Re Cja
[2021] VSC 86
•2 March 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2011 04219
| IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| and |
| IN THE MATTER of an Application by CJA |
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JUDGE: | BEACH JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 March 2021 |
DATE OF JUDGMENT: | 2 March 2021 |
CASE MAY BE CITED AS: | Re CJA |
MEDIUM NEUTRAL CITATION: | [2021] VSC 86 |
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CRIMINAL LAW – Mental impairment – Non-custodial supervision order – Application for revocation of non-custodial supervision order – Review of non-custodial supervision order – Principles to be applied – Requirement for court to apply principle that restriction on freedom and personal autonomy should be kept to the minimum consistent with the safety of the community – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss 31, 33, 39 and 40.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Attorney-General of Victoria | Dr M Taylor | Victorian Government Solicitor’s Office |
| For the Secretary to the Department of Health | Mr D Bruno | Department of Health |
HIS HONOUR:
In 1973, some 48 years ago, the applicant was arrested and charged with the murder of his father and his stepmother.[1] Shortly after his arrest, he was certified pursuant to the provisions of the Mental Health Act 1959. The applicant’s murder trial came on for hearing in 1976. He was found not guilty by reason of insanity. After the jury delivered its verdict, the trial judge, Lush J, ordered the applicant to be kept in strict custody until the Governor’s pleasure was known.[2]
[1]This proceeding is subject to a non-publication order under s 75 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 suppressing any matter that might directly or indirectly enable identification of the applicant or his place of residence, victims of the index offences or their former place of residence, or identification of any member of the family of the applicant or the victims.
[2]See s 420 of the Crimes Act 1958.
On 18 April 1998, upon the commencement of sch 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’), the applicant was deemed to be the subject of a custodial supervision order under the Act.[3] The nominal term of the applicant’s custodial supervision order was 25 years.[4] The nominal term expired in 2001, some 20 years ago.[5]
[3]Schedule 3 was given effect by s 89 of the Act.
[4]See cl 2(2) of sch 3 and s 28 of the Act.
[5]See cl 2(4) of sch 3 of the Act.
In compliance with the terms of the Act, major reviews of the applicant’s custodial supervision order were conducted by this Court in 2001, 2006, 2011 and 2017.[6] On 14 March 2017, the applicant was first granted extended leave for 12 months. Further periods of extended leave, of 12 months, were granted on 14 March 2018 and 12 March 2019. On 4 March 2020, on the application of the applicant, this Court varied the applicant’s custodial supervision order to a non-custodial supervision order.[7]
[6]The review in 2017 commenced within the relevant 5 year period in 2016, but was subsequently adjourned and not completed until 2017.
[7]Re CJA [2020] VSC 90.
The circumstances giving rise to the applicant’s trial, his time in custody and his subsequent treatment and progress up to 2 March 2020 are set out in the judgments of the Court delivered at the times of the major reviews and applications to which I have just referred.[8] Save to the extent they are referred to below, it is not necessary to rehearse those matters further in these reasons.
[8]See Re [CJA] [2001] VSC 147R (Kellam J); Re [CJA] [2006] VSC 371R (Kellam J); Re [CJA] [2011] VSC 462R (Beach J); Re [CJA] (Unreported, Supreme Court of Victoria, Beach JA, 14 March 2017); Re CJA [2018] VSC 112 (Beach JA); Re CJA [2019] VSC 149 (Beach JA); Re CJA [2020] VSC 90 (Beach JA).
The applicant now applies for an order under s 31 of the Act that his non-custodial supervision order be revoked, as contemplated by s 33 of the Act.
As was required by s 38B of the Act, notice of the applicant’s application was given to the Director of Public Prosecutions, the Attorney-General and the Secretary to the Department of Health. Section 38C of the Act then required the Director to give notice of the application to ‘each family member of the person’ and ‘each victim of the offence with which the person was charged’. Prior to the hearing, the Director filed an affidavit, sworn by the solicitor in the Office of Public Prosecutions having the care of this proceeding on her behalf, demonstrating her compliance with s 38C of the Act.
Pursuant to ss 42 and 43 of the Act, family members of the applicant and the relevant victims of the offences with which he was charged are entitled to make a report to the Court in relation to the present application. In the present case, no report has been received by the Court from any such person.
