Re BK
[2023] VSC 649
•9 November 2023
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
CRIMINAL DIVISION
S CI 2017 01722
| IN THE MATTER of an application for variation of supervision order pursuant to s 31, or alternatively for further extended leave pursuant to s 57, 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: | 2 November 2023 |
DATE OF JUDGMENT: | 9 November 2023 |
CASE MAY BE CITED AS: | Re BK |
MEDIUM NEUTRAL CITATION: | [2023] VSC 649 |
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CRIMINAL LAW – Mental Impairment – Application for variation of supervision order – Alternative application for extended leave – Whether safety of the person subject to the order or members of the public will be seriously endangered as a result of the variation – Application supported by treating experts, the Secretary and the Attorney-General – Application for variation granted – Crimes (Mental Impairment Unfitness to be Tried) Act 1997, ss 31–2, 39–40.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Bevan (solicitor) | Victoria Legal Aid |
| For the Secretary to the Department of Health | Ms Y Al-Azzawi | Department of Health |
| For the Attorney-General of Victoria | Ms J Ryan | Victorian Government Solicitor’s Office |
| For the Director of Public Prosecutions | No appearance | Office of Public Prosecutions |
HIS HONOUR:
Introduction
The applicant (‘BK’) is subject to a custodial supervision order (‘CSO’) under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). BK was granted further extended leave by me for a period of 12 months on 18 November 2022, following a first grant in November 2021.
By notice of application filed 16 August 2023, BK applies for an order to vary the CSO to a non-custodial supervision order (‘NCSO’), pursuant to s 31 of the Act. In the alternative, BK applies for a further grant of extended leave pursuant to s 57 of the Act.
The position of the Secretary to the Department of Health and the Attorney-General on BK’s primary application is that the CSO ought to be varied to a NCSO, on the conditions proposed by Dr James Belshaw in Appendix 1 to the report dated 12 October 2023.
At the conclusion of the hearing I made an order varying the CSO to a NCSO. These are my reasons for making that order.
Background
A detailed background is set out in my reasons for granting extended leave in 2021 and 2022,[1] as well as previous reasons of the Court. In summary, BK is a 40 year old Māori man from New Zealand. He has historically had varying diagnoses,[2] however the report of psychiatrist Dr James Belshaw filed on this application states that BK has an established diagnosis of schizoaffective disorder, chronic neurocognitive deficits, and a history of mild alcohol use disorder and moderate stimulant use disorder (both in sustained remission).[3]
[1]Re BK [2021] VSC 794R; Re BK [2022] VSC 716R.
[2]Re BK [2021] VSC 794R, [3] n 1; Re BK [2022] VSC 716R, [3] n 2. It is also noted that the case management report of Ann Walsh filed on this application dated 12 October 2023 refers to BK having a diagnosis of schizophrenia, at [5] and [44].
[3]Report of Dr James Belshaw dated 12 October 2023, [93].
In 2012, BK killed another resident and caused serious injury to three other people at the boarding house where he lived, while impaired by psychotic symptoms. BK was charged with murder and three counts of intentionally causing serious injury.
Following a consent mental impairment hearing in February 2013, the Court directed that verdicts of not guilty because of mental impairment be recorded on all charges. The Court declared BK liable to supervision and imposed a CSO in April 2013, with a nominal term of 25 years to commence from 15 March 2012.
BK was granted consecutive periods of 12 months’ extended leave in August 2017 and 2018.[4] However following issues while on extended leave, BK’s second grant of extended leave was suspended and ultimately revoked by the Court in July 2019,[5] and he returned to residing at Thomas Embling Hospital (‘TEH’). BK made positive rehabilitative progress in the intervening period, allowing him to be granted consecutive periods of 12 months’ extended leave in November 2021 and 2022 to again reside full-time in the community.
[4]Re BK [2017] VSC 475R; Re BK [2018] VSC 459R.
[5]Re BK [2019] VSC 517R.
