Re AB

IN THE SUPREME COURT OF VICTORIA

Not restricted[1]

[1]See footnote 2, below.

AT MELBOURNE

COMMON LAW DIVISION

S CR 2013 0145; S CI 2017 01408

IN THE MATTER of a review of a custodial supervision order imposed on “AB”

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	21 April & 20-22 November 2017 (oral hearing) 20 December 2017 & 12 January 2018 (written submissions)
DATE OF DECISION:	29 June 2018
CASE MAY BE CITED AS:	Re AB
MEDIUM NEUTRAL CITATION:	[2018] VSC 349

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MENTAL IMPAIRMENT AND CRIMINAL LAW – Review of custodial supervision order (“CSO”) – AB strangled two co-patients at Thomas Embling Hospital (“TEH”) with ligature, killing one but not the other – AB found not guilty by jury of murder and attempted murder by reason of mental impairment – History of mental illness, including (partly) treatment-resistant schizophrenia, and serious acts of violence, especially while in custody – Exceptionally, certificate of available services declared no facilities or services available for AB in designated mental health facility (i.e. TEH) – Level of security and facilities at TEH inadequate to cater for AB’s estimated risk of violence on long-term basis – CSO made but, absent ‘favourable’ certificate, Court compelled to commit AB to prison instead of TEH – Upon review of CSO three years later, new certificate of available services makes same negative declaration – Certificate based on advice that AB still could not be managed safely at TEH at present – Prison conditions in which AB held in interim extremely restrictive, including isolation from others and movement about in handcuffs accompanied by guards, but high level of psychiatric and psychological care provided – Some improvement in AB’s mental health and possibility of further improvement in future – Possibility of high security mental health facility to be commissioned and built in future – AB concedes necessity of continued detention in prison on CSO, for time being – Unnecessary to decide whether, upon review, ‘favourable’ certificate of available services required to allow change to place of custody from prison to TEH – Existing CSO and place of custody (prison) confirmed – Possible underestimation of effect of anti-psychotic Clozapine in controlling AB’s illness and risk of violence – Further review directed by 1 September 2019 – Anonymization of reviewee and others in reasons – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 3, 20, 23, 24, 26, 27, 31, 33, 39, 40, 41, 42, 47 & 75; Mental Health Act 2014 (Vic), ss 3, 276, 306 & 329.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J Carpenter	John Cain, Solicitor for Public Prosecutions
For the Accused/Reviewee	Ms M Fox QC	Victoria Legal Aid
For the Secretary to the Department of Health and Human Services	Mr P Matthews	Legal Services Branch, Department of Health and Human Services
For the Attorney-General	Ms D Costaras	Victorian Government Solicitor
For Corrections Victoria	Ms K Grinberg	Victorian Government Solicitor

HIS HONOUR:

Overview

In the early hours of 27 December 2012, at Thomas Embling Hospital (“TEH”), “AB”[2] strangled fellow patient “DC” to death with a ligature fashioned from shoelaces. Soon afterwards, AB tried to kill another patient, “EF”, by the same means, but failed only because he was thwarted by hospital staff.
[2]Pursuant to s 75 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), the names of the reviewee and others have been anonymized, and some other aspects of the case have been described elliptically, so as to ensure that AB is not identified and that, in turn, the risk of impeding his progress towards rehabilitation through identification is minimized. See further below.

Following a trial in this Court, on 23 May 2014, AB was found not guilty by reason of mental impairment of the murder of DC and the attempted murder of EF. The jury’s verdicts necessarily implied an acceptance that, as a result of the effects of his schizophrenia at the time of engaging in the conduct constituting the offences alleged, AB did not know that his conduct was wrong.[3]
[3]See s 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

On 1 June 2015, I imposed a custodial supervision order (“CSO”) on AB and fixed the mandatory nominal term of 25 years.[4] Exceptionally, the CSO involved committing AB to custody, not at TEH, but in prison, where he remains to this day. I was compelled to commit him to prison for two reasons. First, the certificate of available services before the Court declared that there were “no facilities or services available for [AB] to be committed to custody on a [CSO] in a designated mental health facility” (such as TEH[5]). Secondly, there was no practicable alternative to prison in the circumstances.[6]
[4]Pursuant to ss 26(2)(a) and 28 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). The reasons for the unusually long delay between verdicts and final orders are complex, and will be explained below.
[5]Strictly, Thomas Embling Hospital is the name of the facility run by the Victorian Institute of Forensic Mental Health (“the VIFMH”) (or “Forensicare”), which is a “designated mental health service”, not a “designated mental health facility”. See the following circuitous route of provisions: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 3(1) (in particular, the definitions of “designated mental health service” and “appropriate place”), 26(2)(a) and 47(1)(a)(i); and the Mental Health Act 2014 (Vic), s 3(1) (in particular, paragraph (f) of the definition of “designated mental health service” – which is the VIFMH, which, by s 329, trades under the name Forensicare). See also below.
[6]See ss 26(2)(a), (3)(a) and (4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

On the same day, I directed that the matter return to this Court for a review within two years, i.e. by 1 June 2017.[7]
[7]Pursuant to s 27(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

That review is now before me. Again, exceptionally, a fresh certificate of available services makes the same (negative) declaration. The declaration is supported by the evidence of experienced professionals in the field. In those circumstances, and having heard submissions on behalf of the parties, including concessions by counsel for AB, I have determined that the CSO must be confirmed and that, at least for the time being, AB’s place of custody – in a prison – must remain the same.[8]
[8]Pursuant to s 32(1)(a) and (b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

Further, I have concluded that the CSO should be reviewed again by 1 September 2019.[9]
[9]Pursuant to s 32(5) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

My reasons for those conclusions and orders follow.

I shall break the balance of these reasons down into the following topics:

a) the background to the matter;

b) the events giving rise to the charges;

c) the trial;

d) the hearings that led to the imposition of the CSO;

e) the present review of the CSO;

f) the next review of the CSO;

g) the anonymization of these reasons; and

h) the orders.

A troubling state of affairs

Before turning to those topics, however, I wish to make the following remarks.

This case is both unique and very troubling. Both are so, for a start, because one patient was killed, and another was nearly killed, at a secure mental health hospital by a third patient who was suffering a psychotic episode resulting from his schizophrenia, in circumstances where he had been certified and transferred from prison to the hospital only five days earlier precisely because of concerns about his deteriorating mental health.

In my view, it is also extraordinary that, given the verdicts of not guilty by reason of mental impairment, and despite his history of serious violence and what is thought to be the inscrutability of his drivers for such behaviour, AB is now housed in a prison instead of a secure mental health facility.

Just how unusual this state of affairs is can be gauged by the concession made by psychiatrist Dr Maurice Magner and psychologist Professor James Ogloff (both of Forensicare) in their joint report received in evidence at the hearing in December 2014 that preceded the making of the CSO:[10]

… [AB] is unique and this is the first time in Forensicare’s history that we have expressed an opinion that a forensic patient cannot be adequately managed at the TEH. Indeed, we have been able to accommodate other high risk patients, including one who has killed two co-patients, but certainly no one with [AB’s] unique and troubling presentation.

[10]Report of Dr Magner and Professor Ogloff (8 December 2014), [221] (emphasis added).

Thus, AB fell into a category of one.

And he still is so regarded. For, now, five-and-a-half years after the acts of violence that led to the imposition of the CSO, AB remains in a unique situation, as the expert opinion still is that he cannot be accommodated safely at TEH, and the associated certificate of available services still makes the same (negative) declaration.

And this is so despite the belief, held by the very same experts, that it would be preferable for AB to be held and treated in an appropriately secure mental health facility rather than in a prison. Certainly, that is the view of Dr Douglas Bell, a psychiatrist of vast experience in the criminal justice and forensic mental health systems. Dr Bell has been treating AB in prison under the CSO since December 2016 and has also treated him on several occasions either in prison or at TEH over many years. In particular, during his evidence on the present review in November 2017, when asked just where AB should be housed if resources were no object, Dr Bell answered in this way:[11]

[AB] has been found not guilty … on the grounds of mental impairment, and both at a philosophical and ethical and legal perspective, and at a therapeutic clinical perspective, in my view, the environment that he should be placed in is an appropriate hospital environment. That’s a view that Forensicare has long held since its inception and it’s certainly one that as a matter of principle I hold too, very, very strongly, and of course that’s reflected in the wording that Your Honour referred to at the beginning, that he could only be in prison if there’s no practicable alternative. But it does require conditions within [a] hospital where that can be done safely, and, at this point in time, I could only see it safely happening if there were the potential for him to … remain essentially segregated from mixing with other patients in a way that then, over time, both facilitate the range of therapeutic interventions [and] treatments that are required, and was also able to have very strict control over the manner of, and rate at which, he would slowly start to mix with other patients. I don’t believe that Thomas Embling, as it is currently configured, has … that kind of facility, that kind of arrangement.

[11]Transcript of hearing (20 November 2017), p 68.

The first part of Dr Bell’s answer pithily states the ideal – that AB should be in “an appropriate hospital environment” – and reasons why that is so. The second part of his answer deals with the sad reality – namely, that, unlike some other advanced jurisdictions, at present, this State does not have the necessary high security hospital facility in which AB could be held and treated while maintaining adequate safety to both staff and other patients. Let me say a little more about both the ideal and the reality.

In this State, when a person is found not guilty by reason of mental impairment (or what used to be called insanity) of offences as serious as murder and attempted murder, the usual course is that he or she is placed on a CSO for an indefinite period (with a fixed nominal term) and held and treated at TEH. That hospital is a secure forensic mental health facility, the only one of its kind in Victoria. The principal aim of a CSO to TEH is to ensure that the patient is assessed and treated in a secure and therapeutic environment. The hope is that, with such treatment and the passage of time, the patient might become well and stable enough to be released back into the community: initially, on limited day and/or overnight releases; then, usually several years down the track, on extended leave;[12] and, eventually, perhaps, on a non-custodial supervision order (“NCSO”). Finally, it is even possible that a patient might make such a good recovery that unconditional release is a realistic prospect ultimately. Another aim of these orders is to ensure that the community is kept safe throughout this process. All of that is the ideal.
[12]Sometimes, this may not occur for many years. Sometimes, it may not occur at all.

The reality in this case is somewhat different – at least for the time being. Our criminal justice and forensic mental health systems in this State have failed to allow AB, a man found not guilty by a jury of serious offences because of mental impairment, to be held and treated at TEH. And, at present, the prospect that that situation might be remedied is little better than bleak. That is very disappointing.

Further, the conditions in which AB has been held in prison since his return from TEH have been extremely restrictive and isolated.[13] For example, he has barely any face-to-face contact with others and instead usually speaks to other prisoners – only one at a time – through a grilled fence. Also, he is moved about the prison in handcuffs and accompanied by prison officers. It is only in relatively recent times that the prison authorities have allowed AB’s handcuffs to be removed when consulting some professionals or during visits by his mother.
[13]In fact, it is likely that he has been held in highly restrictive conditions (including handcuffing and segregation) since as early as December 2009 – which is least three years before the killing and attempted killing at TEH. See the viva voce evidence of Mr Brendan Money, Assistant Commissioner, Sentence Management Division, Corrections Victoria, Transcript of hearing (21 November 2017), pp 125-126 & 133-134; and his report (of 2 October 2017), p 2.