Prior to the hearing of this application, the Attorney-General and the Secretary to the Department of Health, who had each been provided with the relevant material in relation to the applicant and his current application, advised the Court of their response to the present application. Each submitted that the applicant’s non-custodial supervision order ought to be revoked. While s 37 of the Act permitted the Director to appear on the application, prior to the hearing she advised the Court that she would not appear unless required by the Court, or requested to do so by one of the parties.
Relevant legislative provisions
The application to revoke the non-custodial supervision order is governed by s 33 of the Act. Section 33(1) relevantly provides:
(1)On an application under section 31 for variation or revocation of a non-custodial supervision order or on a review of a non-custodial supervision order directed under section 27(2) or on a further review of a non-custodial supervision order directed under subsection (2) or section 32(5), the court must, by order—
(a)confirm the order; or
(b)vary the conditions of the order; or
(c)vary the order to a custodial supervision order; or
(d)revoke the order.
The principles to be applied in deciding whether to revoke a non-custodial supervision order or to grant a period of extended leave are contained in s 39(1) of the Act. That section requires the Court to apply the principle ‘that restrictions on a person’s freedom and personal autonomy should be kept to a minimum consistent with the safety of the community’.
Section 40(1) requires the Court, in deciding whether or not to vary a custodial supervision order, or to grant extended leave, to have regard to:
(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.
Additionally, s 40(2) provides that the Court cannot order a person to be released from custody, or significantly reduce the degree of supervision to which that person is subject, 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
(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 evidence
On the hearing of the application, the following reports were tendered:
·a report from Dr Ria Zergiotis,[9] a consultant forensic psychiatrist, who is currently the applicant’s supervising psychiatrist at Forensicare;
·a report from Dr Anne-Marie Keogh,[10] a psychiatrist with the St Vincent’s Aged Persons’ Assessment and Treatment Team (‘APATT’), who first saw the applicant in November 2019; and
·a report from Russell Leaney,[11] a registered psychiatric nurse, who is the applicant’s case manager within APATT.
Dr Zergiotis’ evidence
[9]Dated 15 January 2021.
[10]Dated 27 January 2021.
[11]Dated 27 January 2021.
Dr Zergiotis has been the applicant’s supervising psychiatrist at Forensicare since his transition to the NCSO.[12] She has previous involvement in his care, as treating psychiatrist, between 2013 and 2015. Her report satisfies the requirements under ss 40(2)(a) and (ab) of the Act.
[12]Non-custodial supervision order.
Since the applicant’s transition to the NCSO, he has been reviewed by Forensicare clinicians on three occasions — each time by telephone due to COVID-19 restrictions. Notwithstanding the limitations of this mode of review, Dr Zergiotis sets out the following with respect to the applicant’s progress during the relevant period:
·The applicant has been fully compliant with the conditions of his NCSO over the last 12 months.
·The applicant’s schizophrenia has remained in sustained remission. He continues to be treated with 15mg of antipsychotic medication, olanzapine, on a nightly basis.
·The applicant continues to reside at a stable facility where he has resided for some time. Dr Zergiotis is of the view that the applicant’s accommodation ‘provides a protective level of support and social interaction for him’. The applicant intends to reside at his current residence permanently.
·The applicant engages well with his treating team and demonstrates a good level of insight, in that he understands that he has a chronic mental illness that requires medication. In Dr Zergiotis’ opinion, the applicant’s anxiety has not impacted on his community transition or recovery. He has maintained a stable mental state during periods of COVID-19 restrictions.
·The applicant’s only concerning physical health issue is his obesity, with his weight having increased due to him being less physically active during COVID-19 restrictions. This, and other aspects of the applicant’s physical health, continues to be monitored by a visiting general practitioner.
While the applicant’s baseline level of risk is moderate due to his historical risk factors, Dr Zergiotis does not identify any current or future risk management factors of concern. She notes that the applicant has ‘developed more adaptive ways of coping with stress, such as communicating his needs and concerns openly with members of the treating team’. She considers that the applicant’s overall risk of future violence is low insofar as he remains engaged with assertive psychiatric treatment. Importantly, this assessment extends to a scenario in which the applicant’s NCSO is revoked, particularly given what Dr Zergiotis considers the NCSO’s ‘less significant oversight role’ in risk mitigation.
With reference to the applicant’s sustained stable mental state; remission of illness; insight; and good engagement with his treating team, Dr Zergiotis believes that the applicant’s risk of harm to himself and others will remain low if his NCSO is revoked. In her report, Dr Zergiotis said that she is supportive of the revocation of the NCSO.
