Re EW
[2024] VSC 579
•22 July 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0283
| IN THE MATTER of a court-directed review of a non-custodial supervision order pursuant to s 27(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| and |
| IN THE MATTER of EW |
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JUDGE: | Niall JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 July 2024 |
DATE OF ORDERS: | 22 July 2024 |
DATE OF REASONS: | 30 September 2024 |
CASE MAY BE CITED AS: | Re EW |
MEDIUM NEUTRAL CITATION: | [2024] VSC 579 |
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CRIMINAL LAW – Mental impairment – Court-ordered review of non-custodial supervision order – Continuation of order supported by treating experts, the Secretary and the Attorney-General – Non-custodial supervision order confirmed – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss 33, 39, 40, 75.
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APPEARANCES: | Counsel | Solicitors |
| For the Reviewee | Mr C Grant | Melasecca Kelly & Zayler |
| For the Secretary, Department of Health | Mr J Teng | Department of Health |
| For the Attorney-General of Victoria | Ms E James | Victorian Government Solicitor |
HIS HONOUR:
Introduction
The reviewee (‘EW’) is currently on a non-custodial supervision order (‘NCSO’) under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). This hearing is a court-ordered review of that order, in determining which the Court must either confirm the order, vary its conditions, vary it to a custodial supervision order (‘CSO’) or revoke it. All parties, inclusive of EW, the Secretary to the Department of Health (‘the Secretary’), and the Attorney-General, agree that the appropriate outcome on the review is that the NCSO be confirmed.
At the conclusion of the hearing, I confirmed the NCSO on the same conditions. These are my reasons for making that order.
Background
EW is a 30-year-old man with dual diagnoses of antisocial personality disorder and emotionally unstable personality disorder.
In January 2014, EW killed a man while experiencing psychosis. He was charged with murder and, in November 2015, a jury found him not guilty of that offence by reason of mental impairment, following which this Court declared him liable to supervision under Part 5 of the Act.
In April 2016, EW was made subject to a CSO with a nominal term of 25 years, from 6 January 2014. Pursuant to the CSO, EW was admitted to Thomas Embling Hospital (‘TEH’) for supervision and treatment of his condition. It was initially thought that EW had a diagnosis of schizophrenia, but over time — in the absence of any persisting psychotic symptoms — EW’s condition has been revised, with it now being considered that he was suffering from drug-induced psychosis at the time of the index offence. EW is not currently thought to have an enduring psychiatric condition.
EW progressed through the regime at TEH and began transitioning to the community in 2020 via overnight leaves with family who were, and continue to be, strongly supportive of him. In December 2021, EW was granted a period of 12 months’ extended leave, which allowed him to reside in the community full-time.[1] This was followed by a further grant of 12 months’ extended leave in December 2022.[2] In 2023, the Court varied his CSO to a NCSO, for reasons that included the following:
The current and unchallenged evidence of [EW’s treating psychiatrist] Dr Belshaw is that EW has been able to transition to full-time and independent living in the community during the two successive periods of extended leave, without any relapse of symptoms or substance abuse. There have been no adverse incidents and his risk rating has remained low throughout. Dr Belshaw’s opinion is that the treatment and monitoring provided by Forensicare’s CTT program is no longer significantly mediating EW’s risks or adding to his ongoing recovery.
I have had regard to each of the matters in s 40. I note that the index offence was associated with an episode of psychosis. Significantly, the evidence shows a long period of stability in EW’s mental state. There is no recent evidence of psychosis or other mental illness and he has consistently presented as stable. He has developed an insight into his illness and offending and of the need to seek assistance in the event he becomes unwell. He has strong family support, and resources within the community and has available to him Alfred Health in the event he requires professional support. In addition, conditions can be imposed on the non-custodial supervision order to ensure some degree of oversight by the Chief Psychiatrist.
EW is not currently medicated, there are no symptoms of psychosis, mental illness or instability, there are no anger management problems and he is living independently. The risk assessment undertaken by Dr Belshaw places the risk as low. Although the historical static risk is high based on the offending, the dynamic factors are favourable and well support Dr Belshaw’s overall assessment. That assessment takes into account a single positive drug screen for benzodiazepam and an acknowledgement by EW that some of his friends or associates have consumed illicit drugs. He has coped well with stressors including moving to live independently and in employment. His forensic history means that there will remain challenges in securing employment and there may remain some stigma associated with his past. EW has shown commendable fortitude in navigating these difficulties and his behaviour and good mental health has provided a relatively secure platform on which Dr Belshaw and [EW’s case manager] Ms Mellia were able to base their opinions.
