Re CJC (No 4)
[2022] VSC 412
•22 July 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECI 2019 01665
| IN THE MATTER OF the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| -and- |
| IN THE MATTER OF an application pursuant to s 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, or alternatively, an application pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 by CJC |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 5 July 2022 |
DATE OF JUDGMENT: | 22 July 2022 |
CASE MAY BE CITED AS: | Re CJC (No 4) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 412 |
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CRIMINAL LAW – Mental impairment – Application to vary a custodial supervision order to a non-custodial supervision order – Application supported by Secretary and applicant’s treating team – Application opposed by Attorney-General – Alternative application for further grant of extended leave – Primary application to vary the order granted – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 31, 32, 39, 40 & 41.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Noonan | Victoria Legal Aid |
| For the Attorney-General | Mr R Kornhauser | Victorian Government Solicitor’s Office |
| For the Secretary to the Department of Health | Mr J Teng | Department of Health |
HER HONOUR:
Introduction
This is an application by CJC (‘the applicant’) for variation of his custodial supervision order (‘CSO’) to a non-custodial supervision order (‘NCSO’), or in the alternative, further extended leave, pursuant to ss 31 and 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) respectively.
The application for variation is supported by the Secretary to the Department of Health (‘the Secretary’) and the applicant’s treating team, but is opposed by the Attorney-General (‘the Attorney’), who submits the Court should refuse the variation application, confirm the CSO and grant the applicant further extended leave.
As is customary in these matters, the Director of Public Prosecutions complied with their statutory obligations to notify any victims and family members, and did not otherwise participate in the proceeding.
Procedural history
The applicant is a 38 year old male with a history of treatment resistant schizophrenia. On 28 May 2007, the applicant, then aged 23 years old, killed his father by stabbing him in the chest. At the time, the applicant was subject to a Community Treatment Order (‘CTO’) under the Mental Health Act 1986 and receiving involuntary psychiatric treatment through his local area mental health service.
On the day of the index offence the applicant attended a restaurant and consumed up to seventeen alcoholic drinks, before experiencing auditory hallucinations to the effect that a girl he had met at the restaurant would be raped if he did not stab his father. That evening, in an intoxicated and psychotic state, and compelled by his delusional beliefs, the applicant went home and fatally stabbed his sleeping father in the chest.
The applicant was arrested and charged with his father’s murder, and subsequently admitted to Thomas Embling Hospital (‘TEH’), where he presented as ‘seriously delusional’ and ‘demonstrably psychotic’.[1]
[1]R v CJC [2008] VSC 488R (Osborn J).
On 27 October 2008, a jury found the applicant unfit to stand trial on the charge of murder. The matter then proceeded before Osborn J by a process commonly referred to as a ‘consent mental impairment hearing’. His Honour found the applicant not guilty of murder by reason of mental impairment, declared the applicant liable to supervision under Part 5 of the Act, and imposed a CSO for the nominal term of 25 years, commencing from 29 May 2007.[2]
[2]Ibid [16]-[18], [21].
Between October 2008 and July 2019, pursuant to the terms of the CSO, the applicant resided at TEH as a forensic patient. The applicant suffers from treatment resistant schizophrenia. Despite high doses of clozapine and augmenting antipsychotics, he continued to suffer from positive symptoms until at least 2015. In 2014, he progressed to a rehabilitation unit and commenced his transition to community living. In March 2016, he was briefly returned to the acute unit due to him displaying early warning signs of relapse. After one week, he was transferred back to a subacute unit and remained there for the following three years. He continued to make rehabilitative gains.
On 31 July 2019, the applicant was first granted extended leave to reside in the community for a period of 12 months, at which time he transitioned from living at TEH to living at a community care unit (‘CCU’) in Camberwell.[3] The applicant was granted consecutive periods of 12 months’ further extended leave in July 2020[4] and 2021.[5] The practical effect of this is the applicant has been living in the community since 31 July 2019.
[3]Re CJC [2019] VSC 508 (Taylor J).
[4]Re CJC (No 2) [2020] VSC 468 (Taylor J).
[5]Ibid [47]; Re CJC (No 3) [2021] VSC 448 (Jane Dixon J).
Following the most recent grant of extended leave, the applicant moved from the CCU to private accommodation in Box Hill, funded by the National Disability Insurance Scheme (‘NDIS’). He continues to reside at this accommodation pursuant to the terms of his extant grant of extended leave, which is due to expire on 31 July 2022.
