Re CJC
[2019] VSC 508
•31 July 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2019 01665
| IN THE MATTER of an application pursuant to s 57(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 | |
| - and – | |
| IN THE MATTER of an application for extended leave by ‘CJC’ | |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 July 2019 |
DATE OF JUDGMENT: | 31 July 2019 |
CASE MAY BE CITED AS: | Re CJC: An application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
MEDIUM NEUTRAL CITATION: | [2019] VSC 508 |
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CRIMINAL LAW – Mental impairment – Application for extended leave pursuant to s 57 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Whether granting the applicant extended leave on the conditions proposed would seriously endanger the safety of the applicant or a member of the public – Two psychiatrists and a senior social worker supportive of application – Application supported by Secretary to Department of Health and Human Services and Attorney-General – Application granted – Conditions imposed on extended leave in accordance with leave plan.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Secretary of the Department of Health and Human Services | Ms E Frawley | Department of Health and Human Services |
| For the Attorney-General | Ms M Pekevska | Victorian Government Solicitor’s Office |
| For the Director of Public Prosecutions | Ms L Wilkinson | Office of Public Prosecutions |
HER HONOUR:
On 28 May 2007 the applicant killed his father by stabbing him in the chest with a knife. The applicant, a schizophrenic, was severely psychotic at the time.
Following his presentation to this court on a single count of murder, the applicant was, on 27 October 2008, found unfit to stand trial. On 28 October 2008, Osborn J directed a verdict of not guilty by reason of mental impairment be entered in relation to the count of murder. On 31 October 2008, his Honour declared the applicant liable to supervision under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘Act’) and placed him on a custodial supervision order (‘CSO’) for a nominal term of 25 years, with a commencement date of 29 May 2007.[1]
[1]R v CJC [2008] VSC 488R.
Pursuant to the CSO, the applicant was committed to the custody of the Victorian Institute of Forensic Medical Health (‘Forensicare’) and admitted to the Thomas Embling Hospital (‘TEH’). He is deemed to be in the custody of the Secretary to the Department of Health and Human Services (‘Secretary’).[2]
[2]The Act, s 26(8).
Application
Having remained at TEH as a forensic patient since the CSO was made, the applicant now applies for a grant of extended leave[3] to be absent from the TEH.[4] A leave plan proposed by Dr James Belshaw, the applicant’s treating forensic psychiatrist, has been filed.[5] Under that plan, the applicant would, if successful in this application, reside at the Community Care Unit (‘CCU’) in Camberwell for the next 12 months.
[3]The term ‘extended leave’ is defined in the Act, s 56.
[4]The application is made pursuant to the Act, s 57(1)(a).
[5]The Act, s 57A.
As required by the Act, notice of the application was given to the Secretary, the Attorney-General and the Director of Public Prosecutions (‘DPP’). Each of the Secretary and the Attorney-General support the application. The role of the DPP is limited to establishing that notice of the hearing was given to family members and victims.[6] The DPP was not required to and did not make submissions as to the substantive issues.
[6]The Act, ss 38C and 40(2)(c).
Relevant Legal Principles
Section 56 of the Act defines ‘extended leave’ to mean leave for a forensic patient to be absent from the place of custody for the period, not exceeding 12 months, and subject to conditions, if any, fixed by the court.
Section 57(2) establishes that the court may grant an application for extended leave if satisfied on the evidence available that the safety of the applicant or members of the public will not be seriously endangered as a result of the applicant being allowed extended leave.
The meaning of ‘serious endangerment’ encompasses both the probability that a harmful event might occur and the gravity of the harm in that eventuality. The oft-cited illustration of this concept is that a highly probable risk of minor harm might not amount to serious endangerment whereas a mathematically improbable risk of grave harm might do so.[7]
[7]NOM v DPP [2012] VSCA 198, [63] (Redlich and Harper JJA and Curtain AJA) (‘NOM’) citing with approval In the Matters of Major Reviews of Percy, Farrell and RJO [1998] VSC 70, [56] (Eames J).
That said, the fulcrum of the concept of endangerment is the probability of risk; the focus is upon the likelihood of some harm materialising:
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. In the absence of any parliamentary guidance on the meaning of the word, this much is clear from the term’s ordinary and literal meaning. … The ordinary meaning of endangerment entails the concept of chance or risk.[8]
[8]NOM, [58]. Their Honours were considering the meaning of ‘endangerment’ in s 40(1)(c) of the Act.
If satisfied that a grant of extended leave will not endanger the safety of the applicant or that of the public, the court may grant extended leave. In considering whether to do so, the court must apply the principle of parsimony enshrined in s 39(1) of the Act. Additionally, the court must have regard to the list of matters specified in s 40(1) of the Act.
As stated by the Court of Appeal in NOM:
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 inter-related 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. The discretionary character of the decision is not displaced by the mandatory requirements that the judge ‘must apply’ the principle in s 39 or ‘have regard to’ the factors in s 40.[9]
[9]NOM, [47].
