Re BK
[2024] VSC 577
•22 July 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CI 2017 01722
| IN THE MATTER of an application for revocation of non-custodial supervision order pursuant to s 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 | |
| and | |
| IN THE MATTER of an application by BK | |
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JUDGE: | Niall JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 July 2024 |
DATE OF ORDERS: | 22 July 2024 |
DATE OF REASONS: | 20 September 2024 |
CASE MAY BE CITED AS: | Re BK |
MEDIUM NEUTRAL CITATION: | [2024] VSC 577 |
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CRIMINAL LAW – Mental impairment – Application for revocation of non-custodial supervision order (‘NCSO’) – Continuation of order not necessary to ensure safety of applicant or community – NCSO revoked – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss 31, 33, 39, 40, 75.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Dalrymple | Victoria Legal Aid |
| For the Secretary to the Department of Health | Ms Y Al-Azzawi | Department of Health |
| For the Attorney-General for the State of Victoria | Ms J Ryan | Victorian Government Solicitor |
HIS HONOUR:
Introduction
The applicant (‘BK’) has applied under s 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) for the non-custodial supervision order (‘NCSO’) to which he is currently subject to be revoked.
The parties to this proceeding, being BK, the Secretary to the Department of Health (‘the Secretary’) and the Attorney-General, all agree that the NCSO should be revoked. BK also seeks for the current suppression order to continue. The Secretary and the Attorney-General do not take a position in relation to the suppression order.
Background
BK is a 41-year-old Māori man with established diagnoses of schizoaffective disorder and substance use disorder. He was born in New Zealand and has two children there. BK moved to Australia in 2011, following which he ran out of his prescribed antipsychotic medication. This precipitated a relapse of psychotic symptoms leading to the commission of the index offences in March 2012, when BK killed one resident and attacked three others at the boarding house where he lived. In 2013, following a judge-alone hearing pursuant to s 21(4) of the Act, BK was found not guilty by reason of mental impairment of murder and three counts of intentionally causing serious injury. He was declared liable to supervision and made subject to a custodial supervision order (‘CSO’) for a nominal term of 25 years from 15 March 2012.
Although BK progressed through treatment at Thomas Embling Hospital (‘TEH’), leading to a grant of extended leave under s 57 of the Act in 2017,[1] a subsequent grant of extended leave[2] was suspended and then revoked in 2019.[3] This occurred in the context of methamphetamine use, a lack of transparency with his treating team and, on re-admission to TEH, the re-emergence of psychotic symptoms and paranoia.
[1]Re BK [2017] VSC 475R.
[2]Re BK [2018] VSC 459R.
[3]Re BK [2019] VSC 517R.
In 2021, following further treatment to address his substance use and a period of positive progress at TEH, BK was granted a further 12 months’ extended leave.[4] At that time, I also made the current non-publication order under s 75 of the Act. In 2022, I granted a further 12-month period of extended leave, finding that, despite some instances of impulsive behaviour, these were being appropriately addressed through treatment and that overall BK was progressing well.[5]
[4]Re BK [2021] VSC 794R.
[5]Re BK [2022] VSC 716R.
On 2 November 2023, the Court granted an application by BK to vary his CSO to a NCSO, finding that BK would not seriously endanger his own safety or that of the community as a result of the variation.[6] The unchallenged evidence on that application was that BK’s progress over the preceding year had been a success, his mental state had been consistently stable, he had been fully compliant with medication and returned negative drug screens. Further, his issues with impulsivity had reduced after working with his treating team to address these behaviours.[7]
[6]Re BK [2023] VSC 649, [40], [46] (Niall JA).
[7]Re BK [2023] VSC 649, [42] (Niall JA).
Applicable legislation
Pursuant to s 33(1) of the Act, on an application for revocation of an NCSO, the Court must confirm the order, vary its conditions, vary the order to a CSO, or revoke the order.
In exercising this discretion, the Court must have regard to the factors set out at s 40(1) of the Act, being:
(a) the nature of the person’s mental impairment or other condition or disability; and
(b) the relationship between the impairment, condition or disability and the offending conduct; and
(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; and
(d) the need to protect people from such danger; and
(e) whether there are adequate resources available for the treatment and support of the person in the community; and
(f) any other matters the court thinks relevant.
