R v Mucha No. Sccrm-98-1 Judgment No. S6666

[1998] SASC 6666

R  v  MUCHA

Mullighan J

Marek Wieslaw Mucha made an application for release from detention on licence pursuant to s293a of the Criminal Law Consolidation Act 1992.  I allowed the application and indicated that I would publish my reasons and I now do so.

The applicant is aged nearly 31 years.  He has two children aged 6 years and 5 years.  He was charged with the murder of his wife on 2nd January 1995 at Wingfield.  He came to trial 13th November 1995 and on 16th November 1995 he was found not guilty by reason of insanity.  Pursuant to s292(2) of the Act, the order of this Court was that he be detained in a secure psychiatric institution until further order.  He was admitted to James Nash House where he has since been detained.

It appears that the applicant killed his wife by manual strangulation.  It may be accepted that he was suffering from a severe mental illness at the time which has been categorised as schizoaffective psychosis, which is a major mental illness in which features of schizophrenia and a mood disorder are present.  He had been ill for some time.  Appropriate medication has been prescribed and over the years had been taken by him.   However when not following treatment, he presented with both psychotic and affective, usually manic, symptomatology.  He has a long history of mental illness requiring hospitalisation on occasions, the first of which was in 1986 when he was aged 19 years although it appears that he suffered episodes of mental illness before that time.  Some of the admissions to hospital were lengthy, one, in 1987, occupied five months.

The applicant was never in employment except at times in a venture established by his father.  Over the years before the killing, he was treated as an outpatient at the Western Outreach of the South Australian Mental Health Service and was maintained on a variety of medications.  The relationship between the applicant and his late wife has been described as an “enmeshed, hostile dependant” relationship with features of aggression by him towards her.  For some time they had lived apart but had frequent and intimate contact.  It seems clear that he killed his wife following a domestic altercation.  A symptom of his condition is that he held paranoid delusional beliefs, particularly with respect to members of his family, including his late wife.

Since the applicant was admitted to James Nash House he has been under the care of Dr KP O’Brien, a consultant forensic psychiatrist, although the day to day management of his care has been conducted by junior medical staff under his supervision.  From time to time, Dr O’Brien has reported on the well being of the applicant.  I accept his report that the applicant has been in a stable condition since the commencement of his detention.  He has not demonstrated any active features of psychotic illness and he does not have management problems.  At times the behaviour of the applicant and his interaction with other patients is a little intimidating and intrusive, but he has been managed without difficulty.  These personality traits have been pointed out to him and he is making an effort to modify his behaviour accordingly.  According to Dr O’Brien, this is a matter of significance because if the applicant is transferred to Glenside Hospital, he will be able to understand the impact of his behaviour on other residents and citizens.  At all events, Dr O’Brien is of the opinion that this behaviour does not constitute a reason for this application to be refused.

The applicant has remained free of any signs of active mental illness for some time.  He had a psychotic experience in November 1996 when he had a very brief experience of tactile hallucinations which was a feeling as if droplets of something were falling on his skin.  He had a similar experience earlier this year when he felt things on his skin but the condition resolved promptly.   He does not appear to have had any ideas of reference or auditory hallucination since mid to late 1995 and his current medication suits him well.  He has insight of his illness and understands the importance of medication and keeping it under control.  He appreciates that he must take the medication and appears happy to do so.  At present his medication consists of Flupenthixol at a dosage of 20mg administered intramuscularly every two weeks, Lithium Carbonate at a dosage of 1500mg taken orally at night and Cabramazepine at a dosage of 800mg taken orally at night.  He takes the medication willingly.  Dr O’Brien further reports that the applicant is vigilant about the re-emergence of any early signs of his illness and says that he appears to be sincere about alerting staff if he begins to feel unwell.

The application for release on licence is made on the basis that he will be transferred to Glenside Hospital for so long as is necessary or desirable.  Initially he will be kept in a closed ward but eventually moved to an open ward with more extended freedom being gradually extended.  If his progress is satisfactory, he will be granted supervised day leave so that he may be with his father and his children at the home of his father.  It is proposed that whilst at Glenside Hospital his father, mother and children will visit him on a regular basis, as has been the case at James Nash House.

The matters which must be considered upon an application of this nature are set out in ss(13) and (14) of s293a of the Act.  This section has since been repealed but it applies to this application.  The relevant matters are as follows:

“(13).. In determining an application for the release of a person on licence or for variation of the conditions of his or her licence, the court -

(a)...... must seek to make a determination that is the least restrictive of the person’s freedom and personal autonomy as is consistent with the safety of the community;

and

(b)...... to that end, must have regard to -

(i)....... whether the person is suffering from a mental illness or has an intellectual impairment;

(ii)...... whether, if the person were to be released, his or her behaviour (whether or not arising from a mental illness or intellectual impairment) would be likely to constitute a danger to another person, or to other persons generally;

(iii).... whether there would be adequate resources available to the person in the community for his or her treatment and support;

(iv)..... whether the person would be likely to comply with the conditions of his or her licence;

and

(v)...... such other matters as the court thinks relevant.