None of this has been done without reason, of course. AB has a history of grave mental illness and unpredictable violence – particularly inside the prison system and at TEH. In addition to killing DC and trying to kill EF, he seriously assaulted prison guards in 2005 and 2009. Experts have described his mental state as difficult to determine, even inscrutable, at times. Understandably, the behaviour in which he has engaged has caused the authorities to think twice – and again – before recommending that he be housed back at TEH. Further, I accept that the design of TEH, and its level of security, are not capable adequately of catering for AB and the risks he is perceived to present currently, at least not on a long-term basis. But he has been found not guilty of the crimes with which he was charged because of the effect on his mind of the grave mental illness that he suffers. He therefore bears neither moral culpability nor the usual legal responsibility for what he has done. He was gravely unwell and should be in an appropriate secure mental health facility in consequence, not in a prison.

Of course, that s 26(2)(a)(ii) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the CMI Act”) allows that a supervision order may involve committing a person to custody in a prison shows that the legislature contemplated that there may be cases in which a person found not guilty by reason of mental impairment will have to be detained in a prison. But s 26(4) makes it clear that that is not to occur unless the Court is satisfied that there is no practicable alternative in the circumstances.[14] Further, as we shall see shortly, the stated aims of the CMI Act when introduced into Parliament imply that detention in a prison would be very much a last resort. All else being equal, only prisoners should be in prisons; patients should be in hospitals.
[14]See also Mrs Jan Wade, Attorney-General, Second Reading Speech, Crimes (Mental Impairment and Unfitness to be Tried) Bill, Legislative Assembly (18 September 1997), p 186, where the Attorney said: “A person in respect of whom a supervision order is to be imposed is not to be detained in a prison unless there is no practicable alternative”.

To be sure, AB, while in prison under the CSO, has been provided with expert psychiatric and psychological care. As he should be. Further, special – even quite innovative – efforts have been made by the authorities to house him in an environment that is as therapeutic as security and logistical considerations have been thought to allow in a highly secure prison management unit. But, still, it is prison, not a hospital.

There is evidence before me that the type of highly secure mental health facilities that could accommodate a man with AB’s particular afflictions and history, and others like him, exist in the United Kingdom and Queensland. I have also heard evidence that such facilities might be commissioned and built in this State at some stage. Hopefully, that occurs sooner rather than later. But, at the moment, all of that seems a long way off, and may never occur.

And this Court, I fear, is all but powerless to do anything about AB’s plight in the interim. While the question whether this is so will be left to another day, on at least one construction of the relevant provisions, without a ‘favourable’ certificate of available services, the only option left open upon a review of the type I have just conducted is to maintain the order committing AB to prison, even if it were thought that the better view of the evidence is that it favoured his being placed at TEH.

On a more positive note, as it happens, there have been some signs in recent times suggesting that eventually AB may improve sufficiently, so that the authorities might change their view and provide a ‘favourable’ certificate. Indeed, the same experts who say he is not ready for transfer from the strictures of a prison environment just yet are nevertheless cautiously optimistic about AB’s progress and the possibility of his being able to be transferred to TEH in the longer term. Further, AB himself retains a hope of being returned to TEH. In my view, given the long period of extremely restrictive conditions under which he has laboured, it is both remarkable and to his great credit that AB still thinks in that way and that he has not become completely demoralized instead. If nothing else, it also shows the power of the human spirit.

But, at present, all of that seems to be as far away as, or perhaps even further away than, the commissioning, building and staffing of the appropriate specialist high security facility. Indeed, my concern is that, as things presently stand, AB, who is only in his mid-30s, appears to be at risk of spending the rest of his life in prison under a CSO.

This prospect is all the more troubling in view of the following. Had AB been found guilty of the crimes charged, in sentencing him, it would have been necessary to take into account a range of competing factors. Those factors would have included, on the one hand, the maximum penalties for the offences,[15] their objective gravity, the impact on victims, AB’s history of violence and mental illness, his risk of reoffending, and the need for protection of the community; and, on the other, his severely impaired mental health at the time of his behaviour and the associated reduction in his moral culpability,[16] the particular hardship that he has endured (and will be likely to continue to endure) in prison, his age and such prospects of rehabilitation as he may have. While it is difficult to be precise about hypothetical circumstances such as these, nevertheless, I think it is likely that I would have been moved to impose a fixed total effective sentence with a non-parole period. Thus, it appears that, as things stand, AB might have had a more realistic prospect of ultimate release into the community had he been found guilty. On the other hand, had that occurred, AB might not have been provided with the high level of psychiatric and psychological treatment and care that he has been receiving in recent times.
[15]Imprisonment for life for murder and for 25 years for attempted murder (see the Crimes Act 1958 (Vic), ss 3, 75A & 321P).
[16]Albeit, on this hypothesis, he would not have been quite so impaired as to have established the formal defence of mental impairment. As to the impact that grave mental illness (falling short of that required for the formal defence of mental impairment) can have on sentencing, see, for example, the Court of Appeal’s decision in R v Sebalj [2006] VSCA 106 and my reasons for sentence in The Queen v Sandhu [2016] VSC 516; The Queen v Gibson [2016] VSC 634; and The Queen v Papathanasiou [2016] VSC 722.

The latter point notwithstanding, AB might well feel – and reasonably so – that he is very much the worse off for having been found not guilty by reason of mental impairment than he would have been had he been found guilty.

Further, as will have been noticed earlier in the extract from the joint report of Dr Magner and Professor Ogloff, there has been another patient of TEH who, when nearly due for release, stabbed two fellow patients to death, and yet he received a ‘favourable’ certificate of available services and still remains at the hospital. But not AB. That, to my way of thinking, also seems terribly unfair.

The CMI Act was enacted, over twenty years ago, in part, to replace the Governor’s pleasure system of detaining those found not guilty by reason of insanity. In her second reading speech in support of the bill that was to become the CMI Act, the Attorney-General Mrs Jan Wade said that the Governor’s pleasure system was generally recognized as “antiquated and unjust” because, among other things, “it [was] inappropriate that release decisions [were] made by the executive and may therefore potentially be subject to political considerations”.[17] The Attorney went on to say that the bill included the following aims:[18]
[17]Mrs Jan Wade, Attorney-General, Second Reading Speech, Crimes (Mental Impairment and Unfitness to be Tried) Bill, Legislative Assembly (18 September 1997), p 185.
[18]Mrs Jan Wade, Attorney-General, Second Reading Speech, Crimes (Mental Impairment and Unfitness to be Tried) Bill, Legislative Assembly (18 September 1997), p 185 (emphasis added).

to vest the trial court with the power to make the most appropriate order in the circumstances rather than having no option but to order detention at the Governor’s pleasure …;

to require regular reporting to the trial court where the court has ordered that a person be subject to a supervision order under the bill – this is to ensure these people are not lost in the system;

…

to set a nominal term … where a supervision order is imposed as a further safeguard against a person being forgotten about …; and

to set out the matters to which a court should have regard and, in so doing, to strike the appropriate balance between the protection of the community on the one hand and the clinical or therapeutic needs of the person on the other.

While there are no easy solutions when there are competing principles, scarce resources and complex questions concerning a patient’s history of mental illness and serious violence, it seems to me that, in AB’s particular case, the foregoing laudable aims are a long way from being met by the CMI Act and the resourcing of its associated institutions. For it is plain that this Court has been driven to order something akin to – or perhaps even harsher than – detention at the Governor’s pleasure in AB’s case when, given the verdicts of not guilty by reason of mental impairment, he should be detained and treated in an adequately secure mental hospital. As a result, it cannot be said that the appropriate balance has been struck between the protection of the community on the one hand and the clinical or therapeutic needs of AB on the other. As his counsel submitted, “[t]here must be a value in th[e] verdict[s]”.[19] Yet there seems to be none. Further, despite the good intentions and expertise of those involved in his custody, care and treatment, I fear that there is a risk that, under the present arrangements, AB will be “lost in the system”, at least in the sense that his chances of rehabilitation will be limited – or even completely thwarted – by the extreme restrictions involved in his incarceration in a prison.
[19]Transcript of hearing (1 June 2015), p 15.

All of that said, I can assure AB that he will not be forgotten. At the very least, what this Court can – and must and will – do is keep reviewing his case at suitable intervals.

As I said earlier, I hope that the appropriate high security mental health facilities – of the type that already exist in the United Kingdom and Queensland – will be commissioned and built here too sooner rather than later. I should have thought that there would be several other patients and/or prisoners like AB, and that there are likely to be more as the population increases, who would be better suited to, and who might be managed with less risk to others in, a high security mental health facility than they might be at TEH.

Failing a decision by the State to commit the necessary resources to commission and build such a facility, and whether or not that occurs, I hope that, over time, those charged with AB’s care in prison can see their way clear to making the necessary changes to his regime of security and socialization so that he is increasingly likely to improve sufficiently and more rapidly so as to warrant a ‘favourable’ certificate of available services and an eventual transfer back to TEH in the not-too-distant future.

It has been said, by many, and in several different ways, that a society can be judged by the way in which it treats its prisoners. That is true enough. But what the State must not do is treat those found not guilty of serious crimes by reason of mental impairment as if they were prisoners convicted of those crimes. In my view, despite the great efforts being made by those charged with his custody, care and treatment, that is the effect of what is happening to AB. It must stop as soon as is reasonably possible. He is not a prisoner. He is not in custody to be punished. He is there for treatment. He should be in an appropriately secure mental health facility and treated accordingly.

Background

I turn now to some of the background to this matter.

AB is now in his mid-30s. His life thus far has been blighted by a broken home, a difficult childhood, illicit drug use from an early age, a long and troubling history of debilitating mental illness, several stints in prison, eight admissions to TEH, and numerous spates of violence – three of them involving grave violence, two committed in prison, one in TEH.

AB’s parents, who are both still alive, separated when he was young. He has little contact with his father. His mother and sister remain supportive of him, especially his mother. While his mother lives interstate, she has been able to visit occasionally.

During his childhood, AB was physically and emotionally abused. He exhibited a range of behavioural difficulties, including tantrums, aggression, fighting, running away from home and truanting. At the age of eleven, he was diagnosed with attention hyperactivity deficit disorder (“ADHD”) and was treated with medication. He found school quite difficult.

AB used cannabis and alcohol from the age of twelve, and then amphetamines and heroin intermittently later in life.

He lived in foster homes and on the streets for part of his adolescence. He also spent time in juvenile institutions and, later, in prisons.

Much of his dishonesty offending involved attempts to obtain money to buy drugs.

It appears that AB has no history of paid employment.

After some initial uncertainty among experts, it is now accepted that AB suffers from paranoid schizophrenia and that he has done so since at least as early as 2004, when he was only 21. His illness has been characterized by thought disorder, persecutory delusions, bizarre delusions, thought withdrawal or broadcasting, and auditory hallucinations.

He is also afflicted with an antisocial personality disorder and has a high level of psychopathic personality and behavioural features.

During the period 2004 to 2006, while serving terms of imprisonment, mostly for dishonesty offences but also assaults, AB was transferred from prison to TEH for treatment on three separate occasions after being certified under the Mental Health Act 1986 (Vic).[20] The periods spent at the hospital ranged from about three weeks to five-and-a-half months.[21]
[20]Which Act has since been replaced by the Mental Health Act 2014 (Vic).
[21]The three periods were from 27 February to 19 March 2004; 22 October to 16 December 2004; and 25 August 2005 to 9 February 2006.