Relevant legislation and legal principles
On an application to vary a supervision order under s 31 of the Act, the Court must confirm the order, vary the place of custody, or – subject to s 32(2) – vary the CSO to a NCSO.[6]
[6]The Act s 32(1).
Section 32(2) of the Act provides as follows:
The court must not vary a custodial supervision order to a non-custodial supervision order during the nominal term unless satisfied on the evidence available 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.
Additionally, before a CSO can be varied to a NCSO, the person subject to the CSO must have completed a period of at least 12 months’ extended leave, and the Court must consider the extent to which that person has complied with their extended leave conditions, if any.[7]
[7]Ibid s 32(3).
Section 39(1) of the Act sets out the guiding principle to be applied in determining whether to vary a CSO under the Act:
In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, the court must apply the principle that restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Section 40(1) of the Act outlines the following matters to which the Court must have regard to in deciding whether to vary a CSO or to grant extended leave:
(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.
Section 40(2) of the Act provides that the Court cannot significantly reduce the degree of supervision to which a person is subject unless it has first obtained and considered the psychiatric reports and other materials stipulated in that subsection.
The Court may grant an application for extended leave under s 57(2) if satisfied on the available evidence that the safety of the applicant, or members of the public, will not be seriously endangered as a result. Section 40(4) provides that the Court cannot grant further extended leave unless it has first obtained and considered a ‘leave plan’ under s 57A,[8] and the report of at least one registered medical practitioner or psychologist who has personally examined the person on their mental condition and the possible effect of a grant of further extended leave on their behaviour.[9] Similarly to the variation application, in considering the application for further extended leave, the Court must consider the principle of parsimony in s 39(1) and have regard to the s 40(1) factors.
[8]See Psychiatric Report of Dr Belshaw dated 30 May 2022, Appendix 2, for a copy of the leave plan in satisfaction of ss 40(4)(b) and 57A.
[9]The Psychiatric Report of Dr Belshaw dated 30 May 2022 satisfies the requirements under s 40(4)(a).
Whilst the applicant brings the application, he bears no onus of proof.[10] The civil standard of proof, informed by the principles in Briginshaw,[11] applies.[12] As is customary and to assist the Court, the Secretary assumed carriage of the matter during the hearing, and called the relevant witnesses.
[10]NOM v The Director of Public Prosecutions & Ors (‘NOM’) (2012) 38 VR 618 at 646-647, [88]-[91].
[11]Briginshaw v Briginshaw (1938) 60 CLR 336.
[12]NOM at 646-647, [88]-[91].
The Court of Appeal in Hammond (a Pseudonym) v the Secretary to the Department of Health and Human Services & Ors[13] described the ‘critical issue’ in applications of this kind as follows:
…in a case such as this concerned with an application for variation of a custodial supervision order, the court has two alternatives: first, confirm the order; or, secondly, vary it to a non-custodial supervision order. With respect to the second alternative – whether to vary the order – there is one critical issue that must be determined: is the court satisfied on the evidence available 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?[14]
[13] [2018] VSCA 356 (‘Hammond’).
[14]Ibid [43] per Priest and T Forrest JJ A.
The Court went on to describe the s 40(1) factors as ‘generic’, in the sense they apply to a range of different orders under the Act, and ‘cumulative’ to the extent they must each be ‘weighed in the balance’.[15] With respect to s 40(1)(c), which refers to the risk of endangerment generally – different from, but relevant to, the test of serious endangerment under s 32(2) of the Act – their Honours stated:
In determining [the] critical issue, the court must… take into account the cumulative considerations set out in s 40(1), including 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 the need to protect people from such danger. If, after having regard to the evidence bearing on those cumulative requirements, the court cannot be 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, variation of the order must be refused. ’[16]
[15]Ibid [40]-[44].
[16]Ibid [44].
In NOM v Director of Public Prosecutions & Ors,[17] the Court explained the concept of endangerment as follows:
Endangerment is about the risk of harm. 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. In the Oxford English Dictionary, the word ‘endanger’ means `to expose to danger or cause danger to’. The current main sense of the word `danger’ is defined as `liability or exposure to harm or injury; the condition of being exposed to the chance of evil; risk, peril. The ordinary meaning of endangerment entails the concept of chance or risk. The terms of s 40(1)(c) requires a Court to assess whether a person is `likely to endanger themselves or others’. This serves to emphasise that the focus is upon the extent of the chance, risk or peril of some harm materialising. If the harm or injury which is likely to result is substantial but the `chance’, `risk’ or `peril’ of it eventuating is minimal, then a person subject to a supervision order is not necessarily `likely to endanger’ himself or others under s 40(1)(c). [18] (citations omitted, emphasis in original).
