R v Ivanoff

[2018] NSWSC 1225

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Ivanoff [2018] NSWSC 1225
Hearing dates:	6 August 2018
Date of orders:	07 August 2018
Decision date:	07 August 2018
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1   I find Ben Ivanoff not guilty of the murder of Leonne Ivanoff on the grounds of mental illness. 2 Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, Mr Ivanoff is to be released from custody forthwith, on the following conditions: (a)   He is to reside at Opal Annandale, or such other place as approved from time to time by the Mental Health Review Tribunal. (b)   He is not to leave Opal Annandale, or such other place at which he may from time to time reside, without the consent of the Mental Health Review Tribunal. (c)   Within 14 days of taking up residence at Opal Annandale he is to meet with a staff member of the Camperdown Older Persons Mental Health Team and, thereafter, accept any treatment recommended to him by health professionals connected with that service, or other comparable service as approved by the Mental Health Review Tribunal. 3   I direct the Registrar to forward a copy of this judgment to the Mental Health Review Tribunal forthwith.
Catchwords:	CRIME – accused charged with wife’s murder – previously found unfit to be tried – special hearing – no issue that accused has defence of mental illness available to him – elderly and frail accused – question of risk posed if released – release to the community appropriate
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	R v Ivanoff [2017] NSWSC 1707 R v M’Naghten (1843) 8 ER 718 The Queen v Falconer (1990) 171 CLR 30
Category:	Principal judgment
Parties:	The Queen Ben Ivanoff
Representation:	Counsel: Mr D. Patch as Crown Prosecutor Ms J. Manuell SC for the accused   Solicitors: Solicitor for Public Prosecution Legal Aid Commission of NSW
File Number(s):	2017/6480
Publication restriction:	None

Judgment

The Background to the Special Hearing

1. On 8 January 2017, Ben Ivanoff was charged with his wife’s murder, that day, at the couple’s Umina home.

2. Mr Ivanoff was subsequently, on 7 December 2017, found unfit to be tried for the offence by Johnson J: R v Ivanoff [2017] NSWSC 1707. He was referred to the Mental Health Review Tribunal (“MHRT”) to determine whether he would become fit within the period of twelve months.

3. On 17 January 2018, the Tribunal found, pursuant to s 16 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Act”), that Mr Ivanoff was unfit to be tried, and would probably remain so within the period ending on 6 December 2018, that being the expiration of twelve months following the finding of unfitness by this Court (Ex. 7). A determination was made that the accused should be detained at the Aged Care Unit of the Long Bay Gaol, pending any grant of bail that might be made to him by a court.

4. The Tribunal advised the Court and the Director of Public Prosecutions of its opinion and determination.

5. The Crown having decided to proceed against the accused, the Court listed the matter for special hearing in accordance with s 19(1) of the Act.

The Special Hearing - the Law

6. The purpose of a special hearing is set out in s 19(2) of the Act, which provides:

(2)  A special hearing is a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged.

7. Such a hearing is to be conducted as nearly as possible as a trial (s 21(1)). To that end, the accused person must be legally represented (s 21(2)), and Mr Ivanoff has been represented before this Court by senior counsel. Pursuant to s 21A, a special hearing is to proceed before a judge sitting alone, unless an election is made by the accused, his or her representative, or the prosecutor. No election having been made, the hearing proceeded before me sitting without a jury.

8. Although an accused person cannot him or herself enter a plea to the charge at a special hearing, s 21(3)(a) provides that an accused is taken to have entered a plea of not guilty, and that plea was entered by the Court on the accused’s behalf when Mr Ivanoff was arraigned on 6 August 2018, on a charge that he,

on 8 January 2017 at Umina Beach in the State of New South Wales did murder Leonne Ivanoff.

