R v Hogan
[2016] VSC 299
•1 JUNE 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CI 0163 of 2014
| THE QUEEN |
| v |
| MICHAEL DAVID HOGAN |
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JUDGE: | JOHN DIXON J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 1 JUNE 2016 |
DATE OF JUDGMENT: | 1 JUNE 2016 |
CASE MAY BE CITED AS: | R v HOGAN |
MEDIUM NEUTRAL CITATION: | [2016] VSC 299 |
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CRIMINAL LAW – Murder and recklessly causing injury – Accused found not guilty by reason of mental impairment – Supervision order – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 25, 40, 41, 47.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Nanette Rogers | Office of Public Prosecutions |
| For the Accused | Mr Shaun Ginsbourg | Simon English Solicitors |
HIS HONOUR:
On 25 November 2015 this court directed, pursuant to s 21(4)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) that a verdict of not guilty of murder because of mental impairment be recorded in respect of one charge each of murder and recklessly causing injury on indictment E10446540 concerning Michael David Hogan. The court further declared pursuant to s 23(a) of the Act that Mr Hogan is liable to supervision under Part 5 of the Act.
At that time, a certificate of available services could not be provided pursuant to s 47 of the Act. Lasry J directed that such a certificate be provided on or before 25 February 2016 and that the Secretary to the Department of Justice arrange to have prepared and filed with the court on or before 25 February 2016 a s 41 report on the mental condition of Michael David Hogan. Such report was to contain:
(a)a diagnosis and prognosis of the condition or an outline of Mr Hogan’s behavioural problems;
(b)Mr Hogan’s response to treatment, therapy or counselling (if any); and
(c) a suggested treatment or other plan for managing his condition.
The further determination of the proceeding was adjourned from 29 February 2016 to this day.
The court, having declared Michael David Hogan liable to supervision under Part 5 of the Act, in deciding whether or not to make that order, must have regard to the following:[1]
[1] See section 40(1) of the Act.
(a)the nature of the person’s mental impairment or other condition or disability;
(b)the relationship between the impairment, condition or disability and the offending conduct;
(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;
(d) the need to protect people from such danger;
(e)whether there are adequate resources available for the treatment and support of the person in the community; and
(f) any other matter the court thinks relevant.
For the purposes of that determination, and following on the earlier direction, the court has received the report of Dr Nicholas Owens dated 19 January 2016. Dr Owens is a consultant psychiatrist with Community Forensic Mental Health Service, Forensicare.
In his report, Dr Owens has identified the background to the offending, Mr Hogan’s psychiatric history, his medical history, his substance use history, his personal history and his forensic history, and I have taken those matters into account.
Dr Owens observed during a mental state examination on 11 January 2016 that Mr Hogan exhibited ongoing referential delusions regarding the television and music, as well as a delusion that the police control his thoughts using a laptop. He reported that experiencing auditory hallucinations was a usual daily occurrence, but he denied any thoughts of harming himself or others. Mr Hogan accepted the diagnosis of schizophrenia and expressed remorse for his offending. Dr Owens also spoke with Mr Hogan’s current treating psychiatrist at the Metropolitan Remand Centre, Dr Clare McInerney, and reviewed a report compiled by Dr Kate Roberts.
In summary, Dr Owens’ opinion and recommendations were as follows:
(a)Mr Hogan’s diagnosis is chronic paranoid schizophrenia, stimulant abuse (in remission in a protected environment) and cannabis abuse (in remission in a protected environment). More rigorous assessment of personality variables is required in the fullness of time, but there are good grounds to suggest the presence of a personality disorder with anti-social and borderline features.
(b)Although Mr Hogan is currently compliant with anti-psychotic treatment, he continues to experience symptoms of psychosis that significantly impair his ability to discriminate reality from inner psychotic experiences from time to time. He has been selective in reporting ongoing symptoms.
(c)Mr Hogan’s illness is mainly characterised by a chronic system that ties delusional thoughts involving the police with elements of persecutory, grandiose, referential and passivity delusions admixed, along with a theme of bizarre sexual practices. He also suffers chronic auditory hallucinations and panic anxiety.
(d)Mr Hogan’s lengthy history of incarceration and institutionalisation, his dependence on mental health services for maintenance of stable mental health, exacerbation of deficits and psycho-social functioning by chronic drug use, are considerations that strongly suggest that Mr Hogan requires lengthy rehabilitation prior to being able to live safely and functionally in the community.
(e)Mr Hogan has never retained a stable foothold in society and his prejudicial development history, combined with a positive family history of serious mental illness and significant and heavy illicit drug abuse, predispose him to development of psychotic illness.
