Re GB
[2019] VSC 4
•17 January 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2018 02536
| IN THE MATTER of an application pursuant to s 57(1) of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - and – IN THE MATTER of an application for extended leave by “GB” |
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JUDGE: | MACAULAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 November 2018, 17 & 18 December 2018 |
DATE OF JUDGMENT: | 17 January 2019 |
CASE MAY BE CITED AS: | Re GB; An application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
MEDIUM NEUTRAL CITATION: | [2019] VSC 4 (Second Revision (13 February 2019): paras [19], [20]) |
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CRIMINAL LAW – Mental impairment – Application for extended leave pursuant to s 57 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Whether granting the applicant extended leave on the conditions proposed would seriously endanger the safety of the applicant or members of the public – NOM v DPP & Ors [2012] VSCA 198 considered, Hammond v Secretary to the Department of Health and Human Services & Ors [2018] VSCA 356 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Taylor | Victorian Legal Aid |
| For the Secretary of the Department of Health and Human Services | Mr D Bruno | Department of Health and Human Services |
| For the Director of Public Prosecutions | Mr D Brown | Office of Public Prosecutions |
| For the Attorney-General | Ms D Costaras | Victorian Government Solicitor’s Office |
HIS HONOUR:
On the morning of Tuesday 1 February 2011, ‘GB’,[1] the applicant, 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.
[1]A pseudonym, adopted due to the suppression order made under s 75 of the Crimes (Mental Impairment and Unfitness to be Tried Act 1997 (‘the Act’): see [97] below.
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.
The applicant was found not guilty of the crime of the murder of his niece because of mental impairment. By order of this Court made on 27 July 2012, he was committed to the custody of the Victorian Institute of Mental Health at Thomas Embling Hospital (‘TEH’), with a nominal term of supervision fixed at 25 years commencing 1 February 2011. By reason of s 26(8) of the Act, the applicant is deemed to be in the custody of the Secretary of the Department of Health and Human Services (‘the Secretary’).
Having remained at TEH as a forensic patient since that order was made, the applicant now applies under s 57 of the Act for a grant of extended leave from TEH.
As required by the Act, notice of the application has been given to the Director of Public Prosecutions (‘the Director’), the Attorney-General and the Secretary.[2] The Secretary supports the application but the Attorney-General opposes it. The Director’s role in the hearing was limited to establishing that notice of the hearing was given to family members and victims, and the Director otherwise made no submissions on the substantive issue (and was not required to do so).
[2]The Act, s 38B.
The applicant and the Secretary submitted that extended leave should be granted subject to the following conditions:
1. That the applicant be under the supervision of the Authorised Psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH) or his or her delegate.
2. That the applicant reside at a location approved by the Authorised Psychiatrist of the VIFMH or his or her delegate.
3. That the applicant abide by the lawful directions of the Authorised Psychiatrist of the VIFMH or his or her delegate.
4. That the applicant comply with treatment and testing and attend appointments as directed by the Authorised Psychiatrist of the VIFMH or his or her delegate.
5.That the applicant abstain from the abuse of alcohol and from use of illicit drugs.
6.That the applicant not leave the state of Victoria without the written permission of the Authorised Psychiatrist of VIFMH or his or her delegate.
Relevant legal principles
Section 56 of the Act defines extended leave as leave for a forensic patient to be absent from the place of custody for the period, not exceeding 12 months, and subject to the conditions, if any, fixed by the court.
Before the court can hear an application for extended leave it must be satisfied that notice of the application has been given to relevant authorities,[3] and to family members of the applicant and victims of the index offence.[4]
[3]Ibid.
[4]Ibid, ss 38C and 40(2)(c).
Additionally, before the court can make an order that would significantly reduce the degree of supervision to which a person is subject (which is the case if extended leave was granted), the court must receive and consider reports from medical practitioners and those who have been supervising the applicant.[5] It must also consider any report made by a family member or victim to whom notice of hearing has been given.[6] Finally, the court must also have received and considered a ‘leave plan’ filed under s 57A of the Act.[7]
[5]Ibid, s 40(2)(a), (b).
[6]Ibid, s 40(2)(d).
[7]Ibid, s 40(2)(da).
Section s 57(1) of the Act, provides:
(1)An application for extended leave for a forensic patient or forensic resident may be made to the court that made the supervision order to which they are subject—
(a)in the case of a forensic patient, by the forensic patient or the authorised psychiatrist for the designated mental health service;
(b)in the case of a forensic resident, by the forensic resident or the Secretary to the Department of Health and Human Services.
Section 57(2) provides that the court may grant an application for extended leave if satisfied on the evidence available that the safety of the applicant or members of the public will not be seriously endangered as a result of the applicant being allowed extended leave.
The meaning of ‘serious endangerment’ requires the consideration of both the level of risk that a harmful event might occur and the gravity of the harm that might be caused were the risk to materialise. Thus, a highly probable risk of minor harm might not amount to serious endangerment whereas a mathematically improbable risk of grave harm might do so.[8]
[8]See In the Matters of Major Reviews of Percy, Farrell and RJO [1998] VSC 70 (Eames J) at [56]; cited with approval in NOM v DPP & Ors [2012] VSCA 198 (Redlich and Harper JJA and Curtain AJA) (‘NOM’) at [63]. See also NOM at [54]-[65] generally on serious endangerment.
As mentioned above, the court must receive and consider a leave plan. That plan is prepared by the Secretary.
So, if the court is satisfied that the grant of extended leave to the applicant will not seriously endanger his safety or that of the public, the court may grant extended leave. The court must consider a number of things when weighing whether to grant extended leave.
In considering whether to grant extended leave the Court must balance the applicant’s freedom and autonomy, on the one hand, and the community’s safety on the other. The application of that principle is mandated by s 39(1):
In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, the court must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to a minimum consistent with the safety of the community.
In addition to the application of that principle, when considering whether to grant extended leave, the court must have regard to a specified list of matters as well as any other matter the court thinks relevant. That command is contained in s 40(1):
(1)In deciding whether or not to make, vary or revoke an order under Part 3, 4, 5 or 5A in relation to a person, to grant extended leave to a person or to revoke a grant of extended leave, the court must have regard to—
(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.
In NOM, the Court of Appeal said the following with respect to ss 39 and 40 of the Act:
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 inter-related criteria. These assessments call for value judgments in respect of which there is room for reasonable differences of opinion. No particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The discretionary character of the decision is not displaced by the mandatory requirements that the judge “must apply” the principle in s 39 or “have regard to” the factors in s 40.[9]
[9]NOM [47].
