Re GB
[2023] VSC 343
•21 June 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CI 2018 02536
| IN THE MATTER of an application pursuant to s 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 for revocation of a non-custodial supervision order by GB | |
| and | |
| IN THE MATTER of a review of a non-custodial supervision order pursuant to s 32 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). | |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 June 2023 |
DATE OF JUDGMENT: | 21 June 2023 |
CASE MAY BE CITED AS: | Re GB |
MEDIUM NEUTRAL CITATION: | [2023] VSC 343 |
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CRIMINAL LAW – Mental Impairment – Review of non-custodial supervision order – Application for revocation of non-custodial supervision order – Whether revocation would seriously endanger the applicant or members of the public – Whether adequate resources available in the community – Principle of parsimony – Where Applicant living in the community and supported by treating team – Application supported by the Secretary to the Department of Health – Application supported by psychiatric evidence – Application opposed by the Attorney-General – Application to revoke non-custodial supervision order granted – Suppression order variation sought encompassing reporting prior to 2018 – NOM v Director of Public Prosecutions (2012) 38 VR 618 – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 22, 29, 31, 38C, 40, 42, 75.
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APPEARANCES: | Counsel | Solicitors |
| For GB/Reviewee | Ms S Delaney, solicitor | Victoria Legal Aid |
| For the Secretary to the Department of Health | Ms M Wilson (8 June 2023) Ms V Velauthapillai, solicitor (21 June 2023) | Department of Health |
| For the Attorney-General | Ms J Poole (8 June 2023) Ms M Black, solicitor (21 June 2023) | Victorian Government Solicitor’s Office |
| For the Director of Public Prosecutions | Ms J Carpenter (8 June 2023) | Office of Public Prosecutions |
HER HONOUR:
Introduction
On 1 February 2011, GB, who suffers from paranoid schizophrenia, killed his niece whilst suffering from paranoid delusions. He was later found not guilty of her murder by reason of mental impairment and made subject to a custodial supervision order (‘CSO’), under the terms of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). The CSO had a nominal term of 25 years, commencing from 1 February 2011.
Pursuant to the CSO, GB resided at Thomas Embling Hospital (‘TEH’) full-time while progressing through the treatment and rehabilitative regime there. GB was granted extended leave pursuant to s 57 of the Act on four separate occasions between 17 January 2019 and 15 December 2021. On 15 June 2022, Taylor J (as her Honour then was) made orders varying GB’s CSO to a non-custodial supervision order (‘NSCO’). Her Honour also directed a review of the NCSO to occur within 12 months’ time, under s 32(5) of the Act.
On 8 May 2023, GB filed an application with this Court for revocation of his NCSO, pursuant to s 31 of the Act. That application was heard before me on 8 June 2023, together with the court-ordered review directed on 15 June 2022 by Taylor J. At the hearing, GB, the Secretary to the Department of Health (‘Secretary’), and GB’s treating team each submitted that the NCSO ought be revoked, whereas the Attorney-General (‘Attorney’) submitted it ought be confirmed. GB also sought a variation of an existing suppression order, to the effect that it apply to ongoing internet publication of reports originally published prior to 21 November 2018.
At the end of that hearing, I advised parties that I would reserve my decision. I now publish my decision.
Legislative Scheme
The NCSO review and GB’s revocation application are both governed by s 33 of the Act, which relevantly states:
33 Variation or revocation of non-custodial supervision orders
(1) On an application under section 31 for... revocation of a non-custodial supervision order… or on a further review of a non-custodial supervision order directed under… 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 deciding whether to revoke a supervision order, 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.’[1] The Court must also have regard to the matters set out in s 40(1), as follows:
[1]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘the Act’), s 39.
(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 interaction between the principle expressed in s 39 and the factors in s 40(1) was addressed by the Court of Appeal in NOM v Director of Public Prosecutions (‘NOM’),[2] where their Honours held:
Section 39 requires a value judgment informed by the competing considerations stated 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 interrelated 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.[3]
[2](2012) 38 VR 618 (Redlich and Harper JJA and Curtain AJA) (‘NOM’).