The Court’s discretion must also be exercised in conformity with the principle of parsimony set out at s 39(1) of the Act — that is, restrictions on a person’s freedom and personal autonomy should be kept to the minimum that is consistent with community safety.
In NOM v Director of Public Prosecutions (‘NOM’), the Court of Appeal considered the meaning of ‘endanger’ for the purposes of s 40(1)(c) of the Act. While ‘serious endangerment’, referred to elsewhere in the Act, takes into account the gravity of harm that might result, endangerment is concerned with the likelihood of harm materialising.[8] The Court of Appeal explained:
Endangerment is about the risk of harm. The gravity of the harm may be relevant to assessing the nature of the risk, but the probability of any risk, be it high or low, is the critical concept of endangerment.[9]
[8]NOM v DPP (2012) 38 VR 618, 635–8 [54]–[60] (Redlich and Harper JJA and Curtain AJA).
[9]Ibid 637 [58].
The relationship between s 39 and s 40(1) was considered in NOM, with the Court of Appeal commenting on the discretionary nature of the decision called for by those provisions. Their Honours stated:
Section 39 requires a value judgment informed by the competing considerations stated in the provision. Section 40(1) requires an evaluation of the appellant’s mental condition and progress and an assessment of risk against discrete but interrelated criteria. These assessments call for value judgments in respect of which there is room for reasonable differences of opinion. No particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion.[10]
[10]Ibid 633 [47].
As a supervision order under the Act represents a restriction on an individual’s liberty and autonomy, it cannot be justified unless determined to be necessary.[11]
[11]Ibid 642 [71].
In Re Stein, Taylor J (as her Honour was then) considered that:
[r]evocation of a NCSO represents the final step in achieving community reintegration for a person subject to supervision under the Act. It is a serious step, having the effect of entirely removing the Court’s supervision of that person’s treatment and disposition.[12]
[12]Re Stein [2020] VSC 843, [17] (Taylor J) (citations omitted).
However, her Honour went on to state:
The serious nature of the step is to be balanced with the fact that supervision under the Act is a restriction on a person’s liberty and autonomy that can only be justified where it is found to be necessary.[13]
[13]Ibid.
Under s 40(2) of the Act, a NCSO must not be revoked unless the Court:
(a) has obtained and considered the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on—
(i) the person’s mental condition; and
(ii) the possible effect of the proposed order on the person’s behaviour; and
(ab) in the case of a person who is subject to a supervision order, has obtained and considered the report of a person having the supervision of the person subject to the order; and
(b) has considered the report submitted to the court under section 41(1) or (3) (as the case may be); and
(c) is satisfied that the person’s family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and
(d) has considered any report of the family members or victims made under section 42; and
…
(e)has obtained and considered any other reports the court considers necessary.
Unless the order is revoked, the court may direct the matter return for a further review at the end of a specified period.[14]
[14]The Act, s 33(2).
Finally, the Court may make a suppression order under s 75 of the Act where satisfied it is in the public interest to do so.
Notification of family members and victims
Section 38C of the Act requires the Director of Public Prosecutions to notify family members and victims of certain hearings under the Act, including an application to revoke a NCSO,[15] and to provide those family members or victims with the information specified in s 38E.[16] I am satisfied that there has been compliance with this requirement.
[15]Ibid s 38C(2)(c).
[16]Ibid s 38E(2).
Evidence
Reports from the following clinicians were read on the application:
(a) Report of Dr Asiri Rodrigo, a consultant forensic psychiatrist with Forensicare and BK’s supervising psychiatrist on the NCSO, dated 25 June 2024;
(b) Report of Dr Pawan Singla, consultant psychiatrist with Mercy Mental Health and BK’s treating psychiatrist since August 2023, dated 5 June 2024; and
(c) Report of Lawrence Massaquoi, BK’s case manager at Wyndham Community Mental Health Clinic (part of Mercy Mental Health), dated 21 June 2024.
Dr Rodrigo, Dr Singla and Mr Massaquoi are all supportive of the NCSO being revoked.
I am satisfied that Dr Rodrigo’s report meets the requirements of s 40(2)(a)-(b) of the Act.