More recently, the Court of Appeal had occasion to consider the combined operation of ss 32(2), 39 and 40(1) of the Act.[10] Whereas s 57 permits the court to grant extended leave to a forensic patient on a custodial supervision order, s 32 permits the court to vary a custodial supervision order to a non-custodial supervision order (or otherwise confirm the existing order). And, whereas s 57(2) provides that a court may grant extended leave if the court is satisfied that the safety of the public or the applicant will not be seriously endangered by the grant of extended leave, s 32(2) expresses it in the negative. It provides that the court must not vary an order to a non-custodial supervision order unless satisfied that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order. Apart from that difference, the same result applies: the court may only grant the relevant order if it is satisfied that its effect will not seriously endanger the public or the applicant.
[10]Hammond v Secretary to the Department of Health and Human Services & Ors [2018] VSCA 356, (‘Hammond’).
In Hammond, the majority did not accept the submission put by the appellant and the Secretary that s 32(2) and ss 39 and 40(1) provide for a two-step test: the first step being the court’s satisfaction of the condition expressed in s 32(2) and, if so satisfied, the second step being the exercise of a discretion applying or considering the principle and factors set out in ss 39 and 40(1). Rather, Priest & Forrest JJA explained the combined operation of the provisions this way:
... the effect of s 32(2) is that, once all of the factors in s 40(1) have been weighed in the balance, a court is prevented from ordering a variation unless satisfied on the available evidence that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person.
…
As we have said, in a case such as this concerned with an application for variation of a custodial supervision order, the court has two alternatives: first, confirm the order; or, secondly, vary it to a non-custodial supervision order. With respect to the second alternative — whether to vary the order — there is one critical issue that must be determined: is the court satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order?
In determining that critical issue, the court must to take into account the cumulative considerations set out in s 40(1), including whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment, and the need to protect people from such danger. If, after having regard to the evidence bearing on those cumulative requirements, the court cannot be satisfied that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order, variation of the order must be refused.
Thus, although it is necessary for the court to take into account — together with all of the other considerations in s 40(1) — whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment, and the need to protect people from such danger, it is only if the court is satisfied that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order that the court may order a variation.[11]
[11]Ibid, [41], [43]-[45] (underlining added).
Although their Honours did not expressly advert to s 39 in that passage, they referred to the passage in NOM set out above as explaining the interaction between ss 39 and 40(1) in the court’s exercise of discretion whether to make an order of the kind involved in the appeal. As explained in NOM, the two provisions call for value judgments which, together, inform the exercise of the judicial discretion. So, applying that principle together with what their Honours explained in Hammond, what is required, at least in relation to an application to vary a custodial supervision order to a non-custodial supervision order, is that the court must consider the ‘critical issue’ as to whether it is satisfied that the safety of the community or the applicant will not be seriously endangered and, when doing so, take into account the factors listed in s 40(1) and (I infer) applying the principle in s 39. The result of that analysis will enable the court to determine whether to make the order.
Although s 57(2) is expressed a little differently to s 32(2), as I have mentioned, it seems to me that that difference is immaterial when considering the application of the principle in Hammond. So, it follows that I should apply the method described in Hammond to the combined operation of ss 57(2), 39 and 40.
Notification to family members and victims
Other than in respect of one family member, I am satisfied that all family members and victims, as defined in the Act, have been notified of the hearing of the applicant’s application for extended leave.[12] The one exception is one of the applicant’s daughters. On the evidence, I am satisfied appropriate efforts have been made to ascertain her whereabouts, without success. Pursuant to s 38C(7)(a), I am satisfied that notice need not be given to her of the hearing.
[12]The hearing of the application was initially adjourned on 21 November 2018 to 17 December 2018 as not all family members and victims had been notified.
Four family members, two of whom are also regarded as victims, have made reports to the court containing their views on the conduct of the applicant and the impact of his conduct on them.[13] Section 42 of the Act provides that such reports may be made to assist the court in determining any conditions it may impose on an order made in respect of a person under the Act or in determining whether or not to grant a person extended leave.
[13]Mother of the deceased, Exhibit A; sister of the deceased, Exhibit B; brother of the applicant, Exhibit C; a daughter of the applicant, Exhibit D.
Reports from medical practitioners and the applicant’s supervisor
In compliance with the Act, reports have been provided to the court in support of the application. Two come from consultant forensic psychiatrists who have been involved in caring for the applicant at TEH at various points in time, Dr Shannon Reid and Dr Oladipo Sorungbe, and one is from a social worker who is his current mental health case manager, Ms Thelma Lynch.
The reports of both Dr Reid and Dr Sorungbe satisfy s 40(2)(a) and the report of Dr Sorungbe satisfies para (ab) of that subsection of the Act.
Dr Reid’s report is dated 24 October 2018.[14] He was involved in the applicant’s care at the Bass unit of the TEH between 2013 and 2015 and at the Daintree unit between 2016 and 2017. Additionally, as a consultant psychiatrist for the Community Forensic Mental Health Service, Dr Reid reviewed the applicant on eight occasions between February and October 2018 in preparation for the application for extended leave, and on a ninth occasion during the adjournment of the hearing.[15]
[14]Exhibit E.
[15]The Act, s 40(2)(a),(b). See paragraph [10] above.
Dr Sorungbe’s report is dated 31 October 2018.[16] He has been involved in the applicant’s care since October 2017 when he became the applicant’s treating psychiatrist at the Daintree unit of the TEH.
[16]Exhibit F.
In their reports, both doctors gave a detailed history relating to the applicant, including the applicant’s personal background, his relevant forensic history and his previous mental health and treatment. Each doctor canvassed the applicant’s diagnosis subsequent to the index offence, his treatment and progress at the TEH, the results of a mental state examination, the conditions under which he has recently been supervised and the conditions that would apply were he to be given extended leave now.
Each doctor assessed of the risk the applicant would pose to the community were he to be granted extend leave and states his opinion and recommendation on that subject. In short, each considers that with the levels of supervision under the proposed extended leave plan the risk that the applicant would harm other members of the community or himself, if granted extended leave, is low and they each support his application.
In support of the application, the Secretary also filed a report from Ms Thelma Lynch. Her report is dated 26 October 2018.[17] Ms Lynch is a senior social worker employed by Forensicare. She has been the applicant’s case manager within Forensicare’s Community Transition and Treatment program (‘CTT’) since June 2018. In evidence given before the court Ms Lynch explained that she was to cease in her role soon after the hearing and was to be replaced by Ms Donna Melia.
