Re GB
[2022] VSC 323
•15 June 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2018 02536
| IN THE MATTER of applications pursuant to sections 31 and 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| - and – |
| IN THE MATTER of an application for variation of a custodial supervision order to a non-custodial supervision order or an application for further extended leave by GB |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 June 2022 |
DATE OF JUDGMENT: | 15 June 2022 |
CASE MAY BE CITED AS: | Re GB |
MEDIUM NEUTRAL CITATION: | [2022] VSC 323 |
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CRIMINAL LAW – Mental Impairment – Application for variation of custodial supervision order to non-custodial supervision order – Whether safety of the applicant or members of the public will be seriously endangered as a result of variation – Whether variation would be consistent with principle that applicant’s freedom and personal autonomy should be kept to a minimum consistent with safety of community – Custodial supervision order varied to non-custodial supervision order – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss. 32, 39, 40, 42.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Delaney | Victoria Legal Aid |
| For the Secretary to the Department of Health | Mr D Bruno | Department of Health |
| For the Attorney-General | Mr L McAuliffe | Victorian Government Solicitor’s Office |
HER HONOUR:
The applicant, GB, has a diagnosis of paranoid schizophrenia. On 1 February 2011, while acutely psychotic, he killed his niece.
GB was found not guilty of murder by reason of mental impairment and, on 27 July 2012, placed on a custodial supervision order (‘CSO’) under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘Act’). The nominal term of the CSO is 25 years, with effect from 1 February 2011.
On 17 January 2019 the applicant was first granted 12 months’ extended leave, during which he lived in supported accommodation at the Austin Community Recovery Program (‘CRP’). He was twice again granted extended leave in 2020. The second of those grants, made 17 December 2020 (to commence on 17 January 2021), varied the conditions of the leave to allow GB to reside at accommodation determined by the authorised psychiatrist.
On 21 September 2021 the applicant filed an application to vary the CSO to a non-custodial supervision order (‘NCSO’) or, in the alternative, a further period of extended leave. The applicant’s then treating psychiatrist, Dr David Thomas, provided the Court with a report in which he was not supportive of the variation due to the applicant’s recent relocation from the CRP to independent accommodation.
On 15 December 2021, the variation application was adjourned to a date to be fixed and the applicant was granted a fourth period of 12 months’ extended leave commencing on that date.
The adjourned variation application is now pressed. In the alternative, the applicant applies for a further period of 12 months of extended leave.
The primary application is supported by each of the Secretary to the Department of Health (‘Secretary’), the Attorney-General of Victoria (‘Attorney’) and the treating team of the applicant. The only issue of contention is the submission by the Attorney that the proposed conditions of the NCSO should be augmented to include a further two, as requested by the mother of the victim, DRB, who filed a report pursuant to s 42 of the Act.
If the variation application is refused, all parties similarly support the alternative application for further extended leave, subject to the same issue as to its conditions.
For the reasons that follow, the application to vary the CSO to an NCSO is granted. The issue of the conditions of the NCSO is considered below.
Legal principles
Pursuant to s 32(2) of the Act, the court must not vary the CSO to an NCSO during the nominal term unless satisfied that the safety of the applicant or members of the public will not be seriously endangered as a result.[1] The applicant must have completed a period of at least 12 months’ extended leave. The court must take into account whether the applicant has complied with any conditions of his extended leave.[2]
[1]Act, s 32(2).
[2]Act, s 32(3).
The term ‘serious endangerment’ is not defined in the Act. It is a well-understood concept encompassing both the probability that a harmful event might occur and the gravity of the harm in that eventuality. The interplay between probability and gravity is best illustrated by the oft-cited example that a highly probable risk of minor harm might not amount to serious endangerment whereas a mathematically improbable risk of grave harm might do so.[3]
[3]NOM v Director of Public Prosecutions (2012) 38 VR 618, [63] (Redlich and Harper JJA and Curtain AJA) (‘NOM’), citing with approval In the Matters of Major Reviews of Percy, Farrell and RJO [1998] VSC 70, [56] (Eames J).
Nonetheless, the heart of the concept of serious endangerment is the probability of risk:
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. … The ordinary meaning of endangerment entails the concept of chance or risk.[4]
[4]NOM, [58].
In considering the application the court must have regard to the overriding principle of parsimony enshrined in s 39(1) of the Act as well as the matters delineated in s 40(1). The interplay between these two sections was described by the Court of Appeal in NOM as follows.
