Re CC (review)
[2022] VSC 536
•19 September 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S ECI 2019 03433
| IN THE MATTER OF an application under the Crimes (Mental Impairment andUnfitness tobe Tried) Act 1997 |
| and |
| IN THE MATTER OF a review involving CC |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 September 2022 |
DATE OF RULING: | 19 September 2022 |
CASE MAY BE CITED AS: | Re CC (review) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 536 |
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Application determined by consent ‘on the papers’
HER HONOUR:
This is a review of a custodial supervision order (‘CSO’), which was imposed on CC in February 2014, and varied in November 2019.
The index offences occurred in January 2012, when CC and a co-offender attended the deceased’s residence and strangled him to death. They stole various items from the deceased’s residence, before transporting his body in his car to an isolated location, and setting both his body and the car alight.
CC was charged with murder, arson and two counts of theft. Prior to trial, he was assessed as intellectually impaired, with a full scale IQ score of 57. In addition, he demonstrated features suggestive of an acquired brain injury, although the cause of that injury could not be determined with certainty. As a result, the matter proceeded by way of fitness investigation.
On 10 September 2013, a jury found CC unfit to stand trial. Thereafter, I determined that he was unlikely to become fit within the next 12 months.
On 24 September 2013, after a special hearing, a jury found that CC had committed the index offences. That same day, I declared CC liable to supervision under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’).
Thereafter, CC’s suitability for placement in a residential treatment facility or service was assessed and a report provided, together with a certificate of available services under s 47 of the Act. At that time, CC was assessed as not suitable for admission to the Intensive Residential Treatment Program at the Disability Forensic Assessment and Treatment Service (‘the IRTP’), conducted by the department which is now the Department of Families, Fairness and Housing (‘the Department’). His unsuitability at that time was based on his history of violence in residential settings, and the consequent safety risk that his admission would present to staff and fellow residents. Accordingly, the certificate stated that there was no ‘appropriate place’ for CC to be accommodated at that time. That being so, it was conceded by CC’s counsel that there was no practicable alternative to committing CC to custody in a prison.
On 27 February 2014, I committed CC to the custody of the Secretary to the Department of Justice, to reside in a prison. I set the nominal term of the CSO at 25 years, commencing on 11 January 2012.
At the time of so ordering, I declined to set a review period. Instead, I noted that, in the event that CC were to become suitable for placement in a residential program at a future date, he could apply to the court for variation of the CSO under s 31 of the Act.
By 2019, CC had progressed to the point that the mental health professionals believed that his needs and risks could be managed in the IRTP, and he made an application to vary the CSO. Although in 2019 he still presented with a high or moderate risk of violent re-offending, it was clear that a transfer to the IRTP would allow CC a better opportunity to engage in further treatment to address his risk of re-offending, and to do so within a secure environment. A further consequence of such a transfer would be that CC would be able to begin his gradual transition back into the community, with appropriate supports in place to protect people from the dangers posed by him.
Having regard to the expert evidence, and to the considerations under ss 40(1) and 40(2), as well as applying the guiding principle in s 39 of the Act that restrictions on a person’s freedom and personal autonomy should be kept to a minimum consistent with the safety of the community, I determined that it was appropriate to grant the application to vary the place of custody.
Accordingly, on 20 November 2019, I varied the terms of the CSO to require that CC be detained in the IRTP under the custody of the Department. I ordered that there be a review of the CSO no later than September 2022.
The review was listed for hearing on 15 September 2022. CC, the Department and the Attorney-General all supported the CSO being confirmed on its current conditions. CC also sought to have a further review in 12 months’ time, and a suppression order made under s 75 of the Act. All parties consented to the matter being determined ‘on the papers’, without the need for any oral hearing.
As a preliminary matter, I note that the Director of Public Prosecutions has complied with her statutory obligations to notify the family members of the deceased and CC of the review hearing. The sister of the deceased has provided a report, dated 11 August 2022, which sets out the profound effect the offending continues to have on her, as well as her views about the CSO. I have read and considered the report, as required under s 40(2)(d) of the Act.