9. The offence alleged against Mr Ivanoff is one contrary to s 18(1)(a) of the Crimes Act 1900 (NSW).

10. Following Mr Ivanoff’s arraignment, the matter proceeded to special hearing.

11. Section 21B of the Act provides that a judge determining a special hearing without a jury has available to him or her the verdicts which would be available to a jury pursuant to s 22. Those verdicts are set out in s 22(1), which is in these terms:

(1)  The verdicts available to the jury or the Court at a special hearing include the following:

(a)  not guilty of the offence charged,

(b)  not guilty on the ground of mental illness,

(c)  that on the limited evidence available, the accused person committed the offence charged,

(d)  that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged.

12. The verdict entered by a judge has the same effect as a verdict of a jury: s 21B(1).

13. Where the verdict is one of not guilty on the ground of mental illness, it is to be taken to be equivalent for all purposes to a special verdict that an accused person is not guilty by reason of mental illness pursuant to s 38(1) of the Act (“special verdict”). That provision is in these terms:

38 Special verdict

(1)  If, in an indictment or information, an act or omission is charged against a person as an offence and it is given in evidence on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.

14. A special verdict of not guilty by reason of mental illness is to be returned in circumstances where, although the Crown has proved to the criminal standard of beyond reasonable doubt that the accused committed the act, the accused was mentally ill at the time of the commission of the act. Section 21(3)(c) of the Act provides:

“without limiting the generality of subsection (1), the accused person may raise any defence that could be properly raised if the special hearing were an ordinary trial of criminal proceedings”.

15. The standard of proof for what is commonly referred to as “the defence of mental illness” or “the M’Naghten defence” is on the balance of probabilities. Where the accused raises that defence, the onus is on him or her to prove it to the lower civil standard: The Queen v Falconer (1990) 171 CLR 30 (per Mason CJ, Brennan and McHugh JJ at 41-43, per Deane and Dawson JJ at 61).

16. Pursuant to s 21B(2) of the Act, a determination by a judge in a special hearing must include the principles of law applied and the findings of fact relied upon.

The Special Hearing – The Evidence

The Crown Case with Respect to the Charge of Murder

17. As sometimes occurs in a trial, the Crown case proceeded by way of the tender of statements made by relevant witnesses. None of the witnesses were required for cross-examination. What follows is a discussion of the most relevant evidence; I have not attempted to summarise it all.

18. That evidence establishes the following facts.

19. As at January 2017, the accused and his wife Leonne had been married for about 55 years. There are two (now adult) children of the marriage, and the couple have a number of grandchildren. Mr and Mrs Ivanoff lived at Umina Beach for most of their married lives.

20. Over recent years, with the advancing age and decline in health of both, the marriage became more fraught and unhappy. In 2016 Mr Ivanoff, who had been diagnosed with dementia, asked Sue Wells, the Clinical Nurse Specialist involved with his care in the community, if arrangements could be made for him to enter an aged care facility. The accused told Ms Wells that he “couldn’t take it anymore”, indicating that he and his wife no longer got along together.

21. Apparently unhappy at the prospect of her husband leaving the family home and her, Mrs Ivanoff tried to kill herself by jumping from a bridge. She was seriously injured but, after a period of hospitalisation and rehabilitation, she returned home. During the period of her hospitalisation, Mr Ivanoff had come to the deluded belief that his wife was having an affair with, he told his son Paul, a doctor who drove a red sports car. Although his son and others explained that Mrs Ivanoff was in the intensive care unit in hospital and had not been unfaithful, the accused could not be dissuaded from the belief he held on this score. This heightened friction between Mr and Mrs Ivanoff when Mrs Ivanoff was discharged home.

22. At around this time, Mr Ivanoff’s son noticed that the accused’s condition had deteriorated. He had become significantly more confused, forgetting to eat or to shower, and was having difficulties with day to day activities.

23. On the morning of 8 January 2017, Paul Ivanoff visited his parents in the morning, ensuring his father took his medication and assisting his mother with some outside work. He then returned to his home. Sometime soon after 2pm that day the accused telephoned his son, telling him that it was urgent, and that he needed him to “come over straight away”. Paul Ivanoff lives about 8 kilometres from Umina Beach, and he left for his parents’ home at about 2.45pm.

