McLean v Attorney-General
[2020] VCC 287
•11 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR 16-01213
| IN THE MATTER OF A REVIEW pursuant to s 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 | |
| and | |
| HAYDEN MCLEAN | Applicant |
and
THE ATTORNEY-GENERAL Respondent
and
DEPARTMENT OF HEALTH AND HUMAN SERVICES
and
DIRECTOR OF PUBLIC PROSECUTIONS
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 October 2019 | |
DATE OF JUDGMENT: | 11 March 2020 | |
CASE MAY BE CITED AS: | McLean v Attorney-General & Ors | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 287 | |
REASONS FOR JUDGMENT
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Subject: CRIMINAL LAW
Catchwords: First review of non-custodial supervision order
Legislation Cited: ss 33, 39, 40 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Cases Cited:NOM v DPP (2012) 38 VR 618, Re Friedman (a pseudonym) [2019] VSC 251, Fowler v Secretary to the Department of Health (2014) 43 VR 530, Briginshaw v Briginshaw (1938) 60 CLR 336
Judgment: Review held. Non-custodial supervision order confirmed. Further review in 12 months’ time
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APPEARANCES: | Counsel | Solicitors |
| For the Attorney-General of Victoria For the Secretary of the Department of Health and Human Services For the Reviewee | Ms J Buxton Ms E Frawley Ms S Dhanji | Victorian Government Solicitor’s Office Department of Health and Human Services |
| Victoria Legal Aid | ||
| For the Director of Public Prosecutions | Ms L Wilkinson | Office of Public Prosecutions |
HIS HONOUR:
Introduction
1 This is a review under s 27(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) of a non-custodial supervision order (‘NCSO’) made in respect of the Reviewee, Hayden McLean, by His Honour Judge Parsons on 2 August 2017.
2 The index offending concerned 67 charges of theft, one charge of burglary, five charges of assault, one charge of causing injury recklessly, one charge of attempted theft and four charges of wilful exposure, all committed between October 2013 and January 2016.
3
Mr McLean was found unfit to stand trial on 20 February 2017 and on
22 February 2017 following a special hearing, he was found to have committed each of the offences charged.
4 Judge Parsons ordered that Mr McLean be subject to a supervision order for an indefinite term under the Act and made a NCSO pursuant to s.26(2)(b) for a nominal term of five years. His Honour ordered the matter be brought back for review at the end of two years.
5 The NCSO is subject to the following conditions:
a) That Mr McLean be subject to the supervision of the Secretary, Department of Health and Human Services (‘Secretary’) or his or her delegate;
b) That he reside at an address in Beales Road, Greensborough or at any address approved by the Secretary, or his or her delegate;
c) That he abide by the lawful direction of the Secretary or his or her delegate;
d) That he comply with any treatment or testing and attend appointments as directed by the Secretary or his or her delegate; and
e) That he not leave the state of Victoria without first obtaining permission from the Secretary or his or her delegate.
6 Each of the Department of Health and Human Services (‘the Secretary’), the Attorney-General, the Director of Public Prosecutions (‘the Director’) and the Reviewee were represented at the hearing. On application by Mr McLean’s legal representative, I acceded to a request that Mr McLean not be present for the review so as to avoid causing him undue stress. His parents were present at Court for the hearing.
7
Filed with the Court was an Affidavit sworn on 18 October 2019 by
Louise Wilkinson, solicitor with the Director of Public Prosecutions, confirming that all of the victims that could be located had been notified by mail, as had family members of Mr McLean. I am satisfied that the relevant victims and family members have been notified of the hearing. Ms Wilkinson confirmed that there were no reports provided to the Director and she was excused from further participation in the review.
8 The position of the Secretary and the Reviewee at the hearing was that the NCSO be revoked. The parents of Mr McLean are supportive of the revocation of the Order. The Attorney-General submitted that the order and its conditions should be confirmed and a further review be conducted.
Evidence on the review
9 The following reports were tendered at the review hearing:
a) Report of Dr Carolyne Thompson dated 18 September 2019;
b) Report of Mr David Wragg headed ‘Hayden MCLEAN – Behaviour Data Summary 2019; and
c) Report of Larissa Gough, Disability Justice Coordinator dated 30 September 2019.
10 Dr Thompson and Ms Gough gave evidence before me on 22 October 2019. As will be discussed, both witnesses supported revocation of the Order.
Applicable legislation
11 A review of a NCSO is governed by s 33 of the Act. That section provides:
Variation or revocation of non-custodial supervision orders
(1) On an application under section 31 for variation or revocation of a non-custodial supervision order or on a review of a non-custodial supervision order directed under section 27(2) or on a further review of a non-custodial supervision order directed under subsection (2) or section 32(5), the court must, by order—
(a) confirm the order; or
(b) vary the conditions of the order; or
(c) vary the order to a custodial supervision order; or
(d) revoke the order.