[17](2012) 38 VR 618 (‘NOM’).
[18]Ibid [58] (citations omitted).
It follows, therefore, that pursuant to s 32(2), a CSO must not be varied to a NCSO unless the court is satisfied, on the available evidence, that the safety of the applicant and members of the public will not be seriously endangered; that is, significantly or gravely exposed to danger.
Notification of family members and victims
Sections 38C(1) and (2)(c) of the Act requires the Director of Public Prosecutions (‘the Director’) to give notice of an application for variation of a supervision order to each family member of the person subject to the supervision order, and each victim of the index offence.[19] Ms Julie Carpenter, a solicitor on behalf of the Director, confirmed by way of affidavit sworn 21 June 2022 that notice of the hearing of the application had been given to each of the family members and victims in this matter. At the time of writing, no reports have been provided by family members or victims in accordance with their right under s 42 of the Act.
[19]The Act s 38C(2)(c).
I am satisfied pursuant to s 40(2)(c) that the applicant’s family members and the victims of the offence have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered.
Evidence
The Secretary filed two reports in this matter, which satisfied the requirements under ss 40(2)(a)-(ab) and 41(3) of the Act:
(a) Psychiatric report of Dr James Belshaw dated 30 May 2022; and
(b) Case management report of Mr Thomas Crawford dated 16 May 2022.
Dr Belshaw’s report attaches the proposed conditions of a NCSO, should the variation be granted, and alternatively the proposed conditions of a further grant of extended leave. Dr Belshaw gave evidence on the application. Mr Crawford gave brief evidence and was not cross-examined.
Dr Belshaw’s report
Dr Belshaw, a consultant psychiatrist, has been the applicant’s treating psychiatrist since June 2018, working within Forensicare’s Community Treatment and Transition (‘CTT’) team. In preparing his report, Dr Belshaw had access to the applicant’s Forensicare medical records, as well as various psychiatric and other reports dating back to May 2007. Dr Belshaw has personally examined the applicant on seven occasions during 2022, most recently on 30 May 2022.[20]
[20]Psychiatric Report of Dr Belshaw dated 30 May 2022, [3]. Pursuant to s 40(2)(a) of the Act, the author of the report must have ‘personally examined the person’.
Dr Belshaw notes the following background matters:
(a) The applicant began abusing alcohol and cannabis at around 15 years of age, which has been retrospectively identified as a likely psychotic `prodrome’.[21]
[21]Psychiatric Report of Dr Belshaw dated 30 May 2022, [13].
(b) At age 22, the applicant was assessed by his area mental health service (‘AMHS’) as suffering from either drug-induced psychosis or a first episode psychosis, the latter of which Dr Belshaw describes as a non-diagnostic term for a mental disorder with psychotic symptoms as a presenting feature.[22] The applicant’s symptoms at that time included social withdrawal, aggression, hostility, impoverished speech, formal thought disorder, auditory hallucinations, grandiosity and thought passivity.[23]
(c) One month prior to the index offence, in response to a marked deterioration in the applicant’s mental state and refusal to self-administer oral medication, the applicant was placed on a CTO.[24] It was while the applicant was on the CTO and receiving involuntary antipsychotic medication that he committed the index offence.
(d) In November 2007, the applicant commenced on clozapine, an antipsychotic medication reserved for treatment resistant cases of schizophrenia.[25] The applicant’s medication regime has remained unchanged since approximately August 2017; 525mg of clozapine and 6mg of risperidone nightly.[26]
[22]Ibid [19].
[23]Ibid.
[24]Ibid [21].
[25]Ibid [23].
[26]Ibid [32].
Dr Belshaw has consistently described the applicant’s periods of extended leave as a `partial success’.[27] There were minor contraventions of extended leave and CTT treatment recommendations by the applicant during the first two periods of leave, including:
[27]See earlier reports of Dr Belshaw – Psychiatric Report dated 1 July 2020, [85]; Psychiatric Report dated 22 June 2021, [56].
· Impulsively and frequently changing his weekly routine and future plans, despite advice to the contrary;
· Disengaging from NDIS workers due to a belief he did not need such a high level of input;
· Commencing unstable relationships with female co-residents whilst at the CCU, against clinical advice, resulting in stress and anxiety;
· Incurring financial debts due to excessive spending;
· Making excessively frequent calls to the CTT team;
· Making requests of the CTT team indicative of poor judgment, such as a request to drink alcohol;
· Consuming one alcoholic beverage with his partner during a restaurant meal, without informing the CTT as previously instructed.