For the purposes of the review, I have the following evidence before me:
(a) Annual reports from the Department to the court dated 8 October 2020 and 6 October 2021;
(b) A report to the court under s 41(3) of the Act, dated 5 August 2022, prepared by Mr R Gaut, the Disability Justice Coordinator with the Department’s Forensic Disability Services;
(c) A risk assessment report dated 4 August 2022, prepared by Ms S Fernandez and Ms C Jones, clinicians within the same unit; and
(d) An addendum letter to the risk assessment report, dated 17 August 2022, prepared by Ms D Salam, another clinician within the same unit.
Report of Mr R Gaut
According to Mr Gaut, CC has exhibited no significant behavioural issues since his admission to the IRTP.
He has shown improved insight, is receptive to feedback and willing to follow direction. While at times he can be distracted in group settings, or influenced negatively by co-residents, he is working on using learnt strategies to minimise this. In new situations, or if feeling dysregulated, CC may need prompting or assistance from staff.
CC has NDIS funding for specialist support, outreach support, speech therapy and occupational therapy. Engagement with these services has been positive. CC has participated in various interventions while in the IRTP, including programs related to problem solving, alcohol and other drugs, and offending behaviours.
CC participated in a psychiatric review with Dr D Thomas in January 2022. There was no evidence of psychotic symptoms, and it was decided that the frequency of reviews could be reduced from every 6 months to every 12 months.
While at the IRTP, CC has kept in contact with friends over phone and Zoom, and has had regular contact with his sister, and her children. He rekindled a relationship with an old friend, who has been visiting him weekly since February 2022. Despite needing a reminder of IRTP rules on occasion, CC enjoys a close relationship with his friend and adheres to rules during her visits.
Mr Gaut concludes his report by noting that, over the next 12 months, CC will be supported to develop greater adaptive living and social skills, better express himself and regulate emotions, improve insight, address underlying causes of offending, and build on community and family linkages.
Report of Ms S Fernandez and Ms C Jones
Ms Fernandez and Ms Jones are not ordinarily involved in CC’s supervision and treatment, but interviewed him for 90 minutes at the IRTP in June 2022, in order to prepare a risk assessment report. They also reviewed file material, and met with other people involved in his treatment.
CC was cooperative and engaged well during assessment, although there was some impression management and issues with insight. CC tended to minimise his role in the index offence, in favour of being influenced by his partner at the time (who was the sister of his co-offender).
The authors reported that CC was involved in 11 behavioural incidents over the past 12 months. They mostly involved verbal aggression, or making threats, in the context of conflict with a co-resident. CC was also defensive and argumentative towards IRTP staff at times.
Earlier this year, CC was found with a phone with internet access, a debit card and tobacco (all items which are considered contraband). He was found with tobacco again in July 2022. The authors noted that CC tried to minimise and justify possession of the contraband. There have also been issues with CC using blind spots in CCTV coverage to evade staff attention.
CC reported struggling due to conflict with a co-resident, and issues with his son’s living situation. According to clinicians, CC has appeared depressed, irritable and frustrated when specific leave requests have been denied. This has coincided with emotional dysregulation, increase in verbal aggression and threats, and incidences of contraband possession.
CC’s clinicians reported that he engages openly in individual treatment. Despite some minimisation tendencies, he has been able to develop insight. CC reported that discussing perceived antagonisation by a co-resident with his clinicians has been helpful. However, his clinicians note that he has difficulty applying his learnings in everyday scenarios. CC engages well in group activities, if sometimes reserved. He reports keeping physically fit playing soccer and football.
Ms Fernandez and Ms Jones used three clinical models to assess CC’s risk of future offending:
(a) GRAM:[1] this assessed CC’s risk of future violent offending as low compared to other male violent offenders. While this tool has strong predictive validity for general, violent and theft offences in people with an intellectual disability, it is noted that persons convicted of murder tend to have a lower risk of recidivism than other offenders;
(b) ARMIDILO-G:[2] this assessed CC’s overall risk rating and his overall protective rating as moderate. The assessment considers dynamic factors that are either associated with risk of violence, or mitigating risk of violence, within the preceding 12 months; and
(c) HCR-20v3:[3] this tool uses static, historical variables as a baseline for an assessment of risk of future violence, in conjunction with dynamic (clinical and risk management) factors. The clinical factors relate to the past six months, and the risk management factors are forward looking, considering the next month. Assessment using this tool found CC’s risk of violent recidivism to be moderate.
