Re CJC (No 3)
[2021] VSC 448
•26 July 2021
| 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: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 July 2021 (On the papers) |
DATE OF JUDGMENT: | 26 July 2021 |
CASE MAY BE CITED AS: | Re CJC (No 3) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 448 |
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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 Attorney-General – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Pavel Sraj, Victoria Legal Aid | |
| For the Secretary to the Department of Health | Ms Catherine Luong, Department of Health | |
| For the Attorney-General | Ms Jessica Sischy, Victorian Government Solicitor’s Office | |
| For the Director of Public Prosecutions | Office of Public Prosecutions |
HER HONOUR:
This is an application by CJC for a grant of further extended leave under s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’).
Background
The applicant is a 37 year old male with a well-established diagnosis of treatment-resistant schizophrenia and a history of alcohol and cannabis use disorders. On 28 May 2007, while labouring under the acute symptoms of his illness, the applicant fatally stabbed his father to the chest.
In 2008, in this Court, CJC was found not guilty of murder by reason of mental impairment. Osborn J declared him liable to supervision under Part 5 of the Act, and imposed a custodial supervision order (‘CSO’) for a nominal term of 25 years, commencing from 29 May 2007. Pursuant to the terms of the CSO, CJC was committed to the custody of the Victorian Institute of Forensic Mental Health (‘Forensicare’) to reside at Thomas Embling Hospital (‘TEH'). A suppression order was made by his Honour on 28 October 2008 regarding the identification of CJC. .
In 2017, having progressed through the treatment and rehabilitative regime at TEH, the applicant was first granted overnight leaves to the Canterbury Road Continuing Care Unit (‘CCU’) in Camberwell.[1] In 2019, and again in 2020, he was granted periods of 12 months’ extended leave to reside full-time at the CCU. He now applies for a further grant of 12 months’ extended leave to reside at independent accommodation in the community, supplemented by extensive daily supports funded through the National Disability and Insurance Scheme (‘NDIS’).
[1]The CCU is a 20-bed, 24-hour staffed residential mental health facility in Camberwell, where the daily care of patients is overseen by a treating team including a psychiatrist, psychiatric registrar and mental health clinicians.
Parties’ positions and manner of determination
On 20 July 2021, the parties provided a ‘consolidated response’ outlining their respective positions as to the appropriate outcome of this application. The Secretary to the Department of Health and the Attorney-General of Victoria both agreed that the application ought to be granted on the leave plan with the conditions proposed by Dr James Belshaw in his report dated 22 June 2021. Given the above consensus all parties further agreed that the matter could be determined on the papers. Regarding the suppression order granted by Osborn J, the applicant sought a continuance of that order which was not opposed by any other party. The applicant would have sought an in person hearing on that aspect if there was an issue about continuing the suppression order. I considered the order should be continued.
Therefore, having regard to all of the circumstances, I considered that the application for extended leave and the application for continuation of the suppression order should be dealt with on the papers.
Applicable legislation
The application is governed by s 57 of the Act. Pursuant to s 57(2), the Court may grant an application for extended leave if satisfied on the evidence that the safety of the applicant or members of the public will not be seriously endangered as a result. This determination is to be informed by the factors in s 40(1) and the principle of parsimony set out in s 39(1).[2]
[2]See Re GB [2019] VSC 4 [21]-[22] (Macaulay J); Re CJC [2019] VSC 508 [12]-[14] (Taylor J).
The concept of ‘serious endangerment’ is twofold in that it weighs both the probability of a harmful event occurring and the gravity of harm that might occur if that event were to materialise.[3] However, the central focus is on the probability of the harm materialising.[4]
[3]NOM v DPP (2012) 38 VR 618, 639 [63] (Redlich and Harper JJA and Curtain AJA) citing with approval In the Matters of Major Reviews of Percy, Farrell and RJO [1998] VSC 70, [56] (Eames J).