As recently explained by Macaulay J,[10] this passage was referred to by the majority in Hammond v The Secretary to the Department of Health and Human Services & Ors,[11] which considered the combined operation of ss 32(2), 39 and 40(1) of the Act. Section 32 permits the court to vary a custodial supervision order to a non-custodial supervision order or otherwise confirm the existing order. Like s 57 it employs the concept of serious endangerment. But, unlike s 57, the test is expressed in the negative. That is, it provides that a court must not vary an order to a non-custodial supervision order unless satisfied 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 non-custodial supervision order.
[10]Re GB: An application under the Crimes (Mental Impairment and Unfitness to be Tried) Act1997, [2019] VSC 4, (‘GB’)
[11][2018] VSCA 356, (‘Hammond’)
His Honour concluded that the difference in statutory expression between ss 57(2) and 32(2) of the Act was immaterial with respect to the application of the principle in Hammond, such that the method described in that case applied to the combined operation of ss 57(2), 39 and 40. That is, in relation to an application for extended leave, the court must consider the ‘critical issue’[12] as to whether it is satisfied that the safety of the community or the applicant will not be seriously endangered if the application is granted and, when doing so, take into account the s 40(1) factors and apply the principle in s 39.[13]
[12]Hammond, [44].
[13]GB, [21]-[22].
I adopt and apply this conclusion.
Reports from Medical Practitioners and the Applicant’s Supervisor
Section 40(2) of the Act provides that the court cannot significantly reduce the degree of supervision to which the applicant is subject – which includes through a grant of extended leave – unless it has obtained and considered the material specified in that sub-section.
Three reports and other material have been tendered to the court in compliance with this section.
The reports are of Dr James Belshaw, a consultant forensic psychiatrist and the treating psychiatrist of the applicant since June 2018, Dr Gideon Dubow, a consultant forensic psychiatrist and formerly the treating psychiatrist of the applicant from February 2016,[14] and Ms Hillary Aldenhoven, a senior social worker and case manager of the applicant since October 2018.[15]
[14]The Act, s 40(2)(a).
[15]The Act, s 40(ab).
Additionally, Dr Belshaw provided a leave plan.[16]
[16]The Act, s 40(da), 57A.
Dr Belshaw’s report is dated 20 June 2019.[17] Dr Belshaw works within Forensicare’s Community Treatment and Transition Team (‘CTT’). He has interviewed the applicant on nine occasions between 15 May 2018 and 4 June 2019. One of those occasions included a family meeting with the applicant’s mother and another two occasions included visits to the CCU, where the applicant presently resides three nights per week. Dr Dubow’s report is dated 29 May 2019.[18] Dr Dubow works within the Bass unit of TEH, where the applicant is resident.
[17]Exhibit A.
[18]Exhibit C.
In their reports, each doctor gave a detailed history of the applicant, extending to his personal background, his diagnosis of schizophrenia, the connection between that illness and the index offence and the detail of his trajectory of mental health and treatment while at TEH. Both doctors discussed the conditions under which the applicant is currently supervised and those that would apply were he to be successful in this application.
Dr Belshaw and Dr Dubow also explained their assessment of the risk the applicant would pose to the community and himself were he to be granted extended leave on those conditions. In short, each considers that under the rubric of the proposed extended leave plan the risk that the applicant would harm other members of the community or himself is low. Each doctor supports the application for extended leave.
The report of Ms Aldenhoven is dated 28 June 2019.[19] Medical opinions aside, it largely addresses the same issues as those of the psychiatrists. Ms Aldenhoven, too, supports the applicant’s application for extended leave.
[19]Exhibit B.
Each of Dr Belshaw and Ms Aldenhoven were examined and cross-examined at the hearing of the application. Dr Dubow was present, but not required to give oral testimony.
Notification of Family Members and Victims
The court has received four affidavits concerning the discharge of the DPP’s obligation to notify the family members of the applicant and the victims of the offence with which the applicant was charged.
The affidavit of Ms Julie Carpenter of the Office of Public Prosecutions (OPP) of 11 July 2019 states that the victims of the applicant’s act of 28 May 2007, as known to the OPP, are the siblings of the deceased (being three sisters and one brother), and the wife of the deceased (who is also the mother of the applicant). The affidavit stated that the OPP had contacted one sister of the deceased (‘V’) by telephone on 1 July 2019 and was informed that V would receive correspondence on behalf of her other two sisters, but that she was not in contact with her brother and ‘did not want to bother him’.
The affidavit of 11 July 2019 advised that in accordance with section 38C of the Act a letter was forwarded to the victims and family members to advise them that: an application for extended leave had been made by the applicant; the application would take place in the Supreme Court at Melbourne on 16 July 2019; and they may make a report to the court regarding the conduct of the applicant and the impact of his conduct on them. This notification was performed by way of one letter to addressed to V alone, but intended for all of the sisters, and a letter to the wife of the deceased.
