Pelley (a pseudonym) v Director of Public Prosecutions
[2016] VCC 1804
•29 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication only in anonymised form |
IN THE MATTER OF an Application under s31 of the Crimes (Mental Impairment and Unfitness to be tried) Act 1997
and
IN THE MATTER OF
| ELLIOT PELLEY[1] | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | First Respondent |
| -and- | |
| THE SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES | Second Respondent |
| -and- | |
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Third Respondent |
[1] The identity of the Applicant has been anonymised pursuant to an order by Judge Cohen made 29 November 2016.
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2016 | |
DATE OF DECISION: | 29 November 2016 | |
CASE MAY BE CITED AS: | Pelley (a pseudonym) v DPP & Ors | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1804 | |
Reasons for Revocation of Non-Custodial Supervision Order
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Subject: CRIMES MENTAL IMPAIRMENT
Catchwords: Application for revocation of non-custodial Supervision Order
Legislation Cited: Crimes (Mental Impairment and Unfitness to be tried) Act 1997, sections 31, 33, 39, 40, 75
Cases Cited:NOM v DPP & Ors [2012] VSCA 198
Decision: Application granted; Non-custodial supervision order revoked
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms K. Minett | Victoria Legal Aid |
| For the Attorney-General | Ms M. Chorn | Victorian Government Solicitor’s Office |
| For Department of Human Services | Mr G Gilbert | Department of Human Services |
| For DPP | Ms L. Wilkinson | Solicitor for Office Public Prosecutions |
HER HONOUR:
1 This is an application for revocation of a non-custodial supervision order, pursuant to section 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”). That order was made by me 2 November, 2009, following a finding that the Applicant was not guilty of the offence of intentionally causing serious injury by reason of mental impairment. The order had a nominal duration of 20 years.
2 Application having been made for revocation of the order, pursuant to s 33 of the Act the court must confirm the order, vary its conditions, vary it to a custodial supervision order, or revoke it.
3 The principles upon which the Court must act in deciding the application are set out in sections 39 and 40 of the Act. Under s39(1), the Court must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community. Under s40, 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.
4 I was satisfied at the outset of the hearing that the required notice, including to the victim[2] of the offence and to the applicant’s[3] family members, had been given. In response, the victim provided a statement by statutory declaration made 9 November 2016. No report was received from any of the applicant’s family members although his former wife was present in court to support him. The DPP took no further part in the hearing, although I expect his office to communicate with the victim about this decision.
[2]The name of the victim will not be used in order to protect his privacy. This is not intended to minimize the serious impact of the incident and injuries on him.
[3]The name and details that might enable the applicant to be identified will not be used, for reasons discussed later in relation to the application for a suppression order.
5 The Attorney General and the Secretary of the Department of Health and Human Services were represented by counsel at the hearing, and both supported revocation of the Order.
6 The evidence before the court was contained in written reports, and oral evidence from two psychiatrists and a further current clinician at the clinic where the applicant is treated.
The Offending
7 On 1 July 2008, the applicant approached and physically attacked the victim who had been seated in a food court in a shopping plaza. The applicant struck the victim several times, using a sharpened object he had brought with him, causing several injuries the most serious of which was to the victim’s right eye. The applicant was charged with intentionally causing serious injury to the victim.
8 He was arrested and remanded in custody, during which time a first diagnosis of psychosis was made. Paranoid Schizophrenia was diagnosed. Although there is mention of a history of hospitalization overseas for a mental health disorder in 1980, no details of any diagnosis or treatment is available. Prior to the offending the applicant’s general practitioner had been managing him for anxiety and depression.
9 Following the applicant’s arrest and diagnosis, medical opinion including psychiatric reports for Forensicare, was that the applicant’s actions had occurred in the context of his suffering psychotic illness, including persecutory delusions. It was believed that he may have been experiencing psychotic symptoms for some time prior to the subject offence. There was nothing to indicate that the applicant was aware of those symptoms at the time.
10 After the diagnosis of Paranoid Schizophrenia, treatment was undertaken. Once released after some months in custody, the applicant came under the care of the applicable regional area mental health service, which co-ordinated with his treating general practitioner.