[4]NOM v DPP (2012) 38 VR 618, 639 [63] (Redlich and Harper JJA and Curtain AJA)
In the case of a person who is already on extended leave, the Court cannot grant a further application for extended leave unless it has obtained and considered a report compliant with s 40(4)(a) and a leave plan filed under s 57A.[5] The Court has received the report and leave plan of Dr James Belshaw, dated 22 June 2021, which satisfies the requirements under ss 40(4) and 57A.
[5]The Act, s 40(4).
Notification of family members and victims
In the present matter, the Director of Public Prosecutions is not required to provide notification of the current hearing to the family members and victims of the index offence, as might have otherwise been the case. This is because the onus to do so is confined to the types of hearings prescribed in s 38C(2), which in the case of applications for further extended leave is limited to circumstances where the granting of the application would result in a significant reduction of the person’s degree of supervision.[6] The present application, if granted on the conditions proposed in Dr Belshaw’s leave plan, would mirror the applicant’s existing conditions of extended leave. For these reasons, the Director’s obligations under s 38C are not enlivened.
[6]The Act, s 38C(2)(d).
Personal background and psychiatric history
The applicant’s history, the circumstances surrounding the index offence and his progress on the CSO are summarised in the previous reasons of this Court.[7] They are not repeated here.
[7]R v CJC [2008] VSC 488R (Osborn J); Re CJC [2019] VSC 508 (Taylor J); Re CJC (No 2) [2020] 468 (Taylor J).
Evidence of Dr Belshaw and Winnie Madziva
For the purposes of this application the court received two reports regarding CJC’s progress over the preceding 12 months: the report and leave plan of Dr James Belshaw, dated 22 June 2021 and a case management report prepared by Ms Winnie Madziva, dated 24 June 2021.
Dr Belshaw is a consultant forensic psychiatrist at the Community Forensic Mental Health Service (CFMHS). He has been CJC’s treating psychiatrist at the Community Treatment and Transition (CTT) team of the CFMHS since June 2018. His report, dated 22 June 2021, focusses on CJC’s progress over the last 12 months. Over the 12 months preceding his report he interviewed CJC on eight occasions. Ms Winnie Madziva is a senior mental health clinician (psychiatric nurse) and has been CJC’s case manager since June 2020.
Since his last review CJC has remained living at the CCU. His attendance at appointments has been excellent and his psychotropic medication has remained unchanged.[8] CJC self-administers his medication and his compliance is monitored by monthly Clozapine blood serum level tests. Because of this there has been no concern about his compliance while at the CCU.
[8]He is currently prescribed clozapine 525mg and Risperidone 6mg each night.
Positively, given his personal history with drugs and alcohol, he has remained abstinent and has expressed an intention to maintain lifelong abstinence from alcohol, stating that it was ‘just easier.’[9] All supervised urine and drug screens have been negative.
[9]Report of Dr James Belshaw dated 22 June 2021, 6.
Dr Belshaw noted that a positive impact of the restrictions necessitated by the COVID-19 pandemic is that they have reduced CJC’s tendency to repeatedly change his routine and future plans and this has enabled him to focus on achievable recovery goals. It was also noted that CJC had adapted well to the changes brought on by COVID-19 restrictions by setting up his own home gym and participating in online study.[10]
[10]Report of Ms Winnie Madziva (Senior Clinician) dated 24 June 2021, 3.
At the same time CJC’s educational and occupational plans continue to waver. After ceasing his Financial Planning course in July 2020 his intention to study has changed between accounting management, mental health, nutrition and law. In the interim he has commenced a personal training course.[11] It was noted that CJC’s impulsivity and frequent changes of mind were an ongoing issue and he would continue to require self-management and support to help him to problem solve. Ms Madziva also noted that CJC’s tendency to cancel NDIS support workers whom he is ‘not feeling a good connection’ with.[12]
[11]Report of Dr James Belshaw dated 22 June 2021, 7.
