R v Laganin
[2010] VSC 539
•22 November 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 0005 of 2009
| THE QUEEN |
| v |
| JOVANKA LAGANIN |
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JUDGE: | COGHLAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 September 2010 | |
DATE OF JUDGMENT: | 22 November 2010 | |
CASE MAY BE CITED AS: | R v Laganin | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 539 | |
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CRIMINAL LAW – Attempted murder – Arson – Plea of not guilty by reason of mental impairment – Consent hearing – s 21 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Circumstances of offending – Diagnosis of schizophrenia – Reports furnished pursuant to s 41 of the Crimes (Mental Impairment and Unfitness to be Tried) Act – Certificate pursuant to s 47 Crimes (Mental Impairment and Unfitness to be Tried) Act obtained – Non-custodial supervision order imposed – Nominal term of 12 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C. Ryan SC | Office of Public Prosecutions |
| For the Defendant | Mr J. McQuillan | Paul Vale Criminal Law |
HIS HONOUR:
Jovanka Laganin, on 20 September 2010 I found you not guilty of one count of arson and five counts of attempted murder by reason of your mental impairment.
Pursuant to s 26(1) of the Crimes (Mental Impairment and Unfitnessto be Tried) Act (the Act) I declared that you are subject to supervision. I directed the preparation of the relevant reports to assist me in deciding what type of supervision I should impose.
Section 26(2) of the Act is in the following terms:
“A supervision order may:
(a) commit the person to custody (Custodial Supervision Order) subparagraph (1) subject to sub-s.(3) in an appropriate place or subject to sub-s (4) in a prison; or
(b) release the person on conditions decided by the court and specified in the order and Non-Custodial Supervision Order.”
Sub-section (3) of s 26 says:
“The court must not make a supervision order –
(a) committing a person to custody an appropriate place; or
(b) providing for a person to receive services in an appropriate place or from a disability service provider, the Secretary of the Department of Human Services or the Secretary of the Department of Health –
unless it has received a certificate under s 47 stating that the facilities or services necessary for the order are available.”
I have, pursuant to s 41(3) of the Act, received a report. Sub-section (3) is in the following terms:
“If a Supervision Order is made in relation to a person, the appropriate person must arrange to have prepared and filed with the court that made the order at intervals of not more than 12 months for the duration of the order or report containing a statement of treatment, therapy or counselling that the person has undergone or any service that the person has received since the making of the order or the last report and any changes in prognosis of the person's condition or the person's behavioural problems and the plan for managing the conditions and problems.”
In that report, dated 12 November 2010, by Dr Charlotte Duncan, psychiatry registrar from the Community Forensic Health Service, under the supervision of Dr Ria Zergiotis, a consultant psychiatrist, from the Victorian Institute of Forensic Mental Health. She provided the following summary and recommendations:
“Mrs Laganin is a 47-year-old married woman with three children who lives with her family. She has a well documented history of schizo affective disorder of at least three years duration. Her illness was initially characterised by an inaccessible mental state, poor insight and questionable compliance with medication. In the last year she has demonstrated treatment resistance with ongoing psychotic symptoms despite adequate treatment and compliance; that is, Depo antipsychotic medication. She has recently started on Clozapine, an antipsychotic medication, reserved for treatment of treatment resistant illness.
Mrs Laganin has no prior history of offending. Her offending has been limited to a context of actual psychotic illness. With regards to the index offences of arson and attempted murder, Mrs Laganin has been found not guilty on the grounds of mental impairment under the Crimes (Mental Impairment and Unfitness to be Tried) Act and has been made liable to a Supervision Order under this Act.
At the present time Mrs Laganin is being treated by the Maroondah MSTS team. Her treating psychiatrist is Dr Xenia Prodromou, and her case manager is Jessica Steed. She receives visits every two days and two four weekly consultant reviews. She is under a Community Treatment Order.
With regards to treatment, Mrs Laganin has been treated with Clozapine since July 2010 and has demonstrated a good initial response, with significant reduction in her positive psychotic symptoms (delusional beliefs and auditory hallucinations). She has managed her own medication and weekly Clozapine levels have demonstrated ongoing compliance. She has demonstrated increasing insight and engagement with her treating team over this time. Her treating team has worked closely with Mrs Laganin's family to ensure all in the family are aware of early warning signs of psychotic illness and appropriate courses of action in case of crisis.