The third of those admissions occurred after AB stabbed a prison officer in the neck with a prison-fashioned ‘shiv’ and then assaulted another officer who came to his colleague’s aid. During this period of admission to TEH, AB was commenced on the anti-psychotic medication Clozapine for the first time. As I shall explain later, despite advice from psychiatrist Dr Danny Sullivan that he had a defence of mental impairment available to him, in 2007, AB pleaded guilty to serious assault-based charges arising out of the stabbing of the prison officer and the assault of his colleague, and was sentenced to five years and nine months’ imprisonment with a non-parole period of three years and nine months.

He was released on parole on that sentence in late-2009 but returned to prison within a few weeks when arrested on fresh charges.[22] Those charges included theft, assault and false imprisonment arising out of an incident at a petrol station.
[22]There are different accounts in the reports of the period between AB’s release on parole and his return to custody on fresh charges. For example, in the report of Dr Mark Ryan (dated 13 July 2010), at p 3, it was thought to be a period of five days, whereas the joint report of Dr Maurice Magner and Professor James Ogloff (dated 8 December 2014), at [38]-[39], implies that the period was one of 18 days, from 9 to 27 November 2009.

About two weeks after his arrest, on 12 December 2009, without provocation or warning, AB assaulted a prison officer with a cricket bat and caused him serious injury. For a period of ten days between his arrest on the petrol station charges and in the lead-up to the assault with the cricket bat, AB was not given the Clozapine prescribed for him. After the assault, he was certified again and transferred to TEH for a period of about six weeks. He was recommenced on Clozapine in January 2010, to which he appeared to respond well – by becoming more settled in his behaviour, more co-operative and more easily engaged in superficial conversation.

Subsequently, upon interview with psychiatrist Dr Mark Ryan in July 2010, AB reported having concerns for his family and of hearing voices after his release from prison in November 2009, but he could not elaborate. He also reported hearing voices of a threatening nature over the prison intercom in the days prior to the assault and wanting them to stop, but could not explain why the assault might achieve this outcome. Dr Ryan also noted that psychiatrist Dr Kevin Ong, who saw AB in prison five days after the assault, on 17 December 2009, described him as having not eaten for four days, as non-compliant with medication and as “pacing up and down in his cell in an agitated fashion, mumbling responses to questions, grinning fatuously at one stage, very preoccupied and virtually unable to engage in any coherent way”. Dr Ryan concluded that, at the time of the assault, it was likely that AB was in the early stages of a psychotic relapse. Further, he said that:[23]

the symptoms he was experiencing at the time while not enough to represent the primary determinants of his behaviour were sufficient to [impair further] his judgment and impulse control rather than explain the full extent of his actions.

It is my opinion that a defence of mental impairment is unlikely to be available to [AB] although a jury will ultimately determine this decision if this course is to be taken.

[23]Report of Dr Mark Ryan (13 July 2010), p 5.

Another psychiatrist, Dr Anthony Cidoni, assessed AB in September 2010. Like Dr Ryan, Dr Cidoni noted that, while he denied specific psychotic symptoms in the period immediately around the cricket bat incident, five days later, AB was reportedly difficult to engage, pacing, had a fatuous affect and was pre-occupied. Dr Cidoni noted that the opinion of the psychiatrist who made those observations – Dr Ong, I assume – was that AB was suffering a relapse of schizophrenia. AB also told Dr Cidoni that he had believed that the prison guards were “playing games with his reports and changing medication charts so that he would not get his medication; however, he denied any specific psychotic symptoms that he had had before, for example, hearing voices via the intercom”.[24] After opining that the petrol station offences were not connected with AB’s psychotic illness, Dr Cidoni went on to say this:[25]
[24]Report of Dr Anthony Cidoni (29 September 2010), p 3. The latter assertion was inconsistent with the assertion made to Dr Ryan about voices over the intercom.
[25]Report of Dr Anthony Cidoni (29 September 2010), p 4.

[4] … In relation to the assault on the prison officer, whilst his previous assaults involving police [query, prison] officers occurred in the context of significant psychotic symptoms, [AB] was suffering from a relapse of psychotic symptoms, including paranoia about his medication prescription. This is connected with missing doses of his anti-psychotic medication. It was the opinion of the prison psychiatrist that [AB] was suffering a relapse; I agree with this opinion.

[5] I also note a degree of impulsivity and disinhibition to this assault, which is an enduring difficulty for [AB], and related to both his personality and his psychotic illness.

…

[9] It is also critical for [AB] to continue Clozapine and to be monitored by Prison Psychiatric Services.

[10] Given that the current and previous assaults have occurred in the context of psychotic relapses, the risk of reoffending is linked to the extent to which [AB’s] symptoms can be controlled. It is critical that he does not miss doses of Clozapine in the future.

Thus, while Dr Ryan’s opinion did not extend directly to a defence of mental impairment to the cricket bat assault – indeed, he thought it unlikely that such a defence was available – he did not rule it out. On the other hand, it seems that Dr Cidoni’s opinion did support such a defence far more positively, although he did not expressly say that the defence was available.

In any event, whatever be the better interpretation of the views of Dr Ryan, Dr Cidoni and Dr Ong about AB’s mental state at the time of the cricket bat assault, as I understand it, he did not seek to avail himself of any mental impairment defence, for he ultimately pleaded guilty to those charges.

In December 2010, AB was sentenced on both the assault with the cricket bat, and the offences he committed while on parole at the petrol station, to a total effective sentence of seven years and three months’ imprisonment with a non-parole period of five years.[26]
[26]The total effective sentence expired in March 2018.

Over the next two years, AB was certified and transferred from prison to TEH for a further three stints of treatment. The periods spent at the hospital on these occasions ranged from about four to six weeks.[27]
[27]The four periods were from 27 July to 22 September 2011; 30 December 2011 to 7 February 2012; and 12 June to 18 July 2012.

Events giving rise to the charges

On 21 December 2012, AB was found to be mentally unwell again. He was certified and transferred from prison to TEH yet again. This was his eighth time at TEH. In the period leading up to this transfer, his Clozapine blood levels were low, well below the therapeutic range.

It was only six days later, in the early hours of 27 December 2012, while at the Argyle Unit of TEH, that AB strangled DC to death and tried to do the same to EF.

AB had been kept in seclusion for the first three days after his admission to TEH. However, on the Christmas Eve, he was released onto the ward on fifteen-minute observations. Two nights later, while a nurse had provided AB with his dose of Clozapine, she believed that he did not actually swallow the medication. Subsequently, AB and DC were seen in each other’s company for a good deal of the later part of the evening. Contrary to hospital rules, AB was also in DC’s room on occasions. AB was asked to leave the room by a nurse, but he did not respond and “looked threatening”. On a subsequent occasion, the nurse returned to the room and repeated his request, with which AB complied this time. Checks later that night revealed that DC was in his room, and that AB was talking to him while sitting in the corridor just outside DC’s door.

At about 6:12 a.m. the next morning, on 27 December 2012, after hearing patients calling out, “He’s killing him,” two nurses rushed to EF’s room. They found AB on top of EF with a ligature (made from shoelaces) wrapped around his neck, attempting to strangle him from behind. AB yelled at the nurses, “Go away, let me finish it.” Fortunately, the nurses were able to pull AB away from EF. AB then had “a defeated look in his face, like he gave up”. One of the nurses took AB to a seclusion area of the unit, and the makeshift ligature was seized.

The other nurse then recalled that AB and DC had been spending time together the previous evening, and felt the need to check on DC. He knocked on DC’s door but there was no response. He entered the room and found DC lying in his bed facing the wall. He was dead.

A post mortem determined that the cause of DC’s death was strangulation by ligature. Forensic testing on the ligature that AB had used to strangle EF also contained traces of DC’s DNA.

Later on that day, AB was returned to prison. He has not been back to TEH since.

Ultimately, AB was charged with murder and attempted murder.

In August 2013, he was committed for trial on those charges.

The trial

At his trial by jury in this Court, AB pleaded not guilty to both murder and attempted murder.

He did not dispute the actus reus or the mens rea elements of murder or attempted murder. The only issue in contest was whether the defence of mental impairment was established. Each party called an expert psychiatric witness on that issue – Dr Yvonne Skinner for the Crown and Dr Stephen Allnutt for AB.

Dr Skinner assessed AB in October 2013. She also considered the relevant clinical notes from the prison and TEH, the observations of others and AB’s remarks made subsequently, including his claims suggesting auditory hallucinations and delusions. In her opinion, while AB may have been suffering schizophrenia and psychosis around the time of his transfer from prison to TEH, there was some doubt about the diagnosis of schizophrenia. Further, Dr Skinner was of the view that, in any event, at the time of the acts in question, AB knew what he was doing was wrong, was not suffering from auditory hallucinations or delusions and was not mentally impaired. She conceded that, if there were auditory hallucinations or delusions at the relevant time (which, she also conceded, were not always evidenced by outward signs), AB would have the defence of mental impairment available to him.

Dr Allnutt assessed AB in February 2013 and also considered the relevant clinical notes, the observations of others and AB’s claims. In his opinion, AB was mentally impaired at the relevant time. Indeed, he was of the view that, while he would be less confident of his opinion absent the evidence of auditory hallucinations and delusions, even without that evidence, there were still sufficient other indications that AB did not know that his conduct was wrong and that his state of mind was the product of his schizophrenia to warrant an opinion that the defence of mental impairment was available. It was also significant that the Clozapine levels in AB’s serum were low – well below the therapeutic level – in the lead-up to the violent behaviour and that, when those levels were subsequently increased as a consequence of an increase in the dosage of his medication, he became increasingly well and his auditory hallucinations diminished.

On 23 May 2014, the jury returned verdicts of not guilty by reason of mental impairment.

The form of mental impairment that the jury must have found to be established was the second limb of that defence – namely, that AB was suffering from schizophrenia that had the effect that he did not know that his conduct was wrong[28] – because that was the only limb relied on at trial. Neither Dr Skinner nor Dr Allnutt was of the view that AB did not know the nature and quality of his conduct.[29]
[28]See s 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[29]See s 20(1)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

The supervision order hearing

I turn now to the steps that led to the imposition of the current CSO.

AB declared liable to supervision

On the same day as the jury’s verdicts, 23 May 2014, with the concurrence of counsel for the Crown and counsel for AB, I declared AB liable to supervision under Part 5 of the CMI Act.[30]
[30]Pursuant to s 23(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

I also ordered that both a psychiatric examination be conducted and a report be prepared,[31] and that a certificate of available services be provided,[32] prior to considering the final orders to be imposed.
[31]Pursuant to s 24(1)(d) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[32]Pursuant to ss 24(1)(e), 26(3) and 47 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

The matter was adjourned for further hearing on 24 November 2014 but was ultimately heard on 15 and 16 December 2014.

AB was remanded in custody in a prison pending that hearing.[33]
[33]Pursuant to ss 24(1)(c) and (3) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

CSO inevitable

While s 26(2) of the CMI Act contemplates that either a CSO or an NCSO may be imposed on a person who has been declared liable to supervision, there was never any dispute between the parties, and nor could there be, that a CSO must be imposed on AB. Plainly, on any view of the evidence, an NCSO would have been inappropriate at that stage.

Certificate of available services

What came as some surprise (at least to me), however, was the certificate of available services provided by the Secretary to the Department of Health (“the Secretary”)[34] and the corresponding recommendations in the reports provided by Forensicare and others. As I have said, exceptionally, the certificate declared that there were no facilities available to AB to be committed to custody on a CSO in a designated mental health facility, and the accompanying reports supported that position.
[34]Which position has since become the Secretary to the Department of Health and Human Services.