24. On arrival he went into the house through the unlocked front door and went upstairs to the lounge room of the house. He found his mother dead, lying on a lounge with an obvious throat wound. The accused told his son, “I think she’s dead”. Paul Ivanoff checked for a pulse and, finding none, he sent his father to the bathroom, telling him to take a shower, and dialled the emergency operator for an ambulance.

25. He later told police that he did not see any blood on his father, although there was a lot of blood around his mother.

26. An ambulance was dispatched to Umina Beach at 3.07 that afternoon, arriving at the Ivanoff home at 3.11pm. Paul Ivanoff took the ambulance officers upstairs to where his mother lay. Officer Chorazyczewski saw an elderly gentleman sitting in a chair near the top of the stairs; this was the accused.

27. In the lounge room, the officer saw Mrs Ivanoff lying more or less on her back. She had an obvious wound to her neck and there was a significant quantity of blood pooled around her upper body and head. She did not have a pulse and was cool to the touch. The officer concluded that she was dead.

28. Constable Jody Hunt arrived at the house at about 3.19pm. She was shown upstairs by Paul Ivanoff, who told her that his father suffered from dementia and confusion, and stressed that he should not be interviewed without a solicitor being present. Detectives arrived soon after. Paul Ivanoff had to leave, to collect a child from school.

29. Having made a short inspection of the lounge room area, Detective Senior Constables Fadi and Nicholls spoke with Mr Ivanoff. At that stage it does not appear that the officers had decided to formally question the accused as a potential suspect, but rather, were trying to find out what had happened. Det. Fadi asked Mr Ivanoff,

So what happened this morning when you called your son?

30. Mr Ivanoff replied,

[..] I’ve got to say this, she had a boyfriend, just when I was at hospital. I just got released and so did she. We haven’t been getting along; she nags all the time. This morning she just wouldn’t stop screaming. The next thing I knew I somehow ended up with a knife in my hand and plunged it into her chest. There was nothing I could do about it, nothing [..].

31. Mr Ivanoff was thereafter cautioned and arrested for his wife’s murder. He was taken to Gosford Police Station.

32. At the house, a government contractor attended to collect Mrs Ivanoff’s body. A number of cushions that had been about her body were removed and at that time Constable Hunt could see that there was a silver blade knife protruding from Mrs Ivanoff’s neck.

33. A crime scene officer examined and recorded the scene. Amongst the items located was a black plastic knife handle found under a coffee table and about 1.4 metres away from where Mrs Ivanoff had been lying.

34. When Mrs Ivanoff’s body was examined by forensic pathologists Dr Hannah Elstub and Dr Alan Cala, a large single-edged blade (without its handle) was observed in situ on the left side of the neck. There was an irregular stab wound above the thyroid cartilage on the left, with an exit wound on the right. Another cross-shaped wound extended into the muscles and transected the carotid artery, tracking left to right, with an exit wound on the right. The knife was in place in this wound. There were also a number of superficial wounds, including a stab wound to the upper right chest and injuries to both hands consistent with defence wounds. It was the injury to the carotid artery that caused significant blood loss and death.

35. Dr Elstub opined that, because the knife incised the anterior aspect of a cervical vertebra, it was likely that at least moderate to high force had been used. She thought that the wounds present on the deceased were not consistent with self-inflicted injuries.

36. At Gosford Police Station, Mr Ivanoff was interviewed, despite the information provided by Paul Ivanoff as to his father’s confusion and suggestibility. Ordinarily, an interview conducted in such circumstances would be likely to be excluded from evidence. It was not objected to by senior counsel for the accused on the basis that the psychiatrists who subsequently assessed Mr Ivanoff had regard to the interview and its contents in reaching their respective conclusions. It was received on that basis.