(f)Mr Hogan continues to exhibit some of the psycho-pathology that was present at the time of his offending, some of which appears to have been a longstanding feature of his condition for many years. Given the offence and the circumstances of his mental state at the time, his current mental state and a lack of current means of managing Mr Hogan’s condition safely in the community, there is an elevated risk that he would reoffend. That risk would best be managed in a custodial environment. He requires management in a secure forensic in-patient setting as can be provided at Thomas Embling Hospital.
By reference to the opinions expressed by Dr Owens, I am satisfied that it is appropriate to make a custodial supervision order, committing Mr Hogan to an appropriate place, Thomas Embling Hospital, under the supervision of the Victorian Institute of Forensic Mental Health. The court has received a certificate under s 47 of the Act stating that the facilities or services necessary for a custodial supervision order are available at Thomas Embling Hospital.
I am satisfied that such an order is appropriate having regard to each of the matters that I must consider pursuant to s 40 of the Act. Mr Hogan has been diagnosed with chronic paranoid schizophrenia, stimulant abuse (in remission in a protected environment) and cannabis abuse (in remission in a protected environment).
There was a very direct relationship between his mental impairment and the offences. Mr Hogan had been an active intravenous user of methamphetamine and cannabis leading up to the offending. Further, he had not received all regular medications, being on fortnightly injections and had been admitted for psychiatric treatment only a few weeks prior to the offending. He was acutely and floridly psychotic at the time of the killing and was in the grip of auditory hallucinations and persecutory ideas.
I am required to consider the likelihood that the applicant may endanger himself, another person, or other people generally because of his mental impairment. The gravity of the harm that may eventuate is relevant to assessing the nature of the risk, however, it is the probability of any risk, be it high or low, which is the critical concept of endangerment. In NOM v Director of Public Prosecutions,[2] the Court of Appeal explained that endangerment is about the risk of harm. The focus is on the extent of the chance, risk, or peril of some harm materialising. The terms of the Act emphasise that a person subject to a supervision order is not necessarily likely to endanger himself or others if the chance, risk or peril of harm eventuating is minimal, although the injury or harm that would result is very substantial.
[2](2012) 38 VR 618, 637 [58].
The concern with Mr Hogan is for the safety of members of the community. I am satisfied that members of the public will be seriously endangered if a custodial supervision order is not made for the reasons identified by Dr Owens in his conclusions, set out above.
While his mental state remains unstable, the safety of members of the public will be seriously endangered. Dr Owens described the risk that Mr Hogan would reoffend as elevated and best managed in a custodial environment. His tendencies to stimulant abuse and cannabis abuse are only in remission because he is in custody and there is a clear link between such abuse and deterioration in his mental state that has in the past resulted in numerous re-admissions to hospital with exacerbations of psychosis.
Apart from the circumstances of the killing that demonstrate the extreme seriousness of the offending, there is definite evidence of historical risk factors, including his psychiatric history, history of antisocial behaviour and polysubstance abuse, his propensity to minimise his symptoms when interviewed, his personal history of traumatic childhood experiences and his lengthy history of incarceration and institutionalisation from an early age. Presently, in the absence of lengthy rehabilitation in a secure forensic inpatient setting there are no identified risk mitigating factors.
Most significantly, there is evidence of ongoing clinical risk factors. Dr Owens noted that there is ongoing evidence of violent ideation and Mr Hogan continues to experience symptoms of psychosis, despite currently being compliant with antipsychotic treatment. Although he is clearly predisposed to the development of psychotic illness, more rigorous assessment of Mr Hogan’s mental state is still required.
Mr Hogan’s chronic paranoid schizophrenia is not presently being appropriately managed. Should he relapse into a psychotic state, as he did at the time of the killing, he is capable of causing serious harm to others around him and perhaps to himself. Further, a relapse is likely in circumstances of polysubstance abuse, which is only presently in remission because of his incarceration. There is a very high risk of endangerment of others in the community. I am persuaded to the requisite standard that the safety of members of the public will be seriously endangered should he not be committed to custody.
I am satisfied by Dr Owens report and by the certificate of available services that appropriate resources and support can be provided to Mr Hogan under the supervision of the Victorian Institute of Forensic Mental Health.
Michael David Hogan is liable to a custodial supervision order pursuant to s 26 of the Act and is committed to the custody of the Victorian Institute of Forensic Mental Health. Pursuant to s 28 of the Act, the nominal term of the supervision order is 25 years and I declare that the nominal term of the supervision order commences to run from 9 February 2015.
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