The affidavit of Ms Louise Wilkinson of the OPP of 16 July 2019 states that Ms Wilkinson had held a telephone conversation that day with V who had informed her that ‘she had told her 2 sisters about the hearing shortly after she received the letter from the OPP on 3 July…that she gave them a copy of the letter 3 days ago and … that they didn't want to know about it’. The affidavit stated that V had advised that she would not to put in a report to the Court. The affidavit also stated that V declined to give the name or contact details of the deceased’s brother to the OPP, and that the OPP was not aware of these details.
At the hearing of the matter on 16 July 2019 the parties were reminded of the obligation to comply with the Act’s notification requirements. I ordered that the DPP file a further affidavit setting out compliance steps under s 38C of the Act within seven days, and abridged the notice period in s 38C(3) to 24 hours, with the matter to remain part heard until the Court was satisfied that the notification requirements had been satisfied.
A further affidavit of Ms Louise Wilkinson of the OPP of 19 July 2019 states that the OPP obtained the contact details of the deceased’s other two sisters and brother on 16 July 2019, and sent them each a letter in accordance with s 38C of the Act to advise them that: an application for extended leave had been made by the applicant; the Application was heard in the Supreme Court at Melbourne on 16 July 2019; and they may make a report to the court within 7 days regarding the conduct of the applicant and the impact of his conduct on them. The affidavit stated that a search of the Australia Post tracking facility indicated that the letters were delivered on 17 July 2019.
The affidavit of 19 July 2019 further confirmed that the other two sisters of the deceased had contacted Ms Wilkinson on 17 and 18 July 2019, to advise respectively that one sister had received the letter addressed to her (the affidavit is silent as to whether that sister said anything further), and that the other sister had received the letter addressed to her and ‘did not intend to do anything further’.
A third affidavit of Ms Louise Wilkinson of the OPP, dated 24 July 2019, states that further to the affidavit of Ms Carpenter sworn on 11 July 2019 and affidavits sworn by Ms Wilkinson on 16 and 19 July 2019, no reports have been received from any of the victims or family members.
I consider the requirement under s 38C to notify the family members of the applicant and the victims of the offence with which the applicant was charged to have been met.
Applicant’s Personal Background
The applicant’s personal history is summarised in reports of Dr Belshaw, Dr Dubow and Ms Aldenhoven.
The applicant is now 35 years of age. He is an only child, conceived by in vitro fertilisation. He achieved good Year 12 results at St Joseph’s College and began, but did not complete, a Diploma of Accounting at Victoria University. The applicant was also a keen basketball player.
The applicant’s mother reported him as having been a gentle, earnest and hard-working young man, and as being close to his father. She acknowledged that the applicant’s father did, on occasion, drink to excess. And, there is some indication of conflict between father and son.
The applicant’s general level of functioning began to decline in 2004, the year of his first recorded contact with mental health services.
In that year, the Bendigo Crisis and Assessment Team was contacted after a verbal altercation between the applicant and his father. The next recorded contact with mental health services was in 2006. In March of that year the applicant was assessed at the Koonung Clinic and thought to be psychotic. He declined treatment. In September 2006 he was again seen at Koonung Clinic and again declined follow up. His then symptoms were suggestive of auditory hallucination and perplexity.
In November 2006 the applicant was admitted to the psychiatric unit of the Royal Prince Alfred Hospital in Sydney. He suffered grandiose delusions. He returned to live with his parents and commenced treatment at Koonung Clinic on an involuntary basis on a Community Treatment Order.[20]
[20]Exhibit C, [17]; Exhibit B, [9].
In 2007 the applicant was being treated with Risperidone, an intramuscular antipsychotic medication administered fortnightly, the dosage of which was increased to 37.5 mg on 28 May 2007. Dr Belshaw describes this dosage as ‘moderate’.[21]
[21]Exhibit A, [28].
The evidence shows that at this time the applicant’s engagement in treatment was marked by poor compliance, limited insight and ongoing alcohol and illicit drug abuse. But, as Ms Aldenhoven notes, the applicant’s level of prescribed medication may not have been at a sufficient therapeutic level to manage his symptoms.[22]
[22]Exhibit B, [9].
The Index Offence
In the months leading up to the May 2007 offence, there had been increased conflict between the applicant and his father.
On 28 May 2007, the applicant was reviewed by his case manager at Koonung Clinic and received an injection of Risperidone at the moderate dosage. He then consumed about 17 glasses of beer before returning to his family home. He took a knife from the kitchen, walked upstairs and stabbed his sleeping father once in the chest.
When police arrived, the applicant said that he had stabbed his father. At the time, the applicant was suffering auditory hallucinations and wondered if his father might have been part of a conspiracy to rape a female acquaintance.