[3]Ibid, 633 [47] (citations omitted).
Section 40(2) of the Act provides:
The court cannot order a person to be released unconditionally or otherwise release a person from custody under Part 3, 4 or 5, or significantly reduce the degree of supervision to which a person is subject, 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) …
(e) has obtained and considered any other reports the court considers necessary.
Background
GB is a 64 year old man with a diagnosis of chronic paranoid schizophrenia and severe alcohol use disorder, both in remission.
GB’s personal and psychiatric history, and the circumstances of the index offence, have been summarised in previous decisions of this Court:
[GB] was raised in a Victorian regional town with his parents and three siblings. He left school at 15 years of age after being expelled for misbehaviour. [GB] then began work as a bricklayer, ceasing employment in 2008. [GB’s] parents and his only sister are now deceased. He has not had contact with his brothers since the index offence.
[GB] commenced his first intimate relationship when he was 19 years old. His partner gave birth to his daughter when he was aged 21 years. [GB] lost contact with that daughter following the end of the relationship. He has recently renewed contact with her, including a face to face meeting in May 2022.
[GB] married in his mid-20s. He and his wife had three children. A son from her previous relationship was also raised by [GB] and his wife. One of [GB’s] daughters died from sudden infant death syndrome. This has had a significant impact upon him.
It is reported that [GB] had a long standing history of perpetrating violence against his wife and children. The marriage ended after 14 years as a consequence of the family violence and his excessive alcohol use.
It is thought to be most likely that [GB] commenced experiencing psychotic symptoms in 2002. He was first hospitalised for psychiatric illness in about 2008 or 2009. [GB] was hospitalised following his involvement in a violent episode at a hotel. He reported experiencing delusions of persecution by police, mafia and bikie gangs. He was charged with criminal damage, intentionally causing injury and unlawful assault on a police officer. Following the incident, [GB] ceased alcohol use and joined Alcoholics Anonymous.
[GB] became non-compliant with his prescribed medication in 2010, but recommenced it shortly before the index offence in 2011. He missed a medication review one month prior to that offence.[4]
[The index offence]
On the morning of Tuesday 1 February 2011, [GB] left his home wearing a backpack containing a knife and a mash hammer. He habitually carried these items with him when he left his home as he was afraid of being attacked by members of the Victoria Police, motorcycle gangs and the mafia.
At approximately 10.15 am he passed the house of his niece in a Victorian regional town (‘the town’). He decided to stop by her house to get a glass of water. Whilst he was inside his niece’s home, he saw her computer and asked if he could use it. He wanted to use the computer to record some of his beliefs about the activities of Victoria Police, motorcycle gangs and the mafia in the town. His niece did not allow him to use her computer. At that point, to use his own word, he “snapped”. He removed the mash hammer from his backpack and attacked his niece with the hammer. He struck her multiple times to the head. She fell to the floor. She sustained significant head injuries as a result of the attack and remained on the floor seriously injured. After this, he grabbed a knife and stabbed her multiple times to the chest, back and legs.
At 12.06 pm in the afternoon he called 000 telling the operator he had assaulted his niece with a hammer and stabbed her. At 12.22 pm police attended the scene. He was arrested outside the premises. His niece was found on the floor of the dining room. It was apparent she had sustained severe blunt force injuries to her head and multiple stab wounds to her chest, back and leg. Ambulance paramedics were unable to save her and she died at the scene.[5]
[4]Re GB [2022] VSC 323 [22]-[28] (Taylor J).
[5]Re GB; An application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 [2019] VSC 4 [1]-[3] (Macaulay J).
GB’s community treating team is at the Hotham Street Clinic, which is part of Northern Area Mental Health Service (‘NAMHS’). He resides alone in a unit which was previously shared with another forensic patient. He receives the Disability Support Pension, has National Disability Insurance Scheme (‘NDIS’) support workers and works two days per week.
