Re CP
[2017] VSC 294
•31 May 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2015 01834
| IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) | |
| and | |
| IN THE MATTER OF an application by CP |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 May 2017 |
DATE OF RULING: | 31 May 2017 |
CASE MAY BE CITED AS: | Re CP |
MEDIUM NEUTRAL CITATION: | [2017] VSC 294 |
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CRIMINAL LAW – Crimes mental impairment – Application for variation of custodial supervision order to non-custodial supervision order – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | Mr H McLachlin | Victoria Legal Aid |
| For the Secretary to the Department of Health and Human Services | Ms L Torres | Department of Health and Human Services |
| For the Attorney-General | Ms D Costaras | Victorian Government Solicitor |
| For the Director of Public Prosecutions | Ms L Wilkinson | Solicitor for Public Prosecutions |
HER HONOUR:
By notice dated 23 March 2017, the applicant applied under s 31(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”), for an order varying his custodial supervision order (“CSO”) to a non-custodial supervision order (“NCSO”). In the alternative, he applied for a further grant of extended leave under s 57 of the Act.
The index offence occurred in August 2007. The applicant, while experiencing an acute psychotic episode, entered the home of a stranger and killed her. Over the 12 months leading up to the index offence, the applicant’s mental health had been steadily deteriorating, as his illicit substance use had been increasing.
On 21 April 2008, the applicant was found not guilty of murder because of mental impairment. He was placed on a CSO for a nominal term of 25 years, commencing on 25 August 2007. He was committed to the custody of the Victorian Institute of Forensic Mental Health (“Forensicare”).
The applicant spent eight years under the supervision of Forensicare, living at the Thomas Embling Hospital (“TEH”).
On 4 June 2015, Beale J granted the applicant extended leave for 12 months.[1]
[1][2015] VSC 495R.
On 27 May 2016, John Dixon J granted the applicant further extended leave until 3 June 2017.[2]
[2][2016] VSC 300R.
Extended leave was granted on the following conditions:
(a) The applicant be under the supervision of the authorised psychiatrist of Forensicare (“the authorised psychiatrist”), or their delegate;
(b) He reside at a location known and approved by the authorised psychiatrist or their delegate;
(c) He abide by the lawful directions of the authorised psychiatrist or their delegate;
(d) He comply with treatment and testing, and attend appointments, as directed by the authorised psychiatrist or their delegate;
(e) He abstain from the abuse of alcohol and the use of illicit drugs; and
(f) He not leave the State of Victoria without the written permission of the authorised psychiatrist or their delegate.
The applicant has now been living in the community under extended leave, without incident, since June 2015.
The current application came on for hearing before me on 30 May 2017. The Attorney-General, and the Secretary to the Department of Health and Human Services, both supported the application for variation of the CSO to an NCSO.
At the conclusion of the hearing, I made orders varying the CSO to an NCSO. These are my reasons for making those orders.
Relevant statutory provisions
When an application is made under s 31 for variation of a CSO to an NCSO, the relevant considerations for the court are contained in s 32 of the Act, which provides as follows:
32 Variation of custodial supervision orders
(1) On an application under section 31 for variation of a custodial supervision order … the court must, by order—
(a) confirm the order; or
(b) vary the place of custody; or
(c) subject to this section, vary the order to a non-custodial supervision order.
(2) 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.
(3) In the case of a forensic patient or forensic resident –
(a) the court must not vary a custodial supervision order to a non-custodial supervision order (whether during or after the nominal term) unless the forensic patient or forensic resident has completed a period of at least 12 months extended leave granted by the court under section 57; and
(b) in deciding an application to vary a custodial supervision order to a non-custodial supervision order, the court must take into account whether or not the forensic patient or forensic resident has complied with any conditions of their extended leave.
(4) If the court varies a custodial supervision order to a non-custodial supervision order before the end of the nominal term, that nominal term continues to run.
(5) The court may direct that the matter be brought back to the court for further review at the end of the period specified by the court.
(6) A direction may be given under subsection (5) more than once.
Sections 39 and 40 specify additional mandatory considerations that apply. Section 39(1) relevantly provides that in deciding whether to vary a supervision order, or to grant extended leave, 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.
The Court of Appeal in NOM v Director of Public Prosecutions (Vic)[3] stated that s 39 requires the court to “balance the interest of the liberty of the detainee with protection of the community and in doing so assess risk factors which, in turn, depend upon value judgments”.[4]
[3]NOM v DPP [2012] VSCA 198 (“NOM”).
[4]NOM at [21].
Further, when applying s 39, s 40(1) outlines a number of factors that must be taken into account:
(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.
While those considerations are mandatory, the Court of Appeal noted that:
Section 39 requires a value judgment informed by the competing considerations stating 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.[5]
[5]NOM at [47].