Section 26 of the CMI Act

In so far as is relevant, s 26 of the CMI Act provides as follows:

(1)If a court declares that a person is liable to supervision under this Part, the court must make a supervision order in respect of the person.
(2)A supervision order may—
(a)commit the person to custody (custodial supervision order)—
(i)subject to subsection (3), in an appropriate place; or
(ii)subject to subsection (4), in a prison; or

(b)release the person on conditions decided by the court and specified in the order (non‑custodial supervision order).

(3)The court must not make a supervision order—
(a)committing a person to custody in an appropriate place; or
(b)providing for a person to receive services in an appropriate place or from a disability service provider or the Secretary to the Department of Health and Human Services—

unless it has received a certificate under section 47 stating that the facilities or services necessary for the order are available.
(4)The court must not make a supervision order committing a person to custody in a prison unless it is satisfied that there is no practicable alternative in the circumstances.

* * * * *
(8)A person who is detained in custody in a designated mental health service under a supervision order is deemed to be in the custody of the Secretary to the Department of Health and Human Services.
…

Note
Section 6A of the Corrections Act 1986 deems a person in custody in a prison to be in the custody of the Secretary to the Department of Justice andRegulation.

By s 3(1) of the CMI Act, an “appropriate place” means, among other things, “a designated mental health service”.[35] Section 3(1) also provides that the latter term has the same meaning as it is given in s 3(1) of the Mental Health Act 2014 (Vic), which, relevantly, in paragraph (f) of that definition, is the Victorian Institute of Forensic Mental Health (“VIFMH”). By force of s 329 of the latter Act, the VIFMH carries on business under the name “Forensicare”. And, to complete the circle, Forensicare runs TEH, the only facility of its kind in this State.
[35]The other meanings of “appropriate place” – namely, “a residential treatment facility” and “a residential institution” – both concern persons with disabilities under the Disability Act 2006 (Vic), which are inapplicable to the present case.

Thus, by operation of ss 26(1), (2), (3) and (4) of the CMI Act, since an NCSO was out of the question, since a CSO was the only alternative form of supervision order available, since the certificate of available services declared that there were “no facilities or services available for [AB] to be committed to custody on a [CSO] in a designated mental health facility” and since there was no practicable alternative to prison, I was compelled to make a supervision order committing AB to custody (a CSO) in a prison. The other parties urged, and counsel for AB conceded, that that was the correct construction of the relevant provisions and the only order that could be made in the circumstances.

The decision to hear evidence supporting the declaration in the certificate

In a sense, the hearing might have stopped at that point, because, putting aside perhaps an error in the certificate, it seems that the principal orders to be made could not be altered by the hearing of further evidence. However, at least in recognition of the need for Forensicare to explain its unprecedented approach in this case, but also to examine what might be the future for AB, including when the matter would return for review and when he might be regarded as suitable to be placed at TEH, it was necessary to hear the evidence supporting the decision to make the declaration in the certificate in the terms it was made.

Evidence supporting the declaration in the certificate

The declaration in the certificate was supported, in one way or another, by the opinions and information contained in various reports and other materials, including the following:[36]
[36]Pursuant to s 42 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), I also received in evidence reports from DC’s mother (dated 4 December 2014) and his step-father (dated 6 December 2014) and from AB’s mother (dated 6 October 2014).

· a report (dated 17 November 2014) of Associate Professor Leonard Lambeth (Chief Forensic and Civil Psychiatrist of Tasmania), which he authored jointly with Ms Kim Barnes (a registered nurse);

· a report (dated 8 December 2014), authored jointly by Dr Magner and Professor James Ogloff (both of Forensicare);

· a report (dated 15 December 2014) of Mr Brendan Money (Acting Deputy Commissioner, Offender Management, Corrections Victoria); and

· a report (dated 15 December 2014) of Ms Leanne Beagley (Director of the Mental Health Branch, Department of Health).

I also heard viva voce evidence from these witnesses (except Mr Money and Ms Barnes).

In short, the evidence was that, in view of what was said to be his history of (at least partly) treatment-resistant schizophrenia, antisocial personality disorder and (unpredictably) violent behaviour, AB was thought to present too great a risk of violence at that time to be housed and treated at TEH, particularly given the limitations on security at that facility, including the inability to segregate violent patients from other patients and staff for other than relatively short periods in a seclusion suite. Further, as mentioned earlier, there is in this State no other adequately secure mental health facility to which AB could be committed. There was also evidence that special arrangements were to be made by Forensicare for him to receive adequate psychiatric and psychological treatment within the prison system.

Criminal history

Before turning to those opinions in more detail, I should point out that AB has an extensive criminal history for offences ranging from comparatively minor dishonesty, property damage, prison and drug offences to serious offences of violence. I have already mentioned the two instances of serious violence committed against prison officers. Now, I shall list those and some other prior matters in more detail. All convictions were sustained in the Magistrates’ Court in Victoria unless indicated otherwise.[37]
[37]It seems that AB may have had appearances in the Children’s Court as well, and that he spent time in juvenile custody in consequence, but the details were not put before this Court.

In 2001, when only 18, AB was convicted of various driving and theft offences and fined.

In 2002, at 19, in the District Court of Western Australia, AB was convicted of threats to kill and unlawful wounding. He was placed on an intensive supervision order and a two-year suspended sentence of imprisonment.

Later in 2002, when back in Victoria, AB was sentenced to an aggregate sentence of three months’ imprisonment on charges of theft of a motor car, driving dangerously and failing to stop after an accident; and then to six months’ imprisonment on driving, dishonesty and drug offences and intentionally causing injury.

In 2003, he was sentenced to 90 days’ imprisonment, and then later to 180 days’ imprisonment, for dishonesty offences, threatening to kill, assault, assaulting police, escaping from a youth training centre and damaging property.

In 2004, when 21, he was sentenced to three months’ imprisonment for possessing a controlled weapon and housebreaking implements, assaulting and resisting police, and assault by kicking. Later that year, he was sentenced to 130 days’ imprisonment for dishonesty offences and then, later again, to another 12 months’ imprisonment for dishonesty offences and assault.

More significantly for present purposes, in 2007, AB was sentenced in the County Court to five years and nine months’ imprisonment with a non-parole period of three years and nine months for offences of intentionally causing serious injury and assault. This sentence resulted from the incident I described earlier, where AB stabbed a prison officer in the neck with a ‘shiv’ and then assaulted another officer who came to his colleague’s aid.

As I have already indicated, notably, AB pleaded guilty to these offences despite having the benefit of a written psychiatric opinion that he had a defence of mental impairment. The report was provided by Dr Sullivan, a psychiatrist who was at that time employed as the Assistant Clinical Director of Forensicare. It is, of course, not uncommon that a person charged with criminal offences might choose to plead guilty despite the availability of an arguable – or even certain – defence of mental impairment. That said, given the turn of events in this case, it is hard to avoid musing about what might have been had AB availed himself of that defence instead of pleading guilty. I cannot help thinking that, had he been found not guilty by reason of mental impairment, and had he been placed on a CSO and then exposed to the type of expert care and treatment for which TEH is renowned, his mental health might have been managed more effectively and the tragic events that have come to pass since then would been avoided. Of course, we shall never know for sure.

In any event, AB was released on parole on the sentence imposed for stabbing the prison officer on 9 November 2009. Less than three weeks later, on 27 November 2009, he was arrested on fresh charges including theft, assault and false imprisonment.[38] These offences involved, amongst other things, stealing a car and jumping the counter at a petrol station and presenting a knife to the attendant when he would not allow him to make a phone call to his place of parole accommodation.
[38]I repeat the point made in an earlier footnote: Dr Ryan seemed to think the period out of custody was only five days whereas Dr Magner and Professor Ogloff put it at 18 days. I do not think that anything turns on this discrepancy.

I mentioned earlier that, in late-2012, when AB was transferred from prison to TEH just prior to killing DC and trying to kill EF, he was serving a total effective sentence of seven years and three months’ imprisonment with a non-parole period of five years. That sentence, which was imposed in December 2010 in the County Court, was comprised of two main parts. First, on the ‘petrol station’ offences, AB received a total of three years and nine months’ imprisonment. Secondly, at the same time, he was sentenced to four-and-a-half years’ imprisonment (with one year to be served concurrently with the ‘petrol station’ sentence) for intentionally causing serious injury. This was the offence that was constituted by striking a prison officer to the head with a cricket bat for no apparent reason and without warning. The officer was unable to return to work as a result of his injuries.

As I also noted earlier, for a period of ten days after his return to prison on the ‘petrol station’ charges and in the lead-up to the assault with the cricket bat, as a result of what appears to have been oversight, AB was not given the Clozapine prescribed for him. It will be recalled that, after the assault, he was certified again and transferred to TEH for a period of about six weeks; and, later still, he gave an account of hearing threatening voices prior to the assault. I refer back to the opinions of Dr Ryan, Dr Cidoni and Dr Ong relevant to whether AB might have had a defence of mental impairment available to him for that offence as well, which defence was not pursued.

Other instances of violent/troubling behaviour while at TEH or in prison

Earlier in these reasons, I mentioned that, between 2004 and 2012, AB had a total of eight admissions to TEH while serving prison sentences, including the final admission during which he killed DC and tried to kill EF. There were other instances of violence or otherwise disturbing behaviour during at least some of these admissions, as well as during periods in prison. Like his criminal history, this behaviour has formed part of the background to and basis for the opinions of those experts who think that AB cannot be managed safely in TEH presently, to which opinions I shall return shortly. Before doing so, I shall mention each of these admissions to TEH in more detail, as well as some of the incidents that occurred in the lead-up to, during or subsequent to those admissions.

Admission # 1 to TEH: February-March 2004: For example, in February 2004, while in prison, AB inflicted deep lacerations to his own forearms. He was found to have a broom handle made into a spike and a piece of glass fashioned into a noose. He believed his thoughts were coming out of his nose and that his food was being spiked. He was thought to have taken amphetamines while in prison. He was certified and admitted to TEH for about three weeks. He was commenced on the anti-psychotic Risperidone. During that period, he alluded to hearing voices. He was involved in an altercation with a co-patient, who suffered bruising to his eye. A sharpened toothbrush was found in his room and he failed to return a dinner knife after a meal. He was placed in seclusion three times during this admission. He was diagnosed with drug-induced psychosis against a background of antisocial personality traits. It was also considered that he may have a schizophreniform psychosis.

While back in prison, AB’s dose of Risperidone was reduced from 4 mg to 2 mg. Quetiapine (another anti-psychotic drug) was added. He was released in September 2004 but was returned to prison in October. He had ceased taking his medication.

Admission # 2 to TEH: October-December 2004: Soon after his return to prison, AB engaged in two unexplained unprovoked attacks. His communication was poor and he was not eating. He was certified and transferred to TEH for about two months. He told staff there that he could hear his relatives crying at night and that he was having a visitor at that time. He was prescribed the anti-psychotic Olanzapine initially but this was changed to Quetiapine at his choosing. He alluded to hearing voices. He secreted a blade from a pencil sharpener and also scissors, which he intended to use to “slash up” (i.e. to harm himself). He assaulted a co-patient with pool balls stuffed in a sock. Dr Bell formed the view at that time that there was nothing in AB’s account to indicate psychotic determinants for the assault. He was also of the opinion that AB could no longer be managed safely in the company of other patients. AB was secluded on three occasions during this admission.

When back in prison, AB assaulted another prisoner in December 2004. Later, in April 2005, he was found to be secreting his medication so he could take it when it suited him. His dose of Quetiapine was reduced from 800 mg to 400 mg.