Based on the evidence, and the submissions in support of the variation, I am satisfied that EW will not likely endanger himself or another person because of his mental impairment should the variation be made.
The grant of leave is supported by the Attorney-General and the Secretary. EW’s therapeutic progress is very positive. I am comforted by the fact that where issues have arisen they have been addressed by EW and he appears to have a good insight into the possible risks and problems that may arise. The return to independent living in the community will never be entirely free from risk, but the risks that do exist appear to be well managed. Keeping EW on a CSO would be counterproductive and limit his ongoing rehabilitation. As already noted, the evidence establishes that the risk to the community and to EW by the variation of the CSO to a NCSO is low, and I am satisfied that there is no serious risk that the community would be seriously endangered.[3]
[1]Re EW [2021] VSC 836R.
[2]Re EW [2022] VSC 744R.
[3]Re EW [2023] VSC 616, [43]–[47] (Niall JA).
It followed that, on 19 October 2023, I varied EW’s CSO to a NCSO on the following conditions:
(a) That [EW] be supervised by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (‘VIFMH’) or their delegate or nominee.
(b) That [EW] resides at a location known and approved by the authorised psychiatrist of the VIFMH or their delegate or nominee.
(c) That [EW] abides by the lawful directions of the authorised psychiatrist of the VIFMH or their delegate or nominee.
(d) That [EW] complies with treatment, testing and attends appointments as directed by the authorised psychiatrist of the VIFMH or their delegate or nominee.
(e) That [EW] abstains from the abuse of alcohol and from the use of illicit drugs.
(f) That [EW] not leave the State of Victoria without the written permission of the authorised psychiatrist or their delegate at the VIFMH. This includes overseas travel, which must be approved by the authorised psychiatrist or their delegate at the VIFMH.
In varying the CSO to a NCSO, I directed that the NCSO be reviewed on a date to be fixed after 20 April 2024. These reasons relate to the hearing of that review.
Applicable legislation
This review under s 27(2) is governed by s 33 of the Act, which relevantly provides:
(1) ... on a review of a non-custodial supervision order directed under section 27(2) or on a further review of a non-custodial supervision order directed under subsection (2) or section 32(5), the court must, by order—
(a) confirm the order; or
(b) vary the conditions of the order; or
(c) vary the order to a custodial supervision order; or
(d) revoke the order.
(2) Unless the court revokes the order, 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.
(3) A direction may be given under subsection (2) more than once.
In determining the appropriate disposition on the review, the Court must apply the principle in s 39(1) that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community, and have regard to the following factors in s 40(1):
(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.
The Court cannot significantly reduce the degree of supervision to which a person is subject unless it has obtained and considered the kinds of reports outlined in s 40(2).
Notification of family members and victims
The Director of Public Prosecutions (‘the Director’) is required to give notice of certain hearings, including reviews of the present kind, to each family member of the person subject to supervision and each victim of the index offence.[4] An affidavit filed on behalf of the Director on 17 July 2024 confirms the Director’s compliance with these obligations. No reports from family members or victims have been received under s 42 of the Act.
[4]The Act, s 38C(1), (2)(b).
Evidence
The Secretary has filed the following reports for the purposes of the current review, in satisfaction of the requirements in s 40(2)(a) and (b):
(a) Report of Dr Asiri Rodrigo dated 18 June 2024 (filed 24 June 2024); and
(b) Report of Dr Ann Brennan dated 26 June 2024 (filed 27 June 2024).
Report of Dr Rodrigo
Dr Rodrigo is a consultant psychiatrist employed by Forensicare. He has been EW’s supervising psychiatrist on the NCSO.
In addressing current diagnoses, Dr Rodrigo states that EW has antisocial personality disorder and emotionally unstable personality disorder. Notwithstanding that EW was diagnosed with schizophrenia following the index offence, opinion with respect to his diagnosis has continued to evolve. At the time the matter was last before the Court in October 2023, EW’s then treating psychiatrist, Dr James Belshaw, noted EW was thought to have either bipolar affective disorder or drug induced psychosis, although considered a diagnosis of bipolar affective disorder increasingly unlikely the longer EW’s psychotic symptoms remained in remission absent treatment on antipsychotic medication. Dr Belshaw’s opinion at that time was that EW was someone vulnerable to psychosis and mania, primarily induced by substance abuse and/or extreme stress. Dr Rodrigo notes EW stopped taking antipsychotic medication in 2018 (around seven years ago), and that there has been no reemergence of psychotic symptoms since then. He states EW’s revised diagnosis is drug induced psychosis.