11 Before empanelment of a jury the prosecution and defence agreed that proposed evidence established the defence of mental impairment.
12 Based on further evidence about how his condition could be managed in the community, I made a non-custodial supervision order (“NCSO”) on 2 November 2009. It had a nominal duration of 20 years, being the maximum penalty for the charge. At the time, at both prosecution and defence urging, no review timeframe was set.
History under the Non-custodial Supervision Order
13 There have been no review hearings in relation to this order, but reports have been received by the court annually from Forensicare psychiatrists, who have supervised the order and liaised with treating clinicians as to the applicant’s progress.
14 The Applicant’s diagnosis continues to be of Paranoid Schizophrenia, and Major Depressive Disorder.
15 There were two periods of hospitalization – one at around the time he was before the court in 2009, when he took an overdose of medication under the effect of the stress of the court proceedings. Another second acute depressive episode occurred in 2010, as a result of his Major Depressive Disorder.
16 The applicant remains on the following medication:
– Risperdal Consta – two-weekly by depot injection administered by his general practitioner;
– Mirtazapine, Escitalopram and Quetiapine daily.
17 He has been fully compliant with the medication and attendances for treatment.
18 He has continued to attend the outpatients clinic of Mid West Area Mental Health Service (“MWAMHS”). He also attends his general practitioner fortnightly for depot injections of an anti-psychotic drug.
19 Under the terms of the order the Applicant was initially to live in the home of his former wife and children. The reason was for stable accommodation and the support of his family members. That continued for more than two years. In 2012, under the supervision order, he successfully transitioned to live independently, and continues to do so. He maintains his own personal care and domestic needs including some cooking and cleaning. He is visited about three times a week there by his former wife, who sometimes still cooks for him and assists with housework, but he otherwise looks after himself and lives independently.
20 He receives the Disability Support Pension, and manages his own finances.
21 He maintains regular contact with not only his former wife but also has contact with his now adult children, approximately weekly. They all, and especially his ex-wife, are described by his consultant psychiatrist as having been “outstanding” in supporting him.
22 He also attends several times a week a social club for people of his cultural background, where he engages in various activities and has friends. He enjoys this social contact and the activities, and they are a distraction for him from becoming isolated.
23 He does not use any illegal drugs, and drinks only modest amounts of alcohol and intermittently.
Medical evidence
24 Dr Tom Peyton, consultant psychiatrist, has supervised the applicant’s psychiatric treatment since 2012 at the Clinic of MWAMHS where the applicant has been treated since November 2008. He provided a report dated 19 October 2016[4] and gave oral evidence. His evidence included the following matters.
[4]Exhibit 2
· The applicant has a history of schizophrenia dating back to the 1980s, but his clinic has an unclear treatment history prior to July 2008.
· His clinic has supervised the applicant since he was placed on the order in November 2009. Dr Peyton has been consultant psychiatrist there since 2010 and has supervised the applicant’s treatment since 2012.
· The applicant has had regular treatment and supervision and taken medication throughout the last eight years, and been wholly compliant with that regime.
· There have been no reports or evidence of psychiatric symptoms in recent years, and no psychotic symptoms since the subject offending in July 2008. Although there had been two known acute periods of exacerbation in his depressive disorder, the last of those was in 2010 which required hospitalisation, but his depression and anxiety has been stable and treated with medication since.
· The stressor of a severe depressive episode did not trigger or exacerbate the schizophrenic illness. They are two separate illnesses.
· In one of the acute episodes the applicant himself presented to Dr Peyton to say that he was not feeling well, and that was positive in that it showed insight into his condition.
· The family has been extremely supportive and in particular his former wife has been outstanding in her support, and the medical team is very appreciative of the family remaining so involved and supportive.
· The applicant himself has been a model patient, always presenting on time, always asking and checking for his appointments, very accepting of the medical team’s advice, and participating fully in his treatment and the decisions that have been made.