37. Suffice to say at this point, that the accused confirmed what he had told Detectives Fadi and Nicholls at his home about having stabbed his wife.

38. The Crown also tendered a report from Dr Anthony Samuels, consultant psychiatrist, (Ex. A.13), dated 28 August 2017. Dr Samuels saw the accused at the request of the Crown on 28 August 2017. He had regard to reports from Dr Sharon Reutens, a psychiatrist asked by the accused’s legal representative to provide an opinion as to both the accused’s fitness to be tried, and as to the question of any defence that might be available to him based upon his mental state at the time of Mrs Ivanoff’s death. Dr Reutens, to whose evidence I will return shortly, concluded that the accused was not fit to be tried, and had both a defence of mental illness available to him, and the partial defence of substantial impairment.

39. Having reviewed all relevant information (including the interview between police and the accused), Dr Samuels came to the same conclusion as that of Dr Reutens.

40. Dr Samuels, who was extensively briefed with the accused’s area health service medical and hospital records, referred to the diagnosis of dementia made in October 2016, and noted that cognitive testing in 2016 and 2017 had assessed the accused as having moderately severe dementia. He performed poorly on mental status examinations and was not oriented in time in those tests.

41. In speaking with Dr Samuels, the accused was not sure of the year, thinking it was the nineteen-eighties. He thought he was in gaol for slapping his wife or some “misdemeanour”, and insisted that she was alive. He said that he was depressed and told Dr Samuels that he was to be hanged the following morning, a belief which was quite fixed. Mr Ivanoff was frequently somnolent, he looked perplexed, and his affect was bland.

42. As to the availability of the defence of mental illness, Dr Samuels concluded (at p.13 of Ex. A.13):

“In my view, Mr Ivanoff does have the defence of mental illness available to him. He has a dementing illness. Whilst I did not formally test his cognitive functioning today, he is very poorly orientated and slightly somnolent with marked memory dysfunction. Dr Reutens has done quite extensive cognitive testing and there is evidence from Mr Ivanoff’s previous medical records of cognitive deficits on formal testing. He has a dementing illness which probably has vascular and Alzheimer components.

He also appears to be suffering from delusional ideas which are most likely a feature of his dementing illness. I understand that, at the time of the offence, Mr Ivanoff thought his wife was having an affair but he now denies having said that. He now has a delusion he is going to be hanged tomorrow and really cannot be dissuaded from this line of thinking. Despite saying these things he does not appear to be overtly distressed.

There is also evidence that Mr Ivanoff had a longstanding low grade depression in the context of long term marital dysfunction which seemed to stem from his wife’s unstable personality.

In my view, it is highly likely that at the time of the offence Mr Ivanoff was suffering from a disease of the mind; namely a Depressive and Dementing Illness with Psychotic features and that he was suffering from a defect of reason and did not understand the nature and quality of the act he was doing and it is likely that, at the time of the commission of the act, Mr Ivanoff did not know what he was doing was wrong. He appears to have no memory of committing the offence and maintains a belief that his wife is, in fact, still alive.”

The Case on Behalf of the Accused

43. The evidence called on behalf of the accused was, like that of the Crown, placed before the Court in documentary form. Of particular significance are the reports of Dr Sharon Reutens, Consultant Psychiatrist, which became Exs. 1 and 2.

44. Dr Reutens was asked by the accused’s legal representatives to assess the accused and provide an opinion as to his fitness to be tried, and as to the availability of a defence on the basis of his mental state. She provided separate reports addressing those questions, each dated 27 June 2017. Her second report of that date concerns the availability to the accused of both a defence of mental illness, and a partial defence on the basis of his substantial cognitive impairment.

45. Dr Reutens had access to full details of the accused’s medical and psychiatric history, and she was also able to speak to the accused’s children. She set out the accused’s history, including his diagnosis with dementia and depression by Dr Kate Cotter, a geriatrician, in August 2016. That diagnosis was confirmed after hospitalisation in October 2016. Dr Cotter concluded that Mr Ivanoff had moderate cognitive impairment with a fronto-temporal pattern.