Applicable legislation
In relation to the primary variation application under s 31, s 32(1) provides that the Court, on such application, must confirm the CSO, vary the place of custody or vary the CSO to a NCSO. Section 32(2) provides that the Court must not vary a CSO to a NCSO 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 NCSO.
As a forensic patient, BK has met the threshold in s 32(3)(a) of completing at least 12 months of extended leave. The Court is also required, in deciding the variation application, to take into account whether or not BK has complied with any conditions of extended leave.[6]
[6]The Act, s 32(3)(b).
In relation to the alternative application for a further grant of extended leave, s 57(2) provides that the Court may grant an application for extended leave if satisfied on the evidence available that the safety of the person, or members of the public, will not be seriously endangered as a result of the person being allowed extended leave.
In considering the application, the Court must have regard to the principle set out in s 39(1) of the Act, which provides as follows:
In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, the court must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Section 40(1) sets out a list of matters to which the Court must also have regard:
(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.
Further, s 40(2) provides that a Court cannot release a person from custody or significantly reduce the degree of supervision to which a person is subject unless it:
(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
(da) in the case of an application for extended leave—has considered the leave plan filed under section 57A; and
(e) has obtained and considered any other reports the court considers necessary.
The report of Dr James Belshaw dated 12 October 2023 fulfils the requirements of ss 40(2)(a) and (ab) and 41(3) of the Act.
Notification of family members and victims
The Director of Public Prosecutions (‘the Director’) must give notice of a hearing of an application under s 31 for variation of a supervision order to each family member of the person subject to the order and each victim of the offence with which the person was charged.[7]
[7]Ibid ss 38C(1), (2)(c).
An affidavit of Judith McDonnell, a legal practitioner at the Office of Public Prosecutions (‘OPP’), sworn on 30 October 2023, deposes that BK’s parents, two sisters and two children have been notified of the hearing, the nature of the application and that they may provide a report. BK’s brother’s contact details are not known to the OPP so a letter was not sent to him.
Notification letters were sent by email to the victims of the index offence (three people injured), however the OPP has not received a response to confirm receipt. A letter was also sent by email to the sister of the deceased, who has confirmed receipt. No notification was provided to the parents of the deceased as they have previously advised that they no longer wish to receive notifications in relation to this matter.
No reports have been received at the time of writing.
Submissions on behalf of the Director have also been filed. The Director does not seek to appear at the hearing unless required by the Court to do so, or requested to attend by one of the parties.
Contemporary evidence
The following two expert reports have been filed on the application:
(a) report of Dr James Belshaw dated 12 October 2023; and
(b) report of Ann Walsh dated 12 October 2023.
Report of Dr Belshaw
Dr Belshaw is a consultant forensic psychiatrist, working within Forensicare’s Community Treatment and Transition (‘CTT’) team. He has been BK’s allocated psychiatrist since December 2021 and regularly reviews him.
Dr Belshaw reports that the preceding 12 months should be viewed as a success,[8] and summarises BK’s progress as follows:
[8]Report of Dr James Belshaw dated 12 October 2023, [100].
(a) BK was discharged from his residence at the Austin Community Recovery Program in November 2022 and moved in with his sister at her private residence in Hoppers Crossing.[9] He shares the rental payments for the residence and his sister has reported that his mental health appeared stable and he appeared abstinent from substances.[10] Dr Belshaw has visited the home and found it to be appropriate for BK.
[9]Ibid [43]. It is noted that this is not the same sister that BK lived with during a previous grant of extended leave that was revoked.
[10]Ibid [44]–[45].
(b) BK’s attendance at CTT appointments has been excellent and there has been no evidence of any early warning signs of relapse, with BK’s mental state remaining stable.[11] Checks indicate that BK has been fully compliant with taking his prescribed olanzapine (anti-psychotic) medication.[12] BK acknowledged his diagnosis to Dr Belshaw at an interview and recognised that compliance with his medication, abstinence from illicit substances and engaging with professional supports helps him to remain stable in his mental state and behaviour.[13]
[11]Ibid [46], [100].
[12]Ibid [47].
