Re Application of P E L
[1998] VSC 181
•15 December 1998
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION
Not Restricted
No. 1552 of 1998
IN THE MATTER OF SECTION 57 OF THE CRIMES (MENTAL
IMPAIRMENT & UNFITNESS TO BE TRIED) ACT 1997
IN THE MATTER OF AN APPLICATION OF “P.E.L.”(NAME SUPPRESSED)
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JUDGE: Smith, J. WHERE HELD: Melbourne DATE OF HEARING: 3 December 1998 DATE OF JUDGMENT: 15 December 1998 CASE MAY BE CITED AS: Re Application of P.E.L. MEDIA NEUTRAL CITATION: [1998] VSC 181
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Application under s.57 of the Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997 - Relevant considerations - Conditions imposed.
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APPEARANCES: Counsel Solicitors For the Applicant Mr. R. Backwell Victoria Legal Aid For Department of Human Mr. R. Bourke Department of Human Services Services Legal Service For the Attorney-General Mr. G. Mullaly Victorian Government
SolicitorFor the D.P.P. Ms. I. McGregor Peter Wood, Solicitor for
Public Prosecutions
HIS HONOUR:
Application
This is an application by a man whose name I have suppressed who I will refer to in these reasons as P.E.L. His application, filed on 10 August 1998, seeks an order for extended leave under s.57 of the Crimes (Mental Impairment And Unfitness To Be Tried) Act 1997 (the Act).
P.E.L. is presently a forensic patient within the meaning of the Act. He was presented for trial in June 1990 on a charge of murdering his defacto wife. The jury returned a verdict of not guilty on the ground of insanity. The trial judge ordered he be kept in custody at Mont Park Psychiatric Hospital until the Governor’s pleasure was known. On 14 March 1991 the Governor of Victoria ordered that he be kept in safe custody in such place as Director General, Office of Corrections, may from time to time determine. He thus is subject to the Act (clause 1 of Schedule 3 of the Act) and for the purposes of the Act is deemed to be subject to a custodial supervision order under the Act (clause 2 of Schedule 3).
Prior to the relevant parts of the Act coming into effect, P.E.L. was granted leave to reside at his mother’s home and subsequently in a flat at another address. Thus, for the purposes of this application, he is deemed to be on extended leave for the purposes of Part Seven of the Act (Schedule 3 clause 3). In essence the applicant seeks the continuation of his extended leave for a 12 month period from the date upon which any such order granting leave is made by me.
Relevant material
I have been supplied with a summary of proceedings by the Director of Public Prosecutions which gives the factual background to the original charge and the processing of that charge in this Court. I have also been provided with a report from the Adult Parole Board which, inter alia, sets out P.E.L’s history and events that have transpired in his life since June 1989. The Victorian Institute of Forensic Mental Health has provided two reports from Dr Vine, the authorised psychiatrist in the
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matter. Victim impact statements have also been filed by the Director of Public Prosecutions, being statements by relatives of the deceased. I have also had the benefit of oral evidence from several witnesses which evidence is recorded in the transcript which I will place on the file.
I note that under s. 38 of the Act, the court is not bound by the Rules of
Evidence and may
“Inform itself in relation to any matter in such manner as it thinks fit.”
Events leading up to the Governor’s order
In 1989, the applicant was aged 23. He had no prior psychiatric history. He was living with his de-facto wife who was a prostitute. Both were addicted to amphetamines and cannabis. They were attempting to withdraw from their addictions with the help of a recovery centre. It appears that the deceased was either retrenched or, in attempting to withdraw from the drugs, had withdrawn from the escort agency for which she worked. According to the Parole Board report, the applicant believed that her employers were harassing her and threatening harm to him and his family. He began to hear voices from the radio and his perception of threats and harassment escalated. He apparently became unable to sleep and, after several days, barricaded himself in his bedroom. It is said that his paranoia was at its peak. On the return of his de-facto wife on that day, he let her into the bedroom. He had formed the opinion that she also was involved in the threats and harassment that he was experiencing. It is accepted that in that state of mind he strangled her believing it would protect him and his family. He claimed that he then took a shower believing that what had occurred was a dream. When he realised he had killed her he tried to commit suicide by electrocution, drinking fertiliser and stabbing himself in the eye.
| 7 | After being taken into police custody he was psychiatrically assessed. It was decided that he was acutely psychotic. He was transferred to Pentridge hospital, |
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was certified on 7 July 1989 and moved to J Ward Ararat because of concern about
his capacity to escape.