(2) Unless the court revokes the order, 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.
(3) A direction may be given under subsection (2) more than once.
12 In exercising my powers on a review, I am required by s 39 of the Act 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.
13 Section 40(1) of the Act sets out the matters to which the Court must have regard in deciding whether to confirm, vary or revoke the order. It relevantly provides:
In deciding whether or not to make, vary or revoke an order under Part 3, 4, 5 or 5A in relation to a person … 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 fit.
14 Section 40(2) of the Act states that the Court cannot revoke a supervision order 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
(e) has obtained and considered any other reports the court considers necessary.
Evidence of Dr Carolyne Thompson
15
Exhibit “A” is a report from Dr Carolyne Thompson, psychologist, dated
18 September 2019.
16
Dr Thompson’s report was prepared by reviewing a number of reports and an interview with Mr McLean’s mother, Mrs Darian McLean, conducted on
9 September 2019. On that day, Dr Thompson attempted to engage with
Mr McLean but he could not be distracted from a planned shopping trip. I am not aware of any further attempts by Dr Thompson to meet with and examine Mr McLean. I am not certain that the report of Dr Thompson in fact complies with s 40(2)(a) as she has not “personally examined” Mr McLean.
17 In any event, Dr Thompson reported that Mr McLean was diagnosed with Autism Spectrum Disorder (‘ASD’) when he was two years of age and assessed as having an intellectual disability in early 1991, at the age of 12. Mr McLean is now aged 41.
18
Dr Thompson noted that Mr McLean lives in supported accommodation on a four-hectare property. She reported that Mr McLean’s family provide support alongside a multidisciplinary team that was convened in 2016. That team consists of daily support workers, a psychologist, a ‘practice coach’, a speech therapist, an occupational therapist and more recently, an art therapist. When Mr McLean is out in the community he is assisted by two support workers. When at home during the night, a support worker is present overnight.
Dr Thompson considered the team worked ‘cohesively’.
19 According to Dr Thompson, Mr McLean’s behaviours are not associated with criminality but are an expression of his ASD and intellectual disability. She identified several behavioural concerns including:
i. Wearing nappies in public;
ii. Taking items from shops without paying;
iii. Running out into traffic; and
iv. Self-harming.
20 In relation to taking items from shops, Dr Thompson noted that Mr McLean would take functional items such as stationary and wool for knitting which he considers is his work. While out at the shops, he is followed by two support staff who record what he takes and then pay for them.
21 It was reported to Dr Thompson that Mr McLean’s road sense is poor. She stated that the potential for him to run into traffic is exacerbated by a need to escape restraint or confrontation but that he can also venture into traffic even without any such threat.
22 Dr Thompson stated that Mr McLean’s desire to wear nappies in public and remove items from shops without paying for them has often resulted in negative attention from members of the public and retail assistants not acquainted with him. She noted that steps have been taken with the local police and local members of the community to inform them of his ASD and intellectual disability so that they may better understand and protect him.
23 Dr Thompson reported that Mr McLean may become agitated if confronted with a stressful situation or attempts to restrain him. In such cases he tends to ruminate over the event for some time afterward and may remain ‘heightened’ for several hours.
24 Mr McLean’s mother told Dr Thompson that this has often led to episodes of self-harming such as hitting his head against a rock, as well as him damaging property.
25 Dr Thompson stated that Mr McLean’s impulsive behaviours, such as running out into traffic, appear most likely to occur when he is avoiding restraint or confrontation. Other impulsive behaviours include attempting to alight from a moving car and defecating in public.
26 In approximately March 2018, Mr McLean was diagnosed with depression and anxiety and was prescribed Sertraline. He was also prescribed Seroquel, a mood stabiliser, which helps manage episodes of angst that may lead to self-injurious behaviour.
27 Dr Thompson noted that Mr McLean’s family continue to provide consistent support alongside the multidisciplinary team. Dr Christina Kozar, consultant forensic psychologist, also provides clinical advice and often attends care team meetings. Assistance is also obtained from Dr Edward Theophenos, forensic psychiatrist. Care team meetings are convened on a regular basis.
28 Dr Thompson was of the opinion that McLean’s behaviours are congruent with components of his diagnosis of ASD with the added complexity associated with intellectual disability, anxiety and depression. She considers that his behaviours are not an expression of anti-social sentiment, but an expression of his disability and mental health. Dr Thompson queried the purpose served by maintaining the Order in circumstances where Mr McLean’s behaviours are not motivated by a desire to engage willingly in anti-social behaviour.
29 Dr Thompson concluded that the funding provided by the National Disability Insurance Scheme (‘NDIS’) allows for the ongoing engagement of Mr McLean’s multidisciplinary support team. In her view, the NDIS support negates the need for the order because, according to her, it does not achieve anything beneficial by way of support or monitoring that is not already being provided through the NDIS.