[13]Ibid [85].
(c) All of BK’s urine drug screens have been negative,[14] and BK has consistently stated that he is committed to abstinence from illicit substances and alcohol.[15]
[14]Ibid [53]–[54]. Dr Belshaw reports that BK had weekly screens until April 2023 (the four-year anniversary of his abstinence) and following this, the frequency of the screens decreased to fortnightly for three months, and now occur monthly.
[15]Ibid [54].
(d) BK has frequent contact with family members who live in Victoria and New Zealand.[16] BK still wishes to return to New Zealand as soon as possible, which Dr Belshaw reports appears to be a significant motivating factor for maintaining his stability and recovery progress.[17]
[16]Ibid [55].
[17]Ibid [56].
(e) BK has decided not to return to employment, citing a history of difficulties with work in the past and that he was concerned it could cause him stress and jeopardise his recovery.[18] He is able to live off savings and the disability support pension.[19] BK has instead engaged in volunteering at a Chinese temple one to two mornings a week to complete gardening and maintenance work and attend a group meditation.[20]
[18]Ibid [66].
[19]Ibid. Dr Belshaw reports at [68] that BK also received some income from his involvement with the Forensicare Consumer Advisory Group.
[20]Ibid [67].
(f) BK has continued to have issues with his executive dysfunction and impulsivity. Examples of this conduct include:
(i) purchasing another puppy (BK purchased a puppy during his previous grant of extended leave in similar circumstances), which he lost twice before deciding to relinquish from his care;[21]
[21]Ibid [49].
(ii) changing his National Disability Insurance Scheme (‘NDIS’) service provider without consultation with the CTT team;[22]
[22]Ibid [50].
(iii) regularly changing aspects of his routine and requests to the CTT team for support;[23] and
[23]Ibid.
(iv) contacting Victoria Legal Aid about making an application for variation to a NCSO in January this year without discussing this with the CTT team.[24]
(g) In response, the CTT team worked with BK in March this year to write a simple list of instructions for him to follow to better comply with the expectations of extended leave. Positively, since this time, BK has demonstrated less impulsivity and has not exhibited further behaviour of concern.[25]
(h) BK has a NDIS support package which will remain in place if his CSO is varied to a NCSO.[26] He will similarly continue to see his local GP to manage his physical health.[27]
[24]Ibid.
[25]Ibid [51]–[52].
[26]Ibid [58]–[59].
[27]Ibid [61].
Based on a risk assessment with the Historical Clinical Risk Management-20 (‘HCR‑20’) tool, Dr Belshaw considers that BK’s risk of future violence will remain low if the CSO is varied to a NCSO.[28]
[28]Ibid [91].
In preparation for the potential variation to a NCSO, Dr Belshaw reports that BK was referred and accepted into his local public area mental health service in August. BK has been allocated a treating team and has since attended two appointments with that service.[29] The area mental health service, rather than the CTT team, would become his primary treatment team if on a NCSO.[30] In addition, BK would be supervised by Forensicare’s NCSO team with at least three-monthly assessments, and they are able to increase their services if there are any issues.[31] BK has been allocated a NCSO psychiatrist and case manager whom he met in October.[32]
[29]Ibid [62].
[30]Ibid [65].
[31]Ibid [65], [92].
[32]Ibid [63].
Dr Belshaw supports BK’s application to vary his CSO to a NCSO.[33] He concludes by stating:
[BK’s] progress since the 2019 readmission to the TEH had been steadier, underpinned by his commitment to abstinence from substances. Although he had continued to demonstrate impulsivity and poor decision making at times, there had been a gradual improvement in his ability to ignore short term distractions and sustain a longer-term focus on his goal of maintaining wellness and returning to New Zealand to live with his family.
… the preceding 12 months of extended leave should be viewed as a success. [BK’s] mental state has remained stable. He has maintained a low HCR-20 risk rating. There have been no known incidents of substance abuse or alcohol use. I therefore think that [BK] no longer requires the direct oversight of Forensicare’s CTT team and believe that his mental health needs can be met via his existing NDIS, GP, and family supports together with the local [area mental health service] and NCSO teams.
