In the matter of RWS

Do Not Send for Reporting

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE COMMON LAW DIVISION

No. 1572 of 1998

IN THE MATTER OF a Major Review pursuant to s 35 of the Crimes (Mental Impairment and

Unfitness to be Tried) Act 1997

RWS

Reviewee

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JUDGE:	CURTAIN J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 September 2009
DATE OF JUDGMENT:	15 September 2009
CASE MAY BE CITED AS:	In the matter of RWS
MEDIUM NEUTRAL CITATION:	[2009] VSC 407

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A major review of custodial supervision order - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public	Ms J. Carpenter	Office of Public Prosecutions
Prosecutions
For the Reviewee	Mr T. Strong	Victorian Legal Aid
For the Attorney-General for	Ms E. Gardiner	Victorian Government
the State of Victoria	Solicitor
For the Secretary,	Ms A. Ring	Department of Human
Department of Human	Services
Services

RWS was found not guilty of the murder of his mother by reason of insanity on 12 November 1984. At the time of the index offence, he was 28 years old. He is now aged 53. He was first diagnosed with schizophrenia in 1983. RWS was received into custody in January 1984 and was treated for schizophrenia within the prison system, predominantly in G Division at Pentridge Prison, but also at Castlemaine Prison, until 1991 when he was transferred to the Rosanna Forensic Psychiatry Centre. Over the next two years, RWS gradually accessed leave increasingly until he was granted absence of leave to a group home on site.
In 1995, RWS was re-admitted to hospital as a result of a deterioration in his mental state consequent upon non-compliance with antipsychotic medication. He returned to live in a group home in February 1996, but in July of that year he absconded and travelled interstate and subsequently surrendered himself to a local police station. RWS was returned to the Rosanna facility, where he remained until March 1998, when he was again granted leave to a group home.
In February 1999, RWS made a successful application for extended leave, which was renewed the following year. During this time, RWS lived in a flat but was unhappy. He felt harassed by the local community, he complained of the traffic noise and sought re-admission to hospital on two occasions. He was also aggressive and violent towards staff members and verbally abusive to his case manager.
RWS was readmitted to the Thomas Embling Hospital for a month in 2000. His mental state at that time indicated that he was psychomotor agitated, distractible, anxious and depressed, disorganised in thought and with ideas of reference from the TV and radio. Attempts to find alternative accommodation were not successful and he was required to return to his flat. On 3 July 2001, RWS was readmitted to the Argyle Acute Unit at that hospital following upon an episode of self-harm. As a result, RWS’s extended leave was formally revoked on 3 August 2001. Since then, RWS has transferred to various care and rehabilitation units at Thomas Embling Hospital and back to the acute unit, the third transfer occurring in February 2006. His progress within the hospital since that time has been described as complex, with recurrent deteriorations of mental state, self-harm, chronic resistance to adequate doses of medication and ambivalence regarding discharge.
RWS has maintained low level contact with a community support group, NEAMI, and attends a weekly movie group and a fishing group every month. He currently utilises his leave in a limited fashion, enjoying his community linkages, walking in the local parklands and attending local shopping centres. There have been no incidents while on leave. He returns to the hospital sober and within time limits.
Dr Triglia, consultant psychiatrist, in her report dated 19 August 2009 and tendered in evidence as Exhibit A, states that since mid-January 2007 RWS’s mental state has remained relatively stable, with fluctuations but no major relapses. Since February 2009, RWS has been accommodated at the Jardine Rehabilitation Unit, which is a medium security unit outside the hospital but within the grounds, and that this provides RWS with a degree of privacy and independence, which he enjoys. Dr Triglia, in evidence before the Court, stated that RWS’s mental state at the moment is “probably as good as it has ever been. The Jardine Unit really does suit him”.
RWS continues to present with a number of low grade residual symptoms, including chronic anxiety, incongruous effect and mild thought disorder. RWS’s thoughts and internal feelings state remain, in the doctor’s opinion, extremely difficult to access and his insight into his previous deteriorations remain poor. Despite this, there have been signs of progress. He has continued to attend his community linkages and has recently re-commenced painting and playing guitar. His present therapy is focused on attempting to work on resilience to stress and establishing timeframes for progress which are realistic. Dr Triglia confirmed in evidence before me that RWS’s own timeframe for progress is to access overnight leave initially and then extended leave in the next year to two years. It appears that there has been little discussion regarding accommodation in the community, as it is the opinion of his treaters that forcing this issue would lead to a destabilisation of his mental state.
Dr Triglia is of the opinion that RWS’s insight is partial, he agrees to continue medication, but he is said to remain ambivalent about the need for ongoing medication at the current dosage. I note that he remains resistant to taking Clozapine, a medication which is reserved for treatment resistant cases of schizophrenia. He has difficulty identifying the symptoms of his psychiatric illness or reasons for past relapses.
Dr Triglia has opined that RWS’s diagnosis is schizophrenia in partial remission. RWS has been in hospital receiving treatment for his schizophrenia since a major mental state deterioration in July 2001. In Dr Triglia’s opinion, RWS’s progress has been complex, with repeated relapses in illness associated with stress or inadequate medication and that he will remain “fragile and brittle”. In Dr Triglia’s opinion, RWS has remained relatively well in the lower security Jardine Unit, which she describes as a positive, but relatively recent development.
RWS has been deemed to be under a custodial supervision order for the nominal period of 25 years since April 1994. This is a major review of that order pursuant to s 35(1)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Pursuant to s 35(3)(a)(i) of the Act, as RSW is on a custodial supervision order, the Court must vary the order to a non-custodial supervision order unless satisfied on the evidence available that the safety of the person the subject of the order or members of the public will be seriously endangered as a result of the release of the person on a non-custodial supervision order or (ii) if so satisfied, must confirm the order or vary the place of the order.
In deciding the appropriate order, the Court must apply the principles expressed in s 39 of the Act, that is that restrictions on a person’s freedom and personal autonomy should be kept to a minimum, consistent with the safety of the community. The Court is also to have regard to the matters adumbrated in s 40 of the Act. Addressing these matters, I have regard to the following:

(a)

The nature of the person’s mental impairment and other condition or disability.
RWS is diagnosed with schizophrenia in partial remission.
(b)        The relationship between the impairment, condition or disability and the offending conduct.
RWS was diagnosed with schizophrenia in 1983. He was admitted to Larundel Psychiatric Hospital on 21 March 1983 and admitted to having auditory hallucinations for approximately two years, but which had been getting worse in recent weeks. RWS also reported persecutory delusions, thought insertion, poor sleep, anorexia and loss of weight. He was treated with antipsychotic medication and transferred to the Lewana Clinic in Warrnambool where, over a two month admission, he was further treated with antipsychotic medication and electroconvulsive therapy. RWS was discharged to the outpatient clinic, but became non-compliant with medication and was lost to follow up. The index offence occurred in January 1984. It appears that in the months leading up to the index offence, RWS had ceased his medication. RWS believes his psychotic symptoms worsened after he was attacked by a bull in December 1983. He developed the belief that his mother was interfering with his thoughts and she meant to harm him.
(c)         Whether the person is or would if released be likely to endanger themselves or another person or other people generally because of his or her mental impairment.
Dr Triglia concluded that a number of factors in RWS’s history place him at moderate risk of re-offending, but that absent a number of dynamic factors, these factors would not of themselves be a barrier to discharge. However, the dynamic factors continue to be, in the doctor’s words, “sources of concern”. She nominated those factors as follows:

(i) RWS’s illness is fragile and his resilience to stress remains low.
(ii) The likelihood of a relapse remains high in the setting of overwhelming anxiety or stress.
(iii) RWS has not yet demonstrated a history of mental state stability in transition to community over an adequate period of time.
(iv) RWS’s insight is partial, even into areas such as the reasons for previous deteriorations or the need for ongoing medication.