Expert evidence
At the hearing on 8 June 2023, all parties relied on written submissions and affidavit material filed with the Court.[6] Three reports were tendered into evidence in satisfaction of s 40(2) of the Act:
[6]Affidavit of Sophie Claire Delaney affirmed and filed 7 June 2022; Submissions on behalf of the Attorney General filed 1 June 2023; Submissions on behalf of the Director of Public Prosecutions filed 5 June 2023; Affidavit of Julie Carpenter filed 5 June 2023; Submissions on behalf of GB filed 5 June 2023; Affidavit of Sophie Claire Delaney affirmed 28 March 2013 and filed 5 June 2023; Submissions on behalf of the Secretary to the Department of Health filed 6 June 2023; Affidavit of Sophie Claire Delaney affirmed 6 June 2023 and filed 7 June 2023.
(a) report of Dr Ria Zergiotis, Consultant Forensic Psychiatrist, Forensicare dated 7 May 2023;
(b) report of Dr Rajeev Swamy, Consultant Psychiatrist dated 21 April 2023; and
(c) report of Ms Jessica Mekken, Key Clinician, Hotham Street Clinic dated 1 May 2023.
All three experts gave oral evidence at the hearing.
Dr Zergiotis
Dr Zergiotis is a consultant forensic psychiatrist employed by Forensicare. She has been GB’s supervising psychiatrist since February 2022.[7] Her report is based on the previous psychiatric reports provided to the Court, GB’s clinical notes, her reviews with GB and liaison with his community treating team at the NAMHS.[8]
[7]Report of Dr Ria Zergiotis dated 7 May 2023, [5] (‘Dr Zergiotis Report’).
[8]Ibid, [3]-[5].
In her report, Dr Zergiotis confirmed that GB’s mental state has remained stable over the last 12 months and that there is no evidence of psychotic symptoms. GB is well engaged with his treating team and has been compliant with his psychotropic medication and with the conditions of his NCSO. There have been some recent issues with missed appointments, which GB attributes to forgetfulness. Dr Zergiotis reports that GB has otherwise been proactive in attending appointments and has since received support from his treating team to address issues of forgetfulness, such as being sent text message prompts, in addition to assistance setting up calendar reminders. Dr Zergiotis saw no clinical need for a further neuropsychological assessment,[9] and explained that the occasional missed appointments were likely attributable to ‘mild memory impairments, rather than any intentional missing of appointments.’[10]
[9]T23:28-24:6.
[10]T8:27-T9:2.
GB’s accommodation in a public housing unit is stable, and he has previously lived there with a housemate without incident.[11] GB responded well when this housemate returned to in-patient care at TEH.[12]
[11]T26:3-12; T60:4-15.
[12]Dr Zergiotis Report, [18]; [25]; [39]; [47]; [68].
In terms of community linkages, Dr Zergiotis noted that GB has a general practitioner (‘GP’) in the community and keeps a busy schedule between visits from NDIS support workers two to three days per week, paid factory work two days per week, fortnightly attendance at a local Men’s Shed, spending time with his housemate (when he lived at the unit), and occasional phone contact with his children in Queensland.[13]
[13]Ibid, [25]; [40]; [47]; [56]; [61]; [63].
Dr Zergiotis reported that, up until recently, GB had not seen his children since before the index offence (in circumstances where his children had struggled with their own trauma following the index offence).[14] GB had consistently expressed a desire to reunite with his children and meet his grandchildren, and after transitioning to the NCSO was granted permission by Forensicare to travel to Queensland for this purpose.[15]
[14]Ibid, [46].
[15]Ibid, [21]; [31]; [56].
Leading up to the trip, GB’s treating team made contact with one of GB’s daughters (with whom GB was planning to stay), who was positive about GB visiting.[16] GB’s treating team worked with GB to manage his expectations about the visit, including the potential for difficult emotions to arise, and made sure GB was aware of the location of mental health services and equipped with emergency contact numbers if required.[17] The trip took place earlier this year and was a success.[18]
[16]Ibid, [27]; [31].
[17]Ibid, [28]; [32]; [33].
[18]Ibid, [56].
In terms of future plans, GB reports having no intention of moving to Queensland in the near future (citing that he feels well-supported in Melbourne), but plans to enjoy trips to visit family.[19] GB said that, if required, he is happy to continue engaging with his community treatment team for the remainder of his life.[20]
[19]Ibid, [47]; [63].
