD’s gambling impulses had waned in keeping with the cessation of LD’s aripiprazole medication.
Notwithstanding this, Dr Reid reports that LD travelled outside LD’s self-imposed ‘exclusion zone’ and engaged in gambling activities on two occasions earlier this year. This was not reported to LD’s treating team until September of this year, approximately nine months after the events had occurred. Dr Reid opines that LD’s failure to immediately disclose these events is of some concern, particularly given the frequent discussion that took place between LD and LD’s treating team surrounding this topic.
Dr Reid reports that there have been other isolated instances where LD has omitted important information from discussions with LD’s treating team. Particularly, Dr Reid reports that LD failed to reveal concerns held regarding motivation in the lead up to LD’s previous application for extended leave, and did not make these concerns known to LD’s treating team until after the application had been granted. Additionally, Dr Reid notes that LD acquired a personal loan earlier in the year to pay off gambling debts, but did not disclose this information to LD’s treating team until approximately eight months later, in August of this year.
Despite these concerns, Dr Reid opines that LD appears to have developed an increased level of insight into the need for transparency with LD’s treating team. Dr Reid reports that a focus for future treatment will be to encourage LD to take greater responsibility for open communication.
Since being on extended leave, LD has attended six sessions with a community psychologist. These sessions have focused on providing general support to LD, including in relation to routine, stability and mood management, with management of anxiety being identified as an area for future work.
Dr Reid reports that LD continues to experience a stable living situation with LD’s partner at privately rented accommodation in Box Hill. LD’s partner is also a patient of Forensicare, and Dr Reid observes their relationship to be one that is mutually supportive.
In July and September of this year, joint meetings were held between LD and LD’s partner and their respective treating teams. LD’s partner was able to identify LD’s early warning signs of relapse, and the necessary steps to take in the event that a relapse were to materialise. Discussions were held in relation to concerns regarding LD’s levels of alcohol consumption and future proposals to start a family, and it was agreed that any plans to have children would be kept on hold for the time being.
Dr Reid confirms that LD enjoys a strong relationship with LD’s mother and step-father, who reside in regional Victoria. LD visits them intermittently, and on these occasions also takes the opportunity to visit extended family who live in the area. LD reportedly also enjoys a good relationship with LD’s sister.
With respect to risk assessment, Dr Reid adopts a methodology which is based on examining variables that are known to be empirically associated with future violent offending, weighing these against other protective factors that may mitigate the risk and then making a clinical assessment.
Dr Reid opines that while LD has a number of historical risk factors, including the extreme violence of the index offence, LD’s diagnosis of a serious mental illness, an early history of non-compliance with medication and poor engagement with treatment, previous instances of aggression and anti-social behaviours, a history of gambling and problematic alcohol and substance use, LD also has a number of protective factors that are likely to moderate LD’s overall risk of interpersonal violence.
These protective factors include LD’s good insight into LD’s offending, treatment and illness, early warning signs, compliance with treatment and supervision, lack of violent ideation, absence of acute psychotic symptoms, stable living situation and strong familial and personal supports.
Taking all of these factors into consideration, Dr Reid opines that LD’s current stressors are manageable and that LD’s overall risk of harm to self or others is considered to be low. However, Dr Reid emphasises that LD continues to require close monitoring in relation to LD’s alcohol consumption and gambling to ensure that LD maintains a good level of general stability.
Given the foregoing, Dr Reid supports LD’s application for a further grant of extended leave on the conditions contained in his leave plan, which is annexed to his report.
Conclusion
LD has a diagnosis of schizophrenia and a history of substance abuse. At the time of the homicide in 2010, LD was floridly psychotic. Although LD had been subject to a CTO up until the weeks preceding the index offence, LD’s treatment was significantly undermined by non-compliance with medication and substance abuse. It is well-established that there was a direct relationship between LD’s illness and LD’s offending conduct.
In considering whether LD is likely to endanger self or the community were extended leave to be granted, the diagnosis of a serious mental illness, the violent nature of the index offence, a history of childhood trauma, antisocial behaviours, impulse gambling, substance abuse and non-compliance with medication are all static risk factors that I acknowledge.
Additionally, LD’s recent issues with excessive alcohol consumption and maintaining transparent therapeutic relationships are of some concern. These matters were emphasised to LD at the hearing before me, and I believe he is able to understand their significance.
Weighing against these risk factors are mitigating factors such as LD’s illness being in remission for some time, LD’s good insight into the index offending, illness and treatment, as well as LD’s stable living situation and contemporary history of compliance with treatment and supervision. It is also a significant protective factor that LD has the strong support of LD’s partner, as well as a variety of community linkages.
Further, LD’s risk might also be mitigated by LD’s lack of recent violent ideation, enduring violent attitudes or suicidal ideation.
From a practical point of view, LD’s treatment and supervision will continue to be provided by the same treating team from the CTT. The application for further extended leave is supported by LD’s treating team, the Attorney-General and the Secretary, and I too am satisfied that the evidence supports the application for further extended leave.
Having considered all of the evidence in detail, I am satisfied that releasing LD on further extended leave would not seriously endanger the safety of LD or members of the public as specified in s 57(2) of the Act.
Further, I am of the view that the grant of extended leave would be consistent with the principles set out in s 39(1), having had regard to the considerations identified in s 40(1) of the Act.
It was for these reasons, I granted the application for extended leave on 12 October 2018, subject to the conditions sought under the leave plan which is annexed to Dr Reid’s report.
The orders that I made were as follows:
1. Under s 57(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), the applicant is granted extended leave for 12 months commencing from 19 October 2018 subject to the following conditions:
(a) The applicant be under the supervision of the authorised psychiatrist of the Victorian Institute of Forencis Mental Health (‘VIFMH’) or his or her delegate.
(b) The applicant reside at a location approved by the authorised psychiatrist of the VIFMH or his or her delegates.
(c) The applicant abide by the lawful directions of the authorised psychiatrist of the VIFMH or his or her delegate.
(d) The applicant comply with treatment and testing and attend appointments as directed by the authorised psychiatrist of the VIFMH or his or her delegate.
(e) The applicant abstain from the abuse of alcohol and from use of illicit drugs.
(f) The applicant not leave the state of Victoria without the written permission of the authorised psychiatrist of the VIFMH or his or her delegate.
2. Pursuant to s 75(1) and until further order, no person shall publish or broadcast or cause to be published or broadcast, by means of radio, television, internet or otherwise:
(a) any evidence given in the proceeding;
(b) the content of any report or other document put before the court in the proceeding; or
(c) any other information concerning the proceeding
that might enable the applicant or any person who has appeared or given evidence in the proceeding to be identified.
1
0