In oral evidence, Dr Zergiotis said that she had reviewed the applicant at a face-to-face review last Thursday (25 February 2021). The review was conducted with ‘the senior NCSO clinician, Ms Nicole Barnes’. Dr Zergiotis said that the applicant presented as ‘very well’, and that his mental state was stable. She said:
[The applicant] presented as very relaxed about the upcoming hearing. He self-initiated the application for revocation and it strikes me that I think it’s indicative of how well supported he feels at [the residential facility in which] he resides and how well engaged he is with the St Vincent’s team that he feels he’s at a stage now in his rehabilitation pathway where he doesn’t see the support of Forensicare as required. And I think that’s very, very impressive and I was quite struck by that in my review last Thursday.
Dr Zergiotis gave evidence that the applicant had made much progress, ‘since being transitioned to the community back in 2017’. She also gave evidence of the possibility of a reduction in restrictions as being therapeutically beneficial, noting that the applicant’s restrictions had been reduced ‘in a very graduated, considered way’. She concluded her evidence by saying that she thought that the applicant had ‘really made excellent progress on extended leave, and [had] also continued that progress over the last 12 months on the non-custodial supervision order.’
Dr Keogh’s evidence
Dr Keogh is the applicant’s treating psychiatrist at St Vincent’s APATT. She has been involved in the applicant’s care since November 2019, when the applicant commenced his transition to the community in preparation for his NCSO application. Dr Keogh reviews the applicant approximately every three months, which, during the pandemic, has included both telehealth and face-to-face appointments.
In her report, Dr Keogh notes the following:
·The applicant’s mental state has remained stable while engaged with the APATT, with no evidence of psychotic symptoms over that time. The applicant has a good understanding of his medications and is compliant with same.
·The applicant expressed some realistic concerns regarding the COVID-19 pandemic and as a result was cautious to attend some of the groups at his current residence. However, he was relieved that there were no cases of the virus in his residence, and going forward is eager to participate in more group activities.
·The applicant otherwise reports feeling comfortable at his current residence; has enjoyed the group activities he has participated in; and has more recently increased his social interactions with other residents.
·The applicant exhibited some anxiety about the present court hearing, citing concerns that he could be ordered to return to a forensic hospital setting. The applicant accepted reassurance about his positive progress in the community and was comforted by the fact that his case manager, Mr Leaney, would be in attendance at the hearing.
·The applicant’s current residence provides a high degree of structure for the applicant, with staff able to monitor changes in his behaviour and engage the APATT where necessary.
·The APATT can offer ongoing support to the applicant, including contact with his case manager every two to three weeks, and psychiatric reviews every three months. There is scope to increase the frequency of contact as required.
Dr Keogh’s report does not include a structured risk assessment (such as the HCR-20, as administered by Dr Zergiotis). However, noting the applicant’s stable mental state and his longstanding remission of psychotic symptoms, Dr Keogh does not believe that the applicant poses a significant danger to either himself or the community. If the NCSO is revoked, he will continue to have access to his structured and supported living environment. He will also receive ongoing case management from the APATT.
Notwithstanding previous concerns that the applicant may struggle to transition away from the familiarity of Forensicare, Dr Keogh believes that the applicant is now at a juncture in his transition where he would ‘probably’ be comfortable with his treatment being administered exclusively by the APATT. While suggested as being appropriate, Dr Keogh’s report did not expressly state that the revocation of NCSO was supported by her.
In oral evidence, Dr Keogh said that she supported the revocation of the applicant’s NCSO. She was asked questions about what might happen if there were to be any change in the applicant’s mental state. She described treatment options that would be available for the applicant, including appropriate inpatient treatment, which was available in the community. She said, however, that she thought that any change that might require such treatment was unlikely.
Mr Leaney’s evidence
Mr Leaney is a psychiatric nurse within St Vincent’s APATT. He has been the applicant’s case manager since late 2019.
Mr Leaney’s highlights the following matters in his report:
·The applicant currently attends fortnightly case management meetings with Mr Leaney. He presents as stable; shows a level of insight into his condition; co-operates with psychiatric monitoring; and shows no signs of psychotic symptoms.
·The applicant’s medication regime is supervised by the nurses at his residence, and he is fully compliant with same.
·No issues of concern have been raised in Mr Leaney’s consultations with the applicant’s carers or general practitioner.