[20]Ibid, [63].
GB has continued to take his medication and has been stable whilst on risperidone (4mg daily). When discussing his revocation application, GB informed Dr Zergiotis that he would continue to take his medication because he believed it kept him well.[21]
[21]Ibid, [51].
Dr Zergiotis gave evidence about how GB’s compliance with medication is monitored, explaining that compliance is supervised via clinical presentation and self-reporting.[22] Dr Zergiotis considered that GB’s chronic psychosis is responsive to medication. Dr Zergiotis’s evidence was that GB’s medication has been ‘extremely effective’, as evidenced by the fact GB has been in full remission from psychotic symptoms for several years.[23] Dr Zergiotis stated that GB will need to remain on equivalent treatment for the rest of his life.[24]
[22]T6:14-26.
[23]T7:1.
[24]T7:3-6.
Risk assessment and recommendations
Dr Zergiotis assessed GB’s risk of violence using the HCR-20, which is a structured clinical judgment tool.
GB’s score on the historical (H) scale was high, which indicated a high background risk of future offending.[25] Dr Zergiotis explained that the presence of several historical risk factors, including violent offending, domestic violence and violent attitudes, antisocial behaviour, significant alcohol dependence, a major mental illness (schizophrenia) and a history of poor treatment responses contributed to this score.
[25]Dr Zergiotis Report, [65].
GB’s clinical (C) score was low, owing to the ongoing control of his major mental disorder, good insight into the impact of his mental illness on his behaviour, abstinence from alcohol and adherence to treatment plans. He has remained relapse-free in the last 12 months. Dr Zergiotis told the Court that GB ‘has some cognitive instability associated with cognitive deficits associated with chronic schizophrenia’, which are distinct from his psychotic symptoms.[26]
[26]Ibid, [66].
Dr Zergiotis explained that GB presents as low-risk (and returned an (R) score of ‘low’) for the purposes of risk management by virtue of his good community supports and realistic plans for the future. Additionally, GB has demonstrated a capacity to deal with potentially stressful situations, such as his recent trip to Queensland to reunite with his family.[27] Dr Zergiotis assessed GB as being low-risk of reoffending in the next six to 12 months.[28]
[27]Ibid, [66]-[68].
[28]Ibid, [69].
Dr Zergiotis gave evidence that the index offence took place under very different circumstances to his present situation. GB now has sufficient support in the community that were his mental health to deteriorate, there would be a ‘safety net’ for early intervention.[29]
[29]T7:19-31.
In relation to the risk of GB returning to his hometown, Dr Zergiotis indicated that GB is happy living in Melbourne, has no plans to relocate and she expressed little concern about the prospect of GB returning to his hometown.[30]
[30]T11-12.
On the basis of GB’s stable mental health, good insight and engagement with his support teams at Forensicare and in the community, Dr Zergiotis was supportive of revocation of the NCSO.[31] She noted in her report that GB’s ‘overall psychosocial rehabilitation, and long-term abstinence from alcohol and illicit substances’ mean that his NCSO ‘has a less significant role in ensuring that [GB] remains engaged with treatment and in risk mitigation in the community’.[32]
[31]Dr Zergiotis Report, [76].
[32]Ibid, [75].
Dr Swamy
Dr Swamy is a consultant psychiatrist. He has been GB’s treating psychiatrist since February 2023 at the NAMHS, where GB has been receiving community-based treatment since he transitioned to the NCSO in June 2022.[33]
[33]Report of Dr Rajeev Swamy dated 21 April 2023, [1] (‘Dr Swamy Report’).
Dr Swamy reported that since GB has attended the NAMHS, he has presented as stable with no evidence of psychotic or depressive symptoms, delusions or hallucinations, and has denied any thoughts of violence towards himself or others.[34] He reported that GB is polite and cooperative and has developed a good relationship with his treating team, demonstrating good insight into his mental health and awareness of the early warning signs of a potential relapse. He is compliant with treatment recommendations including medication, however has forgotten to attend his appointments at times.[35]
[34]Ibid, [3].