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.[5]
[5]NOM, [47].
Further, the court cannot significantly reduce the degree of supervision to which a person is subject without receiving and/or considering the materials and factors delineated in s 40(2) of the Act.
Materials received
With respect to the variation application, I have received the following materials.
First, a report of psychiatry registrar Dr Gregory Lysenko, prepared under the supervision of forensic consultant psychiatrist Dr James Belshaw, dated 10 May 2022.[6]
[6]In satisfaction of the Act, s. 40(2)(a) and (ab). I note that the Court also has received the report of Dr David Thomas dated 23 November 2021 in satisfaction of the Act, s 40(2)(a) and (ab), as well as s 40(2)(b) by virtue of s 41(3).
Second, a report of senior social worker at Forensicare, Ms Joanna Karabatsos, dated 11 May 2022.[7]
[7]In satisfaction of the Act, s 40(2)(ab).
Third, an affidavit of Ms Louise Wilkinson sworn 31 May 2022 as to the compliance of the Director of Public Prosecutions (‘Director’) with s 38C of the Act as to notification of the application to the victims of the 2011 offence and the applicant’s family members.
I am satisfied that reasonable notice of the hearing of this application has been given.[8] In this respect I note two things. First, no notification was provided to the applicant’s brother MB. MB has moved addresses. His address is not known to the applicant. The Director made unsuccessful enquiries as to MB’s new address. I find those enquiries to have been reasonable. Section 38C(7) establishes that notice need not be given to a person whose whereabouts have not been ascertained after reasonable enquiry. Second, paragraph [4(iii)] of Ms Wilkinson’s affidavit states, incorrectly, that the applicant is currently subject to a NCSO. However, this typographical error is not material as it is clear from paragraph [4(i)] that the victims and family members of GB were correctly notified of the application for variation of a CSO to a NCSO and the terms of the single s 42 report submitted makes clear that the author of that report clearly understood the true position.
[8]Act, s. 40(2)(c).
No further s 42 reports have been received since notification of the current listing of the variation application was given in May 2022.
Fourth, a s 42 report by DRB dated 1 December 2021 with respect to the variation application when it was previously listed for hearing in December 2021.
Applicant’s personal background and psychiatric history
The applicant is 63 years of age with diagnoses of paranoid schizophrenia and severe alcohol use disorder, both in remission.
He 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. The applicant then began work as a bricklayer, ceasing employment in 2008. The applicant’s parents and his only sister are now deceased. He has not had contact with his brothers since the index offence.
The applicant commenced his first intimate relationship when he was 19 years old. His partner gave birth to his daughter when he was aged 21 years. The applicant 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.
The applicant married in his mid-20s. He and his wife had three children. A son from her previous relationship was also raised by the applicant and his wife. One of the applicant’s daughters died from sudden infant death syndrome. This has had a significant impact upon him.
It is reported that the applicant 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 the applicant commenced experiencing psychotic symptoms in 2002. He was first hospitalised for psychiatric illness in about 2008 or 2009. The applicant 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, the applicant ceased alcohol use and joined Alcoholics Anonymous.
The applicant 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.
The applicant was admitted to Thomas Embling Hospital (‘TEH’) following the index offence. He progressed through the treatment and rehabilitation regime until first being granted extended leave to reside at the CRP in January 2019. He has remained at the CRP full-time until December 2021 when he moved to a unit in suburban Melbourne.
Evidence on the application
Dr Lysenko
Dr Lysenko has been the applicant’s allocated Community Treatment and Transition (‘CTT’) team psychiatry registrar since February 2022. He reviewed the applicant on 21 March 2022 and 4 April 2022. Dr Lysenko notes that the applicant also attended 12 CTT consultant psychiatric assessments in the preceding 12 months with his then treating psychiatrist, Dr Thomas. In oral evidence Dr Lysenko stated that since writing his report, he has seen the applicant face to face on two more occasions. The applicant has continued to present well.
The report of Dr Lysenko focuses on the period since 23 November 2021, being the date Dr Thomas last provided a report to the Court. As noted above, at that time the variation application was not supported by the CTT team on the basis that the applicant may experience stress and deterioration in his mental state consequent upon his imminent move from supported accommodation at the CRP to independent accommodation in suburban Melbourne.
Dr Lysenko reports that the applicant moved to that independent accommodation, which he shares with another Forensicare client, on 25 November 2021 without incident. There has been no deterioration in his mental state.