[17]Exhibit G.
Dr Reid, Dr Sorungbe and Ms Lynch were each examined and cross-examined at the hearing of the application.
Applicant’s personal background
Relevant details of the applicant’s personal history prior to the commission of the index offence in 2011 were assembled by Dr Sorungbe from medical reports and records. As shown by Dr Sorungbe’s account, set out below, the applicant has a long history of significant alcohol abuse. His first experience of psychotic symptoms may have been in 2002, and his first hospitalisation for psychiatric illness was in 2008. That admission followed a violent episode at a hotel in the town when, apparently, he was experiencing delusions of persecution by police, mafia and bikie gangs. For a number of years before that incident he had exhibited increasingly aggressive behaviours. Between his discharge from hospital in 2008 and the index offence in 2011, he became non-compliant with his prescribed medication and resumed consuming alcohol.
In more detail, Dr Sorungbe recounted as follows:
[The applicant] is the third of a sibship of four and was raised in [the town] along with his two elder brothers and a younger sister (deceased). He reportedly attended school till the age of 15, when he was expelled for “misbehaviour”. [The applicant]’s neuropsychology report by Dr Amanda Nielsen (2014) notes that he had difficulties learning to read and write, for which he received additional support when at Tech school. While he reportedly enjoyed subjects such as mechanics which required hands on work, he disliked Mathematics.
[The applicant] worked as a bricklayer for a significant part of his life, in various locations across Australia, his last job was in 2008.
[The applicant] reportedly met his wife … in his early twenties and got married in his mid-twenties. They had three daughters together (of which one, … passed away due to cot death) and a son from [his wife’s] previous relationship. [The applicant] was reported to have been significantly impacted by the death of his daughter, blaming himself for the death. He separated from [his wife] approximately 21 years ago due to marital discord related to his excessive alcohol use.
[The applicant] reported that he also has a daughter from an earlier relationship, but he has no contact with her.
[The applicant]’s parents are deceased. His brothers have made no contact with him since the commission of his index offence. His relationship with his second brother … (father of his victim) and his extended family remains strained.
[The applicant] has a long history of alcohol misuse and dependence. Reports describe a history of significant alcohol binges on weekends throughout his adulthood (consuming 2 bottles of spirits per occasion), which increased to drinking daily in later years. Around the time of his divorce [the applicant] was reportedly consuming alcohol daily, frequently in the mornings with episodes of blackouts and delirium tremens (due to withdrawing from alcohol use).
Apart from cannabis use in early adulthood, [the applicant] does not have a significant history of misusing illicit substances.
[The applicant]’s medical records indicate that he may have experienced early psychotic symptoms in 2002. He had his first psychiatric admission in 2008 to [a hospital], after being referred by [the town] police following an incident in a local hotel in which he had threatened patrons with a knife. Police reported a 4 year history of aggressive and assaultive behaviour which had intensified over the previous months. While in the hospital, he was noted to have been guarded, suspicious and expressing beliefs of being persecuted by the police, mafia and biker gangs. He acted out in aggressive and defensive ways, which required overnight seclusion.
His records indicate that he was discharged after a period of treatment with linkages to the local area community mental health service, though his quality of engagement at the time was unclear. He was noted to have become non-compliant with prescribed medication around November 2010 and was also consuming alcohol around this time. His medication was re-started in the community and he missed a subsequent review at the community mental health service. [The applicant]’s index offence occurred a month later on 1 February 2011.
Before the index offence of February 2011, the applicant had a relevant record of angry and violent behaviour. The applicant’s brother reported that the applicant had been an aggressive and angry-natured person from an early age, resorting to rage when angered even as a child. Dr Sorungbe reported that the applicant’s first documented violent incident was an impulsive assault on his then 10-year-old daughter in May 1985. He was alleged to have yelled at her and hit her “really hard”, picked her up and held her against the wall and choked her. Five or six years later, on her 16th or 17th birthday, he allegedly picked her up and threw her over his shoulder and smacked her “on the backside like a two year old”.
The applicant admitted (according to Dr Sorungbe’s report) that he had perpetrated physical and verbal aggression towards his ex-wife, and was reportedly on a family violence order at the time of their separation in 1994/95. In 2007, the applicant was fined for being drunk and disorderly. The incident at the hotel in May 2008, referred to above, resulted in the applicant being charged with criminal damage, intentionally causing injury and unlawful assault on the police officer. There is some uncertainty whether, in addition to that incident, another incident occurred in 2010 involving an attack on police officers at the same hotel or whether reports of a 2010 incident have been confused with the earlier one. Whether for the 2008 incident or in respect of a separate 2010 incident, the applicant was convicted and placed on a two-year community corrections order which was still in place at the time of the commission of the index offence.
Treatment and behaviour at TEH.
Following the commission of the index offence, the applicant was admitted to an acute unit at TEH where he reported suffering delusional beliefs that were persecutory in nature. He was prescribed antipsychotic medication and was placed in seclusion for a period due to his unsettled clinical presentation. By March 2012 he had gained some insight of the fact that his beliefs were delusional in nature, was accepting of medication and was transferred to a sub-acute unit where he resided until August 2016.
In April 2012, upon an investigation under Part 2 of the Act, a jury found the applicant fit to plead to a charge of having murdered his niece. Subsequently, after the applicant raised the defence of mental impairment under s 20, and following the process set out in s 21(4), the applicant was, as I have said, found not guilty of murder because of mental impairment and committed to the custody of the Secretary at TEH under a custodial supervision order.
Dr Sorungbe traced the applicant’s progress at TEH. In addition to his ongoing treatment for his psychosis, upon psychological assessment for anger management it was thought that the applicant had unresolved grief stemming from the death of his daughter as an infant. Accordingly, he engaged in a period of grief resolution work. After a time, and with further improvement, he was permitted to attend activities at an outside horticultural program (‘the horticultural program’). He also attended Alcoholics Anonymous on a regular basis, and has reportedly abstained from any consumption of alcohol since his admission.
Having been noted as displaying signs of cognitive impairment, in April 2014 he was referred for assessment by a neuropsychologist, Dr Amanda Nielsen. He was assessed as having pre-morbid intellectual abilities in the low average range and a number of deficits with executive functioning were noted. These included his ability to learn information when presented without context, his ability to generate new information and significant difficulties with inhibiting impulsive and overlearned responses which translated to his ability to abide by rules.