The applicant was most recently granted further extended leave by Jane Dixon J on 26 July 2021.[28] According to Dr Belshaw, during this latest period of leave, there have been issues similar to those that arose during 2019 and 2020. These include:
[28]Re CJC (No 3) [2021] VSC 448.
· The applicant contacting his Forensicare CTT team making unrealistic and at times fatuous requests. However, Dr Belshaw reports the applicant generally accepts redirection.
· On 18 February 2022, the applicant consumed alcohol whilst dining at a restaurant with his partner, without informing the CTT prior as previously agreed. The applicant did not disclose this to his treating team until 25 February 2022, during a routine review. Following this incident, Dr Belshaw recommended, and the applicant agreed, to remain abstinent from alcohol altogether.
· The applicant continues to express various occupational and educations goals, such as to start a law degree, attend the University of Melbourne, commence an unspecified apprenticeship, or start a trainer cleaning company, none of which he is currently pursuing. However, Dr Belshaw notes the applicant has since agreed to engage with an employment agency to obtain low-skilled work, as opposed to studying further. This is against a background of the applicant commencing, but failing to commit to, various studies and occupational pursuits.
· In or around April 2021, the applicant commenced a romantic, non-intimate relationship with a similar-aged female (‘Ms C’) who, like the applicant, is a NDIS service user. Dr Belshaw reports that, whilst there were some very positive aspects to the relationship – such as meaningful connection, and Ms C’s discouragement of the applicant from using substances – there were concerns. In late 2021 and early 2022, Ms C’s father (who is Ms C’s main carer) and the applicant’s paternal aunt independently raised concerns with the CTT team that the applicant and Ms C had developed a co-dependent relationship, and that it was hindering both of their mental health recoveries. For example, they had formed a plan to co-habit, marry and have children within two years, and in this context the applicant was seeking out highly paying jobs in order to financially support Ms C and their hypothetical future children. The applicant’s treating team set up a meeting with members of both families in February 2022, and again in May 2022, where boundaries were set around the frequency with which the applicant and Ms C could contact one another.
· A general pattern of the applicant’s finances deteriorating when engaged in romantic relationships was repeated. The applicant and Ms C encouraged one another to spend over $8,000 of Ms C’s savings in two months on football trading cards. However, Dr Belshaw notes that the applicant is currently working with his case manager, Mr Crawford, to develop a strict budget, begin paying off some debt and saving for future community needs.
Dr Belshaw reports that, despite difficulties with pragmatic aspects of community living, there have been no issues with the applicant’s compliance with psychotropic medication. The applicant’s attendance at CTT appointments is ‘excellent’, and there have been no incidents of violence, aggression, or overt irritability in the preceding 12 months. The applicant continues to be supported by his mother and paternal aunt, who participate in family meetings with the CTT team, and who are in possession of a current crisis plan which details the applicant’s diagnosis, early warning signs, and key contact details in relation to his mental health.
Dr Belshaw’s report notes various statements made by the applicant which reflect his persisting poor insight into the index offences and his illness. The applicant continues to state that he did not intend to kill his father, and stabbed him in the abdomen. He has held this false belief for more than fifteen years. The applicant also believes that if he had not been given an injection of antipsychotics on the day of the index offence, he may not have committed the offence. At interview on 30 May 2022, the applicant said he believed he had schizophrenia ‘80 per cent’. Positively, the applicant also stated he believed medication maintained his mental state stability, ‘100 per cent’.
Dr Belshaw assessed the applicant’s risk of future violence, involving the use of HCR-20 tool.[29] Dr Belshaw states:
As noted in my previous reports [the applicant] had several historical risk factors for future violence. As they have already occurred, they are considered to be static and unmodifiable. These had not changed in the preceding 12 months, and [the applicant’s] baseline risk of violence remained high.
In terms of current, dynamic risk factors for violence, [the applicant] had no recent positive symptoms of schizophrenia, no recent violent ideation or intent. He had demonstrated a consistent commitment to remaining abstinent from illicit drugs and with support was able to limited [sic] his alcohol use. There remained some ongoing issues related to behavioural instability, compliance with management plans or clinical advice and he had chronic, limited insight. His accommodation was stable. He was well supported by his mother, paternal aunt, and NDIS services. He had demonstrated a reasonable ability to manage stressful situations during the preceding 12 months.
Therefore, I believe that [the applicant’s] risk of future violence was low and will continue to remain low with the collaborative provision of the Eastern Health AMHS Koonung Clinic, NCSO team, NDIS supports, and his family members.[30]
[29]The Historical, Clinical and Risk Management-20, a structured tool used to assess the risk of violence.