·The applicant is well supported at his residence and has expressed a liking for his living conditions. He has developed healthy strategies for coping with everyday life, and he maintains a well-ordered routine. This includes participating in both group and solitary activities. While the applicant is protective of his privacy, he does have a small circle of friends with whom he feels confident.
·APATT can continue to provide the applicant with case management and monitoring if his NCSO is revoked. If this were to occur, and any mental state change or deterioration were noted, the applicant would have access to a prompt review by an APATT clinician. The applicant would also have access to the APATT intensive care team should the need arise, and can be admitted to the Normanby Unit at the St George’s hospital as an involuntary patient if he is considered to be at risk.
Mr Leaney’s report is supportive of the revocation of the NCSO.
Analysis
In NOM v Director of Public Prosecutions,[13] the Court of Appeal observed that s 39 of the Act requires a value judgment informed by the competing considerations stated in the provision, and s 40(1) requires an evaluation of the person’s mental condition and progress and an assessment of risk against the discrete but interrelated criteria set out therein. As the Court observed, these assessments call for value judgments in respect of which there is room for reasonable differences of opinion.[14]
[13](2012) 38 VR 618 (‘NOM’).
[14]Ibid 633 [47].
As I have already noted, the report of Dr Zergiotis satisfies the requirements under ss 40(2)(a) and (ab) of the Act. In conformity with s 40(2) of the Act, I have considered that report, together with the other reports to which I have also already referred. Additionally, I am satisfied that the applicant’s family members and victims of the offence have been given reasonable notice of the hearing of this application as required by s 40(2)(c) of the Act. There are no reports of the kind referred to in s 40(2)(d), and (having regard to all of the material to which I have already referred) I do not believe it necessary to obtain any further reports as referred to in s 40(2)(e) of the Act.
I have had regard to each of the matters set out in paras (a)–(e) of s 40(1) of the Act. Additionally, under s 40(1)(f) I have had regard to whether the safety of the applicant or members of the public would be endangered as a result of the revocation of the non-custodial supervision order.[15]
[15]Cf s 32(2) of the Act, noting the absence of an equivalent of that subsection in s 33. See further, Hammond (a pseudonym) v Secretary to the Department of Health and Human Services [2018] VSCA 356; Re CJA [2020] VSC 90, [34]–[36].
The applicant is now aged 69. He suffers from a number of physical ailments, for which he receives appropriate treatment. He is well placed and stable in the residential facility, where he has been for some time and where he will likely remain for the balance of his life.
While one might never be able to say definitively that the applicant could never pose any danger to himself or others, the evidence discloses that any such risk is now very unlikely to materialise.[16] As Dr Zergiotis put it, the applicant’s risk for future violence remains low; and a potential scenario leading to such an outcome would include ‘a series of unlikely events, which could include disengagement from assertive psychiatric care, non-compliance with antipsychotic medication, relapse to alcohol abuse, or sustained psychosocial stressors’. It is to be noted that there has been no history of any such matters for many years.
[16]Cf s 40(1)(c) and (d) of the Act.
Moreover, the evidence discloses (and in particular the evidence of Dr Keogh) that there are more than adequate resources available for the treatment and support of the applicant in the community in the unlikely event of any change in the applicant’s mental state.[17] For completeness, I should also note the submission advanced by counsel for the Secretary that the provisions of the Mental Health Act 2014 would also be sufficient to contain any risks which might emerge. No party or witness sought to cavil with that proposition.
[17]Cf s 40(1)(e) of the Act.
Having had regard to all the matters to which I have referred, and applying the principle that restrictions on freedom and autonomy should be kept to a minimum consistent with the safety of the community, I am satisfied that it is now appropriate to revoke the applicant’s non-custodial supervision order. The evidence is all one way in that regard. Moreover, the revocation of the NCSO is supported by the applicant’s treating team and those who have examined him and who know most about him.
Additionally, as I have already observed, having analysed the material for themselves, the Attorney-General and the Secretary to the Department of Health both submit that the non-custodial supervision order ought to be revoked. While the views of the Attorney-General and the Secretary, cannot be determinative in the proper application of the provisions of the Act to the applicant and his circumstances, the absence of any material of submissions in opposition from parties that might be expected to produce such material is not without significance.
Conclusion
There will be an order revoking the applicant’s non-custodial supervision order. The order made under s 75 of the Act[18] will remain in force.
[18]See n 1 above.
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