In oral evidence Dr Lysenko stated that since writing his report, the applicant’s housemate has been hospitalised at TEH. It is unknown whether this is a temporary or long term hospitalisation. Dr Lysenko said that there was no history of interpersonal conflict between the applicant and his (former) housemate and that the applicant has dealt well with the change in his circumstances. Dr Lysenko foresees no difficulty for the applicant in temporarily living alone or adjusting, if necessary, to a new housemate.
Further, Dr Lysenko states that the applicant’s recent mental state assessments have been unremarkable. There has been no evidence of psychosis or mood disturbance. The applicant has continued to deny the presence of any persecutory ideas or perceptual abnormalities. He has not been observed to be distracted by or responding to any hallucinations. And, the applicant has continued to demonstrate a good understanding of his early warning signs of deteriorating mental state.
The report also notes Dr Lysenko’s opinion that the applicant continues to engage well with the CTT team. He attended weekly appointments with his case manager to February 2022 and has maintained fortnightly contact since then. Those appointments have comprised home visits, attendance at Forensicare and telephone contact. The applicant has also attended reviews with his treating forensic psychiatrist and registrar. In oral evidence Dr Lysenko stated that the applicant met the psychiatrist and case manager from the Northern Area Mental Health Service (‘NAMHS’) on 6 June 2022 and a meeting between the NAMHS, CTT team and NCSO team was scheduled for 28 June 2022.
The applicant has maintained total abstinence from drugs and alcohol. He is compliant with all random urine and breath tests.
Dr Lysenko notes that the applicant continues, independently, to take his antipsychotic medication. He collects his medication fortnightly and uses alarms on his phone to remind him of when it is due. The applicant continues to accept and acknowledge the role of medication in achieving a stable mental state. He is committed to its long term use.
The applicant has not been involved in any arguments, confrontations, threats or physical aggression in the last year.
He receives funding from the National Disability Insurance Scheme (‘NDIS’) as well as Supported Independent Living. This includes 15 hours per week of home cleaning and support for activities of community engagement. The applicant also continues to receive a Disability Support Pension and manages his finances independently. He demonstrates good budgeting skills, has adequate savings and does not have any debt. Dr Lysenko notes that the applicant has an interest in horse racing and, despite historical issues with gambling, this has not been problematic during his extended leave. The applicant limits himself to betting annually on the Melbourne Cup and spending modest amounts on lottery tickets.
The applicant regularly attends a local Australian Men’s Shed Association. He plays golf on weekends. He works in a permanent part-time position as a metal worker with Ability Works, a supported, not for profit employment provider. The applicant reported enjoying this work and was considering adding an additional day to the two he already does.
Dr Lysenko conducted a risk assessment of the applicant. The high score from the historical factors gives the applicant a high baseline risk for engaging in future violence. However this is moderated by the applicant’s progress with respect to the dynamic, clinical risk factors of improved insight into his illness, good medication compliance, sustained resolution of the symptoms of schizophrenia, absence of violent ideation or intent and sustained abstinence from alcohol.
The analysis of Dr Lysenko was that the overall risk of the applicant in engaging in violence over the next six to 12 months is low. That risk level could change if the applicant’s mental state destabilised and he developed persecutory delusions. Such destabilisation would most likely be precipitated by lack of compliance with antipsychotic medication. A return to alcohol abuse could also increase this likelihood.
In Dr Lysenko’s opinion the applicant does not presently pose a risk of serious endangerment to the public. And, to the extent that he poses any risk, the risk can be successfully monitored and mediated by the supports available under a NCSO. Dr Lysenko and the CTT team are supportive of the variation application. To this end, Dr Lysenko proposes conditions for a NCSO. The same conditions are proposed if, instead, the applicant was granted a further 12 month period of extended leave.
As to the extra two conditions proposed by the Attorney, Dr Lysenko gave evidence that they were unnecessary and not therapeutically warranted. He stated that the situation had been discussed amongst the CTT team and with the applicant. The applicant does not intend to contact DRB or her family nor travel to the rural town where they live. Dr Lysenko stated that in the event that the Court did not make the conditions, the authorised psychiatrist would give the applicant a lawful direction to refrain from doing either of those two things.
Ms Karabatsos
Ms Karabatsos is a senior social worker and has been the applicant’s CTT team manager since December 2021.