(14)... In fixing or varying the conditions of a licence, the court must also have regard to the interests (so far as they are known to the court) of the person’s next of kin and of the victims (if any) of the offence with which the person was charged.”

.................... Pursuant to s293a(11)(a) of the Act, the applicant may not be released on licence unless the reports of at least three legally qualified medical practitioners, who each have separately examined him, have been considered.  Two of them must be psychiatrists with experience in forensic psychiatry and one of them must not be employed in the part of the institution in which the applicant is being detained.  Reports have been obtained from three psychiatrists who have separately examined the applicant.  They are Dr O’Brien, Dr P Norrie and Dr C Raeside and they all have experience in forensic psychiatry and have given reports pursuant to the section. 
Dr Norrie is not employed at James Nash House where the applicant has been detained.

Also, pursuant to s293a(11)(b) the applicant cannot be released on licence unless the next of kin of the applicant and victims of his offending have been given reasonable notice of the application.  They have been informed and their views, with the exception of the parents of the late Ms Mucha have been obtained by Mr AO Barratt, the Senior Social Worker of Forensic Mental Health Services at James Nash House and included in a report to the Court.  I accept the accuracy of the report.

Mrs Stefania Chmiel, the grandmother of the late Mrs Mucha, remains sad about the death of her granddaughter and has suffered greatly by reason of her death.  She does not wish to have any contact with the applicant and, should he be released on licence, would like a condition imposed to restrain him from having any contact with her.   Her husband, Mr Stefean Chmiel, the step-grandfather of the late Mrs Mucha, has contact with the applicant’s father and has no objection to the release of the applicant on licence if the psychiatrists regard that course as appropriate.  However, he is of the view that the applicant’s father may be at some risk should the applicant live with him.  Both Mr Chmiel and Mrs Chmiel say that any release on licence should be a gradual process.  There is no evidence to support the apprehension of Mr Chmiel that the applicant's father may be at such a risk.

Mr Z Franczak is the brother of the late Mrs Mucha.  Both he and his wife expressed the view that the applicant should be detained for at least five years before release was even considered.  They had a close association with the late Mrs Mucha who lived with them with the younger child for about six months.  They are fond of both children.  They have been denied access to the children consistently by the applicant’s father.  They are both angry about the denial of access but do not require any restraints to be placed upon the applicant contacting them.

The parents of the late Mrs Mucha live in Poland and are unwell.  Neither of them speak English.  They have never lived in this country.  The mother is the daughter of Ms Chmiel who requested that contact not be made with them as knowledge of Mr Mucha being released would be detrimental to their health.  There has not been any objection to the application and by reason of the parents of the late Mrs Mucha not having been informed of the application.  The reasons for not doing so seem reasonable and appropriate in the circumstances.  In all the circumstances I do not think it is appropriate to regard them as victims for the purpose of s293a(11)(b).

The parents of the applicant support the release of the applicant on licence.  The father proposed that eventually the applicant live with him and the two children of the applicant.  The parents are separated but live in adjoining units.  The two children live with the applicant’s father.  He is in good health, but the mother suffers from schizophrenia which is controlled by medication.  The parents have visited the applicant every Wednesday and taken the children to see him at James Nash House every Saturday and Sunday.  The father asserts that although the local Polish community was greatly saddened by the death of the late Mrs Mucha, the applicant would be welcomed back into that community and given support.  However, as there is no evidence from other members of that community, I do not think it is appropriate to accept this statement by the applicant’s father as a reliable indication of a common view of members of that community.

The two children have not been consulted about the application and I do not see any reason to seek their views at this stage as there is no proposal that the applicant should now be released into the community to live with his children.  It may be desirable to do so if and when the applicant seeks release into the community but I express no opinion about that matter.

I have had regard to all of the views of these people upon consideration of this application.  None of the views constitute any sound reason to refuse the application but they are relevant to the fixing of conditions, particularly those of Mrs Chmiel.

Each of the three psychiatrists support the release of the applicant to Glenside Hospital upon the basis of strict supervision and management of him and his treatment.  They are all of the opinion that, at present, his condition is stable and the present medication is successful.  Dr Norrie expresses a note of caution:

“My only concern following assessment is, that given his current stability, Mr Mucha is perhaps a little over-optimistic.  Clearly there were significant relapses of his illness in the past, and careful monitoring will be needed to check the reliability of his self-stated improved insight into managing his illness in the future.  I also note from Mr Barratt’s report that there is some concern from the family and the Polish community which perhaps clouds Mr Mucha’s belief that things are in the past and forgiven.  Nonetheless there appears more than adequate support for his eventual transition into the community.”