30 In her evidence before me Dr Thompson said the introduction of the NDIS substantially decreased the role of the Department of Health and Human Services such that it only provides forensic support whilst the NDIS provides everything else. In Mr McLean’s case, she said forensic support amounts to being a contact for the NDIS and ensuring Mr McLean’s reviews are done for Court purposes.
31 In relation to NDIS funding, Dr Thompson believed it would continue but added ‘there’s never any guarantees as to how much money will be coming through from one package to the next.’[1]
[1] T18
32 Dr Thompson was asked by Ms Frawley, who appeared for the Secretary, whether the NCSO assisted in reducing behaviours of concern, namely, the wearing of nappies, the taking of items from shops without payment, the running into traffic and responding to being restricted. In reply Dr Thompson said:
‘I don't believe the NCSO has done anything to influence
Mr McLean's behaviour.’[2]
[2] T17
33 Asked whether the NCSO assisted in reducing the risk to the community from offending behaviour, Dr Thompson said:
‘I don't believe the NCSO influences potential risk at all insofar as, as I point out in my report, I don't believe Mr McLean engages in these behaviours with a view to being antisocial with any criminal intent.’[3]
[3] T19
34
Dr Thompson did not consider the NCSO had any influence on reducing
Mr McLean’s risk of self-harm.
35 Dr Thompson was asked about the impact of revoking the Order on the supports Mr McLean receives from his care team and family support. She said that whilst the support given by the Department would cease, Mr McLean’s support from his care team and family would remain the same.
36 In relation to Mr McLean’s understanding that he is subject to an NCSO and its conditions, Dr Thompson said:
‘To my view, he doesn't understand the conditions of the order or how they should be influencing his behaviour or the choices that he'd be making.’[4]
[4] T19
37 Dr Thompson was asked whether the oversight of the Court adds anything to Mr McLean’s case. Dr Thompson replied:
‘I don't see it as adding anything at all really. I don't see it as having any influence one way or the other.’[5]
[5] T 19
38 Under cross-examination by Ms Buxton, Dr Thompson conceded that the question of NDIS funding was outside her area of expertise. She could not say whether the package on annual review would change for the better, remain the same, or even slightly decrease. She simply did not know.
39
Dr Thompson was asked to describe behaviours of concern in the last 12 months. She stated that the behaviours she had been informed of have been the wearing of adult nappies, running out onto the road, going out on long walks without supervision and possibly self-harming. Whilst there is in place 24 hour supervision, to her knowledge there are no locked doors meaning that
Mr McLean could leave the property.
40 Dr Thompson was taken to a reference in her report regarding Mr McLean attempting to alight from a moving car. When asked to elaborate on the incident, she said it was part of a report she had read and was unable to add anything other than her belief that it was an expression of Mr McLean wanting to do something there and then and that he was assisted in withdrawing from that conduct by support workers. She had only read about one such incident but could not say whether there was more than one.
41 Dr Thompson stated that one of her areas of concern is that Mr McLean will try and avoid someone in the community who might be trying to apprehend him and will act without thinking. She was aware that in 2012 Mr McLean was struck by a car as he ran out onto the road.
42
Dr Thompson was asked about an incident on 16 November 2018 where
Mr McLean attended an unknown residence and entered a garage. Police were called and escorted him from the premises without incident. Dr Thompson said she could not comment on that. Dr Thompson was then asked about another incident on 28 January 2019 where Mr McLean absconded from Forest Hill Reserve and walked 15 kilometres to a Coles supermarket in Boronia.
Dr Thompson said she knew about the incident but could not add anything in terms of what had happened.
43 Dr Thompson stated that Mr McLean should be accompanied at all times whenever he is out in the community and that when he was out in the four hectares of his rental premises it would be safe to have Mr McLean with at least one person there that was able to support him.
44 Dr Thompson stated that Dr Kozar had in place a strategy document to deal with Mr McLean’s behaviours such as running out onto the road but could not say what the road safety strategies were. Dr Thompson could not state whether Mr McLean was resistant to support workers being in close proximity to him. She ‘imagined’ that they would intervene if they noticed he was becoming heightened and try and redirect him before he took any overt action, for example, such as sprinting across the road. She acknowledged that once it got to that point it would be too late.
45 As for Mr McLean’s propensity to run into traffic, Dr Thompson said:
‘…I was given to believe that that doesn't happen a lot and yes it's of concern to [the care team], because obviously they want to keep Mr McLean safe. So, that's why they have so much input and trying to put the strategies in place that would redirect any behaviours or situations that could lead to him running across the road.’[6]
[6] T31 L5-11
46
When asked about Mr McLean’s progress since the order was imposed
Dr Thompson described it as ‘slow’ but envisaged further progress given the consolidated efforts of everyone involved.
47 Dr Thompson stated that Mr McLean is assisted in taking medication. She was not aware of any non-compliance around medication, and if there was resistance to taking medication, it would be brought up with the care team.