[1]The Group Risk Assessment Model is an actuarial offender risk assessment tool designed to estimate risk of general recidivism over a two-year period. The tool utilises scores from four weighted static factors: gender, age, number of offences in the last five years, and Aboriginal heritage.
[2]Assessment of Risk and Manageability for Individuals with Developmental and Intellectual Limitations who Offend- General Version.
[3]Historical Clinical Risk – 20 Version 3.
Ms Fernandez and Ms Jones noted that CC had an unstable childhood, characterised by violence and abuse. This likely impacted his ability to trust others and led to antisocial and violent behaviour, exacerbated by his ABI and intellectual disability. His experiences with transient education and accommodation also likely impacted his ability to form pro-social relationships. His poor impulse control and desire to fit in suggests that his past criminal behaviour may have been a means to form social attachments.
To address future risk, Ms Fernandez and Ms Jones recommended that:
(a) CC continue individual and group treatment;
(b) Clinicians encourage and assist CC to apply learnt strategies, and make sure the connection between treatment gains and community transition is clear to him;
(c) Current strategies be reviewed with CC and, if necessary, reworked;
(d) CC be encouraged to share concerns regarding co-residents with unit staff, and a safety plan be developed to assist CC in dealing with conflict on the unit; and
(e) CC be supported to share more about his upbringing and experiences with family, in order to assist him in developing positive relationships moving forward.
Letter of Ms D Salam
The addendum letter of Ms Salam was provided due to new information received following the initial risk assessment report, which required reconsideration of certain risk factors. Although Ms Salam wrote the letter, she said that the risk ratings were made by Ms Fernandez and Ms Jones.
Ms Salam noted that CC was found with a smart phone on 12 August 2022, which he told staff he had had for the past year. This is a breach of IRTP policy. CC was resistant to giving the phone to staff, and refused to unlock it. IRTP staff were unable to confirm how long CC had been using the phone for, or for what purpose.
Ms Salam believed CC’s issues with rule-breaking reflected his poor responsibility-taking and limited internalisation of learnt strategies. Despite saying that he is responsible for his actions and understands the consequences, CC has often made justifications or attempts to blame others for his behaviour. He has been provided with clear guidance and support to achieve his goals, but has begun to express dissatisfaction with the IRTP, feeling the service is deterring his progress in spite of his rehabilitation.
While CC has progressed through three out of four stages of the IRTP treatment model, Ms Salam believed that his progress has been ‘somewhat superficial’. Although he has consistently attended sessions, demonstrated insight into concepts and an ability to reflect and problem solve, his possession of contraband reflects practical difficulties applying what he learns and a tendency to achieve goals using anti-social means. Although CC has not exhibited any concerning behaviour when accessing the community, Ms Salam believed that any progression in treatment will be linked to an ability to apply learned strategies to different situations.
The addendum letter of Ms Salam, while not intended to form a new risk assessment, involved a reconsideration of some risk factors based on the new rule-breaking information. While there were some changes to discrete risk factors within the assessments, the overall risk assessment was unchanged.
Conclusions
Based on all of the evidence, I am satisfied that it is appropriate to confirm the CSO on its current terms.
I propose to order a further review in two years’ time. There is nothing in the materials before me to suggest that the review should only be in 12 months’ time, as requested by CC. Annual reviews are time-consuming and costly, for everybody involved in them, and should not simply be ordered automatically without some clinical basis for doing so. It is clear that there is still much work for CC to do, before he will be suitable for a reduction in the level of supervision. Ordering a review in two years’ time does not preclude CC from making an application for extended leave before then, if he progresses more quickly than seems likely to me at present.
The IRTP is a short-term residential facility, and a person cannot stay there for a period exceeding 5 years.[4] If CC is not on extended leave or a non-custodial supervision order by the expiry of the 5 year period, he will need to be transferred back to prison, unless the Department has another appropriate place to accommodate him. I accept that the next couple of years are a critical time to test CC’s ability to start reintegrating into the community. The evidence is that media scrutiny could be particularly harmful to CC’s rehabilitation at this stage.
[4]Disability Act 2006, s 151(4).
I am satisfied that it is in the public interest to make an order under s 75(1)(c) of the Act, preventing publication of any information that might enable CC to be identified. The order will last until the earliest to occur of the date of the next review hearing or further order.
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