Admission # 3 to TEH: August 2005-February 2006: It was in August 2005 that AB stabbed a prisoner officer with a ‘shiv’, and assaulted his colleague, which led to his sentence (imposed in February 2007) of five years and nine months’ imprisonment with a non-parole period of three years and nine months. His dose of Quetiapine was increased to 800 mg again. Soon after the stabbing, AB was certified and transferred to TEH for about five-and-a-half months, during which period he was secluded eight times. He told Dr Bell that, for two to three weeks prior to the stabbing incident, he was ‘hearing’ prison officers over the intercom saying that he had given speed to his cousins. He also spoke of thoughts coming out of his nose. (The stabbing incident comprised the offences to which, in the opinion of Dr Sullivan, AB had a defence of mental impairment.) Following an unsuccessful trial of Olanzapine and Quetiapine, AB was prescribed Clozapine for the first time, which resulted in an improvement in his mental state (including an absence of auditory hallucinations). Later, a screwdriver was found above the smoke alarm in the ceiling of AB’s bedroom. Following this discovery, given a perceived risk of interpersonal violence despite his mental stability, AB was discharged back to prison, with a prescription of 500 mg of Clozapine and 400 mg of Sodium Valproate.

His clinical progress from February 2006 until his release on parole in November 2009 was regarded (by Dr Magner and Professor Ogloff) as reasonably satisfactory. There were concerns about compliance with his medication during that period but no significant changes in presentation were noted.

While on parole, AB (on his report) drank alcohol but continued with his Clozapine. It was during this brief period on parole that AB committed the offences at the petrol station, for which he was arrested and returned to prison on 27 November 2009.

Admission # 4 to TEH: December 2009-January 2010: It will be remembered that, as a result of an oversight, for a period of about ten days after his arrest, AB was not given the Clozapine prescribed for him. He was then titrated back onto Clozapine, starting at a low dose (12.5 mg), which was increased very gradually. It was against this background that AB committed the assault on a prison officer with a cricket bat. His Clozapine dose had reached 50 mg by this point. Upon examination, he was found to be unwell. He was transferred to a management unit within a prison, whereupon he refused to take his medication. He was then certified and transferred to TEH for about six weeks. While refusing to do so initially, AB eventually agreed to take Clozapine. He spent most of his time in seclusion as a result of concerns about his risk of violence. At one point, when out of seclusion, he secreted two broken mug handles in a sock. He was discharged back to prison in late-January 2010 on 375 mg of Clozapine and 30 mg of Olanzapine.

When back in prison, from January to July 2010, AB’s mental health was maintained on 450 mg of Clozapine. It was in the July that he gave an account to Dr Ryan of hearing threatening voices prior to the assault with the cricket bat. There was some concern about a possible relapse that month, but his dose of Clozapine was increased to 550 mg in November, and he was also taking 15 mg of Olanzapine at this time. In December 2010, AB was sentenced on the offences concerning the cricket bat and the petrol station respectively.

Admission # 5 to TEH: July-September 2011: In July 2011, AB began a period of voluntary starvation and refusal of medication. He was thought to show no insight but appeared mentally stable. He refused to restart Clozapine but was co-operative with Olanzapine. He was certified and transferred to TEH for about two months. There were no incidents of violence and he had only one brief period of seclusion. He was treated initially with Olanzapine but this was ceased when Clozapine was recommenced. The dosage of Clozapine was titrated up to the therapeutic range, and he was discharged back to the prison on 550 mg.

Admission # 6 to TEH: December 2011-February 2012: While AB was stable in prison initially, by late-December 2011, he was refusing treatment and considered to be a high risk of relapse and violence. He was certified and transferred to TEH for a sixth time, where he stayed for about six weeks. While in seclusion, he appeared to be very disturbed. At one point, when out of seclusion, it is said that he threw boiling water over a fellow patient in circumstances where there was no evidence of psychotic symptoms, although the hospital notes indicate that it was in truth a “near miss”. He took Olanzapine on admission and agreed with commencing Clozapine. In subsequent interviews, however, he expressed his plan to cease Clozapine on return to prison. He was discharged back to the prison on 10 mg of Olanzapine during the daytime and 20 mg in the evenings.

AB was kept on a strict management regime of solitary confinement in prison, but was reportedly settled. In late-May 2012, he told Dr Ong that he wished to cease Olanzapine and recommence Clozapine, because of poor sleep.

Admission # 7 to TEH: June-July 2012: When reviewed by psychiatrist Dr Claire McInerney in early-June 2012, AB did not present with overt psychotic symptoms. He requested Clozapine for his persistent insomnia. He was subsequently certified and transferred to TEH to restart Clozapine. He stayed there for about five weeks. He was commenced on Clozapine and the dose was gradually cross-titrated with Olanzapine. He presented as guarded but there were no violent incidents and no instances of seclusion. He was discharged to prison on 275 mg of Clozapine and 5 mg of Olanzapine.

Over the next three months in prison, AB’s Clozapine blood levels were 83 ng/ml, 155 ng/ml and 101 ng/ml – all of which were well below the therapeutic level (which is at least 350 ng/ml).

In late-October 2012, psychiatrist Dr Adam Deacon suggested an increase in Clozapine, which AB refused.

On 13 December 2012, AB agreed with Dr Ong to increase his dose to 325 mg. In Dr Ong’s view, while AB was superficially settled, the collateral history was suggestive of some deterioration in mental state.

On 18 December 2012, Dr McInerney noted that AB was louder than usual and more assertive during their conversation. AB claimed he was not unwell and that he did not want to go to TEH. The next day, he was irritable and evasive, and abruptly denied any current symptoms of mental illness. Dr McInerney found it difficult to establish any therapeutic rapport during the interview. Given concerns about AB’s mental state and his risk of violence associated with relapse, Dr McInerney certified him for transfer to TEH.

Admission # 8 to TEH: 21-27 December 2012: On 21 December 2012, the transfer to TEH occurred. Upon admission, AB was overfamiliar, fatuous, had exaggerated eye movements, smiled oddly, appeared distracted and gave single-word responses. He claimed he was not unwell but agreed to take his anti-psychotic medication. Psychiatrist Dr Anand Pandurangi, who was familiar with AB from previous admissions, formed the impression that AB’s behaviour was highly indicative of a deterioration in his mental state. AB agreed to seclusion and an increase in his dose of Clozapine. He co-operated with reviews by Dr Ong and then Dr Pandurangi while in seclusion. Seclusion was ceased on the afternoon of Christmas Eve. When back on the unit, AB was managed by nursing observations every 15 minutes. He remained guarded and denied any positive symptoms or thoughts of harming others.

As I have explained, two-and-a-half days later, in the early hours of 27 December 2012, AB killed DC and then tried to do the same to EF.

AB was discharged back to prison the same day on 375 mg of Clozapine. Initially, he was unwilling to talk to Dr McInerney about the killing and attempted killing at TEH, but described himself as “guilty”. On 7 January 2013, he first described to her some auditory hallucinations he had experienced at the time of these incidents. His Clozapine dose was steadily increased. His blood levels of that drug still remained below the therapeutic level for the time being. On 30 January, he indicated that the auditory hallucinations that had commenced in December had now ceased.

AB was then moved to a different prison where he was managed in high security and isolation with up to 23-hour lockdowns. When outside his cell, he would be moved about in handcuffs with prison officers holding his arms. He had no contact with other prisoners, although was able to communicate through fencing on occasions. He was managed by Dr Ong and a psychiatric nurse. Psychiatric interviews were often conducted as ‘box visits’, so as to maintain privacy and security.

Dr Ong considered that AB improved during the period from February 2013 to December 2014.[39] His interactions were warmer, and more reactive and animated, but still did not disclose symptoms when unwell. Dr Magner and Professor Ogloff were able to conduct interviews with AB alone in a room, which they took to be a sign of progress. Also of significance to them was the fact that AB apparently continued to comply with treatment despite being the subject of a contested mental impairment trial during that period. As at December 2014, AB was receiving 525 mg of Clozapine and his blood levels were within the therapeutic range.
[39]While it is not perfectly clear, it is implicit in the report of Dr Magner and Professor Ogloff that the period about which Dr Ong was opining was from February 2013 until December 2014, the latter date being the date of the report, from which this information comes.

Associate Professor Lambeth and Ms Barnes

I turn back to the concluding opinions expressed in the reports and/or in viva voce evidence before the Court as at December 2014.

I shall begin with the report of Associate Professor Lambeth and Ms Barnes, who were asked “to assist the [Secretary] by undertaking a formal risk assessment of [AB] and determining what facilities and services are necessary for his custody, care and treatment”.[40] They came to the following conclusions in summary form:[41]
[40]Report of Associate Professor Lambeth and Ms Barnes (17 November 2014), p 1.
[41]Report of Associate Professor Lambeth and Ms Barnes (17 November 2014), p 16.

· [AB] is at a high risk of violent behaviour with short term prediction of such behaviour being extraordinarily difficult.

· [AB’s] violent behaviour is not always associated with serious mental illness.

· [AB] is unlikely to comply with remediation attempts.

· [AB] could not be safely managed in the community without significant and unpredictable risk to others.

· [AB] could not be safely managed at TEH without significant and unpredictable risk to others (both patients and staff).

· [AB] is best managed at this time in a high secure environment such as that at [the prison].

They went on to say this: [42]
[42]Report of Associate Professor Lambeth and Ms Barnes (17 November 2014), pp 16-17.

[TEH] is a medium secure facility, relying on both physical and relational security procedures. It has no high dependency unit and cannot offer a high security environment. The design of [TEH] provides for management of medium secure patients in acute areas and those suitable for various stages of rehabilitative care. There is no long term high secure area. Patients may be managed for a short period of time in the seclusion area, but this is not suitable for any but very short term management. Upon leaving the seclusion area, patients are managed in a unit along with 14 other mentally ill persons. [AB] has clearly demonstrated that this is an environment in which others are at risk.

[AB] does require psychiatric treatment. He requires medication prescribed by a psychiatrist supplemented by psychological therapies provided by an experienced psychologist, aimed at dealing with his personality disorder and violence.

Forensicare are currently developing a management plan for [AB] through the Mobile Forensic Mental Health Service. This service would provide [AB] with the following clinical services as deemed appropriate: psychiatrist; psychologist; neuro-psychology; occupational therapy; social work.

[AB] requires a reasonably long period of stable treatment in a high secure environment with continuation of appropriate medications. We recommend that he remain at the [prison] which, with the plan developed by Forensicare, offers him the best chance for improvement for the foreseeable future.

Our final recommendation is that [the Court] commits [AB] to custody on a CSO in prison as there is no practicable alternative in the circumstances.

We recommend that this be reviewed in three years with the aim of making a further determination of the suitability for treatment at the [TEH].

Dr Magner and Professor Ogloff

In their report, Dr Magner and Professor Ogloff opined that, while compliance with prescribed medication is a key factor in reducing the severity of AB’s main symptoms of his schizophrenic illness, “[e]ven with medication, … he has proved to be treatment resistant over time, including during periods of hospitalization”.[43] They also observed that the presence of antisocial personality disorder and a high level of psychopathic personality and behavioural features, as well as a history of substance misuse, “further complicates” AB’s prognosis.[44] Taken together, these things suggested that AB’s prognosis is “guarded”.[45]
[43]Report of Dr Magner and Professor Ogloff (8 December 2014), [147].
[44]Report of Dr Magner and Professor Ogloff (8 December 2014), [148].
[45]Report of Dr Magner and Professor Ogloff (8 December 2014), [150].