[30]Psychiatric Report of Dr Belshaw dated 30 May 2022, [85]-[87].
Overall, Dr Belshaw considers the applicant’s most recent period on extended leave should be viewed as a partial success, consistent with previous periods of extended leave. Notwithstanding this, Dr Belshaw is supportive of the applicant’s application to vary his CSO to a NCSO on the basis that he considers the applicant’s recovery on extended leave to have been optimised, and opines that there would be no further benefit to his risk profile, mental health or rehabilitation were he to remain on extended leave.
Viva voce evidence of Dr Belshaw
In evidence, Dr Belshaw confirmed the applicant suffers from treatment resistant schizophrenia, in partial remission. The positive, overt symptoms are in remission. The applicant suffers from enduring negative syndrome, being cognitive deficits. These cause difficulties with memory, planning and attention. There is no indication this will improve with time.
During his most recent period of extended leave, there were no problematic forensic concerns such as aggression, violence or breaches of the criminal law. There were minor contraventions of conditions. They are considered ‘minor’ because there is not a clear, immediate or direct relationship between those issues, and the applicant’s mental state stability and risk of violence to others. The applicant has continued to present in a very similar way during the past four years. He is polite, co-operative, well-presented, always ahead of time and excellent at attending appointments. There has been nil evidence of delusions, hallucinations or other psychotic symptoms.
The applicant’s cognitive deficits are linked to his limited insight. He remains ambivalent about accepting his diagnosis, only partially able to recall early warning symptoms, and at times indicates a desire to decrease his medications. However, he always attends appointments and can usually be redirected.
Dr Belshaw’s prognosis is there will be no further significant improvement to the applicant’s insight in the future. During four years of reviews, the applicant has displayed no significant decline, but no significant improvement, in his mental health. More broadly, there have been successes and improvements in his level of functioning. His level of compliance with his medication regime is excellent and very positive. He has a robust NDIS plan which provides him with accommodation and significant support. His risk of future violence is low and has been low for the duration of the time Dr Belshaw has worked with the applicant.
Dr Belshaw stated that he has previously not supported a variation to a NCSO, as two significant goals remained unmet. The first was obtaining permanent independent accommodation. The second was putting in place a robust NDIS care plan, and engaging with the applicant’s family to ensure they are cognisant of his illness and early warning signs. These goals have now been achieved. Dr Belshaw said it is now his opinion that any risks are mitigated, and there is no role for a forensic mental health team.
Dr Belshaw stated the applicant’s relationship with `Ms C’ does not increase the applicant’s risk profile. Whether the applicant receives input from CTT or a tertiary level Mental Health service, Dr Belshaw believes the combination of supports is sufficient to maintain the applicant’s low risk of future violence. Work has been done between the CTT, Eastern AMHS and the Forensicare NCSO supervising team to ensure that if the CSO is varied to an NCSO, the transition is well-managed.
In cross-examination by the applicant’s counsel, Dr Belshaw said the applicant’s cognitive deficits became clearer after he left the structured environment of TEH. He agreed the applicant is receptive to redirection, and at the time he receives advice, he responds well. The applicant agreed in February to abstain from alcohol, and whilst he has asked since whether he can drink, once reminded of his agreement, he decided not to consume alcohol. Dr Belshaw agreed there has been no evidence of any psychotic symptoms for a very long time now. He agreed the applicant is low risk of violence not only to other people, but to himself. Dr Belshaw supports the continuation of the suppression order, whether the CSO is varied or further extended leave is granted. He said if details of the offending become known, it could cause anxiety and stress to the applicant, and impact his rehabilitative progress.
In cross-examination by counsel representing the Attorney, Dr Belshaw said the applicant suffers significant negative syndrome, and that is the basis for his reduced capacity for planning, judgment and functioning. Negative symptoms include impulsivity. As a consequence of his negative symptoms, Dr Belshaw said the applicant has never been able to develop a clear weekly routine, or progress in a career or trade, both of which would be very protective. Dr Belshaw said he would expect the pattern of minor contraventions to persist. These do not immediately or directly impact his mental state or risk level. If the applicant had no supports, these minor contraventions could coalesce or develop into a bigger problem, including lack of medication compliance and substance abuse. This in turn would significantly increase the applicant’s risk of violence. The applicant’s care plan is structured to prevent this occurring. Dr Belshaw agreed that applicant’s success has been partial, due to the continued impact of negative symptoms. When asked what complete or full success would look like, Dr Belshaw said to make a full recovery the applicant would need to achieve a regular routine, wider support network, better insight and better community linkages. However, the applicant suffers treatment resistant schizophrenia.