The applicant was transferred to the Daintree rehabilitation unit within TEH on 31 August 2016 and has remained there since. Around the time of transferring to the Daintree unit the applicant was accepted to participate in Community Recovery Program at a specialist facility (‘the CRP facility’). Soon thereafter he commenced overnight leave to the CRP facility outside of TEH for three consecutive days each week. Dr Sorungbe reports that all such leaves have ‘gone well to date’. The applicant reportedly engages well with the program there and the CRP team have given positive feedback on his conduct.
In addition to these regular overnight leaves to the CRP facility, the applicant has continued to attend the horticultural program one day a week. Further, he has also attended a drop-in centre outside of TEH (‘the drop-in centre’) on another day of the week. In all, for over 12 months before the hearing of the present application, he was outside of the TEH grounds on either day leave or 3-day leave for a total of five days per week.
According to Dr Sorungbe, the applicant has been free of incidents, both on and off campus. His mental state and clinical presentation have remained stable during this period, his psychotic symptoms remain in remission, and he remains compliant with his prescribed antipsychotic medication.
Dr Sorungbe conducted a mental state examination of the applicant on 25 October 2018. Using structured psychiatric judgment tools he assessed the risk that the applicant may be violent toward others. He summarised his resulting diagnosis and opinion as follows (emphasis added):
[The applicant] has an established diagnosis of Paranoid Schizophrenia and had some contact with mental health services prior to the commission of his index offence in 2011. He also has a history of significant alcohol misuse in the past but it is worth noting that he was abstinent from alcohol use prior to the commission of his index offence.
[The applicant] has made significant progress since he was admitted in 2011 and has managed to engage in psychological and psychosocial work around his offending, alcohol misuse and mental health. His psychotic symptoms are currently in remission and his clinical presentation has been stable for some time. He remains compliant with his prescribed medications which remains an important component of his treatment both in the short but also longer term.
In view of [the applicant]’s stable clinical presentation as well as his abstinence from alcohol misuse, his engagement with his rehabilitation, his structured weekly activities, and his engagement with the CRP Program, his current risk of violence towards others has been assessed as low.
[The applicant] has a high loading of historical risk factors for violence which does not necessary (sic) indicate that he has an imminent risk of violence should the court be minded to grant him extended leave. It however reflects the fact that he would require a moderately high level of input in the community to ensure that his risk remains low. Significantly he has currently a high level of dynamic protective factors with respect to violence.
Considering all of the above, it is my clinical opinion that [the applicant]’s current risk of violence to others is low and will remain low even if he were to be granted Extended Leave.
It is my considered opinion that [the applicant] is now at the stage of his recovery that there are no longer any additional benefits with regards to his continued admission and treatment as an in-patient at Thomas Embling hospital. He can be safely managed in the community by the Community Transition Team under the care of Dr Shannon Reid.[18]
[18]Exhibit F, [72] – [78].
In his report, Dr Reid canvassed similar topics to those covered by Dr Sorungbe as summarised above, to much the same effect. Dr Reid reported that the applicant denies any recent experience of delusional ideas or hallucinations, accepts that his previous persecutory ideation involved police and motorcycle gangs but now reports he holds positive views about the role of police and no longer has concerns about motorcycle gangs.
From the reports, it is clear that the applicant is yet to demonstrate much capacity for self-management in respect of his living situation. For example, Dr Reid commented on his living at the CRP facility in these terms:
Until recently [the applicant] has been spending his nights at the CRP, previously in a shared residence. He reported a good relationship with his former flatmate, engaging in cooking activity separately but sharing cleaning duties. He nevertheless admitted that his flatmate undertook most of the cleaning while he provided a small personal contribution. In September 2018 his flatmate moved into independent accommodation and for the present [the applicant] has continued to live in the residence on his own. His ability to maintain the care of his environment in this situation of greater responsibility is yet to be demonstrated. It is likely however that this will be a temporary situation and that a new resident will move in at some point. [The applicant] has expressed confidence in his ability to share accommodation effectively with others without conflict.
Dr Reid recounted the various activities in which the applicant is engaged on a frequent basis such as attending the horticultural program and the drop-in centre, as well as going to the movies at a local cinema and exercising in the gym at TEH. But Dr Reid did draw attention to a gap between the applicant’s belief that he can organise himself and the reality. He referred to the applicant’s explanation for his ‘functional deficits’ as being forgetful, and to the fact that hospital staff have intermittently raised concerns about the degree of support that the applicant needs in order for him to initiate required daily activities.
Another area of concern has been the applicant’s capacity to recognise and manage his own experience of anger. Dr Reid reports that whereas the applicant had great difficulty talking about and recognising feelings of anger and frustration, saying he ‘Didn’t know what it was’, more recently he has been able to accept that he had previously experienced anger in a significant way. Nonetheless, Dr Reid noted that although most people staying in a hospital environment would experience anger and frustration, the applicant has been unable to cite examples of having done so.
Like Dr Sorungbe, Dr Reid made an assessment of the risk that the applicant would be violent towards others if released on extended leave. In his view the risk was low. He came to that conclusion despite noting the applicant’s past history of violence when unwell or inebriated, previous reported episodes of violence within the family (that is, towards his daughter and his wife), his psychotic disorder and, before hospitalisation at TEH, his history of ceasing medication and failure to attend appointments with mental health professionals. Against those historical risk factors, Dr Reid placed importance on the applicant having developed some rudimentary insight into his illness, the absence of ongoing violent ideation or any recent evidence of acute symptoms of psychosis, and his satisfactory engagement in treatment and supervision.
Dr Reid’s overall opinion is expressed in the following paragraphs of his report:
[The applicant] is a 60-year-old man with a psychotic disorder and a history of alcohol dependence. He is currently free of acute symptoms of psychosis and abstinent from substance use although he continues to be subject to the effects of cognitive limitations resulting in poor planning and initiation. He has few social supports but has engaged relatively well on a superficial level with his clinical supports. He is involved in a set of regular activities in the community and the [CRP facility].
It is of note that [the applicant] disavows recent experience of anger. There have been no occasions in recent years during which [the applicant] has appeared to have been subject to problematic unmoderated anger or behaviour disturbance as its consequence. He has recently been able to accept that he has however previously experienced considerable feelings of anger. There are a number of possible situations that may manifest in this way. It may be that [the applicant]'s ability to recognize anger is limited to the profound emotional disturbance he experienced during his period of psychosis and he is unable to appreciate more subtle forms of frustration and anger. It may also be that his interests in maintaining a positive demeanour leads him to suppress or manage angry feelings in a way that prevents this from being manifest to others. Regardless, he has now undertaken an extensive period in close contact with others without engaging in behaviour disturbance. There is a likelihood that psychosis was of considerable significance in limiting his ability to inhibit disturbed conduct previously.