[35]Ibid, [4].
Dr Swamy concluded that GB does not present a danger to himself or the community due to his consistent stable mental state, compliance with treatment recommendations, strong engagement with his treating team, good level of functioning, and robust level of psycho-social supports.
Dr Swamy conceded that he has been GB’s treating psychiatrist for a limited period, but his assessment encompasses clinical review notes of GB’s previous psychiatrist. On a holistic view of GB’s engagement with the NAMHS, Dr Swamy expressed there is confidence amongst his treating team about the stability of GB’s mental state.[36]
[36]T32:3-17.
Dr Swamy was asked about the shared care system between the NAMHS and GB’s GP. He confirmed that a shared care system is in place and any reduction in appointment frequency in the next 12 months would be based on a collaborative decision by the entire treating team.[37]
[37]T33.
Consistent with his report, during oral evidence Dr Swamy maintained his support of GB’s revocation application.[38]
[38]Dr Swamy Report, [6]-[7].
Ms Mekken
Ms Mekken is a senior social worker at the NAMHS. She has been GB’s key clinician since June 2022, supporting him in-person and by phone with a primary focus on monitoring his mental state and level of risk of harm to himself and/or the community.[39]
[39]Report of Jessica Mekken dated 1 May 2023, [1] (‘Ms Mekken Report’).
Ms Mekken noted that GB has not reported any concerning changes in his mood since his engagement with the NAMHS. He generally functions day-to-day without assistance, participating in paid employment and attending the Men’s Shed fortnightly. There have been no issues with substance use or changes to his medication regime, and GB identifies medication as ‘his primary protective factor in remaining mentally well.’[40] He has ongoing contact with his family in Queensland but does not view them as a mental health resource. Instead his family in Queensland are part of his motivation to remain well in order to continue those relationships.[41]
[40]Ibid, [4].
[41]Ibid, [5].
Ms Mekken told the Court that GB has had ongoing care from the same GP since 2019.[42] GB works closely with his GP to manage physical health concerns, including diabetes and obesity. GB has recently been referred to a dietitian and is now working on lifestyle changes.[43] In relation to his medication, Ms Mekken confirmed that GB is prescribed his risperidone with five repeats and she regularly checks in with him to ensure compliance.[44] He has a regular pharmacy and uses a Webster pack, which is an organisation system which sets out medication for each time of day, and each day of the week.
[42]T53.
[43]Ms Mekken Report, [5].
[44]T49.
Consistent with Drs Zergiotis and Swamy, Ms Mekken also reported that GB has some deficits in memory, which have resulted in missed appointments with this treating team. He also experiences issues learning new skills, such as how to work his mobile phone.[45] To reduce GB’s risk of missing appointments, Ms Mekken told the Court she established a system with GB to remind him of appointments because he ‘does benefit from a reminder to attend’. Ms Mekken confirmed that non-attendance most often occurs when she herself forgets these reminders and agreed that missed appointments were usually made up immediately.[46]
[45]Ms Mekken Report, [3].
[46]T45:26-T46:7.
Ms Mekken opined that GB’s ongoing stable mental health, compliance with treatment and abstinence from substance use support the view that he does not pose a risk to himself or the community.[47] Ms Mekken stated that GB expressed a desire to continue treatment with the NAMHS even if the NCSO is to be revoked.[48] Ms Mekken confirmed that GB could have access to more intensive support—like at-home visits—through the community intervention function if his mental health deteriorated.[49]
[47]Ms Mekken Report, [6].
[48]Ibid, [6].
[49]T46:8-27.
Ms Mekken confirmed at the hearing that she supports revocation of GB’s NCSO.
Notification of family members and victims
Pursuant to s 38C(2) of the Act, the Director of Public Prosecutions (‘Director’) must give notice of the present hearing to each family member of the person subject to the order and each victim of the index offence.