The applicant had not experienced prison custody before but according to the Adult Parole Board report was not altogether unknown to the police. The presentment listed some prior convictions for theft, unlawful assault, unlicensed driving and other offences. In the Parole Board report it is stated that he was described as “a dangerous and unpredictable individual with a propensity to violence”. The police reports at the time recorded that he was uncooperative and abusive after arrest, became violent towards his solicitor and attempted to take a police revolver although that may have been done with the intention of shooting himself.
The applicant remained at J Ward until 8 November 1989 when he was moved to Mont Park Psychiatric Hospital, J Ward having been closed. I will refer in more detail to his progress at Mont Park and at Maroondah Hospital to which he was transferred on 4 January 1991. He was at Maroondah Hospital when the Governor’s order was made.
Background of the applicant
The material concerning his family history is a little confusing. From it, it may be discerned that he is the eldest child among his mother’s children. She has married at least twice and had children in the course of two marriages. He has two siblings, both brothers. He has had a relationship with a step-father although that appears now to involve very little contact and it appeared to be common ground that it was not a particularly supportive relationship. He was very close to his maternal grandmother who is now deceased. It is accepted that he continues to have a supportive and positive relationship with his mother and with his siblings.
| 11 | The applicant had some difficulty with his academic work at school repeating grade 3. He left school at the age of 15. He obtained work in a supermarket and in |
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furniture factories but finally settled down to work as a concreter. He had worked as a concreter for some five years prior to his reception into custody. According to the first report of Doctor Vine, he had an active social life prior to being taken into custody which involved heterosexual relationships. He informed her that he had an interest in motor bikes, cars and that he believed he was a reliable worker.
Progress since November 1989
As indicated above, the applicant was moved from J Ward to the Mont Park Psychiatric hospital on 8 November 1989. He was initially permitted to walk in the hospital grounds unsupervised. He became involved in a rehabilitation programme and had minimal supervised leave. Doctor Vine reports that it was noted that there was progressive improvement although he continued to have some residual negative symptoms.
On 4 January 1991 he was transferred to the Psychiatric Unit of Maroondah Hospital. Throughout 1991 he was able to spend at least part of the week with his mother or grandmother. While at the Maroondah Hospital he was reported by treating doctors as progressing well and putting considerable effort into the programmes for his rehabilitation. They also reported that he showed no ill effects from decreased medication. There was some concern amongst the doctors at Maroondah Hospital that continuing in-patient status would eventually have detrimental effects and that his mental stability warranted his discharge. However, the concerns of the Office of Corrections were that it was too early following such an extremely violent outburst resulting in the death of his de-facto wife to permit that to occur and that it should move more slowly towards his re-integration in the community.
| 14 | While at the Maroondah Hospital two incidents had occurred which caused concern at the time. The first related to discovering a female patient of the Maroondah Hospital in his room. According to the Parole Board this was the result |
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of the young woman’s initiative and that she had taken advantage of the lack of diligence of the night staff. The second incident involved the applicant and two other young men who were reported to police when the applicant’s truck stopped outside a house in which the occupants were believed by police to be involved in criminal activities. The police received a report that one of the two companions of the applicant forced entry to the house and emerged carrying a plastic bag. The applicant denied the incidents and ultimately the owner of the house denied any property was missing. As a result no action was taken. The Parole Board reports that at that stage the applicant’s psychosis was under control with relatively low doses of medication and he had reasonable insight into his illness. At that time the diagnosis was still uncertain but it would appear that there was a tentative diagnosis of drug induced psychosis or paranoid schizophrenia at the time of the tragic events of 1989 but, because there had been little evidence of any psychotic symptoms after those events, the diagnosis was still in doubt. The authorities however believed he had an excellent prognosis. The Board took no action in relation to the two episodes in view of their lack of significance compared to his overall progress. It was recommended, however, that he remain in safe custody and that he should demonstrate stable functioning over the next 12 months before release under supervision could be considered.