[33]Ibid [101].
In the event that BK is granted a variation to a NCSO, Dr Belshaw recommends a review period of 12 months to allow BK to demonstrate ongoing progress towards his goal of returning to New Zealand, and proposes the following conditions at Appendix 1:
1.That BK be supervised by the authorised psychiatrist of the VIFMH (Victorian Institute of Forensic Mental Health) or their delegate or nominee.
2.That BK resides at a location known and approved by the authorised psychiatrist of the VIFMH or their delegate or nominee.
3.That BK abides by the lawful directions of the authorised psychiatrist of the VIFMH or their delegate or nominee.
4.That BK complies with treatment, testing and attends appointments as directed by the authorised psychiatrist of the VIFMH or their delegate or nominee.
5.That BK abstains from the abuse of alcohol and from the use of illicit drugs.
6.That BK not leave the State of Victoria without the written permission of the authorised psychiatrist or their delegate at the VIFMH. This includes overseas travel, which must be approved by the authorised psychiatrist or their delegate at the VIFMH.
In the event that BK is not successful in his primary application, Dr Belshaw recommends that he be granted a further period of extended leave, subject to the conditions set out in Appendix 2 to the report.
Dr Belshaw supplemented his report with oral evidence. In his evidence, Dr Belshaw reiterated his support for a transition to a NSCO.
Dr Belshaw said:
(a) BK’s mental state has been stable for the preceding 12 months, with no evidence of any early warning signs of a relapse of his chronic psychotic disorder;
(b) BK’s short term relapse into illicit drug use that occurred on extended leave occurred in the context of him living independently with work-related stress and socialising with peers and work colleagues who were abusing substances at the time, and because BK can be socially vulnerable to the activities of peers;
(c) those factors have been reduced in that BK is currently living with his sister who is supportive and pro-social, he is not working but volunteering and has engaged well with treating professionals;
(d) the proposed variation to a NCSO will necessitate a change in his treating team from the CTT team to the local area mental health service, supported by Forensicare’s NCSO team, but the new treatment regime will adequately support BK in the community with appropriate frequency and levels of engagement;
(e) BK’s antipsychotic medication is stable and there are no current plans to alter his dosage; and
(f) BK’s future risk of violence was assessed as low with no evidence of pervasive violent attitudes and a stable mental state with very low risk of becoming non-compliant with medication.
Report of Ms Walsh
Ms Walsh is a senior nurse in the CTT and has been BK’s case manager since November 2022. Her report focuses on BK’s community linkages, family and professional supports, and activities of daily living. Where similar matters are discussed to those covered in Dr Belshaw’s report, they are not repeated in these reasons.
Over the preceding 12 months, BK has engaged well with both the CTT team and his own recovery by attending all scheduled reviews and remaining engaged with community supports.[34]
[34]Report of Ann Walsh, dated 12 October 2023, [45].
BK manages both his finances and self-care independently.[35] There are no anticipated changes to his ongoing rental accommodation with his sister in the foreseeable future.[36]
[35]Ibid [38]–[39].
[36]Ibid [28], [46].
BK has a NDIS plan which funds various support services, including weekly support from a support worker for social outings and errands, fortnightly sessions with a psychologist which he finds to be valuable, nutritional education, personal training, chiropractic treatment and spiritual teaching.[37]
[37]Ibid [13]–[23].
BK has regular telephone or video call contact with his children and parents, who all reside in New Zealand.[38] In November 2022, BK’s parents and children visited from New Zealand and stayed with him and his sister. BK also has close friends in Melbourne who he socialises with regularly. [39]
[38]Ibid [30]–[31].
[39]Ibid [35].
BK has demonstrated good knowledge of the signs and symptoms he previously experienced in relation to his mental health, as well as coping and wellness strategies and who to contact if he needs support and assistance.[40] Ms Walsh supports BK’s application for variation to a NCSO, as he has demonstrated positive progress in the community and there are plans in place to effectively supervise BK on a NCSO.[41]
[40]Ibid [41].