[12]Report of Ms Winnie Madziva (Senior Clinician) dated 24 June 2021, 4.
Dr Belshaw opined that CJC continued to exercise poor judgment in romantic relationships; pointing to a pattern of initial intensity, characterised by CJC abandoning his regular routines to spend time with his partner. In November 2020, CJC engaged in a relationship with an older woman at the CCU before that relationship ended amidst unsubstantiated allegations that he had been touching her sexually against her will.[13] CJC’s account was the kissing was consensual. The resident did not wish to press charges.[14] Staff at the CCU put in place a behavioural agreement to avoid future incidents, however CJC was seen talking to the resident on several occasions and they had also been seen having dinner together. CJC maintained he had no intention to contact her after he left the CCU.
[13]Report of Dr James Belshaw dated 22 June 2021, 7.
[14]Report of Ms Winnie Madziva (Senior Clinician) dated 24 June 2021, 3.
In April 2021 CJC commenced another relationship with Ms X, a woman he met at his local church group. Dr Belshaw reported that CJC was again spending much of his time with his new partner and reported an intention to marry and to have children within two years. Dr Belshaw was concerned the relationship would derail CJC’s recovery goals because CJC had begun exploring accommodation options near her home in Caulfield, instead of the Camberwell region where CJC’s support network was located.
CJC continues to maintain daily contact with his mother and aunt and has completed four overnight stays at his mother’s house without incident. CJC’s mother reported that he is starting to be more independent and that she thought moving to private accommodation would be good for him. She sees CJC once a week and they talk over the phone three or four times a day. She sometimes finds that he is quiet and he might be worried about something but overall she thinks he is happy and doing well. She reported she was getting busier with work and will not be home a lot this year because she will be travelling.[15]
[15]Report of Ms Winnie Madziva (Senior Clinician) dated 24 June 2021, 9.
CJC’s aunt has met up a few times with CJC over the past six months. CJC attended her birthday on one occasion without incident and she took him and Ms X out to lunch on another. She thought that CJC and Ms X were a good match, being of similar age and having shared interests. While she acknowledged that it was good for CJC to have a girlfriend she thought he would also need some relationship support and she was unable to offer this. She understood that Ms X’s father was strict and protective of her and she hoped this would not ‘get into CJC’s head’ or that that he would ‘react negatively.’ She noted that CJC was often left feeling disappointed by setbacks such as when he could not join the choir due to not having a working with children check.[16]
[16]Report of Ms Winnie Madziva (Senior Clinician) dated 24 June 2021, 9.
Dr Belshaw noted that CJC’s transition towards independent living has been obstructed by the interrelated challenges of finding suitable accommodation coupled with his inability to budget within his means. It had been planned that upon being discharged from the CCU that CJC would move to a Supported Independent Living (‘SIL’) property. However the preferred SIL provider declined CJC’s referral on the basis of his forensic history.
In lieu of being awarded an NDIS financial package to enable him to reside at a SIL, CJC’s revised NDIS plan entitles him to up to 10 hours of carer support per day upon moving into private accommodation. His NDIS support workers will regularly liaise with the CTT team to ensure compliance with medication and will have access to CJC’s mental health relapse prevention plans.
The search for an appropriate rental property began in April 2021 but has been impeded by CJC’s budget which had been eroded due to expenditure on clothes, electronic devices and take away meals. CJC has since agreed to decrease his spending in these areas so that a suitable rental property could be located. At the time of Dr Belshaw’s report CJC was preparing a rental application for a property in Box Hill. It is proposed that once a property has been secured, CJC will be discharged from the CCU and commence full-time living in the community where he will be supported by NDIS workers three-times per day and weekly CTT reviews.