Mr Crawford’s report
Mr Crawford, senior social worker employed by Forensicare, has been the applicant’s case manager within the CTT team since December 2021.
In his report, Mr Crawford addresses many of the matters set out in Dr Belshaw’s report. Mr Crawford’s summary of the applicant’s progress on extended leave is as follows:
Over the last 12 months, [the applicant] continued to demonstrate a chronic pattern of poor judgement, coupled with frequent impulsive alterations of his occupational aspirations and regular routine. He continued to demonstrate and [sic] limited insight into his diagnosis.
[The applicant’s] poor judgement and lability is largely mitigated through the frequent guidance of his [NDIS] support team and involvement of family in his care. In particular, [the applicant’s] aunt continued to have a positive impact on [the applicant’s] decision making.
Therefore, despite the challenges associated with his cognitive deficits, [the applicant’s] recovery and capacity to function in the community appeared positive.
Positively [the applicant’s] excellent compliance with his anti-psychotic medication also mitigates a significant component of his risk for re-offending.
[The applicant] possessed consistent accommodation with regular supports that assist in the completion of activities of daily living. [The applicant] will remain a resident of this accommodation for the next 12 months and will continue to receive the NDIS support that contributes to his ongoing recovery.[31]
[31]Report of Thomas Crawford dated 16 May 2022, [54]-[58].
Mr Crawford advises that on 25 May 2022, the applicant was formally accepted by the Eastern AMHS, Koonung Clinic (‘the Koonung Clinic’), and if the applicant’s CSO is varied to a NCSO, management of his day-to-day treatment will be transferred from the CTT team at Forensicare to the Koonung Clinic, with oversight of the applicant’s overall supervision retained by Forensicare’s NCSO team.
The applicant was first referred to the Koonung Clinic in April 2022, and has been allocated a consultant psychiatrist, psychiatric registrar and case manager at that service. Mr Crawford reports that the applicant has an understanding of the roles of the Koonung Clinic Clinicians and is willing to engage with them. A case conference occurred between the CTT and the Koonung Clinic teams in May 2022, at which time the Koonung Clinic was apprised of the applicant’s diagnoses, background and current supports. Mr Crawford supports the applicant’s application to vary his CSO to a NCSO.
Viva voce evidence of Mr Crawford
In evidence, Mr Crawford provided an update as to a second case conference between the CTT, the NCSO team and the Koonung Clinic Clinicians. The applicant’s challenges and protective factors were discussed, including how they could be managed and applied by the takeover team.
Submissions of the parties
Counsel for the applicant submitted the positive features of the applicant’s illness are in sustained remission. He has been subject to extended leave now for three years, and for the past year, has achieved independent living in Box Hill. The applicant has a demonstrated history of excellent compliance with medication, he has significant supports in place, he responds positively to intervention, and there is a clear and achievable pathway to transition from a CSO to an NCSO. The negative symptoms and their impact on the applicant’s functioning have been identified, and are being managed with the applicant in the community. Counsel for the applicant took the Court through the s 40(1) factors. The applicant has been assessed as low risk, and this is consistent with previous risk assessments. It is unlikely a person in the applicant’s position would ever be assessed as `no risk’, and this is not what is required.[32] Counsel for the applicant referred to the decision of RJE,[33] and submitted the Court should be slow to reject the unchallenged expert opinion evidence of Dr Belshaw, who supports the variation. Finally, counsel submitted the suppression order should continue, and if the application to vary is refused, the Court should direct pursuant to s 31(2) that a further application can be made after 12 months, being less than the three years which otherwise applies.
[32]NOM at [65].
[33]RJE v Secretary to the Department of Justice (2008) 21 VR 526.
The Secretary submits the CSO should be varied to an NCSO. The opinion of Dr Belshaw is the applicant is a low risk of violence to himself or others. This low risk is further mediated by supports. The applicant has sustained an excellent compliance with his medication regime. There have been minor contraventions, but they have not altered the applicant’s risk level. Counsel for the Secretary also referred to the s 40(1) factors, and submitted the treating team is united in their view that the CSO should be varied to a NCSO. If the CSO is not varied to a NCSO, the Secretary agrees the Court should direct that the period in which the applicant can make further application for variation should be less than three years.