Approximately a year after the index offence, in May 2008, the applicant was able to give some coherent narrative of it. He said he stabbed his father because he thought a woman he met in a bar was going to be raped and his father was somehow linked to that eventuality. The applicant later repeated to a psychiatrist that he had stabbed his father in the low right side of the abdomen.
Treatment and Behaviour at TEH
Upon his arrest, the applicant was taken first to the Melbourne Assessment Prison, where he presented as profoundly psychotic and suffering from severe schizophrenic illness. As Dr Dubow writes:
He was perplexed, thought disordered, and deluded and he was unable to give an intelligible account of what had happened or why he had killed his father. It appears that he was too thought disordered to give a comprehensible account of his delusional beliefs.[23]
[23]Exhibit C, [25].
The applicant was transferred to an acute unit at TEH on 12 June 2007. He presented as very psychotic.[24] He was treated with several antipsychotic medications, including Risperidone and Aripiprazole. In November 2007, he was commenced on Clozapine, a medication reserved for ‘treatment resistant’ schizophrenia. That was titrated to a relatively high treatment dose of 700 mg. The applicant’s mental state gradually improved. On 22 July 2008, the applicant was transferred to the Bass unit, a sub-acute unit, at TEH.
[24]Exhibit A, [34].
Between 2008 and 2014, there was little change in the mental state and behaviour of the applicant. He was compliant with his medication, but remained profoundly psychotic. He had little to no insight into his illness. His judgment was impaired. In 2009 the Clozapine was augmented with a second antipsychotic medication, Haloperidol. In 2010, that was substituted with Risperidone.
The applicant engaged with programs such as ‘hospitality’ and ‘trades and tech’. He presented no issue with compliance with management plans. In 2011 the applicant commenced escorted off campus leave.
By March 2014, the applicant had made steady rehabilitative progress. The Clozapine and Risperidone treatment had begun to gradually reduce the severity and frequency of his psychotic symptoms. But, the applicant continued to report occasional hallucinatory experiences. Dr Belshaw wrote:
He also maintained the ‘belief in a complex and ever shifting delusional system which involves his father’ who continued to reside ‘in an alternative universe’ together with a ‘fixed delusional memory that he did not cause the death of his father’. According to Dr Carroll’s 2014 report [the applicant] had reported that he ‘stabbed his father in response to command voices but believes that there must have been another wound inflicted on his father that actually caused his death’. This was related to the belief noted in Dr Bell’s 2008 report whereby [the applicant] thought he had stabbed his father in the abdomen, despite knowledge of post-mortem reports which showed that [the applicant’s father] died from a puncture wound to the chest. Dr Carroll noted that during a visit to his father’s grave there was ‘a striking emotional disconnect from his father’s death’. Dr Carroll summaries that [the applicant] had ‘reached a plateau in terms of his ongoing symptoms and these are unlikely to ever be fully eradicated.[25]
[25]Exhibit A, [44].
From mid-2014, the applicant was granted unescorted off-campus leave and he used that leave appropriately. In December 2014, the applicant was transferred to the Daintree unit, a mixed gender rehabilitation and independent living unit. His Risperidone dosage was reduced. He was able to gradually develop ‘daily living activities’ and engaged with the unit psychologist. He partook of regular physical activity as well as educational activities. But, the applicant continued to harbour a complex delusional system and showed limited insight into his illness.
In 2015, the applicant commenced a relationship with a woman. Despite initial concerns, it appeared that the relationship was amicable rather than intimate, and involved joint activities such as movie going and visiting shops.
On 10 March 2016, the applicant was transferred from the Daintree unit following an incident. The applicant had become angry when a co-patient took a cup from the applicant’s shelf for use by the co-patient’s father during a visit. The cup had been a present from the applicant’s female friend. The applicant told the psychologist that he was concerned the co-patient’s father could have ‘germs’ which would harm his friend if she visited and used the same cup.
A review by the Daintree unit treating psychiatrist
highlighted how such cognitions may be ‘emulative of the belief pre-offence that a female he was friendly with may be raped if he did not kill his father and therefore present[ed] significant concerns’.[26]
[26]Exhibit A [49].
That incident in combination with persistent psychotic symptoms, poor insight into his illness and early warning signs of relapse led that psychiatrist to conclude that the applicant required more intensive illness recognition and offence specific work in a higher security environment. The applicant was transferred to the Bass unit. His Risperidone medication was increased back to six milligrams.
In June 2016, the applicant sought support from his treating team to end the relationship with his female friend after concluding that he wanted to focus on his own recovery. Thereafter they remained in amicable, infrequent contact until about February 2018.