Mrs Laganin is suitable for supervision under a Non-custodial Order which is the least restrictive option. A Custodial Supervision Order would be unnecessarily restrictive and unnecessary at this stage. Mrs Laganin will require ongoing long-term treatment in the public health service given the serious of the index offence and the difficulty in assessing her mental state when unwell. The opportunity for prolonged assessment and treatment, however, has allowed her treating team to develop familiarity with behavioural and other indications of relapse.
Mrs Laganin’s illness is currently in partial remission with a significant improvement in positive and negative symptoms. It is reasonable to expect further improvement in the coming months once medication doses have been stabilised. Ongoing psychosocial rehabilitation and close liaison with her family will be important with reduction in supervision and monitoring a gradual process.
When Mrs Laganin is treated assertively and whilst her illness remains stable she presents a low risk to herself and members of the community. There is also the added protection under the Mental Health Act, that she is under a community treatment order and if Mrs Laganin was to deteriorate and to present a risk to herself or others, this order can be revoked at the discretion of the treating team and she can be readmitted to hospital if required again in the future. Her treating psychiatrist has indicated that there will be a low threshold for readmission in the context of indications of possible relapse.”
As I have already indicated, it is my intention to release you today on a non-custodial Supervision Order, Mrs Laganin.
In accordance with the provisions, it is my intention to impose upon you a series of conditions. Those conditions arise on the recommendation that I have in the report received. I have additionally received a certificate pursuant to s 47 of the Act which indicates the services which are available to you. That is expressed in the following terms, over the signatures jointly of Dr Bell, the authorised psychiatrist of the Victorian Institute of Forensic Mental Health, and Mr Tom Dalton, the delegate of the Secretary of the Department of Human Services:
“Should the court decide to place Mrs Laganin on a non-custodial supervision order she will continue to receive primary treatment through her local psychiatrist at the Maroondah Mobile Support and Treatment Service. Her progress and mental health will be monitored quarterly through a delegate of the authorised psychiatrist of the Institute at the Community Forensic Mental Health Service operated by the Institute at 505 Hoddle Street, Clifton Hill. It is proposed that this will occur for the first year and thereafter on an annual basis. Quarterly reports will also be obtained from her treating service. Her progress and mental health will be reported to the court annually through reports prepared by the Community Forensic Mental Health Service. The facilities and resources necessary to provide the treatment and services are available.”
I am commanded to apply certain principles when deciding to make such an order, by s 39 of the Act, which is expressed in the following terms:
“In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, 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.”
That is where part of the recommendation made by Dr Duncan came from when she said, “A custodial supervision order would be unnecessarily restrictive and unnecessary at this stage.”
You will be released on a non-custodial supervision order, for a period of 12 and a half years upon the following conditions:
(1) That you be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH) or his delegate;
(2) That you reside at XXXX or any other addresses agreed by the authorised psychiatrist of VIFMH;
(3) That you comply with the lawful directions of the authorised psychiatrist of VIFMH or the nominee of the authorised psychiatrist (currently the authorised psychiatrist of the Eastern Health Psychiatric Service) or their delegates or case managers appointed by them;
(4) That you comply with treatment and testing and attend appointments as directed by the authorised psychiatrist or delegate of VIFMH or his nominee or any case managers appointed by them;
(5) That you abstain from the abuse of alcohol and use of illicit drugs;
(6) That she comply with random urine drug screens and serum tests of medication as requested by the authorised psychiatrist of Forensicare or his or her delegate;
(7) That she does not leave the state of Victoria without the written permission of the authorised psychiatrist or delegate of the Victorian Institute of Forensic Mental Health.
Mrs Laganin, I guess you know now what your illness does to you and you know how much better you are when you take your medication and accept the advice of those who are treating you.
Although what I have said is expressed in pretty formal legal language, it is really telling you, for the next 12 and a half years, under the order of the Court, you have to keep up your treatment.
PRISONER: Yes.
HIS HONOUR: This is one area of the law where what we try and do is best for the people involved and at the moment, this order is the best thing for you. I am not the only person that is going to say this, but there might be sometimes when you feel well and you think you will stop your medication. The only time you can stop your medication is when a doctor tells you so, and under no other circumstances. You are doing pretty well at the moment, you have got a loving family to look after you. Just keep it up.
Anything else?
MR RYAN: No, as Your Honour pleases.
HIS HONOUR: All right.
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