· The clinical supervision and support that he has been given does not need the ongoing supervision of the non-custodial supervision order, and the applicant is likely to remain the model patient irrespective of whether that order is in place or is revoked.
· The applicant has partial insight, in that he is aware that he has an illness that caused him to act in the ways that he did and about which he is now ashamed and embarrassed, and he does not want to repeat that. He is quite clear about saying that he never wants to reoffend in any way, and that he wants to do what the doctors say to keep well.
· If details of the index offence or this hearing were to be published in the media the applicant is likely to feel humiliated, in particular if it is known amongst the cultural organisation of which he is part. That community is an important and social dimension that is an important part of his recovery and stability. Were this matter to become known, and Dr Peyton’s suspicion is that they do not know at this stage, some of that community might reject the applicant, not understanding that he had been ill at the time and was now well. If that happened and he felt shamed in that community he is likely to become distressed, and that would put him at risk of becoming more depressed.
25 Ms Leanne Trickey, a registered psychiatric nurse, prepared a short report[5] and gave oral evidence, based on the clinic’s records and her own relatively brief interaction with the applicant.
[5]Exhibit 3 – report dated 21 November 2016
· She took over in August this year as primary key clinician for the applicant, having had a handover by her predecessor at the Harvester Clinic. The applicant was very compliant through the handover process between this witness and her predecessor, and no issues arose with managing his care.
· She has seen him every two to four weeks. Her current role is to coordinate the applicant’s care, to ensure that he is booked in regularly for reviews.
· If the order is revoked she would continue to check in on him regularly, every two to three weeks, check that there has been a report from the GP, and, if not, chase it up, about the depot injections, and monitor when he is due for his medication.
· There is an established history of reliable communication between this particular general practitioner and the Clinic, for the applicant and other patients, so that if the applicant failed to attend for his injection the Clinic would expect prompt reporting of that and follow up.
26 Dr Kylie Lloyd, a senior psychiatry registrar at Forensicare, prepared the supervision report to the court[6], and gave oral evidence. She has been involved in supervising the applicant more recently, since August 2016, having done that in conjunction with Dr Lester who has reported annually to the court under the Order. The role of supervision of the order is to try to ensure compliance by the patient, which involves liasing and keeping in contact with the treating team, and intermittent reviews of the patient himself. Her evidence was to the following effect.
[6]Exhibit 1- report dated 16 October 2016
· To prepare the report, Dr Lloyd had access to the applicant’s Forensicare file, and quarterly reports and communications with the treating team at the area mental health service. She also had telephone discussions with Dr Peyton, Ms Trickey, and with the applicant’s general practitioner. She also reviewed him in person 10 October 2016.
· The applicant maintains a strong supportive relationship with his former wife who visits him three to four times a week, and with his children. He visits his cultural social club multiple times a week to engage in activities and maintains friendships there.
· Since the subject offending there have been no psychotic symptoms, violent ideation or behaviour suggestive of risks to others. There has been one major depressive episode leading to psychiatric inpatient treatment, but that was in the context of stressors, was some years ago[7], and the applicant’s mental state quickly improved with anti-depressant medication[8].
[7]Dr Peyton clarified that this wa sin 2010 and not 2012 as reported by Dr Lloyd.
[8]Escitalopram which is still part of his current daily medication.
· He does not abuse drugs, and drinks only modest amounts of alcohol intermittently and not to the point of intoxication. There is no history of problematic alcohol use nor of any illicit substances.
· His general health is good. He continues to see his long-term general practitioner.
· There is a forensic history of stabbing another person in 1990, but that did not result in serious injury, and a community based order was imposed. There is no evidence about medical treatment at that time.
· The previous annual reports from Dr Lester, and quarterly reports to Forensicare from MWAMHS indicate that the applicant’s mental state has been stable for several years, with nothing suggestive of increased risk to the community.
· The applicant has partial insight into the cause of his offending. He described that he was “unwell” at the time, and thought people were talking about him, but was not able to provide further details of his symptoms at the time nor how the belief people were talking about him resulted in the offence. However, he expressed remorse for the offence, knew it was a big mistake and very serious, and did not want it to happen again. He understands that to avoid the risk of anything like that happening again he must follow the treatment recommended by his doctors, and he is committed to doing that.