At the time of his transfer to the Bass unit in March 2016, Dr Dubow assessment was that the applicant remained
significantly delusional, that he lacked insight, and that his understanding of his illness and its link to the index offence was confused and contradictory. The core contradiction lay in his conflicting beliefs that he was seeking to both harm and protect his father. He was unable to appreciate this contradiction and any encouragement of him to contemplate this contradiction caused him to become very anxious and mildly thought disordered.[27]
[27]Exhibit C, [39].
Dr Dubow attributed this to the severity of the applicant’s illness. But Dr Dubow writes that the applicant’s mental state and his ability to describe and understand his historic delusional beliefs began to improve from early 2017.[28] Indeed, 2017 and 2018 were years of some stability for the applicant. As Dr Belshaw writes:
Dr Dubow’s 2017 annual report showed that following transfer to Bass unit [the applicant] was able to ‘articulate’ that ‘he accepts that he was mentally unwell at the time of his index offence and to detail his symptoms at that time and how they led him to commit the offence’, although it was noted that this insight fluctuated, particularly when stressed or anxious. Dr Dubow opined that [the applicant] was not thought disordered and had no hallucinations. It was noted that he continued to utilise his off-campus leave to build community linkages, such as attending the gym, engaging in photography, and gardening groups and starting a personal training course.
Of note [the applicant’s] clozapine medication was reduced by a small amount, from 550 mg to 525 mg in August 2017 due to persistently and dangerously high serum medication levels. Clozapine serum levels can increase naturally as patients age.
Dr Dubow’s 2018 annual report summarised how [the applicant] had remained stable in mental state in the preceding 12 months and how he had continued to increase his insight into his symptoms ad their link to the index offence. Dr Dubow recorded that [the applicant] was accepted to the Eastern Health AMHS residential CCU (a 24-hour staffed facility based in Camberwell). This facility contained 20 bedrooms and the daily care of patients was overseen by a treating team including a psychiatrist, psychiatric registrar, and clinicians. In November 2017 [the applicant] was granted up to three nights of overnight leave to the CCU, in preparation for an Extended Leave application. [The applicant] was also referred to the CFMHS CTT in December 2017.
Of note [the applicant’s] Forensicare electronic medical record contained no record of any adverse incidents (for example rule breaking, aggression or violence) perpetrated by him. There was no history of suspected alcohol use, positive alcohol breathalyser readings or positive random urine drug screens since his admission to TEH.[29]
[28]Exhibit C, [41].
[29]Exhibit A, [53]-[56].
In anticipation of making this application, the applicant has undertaken a number of steps in the past 18 months. He has undertaken psychological work to increase his insight into his psychotic symptoms and engaged in a collaborative relapse prevention plan. He is given a weekly pre-packaged ‘Webster’ device of his medication and has used it appropriately.
At the CCU, the applicant has been allocated his own bedroom with bathroom and small kitchenette. The applicant has displayed no behavioural concerns whilst at the CCU and when given correction as to social boundaries (about telephone use), modified his behaviour accordingly. He has also accepted direction and help with regard to the organisation of his finances.
The applicant had set-up an account with an on-line dating service, but after discussion with a CCU worker, he closed the account after deciding that it was not a sensible time to commence a relationship.
The applicant has also undertaken ‘family work’ with his mother. The applicant’s mother speaks to him via telephone or in person every day. She is aware of some of the applicant’s early warning signals of relapse and, in Dr Belshaw’s opinion, appears to understand the importance of alerting CCU or CTT clinicians in the event she becomes concerned with the applicant’s mental health. The CTT team intends to do further work with the applicant’s mother.
The applicant’s mother has a relationship with a man. This has been extant since 2015. They do not live together. While this man has spoken with the applicant on the telephone, they have not met in person. The applicant’s mother does not wish them to do so and told Dr Belshaw that she can manage both relationships separately and in isolation. A chance meeting is, apparently, extremely unlikely. The applicant’s mother has agreed to contact the CTT were there to be any plans for this man and the applicant to meet.
The applicant told Dr Belshaw that he ‘didn’t mind’ that he has not met this man and denied any concerns or distress at the relationship between him and his mother or his exclusion from it.
The applicant also has regular contact with his paternal aunt, V.
Both the applicant’s mother and his aunt V were present in court at the hearing of the application.
The applicant has also had ‘very positive’[30] engagement with social and occupational activities in the last year. He has a very structured weekly routine, including three nights overnight leave at the CCU, weekly meetings with a ‘Candella’ support worker,[31] membership and regular attendance at a local gym, engagement with groups at the CCU and voluntary work at ‘FareShare’[32] on Fridays. The applicant has also developed social contacts at FareShare with whom he visits coffee shops or attends AFL games.
[30]Exhibit A, [70].
[31]Who provides mental health support through National Disability Insurance Scheme (‘NDIS’) funding.
[32]A charity providing meals to vulnerable people.
Friends and supporters from FareShare were present in court at the hearing of the application.
