Re CJC (No 2)
[2020] VSC 468
•31 July 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2019 01665
| IN THE MATTER 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: | 27 July 2020 (On the papers) |
DATE OF JUDGMENT: | 31 July 2020 |
CASE MAY BE CITED AS: | Re CJC (No 2) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 468 |
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CRIMINAL LAW – Mental Impairment – Application for Further Extended Leave – Whether granting the applicant further extended leave would seriously endanger the applicant or members of the public – Application supported by the Secretary to the Department of Health and Human Services and Attorney-General – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Victoria Legal Aid | |
| For the Secretary to the Department of Health and Human Services | Department of Health and Human Services | |
| For the Attorney-General | Victorian Government Solicitor’s Office | |
| For the Director of Public Prosecutions | Office of Public Prosecutions |
HER HONOUR:
On 28 May 2007 CJC fatally stabbed his father whilst in a state of acute psychosis.
On 28 October 2008 CJC was found not guilty of murder by reason of mental impairment and placed on a custodial supervision order (CSO) under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Act). The nominal term of the CSO is 25 years, with effect from 29 May 2007.
CJC was then admitted to Thomas Embling Hospital. He remained there until 31 July 2019, when he was granted Extended Leave for a period of 12 months.[1] He now applies for a further grant of Extended Leave.
[1]Re CJC [2019] VSC 508 (Re CJC).
For the reasons that follow, the application is granted.
Manner of Determination
This matter has been determined on the papers.
All parties consented to this manner of determination in accordance with the prevailing protocol.[2] I am satisfied that it is in the interests of justice to do so.
[2]
Legal Principles
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.[3] An application for extended leave may be made and granted more than once.[4]
[3]The Act, s 57(2).
[4]The Act, s 57(3).
‘Serious endangerment’ is undefined in the Act, but is a well-understood concept encompassing both the probability that a harmful event might occur and the gravity of harm in that eventuality. At its core is the probability of risk. The focus is on 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.[5]
[5]NOM v DPP [2012] VSCA 198, (Redlich and Harper JJA, Curtain AJA) (NOM), [58].
The Court must have regard to the matters delineated in s 40(1) of the Act, and must apply the principle of parsimony as stated in s 39.
Where an applicant already enjoys a grant of extended leave, the Court cannot grant a period of further extended leave unless it has obtained and considered a report that complies with s 40(4)(a) of the Act and a leave plan filed under s 57A.[6] In this matter the report, and appendix to it, of Dr James Belshaw dated 1 July 2020 satisfy these requirements.
[6]The Act, s 40(4)(b).
Notification of Family Members and Victims Unnecessary
Dr Belshaw recommends a grant of further extended leave on the existing conditions. The granting of the application on these terms would not significantly reduce the degree of supervision to which CJC is subject. Consequently, the Director of Public Prosecutions (Director) had no obligation to inform the family members of CJC (also being the victims of his offence) of this application[7] and s 40(2)(c) of the Act is inapplicable.[8]
[7]The Act, s 38C(2)(d).
[8]As is usual, the Director has notified the Court that she does not seek to take part in these proceedings: email of Guy Luricella dated 24 June 2020.
Personal Background and Psychiatric History
CJC is 36 years of age. He has a longstanding diagnosis of treatment-resistant schizophrenia and a history of alcohol and cannabis use disorders. The latter are in sustained remission.
His personal background and psychiatric history is detailed elsewhere.[9] Here it is sufficient to note that CJC first had recorded contact with mental health services in 2004. By 2006 he presented with psychotic symptoms, including auditory hallucinations and grandiose delusions. He commenced treatment at a clinic on an involuntary basis under a Community Treatment Order. In 2007 he was on a moderate dosage of Risperidone, an intra-muscular antipsychotic medication. At this time CJC was poorly compliant with his treatment. He had limited insight. He abused alcohol and illicit drugs.
[9]Re CJC, [33]-[69].
On 28 May 2007 CJC was reviewed by his case manager and received his fortnightly injection of Risperidone. CJC then consumed about 17 glasses of beer before returning home and stabbing his sleeping father once to the chest. At the time CJC was experiencing auditory hallucinations and believed that his father was somehow involved in a plan to rape a female acquaintance. CJC was aged 23 years.
After admission to Thomas Embling Hospital, CJC was commenced on Clozapine, a medication reserved for treatment resistant schizophrenia. A second antipsychotic medication, Haloperidol, was added in 2009. That was substituted with Risperidone in 2010. There was little improvement in CJC’s condition to 2014. Thereafter he made rehabilitative progress, albeit it with occasional setbacks. In 2017 and 2018 CJC gained some stability. In July 2019 he was granted extended leave for a period of 12 months to reside at the Canterbury Road Community Care Unit (CCU).