Report of Dr Rodrigo
Overview
Dr Rodrigo’s report confirms BK’s diagnosis of schizoaffective disorder, for which he is currently prescribed Olanzapine, an antipsychotic medication. Dr Rodrigo further notes BK’s chronic neurocognitive deficits and substance misuse disorder (in sustained remission). Dr Rodrigo reports that BK is currently case managed by Mercy Mental Health (an area mental health service), he attends regular sessions with a psychologist, and is supported by the NDIS. BK lives with his sister and receives a disability support pension. He apparently has significant family support both in Australia and in New Zealand.
In relation to BK’s current mental state, Dr Rodrigo reports an absence of formal thought disorder, thoughts of harm to himself or others, or expressions of grandiose, depressive or delusional themes. Moreover,
[BK] demonstrated insight into his mental health condition and demonstrated an understanding of the importance of ongoing adherence to his medications and avoidance of alcohol and illicit substance use to maintain his mental health and prevent relapse.[17]
[17]Report of Dr Rodrigo dated 25 June 2024, [32].
Progress while on the NCSO
BK’s progress since being placed on the NCSO has reportedly been positive. He remains compliant with medication and has expressed determination to continue on it for the rest of his life in order to avoid relapse.
BK has also communicated his intention to remain abstinent, recognising the link between substance use and psychotic symptoms. BK attributed losing his family and children to substance use and has reportedly changed the way he socialises to avoid relapse, preferring to foster relationships with others who do not use substances. In March and April 2024, BK reported he had craved substances. Positively, he was able to manage these cravings by contacting his treating team for assistance and requesting more frequent drug screens to help him remain abstinent.
Shortly after being placed on the NCSO, BK expressed a desire to return to New Zealand to see family, planning a visit in December 2023. However, BK’s travel application was rejected, apparently due to immigration and legal issues. Following this, BK indicated he was happy to wait until the NCSO was revoked to travel to New Zealand. In February 2024, BK raised with Dr Singla that he sought to have the NSCO revoked early so that he could visit his mother in New Zealand as she has been diagnosed with cancer. BK has been advised that he may be unable to return to Australia given his history and is happy to relocate to New Zealand.
In light of these plans, BK’s treating team have identified potential support services in New Zealand and are making appropriate referrals. This includes a referral to the Manaaki Centre in Waikato, the area mental health service in the area where BK intends to relocate. While the Manaaki Centre theoretically only accepts referrals for patients already in New Zealand, they have discussed BK’s situation with his treating team and have agreed to receive a referral from Mercy Mental Health. BK remains in daily contact with his New Zealand relatives, who are supportive of BK returning to live with them and are willing to help him engage with services while there.
Risk assessment
Using HCR-20,[18] Dr Rodrigo concludes that BK’s risk of violence over the next six months is low, whether he remains in Australia or moves to New Zealand. However, certain factors, such as medication non-compliance, substance use, lack of engagement with professional supports or personal stressors such as loss of family relationships may increase this risk. As such,
[BK’s] prognosis would depend on availability of family support, ongoing psychosocial supports, compliance with medication, and abstinence from illicit substance use.[19]
[18]Historical, Clinical, Risk Management 20, version 3, a structured professional judgment tool used to assess risk of future violence. This tool takes into account factors over three domains, historical (past), clinical (present) and risk management (future) in order to formulate an overall risk assessment. See Report of Dr Rodrigo dated 25 June 2024, [34].
[19]Report of Dr Rodrigo dated 25 June 2024, [38].
In making this assessment, Dr Rodrigo refers to historical factors, which are static and unchanging. Here, BK’s history of violence, mental disorder, traumatic experiences and past relationship issues are relevant. Dr Rodrigo also highlights BK’s historic substance use and treatment non-compliance. However, Dr Rodrigo comments that BK has been symptom-free and abstinent from substances for several years now and has also demonstrated sustained insight.
In terms of future risk management factors, Dr Rodrigo notes there are ‘no predicted problems with [BK’s] accommodation, professional services, treatment response, or personal support when he relocates to New Zealand.’[20] He has a supportive family whom he can live with and has been referred to parallel treatment and support services with which he intends to engage. No disruption to his current medication regime is envisaged. BK is willing to continue to engage with his current supports in Australia whether or not the NCSO is revoked, including Mercy Mental Health, who intend to remain in contact with BK until he is connected with supports in New Zealand.
[20]Report of Dr Rodrigo dated 25 June 2024, [37].