[41]Ibid [47].
Submissions
In written submissions filed on 31 October 2023, the applicant submits that his CSO ought to be varied to a NCSO, which is supported by the opinions of Dr Belshaw and Ms Walsh and more broadly by the evidence in their reports.
In written submissions filed on 31 October 2023, the Secretary supports BK’s application for variation of his CSO to a NCSO. The Secretary submits that BK can be safely managed in the community on a NCSO, pursuant to the conditions outlined in Dr Belshaw’s report. The Secretary submits that having regard to the factors in s 40(1) of the Act and applying the principle in s 39, the Court can be satisfied on the available evidence that BK will not seriously endanger himself or others if his CSO is varied to a NCSO, and that variation of his CSO is the least restrictive option for BK’s autonomy while upholding community safety.
In written submissions filed on 30 October 2023, the Attorney-General submits that the application to vary BK’s CSO to a NCSO ought to be granted, rather than the alternative proposal that a further period of extended leave be granted. The Attorney submits that the Court can be satisfied on the evidence available that the safety of BK and members of the public will not be seriously endangered as a result of his release on a NCSO.
Conclusion
I am satisfied that, having regard to the s 40(1) factors and applying the principle of parsimony in s 39(1), the safety of the community or BK will not be seriously endangered if the CSO were to be varied to a NCSO.
Opinions regarding BK’s diagnoses have varied over time. The contemporary assessment of Dr Belshaw is that BK has an established diagnosis of schizoaffective disorder, chronic neurocognitive deficits, and a history of mild alcohol use disorder and moderate stimulant use disorder (both in sustained remission).[42]
[42]Report of Dr James Belshaw dated 12 October 2023, [93].
The current and unchallenged evidence of Dr Belshaw is that the preceding 12 months should be seen as a success. BK’s attendance at CTT appointments has been excellent, his mental state has been stable and checks indicate he has been fully compliant with taking his prescribed medication. His urine drug screens have been negative. He is volunteering one to two mornings a week. I note that there have been some issues with impulsivity, but these issues have reduced since the CTT team worked with BK to write a simple list of instructions in order to better comply with the expectations of extended leave.
Dr Belshaw’s opinion is that BK’s risk of future violence will remain low if the CSO is varied to a NCSO. I accept Dr Belshaw’s evidence that the reviews of the local area mental health service in concert with support from and liaison with the Forensicare NCSO team will be sufficient to detect any early warning signs of relapse and detect any florid psychotic relapse and associated behavioural disorganisation.
I have had regard to each of the matters in s 40. I note that the index offending was associated with psychotic symptoms. Significantly, the evidence shows that BK has been fully compliant with taking his prescribed anti-psychotic medication, and recognises that compliance with his medication, abstinence from illicit substances and engaging with professional supports helps him to remain stable. There is no recent evidence of psychosis or other mental illness and he has consistently presented as stable. He has strong family support. In addition, conditions can be imposed on the NCSO to ensure some degree of oversight by the Chief Psychiatrist.
Based on the evidence, and the submissions in support of the variation, I am satisfied that BK will not likely endanger himself or another person because of his mental impairment should the variation be made.
The grant of leave is supported by the Attorney-General and the Secretary. BK’s therapeutic progress is very positive. I am comforted by the fact that where issues have arisen they have been addressed by BK alongside the CTT team. The return to the community will never be entirely free from risk, but the risks that do exist appear to be well managed. Keeping BK on a CSO would be counterproductive and limit his ongoing rehabilitation. As already noted, the evidence establishes that the risk to the community and to BK by the variation of the CSO to a NCSO is low, and I am satisfied that there is no serious risk that the community would be seriously endangered.
The CSO will be varied to a NCSO.
The order made an under s 75 of the Act that precludes publication of details identifying BK, his family, or the victims of the index offence should continue in place because I am satisfied that publication would not be conducive to BK’s mental health and would undermine his therapeutic care.
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