In addition, s 40(2) provides that the court cannot vary a CSO to an NCSO unless it:
(a) has obtained and considered the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on—
(i) the person's mental condition; and
(ii) the possible effect of the proposed order on the person's behaviour; and
(ab) in the case of a person who is subject to a supervision order, has obtained and considered the report of a person having the supervision of the person subject to the order; and
(b) has considered the report submitted to the court under section 41(1) or (3) (as the case may be); and
(c) is satisfied that the person's family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and
(d) has considered any report of the family members or victims made under section 42; and
(da) … ; and
(e) has obtained and considered any other reports the court considers necessary.
The applicant’s history
The following history has been obtained primarily from written and oral evidence from Dr Shannon Reid and Ms Alarna Spierings. Since March 2016, Dr Reid has been the applicant’s treating psychiatrist in the Community Integration Program (“CIP”) conducted by Forensicare’s Community Forensic Mental Health Service. Ms Spierings has been the applicant’s CIP case manager since April 2016.
The applicant is a 42-year-old divorced father of two. He has been diagnosed with schizophrenia and substance abuse disorder, both of which have been in remission for more than eight years.
Although he had no formal psychiatric history prior to the index offence, there was evidence that the applicant had experienced persecutory delusions of being watched and poisoned. There was also evidence that his general practitioner may have prescribed anti-psychotic medication at some stage.
The deterioration in the applicant’s mental state occurred in the context of frequent heroin and methamphetamine abuse. That progressive deterioration resulted in him leaving his employment in 2007.
On the day of the index offence, the applicant believed that he was targeted by a killer, which led to him taking his car in an attempt to escape. Later, he abandoned the car, and ran through suburban streets, before entering the property of the victim. He heard a voice telling him to kill the victim, which he felt compelled to obey.
After his arrest for the index offence, the applicant was initially held at the Melbourne Assessment Prison, before being transferred to TEH in October 2007. He was trialled on risperidone and olanzapine medication, both without success.
The applicant had inconsistent engagement and response to treatment, until he began treatment with the anti-psychotic drug, clozapine, in August 2008. By January 2009, his acute psychotic symptoms had achieved full remission. He was granted some leave from the hospital two months later. Thereafter, the applicant made further clinical progress, progressing through the acute and sub-acute units of the hospital.
He was admitted to the Jardine rehabilitation unit in July 2012, where he was able to develop a range of community-based activities. Whilst in Jardine, the applicant successfully undertook unescorted leaves, and overnight leaves to his cousin’s house.
In September 2013, he began overnight leave to a transitional housing apartment organised through a community mental health service called NEAMI.
The applicant was discharged from TEH on 4 June 2015, after being granted extended leave. During that initial period of leave, he progressed well. He complied fully with his treatment regime, and showed no clinical evidence of psychosis or mood disturbance. He reported no significant side-effects from the medication. He also abstained from alcohol and illicit substances, as borne out by regular drug screening over the year. Accordingly, further extended leave was granted in May 2016.
The applicant has continued to make good progress over the past year. He has maintained a good level of mental stability, and complied fully with his treatment and supervision. He has attended all appointments. He has shown no signs of relapse.
Despite having a relatively simple understanding of schizophrenia, the applicant has good insight into his condition and the significance of treatment, as well as the need to abstain from illicit substances in order to stay in remission. He also has a recollection of previous experience of psychosis, and a good understanding of how to seek help in the event of a relapse.
The applicant is currently prescribed 300 mg of clozapine daily. He reports that the mild side-effects from clozapine are manageable, and do not impact on his activities. Records show full compliance with monthly blood serum testing. There has been no evidence of any illicit substance abuse.
In August 2016, the applicant and his long-term housemate moved to another apartment in an inner suburb of Melbourne, which offers permanent accommodation. Living arrangements there seem satisfactory and stable. His housemate is his “nominated person” under the Mental Health Act 2014 (Vic).
The applicant has part-time paid employment as a kitchen hand.
The applicant is in regular telephone contact with his mother, who still lives in the country of his birth. He has expressed a desire to visit his mother. If the applicant were to undertake such a trip, it would have to be thoroughly planned, to assess its feasibility, and to ensure the continued monitoring of his medication regime. It was a condition of the applicant’s extended leave that he needed the written consent of the authorised psychiatrist or their delegate to leave Victoria; that will remain a condition under his NCSO.
The proposed change to an NCSO
Central to the decision whether to approve the variation of the CSO to an NCSO was an understanding of how the applicant’s day-to-day management and supervision would be affected by the variation.
The proposed NCSO conditions were in the same terms as those ordered by Beale and John Dixon JJ, in terms of the applicant’s restrictions and obligations. The most significant change was that responsibility for the applicant’s day-to-day management would pass from the CIP to the Clarendon Clinic (which is part of St Vincent’s Mental Health Service, attached to St Vincent’s Hospital).
Under his extended leave, the applicant was supervised by the CIP team at Forensicare: he was seen at least once per month by Ms Spierings, monthly by a psychiatric registrar, and quarterly by the consultant psychiatrist, Dr Reid.