Maroondah Psychiatric Hospital, however, was not a secure facility. Because of concerns that it was not a secure facility, the applicant was transferred back to the Rosanna Forensic Psychiatric Centre in April of 1992. I note, also, that the applicant’s bed was not always available for him on his required in-patient days resulting in him returning to his grand-mother’s home and, thus, having more unsupervised leave than had been intended.
| 16 | Doctor Vine reports that throughout 1992 and 1993 the applicant remained in M5 at Rosanna and was permitted increasing levels of leave. In January 1993 he had unlimited escorted leave. He remained well from a clinical point of view and his |
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treatment was in fact reduced and ceased in February 1993. The Parole Board reports that it interviewed him at the Rosanna Forensic Psychiatric Centre on 23 April 1993. The treating doctors advised the Parole Board that in their view it was almost certain that the psychosis present at the time of the offence was the result of heavy marijuana and amphetamine abuse. They advised the Board that the cumulative affect of those drugs can cause extremely prolonged psychosis and produce symptoms consistent with paranoid schizophrenia. The applicant at the time was remorseful concerning the killing of his de-facto wife and said that he was not aware of the harmful effect of the drugs. Random drug testing at the hospital remained clear.
In June 1993, the Parole Board’s assessment was one of overall steady progress assisted by the leave programme which enabled him to demonstrate stability and compliance with the programmes laid down for him including treatment. It was encouraged by his perceived insight into his illness and his determination to be useful. At this point the Board took the view that it would be prepared to recommend release under supervision provided no untoward incidents occurred in the next 12 months.
It seems that during the six months following the cessation of medication in February 1993 the applicant’s progress was uneventful. Later in the year, however, his mental health appeared to deteriorate. There was a connection it seems with difficulties he was experiencing in a new relationship with a young woman. The decision was taken to prescribe anti-psychotic medication for early symptoms of psychotic relapse and leave entitlements were significantly reduced. He had become guarded and suspicious and showed persecutory beliefs and his thoughts were disordered. He had shown a tendency to indignation and outrage when his expectations were not met and this tendency was heightened together with a lack of insight into his illness or the ramifications of his behaviour. The new medication
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prescribed was Flupenthixol Decanoate, an anti-psychotic drug given by injection on
a fortnightly bases.
Prior to the review conducted by the Board in April 1994, the applicant was given permission to reside in the Main Drive houses on 22 March 1994. While enthusiastic about the change the applicant complained of the side effects of the new anti-psychotic drug alleging tiredness, lack of motivation and restlessness. He sought cessation of treatment with that drug and as a result was returned to Ward M5 on his own volition on 2 August 1994.
In November 1994 he was interviewed by the Board. It reports that he appeared reasonably well but tended to deny his status and was “voluble” about being released from the criminal justice system. He was now regarding himself as a “political prisoner”. The Board interviewed staff who advised the Board that there were no symptoms of schizophrenia emerging. At the time he regarded himself as a political prisoner, he engaged in the occasional dramatic gesture such as carrying a cross in the ward to make his point that he was being treated more unfairly than others. Doctor Vine said that at that time his thinking at times was woolly in that he was having difficulty keeping to the point.