Dr Belshaw states:
According to my assessments [the applicant’s] mental health in the preceding 12 months had been stable. I had not elicited any clear psychotic symptoms, such as ongoing auditory hallucinations or delusions. I had not observed any irritability, opposition to treatment plans, or violent ideation. More over [the applicant] had presented as anxious and excessively compliant with management plans and requests of the CTT and Bass unit treating team.[33]
[33]Exhibit A, [72].
Dr Dubow agrees that the applicant presently suffers no thought disorder, delusional beliefs and states that he denies all hallucinations.[34]
[34]Exhibit C, [58].
Section 40(1) Factors
Nature of Mental Impairment
The applicant has an established diagnoses of treatment resistant schizophrenia. It is severe in nature and has been extant approximately 15 years.
The applicant’s symptoms of psychosis took many years to resolve. He still experiences many symptoms of his illness, but these are negative rather than positive symptoms. That is, they affect his social skills, higher level cognitive and executive thinking and his insight into and awareness of his enduring difficulties. He does not, at present, suffer delusions, hallucinations, thought disorder or disorganised behaviour.
As Dr Dubow states:
[The applicant] will in all likelihood experience some of the negative symptoms of schizophrenia enduringly. The probability that he will at some point in the future experience a psychotic relapse even if he is compliant with his medication is probably higher than the average which pertains to most patients with schizophrenia. This is a function of the severity of his illness.
However, [the applicant] has coped well with the demands which have accompanied his partial move into the community over the past 18 months. His mental state has in fact continued to improve during this novel and challenging time. It is reasonable to speculate that his improved self-worth and sense of optimism which have resulted from his accomplishments over the past 18 months, have also acted to improve his mental state and his resilience.[35]
[35]Exhibit C, [71]-[72].
Relationship between impairment and index offence
At the time of the index offence, the applicant did not know that his conduct was wrong. The opinion of Dr Bell, accepted by Osborn J at the time the CSO was imposed, was that the applicant could not reason with a moderate degree of sense and composure about whether his conduct, as perceived by reasonable people was wrong.[36] His Honour was fortified in that acceptance of Dr Bell’s opinion by a like opinion reached by Dr Walton[37] as well as by the evidence of the informant, particularly the description of the manner of the applicant’s presentation at the time of his arrest.[38]
[36]R v CJC, [12].
[37]R v CJC, [13].
[38]R v CJC, [14].
The 7 May 2008 report of Dr Bell was quoted by Osborn J at some length, including the following:
[The applicant] has a severe schizophrenic illness of at least two to three years duration and almost certainly longer. At the time of the alleged offence, he was receiving psychiatric treatment and case management through community-based mental health services and had had an admission for one month to a psychiatric inpatient facility in New South Wales the year before. Although there is a history of [the applicant] having from time to time abused both alcohol and illicit substances, including the possibility that he was to some extent intoxicated on the day of the offence, there is little room for doubt that at the time of the tragic killing of his father, [the applicant was in fact suffering a severe psychotic illness, namely schizophrenia, with symptoms that included auditory hallucinations and bizarre grandiose and persecutory delusions. Following his incarceration he was found to have a marked blunting and vacuousness of effect and substantial loosening of association of thought. It is difficult to elucidate the precise mental processes that contributed to [the applicant’s] alleged offence. It is clear that in previous months there had been recurring episodes of conflict between himself and his parents, particularly his father and on several occasions he had attracted the attention of police. It is also clear that [the applicant] is expressing concerns regarding his father’s alcohol abuse and was frightened of the possibility that his father being violent towards him. All of this was occurring in the setting of him suffering severe psychosis, and involved a marked distortion of his capacity to interpret the world around him, such that he was experiencing hallucinations … . [The applicant’s] distortion of reality testing along with his confused and chaotic disorganisation of language and the prominent blunting effect, depriving him of any meaningful emotional appreciation of the consequences of his behaviour are all factors that dramatically compromised his capacity to reason. [39]
[39]R v CJC, [11]
Likelihood the applicant would endanger himself or the community
Both Dr Belsahw and Dr Dubow used the Historical, Clinical, Risk 20 (‘HCR-20’) tool to assess the applicant’s risk of future violence.
The applicant’s historical (and therefore static and unmodifiable) risk factors include the violent act of the index offence, a reported history of aggression preceding the index offence, the reported problems with relationships, a limited employment history as an adult, a history of substance abuse, a history of being bullied, the diagnosis of schizophrenia and pre-offence episodes of non-compliance with medication and supervision.
In considering his current, dynamic risk factors for violence, the psychiatrists point to the absence of recent positive symptoms of schizophrenia, violent ideation or intent, and of behavioural or affective instability. Further, the applicant’s demonstrated commitment to abstinence from alcohol and illicit drugs as well as improvements in his insight into his illness, early warning signals of relapse, compliance with medication and engagement with treating teams are seen as protective factors. So too is the prospect of stable, safe and supportive accommodation.