On an NCSO, a new team at Forensicare, the NCSO team, will assume overall responsibility for the applicant’s treatment and supervision. He will still be reviewed quarterly by a Forensicare psychiatrist. However, his day-to-day management will be conducted by the Clarendon Clinic. That includes responsibility for primary psychiatric treatment, requesting drug urine screens, managing the applicant’s medication, and liaising with the broader care team. The Clarendon Clinic team will provide the NCSO team with quarterly written reports about the applicant’s progress.
In preparation for his variation application, the applicant was referred to the Clarendon Clinic in March 2017. He was allocated a case manager, Chris Rogers, who met with the applicant and the CIP team in early May 2017. In mid-May 2017, Mr Rogers met with the NCSO team to discuss the Clarendon care model.
On an NCSO, the applicant will be reviewed fortnightly by either his case manager or a psychiatric registrar. He will be reviewed quarterly by consultant psychiatrist, Dr Suzanne Ong. The frequency of those various reviews at the Clarendon Clinic will be increased, if the treating team considers it appropriate to provide more support during any stressful periods.
In addition, he will also be reviewed quarterly by the NCSO team, instead of the CIP team, at Forensicare.
If there were ongoing significant mental health concerns, significant breaches of the conditions of the NCSO, or a pervasive increase in his risk profile, either his local treating team or his NCSO team could apply to vary the NCSO to a CSO, and to re-admit him back to TEH.
Based on how well he has transferred to new treating teams in the past, both Dr Reid and Ms Spierings had no concerns about the applicant’s ability to engage well with the new Clarendon Clinic and NCSO teams.
Dr Reid concluded that, overall, the current risk of harm to the applicant or others was low, and his risk profile would stay the same if he were placed on an NCSO. Both Dr Reid and Ms Spierings supported the application to vary the CSO to an NCSO.
Reasons for varying the supervision order
The applicant has a diagnosis of schizophrenia, and a past history of substance abuse disorder, both of which are in full remission. At the time of the index offence in 2007, he was acutely psychotic. A combination of frequent substance abuse over a year, non-compliance with treatment, auditory hallucinations and persecutory ideas, gave rise to a compelling feeling that he must obey the command to kill. There was a direct relationship between the applicant’s mental impairment and his offending conduct.
In evaluating whether the applicant is likely to endanger himself or the community because of his mental impairment, his diagnosis and history of anti-social behaviours are major historical risk factors. He also has a history of substance abuse over the year leading up to the index offence, problems with relationships and employment, the difficulty with his early treatment at TEH, and traumatic circumstances he endured during childhood and his teenage years.
Against those historical risk factors are the dynamic factors which might mitigate the likelihood of endangerment. They include his commendable progress following the commencement of clozapine treatment in August 2008. His acute psychotic symptoms fully resolved by early 2009. The applicant has shown adequate insight into his condition, the significance of treatment and abstinence from substance abuse. He has had satisfactory serum level testing results, and has not tested positive to any illicit drugs, during the periods of extended leave.
Further, the applicant’s risk profile is also mitigated by the absence of psychopathy or anti-social personality traits, violent ideation, or persistent acute symptoms of illness. He has never had his leave suspended, or breached any conditions of leave, whilst living in the community.
Also in mitigation of the applicant’s risk of violence are his satisfactory living arrangement with his housemate. They have a positive and mutually supportive relationship.
He has engaged well with his CIP treating team and received ongoing treatment and support by a mental health service in the community. He has complied very well with the requirements of his supervision. He would be likely to engage well with the new staff from Clarendon Clinic and the NCSO team.
From a practical point of view, the frequency and general nature of the applicant’s care and supervision will remain unchanged upon the variation of his CSO to an NCSO, albeit that there will be a different treating team. Overall supervision will be provided by the NCSO team at Forensicare.
The court has obtained and considered all necessary reports required by the Act. Notice was given under s 40(2)(c) to the applicant’s family members, and the family members of the victim. None of them made a report under s 42.
Having regard to the above, and to the principle of “least restriction consistent with the safety of the community” embodied in s 39, I was satisfied that the safety of the applicant and the community would not be seriously endangered as a result of the release of the applicant on an NCSO on the following terms:
(a) The applicant be supervised by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (“the authorised psychiatrist”) or their delegate.
(b) The applicant reside at [a specified address] or a location approved by the authorised psychiatrist or their delegate.
(c) The applicant abide by the lawful directions of the authorised psychiatrist or their delegate or nominee.
(d) The applicant comply with treatment and testing, and attend appointments, as directed by the authorised psychiatrist or their delegate or nominee.
(e) The applicant abstain from the abuse of alcohol and the use of illicit drugs.
(f) The applicant not leave the state of Victoria without the written permission of the authorised psychiatrist or their delegate.
The existing suppression order made by Beale J on 4 June 2015, under s 75 of the Act, remains in force. That means that, until further order, there can be no publication of any matter which might directly or indirectly enable identification of the applicant, the victim, members of their families, or their respective places of residence.
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