Opinion and recommendations
In Dr Rodrigo’s view, BK’s time on the NCSO has been characterised by stability in mental state and behaviour, engagement with treatment and support and abstinence from substances. Dr Rodrigo opines that case management via an area mental health service (either in Australia or New Zealand) is sufficient to maintain this stability and manage any future deterioration to prevent BK becoming a risk to himself or others. Although the most likely scenario for the risk of future violence would involve an acute relapse in terms of BK’s mental state, Dr Rodrigo opines:
The risk of such deterioration in mental state is low if he remains on treatment, maintains abstinence of substances, receives family support, and continues his regular engagement with the treating team. Regular monitoring and treatment are available to him through mental health services in Australia or New Zealand, along with informally through his support workers and family. It is likely his family may notice early warning signs and access services in such event.[21]
[21]Report of Dr Rodrigo dated 25 June 2023, [43].
Consequently, Dr Rodrigo supports revocation of the NCSO, suggesting there is little utility in the order remaining place.
Report of Dr Singla
Dr Singla reports no concerns with BK’s engagement or adherence to treatment. Consistently with Dr Rodrigo, he reports BK to be stable, compliant with medication, and reasonably motivated to abstain from substance use, evidenced by his volunteering for more frequent drug screens and discussing cravings with his psychologist, case manager and NDIS support worker. BK apparently shows good insight, and does not appear to present a danger to himself or others, although Dr Singla warns that this could change in the event of medication non-compliance or substance use. Dr Singla discusses BK’s plans to relocate to New Zealand and notes that he has been actively liaising with services there, with a view to continuing treatment after his relocation. As such, Dr Singla states that consideration should be given to revoking the NCSO.
Report of Mr Massaquoi
Mr Massaquoi reports BK is well-engaged with his treating team, including weekly catch-ups with Mr Massaquoi, monthly medical reviews, and appointments with his treating consultant every three months. He also engages well with other supports, including his NDIS support worker and psychologist. BK volunteers weekly at a Chinese temple and spends time exercising, including seeing a personal trainer and running a weekly ‘boot camp’ with friends.
Mr Massaquoi also reports that BK is compliant with his medication and denies psychotic symptoms. He attends for drug screens on a weekly and monthly basis.
According to Mr Massaquoi, BK is an honest, positive person who presents no danger to himself of others. Mr Massaquoi supports the NCSO being revoked, noting BK is looking forward to being with his family in New Zealand. As indicated in Dr Rodrigo’s report, Mr Massaquoi confirms he has been in contact with the Manaaki Centre and that, notwithstanding their usual policy, they would accept a referral from Mercy Mental Health for BK. At the time of writing, Mr Massaquoi confirmed a referral would be made.
Analysis
BK’s schizoaffective disorder is appropriately managed in the community and he is currently free from symptoms of the disorder. Further, his substance use disorder is in sustained remission. There is a clear link between BK’s condition and the offending conduct given he was floridly psychotic at the time of the index offences. However, the evidence shows that therapeutic intervention and an increase in insight and awareness on the part of BK has been very successful in managing risk. Dr Rodrigo has assessed BK as presenting a low risk of harm to himself or others should his current level of support be maintained. Further, the evidence suggests that case management through an area mental health service, which would continue whether or not the NCSO were revoked, would be sufficient to maintain a low level of risk and address any future deterioration to prevent this risk increasing.
BK wishes to return to live in New Zealand. The treating team have made sustained efforts to understand the level of support that would be available to BK should he relocate. Obviously, that would entail a change in the identity of the providers of support and no doubt there may be differences in resourcing and the like. I am satisfied that the treatment and support available in New Zealand, including strong family support, will mean that that there are adequate resources available for treatment and support of BK in the community.
The factors in s 40 to which I have had regard must be balanced with the principle at s 39(1) of the Act that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with community safety. I am persuaded that the continuation of the order is not required or justified having regard to the medical and social evidence and, therefore, it should be revoked.
Finally, I am satisfied that it is in the public interest to retain the current suppression order under s 75 of the Act.
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CERTIFICATE
I certify that this and the 10 preceding pages are a true copy of the reasons for judgment of Niall JA of the Supreme Court of Victoria delivered on 20 September 2024.
DATED this twentieth day of September 2024.
Associate
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