Ms Karabatsos reports that since the last hearing in December 2021 the applicant has remained well engaged with the CTT team. He has attended most of his scheduled appointments on time. He did forget one appointment, which fell on a different day from his usual appointment, but arrived 20 minutes after being reminded by the CTT team. She finds the applicant polite and co-operative in his reviews. He displays a good level of honesty, transparency and understanding into his mental health and needs. Random checks of his Webster pack indicate he is compliant with his medication.
Ms Karabatsos notes that the applicant has unresolved feelings of grief relating to the death of his daughter as well as his mother, who died while he was in custody. The applicant was unable to attend her funeral. He is on the waiting list to be allocated a private psychologist through Complex Psychology. The referral is managed by the NDIS and will be unaffected by any change in the applicant’s position under the Act or in his treating team.
As also noted by Dr Lysenko, the applicant now resides in an independent unit with another Forensicare client. Ms Karabatsos notes the accommodation to be stable and available to the applicant for the foreseeable future. No issues have been identified on visits to the property or in discussions with the property service manager.
Ms Karabatsos notes that the applicant has previously required prompting to attend to activities of daily living including personal grooming and self-care. His self-care is now objectively adequate but the CTT team continues to discuss with him the need for personal grooming. The funding of a cleaner from the NDIS helps to ensure that the applicant’s unit remains clean and tidy.
The applicant has successfully limited his gambling to one or two lottery tickets a week with a total spend of no more than $50 per week. CTT staff have regular conversations with the applicant regarding this and also monitor his spending.
Ms Karabatsos reports that the applicant is at risk of social isolation if he were to disengage from his current support services. He has made friends through work and the Men’s Shed, but he neither socialises with them outside those places nor views that as likely in the future. The applicant does identify several current and former Forensicare clients as friends, but his contact with them is very limited.
The applicant does not have face to face contact with his family. His children all reside in Queensland. They do not visit. The applicant wanted to travel to Queensland to visit them, but his children have not responded to attempts made by Forensicare to contact them.
Overall Ms Karabatsos notes that the applicant lives independently in the community and manages most aspects of his life with minimal intervention. He has displayed an ability to adapt well to change throughout his time on extended leave with changes to his treating team, support services and accommodation. His mental state remains stable and there have been no early warning signs of relapse. Further, the applicant has made great gains towards his recovery goals in the last six months. These were to remain physically and mentally well, lose weight, increase his fitness, remain engaged with the NDIS and his psychiatric care teams and to continue to attend both Men’s Shed and Ability Works.
A handover of the applicant’s treatment and care was provided to the NCSO team at Forensicare on 3 May 2022. The applicant has stated that he will continue to engage with his new treating team if his application to vary the CSO to a NCSO is granted.
Ms Karabatsos is supportive of the variation application. She does not believe that a further period of extended leave would alter the applicant’s recovery, mental health stability or associated risks.
Section 42 report of DRB
DRB is the mother of the victim and sister-in-law of the applicant. Her report is eloquent as to the pain the fact and manner of the victim’s death caused and continues to cause her, her husband and grandson.
DRB finds the regime under the Act disappointing and difficult to understand, expressing frustration that a person found not guilty due to mental impairment can recover ‘so quickly’ and be allowed out into the community on a CSO with now potentially more freedoms possible on a NCSO. She writes that questions arise every time the matter is before the Court as to the length and stringency of the applicant’s supervision and whether there is any guarantee that the applicant will maintain his medication.
DRB expresses the view that her opinion will have no real bearing on the decision in this application, as the s 42 statements are nothing more than an ineffectual way to make victims feel like they are part of the process.
Expecting the NCSO to be granted, DRB would not only like the continuation of the condition that prevents the applicant from coming within 25 km of the regional town where she lives, but would like that radius to increase to 50 km. That is because her husband, the applicant’s brother, works within that area. DRB would also like a condition that the applicant never contact a member of her family. She expresses the view that neither her nor her husband would be able to maintain their mental health in the event either saw the applicant or heard his voice.
Analysis
Analysing the evidence and considering the principles and matters of ss 39 and 40 of the Act, I am satisfied that the applicant and members of the public will not be seriously endangered as a result of the variation of the CSO to a NCSO.
At the time of the index offence in 2011, the applicant was psychotic. He was experiencing persecutory delusions that led him to kill the victim. It is evident that there was a direct relationship between his mental impairment and the offence.