There are some inconsistencies in [the applicant]'s reporting of his forensic history and differences between his accounts and information held in his clinical file. It appears probable that cognitive difficulties contribute significantly to this disparity.
It appears likely that [the applicant] underestimates his current dependence upon professional supports to assist his organization and initiation of activity. It is expected that while at the [CRP facility] he will be suitably supported, yet be encouraged to recover some capacity to resume a degree of responsibility for these functions. It is uncertain in the long term as to whether he may ultimately be able to establish some sort of independent living and his progress at the CRP will be an important indicator of the feasibility of such endeavour.
If [the applicant] is granted Extended Leave he would receive regular psychiatric assessment by a psychiatrist or psychiatry registrar and a clinician through the Community Transition and Treatment Team (CTT) of Forensicare. In the initial phase of care this occurs typically on an approximately fortnightly basis with each practitioner such that he receives contact with the CTT at an approximately weekly basis. It is usually the case that after approximately three months the frequency of contact with CTT is reduced to approximately fortnightly, subject to uncomplicated progress and the approval of the CTT after a case discussion meeting. In addition, if [the applicant] were to be granted Extended Leave he will reside at the [CRP facility] where he would receive psychiatric treatment and care through the psychiatrist and registrar responsible for that program. He would also have a key worker at that program.
With continuing supervision, the risk of harm associated with [the applicant] is considered to be low. The risk of self-harm is also considered to be low.
The Community Treatment and Transition team of Forensicare is in support of [the applicant]'s application for Extended leave.[19]
[19]Exhibit E, [69] – [74].
As may be gleaned from the extracts of the reports above, the plan for the applicant’s extended leave, should it be granted, is that he will reside seven days each week at the CRP facility, a supported-community facility with nursing and psychiatric support staff with close links to the Forensicare CTT. Both doctors, and Ms Lynch who also gave evidence, were at pains to emphasise the close working relationship that Forensicare CTT have, and will continue to have, with the CRP facility in the care of the applicant should he be granted extended leave.
In her written report Ms Lynch provided some further detail about the applicant’s current weekly activities, including his 3-nightly leave to the CRP facility, his regular attendance at the horticultural program and the drop-in centre and other unescorted excursions from the hospital. She described his current accommodation at the Daintree unit and the CRP facility, and the planned accommodation at the CRP facility should he have extended leave. She described the activities and supports available at the CRP facility. Beyond the 12 month period of extended leave, should it be granted, the CRP facility will allow the applicant to remain at the facility for a further 18 months should he be granted further leave.
For his part, the applicant has expressed a desire to move to independent living after any period of extended leave although, like Dr Reid, Ms Lynch considers that the applicant would require further skill development to be able to do so and, even then, would continue to require a high level of support.
In support of the applicant being granted extended leave, Ms Lynch stated as follows:
[The applicant] is well supported at the [CRP facility], he engages in one to one keyworker sessions, as well as engaging in different therapeutic groups. [The applicant] would like to move into independent living post CRP, however it appears he may underestimate his ability to live independently given the level of support he currently requires. This is an area that [the applicant] and I have agreed to explore, and assess further. If granted Extended Leave, [the applicant] will be living at the CRP full time, and this will give both [the applicant] and the staff working with him a better understanding of his ability to live in a less structure environment such as Thomas Embling Hospital.
[The applicant]s relative lack of personal supports suggests the importance of linkages to appropriate community based organisations. He is currently engaged in [the horticultural program] as well as [the drop-in centre] which gives him the opportunity to build both professional and personal supports.
Since [the applicant] has been referred to the CTT program, he has engaged well with me during case management sessions. He has had difficulty discussing his mental illness, his early warning signs, and relapse symptoms, which in part appears to be a function of his cognitive impairment likely due to his illness and alcohol use.
If granted Extended Leave, [the applicant] will initially attend for weekly reviews, alternating between case management sessions and reviews with the consultant psychiatrist or psychiatric registrar. Over times, these appointments will reduce in frequency, whereby reviews will occur on a fortnightly basis. The frequency of reviews can increase at any stage if clinically indicated.
Based on all the available information and management plan that is in place to monitor [the applicant], I am in support of his application for Extended Leave.[20]
[20]Exhibit G, [36] – [40].
It is clear from the reports of Dr Sorungbe, Dr Reid and Ms Lynch that there are a number of issues which need to be explored with respect to the level of risk that the applicant would pose within the community. Most significantly, they include his level of insight about his illness; his ability to recognise symptoms of anger and frustration; and the extent of his dependency upon support for the organisation of his daily routines particularly when his compliance with taking medication daily is a critical factor in illness control.
Common to each doctor’s opinion that the risk of harm to the public or the applicant himself was low, should he be granted extended leave, was the assumption that the applicant would have a significant level of ongoing supervision. As Dr Sorungbe put it, the applicant ‘would require a moderately high level of input in the community to ensure that his risk remains low.’ It was substantially around that topic that the opinions of both doctors were tested in oral evidence.
Key issues explored in oral evidence were the risk that the applicant would fail to take his medication; the relative levels and skill of staffing at the CRP facility compared to the Daintree unit at TEH; and the adequacy of the system for detecting and responding to any deterioration in the applicant’s mental health or behaviour if he were on extended leave.
Section 40(1) factors
The factors to which this Court must have regard, as required by s 40(1) of the Act, are set out above at [17]. I will deal with each of those factors one by one.
Nature of mental impairment
As is apparent from the extracts of the medical opinions above, the applicant has an established diagnosis of Paranoid Schizophrenia, described by Dr Reid as a psychotic disorder. It manifested as a paranoia, probably commencing around the mid-1990’s.[21] Primarily, the applicant experienced paranoid delusions of a persecutory nature.[22] He also suffers from significant premorbid cognitive deficit with borderline intellectual capabilities and the effects of chronic alcohol misuse.[23]
[21]Transcript of Proceedings, 17 December 2018, T.45.08.
[22]Ibid, T.46.15.
[23]Ibid, T.90.02-08.
According to both Dr Reid and Dr Sorungbe, he has been abstinent from alcohol since his admission to TEH in 2011 and the symptoms of his psychotic disorder have been in remission since his stabilisation on medication at the hospital.
Relationship between impairment and index offence
The immediate lead up to the index offence in February 2011 was that the applicant became non-compliant with his medication, and he began consuming alcohol. He missed a community review of his mental state and the offence occurred soon after. Upon his apprehension and admission to hospital the applicant was found to be suffering persecutory delusional beliefs. He was found not guilty of murder because it was accepted, on the evidence, that because of his delusional beliefs stemming from his psychotic disorder he was unable to reason that his conduct was wrong.