In an affidavit sworn on 5 June 2023, Julie Carpenter, on behalf of the Director, deposed that the family members and victims in this matter – with the exception of GB’s brother and one of GB’s children – were notified of the present hearing and their right to make a report to the Court regarding GB’s conduct and its impact on them. No notification was provided to GB’s brother and one of GB’s children on the basis that their addresses were not known to the Director. The Director made enquiries as to the addresses without success.
Section 38C(7) of the Act provides that notice need not be given to a person whose whereabouts have not been ascertained after reasonable enquiry.
The Court has before it two reports pursuant to s 42 of the Act from the sister-in-law to GB and mother of the victim (‘DB’) and GB’s daughter (‘TB’).
DB’s report speaks to the fatigue she and her family experience each time this matter comes before the Court. Their exhaustion is clear. DB wrote of her family’s concerns that were the NCSO to be revoked, GB would cease taking his medication, or would come to their hometown to visit his best friend. She expressed worry that were her husband to see GB, ‘that would be the end of us, I nearly lost [him] over this when he could not cope..’, and stated that she has panic attacks each time she sees someone who looks like GB.
DB wrote that her family have been let down by GB’s treating practitioners and mental health services in the past, which ultimately led to the death of their daughter. DB would like the NCSO to remain in place for ‘awhile yet’ so that GB can continue to be monitored by specialists and be required to take his medication. She said that GB ‘has not been on [the NCSO] long enough to prove he is safe in the community especially with no restrictions’.
TB spoke of GB’s commitment to maintaining stable mental health and willingness to acknowledge his past. TB lives in Queensland and speaks with GB on the phone approximately once per month, and had GB stay with her and her family on a recent visit to Queensland. TB acknowledged the loss and harm caused by GB but noted his remorse and continued improvement in his mental state.
If the NCSO were revoked, TB’s only concern would be a circumstance where GB’s medication is changed and there is no one to monitor him. In her view, GB’s historical mental health issues were ‘due to medication’. TB states that she intends ‘to do as much as [she] can to encourage [GB’s] understanding and recovery and his remorse that he will always continue to struggle with’. She believes that GB deserves release, even with her doubts.
In the circumstances, I am satisfied that the requirements in s 40(2)(c) of the Act have been met.
Submissions of GB
Ms Delaney for GB submitted that it would be appropriate, on the basis of the expert evidence, for the Court to consider revocation of the NCSO. She submitted that given the evidence of GB’s community supports within the meaning of s 40(1)(e), risk of endangerment to GB or others under ss 40(1)(c) and (d) is minimised.
Ms Delaney referred to the submissions of the Attorney, in particular the leading cases of NOM and Fowler (a Pseudonym) v Secretary to the Department of Health.[50] In relation to the former, Ms Delaney noted the Court of Appeal’s comments about revocation applications under ss 33 and 40(1)(c) of the Act:
…The necessary and relevant consideration for the purposes of ss 33 and 40(1)(c) is whether or not the person is, or would if released be, likely to endanger him or herself, another person, or other people generally, because of his or her mental impairment.[51]
[50][2014] VSCA 231.
[51]NOM, [60] (citations omitted).
Ms Delaney submitted that NOM stands for the proposition that the mere possibility of endangerment to the community is not enough to justify the continuation of an order.[52]
[52]T61.
Ms Delaney gave a brief precis of the evidence of the three expert witnesses. She noted Dr Zergiotis’s confidence that GB’s presentation would be a sufficient indicator of his medication compliance.[53] Ms Delaney relied upon evidence that: GB’s illness is in remission; he intends to continue engagement with the NAMHS; he has good insight into his condition; and if he were transitioned to care exclusively through his GP, steps would be taken to set up adequate reminder systems for appointments.[54] Ms Delaney submitted that each expert witness maintained their position that GB’s NCSO should be revoked. She noted s 40(1)(f) of the Act which empowers the Court to have regard to ‘any other matters the Court thinks relevant’, and submitted that Dr Zergiotis’s evidence about the beneficial impact revocation would have on GB’s mental health is such a factor.
[53]T62.
[54]T6:14-26; T63.
Submissions of the Secretary
Ms Wilson for the Secretary adopted the submissions on behalf of GB as to case law and otherwise relied on the Secretary’s written submissions.