Current Psychiatric State
Dr Belshaw is a consultant forensic psychiatrist at the Community Forensic Mental Health Service (CFMHS). He has been the treating psychiatrist of CJC at the Community Treatment and Transition (CTT) team of the CFMHS since June 2018. His report focusses on CJC’s progress over the last 12 months. It also addresses case management issues as CJC’s case manager recently left the CTT program.[10]
[10]CJC has been allocated a new case manager, Winnie Madziva. They met via telehealth on 15 June 2020.
Dr Belshaw describes CJC’s time on extended leave as a partial success.
Positively, there has been no significant deterioration in CJC’s mental state or behaviour. There have been no incidents of violence or aggression. He has developed a positive therapeutic alliance with his treating team and maintained strong attendance at CTT reviews.
Further, CJC has displayed signs of improving insight into his condition. He recently articulated that schizophrenia is a mental illness ‘that was always with [him] and probably always will be with [him]’.[11] He identified his symptoms as including auditory and visual hallucinations. He agreed to contact Dr Belshaw immediately if they re-emerged. He denies any ongoing delusional beliefs regarding his father.
[11]Report of Dr Belshaw, dated 1 July 2020, [68].
CJC has progressed through stages of medication independence and now self-administers his antipsychotic medication without issue. His urine drug screens are negative for illicit substances. He has not articulated any desire to return to illicit drug use.
CJC continues to enjoy the personal support of his mother and aunt, both of whom are apprised of his early warning signs and relapse prevention plan. His relationship with each woman has strengthened. He also has stable, supported accommodation at the CCU.
However, this progress has been complicated by recalcitrant symptoms, pervasive poor insight and the chronic negative symptoms of CJC’s illness. His cognitive deficits, a by-product of his illness, have proved to be more prominent in a community setting. This suggests that his ongoing recovery will require significant input and may be comparatively protracted.
One difficulty posed by this is the inability of CJC to properly appreciate his social and occupational limitations. This has manifested in various ways.
In August 2019 CJC underwent neuropsychological testing. It revealed his functioning to be in the low to mid-range. CJC expressed disappointment at the outcome, stating he believed he would have received at least an average result. The same month CJC said that he intended to enrol in a sports and exercise course and seek paid employment. His plans changed five times before he settled on and enrolled in a Bachelor of Commerce in December 2019. CJC required significant support to cope with the demands of a single subject of that course. But subsequently, CJC enrolled in a Diploma of Financial Planning.[12]
[12]This course had a commencement date of July 2020. Dr Belshaw notes that as at the date of his report, CJC had not yet commenced it: Report of Dr Belshaw, dated 1 July 2020, [56].
Dr Belshaw observes that CJC’s tendency to set goals beyond his current abilities or to spontaneously change his weekly routine or future plans is contrary to the CTT team’s advice to maintain stability. He has, for example, disengaged from his National Disability Insurance Scheme (NDIS) workers stating that he does not require such a high level of input. He has also explored independent living options, and considered purchasing a car despite not having a driver’s licence.
In response to these behaviours, the CTT team and CCU have attempted to enforce boundaries and reframe CJC’s expectations. While doing so has occasionally made CJC feel disgruntled, he has not displayed overt anger or aggression. Dr Belshaw notes that with sufficient repetition and support, there is some evidence of CJC using feedback to adjust his plans.
There have been two major challenges to CJC’s compliance with his treatment plan on extended leave.
The first was a romantic relationship between August and December 2019 with Ms Z, a fellow resident at the CCU. CJC commenced this relationship against the CTT team’s advice. It resulted in CJC making increased requests to stay out beyond the CCU curfew and have overnight leave from the CCU to stay at an hotel with Ms Z. It also prompted CJC to seek permission to drink alcohol.
In September 2019 CJC was asked directly about alcohol consumption. He admitted drinking a light beer as a result of feeling nervous about dating. He was reminded that the CTT team preferred him to abstain from alcohol given its potential to interfere with his medication and the circumstances of the index offence. In October 2019 Dr Belshaw met with CJC and his mother to reiterate the expectation that CJC comply with all recommendations made by the CTT team. At the meeting CJC, with his mother’s encouragement, said that he was committed to abstaining from alcohol. Nonetheless a compromise about alcohol was reached. CJC was to be allowed to consume a single alcoholic beverage on special occasions if he had the prior consent of the CTT team and he was monitored by either his mother or aunt.
Notwithstanding this, in January 2020 CJC reported having consumed an alcoholic beverage in the absence of any special occasion and without prior approval by the CTT team. Positively, CJC initiated contact with the CTT team to report this breach. He was noted to have made further progress the following month when he sought prior approval to have an alcoholic drink on his birthday.
Another consequence of his relationship with Ms Z was increased instability. From September 2019 CJC reported elevated levels of stress and anxiety. He became increasingly dismissive of CCU inputs and programs. He frequently stated that he wanted to move out with Ms Z once discharged from the CCU. Secondary to this, CJC failed to adhere to his budget and incurred debts by paying for frequent shared take-away meals, taking her on outings and buying her gifts.