46. Some of the medical records referred to the accused’s deluded belief in late 2016 and thereafter that his wife was having an affair. It was thought that the medication Donepezil that had been prescribed to the accused may have given rise to the delusions as to his wife’s unfaithfulness, and so it was ceased. In late 2016, the accused was diagnosed with dementia of the Alzheimer’s type.

47. Mr Ivanoff gave Dr Reutens a confused and sometimes conflicting history, and tended to confabulate, or recount false memories with no intention to deceive. After telling the doctor that he could not recall having assaulted his wife, he subsequently told her that he had stabbed his wife, and had “told Paul I done something bad”. He said that he could not recall where he got the knife.

43. The accused reported his mood as “alright” although he sometimes cried in his cell and thought about killing himself. He said he missed his wife and regretted what he had done. He presented as tearful when speaking of his wife, and his affect was restricted. Mr Ivanoff’s speech was not spontaneous and he seemed to have difficulty in finding and recalling words.

44. Dr Reutens administered cognitive testing and found that Mr Ivanoff has moderately severe dementia. He was not oriented to time (thinking it was 1990), was significantly amnesic, and his comprehension and visuospatial abilities were impaired.

45. Having assessed the accused, Dr Reutens concluded that he suffers from a major neurocognitive disorder, being dementia, probably a mixture of vascular and Alzheimer’s type; together with a psychotic disorder that had resolved when Dr Reutens saw the accused. Dr Reutens reported (at p.11 – 12),

“Mr Ivanoff […] was unable to provide an accurate history and was unaware of discrepancies in his history, for instance the duration of his marriage and the ages of his children. The score on a test of cognitive impairment, the ACE-R, was fifty-four, well below the cut off score of eighty-two out of one hundred which has a probability ratio for dementia of one hundred to one.

The collateral history from Mr Ivanoff’s son confirmed the clinical impression of dementia. His son gave a history indicating that Mr Ivanoff was impaired in his functioning and unable to live independently. His son had power of attorney and held enduring guardianship.

There is evidence from the police interview, the Gosford Hospital notes and from Paul and Paulyne Ivanoff that Mr Ivanoff erroneously believed that his wife had been unfaithful, and that belief was held despite evidence to the contrary (she was in hospital in Sydney). He told his children she was having an affair with a doctor. His daughter Paulyne said that she had never seen him so angry as when he was discussing her mother’s “affair”.

The day before my interview with Mr Ivanoff I was informed that he had spent the night at Prince of Wales Hospital for a suspected transient ischaemic attack or minor stroke, and the nursing staff had noticed that his affect was more restricted, he appeared to have some difficulty speaking and he had stopped talking about his wife. Previously, he had constantly badgered the nursing staff asking when his wife was going to pick him up.

Psychotic symptoms as a result of dementia can wax and wane as the dementia progresses and it appears that this has been the case for Mr Ivanoff, possibly related to the vascular event in the several days preceding my interview.

51. Dr Reutens concluded that the accused has available to him the defence of mental illness. She said,

There is evidence that at the same time that Mr Ivanoff allegedly committed the offences he was suffering from a delusion that his wife was having an extramarital relationship with a doctor at the hospital. Both of Mr Ivanoff’s children stated this, and Mr Ivanoff mentioned that his wife was unfaithful in the ERISP [electronically recorded interview with suspected person] interview.

The delusions have most likely occurred due to the dementia. The dementia is a neurodegenerative disease of the brain that consequently affects the mind.

The delusional beliefs greatly upset Mr Ivanoff and affected his ability to understand the context of his wife’s mirth and to control himself. He could recall that she was laughing at him when they argued, and at that time his belief that Mrs Ivanoff was unfaithful left him unable to reason with a degree of calmness about the moral quality of what he was doing.