48 Ms Dhanji, who appeared for Mr McLean, asked Dr Thompson about the gravity of harm and the likelihood of that harm eventuating.
49 Dr Thompson said:
‘The harm that immediately springs to mind is as we've already discussed, Mr McLean becoming frightened and running over, across the road. So the harm to the community would of course be the motorists that are going to be confronted with Mr McLean without the time to stop. And of course there's going to be harm to Mr McLean of being hit by a car. The other thing that could happen and it's happened in the past, is that community members that are unaware of Mr McLean's unique needs, might try and intervene in a way that again frightens him and that he'll react accordingly, by trying to escape what he sees as a proposed threat to his wellbeing.’[7]
[7] T 37
50 Dr Thompson accepted that at its absolute worst death to Mr McLean or others could result.[8] As to how likely that was, Dr Thompson said it had decreased somewhat and that she was led to believe the support team are vigilant in redirecting Mr McLean’s behaviour. She also stated that Dr Kozar’s strategies will help to redirect his behaviour in such a way that his feelings about anything that makes him unhappy are given the opportunity to be aired before they occur. She believed that he was able to express himself with limited vocabulary and body language.
[8] T37
51 Asked about an incident when he walked out into heavy traffic on 9 March 2019, Dr Thompson could not comment on that episode. Asked whether his support team is equipped to identify the risk of harm, such as running out into traffic, and to respond promptly to that risk Dr Thompson stated “as best as they can be,” but that there were no guarantees.
52
When asked whether she thought the NCSO is a deterrent factor for
Mr McLean, Dr Thompson said ‘I don’t believe it acts as a deterrent at all’.[9] Likewise, she did not believe the order to be a protective mechanism. Finally, she confirmed her view that she would ‘definitely’ support revocation of the order.
[9] T41
53 During re-examination by Ms Frawley, Dr Thompson confirmed her view that nothing would change if the NCSO were to be revoked.
Evidence of Larissa Gough
54 Ms Gough, a Disability Justice Coordinator with the North Division Disability Justice branch of the Department of Health and Human Services, provided a report for the purpose of this review pursuant to s.41(3) of the Act. It was tendered and marked exhibit “C”.
55 Ms Gough was allocated to Mr McLean on 9 September 2019. She described her role as limited to ‘secondary consultation and coordinating information for inclusion into annual reports to the court.’ She stated that Mr McLean is not currently participating in any offence specific treatment.
56
Ms Gough described Mr McLean’s NDIS funding as a ‘significant package’. She noted that the package will be reviewed on 24 March 2020. She considered that the current amount of funding was a reasonable approximation of
Mr McLean’s needs going forward but that Disability Justice was not able to guarantee funds allocated by the NDIS.
57 Under the heading ‘Background’, Ms Gough reported that Dr Kozar developed a strategy document in June 2019 to inform the care team of Mr McLean’s needs as well as strategies to promote his wellbeing.
58 The behaviours of concern, as identified by Dr Kozar, included walking for extended periods of time, often in various states of undress, wearing incontinence nappies gaffer taped to his body, disrobing in public to change the nappies, and acquiring items without paying for them.
59
Ms Gough recorded that over the reporting period Mr McLean had 10 interactions with police when out accessing the community. Of those 10, seven were described as ‘inconsequential’ involving staff losing sight of Mr McLean. In those instances either police located Mr McLean and waited with him until staff had arrived, or Mr McLean himself presented at the local police station of his own accord, or members of the public contacted police concerned about
Mr McLean’s presentation. It was not made clear to me how it was that staff lost sight of Mr McLean.
60 Ms Gough detailed three incidents of ‘significance’ in which Mr McLean had direct involvement with police due to ‘concerning behaviour’ including:
i. On 16 November 2018 Mr McLean attended an unknown residence and entered the garage. Police attended and with the assistance from support staff, engaged Mr McLean in conversation. Mr McLean then exited the premises.
ii. On 28 January 2019, at dusk, Mr McLean entered Forest Hill Reserve. He was located by police at 5.48 am at the Coles supermarket in Boronia, approximately 15 km from the Forest Hill Reserve.
iii. On 9 March 2019 Mr McLean put incontinence pants on outside a Commonwealth Bank. He entered a number of shops wearing only the nappy. When Police attended upon him, Mr McLean ran out of the shopping centre and walked out into heavy traffic. Police had to physically remove and restrain Mr McLean.
61 Tendered at the review hearing and marked exhibit “B” is a document headed ‘Hayden McLean Behaviour Data Summary 2019’. The document was prepared by Mr David Wragg, a consultant behaviour support specialist.
62 The document lists data recorded each day by staff supporting Mr McLean.
63 Under the headings: ‘leaving staff support (sometimes referred to as absconding)’; ‘disrobing in public’; ‘taking objects without paying’; ‘unsafe road behaviour’; ‘self-injurious behaviour’; and ‘interactions with the public’ the document details the frequency and duration of those behaviours for the period January 2019 to May 2019.