(v) RWS’s ability to alert staff to any recurrence of symptoms is poor.
(vi) It is not clear whether the deficits in insight would impact on his compliance with community follow-up.

(vii) RWS has no current accommodation to which he could be discharged.
(viii) RWS is not seeking accommodation at this stage because he feels
unable to cope with the process.
(ix) RWS has few social supports in the community, with the real risk of future loneliness and isolation, which are factors that could, in the doctor’s opinion, increase the stress of community living.
I note also that on two occasions during RWS’s admission he has been hospitalised in respect of two episodes of self-harm.
Dr Triglia was of the opinion that:
“The risk to the community or to RWS himself, if he were to be discharged now, would be substantial. It is my opinion that despite the improvements outlined above, [RWS’s] ability to cope with a transition to community could not be assured at this stage. A demonstration of maintaining mental state stability while assessing gradually increasing leave to the community would be necessary to be confident that [RWS] would be able to cope.”
(d)        The need to protect people from such danger.
The matters addressed under the previous heading (c) are applicable here.
(e)        Whether there are adequate resources available to the community and support of the person in the community.
Irrespective of whether there are adequate resources and supports in the community, Dr Triglia’s opinion is, in view of RWS’s impaired insight, compliance with treatment in the community would not be assured and his compliance has not been tested for an adequate duration.
(f)         Any other matters the Court thinks fit.
RWS does not wish to have the custodial supervision order lifted.

Ms Carpenter, who appeared on behalf of the Director of Public Prosecutions, relying upon the affidavit of Louise Wilkinson sworn on 14 September 2009, has satisfied the Court that the relevant family members have been notified and there has been no response in respect of those notifications.
Ms Ring, who appeared on behalf of the Department of Human Services, made no submissions on the application and Ms Gardiner, who appeared on behalf of the Attorney General, highlighted the historical and dynamic risk factors as reported by Dr Triglia. Mr Strong, who appeared for RWS, while not opposing the continuation of the custodial supervision order, sought a review within the time prescribed by s 35(1)(b) of the Act. He submitted that the next major review should occur in 12 months’ time, as otherwise RWS may, in his words, “slip through the cracks in the system” and is at risk of becoming institutionalised, and that such a timely review would be consistent with the aims of the legislation, which is to re-integrate reviewees into the community.
RWS has been in custody and/or under supervision since 1984. His nominal term will expire in November of this year. The risk of institutionalisation appears to have become the reality as one of the principal stressors relate to RWS’s attempts at living in the community, so that continued supervision will not place him at further risk of institutionalisation and could not be said, at this time, to be detrimental. Dr Triglia, in her evidence, was of the opinion that there would not be any therapeutic purpose in having a review in 12 months’ time and that if RWS remained stable, had accommodation and was coping in the community, it would be open to him to apply for extended leave. In her opinion, he would not benefit from a review for a number of years, although Dr Triglia was not prepared to specify how many. Indeed, RWS’s own timetable is to utilise overnight leave within the next year or two, so that his own timeframe is for slow transition. In these circumstances, where RWS is said to be stressed and humiliated by the prospect of having to return to Court, where the prospect of his being granted extended leave is anticipated at this stage to be a gradual process and where RWS is subject to an annual review, I am satisfied that it is not necessary to order a review at a time other than that required by the legislature.
Dr Triglia’s opinion was not challenged, and it was not disputed that in the circumstances before the Court it is appropriate to continue the custodial supervision order. On the basis of that unchallenged evidence I am satisfied that the safety of RWS or members of the public will be seriously endangered as a result of his release on a non-custodial supervision order. Accordingly, having regard to all of the matters described by s 40(1) of the Act, and there being compliance with s 40(2)(a) and s 40(2)(ab), I propose, pursuant to s 35(3)(a)(ii), to confirm the custodial supervision order.

[2009] VSC 407

15 September 2009