On 2 November 1994 he was granted leave to share a house in Gresswell Drive close to the grounds of Mont Park with a co-patient. The leave granted in November 1994 was short lived. The applicant returned to Ward M5 of 17 January 1995 having breached the conditions of the leave by consuming alcohol. Medication was resumed and he continued to complain about restlessness, lack of energy and sedative effects. He showed a variety of moods with periods of irritability and belligerence and during March and April 1995 had to be transferred to Ward M6.
| 22 | With an apparent settlement of his clinical state the applicant was granted leave to reside in a Main Drive house on 29 January 1996. This however was unsuccessful despite his apparent enthusiasm and on 16 March 1996 he returned to |
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Ward M5 having consumed alcohol and having taken a minor overdose of prescribed medication. A Parole Board review of his case in March 1996 recorded ongoing concern that when under stress, his behaviour tended to deteriorate and there were limits in his ability to objectively weigh up his current situation. The Board described him as “becoming somewhat disordered and tangential, with irritable and labile moods and ideas of persecution”. He expressed anger towards the Forensic Service and the Criminal Justice System in general. On 8 May 1996 he escaped from the ward in the company of his father. He was returned to Rosanna by the police. He had been found at his father's home. He had consumed alcohol. The two 1996 incidents are the only ones of which Dr Vine is aware where there was potential for dangerousness towards himself or others.
In attempting to justify his actions the applicant told the authorities that he had a viral illness which the staff at Rosanna refused to treat and he intended to seek his own medical treatment at Flinders Medical Centre. He complained that the staff were forcing him to do his regular chores when he was not well. He was warned that the Parole Board took his escape very seriously and that he should take responsibility for his own actions which if they continued could only result in him being held in custody for a substantially longer time. He protested his view that he should not be in custody because he had been found not guilty and asserted that in his belief he was a model patient. The Parole Board notes that in taking this action he had been abetted by his father and the two had been drinking. The Parole Board also notes that on the night prior to his escape he had been exhibiting bizarre behaviour and leave had been cancelled. The Parole Board reports that his doctor felt that the absconding was motivated more by a sense of injustice and difficulties with the psychiatric system and figures of authority rather than any psychiatric symptoms at the time.
| 24 | The applicant was placed in the acute ward and moved to M5 in October of 1996. Doctor Vine reports that since then he has made significant gains. He has |
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participated in ward activities and rehabilitation programmes in a more consistent
and sustained manner.
He has been placed on medications which do not appear to have side effects. Currently he is receiving 100 milligrams of Zuclopenthizol by fortnightly injections. That is an anti-psychotic medication. It also emerged that he was suffering bouts of depression and he has been receiving an anti-depressant drug, Sertraline, in 50 milligram doses. He receives the Zuclopenthizol injection by attending at Rosanna fortnightly. The Sertraline he administers by tablet. He has complied with the treatment.
He has had to cope with a traumatic personal event in recent times, namely, the death of his grandmother with whom he was very close. Doctor Vine reports that he coped appropriately with that.
The Parole Board reports that with the change of anti-psychotic medication in early 1998 he appears to have been behaving more rationally and functioning as well as he has ever been observed to function and been more receptive to supervision.
In April 1988 he was granted leave to reside at his mother’s house. He stayed in a caravan in her garden. The leave was progressed very gradually and with close monitoring of his moods and activities. He lived there pending the availability of accommodation from the Public Housing Authority. In July he was allotted a one bedroom flat where he seems to be coping quite well. He has been kept reasonably busy carrying out chores for his mother and an aunt. He has kept his appointments at Rosanna. The programme has involved weekly visits by his case manager to his home. Doctor Vine and his case manager, David Pearce, both report a period now of some stability in his behaviour and reliability so far as his medication is concerned. He has remained over this period in close contact with his mother who also takes a keen interest in his condition and the taking of his medication.
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His mother has come to be well acquainted with the staff at the Victorian Institute of Forensic Mental Health and has had no difficulty contacting them in the past if she thought her son was unwell. She accepts that he has schizophrenia although according to Doctor Vine it is not a severe case.