Submissions of the Attorney
Ms Poole for the Attorney submitted that the viva voce evidence given at the hearing had ameliorated gaps in evidence identified by the Attorney in written submissions, being insufficient information about:
(a) GB’s failure to attend appointments;
(b) the administration and monitoring of GB’s medication;
(c) GB’s risk to family members; and
(d) continued mitigatory risk factors.[55]
[55]T70:22-31.
Ms Poole submitted that the Attorney maintains its opposition to the revocation application on the basis of the ‘short period of time [GB] has spent on the NCSO – being nearly 12 months’ and the ability of the Court to assess the risks posed by GB in the community.[56] Ms Poole noted the limited direct contact each of the experts has had with GB, but conceded that Ms Mekken and Dr Zergiotis both demonstrated a detailed understanding of GB’s case.[57] Ms Poole delineated between the nature and degree of risk in s 40(1)(c) of the Act and submitted that though the degree of risk is low, the nature of the risk in this case remains high given the index offence.[58]
[56]T71:7-12.
[57]T71:18-27.
[58]T71:27-31.
Ms Poole submitted that the Court should confirm the NCSO in order to give the Court greater ‘confidence and insight’ into GB’s level of risk.
Consideration
On a review of a NCSO directed under s 32(5) of the Act, and on an application for revocation of a NCSO under s 31(1)(a) of the Act, the Court must confirm the NCSO; vary its conditions; vary it to a custodial supervision order; or revoke it. In the exercise of this discretion, the Court must have regard to the matters in s 40(1) of the Act and apply the principle of parsimony in s 39 of the Act.
GB has a well-established diagnosis of schizophrenia, and was labouring under the symptoms of that illness at the time of the index offence. The unanimous evidence at this juncture is that his condition is well treated and stable. GB remains compliant with his medication and engages well with his treating team. He has a good understanding of his mental health and needs, and is taking steps to improve the quality of his life through lifestyle changes. GB has stable accommodation and is living independently with minimal intervention. GB has been living in the community since 2019 and has faced considerable stressors during that period, including multiple COVID-19 lockdowns and a recent interstate visit to Queensland. GB has coped well with these stressors and has not shown any signs of relapse. GB has made very good progress on the NCSO. He has reconnected with his family in Queensland. There is no evidence that GB will attempt to make contact with DB or her family. In fact, GB told Dr Zergiotis and instructed Ms Delaney that he had no intention of travelling to regional Victoria to see DB or contacting her.[59]
[59]T65:1-7.
Dr Zergiotis confirmed that neuropsychological testing done in 2020 showed GB had ‘very mild deficits, mostly in memory rather than higher level functioning’.[60] Dr Zergiotis indicated there was no clinical evidence requiring further testing at this stage. I am satisfied that the instances of GB’s forgetfulness relate only to appointments, and not to medication. The forgetfulness is being appropriately managed by his treating team through the use of reminders, and further neuropsychological testing may be ordered in future if decline is clinically indicated.[61] The requisite referral pathways for such a report are in place.[62]
[60]T23:18-18.
[61]T23:15-T24:6.
[62]T23:28-24:6.
GB has a regular pharmacy where he independently attends and fills his medication scripts.[63] This pharmacy has reminded him when repeats are running low so he may obtain a new prescription from either his GP or the NAMHS.[64] GB currently utilises a Webster pack,[65] and has been administering his own medication for a number of years.[66] None of the experts reported non-compliance with medication and were unanimous that revocation of the NCSO would have a positive impact on GB’s continued recovery.
[63]T53:11-21.
[64]T48:21-26.
[65]Dr Zergiotis Report, [49].
[66]T24:24-25:10; T60:4-11.