The Attorney submits the CSO should be confirmed and a further period of extended leave granted. The Attorney submits there has been some progress, but the applicant continues to display poor insight, judgment and impulsivity. It would be premature to vary the order. There are supports in place, and the applicant displays a high degree of reliance on those supports. The Attorney highlighted the differences between a CSO and a NCSO, and referred the Court to In The Matter Of Sections 31 and 57 Of The Crimes (Mental Impairment and Unfitness To Be Tried) Act 1997 – In The Matter Of An Application By S.S.[34] The Attorney submits that whilst the day-to-day management of the applicant may be the same whether on a CSO with extended leave, or on an NCSO, there are significant differences between the two orders, and an NCSO represents a meaningful reduction in supervision of the applicant in the community. The applicant has ongoing negative symptoms and repeated consequent minor breaches. The Attorney did not submit the Court could, or should, reject the opinion of Dr Belshaw. Rather, relying on the expert evidence, the Attorney submitted the applicant has a high degree of reliance on supports, negative symptoms including impulsivity, and in all the circumstances it would be premature to alter or reduce his existing supports. The Attorney submits that on the evidence, the Court could not be satisfied that the safety of the applicant or members of the public will not be seriously endangered if the applicant is released on a NCSO. The Attorney neither opposes nor supports the continuation of the suppression order, and takes no position on whether the Court should make a direction pursuant to s 31(2).
[34][2000] VSC 524, [15] (Smith J).
Consideration
Section 32(3)(a) is satisfied. The applicant has completed nearly 36 months of extended leave, granted by the Court pursuant to s 57 of the Act.
Section 32(3)(b) requires the Court to take into account whether the applicant has complied with any conditions of his extended leave. The applicant’s extended leave has been described as a ‘partial success’. However, when focussing on the level of risk, the applicant’s extended leave has gone well. Practically, he has been living in the community since July 2019. His positive psychotic symptoms are in sustained remission. His compliance with his medication regime is excellent, and his attendance at appointments is also excellent. He believes ‘100 per cent’ that his medication maintains his mental health stability. There have been no indications of violence, aggression or overt irritability. He has significant and ongoing NDIS funding and support. He has navigated COVID-related lockdowns and restrictions. He has the support of his mother and paternal aunt, and they have engaged with his care team to ensure they understand the applicant’s illness, and the early warning signs which may indicate a relapse. He has demonstrated an ability to deal with stress, such as during an earlier relationship with ‘Ms Z’ in 2019. When that relationship ended, ‘Clinicians noted that [the applicant] managed the stress associated with the relationship capably during late 2019’.[35] He is responsive to suggestions and interventions by his treating team. Since the last grant of extended leave, the applicant has moved from CCU to private accommodation. Positively, the applicant has transitioned well. He is settled, and assisted with daily living. He manages his GP and pharmacy appointments independently. He has contacted his CTT case manager with concerns, and sought their advice to problem solve.
[35]Earlier Psychiatric Report of Dr Belshaw dated 1 July 2020 at p 9, [44].
The applicant has had, and continues to have, difficulties with the pragmatic aspects of everyday life. This is a direct result of his persistent negative symptoms, which are not in remission and unlikely to improve. He has constantly changing occupational and educational goals, which are frequently unrealistic. At times, he makes excessively frequent calls to his treating team. He has problems managing finances, particularly when involved in a romantic relationship. He has, on occasion, consumed one alcoholic drink without first discussing the matter with his treating team. His current romantic relationship with ‘Ms C’ has led to further complications, requiring intervention from his treating team, family and Ms C’s father (who is also her carer). The applicant has limited insight into his illness, and retains long-held false beliefs about the index offence itself.
Section 39 requires the Court to apply the principle that ‘restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community’. This requires the Court to make a value judgment informed by the section, and apply that when making the value judgment required by s 40(1).[36] Based on the evidence of Dr Belshaw, the safety of the community is not threatened or decreased if the variation is granted. In those circumstances, application of the principle favours the variation of the CSO to an NCSO.
[36]Hammond [2018] VSCA 356, [66].
Turning to each of the s 40(1) factors. It is evident the applicant has a well-established diagnosis of treatment resistant schizophrenia and the commission of the index offence occurred in the context of the applicant experiencing an acute psychotic episode.[37]
[37]The Act s 40(1)(a) and (b).
Dealing with factors (c) and (d), `released’ in this context means `released from a CSO onto a NCSO’. Based on the evidence, the applicant is not likely to endanger himself or others if his CSO is varied to an NCSO. The applicant does experience ongoing difficulties with practical aspects of everyday life, but those difficulties do not place persons in danger. For example, his frequent goal changes and problems managing his finances may lead to minor breaches of conditions, but they do not create a relevant `danger’ as that term is employed in the legislation.