Dr Rodrigo reports EW has maintained a stable mental state since commencing on the NCSO in October 2023. He has attended all appointments with his treating teams as required, and shown insight into his condition and the need to avoid substance use to prevent relapse. EW maintains positive relationships with family and friends and is in regular contact with, and strongly supported by, family in particular. He currently lives in private rental accommodation in Camberwell (having moved from Malvern East in December 2023). He is studying social work and reported working part-time as an unskilled labourer.[5]
[5]As noted at paragraph 23 below, Dr Brennan reports that EW lost his job due to his inability to travel by car to the worksite.
Notwithstanding EW’s general positive progress, Dr Rodrigo notes there have been a number of events that have clouded EW’s overall stability on the NCSO:
(a) In January 2024, EW was involved in an incident at a McDonald’s drive-through (‘the McDonald’s incident’). He said he was approached by two drunk men who wanted to get in his car and that he told them to leave him alone. He attempted to progress through the drive-through but was again confronted by the men and yelled at them to go away, before something was thrown at his car and he got out to check if it had been damaged. He reported that one of the men then ran away, and that he confronted the other man who fell to the ground and may have grazed his wrist. EW said there was no violence involved and that after the incident he checked to see if staff were okay before leaving and reporting the events to his family and friends, who advised him to leave it alone. EW described feeling mildly disturbed following the incident, but said he was supported through this by family and friends.
(b) In February 2024, EW returned a drug screen that was positive for cocaine. This issue was raised with EW by Dr Ann Brennan, EW’s area mental health service treating psychiatrist at Alfred Health’s St Kilda Road Clinic. Dr Brennan said EW appeared genuinely surprised when he was informed. He denied any drug use, although did say he had had a few ‘party nights’ where he drank alcohol and where others may have been smoking marijuana. He had no explanation for why his drug screen returned a positive result for cocaine. Dr Brennan reiterated the dangers of drug use to EW, particularly given his history of drug induced psychosis. The issue was also discussed with EW by Dr Rodrigo at a review in March 2024, at which time EW again denied any drug use and said he had been very surprised by the result. He said he had been at a party a couple of nights before the drug screen, where he drank alcohol and smoked nicotine, but said he did not believe drugs had been mixed with either, and that he had a good recollection of the night and did not feel affected by drugs. At a review with Dr Brennan in April 2024, EW hypothesised (in relation to the positive drug screen) that he may have drunk from other people’s drinks at the party and that those drinks may have contained cocaine. Neither Drs Brennan nor Rodrigo noticed any deterioration in EW’s mental state following the positive drug screen, and while it was noted in April 2024 that EW’s presentation was ‘devoid of emotion’, Dr Rodrigo considers this to likely be a product of EW’s personality deficits.
(c) In April 2024, EW reported to his treating team at Forensicare that he had been charged in relation to the McDonald’s incident. He reported additional stress as a result of his boss requesting he work extra days, but generally denied any persistent low mood or anxiety, although did say he would like to reconnect with his private psychologist. In May 2024, he described feeling stressed, particularly due to the potential impact of the charges on his pursuit of a social work career, and also reported feeling withdrawn and tired, as well as lacking motivation and struggling to sleep. In relation to the charges, EW said he did not consider himself to have been targeted by police or the people who made a complaint against him. He said he was aware of the dangers of personalising experiences in such a way.
(d) In May 2024, EW raised ongoing sleep issues with Dr Rodrigo and requested medication. The issues were relayed to EW’s treating team at St Kilda Road Clinic and EW was subsequently prescribed a low dose of quetiapine (antipsychotic medication that can be used in lower doses to treat sleep disturbance and/or anxiety). It was canvassed that, if EW experienced lowered mood, prescribing mirtazapine (antidepressant and anti-anxiety medication) could be explored.
(e) At an unspecified time, EW lost his driver’s license.