· The applicant attended the review on time, presented without agitation and answered without appearing guarded. He indicated feeling a little stress about concerns about his children at times, and some anxiety about the court hearing, but did not seem to have any deterioration of mood. He continued to engage in an active social life.
· He discussed understanding that if the NCSO is revoked “nothing would change” and he would continue to take medications as directed by the MWAMHS treating team and his GP and would continue to see them as often as they directed.
· If the NCSO is revoked, the supervisory role of Forensicare would cease, but its psychiatrists there would remain available to be contacted for advice if it were sought from the treating team at MWAMHS.
· The assessment of risk and opinion in the applicant’s case is that his Paranoid Schizophrenia and Major Depressive Order have now been successfully treated with medication over the long term, and he has been in remission from Schizophrenia for some seven years and it has been resilient to stressors including transitioning to independent living, and the court cases. He continues to be compliant with taking medication, engages well with his treatment, and treating team, and has an established stable environment with strong support from family and a social circle at his club. He has expressed and demonstrated a commitment to remain well and in treatment.
· His risk to the community and to himself is assessed as low.
· If there were publication of details of this hearing and if details of the offence came to the media’s attention or if he was identified it could cause him stress and that may result in relapse of depression and potential harm to himself.
Considerations under sections 39 and 40(1)
27 In applying these sections, I have had regard to the approach and principles described in the case of NOM v DPP & Ors [2012] VSCA 198. There is no burden of proof on the applicant or any other party, and the court must feel actual satisfaction of the existence of a fact in issue. I approach the application on the basis that I must exercise the discretion under s 33 by making a value judgment as to the risk of harm both to the community and to the applicant, and if the risk of harm is low, then the NCSO should be revoked. To find a risk of harm I must be satisfied that it is likely and not merely possible.
28 As to the matters to which I must have regard under s 40(1), I find as follows.
(a) The applicant continues to have a diagnosis of Paranoid Schizophrenia and of Major Depressive Disorder.
(b) He was suffering psychotic symptoms including delusions of persecution at the time of his offence, and his attack on the victim occurred in that context, and at that time his condition was undiagnosed and untreated.
(c) & (d) I am satisfied that he is unlikely to endanger himself or other people generally if the order is removed, for the following reasons. He has not displayed any psychotic symptoms since the offence, and whilst being treated. He is regarded by psychiatrists as being in remission, and fully compliant with his medication and other treatment. He is described by Dr Peyton who has been his consultant psychiatrist for the last five years as a “model patient”. His last major depressive episode was some six years ago and he is still taking the antidepressant medication used successfully to treat that episode. Even that episode as a stressor did not activate any psychotic symptoms, and nor did his transition into independent living accomodation. He is remorseful about his offending and recognises that he must continue to follow all treatment and take all medication directed by his doctors to stay well and avoid the risk of committing any further offence. There is in place a well- established team of people treating him, which is likely to continue for some time and only be reduced by gradual and monitored handover to a long-standing general practitioner. This treating team is able to monitor his compliance or any change in his behaviour. As well as the medical team he has strong support from family who see him regularly, especially his former wife. He is living independently in stable accommodation and enjoys social support from his local cultural club. Finally, common risk factors of illicit drugs or alcohol abuse are absent.
(e) The treatment team at the MWAMHS together with the applicant’s GP have an established history of being well able to treat him in the community. Were the applicant’s condition to significantly deteriorate, such change is likely to come to notice promptly, there is access available given the history under the NCSO to advice from Forensicare psychiatrists, and at worst processes under provisions of the Mental Health Act could be invoked. There are the supports of his former wife, and children, and the social friendships and activities of his social club which give him enjoyment and distraction.