64 Thus, under the heading “Leaving Staff Support (sometimes referred to as absconding)” Mr McLean left without staff support in an unsafe manner for varying periods of time, which are noted in the report, on the following occasions:
January 2019 - nine days
February 2019 - seven days
March 2019 - 12 days
April 2019 - 11 days
May 2019 - nine days.
65 Instances where Mr McLean engaged in unsafe road behaviour are as follows:
January 2019 - four days
February 2019 - eight days
March 2019 - 10 days
April 2019 - nine days
May 2019 - three days.
66 Mr Wragg defines these as “instances where [Mr McLean] enters roadways or parking lots where he may be harmed. This behaviour may cause cars to stop or change course suddenly to avoid colliding with [Mr McLean].” This behaviour includes behaviour such as not looking before crossing the road, not using pedestrian crossings, walking on the road with traffic instead the sidewalk, and stopping in the middle-of-the-road while crossing.
67 I infer from the fact that it is ‘recorded data’, the behaviour occurred whilst Mr McLean was in the presence of support staff.
68 Exhibit “B” also sets out data concerning disrobing in public, taking objects without paying, self-injurious behaviour, and interactions with the public, both positive and negative.
69 Ms Gough expressed the view, based on the data collected by Mr Wragg, that Mr McLean’s self-harming behaviours have decreased since the introduction of anti-depressant medication. She also considered that there had been a reduction in behaviours of concern which she attributed to the oversight of the professional care team and quality of support and engagement from care staff. Ms Gough noted that Mr McLean receives 24 hour supervision and supportive care regardless of the NCSO.
70
Ms Gough stated that Mr McLean continued to exhibit behaviours of concern, but these are now effectively being managed by the implementation of
Dr Kozar’s strategy document. She considers that Mr McLean’s care team are proficient in managing and supporting Mr McLean, and that it is more appropriate for Mr McLean to be managed from a disability specific perspective rather than a justice perspective.
71 Ms Gough concluded her report with a recommendation that the NCSO be revoked on the basis that:
‘...Mr McLean’s behaviours of concern can be, and are being more effectively managed by the clinical care team supported through NDIS funding and, consistent with section 39 of the Act, represents the least restrictive approach to Mr McLean’s freedom and personal autonomy consistent with the safety of the community’.
72 In evidence before me, Ms Gough stated that if the NCSO was revoked her role would cease and so would the preparation of court documents but all other professional support services would continue. In relation to Mr McLean, her role, she said, was one of preparing documentation for court. All other support staff and services were provided under the NDIS and will continue.
73
Ms Gough was unsure whether there had been an update to exhibit B,
Mr Wragg’s report which, as earlier stated, reports only up to May 2019. When asked by Ms Buxton about her statement in her report that there had been a reduction in behaviours of concern, Ms Gough answered that she thought “the things that have changed for [Mr McLean] over the past two years is obviously having a large amount of funding available with the NDIS package, which has enabled a fabulous support team to be put in place.”[10] She also stated that she was aware that the local community was now viewing Mr McLean more favourably so there were less police reports. However, she could not say that Mr McLean’s behaviour had progressed over the last two years.
[10]T 56
74 In relation to the risk of endangering himself and others, Ms Gough stated that, in her opinion, Mr McLean’s risk to himself or others is minimal given the support staff that are in place. She said that support staff act to intervene and that diminishes a lot of the risk that Mr McLean faces in the community. Ms Gough was asked how far from Mr McLean the support staff were when he was out walking in the street. She could not answer that question other than saying it would be her understanding that if he was in a high risk situation staff would be closely monitoring his behaviour. She was unsure whether he was resistant to staff walking alongside of him.
75 Ms Gough did not support her assertion about the reduction in behaviours of concern with any empirical evidence.
76 Under cross-examination by Ms Dhanji, Ms Gough stated that there are two staff members with Mr McLean when he is out in the community and one staff member working overnight. That staff member is not on an active shift, meaning that the staff member sleeps during the night.
77 Ms Gough conceded that Mr McLean accessed the community without support workers on occasions. She said she could not clearly identify how frequently or for how long. Ms Gough accepted that Mr McLean did so without permission but added that Mr McLean is not under an order requiring 24 hour supervision.
Submissions
78
Ms Frawley submitted that if the NCSO were to be revoked, the only real practical difference to Mr McLean would be the loss of the role of Ms Gough which, because of Mr McLean’s disabilities, is limited to collating reports for reviews. Ms Frawley did, however, concede that the court’s oversight of
Mr McLean would be lost if the Order was revoked, as would the ability of the court to make, if necessary, emergency apprehension orders, or to vary the order to a Custodial Supervision Order, if that was thought appropriate.