Dr Belshaw opines:
[The applicant’s] overall risk for future violence is therefore currently low. Indeed, [the applicant’s] risk of future violence had been assessed as low for several years. The main area for ongoing input to maintain this low risk of future violence will be actively supporting [the applicant] to continue to remain abstinent from the use of illicit substance and the abuse of alcohol, ensuring his compliance with medication, developing his insight, and supporting him to develop further community linkages.
[The applicant] would be at an increased risk of violence were he to be non-compliant with medication or were he to relapse to significant alcohol abuse or use illicit substances. I believe that such a potential scenario could be identified and averted by his current management plan, involving the CCU staff, the CTT team, and other aforementioned supportive services.[40]
[40]Exhibit A, [98]-[99].
Dr Dubow states:
The summary statement of the HCR-20 (V3) states that [the applicant’s] risk of perpetrating violence over the next year is in the low range. It notes that this risk would remain low were [the applicant] to be granted extended leave to teh CCU as the level of service provision and the secure living environment are similar to that which exists at TEH, and where [the applicant’s] current risk has been assessed similarly as being low. It notes further that the dynamic risk factors are currently relative well manage. (sic)[41]
[41]Exhibit C, [65].
Need to protect people from such danger
Undoubtedly, the need to protect the community from the danger posed by a relapse of the applicant’s schizophrenia is high. In the grip of psychosis, the applicant carried out a fatal stabbing. That is, when unwell and experiencing auditory hallucinations, the applicant has the capacity to inflict harm on the community of a most serious kind.
But, as his years spent resident at TEH show, the reduction of this risk to the community lies in the applicant taking his antipsychotic medication, abstaining from alcohol abuse and illicit drug use, and seeking support in his living arrangements. This he has done and continues to do.
In oral evidence, Dr Belshaw was asked about the specific risk to the applicant’s mother’s male friend. He said that the relationship between this man and the applicant’s mother had been a mixture of romance and friendship and had endured for about six years. Dr Belshaw said that it was a factor that had retarded the applicant’s progression through TEH because it was a known potential risk scenario. The initial recommendation of the treating team was that there should be a meeting between the applicant and this man. He said that it became apparent that due to the will of the individuals concerned, that meeting could not take place. Dr Belshaw continued:
…that could continue in perpetuity and could continue to lead to a restriction of [the applicant’s], liberty and could continue to stymie his achievements of his recovery goals. Again, similar to when I considered that if we couldn't achieve the gold standard, which was a meeting, we've had to think about what else can we do. And the plan that I am satisfied with mediates the risk at this stage, is that a meeting is not to occur. They won't meet and if at any point it is considered, then the CCT will have a large degree of input into arranging that meeting, organising and facilitating that meeting so that we can update our mental state assessments and update our risk assessments as well.[42]
[42]Transcript, 16 July 2019, 26.
Dr Belshaw also gave oral evidence about the relapse prevention plan for the applicant and, specifically, the involvement of the applicant’s mother in that plan. He said the CTT was continuing to work with the applicant’s mother about early warning signs, but that his support for the application for extended leave was not contingent upon the involvement of the applicant’s mother in the relapse prevention plan.[43]
[43]Transcript, 16 July 2019, 18.
Adequacy of resources to treat the applicant in the community
There is detailed evidence before me as to the resources to be deployed to treat and support the applicant in the community. He will reside at the CCU, which provides 24 hour clinical support to clients with enduring mental illness. He will have a high level of clinical support from both the CCT and the CCU. As Ms Aldenhoven stated:
If granted Extended Leave [the applicant] will initially attend weekly reviews, alternating between case management reviews and psychiatry reviews. This may be reviewed following a period of at least three months stability after which the frequency of reviews may be reduced to fortnightly. The CTT Program reviews can increase at any time if clinically indicated.
[The applicant] will continue to reside at the [CCU], where he will be required to engaged with his key worker and psychiatrist at this service. His medication will continue to be monitored via a webster pack by the CCU. [The applicant] in the future may be considered suitable to complete a program to gain greater independence with his medication management via a step-down program. Any changes to [the applicant]’s treatment will only occur in consultation with Dr Belshaw. CTT will continue to liaise closely with the CCU and conduct regular home visit (sic) to the CCU as required.[44]
[44]Exhibit B, [48]-[49].
Additionally, Ms Aldenhoven stated in oral evidence that the applicant has the capacity, and exercises that capacity, to contact her by telephone when necessary.[45]
[45]Transcript, 16 July 2019, 34.
He has weekly access to a wellbeing officer with his NDIS package.[46] That package also provides a transport allowance and has capacity for extra support hours. As Ms Aldenhoven said in evidence, his treatment team would look into support for another activity to encourage further community linkages for the applicant.[47]
[46]Transcript, 16 July 2019, 18, 23, 41.
[47]Transcript, 16 July 2019, 30.