At the time of Dr Rodrigo writing his report, EW’s day to day care was in the process of transitioning from St Kilda Road Clinic to St Vincent’s area mental health service in Hawthorn, the Hawthorn Clinic (EW having changed catchment areas since moving to Camberwell). In late May 2024, a case conference was held between Forensicare, St Kilda Road Clinic and Hawthorn Clinic, where various matters — including EW’s presentation and recent issues — were discussed. The Hawthorn Clinic confirmed it could accept EW as a client, and was able to offer him individual and group therapy as well as drug and alcohol counselling, and would confer with St Kilda Road Clinic as needed with respect to his transition of treatment and care.
Risk assessment
Dr Rodrigo used the HCR-20, Version 3 tool to assess EW’s future risk of violence, weighing his historical (past), clinical (current) and risk management (future) factors together and ultimately assessed EW’s risk of future violence as moderate. Dr Rodrigo considered that this risk may become elevated if EW experiences a deterioration in his mental state, potentially precipitated by drug use, stress, loss of supports or poor routine or structure.
Dr Rodrigo does not anticipate any change to EW’s stability in the areas of accommodation, personal supports or finances (EW being in receipt of the disability support pension, and working part-time) in the immediate future. However, he notes EW has shown a vulnerability to stress as demonstrated by recent issues with sleep disturbance and social withdrawal. Further, EW’s time on the NCSO has been tainted by various matters, including the McDonald’s incident and ensuing criminal charges, as well as the positive drug screen. Bearing these matters in mind, it is Dr Rodrigo’s opinion that EW’s mental state should be closely monitored at this time, and to this end he recommends that the NCSO remain in force so Forensicare can retain oversight of EW’s condition, especially as EW transitions his day to day care from St Kilda Road Clinic to Hawthorn Clinic:
In my view, the NCSO remains the appropriate oversight that is necessary and least restrictive at this time, with recent changes and challenges in [EW’s] presentation and management. The NCSO team will continue to work closely with his treating team with treatment for substance misuse and stress management in preparation of [EW’s] eventual revocation of his NCSO. I would, therefore, respectfully request the court to confirm his NCSO and review his case in six months’ time.[6]
[6]Report of Dr Asiri Rodrigo dated 18 June 2024, [46].
Report of Dr Brennan
Dr Brennan is employed by Alfred Health as Director of Adult Community and Older Adult Service. She has been EW’s treating psychiatrist at St Kilda Road Clinic, but also met EW previously through her work at Forensicare as a psychiatrist.
Dr Brennan notes that EW has not been treated with antipsychotic or mood-stabilising medication for some time, and has remained symptom-free notwithstanding this. She notes this would be unusual for someone with an enduring mental illness, and that it is therefore considered that EW’s psychotic condition at the time of the index offence was substance-related, set in the context of a family history of mental illness and his personality vulnerabilities. Dr Brennan notes, against this background, that the role of St Kilda Road Clinic in EW’s treatment and care is slightly unusual, with his treatment goals focused on mental state monitoring and support in transitioning out of the forensic mental health system.
In terms of EW’s interactions with St Kilda Road Clinic since commencing on the NCSO, Dr Brennan reports EW has attended all appointments without issue and overall has presented with a largely stable mental state. However, the events over the last six months (including moving accommodation/catchment areas, the McDonald’s incident and related criminal charges, the positive drug screen, EW supporting his brother who experienced a deterioration in his own mental state, and losing his driver’s licence and reportedly his job) have impacted EW’s level of stress and caused some anxiety and sleep disturbance. Dr Brennan reviewed EW in early June, in the context of a family meeting that EW’s father attended, and noted:
During this meeting there was full discussion of [EW’s] progress, stressors and challenges. [EW’s father] appeared to have a clear understanding and knowledge of the issues discussed. [EW’s father] described how his son had been impacted by his challenges over the last 6 months and that this had manifested as anxiety. He told me that the move of accommodation had gone well and that [EW] had been a valuable support to his brother. He described the loss of work and role as highly significant for his son but he also described his son as being resilient and was ’coping’. He has changed his behaviour to avoid high risk situations in terms of exposure to illicit substances and he is not drinking any alcohol. [EW’s] father described his son as being free of psychotic symptoms for many years now.[7]
[7]Report of Dr Ann Brennan dated 26 June 2024, [7].
In addressing risk assessment, Dr Brennan does not refer to any risk assessment tools used, but states her impression is that in the absence of any relapse into psychosis or substance use, EW’s risk of future violence is ‘not high’. Her recommendations for EW’s treatment over the next 12 months are:
·Monthly monitoring of mental state and response to stressors.