Dr Magner and Professor Ogloff summarized Forensicare’s overall position helpfully and in some detail in the concluding part of their report, which I shall set out in full:[46]
[46]Report of Dr Magner and Professor Ogloff (8 December 2014), [213]-[224].

[213] It is clear from the assessments conducted for this report that [AB] presents a high risk of harm to others but at the same time will require psychiatric care for a lengthy period. Thus far, he has been admitted to TEH on eight occasions for treatment of mental illness relapses since 2004.

[214] Once settled, he has been returned to the prison and psychiatric care has been provided on an outpatient basis. This has to date involved regular reviews by the visiting psychiatrist and regular contact with and support from the psychiatric nurse. At present, he appears to be fully compliant with medication.

[215] In recent years, [AB] has spent most of his time in a secure prison unit, isolated from his peers with limited periods of time outside of his cell. At present, he states that he is allowed three periods of 90 minutes in various courtyards of the [unit]. He has some conversation with other prisoners through a fence. From 3:00 p.m. to 9:00 a.m., he says he spends his time in his cell. He has access to books, music, television and computer games, which he enjoys.

[216] Notwithstanding every effort to manage [AB’s] illness, it is conceivable that [he] may require assessment for admission to TEH for involuntary treatment under the Mental Health Act at some time in the future. To facilitate any short term treatment, he would have to be detained, as he is in prison, in a seclusion environment with special measures to ensure everyone’s safety.

[217] The risks he poses to others and clinicians’ inability to predict immediate risk with him necessitates strong physical and procedural security. Normally, as patients respond to initial treatments, clinical staff are able to reduce restrictive interventions and move towards relational security which relies mostly on the development of good therapeutic rapport and careful monitoring based on having a comprehensive knowledge of the patient. As it has been impossible to determine [AB’s] mental state or level of risk on an ongoing basis, relational security, such as that which is available at TEH, is not sufficient to manage his security.

[218] The Mental Health Act requires clinicians to terminate any seclusion as soon as it is no longer required for clinical purposes (for the amelioration of the risk of harm to self and others). Unlike the correctional setting, it is not possible to detain a patient in seclusion purely for security reasons. Even if it [were] possible, the seclusion rooms and areas are not designed or appropriate for long-term stays. There are very limited resources and outdoor spaces, and there is no access to recreational facilities. Also, as noted, seclusion must be regularly ‘broken’ to open the door to feed the patient, to enable the patient to be escorted to the courtyard, and for any medical monitoring and treatment. It would not be practicable to manage [AB] outside of the seclusion suite as the only available accommodation is in a medium secure unit with 14 other patients.

[219] It follows that [AB] could possibly be managed for a very short period in a modified seclusion area at TEH should he require admission under the Mental Health Act. As soon as he did not meet the criteria for seclusion under [that] Act, however, he would need to be transferred back to prison to continue his treatment there.

[220] It would be possible to detain him longer at a facility such as TEH if a dedicated high security unit [were] available where he could be segregated from the general patient population for as long as was considered appropriate based on clinical and risk status. At present, the security levels of the existing units within TEH would be considered inadequate for his needs in the short and longer terms. Some forensic hospitals in Australia, which have been built more recently than the TEH, have high secure units. Moreover, the limited benefits of treatment that could be provided in a seclusion environment at the TEH for a short duration would be greatly outweighed by the very serious risk of harm that [AB] presents to staff and other patients.

[221] Having carefully considered [AB’s] treatment needs and the ongoing and serious risks for violence he poses, it is our opinion that [AB] cannot be adequately managed in the TEH in the foreseeable future. As noted, [AB] is unique and this is the first time in Forensicare’s history that we have expressed an opinion that a forensic patient cannot be adequately managed at the TEH. Indeed, we have been able to accommodate other high risk patients, including one who has killed two co-patients, but certainly no one with [AB’s] unique and troubling presentation.

[222] Of significant concern is the detrimental impact that [AB] would have on other patients and staff should he be transferred to the TEH. As noted, clinical staff must manage security in the hospital and are simply not equipped to manage people who present the risks that [AB] represents. Similarly, patients need to feel safe and secure in the hospital … [G]iven his history and behaviour, his presence in the hospital would prove unsettling to patients and staff, and traumatic to some.

[223] We would respectfully recommend that [AB] could be reviewed again, perhaps in three years, to make a further determination regarding his suitability for accommodation at the TEH, depending on the gains he might make whilst incarcerated. This period of time is long enough to be able [meaningfully to] evaluate any changes and gains [AB] might make, without being so long as [needlessly to] contribute to any sense of hopelessness or despair that he may have about his future.

[224] The present arrangement for providing psychiatric care to [AB] in a secure prison setting is meeting his mental health needs while delivering the appropriate level of security. The recommendations for his treatment outlined in this report would involve the provision of some additional mental health resources. In particular, Forensicare would provide [AB] access to a senior clinical psychologist which could provide a valuable addition to his psychiatric care. Of course, this would be contingent on [AB’s] willingness and capacity to engage in this therapeutic intervention. … [W]e are proposing that a multidisciplinary team undertakes an assessment of needs followed by appropriate development of a care and treatment plan which would (as with any other person on a [CSO]) be reviewed and revised every six months.

Mr Money

In his report, Mr Money advised that, since AB’s return to prison on 27 November 2009, he had been classified as a maximum security prisoner.[47] He was thereafter moved between TEH and various management units in prisons.[48]
[47]Report of Mr Money (15 December 2014), p 1.
[48]Report of Mr Money (15 December 2014), pp 1-2.

After his transfer from TEH to prison following the killing of DC and the attempted killing of EF on 27 December 2012, AB was held in a Muirhead cell,[49] before being moved to different management units in the prison system.[50]
[49]Report of Mr Money (15 December 2014), p 2.
[50]Report of Mr Money (15 December 2014), pp 2-3.

From January 2013 until December 2014, a security management plan was developed and implemented for AB because of his long history of “extreme and unpredictable violent behaviour”. Any interactions with prison officers, or movements about the prison, required handcuffing and the presence of three officers. He had no direct contact with other prisoners. Movements of other prisoners were stopped whenever AB was being shifted. Initially, AB was not allowed access to an electric jug for tea or coffee but only to cups of hot water, and was not allowed shoelaces but only Velcro footwear. (Both restrictions were later relaxed.) He was allowed access to only one pen, which was retrieved at the end of each day shift. He could have only one book at a time. His use of razors was monitored carefully. Communication with professionals was mostly through the trap door in his cell or in a ‘box visit’ booth. AB was allowed to have ‘contact’ visits with his mother but only if he wore a body belt and was handcuffed, which was later changed to handcuffs only. He was unable to participate in programmes or work as a billet or a cleaner as a result of his high security status and his handcuff regime. That said, towards the end of this period, Corrections arranged a particular daily activity for AB which, along with his regular exercise, has occupied a good deal of his time when outside his cell.[51]
[51]Report of Mr Money (15 December 2014), pp 2-6.

AB has had two prison ‘incidents’ since his return from TEH, neither of which involved violence. One involved attempting to pass tablets to another prisoner, and the other involved placing tablets under another prisoner’s door. He has continued to test negative for illicit drugs.[52]
[52]Report of Mr Money (15 December 2014), pp 3, 4 & 6.

Mr Money

In his report of 2 October 2017, Mr Money explained that, while a high security classification is still appropriate to AB, Corrections has made a concerted effort gradually to reduce the level of restrictions on his placement.[83]
[83]Report of Mr Money (2 October 2017), p 2.

At a case conference with Forensicare, the Major Offenders Unit and Mr Money in April 2017, it was agreed that it was timely that a socialization plan be developed for AB, which would include formal education and the potential for ‘physical run-outs’ with other prisoners. Subsequently, a socialization plan was developed and discussed with the Commissioner of Corrections, the High Risk Management Advisory Panel and prison management.[84]
[84]Report of Mr Money (2 October 2017), pp 2-3.

From 11 October 2017, the physical run-outs commenced. These involve AB being placed with one other prisoner (among a group of three possible prisoners) in a yard, up to three times a week, for up to one-and-a-half hours each time. In the five weeks that those run-outs had been conducted immediately prior to the hearing in November 2017, there had been no violent incidents. In Mr Money’s view, while it is very unlikely that AB will be allowed to have a run-out with two other prisoners at a time, that stance might alter based on the advice of Dr Bell and/or others.[85]
[85]Transcript of hearing (21 November 2017), pp 121-122, 132 & 138-139.

AB still also has communications with one other prisoner at a time (among a group of six possible prisoners) from a courtyard through a grilled gate, once or twice a day, for up to one-and-a-half hours.[86]
[86]Transcript of hearing (21 November 2017), pp 121-122 & 135-137.

As a result of the assessment spoken about in Dr Bell’s report, AB is due to commence some basic mathematics education. He will be handcuffed for those lessons.[87]
[87]Transcript of hearing (21 November 2017), pp 122-125.

When asked what he sees happening in the longer term with AB’s management in prison, Mr Money said that, given his previous incidents but recognizing his stability over the last five years and the gains he has made, he would be “very open to any additional advice from the experts as to whether we can make further gains … and, in order to be aligned with a kind of therapeutic approach, [if] there [is] anything else [we] can do in terms of his socialization, then we would look to do that”.[88] Further, subject to the advice of the experts, he could see a time when AB would be free to mix with other prisoners or even moved to mainstream.[89]
[88]Transcript of hearing (21 November 2017), pp 145-146.
[89]Transcript of hearing (21 November 2017), p 147.

Mr Money intends to conduct his next review of AB’s socialization around mid-2018, but he would be open to bringing the review forward if Dr Bell made such a recommendation.[90]
[90]Transcript of hearing (21 November 2017), p 153.

Dr Sullivan and Professor Ogloff

Dr Sullivan and Professor Ogloff prepared their report to address AB’s placement. Professor Ogloff also updated the risk assessment he had conducted for the purposes of the 2014 report he co-authored with Dr Magner.[91] Their observations and conclusions included the following.
[91]Report of Dr Sullivan and Professor Ogloff (dated 24 October 2017), [1] & [3] (see [24]-[31] of the report for the discussion of the updated risk assessment).

AB has engaged in a gradual and graded progression to reducing restrictions, balanced against the risks of violence. Measures to remove his handcuffs, when seeing selected clinicians, his mother and a friend, have been successful. There are plans to progress gradually to contact with other prisoners.[92] Dr Sullivan and Professor Ogloff considered these to be promising steps to developing in AB the capacity to interact safely with others. However, he has not been considered to be sufficiently free of risk of serious violence to remove handcuffs in many other settings.[93]
[92]Which, as we have seen from the evidence of Mr Money, has already commenced.
[93]Report of Dr Sullivan and Professor Ogloff (dated 24 October 2017), [34].

In their view, until AB has demonstrated a sustained ability to interact face-to-face with others without incident, he could not be placed in an acute ward at TEH without significant risk of violence to staff and patients – the latter of whom are generally acutely psychotic and unpredictable and whose behaviour may be challenging and aggressive.[94] Considering AB’s slow but positive progress, however, they are supportive of plans to increase his capacity to interact safely with others and to reduce his handcuff regime.[95]
[94]Report of Dr Sullivan and Professor Ogloff (dated 24 October 2017), [36].
[95]Report of Dr Sullivan and Professor Ogloff (dated 24 October 2017), [38].