Ms Z was exited from the CCU in February 2020. CJC reports no ongoing contact with her.
Dr Belshaw notes that overall CJC coped well with the stressors involved in his relationship with Ms Z and its breakdown. He sought advice and support as appropriate. Despite some anxiety and low mood, there was no evidence of any re-emergence of psychotic symptoms.
The second challenge was CJC meeting his mother’s partner for the first time without any consultation with the CTT team. Both CJC and his mother were aware that this introduction, if it occurred at all, was to be approved and carefully coordinated by the CTT team.[13]
[13]See also Re CJC, [62]-[63].
Following this, the CTT team met with CJC and his mother to discuss his limited adherence to treatment recommendations. A simple list of guidelines was compiled to assist CJC to comply with his conditions of extended leave. Dr Belshaw notes that there have been no incidents of note since, but acknowledges that CJC still requires containment and redirection at times.
The restrictions on movement and contact mandated in the wake of the COVID-19 pandemic have forced the suspension of CJC’s volunteer work and gymnasium membership. His clinical reviews are done via a telehealth platform. Dr Belshaw notes that, paradoxically, this disruption to CJC’s routine has led to greater stability for him as he has been able to focus more conscientiously on his recovery goals.
Risk Assessment
Dr Belshaw used the HCR-20[14] to assess the risk of violence posed by CJC. He assesses that risk as low, as long as CJC continues to receive the same level of support.
[14]Historical Clinical Risk Management 20.
CJC has several static factors of risk, such as his diagnosis of schizophrenia, history of violence and non-compliance with medication and supervision. This gives CJC a baseline high risk of future violence which is augmented by a number of dynamic factors. These include his limited adherence to treatment recommendations and poor insight into the impact of alcohol on his mental state.
However, these risk factors are moderated by the sustained remission of positive symptoms of schizophrenia, his compliance with medication, gradually improving insight, abstinence from illicit drugs, increased resilience to stress and supported living arrangement in the community. Further, there has been no evidence of increased violent ideation nor any behavioural or affective instability.
Dr Belshaw is of the opinion that any future risk scenario would likely involve a relapse of CJC’s psychotic symptoms as a result of significant substance use or non-compliance with medication. He is of the view that this would be more likely to occur if CJC did not have regular access to the supports that assist him to manage his relationships, finances and activity scheduling. CJC has a robust support system through a combination of the CTT team, CCU staff, NDIS and family members. This considerably moderates the risk he poses.
Consequently, Dr Belshaw supports a further grant of extended leave on the conditions articulated in the leave plan, being the same conditions as presently exist.
Analysis
I accept the unchallenged expert evidence of Dr Belshaw.
Turning to the s 40(1) factors, CJC has a longstanding diagnosis of treatment-resistant schizophrenia that manifested in the form of an acute psychosis at the time of the index offence in 2007. The direct relationship between CJC’s mental impairment and offending conduct is incontrovertible.
The evidence shows that CJC can be safely managed in the community. He poses a low risk of endangerment to himself and members of the public if he continues to have access to his existing level of treatment and support. That support has, over the last 12 months, proven to be flexible and adaptive. The evidence is that the support, in the combined form of the CTT team, NDIS, CCU staff and family members, will continue. Further, if there is any move to transition CJC’s accommodation away from the CCU, additional support will be provided.
Dr Belshaw has noted that CJC’s ongoing recovery may be comparatively protracted. While his last 12 months have been only a partial success, they have not been a failure. It is clear that CJC has a number of outstanding treatment goals to achieve before any further reduction in his degree of supervision could be countenanced. In applying the principle of parsimony enshrined in s 39 of the Act, it is clear that CJC’s risk of serious endangerment is adequately moderated by the supports and resources currently available to him in the community.
It follows that I grant a further period of extended leave for 12 months.
Orders
The orders of the Court will be:
1. Pursuant to s 57 of the Act, CJC is granted extended leave for a period of 12 months commencing 31 July 2020, allowing him to be absent from his place of custody subject to the following conditions:
(a) That CJC be supervised by the authorised psychiatrist of the Victorian Institute of Forensic Medical Health (VIFMH) or his or her delegate.
(b) That CJC reside at a location known and approved by the authorised psychiatrist of VIFMH or his or her delegate.
(c) That CJC abide by the lawful directions of the authorised psychiatrist of VIFMH or his or her delegate.
(d) That CJC comply with treatment and testing and attend appointments as directed by the authorised psychiatrist of VIFMH or his or her delegate.
(e) That CJC abstain from the abuse of alcohol and the use of illicit drugs.
(f) That CJC not leave the State of Victoria without the written permission of the authorised psychiatrist of VIFMH or his or her delegate.
For the sake of completeness I note that the suppression order made pursuant to s 75 of the Act on 28 October 2008 is extant.