The applicant has been formally accepted by the Koonung Clinic, and allocated a care team, including a consultant psychiatrist. Any handover from the CTT to the Koonung Clinic will be carefully managed, to ensure the applicant is continually provided with care and supervision. The applicant has substantial NDIS funding and support. In evidence, Dr Belshaw said the CTT have met and held conferences with the NDIS planning team and coordinators, to ensure they understand the importance of continuing to provide the applicant with a high level of care. The CTT has also advised the Koonung Clinic they should assertively monitor the level of service provision offered by the NDIS in future, to ensure it does not manifestly decrease. On the available evidence, the applicant has substantial supports available in the community, including those provided by the NDIS, if he is in the community and subject to a NCSO.[38]
[38]The Act, s 40(1)(e).
The applicant suffers from treatment resistant schizophrenia. Based on the evidence of Dr Belshaw, a full or complete recovery is unrealistic. Despite his impeccable compliance with moderate to high doses of clozapine and risperidone, the applicant continues to suffer from negative symptoms. However, these negative symptoms are not novel, and do not increase his risk of violence. That risk remains low.
Varying a CSO to a NCSO will significantly reduce the degree of supervision to which the applicant is subject. No party suggests otherwise. A NCSO is meaningfully different from a CSO, even if, in the medium term, the applicant’s accommodation and level of support will remain largely unchanged. However, both are forms of a supervision order. The applicant will remain under supervision if on a NCSO. The risk alluded to by Dr Belshaw, being the risk that may materialise if the applicant is in the community, unsupervised and unsupported, is not contemplated here.
Assessment of risk necessarily involves reliance on expert evidence. The expertise and skill of Dr Belshaw was not challenged, and the factual matrix underpinning his opinion was accepted. Where, as here, the facts are not contested, and the expert opinion is both cogent and unchallenged, the Court should be slow to depart from the expert risk assessment made.[39] The ultimate decision remains with the Court, however the expert opinion of Dr Belshaw is critical evidence which informs that decision.[40]
[39]R J E v Secretary to the Department of Justice (2008) 21 VR 526, 532 [18].
[40]Ibid at 531, [14].
Section 40(2)(a)(ii) of the Act states the court cannot significantly reduce the degree of supervision to which a person is subject, unless it has obtained and considered the report of a registered medical practitioner or psychologist, who has personally examined the person, on ‘the possible effects of the proposed order on the person’s behaviour’. Dr Belshaw stated one reason he supports a variation to a NCSO at this time is because the applicant has reached his ‘ceiling of recovery’. Further periods of extended leave would not significantly mediate risk, change his prognosis, improve his mental state symptoms or change his level of cognitive deficits and related functioning. That evidence, in my view, answers a different question to the one posed by s 40(2)(a)(ii). The question is not whether maintaining the status quo will lead to any significant change or progress. Rather, the question is what would be the possible effect of a NCSO on the applicant’s behaviour. Dealing with that question, and based on the evidence of Dr Belshaw, the possible effects of the proposed order on the applicant’s behaviour would be minimal. His risk of future violence, to himself or others, would not alter. There is no suggestion the applicant will not continue to take his medication. His positive psychotic symptoms will remain in remission, but his negative symptoms will persist.
I accept the opinion of Dr Belshaw that the applicant is low risk of future violence, and will continue to be low risk if his CSO is varied to an NCSO. A distinction can be drawn between the applicant’s ongoing difficulties with aspects of everyday life, and whether his conduct places members of the public, or the applicant himself, at risk, or in peril, of danger. On the available evidence, the applicant’s ongoing difficulties do not alter or raise his risk level. During the four years he has been treated by Dr Belshaw, the applicant has had various difficulties; however, throughout that period, his risk of future violence remained steadfastly low. In all the circumstances, the available evidence satisfies me that the safety of the applicant or members of the public will not be seriously endangered as a result of the release of the applicant on a NCSO. Given this conclusion, there is no need to consider the alternative application for extended leave.
Suppression order
The suppression order made pursuant to s 75 of the Act on 28 October 2008 remains in force. For the avoidance of doubt, that order concerns the 2008 criminal proceeding and ‘related proceedings’. This matter is a related proceeding. It is therefore unnecessary to consider the suppression order application further. There has been no application to vary or revoke the extant suppression order.
Conclusion
The application made pursuant to s 31 to vary the CSO to a NCSO is granted.
The suppression order made pursuant to s 75 of the Act on 28 October 2008 is confirmed.
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