R v Rowen (No 2)
[2022] VSC 374
•30 June 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0127
| THE QUEEN | Crown |
| v | |
| EDWARD ALAN ROWEN | Accused |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 June 2022 |
DATE OF JUDGMENT: | 30 June 2022 |
CASE MAY BE CITED AS: | R v Rowen (No 2) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 374 |
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CRIMINAL LAW – Murder – Accused 86 year old man with dementia – Accused found unfit to be tried – Accused found at special hearing to have committed the offence charged – Declared liable to supervision – Non-custodial supervision order made - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss 26, 28, 39, 40, 41, 47.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Glynn | Office of Public Prosecutions |
| For the Accused | Mr T Marsh | Victoria Legal Aid |
HER HONOUR:
On 23 June 2022 I made a non-custodial supervision order (‘NCSO’) under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘Act’) with respect to Edward Rowen. These are my reasons for so doing.
Procedural history
On 25 December 2019 Mr Rowen, then aged 83 years, was found in the street outside his Creswick home attempting to wave down passing cars. He made spontaneous admissions to five people that he had struck his wife to the head. His wife was discovered inside the home and airlifted to Royal Melbourne Hospital. She died in the early hours of 26 December 2019. Mr Rowen was arrested and later charged with murder.
Subsequent neuropsychological testing established that he suffers from some form of Alzheimer’s dementia, a condition which is permanent and deteriorating.
On 15 March 2021 I determined that Mr Rowen was unfit to stand trial[1] and, further, that he was not likely to become fit to stand trial within the next 12 months.[2]
[1]Act, s 94(b), as at 15 March 2021.
[2]Act, s 93(5)(a), as at 15 March 2021.
On 16 and 17 March 2021 I heard the special hearing of the murder charge sitting as a judge alone.
On 17 June 2021 I found that Mr Rowen had committed the offence of murder.[3] The facts of the case, which were not much disputed, are described in that decision.[4]
[3]Act, s 17(1)(c).
[4]R v Rowen [2021] VSC 347.
Also on 17 June 2021 I declared Mr Rowen liable to supervision under the Act.[5] He was remanded in custody pending the making of a supervision order and the receipt of a s 41 report and a s 47 certificate.
[5]Act, s 105, as at 15-17 March 2021.
The Court has received five such reports and certificates. There has been no little difficulty in finding an appropriate placement for Mr Rowen.
A s 47 certificate dated 22 July 2021 stated that there were no suitable services available for Mr Rowen. The s 41 report of the same date sought an adjournment of three months. With the consent of the parties, the adjournment was granted.
A s 47 certificate dated 22 October 2021 again stated that there were no suitable services available for Mr Rowen. The accompanying s 41 report of the same date sought a further adjournment of three months. With the consent of the parties, the adjournment was granted.
A s 47 certificate dated 25 January 2022 again stated that there were no suitable services available for Mr Rowen. The accompanying s 41 report of the same date again sought a further adjournment of three months. With the consent of the parties, the adjournment was granted.
A s 47 certificate dated 21 April 2022 once again stated that there were no suitable services available for Mr Rowen. The accompanying s 41 report of the same date sought an adjournment of two months. On 28 April 2022 Dr Ria Zergiotis, the consultant forensic psychiatrist at Forensicare involved in the matter, gave evidence as to the difficulties encountered in finding a suitable placement and the hoped for resolution following the imminent assessment of Mr Rowen by a number of prospective facilities. The adjournment was granted.
On 21 June 2022 the Court received a s 47 certificate indicating that a suitable placement had been found for Mr Rowen. The s 41 report of the same date indicated that there had been extensive liaison with the clinicians at the North Western Aged Persons Mental Health Program (APMHP) and that Mr Rowen had been reassessed by the manager of the Bundoora Extended Care Centre (BECC). He was now deemed suitable for admission to the Merv Irvine Nursing Home (MINH) in light of his progressive cognitive decline and confused state. The plan was for an initial admission to the acute inpatient unit of the APMHP at BECC for assessment before transfer to the MINH, which is co-located on the BECC site.
It is to be noted that in September 2021 Mr Rowen was assessed as unsuitable for the MINH as a result of his comparatively high functioning and physically able state, capacity to ‘stand-over’ vulnerable co-prisoners and unpredictable and manipulative behaviour. The most recent report of Dr Zergiotis indicates that Mr Rowen has significantly deteriorated and now presents with poorer function. That decline meant he was less of a violence risk on the unit and suitable for admission.
In this regard I note that Mr Rowen was assessed by a prison medical officer as too unwell to attend the brief hearing of this matter, even by means of audio visual link.[6]
[6]The Court was satisfied that the attendance of Mr Rowen at that hearing would be detrimental to his health, and ordered pursuant to s 36(4) of the Act that he not attend the hearing.
Dr Zergiotis states:
In my opinion, Mr Rowen remains suitable for a [NCSO] once he is placed in a psychogeriatric facility in the community, where he can be appropriately supervised, and any risks mitigated in a supportive environment. A psychogeriatric nursing home such as MINH is a permanent placement and is the preferred option [over] a Special Dementia Care Program Unit through Dementia Support Australia, which is transitional in nature.
To this end, Dr Zergiotis proposed conditions for the NCSO.
On 22 June 2022 both parties submitted that the NCSO should be made with the conditions proposed.
Analysis
In determining the appropriate supervision order, I have had regard to the principle of parsimony in s 39 of the Act as well as the factors in s 40(1). I have also considered the criteria specified in s 40(2) of the Act given that the NCSO has the effect of releasing Mr Rowen from custody.
On the basis of all of the material and noting the position of the parties, I am satisfied that a NCSO with appropriate conditions should be imposed. Mr Rowen is an elderly and very ill man. He requires supervision and complex care arrangements. His deterioration to date and the inevitable further deterioration in his mental state means that he is now of little danger to himself or others if he is given appropriate care.
In light of the age and prognosis of Mr Rowen, I am of the view that there is little utility in ordering a review of the NCSO in the short to medium term.[7] Counsel did not seek to persuade me otherwise. The various mechanisms provided for by the Act mean that the Court retains oversight of the NCSO and Mr Rowen’s progress. Further, should any unforeseen issue arise, the matter can be brought back before the Court.
[7]Act, s 27(2).
Conclusion
The orders of the Court are:
1. Pursuant to s 26(2)(b) of the Act, a non-custodial supervision order (‘NCSO’) is made in respect of Edward Alan Rowen with the following conditions:
a. That Mr Rowen be under the supervision of the Authorised Psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH) or their delegate.
b. That Mr Rowen resides in a location known to and approved by the Authorised Psychiatrist of the VIFMH or their delegate.
c. That Mr Rowen abides by the lawful directions of the Authorised Psychiatrist of the VIFMH or their delegate.
d. That Mr Rowen complies with treatment and testing and attends appointments as directed by the Authorised Psychiatrist of the VIFMH or their delegate.
e. That Mr Rowen abstains from the abuse of alcohol and the use of illicit drugs.
f. That Mr Rowen does not leave the State of Victoria without the written permission of the Authorised Psychiatrist of the VIFMH or their delegate.
2. The nominal term of the NCSO is 25 years.
3. The nominal term commences 25 December 2019.
4. Pursuant to s 35(1) of the Act, a major review is to take place three (3) months prior to the expiry of the nominal term of the NCSO.
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