(f) I have taken into account the content of the victim’s statement, including that he worries that if the order is revoked the applicant might see him, and he is scared he could be attacked again and even more seriously hurt. I recognise that the victim was seriously injured for reasons he could not be expected to have understood, because the applicant was acting under delusions as part of what at that time was an undiagnosed and untreated psychotic condition. I am satisfied that if the applicant continues to comply with his medication and treatment he is unlikely to again suffer such delusions or attack any person including the victim of his attack in 2008, and for reasons already explained, I am satisfied that the applicant is likely to continue to comply with his medication and treatment. I also note that although the applicant has apparently seen the victim at a distance, he has been fully compliant with the condition of the non-custodial supervision order that he not approach or attempt to make contact with the victim. He is in my view unlikely to change, even without that being a condition of an order.
29 Although it cannot be said that there remains no risk of a further psychotic episode or exacerbation of psychotic symptoms, in this case I am satisfied that the risk is low. There is clear and unanimous medical opinion that the risk is low, consistent with so many years of stability and compliance with treatment, and that ongoing supervision under a court order is not required to maintain that stability and low risk.
Conclusion
30 Having reviewed the evidence and the submissions, and noting that the application made by the applicant to revoke the order is supported by all medical opinion before me, and by both the Secretary and the Attorney-General, I am satisfied that the application should be granted. Pursuant to s33 of the Act, the non-custodial supervision order I made on 2 November 2009 is revoked.
Application for suppression order under s75 of the Act
31 The applicant’s solicitor made oral application during the hearing for an order under s 75 of the Act that the content of the reports put before the court and any information that might enable the applicant to be identified must not be published. Such an order was sought for an indefinite period of operation.
32 Although the Open Courts Act 2013 does not strictly apply to this application, because the application is made under a specific provision of a different Act, and not the court’s common law or inherent jurisdiction, I take into account that the Victorian parliament has made clear though that Act that courts considering making suppression orders should closely scrutinise whether an order is required, and if it is, limit its operation as much as possible.
33 Section 75 of the Act confers power on the court to make such order “if satisfied that it is in the public interest to do so”. The basis on which it is sought in this case was that if the identity of the applicant and details of the offence became known by media and were published he would be likely to be embarrassed and humiliated and that could stress him to the point of potentially causing a deterioration in his mental health.
34 When the oral application was made there was no evidence to support such an application, but the witnesses who gave oral evidence were asked about what impact publication might have. Dr Lloyd said that if the information were published in the media it might come to the attention of his social contacts and would be a significant stressor for him going forward. Dr Peyton said that he suspected that no-one at the applicant’s social club would know about his mental illness nor about the subject offence, and might not understand that he had been ill at the time, and that if there were such publicity the applicant would be likely to cease attending the club activities and friendship group through a sense of shame and embarrassment, and that would isolate him and remove what was an important part of his recovery, and would put him at risk of becoming more depressed.
35 I accept that this was evidence that publicity which enabled the applicant to be identified could destabilise his condition by imposing a significant stressor and possibly removing a stabilising factor. That indicates a risk that is more serious for him than mere embarrassment. However, I am not satisfied that the evidence goes far enough to establish that it is “in the public interest” that the order be made. Dr Peyton’s evidence is that the applicant suffers two separate mental health conditions. Deterioration in his depressive condition, while it would be a greater burden for the applicant and those supporting him, would not on the evidence be likely to cause deterioration in his schizophrenia which is the condition that was connected to his offending.
36 Ms Minett submitted that after puclication of such a decision without a suppression order there has been experience with a newspaper going back and reviewing cases and publishing details. That does not in my view amount to evidence of how a public interest against publication is invoked.
37 Without evidence that it would be in the public interest to prevent publication, I have decided that without preventing publication of this decision and my reasons for it, the risk identified to the applicant’s well-being could still be achieved. I intend to have the applicant’s name anonymised in these reasons for decision, and have used generalised descriptions of his personal circumstances so as to remove facts that might identify him if published. In my view this would be sufficient to reduce the stated risk to his stable recovery by reason of publicity, but still enable the decision to be published so as to inform those in the community who might be interested, of the reasons why the non-custodial supervision order is being revoked, and a summary of the evidence on which such decision has been based. There can be no access to the medical reports tendered without an application made to me for their release, and were such application to be made, this issue could be revisited.