The dementia significantly impaired Mr Ivanoff’s capacity to plan, to reason and to problem solve. There was evidence on cognitive testing of impairment of executive functions of the brain. The executive functions of the brain involve planning, judgement, problem solving and impulse control.

As a consequence of the impairment of the executive functioning, Mr Ivanoff was impaired in his ability to control his impulses and to judge whether his actions were right or wrong.

Consideration

52. As in any criminal trial, it is the Crown who bears the burden of proving to the criminal standard of beyond reasonable doubt that the accused did the act charged. The accused bears no onus of proof with respect to the elements of the offence. The elements of the offence of murder that the Crown must prove beyond reasonable doubt are:

1. That the accused did a voluntary act; here, stabbing his wife in the throat;

2. That the act caused the death of Leonne Ivanoff; and

3. That the act was done with an intention to kill or cause grievous bodily harm.

53. Having considered all of the evidence in this tragic case, I have concluded that the Crown has met the burden of proof it bears, and established beyond reasonable doubt that Ben Ivanoff stabbed his wife Leonne in the throat at a time when he intended to do her, at least, really serious bodily injury. I have further concluded that, at the time Mr Ivanoff stabbed his wife, he was suffering from a mental illness such that he did not know the nature and quality of the act, or that it was morally wrong.

54. The evidence is that only the accused and his wife were present at the time of the fatal stabbing. There was no sign of forced entry to the home and no suggestion that any other person was involved. The accused telephoned his son some little time after the stabbing and, on his own account to Dr Reutens, told Paul Ivanoff that he had done something bad. To the detectives who attended his home soon after, the accused acknowledged having taken a knife and stabbed his wife. Although his admission was to plunging a knife into his wife’s chest, an admission not wholly consistent with the injuries inflicted, the discrepancy is explicable by reference to the accused’s cognitive problems, rather than because of any untruthfulness in the admission. Mrs Ivanoff had a stab wound to the chest, albeit superficial. This injury is the one the accused recalled having inflicted when he spoke with police at his home.

55. He confirmed his admission later when interviewed, albeit in circumstances where he was most unlikely to have been able to exercise his rights, if he understood them.

56. The admissions to police were further confirmed by what the accused said to Dr Reutens; to the doctor, he acknowledged having stabbed his wife.

57. Dr Elstub’s evidence is that moderate to high force was required to cause the injuries occasioned to Mrs Ivanoff. The degree of force involved, together with the number of injuries inflicted, and the areas of the body struck, in particular the chest and throat, all point to a conclusion that, in the ordinary course, the accused intended to do his wife, at least, grievous bodily harm.

58. I am satisfied to the requisite standard however that, when he attacked his wife with a knife on 8 January 2017, Mr Ivanoff was mentally ill, and not criminally responsible for his actions.

59. All of the evidence is that Mr Ivanoff suffered from a disease of the mind at the relevant time, being dementia, and delusions related to his condition (and perhaps also a medication he had been prescribed). This disease of the mind led to a defect of reason such that he did not know the nature and quality of his act, or that it was morally wrong, as contemplated in R v M’Naghten (1843) 8 ER 718 where the Court said (at 722):

“[The] jurors ought to be told in all cases that every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction; and that to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”

60. Both Dr Reutens and Dr Samuels considered that, due to his neurocognitive degeneration, the accused was not able to reason rationally or control himself. His ability to judge whether his actions were right or wrong was also significantly impaired because of his illness.

61. Thus, whilst the Crown has proved that the accused stabbed his wife and caused her death, the uncontested expert medical evidence is that the accused was mentally ill at the time.

62. The only possible verdict on the whole of the evidence is a verdict of not guilty on the ground of mental illness, and that is the verdict that the Court returns.

The Disposition of the Matter

63. Having concluded that Mr Ivanoff is not guilty on the ground of mental illness, the Court must turn to consider the consequential orders to be made, pursuant to s 39 of the Act. Section 39 provides:

39   Effect of finding and declaration of mental illness

(1)  If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate.