79 Despite that, Ms Frawley submitted that the NCSO should be revoked because it is not necessary. She submitted that Mr McLean has adequate support from his care team and an extensive NDIS package. She submitted that there was no reason to consider that the NDIS would drastically reduce those supports in the future. She submitted that there was no evidence before me to suggest that the supports will not continue.
80 Ms Frawley further submitted that Mr McLean has no appreciation or understanding of the Court Orders and that therefore the order does not assist in monitoring his behaviour or safeguarding the community.
81 Ms Frawley also relied on section 39 of the Act, that is, the principle of parsimony, or minimal restriction, as being relevant to my discretion.
82
While conceding that Mr McLean is likely to endanger himself and others,
Ms Frawley contended that the NCSO should be revoked because the order does not reduce the risk of endangerment to himself or the community, a view she said was supported by Dr Thompson and Ms Gough. The risk to the community, she submitted, will be the same whether the NCSO is in place or not because the multifaceted supports will remain in place.
83 Ms Buxton submitted that the NCSO should be confirmed because Mr McLean poses a present risk of danger to himself and the community, a matter conceded by Ms Frawley and Ms Dhanji. She submitted that section 40(1)(c) of the Act requires me to consider that there is a present risk regardless of whether the non-custodial supervision order was a deterrent to Mr McLean or not. She submitted that the question of whether there is a risk to Mr McLean or others is a significant factor in the decision I am required to make.
84 Ms Buxton highlighted that what would be lost if the order was revoked would be the oversight and the monitoring of risk by the Court; the capacity to order custodial supervision if the need arose; emergency powers of apprehension and periodic reviews. Ms Buxton further submitted that the Court would lose the power to vary conditions in response to future changes in Mr McLean’s clinical diagnosis or NDIS funding. In relation to the role of the disability coordinator, that is, Ms Gough’s role, Ms Buxton submitted that the role could be enlarged if the circumstances required.
85 Ms Buxton asserted that the risk Mr McLean poses has not been reduced to an extent that weighs in favour of revocation at this time.
86
Ms Dhanji adopted the submissions made by the Secretary and added that
Mr McLean’s family supported revocation.
87 She informed me that Mr McLean is on what is known as a “complex needs program” under the NDIS package. He has been on that package for three years and reviews are made on a yearly basis.
88 Ms Dhanji referred to the Court of Appeal’s decision NOM v DPP (2012) 38 VR 618, at paragraphs 57 to 59. She accepted that the evidence suggested that there is a risk of harm both to Mr McLean and to members of the community. She submitted that I am bound to have regard to both the gravity and likelihood of harm that may eventuate. She submitted that where the likelihood, even of significant harm, is low that may form the basis for revocation.
89 Ms Dhanji submitted that I should treat the report of Mr Wragg with some caution given he did not give evidence. However, I note, that his report was tendered without objection and that no party sought to have him called to give evidence. The matters in his report were not contradicted by other evidence.
90 Ms Dhanji conceded that if I were to revoke the order, and Mr McLean’s behaviour deteriorated and increased the danger to himself and others, there would then be no power to place Mr McLean on a custodial supervision order. However, it was her submission that the supports in place mitigate the risk of harm to Mr McLean and to members of the community.
91 Ms Dhanji acknowledged that the risks of harm remain but her principal submission was that the NCSO does not act as a deterrent to those behaviours, nor does it act as a protective mechanism beyond the supports that are being provided under the NDIS package.
92 Ms Dhanji also referred to paragraph 71 of NOM submitting that the purpose of a NCSO is not to serve as a backstop. She relied on Dr Thompson’s evidence that the NCSO is not playing an active role.
93 In reply, Ms Frawley stated that section 40(1)(c) is about “likelihood”, not about the gravity of harm. She referred to paragraphs 58 and 59 of NOM. However, as I understood her submission, I am entitled to look at the gravity of the harm under subsection (1)(f).
Legal Principles
94 Section 40(1) of the Act sets out the matters to which I am to have regard in deciding whether to confirm, vary or revoke the order. However, as was stated by Niall JA in Re Friedman (a pseudonym) [2019] VSC 251, at [114]:
‘The matters set out in s 40(1) are not criteria that condition the exercise of the power, rather they are matters that the court must have regard to in determining whether or not to exercise the power to revoke the NCSO.’
95 Section 40(1)(a) requires me to have regard to the nature of Mr McLean’s mental impairment or other condition or disability.
96 Mr McLean was born on 4 October 1978. He suffers from an intellectual disability. He was first diagnosed with intellectual disability on 11 January 1991. He was diagnosed with autism spectrum disorder when he was aged two. In early 2018 he was also diagnosed as suffering from depression which is currently being treated with medication. He is also prescribed medication to stabilise his mood and manage episodes of angst that may lead to self-injurious behaviour. According to Dr Thompson, Mr McLean’s progress since August 2017 has been slow.