The applicant’s major mental illness and his history of problematic alcohol abuse are both in remission. While his diagnosis and history remain static risk factors, there are many protective factors which moderate the overall risk he presents.
The applicant has completed, without incident, four periods of extended leave. During this time, he has managed various stressors including navigating the transition from supported accommodation to private accommodation. He is managing the absence of his housemate and the potential for a new housemate. He is clinically stable. He is compliant with medication and engaged with treating teams. He is abstinent from alcohol. He has employment and other community engagement.
In short, I accept the expert evidence of Dr Lysenko that the risk of future violence posed by the applicant is low.
I also accept the opinion of Ms Karabatsos that given the clinical stability of the applicant and the success of his periods of extended leave, there is little benefit in a further period of such leave. In this respect I note that the proposed conditions of the NCSO are substantially the same as those of the current grant of extended leave. The main practical difference is the transfer of the management of the day-to-day treatment of the applicant from the CTT to the local area mental health service. Of course, Forensicare will still retain oversight of the applicant’s overall treatment and management through its NCSO team.
I have considered the views of DRB, along with the views of all other interested parties. I do not doubt that the sentiments expressed by her are heartfelt and truthful. I acknowledge that she finds the applicable regime disappointing and insufficient.
I must apply the principle of parsimony. In doing so, it is clear that no further period of custody is justifiable.
It is also clear that the principle of parsimony applies to the conditions of any supervision order made under the Act. To this end, the two additional conditions proposed by the Attorney are unnecessary. I accept the evidence that the authorised psychiatrist will give a (lawful) direction that the applicant not contact DRB or her immediate family and that he not travel within 50 km of the regional town in which she lives. That if the conditions were express might serve as a ‘prompt’ to the applicant, as argued by the Attorney, provides no basis for the making of them. If such prompts were necessary, they can be given in the ongoing interactions between the applicant and the many professionals who engage with him in his ongoing treatment.
For the sake of completeness, I also note that there always remains the possibility that in the event of his non-compliance with the NCSO or the serious endangerment of himself or of others, the Secretary could apply to the Court to vary the NCSO[9] or the applicant could be apprehended and returned to TEH.[10] Those powers obviously extend to non-compliance with lawful directions of the authorised psychiatrist.
[9]Act, s 29.
[10]Act, s. 30.
Non-publication
A non-publication order pursuant to s 75 of the Act was first made by this Court on 21 November 2018 at the hearing of the first application for extended leave. It was made in the following terms.
Pursuant to s 75 of the Act any information that might directly or indirectly enable identification of the Applicant or his place of residence, the victim of the offence or their former place of residence, or identification of any member of the family of the Applicant or the victim must not be published.
That order was not expressed to have an end date. At each subsequent grant of extended leave that order has been confirmed.
No order pursuant to s 75 was made with respect to the earlier 2012 finding that the applicant was not guilty of murder by reason of mental impairment nor the orders made on 27 July 2012 that he be committed to TEH for a nominal term of 25 years.
The applicant now seeks a non-publication order with respect to the current application as well as the 2012 proceedings. An affidavit was filed, exhibiting four media articles from 2012 and 2013 identifying the applicant in connection with his index offence. The applicant submits that publication is ongoing[11] and it is in the public interest to do so.
[11]Relying upon Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575.
At the hearing of this application Dr Lysenko was asked by counsel for the applicant whether the prohibition on the applicant being identified in the media in connection with these proceedings (which had been in place since 2018) would ‘continue to be in the public interest.’ He stated it was. However, he was not specifically asked to consider whether these historical media articles (which remain publicly accessible on the internet, and have presumably been so since 2018) should be suppressed as a matter of public interest.
I have no information as to why an order pursuant to s 75 was not sought or granted in 2012 or at any time between then and the present proceedings. While I accept the general proposition that the applicant’s rehabilitation and reintegration into the community may best be achieved if he is not subject to ongoing media scrutiny, there is no basis on the evidence before me to order that these now decade-old articles be removed from the internet. In so finding, I note that the applicant did not tender any evidence suggesting that the content of these articles had been reproduced in the interim, and/or in connection with proceedings under this Act.
Conclusion
It follows that pursuant to s 32(1)(c) of the Act, the applicant’s CSO will be varied to a NCSO, with the conditions proposed by Dr Lysenko.
I also confirm the non-publication order made 21 November 2018. I am satisfied that it is in the public interest to do so.
Pursuant to s. 32(5) of the Act, the matter will be listed for a further review in 12 months.
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