(2)  The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person’s release.

(3)  As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Tribunal of the terms of the order.

64. Since his arrest on 8 January 2017, Mr Ivanoff has been held in custody. He was assessed at an early stage upon reception to the prison system by Cindy Stoupas, Clinical Nurse Consultant with particular expertise in the care of older people with mental health issues, who considered that Mr Ivanoff should be held in the Aged Care Unit at the Long Bay Hospital.

65. Subsequently, Mr Ivanoff was under the care of Ms Stoupas, and Dr Andrew Watts, Staff Specialist Psychiatrist. The reports of each to the MHRT form part of the evidence tendered in Mr Ivanoff’s case (Exs. 5 and 6, and 3 and 4 respectively).

66. The evidence in brief is that Mr Ivanoff is an elderly man (now aged 78 years) whose condition has deteriorated during the period of his incarceration. Dr Watts outlined in his report (Ex. 3) that Mr Ivanoff suffered a stroke in May 2018, being hospitalised from 19 May to 22 May 2018 due to “multiple acute ischaemic cerebral infarctions secondary to presumed cardio-emboli aetiology involving bilateral circulating territories with resulting right hemiparesis”. He is not suitable for stroke rehabilitation due to his dementia.

67. Mr Ivanoff has a number of other medical conditions which all contribute to a high degree of infirmity. His condition is permanent and will continue to deteriorate.

68. Dr Watts noted that Mr Ivanoff has not displayed any aggression towards staff or officers, and posed no management issues. He advised the MHRT that Mr Ivanoff could be safely managed in a nursing home.

69. In his July 2018 report (Ex. 4), Dr Watt outlined the outcome of a risk assessment conducted with Mr Ivanoff, utilising actuarial and other tools. He concluded that the risk posed by Mr Ivanoff was low. Apart from the present matter, Mr Ivanoff has no history of violence. He is now a very frail man with weakness and partial paralysis following a series of strokes.

70. In custody, Mr Ivanoff is locked into his cell for 18 and a half hours per day, or more if there are staffing or security issues at the gaol. He cannot leave his cell and is restricted in his movements and activities. Conditions such as those prevailing at the Long Bay Hospital could lead to agitation, and on the whole are not conducive to Mr Ivanoff’s receipt of appropriate treatment and therapy.

71. Dr Watts concluded that Mr Ivanoff can be safely accommodated at the Opal Aged Care Facility at Annandale, where his medical, nursing, and therapeutic needs would be met. Dr Watts inspected the facility and considered it to be suitable for Mr Ivanoff.

72. Ms Stoupas has also visited the Opal facility and she too regards it as a suitable placement for Mr Ivanoff, where he can be safely housed and receive appropriate care. She reported to the MHRT (Ex. 5) that Mr Ivanoff did not pose a risk to others; he was observed to get along with nurses and other patients in the Aged Care Unit, and has no difficulties with those around him. His mobility is limited, and he requires a walking frame and assistance.

73. Ms Stoupas noted that Mr Ivanoff’s condition had deteriorated, and he was at risk of falls. He required nursing assistance to manage daily activities.

74. In her second report to the MHRT (Ex. 6), Ms Stoupas referred to a further decline in Mr Ivanoff’s condition following the stroke in May. Cognitive assessment could not be administered in June 2018, although there had been a decline in cognition evidenced in earlier tests.

75. In custody Ms Stoupas noted that Mr Ivanoff is unaware of where he is, and does not remember that his wife is dead or how she died. He is quite isolated, sitting alone or getting into bed with his face covered. He responds to staff when spoken to, and has not displayed any aggression to anyone.

76. Ms Stoupas detailed the proposal for Mr Ivanoff to be accommodated at the Opal facility, a secure facility with 68 beds over two floors. The facility is staffed by both registered and assistant nurses, with two registered nurses (“RN”) for each floor during the day and in the evening, supported by a number of assistant nurses. One RN is on duty overnight for each floor, assisted by an assistant nurse. Staff are trained in dementia care.