97 Section 40(1)(b) requires me to have regard to the relationship between the impairment, condition or disability and the offending conduct. It is clear from all of the evidence that Mr McLean’s offending conduct is directly related to his autism and intellectual disability. I accept that he has no intention to break the law or to harm others. I also accept that he does not behave in an anti-authoritarian way. His behaviours are not considered an expression of anti-social sentiment.
98 I am required under s 40(1)(c) to have regard to whether Mr McLean is, or would if released be, likely to endanger himself, another person, or other people generally because of his mental impairment.
99 In NOM at [58] the Court of Appeal observed:
‘The terms of s 40(1)(c) requires a Court to assess whether a person is ‘likely to endanger themselves or others.’ This serves to emphasise that the focus is upon the extent of the chance, risk or peril of some harm materialising. If the harm or injury which is likely to result is substantial but the ‘chance’, ‘risk’ or ‘peril’ of it eventuating is minimal, then a person subject to a supervision order is not necessarily ‘likely to endanger’ himself or others under s 40(1)(c).’
100 I am not satisfied on the basis of the evidence of Dr Thompson and Ms Gough that the risk of Mr McLean harming himself or others is low or minimal.
101 I consider that the evidence presented regarding Mr McLean’s concerning behaviours is lacking in sufficient detail to enable any finding to be made that the risk is low or minimal. Neither Dr Thompson nor Ms Gough gave evidence that inclines me to the view that there has been a reduction in the behaviours of concern which are likely to endanger Mr McLean, another person or the community generally.
102 As stated earlier, Ms Gough conceded that Mr McLean accessed the community without permission and without support workers on occasions. She could not clearly identify how frequently or for how long. The 10 interactions with the police referred to in her report are simply, in my opinion, too many.
103
The Court, I think, would have been better informed had Dr Kozar been called to give evidence. She appears to be a person who has had more to do with
Mr McLean than either Dr Thompson or Ms Gough.
104
The report of Mr Wragg, exhibit B, covering the period January 2019 to May 2019 is a matter of concern to me. Contrary to the views expressed by
Ms Gough, I do not consider there is any evidence that the behaviours of
Mr McLean have in any way changed. The evidence on this point is vague. I have little doubt that Mr McLean has a very good support team and that the police and community who know him or of him, treat him more sympathetically, but it appears to be conceded by all parties that he is still a person likely to endanger himself or others.
105
Section 40(1)(d) requires me to have regard to the need to protect people from such danger. At the risk of repetition, the most problematic of Mr McLean’s behaviour, in my opinion, is his walking or running out onto the road.
Mr McLean appears to have little to no road sense or awareness of traffic. The evidence does not show that the presence of his support workers when he is out in the community is sufficient to stop him from walking or running on to the road if he becomes emotionally heightened. I am also very concerned about the fact that he was able to walk on his own some 15 kilometres from his home without any support staff being aware of his whereabouts.
106
It is troubling that in response to a question by me concerning Mr McLean being out in the community without support workers and without permission,
Ms Gough stated that Mr McLean is “not under an order that says that he needs to be supervised 24/7 and he’s not in a locked care facility either”.[11] In my opinion, based on the evidence of exhibit B and Ms Gough’s report instancing 10 episodes of Mr McLean being in the community without support or supervision I consider that there is a need to protect people from endangerment.
[11]T 63
107 Section 40(1)(e) requires me to have regard to whether there are adequate resources available for the treatment and support of the person in the community.
108
On the available evidence, it appears to me that Mr McLean is already receiving significant treatment and support in the community. The services he is receiving are provided under the NDIS, not from the DHHS. According to
Ms Gough it is reasonable to expect that the level of funding currently being received will continue, however there was no evidence called on this issue.
109 Further, in light of the services provided to Mr McLean under the NDIS and also because of the nature of his disability and autism, it would seem there are no other forensic services that Ms Gough can provide beyond those currently being provided under the NDIS. Thus, for example, Mr McLean would not be suitable to participate in any offence specific treatment. As I understand the evidence, he does not have the capacity to engage in such treatment.
110 A strategy prepared by Dr Christina Kozar in late June 2019 is being implemented. It is designed, amongst other things, to deal with his behaviours that put him and others at risk. Mr McLean also enjoys the strong support of his family.
111 With regard to Dr Kozar’s plan there has been no direct evidence before me as to whether it has made any difference to decreasing the behaviours that place Mr McLean and others at risk. With respect to Dr Thompson and Ms Gough, their evidence on this issue was vague and lacking in detail. The Court would have been assisted by an updated report from Mr Wragg for the period after the implementation of Dr Kozar’s report.
112 I am most concerned with Mr McLean’s absconding behaviours and the dangers that may be caused to him and others in the community. The evidence of what is being done to address this, as I say, is lacking in detail and there is no evidence as to whether strategies being employed have reduced the risk.