·Treatment and care to be provided by St Vincent’s Mental Health Service.
·Work on finding and then engaging with long term mental health supports. This would include a psychologist and private psychiatrist for monitoring. Engagement should commence whilst under the care of St Vincent’s Mental Health and in preparation for transition to treatment and care outside of the Forensic Mental Health and Specialist Mental Health sector.
·Sustained and long term attention to preventing relapse into substance misuse.[8]
[8]Ibid [9].
Dr Brennan does not specifically provide an opinion as to the appropriate outcome on the review.
Submissions
All parties agree that the NCSO should be confirmed.
The Attorney-General submits that, if the NCSO is confirmed, EW should be required to attend additional treatment, testing and appointments, given the events that have transpired since he commenced on the NCSO. The Attorney-General submits that monthly meetings with a treating psychiatrist (as recommended by Dr Brennan) are not sufficient at this time, and that confirmation of the NCSO with the extra measures proposed is an appropriate step to ensure EW’s risk can be managed in a way that is consistent with the principle of parsimony in s 39(1) of the Act.
The Secretary and the Attorney-General take no position on the appropriate period for further review. EW submits that a review in six months’ time would be appropriate in the circumstances, which is consistent with Dr Rodrigo’s opinion.
The parties did not address or provide any position on whether the current suppression order should continue.
Decision
The NCSO should be confirmed. No party sought that it be revoked. There is no basis in the material that would justify varying the NCSO and returning EW to a custodial setting.
The material satisfies me that it is appropriate to confirm the order at this stage. I am satisfied that treatment and therapeutic support is both necessary and helpful and that it should continue under the auspices of the NCSO. The existing conditions will give sufficient flexibility to the treating team to ensure the appropriate level of support and I do not consider that additional conditions are required.
There are a couple of matters that are of concern. First, the positive drug screen and, second, the incident at the McDonald’s restaurant that resulted in charges being laid against EW. I have read the police summary of the alleged offending.
It is neither necessary nor desirable to make any findings on what occurred in relation to that incident. That is for two principal reasons. Regardless of the finding, I would not make a different order on the present review. Second, I am satisfied that the existing conditions are wide enough to ensure an appropriate level of supervision as to EW’s mental state and therapeutic progress.
An issue might arise as to whether the incident, if it occurred in the manner alleged by the informant, is related in any way to the mental impairment that resulted in the CSO being imposed. In that context, the extent to which the NCSO might serve a protective function in relation to matters that are not related to the mental impairment that led to the CSO being imposed may need to be considered.
Similarly, it is not necessary to determine the reasons behind the positive drug screen. It is enough that the treatment team are aware of it and it is a factor that they can take into account in relation to the nature and level of therapeutic support.
Given the role of ongoing therapeutic support, it is necessary that the NCSO continue. It should be reviewed in six months.
Suppression order
This matter is currently subject to a suppression order that was made on 13 December 2021, and confirmed most recently on 19 October 2023, which prohibits publication of any matter which might enable the identification of EW or his family, or the victim or his family, or any of their places of residence, or any evidence given in the proceeding, including the expert reports, until further order.
The making of suppression orders is governed by s 75 of the Act, which provides:
(1) In any proceeding before a court under this Act, the court, if satisfied that it is in the public interest to do so, may order—
(a) that any evidence given in the proceeding;
(b) that the content of any report or other document put before the court in the proceeding;
(c) that any information that might enable an accused or any person who has appeared or given evidence in the proceeding to be identified—
must not be published except in the manner and to the extent (if any) specified in the order.
(2) An order under this section may be made on the application of a party or on the court’s own initiative.
(3) A person must not publish or cause to be published any material in contravention of an order under this section.
In my opinion, the suppression order should continue. The purpose of a supervision order is to enable treatment and support of persons who have a mental impairment. It has both a therapeutic and protective purpose. It is not punitive and matters such as deterrence, denunciation and punishment have no role to play. It is important that all of the work of the Court including under the Act be undertaken having regard to the principles of open justice. Section 75 recognises that there may, in an appropriate case, be good reason in the public interest to restrict publication of matters that would identify a persons as having been the subject of a supervision order. It is appropriate in this case for the order to continue. I am satisfied that publication would risk or undermine the strong therapeutic gains that have been made to date.
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