In evidence on this application, some examination of the doctors focused on the extent to which the applicant’s violent conduct and aggressive behaviour prior to the index offence was the product of his mental disorder or of other aspects of his character and personality. There were assaults and angry behaviour toward family members going back decades before the index offence; an assault on a motorcyclist and the conduct at the hotel already mentioned above in 2008 and, possibly, again in 2010. Of those, Dr Reid considered that it was possible that they were also associated with his illness although he thought there was too little information about them to be certain.[24]
[24]Ibid, T.56-57.
Dr Reid agreed that the index offence was an impulsive act, committed on a person who was not the subject of the applicant’s delusions, and followed a very brief episode of anger towards his victim without any forethought or contemplation by the applicant of the implications of his actions.[25]
[25]Ibid, T.70.10-16.
It was also accepted that the applicant’s history of violence aside from the index offence itself heighted the risk of violence in the future, although Dr Reid and Dr Sorungbe stated that in coming to their risk assessment conclusions they had both taken that history into account.[26]
[26]Ibid, T.58.28–59.08.
Likelihood the applicant would endanger himself or the community
A good deal of evidence focused on the degree of assurance that the applicant would take his medication if released full time to the CRP facility. First, it was pointed out that for the 18 months or so that the applicant has been attending at the CRP facility on 3-day leave there have been no incidents of him failing to take medication. On only one occasion whilst at TEH had there been a medication failure and that involved him mistakenly taking too much medication, regarded as an isolated incident.[27]
[27]Ibid, T.19.05.
At the Daintree unit, the process for him to take his medication was that he would present himself daily to the nurse who would give him his medication in a blister pack. The applicant would then be observed to remove and take the required medication. Essentially the same process occurred at the CRP facility, and would continue to occur there. It is thought that, over time, the applicant could be tested on whether he could be more independent in remembering to take his medication but that has not been tested to date at the Daintree unit.[28]
[28]Ibid, T.48.02-04.
If the applicant did miss his medication, the speed with which his psychiatric condition might deteriorate is somewhat uncertain. Dr Reid considered that the failure to take medication on a single night was unlikely to lead to any significant problems but was unable to predict what might occur if the medication was missed for two, three or four nights.[29] That said, he was still of the view it would be ‘unexpected’ for severe deterioration to occur within a few days.[30]
[29]Ibid, T.48.26-30.
[30]Ibid, T.49.02.
Much attention was also given to the applicant’s ability to recognise his own anger and to detect early warnings of potential loss of impulse control. Dr Reid reported on this topic, as seen in the extract at [50] above. He explained in oral evidence that it had been noted that the applicant’s description of anger was different to what is common experience, and that in the passage referred to he was exploring the various possible reasons for that being the case. He stated that, although there was no way of telling with absolute certainty,[31] he did not think there was any evidence that the applicant was employing a conscious strategy to conceal his anger.[32] Rather, he thought that the applicant’s understanding of his illness was relatively unsophisticated, meaning that greater dependency was placed on observing his mental state rather than relying on him to be able to discern and describe it.[33] Ms Lynch acknowledged that the applicant’s ability to communicate about his own issues of concern was an area which continued to need improvement, but that she saw signs of such improvement as the applicant learned to trust his case worker more over time.[34]
[31]Ibid, T.66.11.
[32]Ibid, T.41-42.
[33]Ibid, T.43.08-19.
[34]Ibid, T.108.
Dr Reid admitted that the applicant’s poor ability to discern and express his own emotional state had been a concern at TEH but emphasised that he and others had drawn assurance from the applicant’s ability to abstain from disturbed conduct despite the pressures that exist within the hospital environment.[35] Dr Sorungbe was of a similar opinion, stating that the applicant’s inability to express himself emotionally was likely the result of his mental illness, his borderline intellectual abilities and the effects of his chronic alcohol abuse.[36] But, despite those limitations, Dr Sorungbe felt that the monitoring of the applicant’s behaviour (both in conduct and in other domains) in TEH over six or seven years, and in his community engagement more recently, demonstrated that ‘something had changed’.[37] Despite not being able to express emotions as might be expected, the applicant’s sustained behavioural change was in his view a more important, objective indicator for the assessment of risk.[38]
[35]Ibid, T.64.10–23.
[36]Ibid, T.91.
[37]Ibid, T.90, T.93.
[38]Ibid, T.91.
Dr Sorungbe also emphasised the applicant’s demonstrated ability to cope with the stress of transition from one living environment to another;[39] and his undisturbed behaviour in other settings outside of TEH such as at the horticultural program and the drop-in centre as evidence of a reassuring degree of self-control.[40] Ms Lynch spoke of the positive difference that she has noted in the applicant when he is at the CRP facility compared with when he is in the hospital environment; very bright, reactive and enjoying very good rapport with staff.[41]
[39]Ibid, T.91.28–92.10.
[40]Ibid, T.93.02-15.
[41]Ibid, T.107.
All witnesses noted the applicant’s ongoing dependency on support for day to day organisational matters, including the taking of his medication, but also extending to maintaining his domestic environment and dealing with commonplace administrative tasks. It was acknowledged that such dependency does pose a greater element of risk compared to another person who has better self-management skills.[42] But, Dr Reid said that his relative lack of self-reliance had been taken into account in assessing risk in the context of the nature and quantity of support that the applicant would continue to receive. Dr Sorungbe thought that the applicant’s dependency might be a reflection of some ‘institutionalisation’ often experienced by long-term inpatients, but could also be the product of more deep seated personal deficits. In any event, he considered that it would be beneficial to move the applicant to a somewhat less supported environment to see how he coped as part of his longer term process of reintegration to the community.[43]
[42]Ibid, T.46.22.
[43]Ibid, T.100.
Both doctors were asked whether it might be a better next step in the applicant’s therapy and community integration to move him to the Jardine unit (outside the locked area of TEH) to trial more independent living rather than being permitted extended leave to the CRP facility. Neither thought that was a productive idea. Dr Reid said it would mean ongoing fragmentation in his weekly living arrangements as he would continue 3-day visits to the CRP facility. It was considered to be less disruptive and less stressful for him to be in the one place.[44] Dr Sorungbe noted that both places are quite similar, and that the Jardine unit had been the contingency destination had his transition to the CRP facility on 3-day leave not been successful. However, given that there had been no concerns arising from his move to the CRP facility, Dr Sorungbe thought it would be preferable not to disrupt that successful transition by interposing an interim place between the Daintree unit and a wholly external facility.[45]
[44]Ibid, T.55.