Nevertheless he supports the proposed move to Glenside Hospital.  There is no evidence to suggest that there are any adverse feelings about the applicant in the Polish community.  The applicant is to be strictly supervised at Glenside Hospital.  Dr Norrie's view should not stand in the way of release on licence.

Dr Raeside reports that he has no reservations about the applicant being transferred to Glenside Hospital if that is the decision of the Court.  He believes that the applicant will function appropriately in an open ward.  It appears that he supports the aim of a gradual re-introduction of the applicant into the community over six to twelve months.

Dr O’Brien supports the proposal and does not regard any time in a closed ward as necessary.

I required evidence to be given as to the facilities at the Glenside Hospital proposed to be used for the applicant and as to the regime of supervision and treatment proposed for him.   Dr Norrie, as the Acting Director at the Glenside Hospital, gave evidence, which I accept, about these matters and I am satisfied that it is now appropriate that the applicant be placed at that Hospital.  He will be in a closed ward for a short time and then placed in an open ward with supervision.

I now turn to the matters which must be considered by reason of s293a(13).  The evidence establishes, so far as it is possible, that upon the applicant being released on licence as is envisaged, his behaviour would not be likely to constitute a danger to any other person or to the community in general.  He will remain at Glenside Hospital under close supervision and will not be permitted to leave the hospital without being accompanied supervised by appropriate staff.  Necessary medication will be administered under strict supervision which will probably control his behaviour.

It is unnecessary at this stage to consider whether there are adequate resources available to the applicant in the community for his treatment and support as he will not be in the community without direct supervision.  I propose that it be a condition of the licence that he be directly and constantly supervised by suitable staff of the Hospital when permitted out of the grounds.  Leaving the grounds without supervision should be regarded as a serious breach of a condition of the licence.

The evidence suggests that the applicant has insight to his condition and present circumstances and wants his release on licence to be a success.  I accept that he would be likely to comply with any conditions imposed.

In reaching my conclusions and in imposing conditions, I have kept in mind the fundamental principle imposed by the Legislature that the Court must seek to make a determination that is the least restrictive of the freedom and personal autonomy of the applicant and as is consistent with the safety of the community: s293a(13)(a).  The psychiatrists all speak with the one voice in favour of his release and there is no evidence which suggests that the community will be at risk.

For these reasons I made the order which is in the following terms:

(1)... That subject to condition (i) in paragraph (2) of this Order being fulfilled, the detention order be discharged.

(2)... That the applicant be released on licence pursuant to s293(a) of the Act on the following conditions:

(i).... That the release on licence be subject to the Director of Extended Care at Glenside Hospital (“the Director”) certifying in writing to the Director of James Nash House that a suitable closed ward placement is available to the applicant at the Glenside Hospital.

(ii)... That the applicant reside in a closed-ward facility at the Glenside Hospital for a period as determined by the Director, and subject to such conditions, not inconsistent with this order, as may be determined by the Director or a consultant psychiatrist nominated by him.

(iii).. That thereafter the applicant reside in such ward and subject to such conditions not inconsistent with this order, as may be directed from time to time by the Director of a consultant psychiatrist nominated by him.

(iv).. That the applicant not leave the grounds of Glenside Hospital other than if he is accompanied by a member or members of the staff of Glenside Hospital nominated by the Director or other person or persons approved by the Director and that during his absence from the Hospital he remain in the presence and under the supervision of such a member or members of staff.

(v).... That the applicant be under the care of the Director or a consultant psychiatrist nominated by him and obey any directions given to him from time to time with regard to medical and psychiatric treatment and medication and further that he be psychiatrically reviewed on a regular basis as directed by the Director or a consultant psychiatrist nominated by him.

(vi).. That the applicant continue to receive his medication current at the date of his release on licence as required by his consultant psychiatrist and further that any alteration or reduction in such medication not occur without the approval of the Director or of a psychiatrist nominated by him.

(vii). That the applicant complies in every respect with the treatment plan prepared and in force from time to time pursuant to s293a(2) of the Act.

(viii) That the applicant not consume alcohol.

(ix).. That the applicant not use, possess or administer any narcotic or psychotropic drug or any drug other than tobacco and other than those referred to in paragraph (v), (vi) and (vii), and which is not medically prescribed for his use by a legally qualified medical practitioner and then only at prescribed or recommended dosages.

(x)... That the applicant be of good behaviour.

(xi).. That the applicant be under the supervision of a parole officer.

In my view, there should not be any alteration or variation of any of these conditions except by this Court.  If the applicant complies with the conditions and it is considered that he should be released into the community or treated in some other manner, an application should be made to vary the conditions of the licence.  I have in mind that the progress of the applicant over the next six to twelve months should be carefully monitored.  If his progress is satisfactory and it is considered appropriate to permit him to live with his father or mother and children, the Court can then consider any proposal for variation of the conditions.