The applicant already has an impressive array of community linkages. He goes to the gym, he does voluntary work at FareShare and has made friends through that process.
And, the support of his mother and paternal aunt V are also of value.
Other factors
Counsel for the Secretary submitted that it was a relevant factor that the treating team were unanimously in support of this application. I agree.
Analysis
On the basis of the evidence summarised above, the question for the court is whether it can be satisfied that the safety of the applicant or members of the public will not be seriously endangered if the applicant is granted extended leave. What is required is not that the psychiatric evidence guarantees the absence of risk, but rather a judicial approach to the assessment of risk, with the benefit of expert opinion, in considering the principles and factors mandated by the combined operation of ss 57(2), 39 and 40(1) of the Act. [48]
[48]NOM, [65].
In this case, the reports of the two psychiatrists and Ms Aldenhoven reveal a careful and thorough examination of the risk posed by the applicant. It is realistic and frank. I have had the additional benefit of the oral testimony of Dr Belshaw and Ms Aldenhoven. In all, I find the evidence to be persuasive.
One major area of risk, in the opinion of Dr Belshaw, is alcohol abuse[49] and illicit drug use. Dr Belshaw said that given the applicant’s background, he recommends that he abstain from alcohol entirely. The applicant has been abstinent from all alcohol and illicit drugs during his years at TEH and has indicated his intention to remain so.[50] And the regime of random urine drug screening and breathalysers to which the applicant has been accustomed would continue whilst he was resident full-time at the CCU. Further, alcohol or illicit substance use is one of the known early warning signals that has been included in the relapse prevention plan.[51]
[49]Exhibit A, [98]-[99]. Dr Belshaw explained that alcohol abuse covers two categories of behaviour: drinking alcohol to the point of intoxication on a single occasion or regular use (every day or every other day) of alcohol. Transcript, 16 July 2019, 19.
[50]Transcript, 16 July 2019, 19.
[51]Transcript, 16 July 2019, 16-17.
The other major area of risk is if the applicant becomes non-compliant with his medication. But, he has been entirely compliant throughout his years at TEH and has managed the Webster package of his medication well. On one occasion when the applicant forgot to take his medication pack with him when he returned to TEH from the CCU, he informed TEH staff and did not miss any doses of his medication.[52]
[52]Exhibit A, [62].
While the gravity of the potential harm posed by the applicant is high should there be a resurgence of the positive symptoms associated with his illness, the likelihood of that harm eventuating is, on all the evidence, low. In reaching that conclusion, I have considered in particular: the applicant’s progress at TEH, and specifically of the last 18 months; the success of the applicant in managing for some time three nights per week at the CCU; his network of community supports and activities including his mother, V, FareShare and physical exercise; the likelihood that extended leave will have a positive and reinforcing effect on the applicant’s current well-being; and the extensive, detailed and ongoing relapse prevention plan. With respect to the latter, it has been achieved through collaboration with the applicant.[53] And, I accept the evidence of Dr Belshaw that the treating team have ‘good objective measurements’[54] to indicate when the applicant is becoming unwell.
[53]Exhibit B, [20].
[54]Transcript, 16 July 2019, 17.
I am satisfied on all the evidence that the safety of the applicant or members of the public will not be seriously endangered as a result of him being allowed extended leave. That is, I am satisfied that the condition in s 57(2) of the Act is met. In reaching that conclusion, I have had regard to the factors delineated in s 40(1) as discussed and applied the principle in s 39 that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Orders
Accordingly, I make the following orders.
1. Pursuant to s 57 of the Act, the applicant is granted extended leave for a period of 12 months commencing 31 July 2019, allowing him to be absent from his place of custody subject to the following conditions:
(i) That the applicant be supervised by the authorised psychiatrist of the Victorian Institute of Forensic Medical Health (‘VIFMH’) or his or her delegate.
(ii) That the applicant reside at a location known and approved by the authorised psychiatrist of VIFMH or his or her delegate.
(iii) That the applicant abides by the lawful directions of the authorised psychiatrist of VIFMH or his or her delegate.
(iv) That the applicant complies with treatment and testing, and attends appointments as directed by the authorised psychiatrist of VIFMH or his or her delegate.
(v) That the applicant abstains from the abuse of alcohol and from the use of illicit drugs.
(vi) That the applicant not leave the State of Victoria without the written permission of the authorised psychiatrist of VIFMH or his or her delegate. This includes overseas travel, which must be approved by the authorised psychiatrist of VIFMH or his or her delegate.
A suppression order was made by Osborn J pursuant to s 75 of the Act on 28 October 2008. That order is extant. It relates to the 2008 criminal proceeding ‘and related proceedings’. This matter is a related proceeding. [55]
[55]Without having seen the terms of that order, I indicated at the hearing of the application that should that order not apply to these proceedings, then I would make a suppression order under s 75 of the Act with respect to these proceedings, being satisfied that it is in the public interest to do so.
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