77. There is a range of services available, including physiotherapy, podiatry, optometry, and dental care. There are social activities and recreational programmes.

78. Ms Stoupas concluded that the Opal facility would provide the least restrictive environment for Mr Ivanoff, and could manage his health and welfare needs, and any risks associated with his care. A bed is available to Mr Ivanoff, to be held until today. If a resident at Opal Annandale, Mr Ivanoff can receive psychiatric treatment through Camperdown Older Person’s Mental Health Service.

79. Both Dr Watts and Ms Stoupas gave evidence before the Court, called by the Crown on the question of the orders to be made with respect to Mr Ivanoff’s future care. Both confirmed that Mr Ivanoff posed a low risk to himself and others. He was not violent or aggressive, and conducted himself in a socially appropriate way, having regard to his poor health and dementia. Each noted that his condition would deteriorate over time, and his frailty would increase.

80. Ex B was a document containing some further information about the facility at Annandale.

81. Before the Court on 6 August 2018, Mr Ivanoff was supported by his daughter, whom he clearly recognised, and in whose presence he seemed to take both pleasure and comfort. Other family members were in the public gallery. Mr Ivanoff was confined to a wheelchair that was fitted with seat belts, utilised to avoid the possibility of a fall. He appeared very frail, and completely bemused by his surroundings. He seemed to have little or no comprehension of the proceedings in Court.

82. Having had regard to all of the evidence relevant to this question, and from observing Mr Ivanoff before the Court, I cannot but conclude that the only risk Mr Ivanoff poses is to himself, in the event of a fall, something which is much more likely if he is held in custody without constant nursing support.

83. There is no reason to conclude that Mr Ivanoff is a violent man, despite the tragic events of 8 January 2017.

84. Paul Ivanoff told the police that neither he nor his sister had ever witnessed any violence between their parents. The only incident Paul was aware of was an incident just before 8 January 2017, when Mrs Ivanoff hit her husband. He apparently did not respond to the blow in any way.

85. During the period Sue Wells cared for Mr Ivanoff in the community she never saw any evidence of violent conduct from him. In the time he has spent in custody, Mr Ivanoff has not been aggressive or violent towards any person.

86. In its report of 17 January 2018, the MHRT noted from evidence before it that Mr Ivanoff had not been aggressive or violent during the 12 months that he had been in custody. It was particularly noted that there was no evidence of violence towards female staff, and no references to any incidents with custodial officers. The most negative comment concerning Mr Ivanoff’s conduct was that he occasionally displayed some mild irritability that was easily redirected.

87. I accept the evidence of Dr Watts and Ms Stoupas that Mr Ivanoff poses a low risk to others, and can be safely accommodated in the community in the secure facility offered by Opal Annandale. I propose to order that he be accommodated there upon release.

orders

1. I find Ben Ivanoff not guilty of the murder of Leonne Ivanoff on the grounds of mental illness.

2. Pursuant to s 39 of the Mental Health (Forensic Provisions) Act 1990, Mr Ivanoff is to be released from custody forthwith, on the following conditions:

1. He is to reside at Opal Annandale, or such other place as approved from time to time by the Mental Health Review Tribunal.

2. He is not to leave Opal Annandale, or such other place at which he may from time to time reside, without the consent of the Mental Health Review Tribunal.

3. Within 14 days of taking up residence at Opal Annandale he is to meet with a staff member of the Camperdown Older Persons Mental Health Team and, thereafter, accept any treatment recommended to him by health professionals connected with that service, or other comparable service as approved by the Mental Health Review Tribunal.

3. I direct the Registrar to forward a copy of this judgment to the Mental Health Review Tribunal forthwith.

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Amendments

07 August 2018 - [59] replaced "Smith J" with "the Court"

Decision last updated: 07 August 2018