113 I am, of course, required by s 39 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.
114 In NOM, at paragraph [71] the Court of Appeal stated:
‘Supervision is a restriction on liberty and autonomy and it can be justified only where it is found to be necessary. The fact that the nature or degree of legal restrictions on a particular individual’s liberty may be regarded as inane, facile or practically ineffectual, cannot justify preservation of the status quo where the restriction is not the minimum necessary to accord with the safety of the community. If it was not necessary to impose any restriction on the appellant to ensure the safety of the community, the statutory regime, informed by the principle of parsimony did not allow for the consideration of the degree of inconvenience to the appellant to justify non revocation of the order.’
115
The submission that the NCSO be revoked is that in light of the services provided under the NDIS, the NCSO does not add anything. Ms Frawley asked, rhetorically, if I were to revoke the NCSO is that going to endanger Mr McLean or other people generally? She also stated “There’ll be no dispute that
Mr McLean is at danger of continuing the current behaviour, but the question before your Honour perhaps is, what does the NCSO add?”[12] In answering her own question, Ms Frawley later added that in this case the NCSO added the role of the Department case manager, who has expressed that her role is essentially one of “collating information”. She also said the NCSO added the “oversight of the Court”. Ms Dhanji adopted a similar position.
[12]T 8
116 In my opinion, it is regrettable that the Department case manager views her role simply as collating information. That view ignores the role of the Secretary which, pursuant to the order made by Judge Parsons, is to have the supervision of Mr McLean, ensure compliance with each of the conditions of the Order and provide reports to the Court when required. Also, under s 29 of the Act, the Secretary may apply for a variation of the Order if a person fails to comply with it.
117 In my opinion, the submissions of Ms Frawley and Ms Dhanji undervalue the role of the Court and that of the Secretary.
118 In Fowler v Secretary to the Department of Health (2014) 43 VR 530 the appellant had been placed on a Community Treatment Order under the Mental Health Act whilst she was also on a NCSO. In an application to revoke the Order it was submitted that the Mental Health Act regime provided adequate resources for the treatment and support of the appellant in the community were the NCSO to be revoked.
119 In the judgment of Redlich JA, with whom the other members of the Court agreed, his Honour stated:
‘Under an NCSO, the person is subject to annual written reports to the Court. Upon any breach of the NCSO, an immediate application to the Court may be made to vary an order, and a person is liable to being arrested, restrained and detained if there is a reasonable belief of non-compliance and serious endangerment.’[13]
[13]At [23]
120 Further, at paragraph 28 of his Honour’s judgment:
‘Each application for revocation should, of course, be evaluated on its own merits in accordance with the criteria set out in s 40(1) of the CMIA. One consideration will be the fact that the person is subject to a treatment order under the MHA. But management of the person’s and the community’s safety from day to day by a treatment order under the MHA does not mean that an NCSO should not be retained. Whether the additional protections provided for under the NCSO regime are necessary will depend upon the circumstances of the particular case.’
121 In my opinion, in this case, the fact that Mr McLean is receiving services under the auspices of the NDIS does not mean that this Court should relinquish its supervisory role. I am not certain what protections the NDIS can provide in the event of endangerment. No submissions were directed as to the operation of the Mental Health Act and indeed, at one point Dr Thompson, when asked what would be the response if Mr McLean’s behaviours became more concerning, said that there might be some restrictions placed on his activities, but not through any application of the Mental Health Act.
122 On the evidence before me, I am not satisfied that the NCSO has nothing to add as has been submitted. The submissions ignore the supervisory role of the court and its powers to deal with the risks of endangerment. In a case where there is a real risk that Mr McLean is likely to endanger himself and other people, and there is a need to protect people from such danger, I consider that the Court’s supervisory role and powers under the CMIA continue to be important and necessary for Mr McLean’s safety and that of members of the community.
123
No party bears an onus in applications to revoke a non-custodial order and I am to make my decision applying the civil standard of proof, subject to the principle in Briginshaw v Briginshaw.[14] On the evidence before me I am not satisfied on the balance of probabilities that I should revoke the NCSO. I consider that
Mr McLean is likely to endanger himself, another person or other people generally because of his mental impairment. I consider that there is a need to protect people from such danger. I do not consider that the fact Mr McLean is currently receiving services under the NDIS is a substitute for the full supervisory powers of the Secretary and the Court, including the powers of arrest and the power to vary the order which, in my opinion, remain necessary at this time.
[14](1938) 60 CLR 336
124 Accordingly, I refuse to revoke the NCSO and will set this matter down for review in 12 months' time.
125 Do the parties wish me to set the date today?
126 MS DHANJI: Your Honour, I think that would be preferable.
127 HIS HONOUR: Thank you. The date that we have available is 11 March 2021. May I add that I am very grateful to the parties for their extensive submissions and the evidence that was called and also acknowledge again the presence of Mr and Mrs McLean in court. Ms Dhanji I am sure you will explain, if need be, the effect of the order and the reasons for the making of the order.
128 MS DHANJI: Yes, Your Honour.
129 HIS HONOUR: Thank you.
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