As Dr Sullivan and Professor Ogloff understand it, the government has commenced the process of developing a high security psychiatric hospital for the management of male prisoners with mental illness. This facility will be developed to have capacity for longer-term management of a small number of patients who require segregation from others while in a mental health setting. It seems that this would be something akin to facilities of that type that exist in the United Kingdom and in Queensland.[96] The plans are in the early stages and there is no clear timeline to completion. Such a facility would be preferable to the proposed secure intensive care unit to be built within the grounds of TEH, since the latter facility’s focus on short-term treatment, like seclusion, is unlikely to offer AB the same opportunities for meaningful occupation.[97]
[96]Transcript of hearing (20 November 2017), p 121; (21 November 2017), p 224.
[97]Report of Dr Sullivan and Professor Ogloff (dated 24 October 2017), [37] & [40]-[42].

At present, Dr Sullivan and Professor Ogloff are cautiously optimistic about AB’s progress and the possibility over time of his being able to be transferred to TEH. However, like Dr Bell, they maintain the view that, as things stand, AB could not be safely managed at TEH.[98]
[98]Report of Dr Sullivan and Professor Ogloff (dated 24 October 2017), [42].

Dr Grigg

In her report, Dr Grigg spoke about, amongst other things, the possibility that the State might commission and build a high security mental health facility of the type that would be suitable for AB as he presents currently.

In her view, within the current configuration and limitations of TEH, it would be impractical to build a high security unit within which AB could be accommodated.[99] Nor would either the proposed eight-bed Secure Psychiatric Intensive Care Unit (“SPICU”) at TEH or any of the proposed additional ten beds and expanded communal spaces to be added to the acute units be suitable for AB.[100]
[99]Report of Ms Grigg (31 October 2017), [19].
[100]Report of Ms Grigg (31 October 2017), [20]-[22].

However, Dr Grigg went on to say this:[101]

[23] The 2017-18 Victorian Budget provided funding to develop a business case for the expansion of TEH. Consideration will be given to incorporating a segregated area to enable management and health care of prisoners who require longer term specialist forensic treatment and are not able to be collocated with other patients. Depending on [AB’s] clinical circumstances and risk assessments in the future, it is possible that this could accommodate [him].

[24] Outcomes of this exploration of expansion opportunities for additional forensic mental health beds, including consideration of a segregated area which may accommodate [AB], is part of the 2018-19 Victorian Budget process. As the options and budget process have not yet been finalized, no commitments have been made to build such a facility at this time.

[101]Report of Ms Grigg (31 October 2017), [23]-[24].

In her viva voce evidence, Dr Grigg explained that a high security unit designed to house long-term patients in segregation would also require legislative reform. She also said that there is potential for that type of issue to be canvassed in the proposed review of the Mental Health Act 2014 (Vic) currently scheduled for 2019.[102]
[102]Transcript of hearing (1 November 2017), pp 256-257.

Dr Grigg’s estimate of the time before completion of a stand-alone facility with a high security capacity, if that option were to be taken up, would be five years or perhaps more than seven years.[103]
[103]Transcript of hearing (1 November 2017), pp 257-259.

Whether an ‘unfavourable’ certificate precludes a change to place of custody

At the commencement of the review, the position taken by AB was that, while the CSO should be confirmed, the place of custody should be varied from prison to TEH. The Secretary and the Attorney both submitted that the CSO should be confirmed and that there should be no variation to the place of custody.

An anterior question was whether the provision of an ‘unfavourable’ certificate of available services precludes a variation to the place of custody to TEH in any event. Or, put another way, the question was whether a variation of the place of custody to TEH could occur without a ‘favourable’ certificate of available services.

Counsel for AB submitted that, on its proper construction, unlike the situation that obtains when “making” a CSO initially, on a review of a CSO, the CMI Act allows this Court to vary the place of custody from prison to TEH even if the certificate declares that such facilities or services are unavailable. Counsel for the Secretary initially took the same position, but, on reflection, later changed his stance. Counsel for the Attorney submitted that a ‘favourable’ certificate is necessary to enliven the power to change the place of custody on a review of a CSO, and that there is no power to do so if the certificate is ‘unfavourable’.

However, after the evidence was heard, and after I indicated that I thought that the evidence compelled the view that, at least for the time being, TEH was not suitable and there was still no practicable alternative to prison, counsel for AB indicated that it was now conceded that the place of custody should not be varied on this review, which in turn made it unnecessary to determine the anterior question.

While I agree that the anterior question should await another day for detailed consideration and resolution, since the parities made helpful written and oral submissions on the matter, it may be instructive to those who may have to consider this question on a subsequent review to be aware of some of the arguments advanced by the parties.

The order returning the matter to the Court for this review was made pursuant to s 27(2) of the CMI Act. Section 32 of the CMI Act, however, deals with the Court’s powers on such a review. In particular, s 32 provides as follows:[104]
[104]Emphasis added.

(1)On an application under section 31 for variation of a custodial supervision order or on a review of a custodial supervision order directed under section 27(2) or on a further review of a custodial supervision order directed under subsection (5) or section 33(2), the court must, by order—
(a)confirm the order; or
(b)vary the place of custody; or
(c)subject to this section, vary the order to a non-custodial supervision order.

(2)The court must not vary a custodial supervision order to a non-custodial supervision order during the nominal term unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order.
(3)In the case of a forensic patient or forensic resident—
(a)the court must not vary a custodial supervision order to a non-custodial supervision order (whether during or after the nominal term) unless the forensic patient or forensic resident has completed a period of at least 12 months extended leave granted by the court under section 57; and
(b)in deciding an application to vary a custodial supervision order to a non-custodial supervision order, the court must take into account whether or not the forensic patient or forensic resident has complied with any conditions of their extended leave.

(4)If the court varies a custodial supervision order to a non-custodial supervision order before the end of the nominal term, that nominal term continues to run.
(5)The court may direct that the matter be brought back to the court for further review at the end of the period specified by the court.
(6)A direction may be given under subsection (5) more than once.

I shall also set out the relevant parts of s 47 of the CMI Act:

(1)A court must request the Secretary to the Department of Health and Human Services to provide the court with a certificate of available services if the court is considering—
(a)imposing a supervision order on a person—
(i)committing a person to custody in a designated mental health service, a residential treatment facility or a residential institution; or
(ii)providing for a person to receive services in a designated mental health service, a residential treatment facility or a residential institution or from a disability services provider, a mental health service provider within the meaning of the Mental Health Act 2014 or the Secretary to the Department of Health and Human Services; or

…
(b)making another order under this Act—
(i)that a person be placed in custody in a designated mental health service, a residential treatment facility or a residential institution; or
(ii)that a person otherwise receive treatment or services in a designated mental health service, a residential treatment facility or a residential institution or from a disability services provider, a mental health service provider within the meaning of the Mental Health Act 2014 or the Secretary to the Department of Health and Human Services; or
(iii)that a child be placed in custody in a youth justice centre or a youth residential centre.

* * * *
(2)A certificate of available services must—
(a)state whether or not there are facilities or services available for the custody, care or treatment of the person (as the case requires); and
(b)if there are, give an outline of those facilities or services.

(3)If there are no facilities or services available, the certificate may contain any other options that the Secretary to the Department of Health and Human Services considers appropriate for the court to consider in making the proposed order.
(4)The Secretary to the Department of Health and Human Services must provide a certificate to the court within 7 days after receiving a request under subsection (1) or within such longer period as the court allows.
(5)The court may require the Secretary to the Department of Health and Human Services to give evidence or to provide the court with a further certificate to clarify or expand on the matters dealt with in a certificate under this section.

While I have already set out parts of s 26 of the CMI Act earlier in these reasons, it is convenient to set out the first four subsections here again:[105]
[105]Emphasis added in italics only (the passages in bold italics appear in the original).

(1)If a court declares that a person is liable to supervision under this Part, the court must make a supervision order in respect of the person.
(2)A supervision order may—
(a)commit the person to custody (custodial supervision order)—
(i)subject to subsection (3), in an appropriate place; or
(ii)subject to subsection (4), in a prison; or

(b)release the person on conditions decided by the court and specified in the order (non‑custodial supervision order).

(3)The court must not make a supervision order—
(a)committing a person to custody in an appropriate place; or
(b)providing for a person to receive services in an appropriate place or from a disability service provider or the Secretary to the Department of Health and Human Services—

unless it has received a certificate under section 47 stating that the facilities or services necessary for the order are available.
(4)The court must not make a supervision order committing a person to custody in a prison unless it is satisfied that there is no practicable alternative in the circumstances.

The Attorney and the Secretary submit, and AB accepts, that s 26(3)(a) precludes the Court from making a supervision order committing a person to custody at TEH unless it has received a certificate under s 47 stating that the facilities or services necessary for the order are available.[106]
[106]That, of course, had been the position of the parties prior to the making of the CSO back in 2015.

The Attorney further submits that, if varying the place of custody of a CSO to TEH pursuant to s 32(1)(b), the Court would be varying one kind of CSO to another, and in fact would be engaging the power in s 26(2)(a)(i), which power can be exercised only subject to s 26(3), which in turn requires a ‘favourable’ certificate. This analysis is also consistent with s 47(1)(b)(i), so the argument goes, because that provision contemplates obtaining a certificate ahead of making “another order” under the CMI Act, as distinct from doing so in contemplation of “imposing” an initial CSO, as contemplated by s 47(1)(a).[107]
[107]Submissions on behalf of the Attorney-General (20 December 2017).

The Secretary submits that it is implicit in s 47 itself that, where a certificate provided under s 47 indicates that the services or facilities required for the order contemplated by ss 47(1)(a), (ab) or (b) are not available, the Court simply cannot make the order in question.[108]
[108]Further submissions of the Secretary (20 December 2017).

AB rejects both of these constructions. He submits that the absence in s 32 of an express prohibition of the kind found in s 26(3) means that, upon a review of a CSO, the Court retains a discretion to vary the place of custody from prison to TEH notwithstanding that the certificate of available services declares that the facilities or services necessary for the custody, care or treatment of the person are not available. AB hastens to add that it would be a rare case in which the Court would consider varying a person’s place of custody from prison to TEH in the face of an ‘unfavourable’ certificate. Indeed, so the argument goes, it is expected that, absent a ‘favourable’ certificate, the Court would require a persuasive evidentiary basis to make such an order. Nevertheless, it is argued, the Act allows for this possibility. This construction, it is submitted, is consistent with the notion that the legislature has sought to ensure that the power to review and vary a CSO lies with the courts, particularly given the indefinite duration of a CSO with (in AB’s case) a nominal period of 25 years.[109]
[109]Submissions on behalf of AB (12 January 2018).

Counsel also referred me to authorities that, they argued, supported their particular construction, to a greater or lesser degree.[110]
[110]They include Richards (a pseudonym) v The Queen (No 2) [2017] VSCA 174; Percy [1998] VSC 90; Percy [2004] VSC 67; Percy [2010] VSC 179; DPP v Anderson & Anor [2011] VSC 625; Bropho v Western Australia (1990) 171 CLR 1; Province of Bombay v Municipal Corporation of Bombay [1947] AC 58; ‘RD’ [2014] VSC 552R; DPP v Woodford [2017] VSCA 312.

In considering these questions, it would be necessary also to consider the terms of ss 39 and 40 of the CMI Act.

I make no comment on the strength or otherwise of any of these arguments, other than to say that it is obvious that there is a serious issue to be litigated.