Ms Mekken confirmed that when GB is eventually discharged from the NAMHS, he wouldn’t have access to a social worker that provided the current support she provides to GB. However, Ms Mekken confirmed that as part of the transition process, she would work with GB’s NDIS support workers and would ensure they recognised early warning signs and had knowledge of the appropriate referral pathways. Ms Mekken said she would also check in with GB’s GP clinic to ensure there was a reminder system in place for GB’s appointments. Ms Mekken was confident that once GB’s engagement with the NAMHS treating team is stopped, other supports would be in place to cover more critical matters such as: reminders for appointments; regular check-ins with GB; and proper management of GB’s scripts.[67] No changes will be made to GB’s current treatment regime without consultation between the NAMHS and the GP. I am satisfied that were the NCSO to be revoked, GB will continue to have access to adequate resources in the community.
[67]T56:7-31.
The Attorney made the submission that GB’s short period on the NCSO should weigh against revocation. There is no minimum period a person subject to a NCSO should remain on that order before being eligible for revocation. Instead each case is decided on its facts, which may include consideration of the amount of time spent on the NCSO.[68] The discretionary exercise undertaken by this Court mandates consideration of all criteria in s 40(1) of the Act, weighed against the principle of parsimony expressed in s 39.
[68]Re CK [2020] VSC 707R, [57] (Taylor J, as her Honour then was); Re WL [2021] VSC 689, [78] (Tinney J).
Suppression order variation application
GB seeks variation to the current suppression order such that it apply both to the present proceedings and to the 2012 proceedings before this Court, in the following terms:
Pursuant to s 75 of the [Act], until further order, no person shall publish or cause to be published or broadcast by means of radio, television or by other means any matter which might directly or indirectly enable identification of the person subject of these proceedings or his place of residence.
This order applies to ongoing internet publication of reports concerning the related proceeding S CR 2011 0066 originally published prior to this order being made that directly or indirectly enable identification of the person subject of these proceedings or the related proceeding.[69]
[69]Submissions on behalf of GB filed 5 June 2023, [28].
In support Ms Delaney on behalf of GB submitted that articles published prior to the initial suppression order naming GB were still available online and capable of being accessed.[70] Six articles spanning dates between 2011 and 2012 have been tendered before this Court.[71] According to evidence given by Dr Zergiotis, the accessibility of these articles is having a negative impact on GB’s rehabilitation,[72] and she was of the view that it was in the public interest that GB’s privacy should be protected in the public spaces he inhabits, such as at his paid work and out in the broader community.[73]
[70]Therefore ‘publication’ is ongoing, per Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, [26].
[71]Affidavit of Sophie Claire Delaney affirmed 6 June 2023 and filed 7 June 2023, Exhibits “SCD-1”–“SCD-6”.
[72]T66.
[73]T22:1-22.
Ms Wilson confirmed that the Secretary does not take a position with regard to the suppression order, however noted the clinical evidence that variation would assist in GB’s continued recovery. The Attorney did not take a position in relation to the suppression order.
It is in the Court’s discretion to make or vary a suppression order under s 75 of the Act if the Court is satisfied it is in the public interest to do so. I note that this same issue was heard before Taylor J in 2022, and her Honour declined to make the variation sought as there was ‘no basis on the evidence … to order that these now decade-old articles be removed from the internet’.[74] I take the same view. There is no evidence before this Court which can explain why no suppression order was made in or about 2012 when this matter was originally before his Honour Macaulay J in S CR 2011 0066. With the exception of the broad comments made by Dr Zergiotis, no new evidence has been put to demonstrate that ongoing media scrutiny is having an adverse impact on GB’s rehabilitation. If new evidence were to come to light, a fresh variation application may be sought by GB.
[74]Re GB [2022] VSC 323, [75].
Conclusion
Having regard to the unanimous expert opinion in this case and notwithstanding the position of the Attorney, I propose to grant the application for revocation of the NCSO.
In relation to the suppression order application, I propose to vary the order made 21 November 2018 as follows:
Pursuant to s 75 of the Act, until further order, no person shall publish or cause to be published or broadcast by means of radio, television or by other means:
a) any matter which might directly or indirectly enable identification of the person subject of these proceedings or his place of residence;
b) any matter which might directly or indirectly enable identification of the victim of the offence or their former place of residence; and
c) any matter which might directly or indirectly enable identification of a family member of the person subject of these proceedings or the victim, or his or her place of residence.
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