[45]Ibid, T.95.
Attention was also given to the relative levels of support staff at the Daintree unit on the one hand, and the CRP facility on the other, especially given the acknowledged need for the applicant to have a moderately high level of support to keep his risk of violence at a low level. Although it was not disputed that the Daintree unit had a higher proportion of clinical staff, the CRP facility had 24 hour nursing staff, its own psychiatrist and registrar, and a close working relationship with Forensicare staff who would continue to take responsibility for the applicant’s care through weekly reviews by one of their staff for at least the first three months.[46] In addition, the applicant will be supported by a National Disability Insurance Scheme (‘NDIS’) coordinator who has been assigned to him to meet on a weekly basis; a senior nurse at the CRP facility who will be his ‘key worker’ with whom he will meet weekly; and a support coordinator from the Edge program.[47]
[46]Ibid, T.19, T.20, T.50, T.51, T.87, T.103-4.
[47]Ibid, T.104.
All three witnesses considered that the applicant’s network of clinical and community support would provide a reassuring means of detecting any early warning signs should his mental health deteriorate for any particular reason. That network included the CRP facility staff, Forensicare staff, the various support persons mentioned above as well as the staff at the horticultural program and drop-in centre, who are appraised of his condition and supply feedback to Forensicare.[48]
[48]Ibid, T.24, T.93, T.103-105.
Whilst the applicant will be free to come and go at the CRP facility on a daily basis, it is expected that he will advise staff of his intended daily movements. Of course, he must report back to the facility each evening for medication. Many of his days are accounted for with regular structured activities: the drop-in centre, the horticultural program, a men’s activity group (which is intended to be a new activity), and the various weekly meetings with Forensicare, the NDIS coordinator and his key worker from the CRP facility. Nevertheless, he has recently acquired a car and has obtained his motor vehicle driver’s licence which will provide a degree of mobility he has not had previously.
After extensive cross-examination, and with the qualification that the applicant receive the support and supervision described in their reports and evidence, all three witnesses adhered to their view that the risk that the applicant would endanger himself or the community through violence, if granted extended leave, was low.
Need to protect people from such danger
Unquestionably, the need to protect the community from the danger that the applicant might relapse into mental ill health, experience psychotic delusions and act under the influence of those persecutory delusions, is extremely high. That is because, under the influence of psychosis, the applicant has carried out the most horrendous violence upon his niece who was not herself implicated in the delusion but was simply in proximity to him at the time. From this it is clear that when unwell the applicant’s capacity to inflict serious harm on the community is of the most disturbing kind. On earlier occasions, although not to the same horrendous extreme, the applicant has behaved violently toward members of the community and the police while probably suffering the effects of his mental ill health. That ill health, at least indirectly if not directly, can be triggered by a return to alcohol consumption.
Seven years of history while being treated at TEH suggests that the keys to reducing the risk that the applicant would lose control lie in the continuance of him taking antipsychotic medication, his continued abstinence from alcohol and receipt of support for daily living to ameliorate any stress that might flow from self-dependence. No-one was prepared to suggest that there could be a complete assurance that a return to violence would never occur, but the weight of the evidence was that with the continuance of medication and the vigilance of the network of clinical and community supports that is foreshadowed the risk of such violence re-occurring was low.
One group of people that deserve special consideration are the members of the applicant’s family who have suffered dreadfully from his killing of his niece. Three members of the applicant’s family have explained in compelling detail the suffering they have endured since the victim was killed, and the fear they hold of the applicant’s release into the community, especially should he venture near their homes in the town. Their fear is not simply one of violence being directed towards them – although such fear might exist – but, understandably, one which resides in the apprehension of seeing the applicant free in the community and the constant need to watch out for his presence. Knowing he could be in their home town would have a particularly harmful and restricting effect on their quality of life.
The applicant has expressed a desire to occasionally travel to the town for the purpose of visiting his mother’s grave. Consideration was given during evidence and submissions to conditions which might be imposed upon the logistics of any such visits, to avoid the chance of him contacting or encountering his relatives, but no clear solution emerged. In the end, after being pressed about the importance of such visits given the past restrictions on his contact with his mother while alive and his more recent inability to visit her grave since her death in any event, the applicant indicated through his counsel that, as a condition of receiving any extended leave, he would be prepared to refrain from visiting the town at all.
Adequacy of resources to treat and support the applicant in the community
Substantial detail about the resources to be deployed to treat and support the applicant in the community has already been given. In short, at least in the first three months, the applicant will receive a comparable amount of clinical support to that which he has been receiving for the past 18 months while living between the Daintree unit and the CRP facility accommodation. His community support, if anything, will increase with the addition of the three support workers mentioned earlier, on top of Forensicare CTT.
Of course, against that, he will have a degree of additional freedom of movement. He will probably have some free time at the CRP facility that is not accounted for by attendances at community activities or meetings with support workers. That might be spent visiting the cinema, going shopping or simply driving to surrounding suburbs or towns within daily driving distance. That additional freedom will test the reach and effectiveness of his support network in a new and, to a degree, untried way.
The requirement that the applicant return to the CRP facility each evening to take medication and to sleep represents an important element in the web of community protection, but of course it does not eliminate the possibility of him not returning. But, to be weighed against that possibility is that fact that it has not occurred over the past 18 months and, with the stabilisation of his mental condition which appears to be the key to risk, there is a declining basis for suspecting that it might occur.
Other factors
Both Dr Reid and Dr Sorungbe were of the view that there was nothing further to be gained, in terms of the applicant’s therapeutic treatment, for him to be further detained at TEH, and more to be gained from a stable living routine and for him to be further extended, by careful degrees, with steps toward self-reliance.[49] Ms Lynch considered that there was already evidence that the applicant was positively developing from his attendance in a freer environment.
[49]Ibid, T.27.05-11, T.55.18-21.
There is real cause for doubt, however, that if granted extended leave the applicant will ever obtain the degree of self-sufficiency that would enable him to live independently. As Dr Reid put it, that would mean he would need to remain in some form of supported community living indefinitely. On present evidence, the CRP facility would allow the applicant to stay at its 22 bed facility for 18 months after the expiry of the 12 month extended leave period (if granted) but not beyond. Although others exist, I was informed that the CRP facility offers the most satisfactory suite of services for someone with the applicant’s needs – indeed, perhaps the only facility with the array of services and supports required to adequately control the present risk.[50]
[50]Ibid, T.21.19, T.32.22, T.96.16-23.