Overall Ms Madziva supported CJC’s application for extended leave, describing the next six to twelve months and the move to private accommodation ‘an exciting (and) challenging time’.[17] Noting that the length of stay at a CCU is two years, Ms Madziva reported that CJC had ‘reached his full rehabilitation potential’ and could now transition into the community with less intensive support.[18] CJC would continue to attend weekly reviews with the CTTP for a minimum of three months and, while it was planned that the frequency of the reviews would decrease over time, they could also increase if needed.
[17]Report of Ms Winnie Madziva (Senior Clinician) dated 24 June 2021, 11.
[18]Report of Ms Winnie Madziva (Senior Clinician) dated 24 June 2021, 5.
Risk Assessment
Dr Belshaw used the HCR-2014 to assess the risk of violence posed by CJC. He assesses that risk as low, so long as CJC continues to receive the same level of support.[19]
[19]Report of Dr James Belshaw dated 22 June 2021, 9 [51].
CJC’s static risk factors are his past history of violence, his past non-compliance with medication and supervision and his diagnosis of schizophrenia. These factors do not change and therefore CJC’s baseline risk of violence remains high. What makes his overall risk of future violence low are the current, dynamic factors. These include his commitment to abstaining from drugs and alcohol, absence of recent positive symptoms of schizophrenia, absence of violent ideation or intent and his recent behavioural stability. Dr Belshaw is of the opinion that CJC has ‘demonstrated improved ability to cope with stress in the preceding 24 months and he had sound plans in place to ensure a continuity of his mental health care together with social and professional supports once discharged from the CCU.’[20]
[20]Report of Dr James Belshaw dated 22 June 2021, 9 [50].
For these reasons Dr Belshaw was of the opinion that CJC’s risk of future violence was low ‘and will continue to remain low with the collaborative provision of the services currently involved in his care.’[21]
[21]Report of Dr James Belshaw dated 22 June 2021, 9 [51].
Overall Dr Belshaw opined that the previous 12 months of extended leave should be viewed as a ‘partial success.’ Although CJC’s improvement has been slow there has been evidence of further progress towards his recovery goals. At the time of Dr Belshaw’s report the CTT team intended to support CJC to move into private accommodation, confirm the level of support provided for in CJC’s NDIS plan as ongoing, continue his psycho-education and insight work and focus his many ambitions into a consistent and achievable weekly routine.
Analysis
CJC has demonstrated slow but steady progress over the preceding 12 months. His psychotic symptoms remain in remission and he has maintained consistent compliance with his medication for a significant period of time. He has responded well to reductions in supervision, has attended family outings without incident and demonstrated an improved ability to cope with stress. His decision to remain abstinent from drugs and alcohol is encouraging, as is his preparedness to accept guidance with managing his budget and finding appropriate accommodation.
He continues to benefit from the ongoing support of his mother and aunt whose demonstrated willingness to communicate and to raise concerns with CJC’s care team will help ensure that he is monitored effectively.
The move to private accommodation will present both challenges and opportunities for CJC. I am satisfied that the extensive level of supervision and support provided by his NDIS plan will allow him to transition into the community while also ensuring effective supervision which will mitigate the risk.
CJC’s impulsivity and his ability to manage disappointment (particularly in the context of romantic relationships) are a cause of some concern. However, on the evidence before me I am satisfied that his overall risk of future violence is low provided the proposed supports are put in place and the leave plan is adhered to. There will also need to be good communication between his clinicians, the NDIS support workers and his family.
Granting extended leave is warranted by the evidence before the Court and is consistent with the requirement that I apply the principle that restrictions on a person’s freedom and personal autonomy be kept to the minimum consistent with safety of the community.[22]
[22]The Act, s 40 (1)(d).
Accordingly, taking into consideration the factors listed in s 40(1) of the Act and applying the principle of parsimony in s 39, I am satisfied that the safety of CJC and the community will not be seriously endangered if he is granted extended leave on the conditions proposed by the Department of Health.
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 2021, 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.
(2)The suppression order made by Osborn J on 28 October 2008, pursuant to s 75 of the Act remains in force.