Possible relevance of the Charter

Further, it also strikes me that these issues of construction – and perhaps others that might arise upon a further review – could well be informed by analysis of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“the Charter”).[111]
[111]For an illuminating analysis of the possible application of the Charter to a case like the present, see Debeljak, Julie, “The Rights of Prisoners under the Victorian Charter: A Critical Analysis of the Jurisprudence on Treatment of Prisoners and Conditions of Detention” (2015) 38(4) University of New South Wales Law Journal 1332.

Conclusions

As I have explained earlier, while AB’s stance initially differed, in the end, all counsel submitted that the CSO should be confirmed and that the place of custody should not be varied. While the concession of counsel – including counsel for AB, who is senior counsel of great experience in criminal matters and who has appeared in this matter from the outset – is a very significant consideration, this Court must still satisfy itself of the appropriate conclusions. As it happens, however, I agree with the parties that the foregoing are the conclusions to which I should come.

First, there can be no doubt that the CSO must be confirmed. As much as AB may have improved, an NCSO is still out of the question for the time being. At this stage, I could not be satisfied that the safety of members of the public would not be seriously endangered as a result of AB’s release on an NCSO. Further and in any event, the prerequisites to the imposition of an NCSO – such as satisfactory completion of a stint of at least twelve months on extended leave – have not been met. Thus, the only option is to confirm the CSO.

Secondly, I am also satisfied, by the evidence to which I have referred, that, despite the gains he has made and the long period of mental stability and violence-free behaviour he has demonstrated, AB is not yet at the point where he could be managed safely at TEH for an indefinite period. On the contrary, subject to a nagging doubt to which I shall return shortly, I accept that, on the current understanding of his mental illness and his history of violence, there is too high a risk that he would harm another person if detained at TEH, particularly given the limitations on security at that facility, including the inability to segregate violent patients from other patients and staff for other than relatively short periods in seclusion. In substance, I accept the view that AB needs to show stability under less secure, more normal and potentially more confronting conditions than he is currently held in before he could be moved to TEH on a long-term basis.

Further, I accept that there is in this State at present no other adequately secure mental health facility to which AB could be committed, although, as I said earlier, it is hoped that a high security facility will be built soon.

In those circumstances, the only practicable alternative is that he must remain in prison, where, I expect, he will continue to receive the high level of psychiatric and psychological treatment that has been provided in recent times. I also expect that his opportunities for socialization, education, self-improvement and recreation will increase, so that he is afforded the opportunity to demonstrate his suitability for transfer to TEH.

The next review

The period before the next review

This brings me to the next review of this matter.

Section 32(5) of the CMI Act provides that this Court may direct that the matter be brought back to the Court for further review at the end of the period specified by the Court.

The parties do not dispute that I should order such a further review.[112] The only question is when that review should commence.
[112]Corrections Victoria made no submission on any orders that might be made.

The Secretary submitted that the review should be in two years. Since AB’s treatment progress remained slow, two years would allow enough time for there to be sufficient progress under less restrictive conditions. To bring the matter back any earlier might unduly raise expectations and risk demoralizing AB if those hopes are dashed.[113]
[113]Transcript of hearing (22 November 2017), pp 331-334. I took the submission to mean two years from the date it was being made – November 2017.

The Attorney made no submissions on when matter should return for review.

AB submitted that the review should be commenced in eighteen months or two years at the most. His counsel explained that AB is “realistic” about what can be achieved and the pace at which it can be achieved.[114]
[114]Transcript of hearing (22 November 2017), pp 378-379. Again, I took the submission to mean 18 months to two years from November 2017.

As indicated earlier, I have determined to bring the matter back to this Court for further review by 1 September 2019. That is now only about fourteen months away but is two years and three months from the date by which the previous review was to be commenced. In my view, that period strikes an appropriate balance between, on the one hand, the slow nature of AB’s progress and the need to give the proposed less restrictive and more socialization-oriented regime in prison time to have an effect and, on the other, the importance of ensuring proper oversight of this ill-fitting regime and that AB be given a target date to work towards. I hope it also gives him the necessary hope to keep improving.

A qualification

The second matter that I wish to foreshadow now about the further review concerns the qualification (which I expressed as a nagging doubt) to which I alluded a moment ago when stating my conclusion that, on the evidence before me, there is still too high a risk that AB would harm another person if detained at TEH, as currently configured, to justify a change in the place of his custody under the CSO to TEH. The qualification arises in these circumstances. Consider the following.

First, in August 2005, AB stabbed the prison officer with a ‘shiv’ and assaulted his colleague. Soon thereafter, he was admitted to TEH and commenced on Clozapine for the first time, which resulted in an improvement in his mental state (including the cessation of auditory hallucinations). Dr Sullivan considered that AB was mentally impaired at the time of that stabbing, although AB did not seek to avail himself of the defence of mental impairment and pleaded guilty instead.

Second, in December 2009, AB struck a prison officer with a cricket bat. In the weeks leading up to that assault, AB had been on parole. When he was returned to prison in the ten days before the assault, as a result of an oversight, he was not administered his prescribed Clozapine. While his mental health in the lead-up to the assault may have been inscrutable, the observations of Dr Ong five days afterwards and the accounts AB gave Dr Ryan and Dr Cidoni much later are consistent with a relapse of psychotic symptoms at the time of the assault. Dr Cidoni offered the opinion that it is “critical for [AB] to continue Clozapine and to be monitored” and that it is “critical that he does not miss doses of Clozapine in the future”.

Thirdly, the killing and attempted killing at TEH in December 2012 are the events that ultimately gave rise to the CSO. The jury’s verdicts imply acceptance of the view that AB was psychotic at the relevant time as a result of his schizophrenia. In the period leading up to his transfer from prison to TEH, AB’s Clozapine blood levels were below the therapeutic level.

Fourthly, in the five or more years since that incident, AB’s Clozapine levels have been maintained and he has not exhibited any signs of violence, albeit he has also been held in an extremely restrictive regime during the same period.

Fifthly, for large periods between 2005 and 2009 on the one hand and between 2009 and 2012 on the other, AB appears to have been violence-free when taking substantial doses of Clozapine.

Sixthly, on occasions during those same periods, there have been suspicions that AB was not taking his prescribed Clozapine consistently, which in turn may explain some of his relapses of psychotic symptoms.

Seventhly, during periods prior to August 2005, there were episodes of psychotic symptoms when experts seemed to be trying different anti-psychotic medications, from Risperidone to Quetiapine to Olanzapine, and at different doses and in different combinations.

In my view, there are at least a couple of important inferences that might be drawn from the foregoing. First, when maintained at therapeutic levels of Clozapine, AB appears to be largely free of psychotic symptoms and has not engaged in acts of serious violence. Secondly, the three major instances of violence in his history – namely, the stabbing of the prison officers in 2005, the striking of the prison officer with a cricket bat in 2009 and the killing and attempted killing of his co-patients in 2012 – all occurred when AB’s Clozapine levels were either non-existent (in 2005) or very low (in 2012) or can be inferred to have been low because of a failure to take or be given the medication (in 2009). Dr Sullivan and Professor Ogloff appeared to agree with both propositions in their viva voce evidence.[115]
[115]See the evidence of Dr Sullivan and Professor Ogloff, Transcript of hearing (20 November 2017), pp 116-118.

I accept, however, as Professor Ogloff also pointed out, that there have been occasions in the past when AB has had relatively low levels of Clozapine but has not engaged in violence, so that there is not necessarily a direct relationship between those two events.[116] And, also, as I indicated earlier, I accept that it must be understood that, because of the restrictive nature of his incarceration in the last five years or so, AB has not had the same opportunities for violence.[117] Further, I accept that history has shown that AB’s mental state, when poor, is sometimes inscrutable. I also accept that merely ensuring that AB takes a therapeutic dose of Clozapine is not the answer to all of the difficult questions that arise in his case. He has a complex presentation and a disturbing history. Moreover, as I understand it, Clozapine is a drug of last resort – and can be quite dangerous – but that, sometimes, it is the only anti-psychotic that will achieve the desired level of mental health for some patients.
[116]Transcript of hearing (20 November 2017), p 118.
[117]Transcript of hearing (20 November 2017), pp 118-119.

Nevertheless, I should have thought that the more important question is not whether AB has, on occasions when low on Clozapine, failed to act in a violent manner, but whether, when he has acted extremely violently and been apparently psychotic, his Clozapine levels were low and whether, when his Clozapine levels have been in the therapeutic range, there has been an absence of apparent psychotic symptoms and serious acts of violence. And, as I say, on the evidence, the answer to each of the latter questions must be yes.

While psychiatry is for psychiatrists, psychology is for psychologists and the law is for lawyers, as a lawyer and judge in a matter like this, I must rely heavily on the evidence of psychiatrists and psychologists, but not solely. In confirming the CSO and the place of custody on this occasion, I have acted on the evidence of those experts who have provided evidence to the Court.

However, while I have the highest regard for all of those experts, and always would consider carefully any of their explanations for their opinions, I fear that thus far insufficient weight has been given to what appears to be the strong correlation between AB’s treatment on Clozapine at therapeutic levels and an absence of positive psychotic symptoms and seriously violent behaviour on the one hand, and between occasions when there have been sub-therapeutic levels of Clozapine and the presence of positive psychotic symptoms and seriously violent behaviour on the other.

It would be helpful to the Court if those providing expert evidence in this matter on the next review gave serious consideration to these instances of (apparent) correlation when forming opinions about explanations for AB’s past serious violence, his risk of future serious violence, whether he should be kept in extremely restrictive and isolated prison conditions any longer, and his suitability for placement at TEH or any other like institution.

Anonymized reasons

Finally, I turn to the question of whether the reasons in this matter should be anonymized.

In his evidence upon the review, Dr Bell explained that AB is at “a very delicate stage, where he has just started to mingle with other prisoners on a one-to-one basis”. In his opinion, were AB to be identified in reporting of this case in the media, that could impact on the way in which he and those prisoners would interact with each other, which in turn could impact adversely on AB’s progress towards rehabilitation.[118]
[118]Transcript of hearing (20 November 2017), pp 38-39.

As I understood it, counsel for AB and counsel for the Secretary[119] submitted that, given Dr Bell’s evidence, it would be preferable and in the public interest to order, pursuant to s 75 of the CMI Act, suppression of the identity of AB and of information that might tend to identify him.
[119]Transcript of hearing (22 November 2017), pp 334-335.

Neither counsel for the Attorney nor counsel for Corrections opposed the making of such an order.

I agree that it is in the public interest to anonymize these reasons in such a way as to avoid the potential interruption of AB’s progress towards rehabilitation that any unrestricted publication of these reasons otherwise might bring.

Accordingly, the form of both the foregoing reasons and the fourth order I am about to pronounce represent attempts to take into account those concerns.

Orders

In the result, I shall order as follows:

1) Pursuant to s 32(1)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the CMI Act”), the custodial supervision order imposed in respect of AB on 1 June 2015 (“the CSO”) is confirmed.

2) For the avoidance of doubt, the Court declines to vary the place of custody of the CSO pursuant to s 32(1)(b) of the CMI Act – that is to say, the place of custody to which AB is committed under the CSO remains in a prison.

3) Pursuant to s 32(5) of the CMI Act, the matter is to be brought back to the Court for further review on or before 1 September 2019.

4) Pursuant to s 75 of the CMI Act, until further order of the Court, nobody shall publish any information that might directly or indirectly reveal the true identity of AB, DC, EF or any person mentioned in this review or the trial and subsequent hearing that gave rise to the CSO, except to the extent disclosed in the reasons for judgment in this matter (Re AB [2018] VSC 349).

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[2018] VSC 349

29 June 2018