Each doctor was asked if there was some ‘pressure’ within TEH to make places available for other forensic patients, and thus some pressure to move the applicant out of the hospital and into the community. While each acknowledged that there was pressure in the system to cope with the influx of patients, each doctor maintained that such pressures had no bearing on their professional judgment about the level of risk a person would represent to themselves or the community if allowed into the community, such as on a grant of extended leave.
Analysis
Having regard to the evidence canvassed above, the question for this Court is whether it can be satisfied that the safety of the applicant or members of the public will not be seriously endangered as result of the applicant being allowed extended leave. There can never be any absolute guarantee of safety and the Court should not deny extended leave merely because of the absence of any such absolute guarantee.[51]
[51]NOM, [65].
There has been a very careful psychiatric assessment of the risk posed by the applicant to the safety of the community in the reports and evidence given by the witnesses to the Court. The doctors and Ms Lynch have very carefully analysed the applicant’s propensity for violence, his current risk profile and the measures that have been designed to stabilise his behaviour. In my opinion, they have made a realistic and frank assessment of him. They have conceded matters about which they cannot be certain. Yet, their confidence in the carefully designed network of support is, to my mind, persuasive.
In my opinion, the evidence discloses that the chief area of risk for the community and for the applicant himself is that he becomes non-compliant with this medication and relapses into mental ill-health, characterised by him experiencing persecutory delusions. That is, experience over the past seven years suggests that while he continues to take his medication it is most improbable the applicant would become aggressive or violent toward others. Non-compliance and relapse might, potentially, be precipitated by some stressful disruption to his life, such as the withdrawal of supports he has been accustomed to receiving. It might be triggered by his resumption of the consumption of alcohol. Perhaps some other unforeseen stressors could cause such a relapse. So, the focus for assessing the risk of danger has been, correctly in my view, targeted toward the range of factors designed to secure a reliable regime of medication, optimise stability and stress-reduction and ensure the continuance of a watchful network of trained observers of the applicant’s mental state.
Although the gravity of the risk is high, should the applicant deteriorate, the likelihood of that risk eventuating is, on all the evidence, low. My conclusion on that issue stems from a combination of factors:
·the absence of disturbed behaviour for seven years;
·the success of his 3-day leave at the CRP facility over a period of 18 months;
·the strong network of support that will be in place during extended leave;
·the similarly strong network for early-warning detection; and
·the likelihood that the effect of him being granted full-time leave at the CRP facility will be positive, rather than negative, thus further reducing the risk of a return to disturbed behaviour.
On that basis I am satisfied on the evidence that the safety of the applicant and members of the public will not be seriously endangered as a result of him being allowed extended leave. In other words, I am satisfied that the condition set out in section 57(2) of the Act has been met.
In addition to those matters to which I must have regard as set out in s 40(1), I must also apply the principle stated in s 39 that the restrictions on the applicant’s freedom and personal autonomy should be kept to a minimum consistent with the safety of the community. Having regard to those matters and applying that principle, I am persuaded that the applicant should be allowed extended leave. In short that is because, subject to observance of the conditions that are proposed and the two further conditions I will mention below, the additional freedom and autonomy which extended leave at the CRP facility will allow the applicant to experience can be achieved without compromising the safety of the community to any unreasonable degree.
In balancing the ingredients stated in s 39, I have assumed that the community is to be attributed some tolerance for risk to the safety of its members. But such risk should only to be allowed to a degree that is reasonable having carefully considered the likelihood of such risk eventuating, the need to protect the community from such a risk and the available resources to control or ameliorate that risk through treatment, support and other measures. I have done my best to consider each of those matters in forming my judgment.
The two additional conditions are these:
·first, that the applicant not visit the town during the period of extended leave; and
·second, that if, in the exercise of his power under the second condition of the leave plan, the Authorised Psychiatrist should approve a location at which the applicant is to reside other than the CRP facility, the Secretary must within 14 days of such approval arrange for this matter to be re-listed before the Court for consideration of whether extended leave shall be continued.
The first of those two additional conditions has already been explained. I consider it is appropriate that the family members and victims of the applicant be extended particular protection by the imposition of that condition.
The second arises because of the importance of the quality of services and staff at the CRP facility to my decision to allow the applicant extended leave, and the fact that he has already transitioned there successfully. I may not have the same degree of satisfaction about the control of risk if the applicant were to be housed at a different facility. I accept the need for there to be some flexibility and agility available to the Authorised Psychiatrist to move the applicant to a different location depending upon factors which are presently unforeseen. But, if it is thought necessary to move the applicant, such a move should trigger a review by this Court of the conditions upon which any extended leave should continue.
Finally, I am satisfied by the evidence that it is desirable that the applicant should, so far as possible, not have to face the stress of public attention in the community. Such attention and its consequent stress would be adverse for his mental state and would neither be in the interests of the applicant or of the community. His conditions of reintegration into the community should be made as stress-free as possible. For those reasons, I believe that disclosure of the applicant’s involvement in the index offence and his history as a forensic patient should be kept to a minimum. I fail to see any counter-balancing public interest to militate against making an order under s 75 suppressing the publication of information that might enable the applicant to be identified. Accordingly, I will make such an order.
In the result, and subject to any further submissions by the parties, the orders I propose to make are as follows:
(a) The Applicant is granted extended leave for a period of 12 months commencing 17 January 2019, pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, allowing him to be absent from his place of custody subject to the following conditions:
(i) That the applicant be under the supervision of the Authorised Psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH) or his or her delegate.
(ii) That the applicant reside at the facility at which he has been approved for 3-day leave by the Forensic Leave Panel or at a different location approved by the Authorised Psychiatrist of the VIFMH or his or her delegate provided that should the Authorised Psychiatrist approve such a different location the Secretary must within 14 days of such approval apply to the court for further consideration of these conditions.
(iii) That the applicant abide by the lawful directions of the Authorised Psychiatrist of the VIFMH or his or her delegate.
(iv)That the applicant comply with treatment and testing and attend appointments as directed by the Authorised Psychiatrist of the VIFMH or his or her delegate.
(v) That the applicant abstain from the abuse of alcohol and from use of illicit drugs.
(vi)That the applicant not attend any place within 25 kilometres of the town.
(vii) That the applicant not leave the state of Victoria without the written permission of the Authorised Psychiatrist of VIFMH or his or her delegate.
(b) The suppression order made pursuant to s 75 of the Act on 21 November 2018 is confirmed.