Mr Pearce and his mother both gave evidence that on visiting the applicant at his flat they find him and it to be clean and neat and tidy. He has the skills required to maintain the flat and to cook and clean. Mr Pearce reports that the applicant is interested in music and films. His mother reports that since he has moved to the flat he has been coming to stay with her at weekends.
The applicant has commenced a friendship with a young woman who is fully aware of his past history. He is developing a group of friends in the vicinity of his flat and has maintained friendships with some people at the hospital. He is currently attending the hospital weekly to see Doctor Vine. Normally such assistance would be given by her fortnightly. The visits to Doctor Vine and the visits by the case manager are staggered, generally occurring at the beginning and end of each week.
I note that the applicant is on a pension, he has a car and a driving licence. He has recently acquired a trailer which he proposes to use to carry concreting equipment. He plans to commence doing small concreting jobs and to work his way back into the work force in that way.
I note that he recently recorded a positive drug test, the result raising the possibility that he had taken amphetamines. His explanation for the presence of the substance was that he was taking Sudafed for allergy problems. Doctor Vine confirms that he does have allergy problems and the taking of Sudafed could account for the result in the test. That issue is being investigated further.
The proposal
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The view of Doctor Vine is that the applicant should continue to be subject to a custodial supervision order but should remain on extended leave under the supervision of Forensic Psychiatric Services. Her opinion is that the applicant does not represent a danger to either himself or to other people provided such supervision continues and that his mood and treatment compliance are monitored. The leave plan proposed by the Victorian Institute of Forensic Health (s. 57(3) of the Act) and put forward by Doctor Vine and Mr Pearce is that the applicant should be granted continued extended leave subject to the following conditions:
1. That he be under the supervision of the Authorized Psychiatrist of the Victorian Institute of Forensic Mental Health.
2. That he continue to reside at the flat above mentioned., or at any other address as directed by the supervising Authorised Psychiatrist.
3. That he comply with the lawful directions of a supervising Authorised Psychiatrist.
4. That he comply with treatment and tests and attend appointments as directed by the Authorised Psychiatrist, his or her delegate, or case manager.
5. That he abstain from the “abuse” of alcohol and the illicit use of drugs.
6. That he does not leave the State of Victoria without the permission of the supervising Authorised Psychiatrist.
The applicant seeks an order continuing extended leave on those terms. The proposal is not opposed by the Attorney General save and except that her counsel submitted that the fifth condition should be amended to refer to the “use of alcohol” not the “abuse” of alcohol. I gather there have been different views amongst my colleagues as to the appropriate language to be used. I think it preferable, in all the circumstances, that there not be room for argument and that the applicant know precisely where he stands. Should he breach the term by drinking alcohol it would be proper in my view for the Victorian Institute of Forensic Mental Health to know about it and to deal with the matter in the exercise of its discretion.
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Doctor Vine accepts there is a risk of a return of the psychosis, particularly if he takes drugs. A significant ingestion of amphetamines or marijuana would quickly bring on the appearance of psychotic symptoms.
The statements of relatives of the deceased
Notice of the application was given to relatives of the victim of the offence. Two have filed statutory declarations. They are testimony to the extreme pain, psychological damage and acute and continuing loss that the persons concerned have suffered. They are opposed to a programme of extended leave. They see the continuance of custody as necessary punishment for what he has done. While I understand this wish, I must deal with the application according to law. The applicant was found “not guilty”. Accordingly, punishment is not, under the law, a relevant consideration. They are also concerned about what might happen in the future should he be placed on leave. They are concerned that a crime like the one that occurred never happen again. I have taken these concerns into consideration.
Principles to be applied
It must be remembered that s. 39 of the Act states that in deciding whether to vary a supervision order, the Court must apply:
“the principle that restrictions on a persons freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.”
Section 40 sets out a number of matters to be considered in deciding whether to "vary ... an order under Parts 3, 4 or 5" of the Act. I note that there is apparently some debate about whether s.40(1) applies in a case such as the present. Whether it does or does not it seems to me that the matters mentioned are relevant. They are as follows:
“(a) The nature of the persons mental impairment or other condition
or disability; and(b)
The relationship between the impairment, condition or disability and the offending conduct; and
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(c) Whether the person is or would if released be likely to endanger themselves, another person, or other people generally because of his or her mental impairment;
(d) The need to protect people from such danger; and
(e) Whether they are adequate resources available for the treatment and support of the person in the community; and
(f) Any other matters the Court thinks relevant.”
I note also that the requirements of s.40(2) have been satisfied.
Before an order may be made for extended leave, however, s.57(2) of the Act must be satisfied. It provides
“(2) The Court must not grant an application under s.s (1) unless satisfied on the evidence available that the safety of the applicant or members of the public will not be seriously endangered as a result the applicant being allowed leave.”
I note that s. 58(1) permits the Chief Psychiatrist to suspend extended leave at
any time:
“If the Chief Psychiatrist . . . is satisfied on the evidence available that the safety of the person on leave or members of the public will be seriously endangered if leave is not suspended.”
That section provides for the matter to return to court within 48 hours should extended leave be suspended.
Conclusion
In dealing with this matter, the appalling events of 1989 must be borne in mind. It must also be borne in mind, however, that the verdict returned against the applicant was that he was not guilty on the grounds of insanity.
The first matter to consider is whether s.57(2) is satisfied. The Court has a discretion to grant the application but must not exercise that discretion unless satisfied on the evidence that the safety of the applicant or members of the public will not be seriously endangered as a result of the applicant being allowed leave.
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In considering that issue, I note the following:
(1) The initial preliminary psychotic state in which he killed his defacto wife was precipitated or exacerbated by the use of illicit drugs. (2) The applicant suffers from chronic paranoid schizophrenia. His condition, however, appears to be stabilised with medication and that medication now does not appear to have negative symptoms. (3) Doctor Vine in her report, has expressed the opinion that as long as the applicant remains on his present treatment and abstains from illicit drugs he has a good prognosis. (4) The applicant appears with time and treatment to have reached the point where he approaches his problems in a responsible way. In particular he attends appointments as directed and administers the drugs prescribed that he must administer. (5) He appears to be coping well in his flat and with his relationship
and contact with his mother.(6) To date there has been reasonably close monitoring of his condition by Doctor Vine, Mr Pearce and his mother and it is envisaged that this will continue during the period of 12 months extended leave. (7) The leave plan advanced by Doctor Vine and Mr Pearce addresses the areas of risk and empowers Doctor Vine to direct the applicant to move to another address and provides the support needed for Doctor Vine to monitor and control the further period of extended leave. (8) The resources that are available for the treatment in support of
the applicant in the community are in this instance adequate.(9) I note that the application is supported by the members of his family and that there is no evidence of specific dangers to them or members of the public.
In these circumstances while there is a risk to the safety of the applicant and members of the public I am satisfied on the evidence that their safety will not be seriously endangered if the applicant is allowed leave. I note that there has been some discussion of the standard proof required in dealing with the serious issues set
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out in s.57(2) of the Act. I agree with the views expressed by my colleagues that it is appropriate to take the approach referred to in Briginshaw v. Briginshaw (1938) 60 CLR 336 at 360-1.
The above matters are also relevant to the discretion. In addition, if the application is refused P.E.L. would have to be kept as an in-patient in M5 at Rosanna. Doctor Vine’s view, which I accept, is that this would have a devastating effect on him and his family. It would also result in the wastage of the work that has been done to rehabilitate the applicant and help him return to a situation where he can be a contributing member of society.
Ultimately, the Court is charged with weighing up the need to keep restrictions on the freedom of people and their personal autonomy to the minimum that is consistent with the safety of the community. What is required is that a balance be struck. Views may differ but it seems to me that in light of all the material it would be proper in this case to permit the status quo to continue for another 12 months. That will be the effect of an order granting extended leave for 12 months on the terms set out in the leave plan.
I will discuss the appropriate form of order with counsel.
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