Re He

[2023] VCC 37

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00220

In the matter of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)

-and-

In the matter of Ye He

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	16 January 2023
DATE OF JUDGMENT:	30 January 2023
CASE MAY BE CITED AS:	Re He
MEDIUM NEUTRAL CITATION:	[2023] VCC 37

REASONS FOR JUDGMENT
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Subject:CRIMINAL LAW

Catchwords:              Review of non-custodial supervision order – application to revoke non-custodial supervision order

Legislation Cited:      Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic); Mental Health Act 2014 (Vic)

Judgment:                  Supervision order revoked

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APPEARANCES:	Counsel	Solicitors
For the Attorney-General For the Secretary to the Department of Health	Ms J Greenham Ms M Martin	Victorian Government Solicitor’s Office Department of Health
For the Reviewee	Ms M Deighton	Doogue + George Lawyers

HER HONOUR:

1This is the further review of a non-custodial supervision order (“NSCO”) made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”) in respect of Mr Ye He on 15 December 2020. The NCSO was for a nominal period of five years. It was reviewed on 15 December 2021 and confirmed for a further twelve months.

2The Director of Public Prosecutions indicated in its written submissions dated 8 December 2022 that the Director did not seek to appear before the court on this review.

Background

3Mr He was born and educated in China. He completed secondary school as well as a Masters Degree in Fine Art. He then managed a pharmaceutical company there. He came to Australia in 2009 with his wife, studied English, worked in a warehouse and has been unemployed since then. His wife divorced him in 2016. He has a 14-year-old son who lives with her, and Mr He has unsupervised contact with him. He also speaks to his parents in China. He receives the Disability Support Pension as well as support from NDIS (which funds his psycho-social support worker and his psychologist).

4His first psychiatric admission was on 10 August 2016 in the context of taking a drug (Champix) to help him stop smoking. He became paranoid and believed that Chinese assassins were trying to kill him: he barricaded himself in his son’s room with a knife. Police attended, and he was then treated with oral antipsychotic medication and made subject to a community treatment order (“CTO”) overseen by the Wyndham Clinic under the Mental Health Act 2014 (Vic). He ceased treatment a few months after being discharged into the community. Following a relapse of psychotic symptoms, he was readmitted to hospital in March 2017 and made subject to an inpatient treatment order. He was treated with paliperidone (administered via long-acting injection), and then discharged to the community on a CTO. He was readmitted for five days in July 2017 and again discharged on a CTO at Wyndham Clinic, where he received treatment until June 2018. At some point his medication was switched to an oral formulation, and he stopped taking this medication prior to the index offending, which occurred on 27 May 2019, when he was psychotic. He believed his roommate was part of a conspiracy against him, kept him in the home, assaulted him, then resisted arrest. He was found not guilty by reason of mental impairment in relation to a number of charges including unlawful imprisonment, intentionally cause injury, resisting an emergency worker and unlawful assault.

Submissions and evidence concerning revocation of the NCSO

5The Secretary to the Department of Health (“the Secretary”) filed written submissions along with two  psychiatric reports (a Forensicare Psychiatric Court Report dated 23 November 2022 by Drs Gregory Lysenko and Roth Trisno, and a report from his treating psychiatrist at the Wyndham Community Mental Health Team, Dr Anindya Banerjee, dated 11 November 2022)  and a report from his case manager (Wyndham Community Mental Health Team), Ms Carrie Lu, a registered psychiatric nurse, dated 16 November 2022.

6At the review hearing, Dr Trisno, Dr Banerjee and Ms Lu gave evidence and were cross-examined.

7In her written submissions, and at the hearing, counsel for the Secretary submitted that the NCSO should be revoked, in accordance with the opinions expressed by the experts. In particular, the Secretary noted that Mr He has complied with the conditions of the NCSO since its imposition; that since switching medication in February 2022 from paliperidone (which, at a therapeutic dose, caused weight gain and pre-diabetic blood sugar levels) to lurasidone (which does not cause these side-effects), Mr He had not raised any wishes to reduce the dosage of his medication. Moreover, at a case conference involving all of Mr He’s professional treaters and support workers in September 2022, those present expressed confidence that he been stable on his medication since February 2022, has developed appropriate and good insight into his mental illness, is motivated to continue taking his medication, has engaged appropriately with all his supports, and presents a low risk which could be managed in future without an NCSO. The Secretary further noted the assessment by Dr Lysenko and Dr Trisno of Mr He’s further risk of violence in six to 12 months since November 2022 as being low, and that this would only occur if his mental state were destabilised by poor medication compliance and disengagement from services. They considered the risk of this occurring to be low. They and Mr Banerjee agreed that the forensic oversight provided for by the NCSO is no longer necessary. Finally, it was submitted that the NCSO should be revoked on the basis of the principle of parsimony set out in section 39 of the Act.

8Counsel for Mr He sought revocation of the order on the basis of the same matters as were raised by the Secretary. In addition, she noted that Mr He’s current accommodation belongs to an old friend of his, who knows of his mental illness, as does his current roommate. Application has been made by Mr He for sole public housing. His current address is still within the catchment area for the Wyndham Community Health Team. Mr He has provided the details of the Wyndham Clinic and his NDIS support worker to his housemate and landlord. In particular, she noted Dr Trisno’s comment that Forensicare is not adding much to his care, which is mainly being provided by a mandarin-speaking team: a general practitioner, Dr Ming Wu; two private psychiatrists (Dr Chen and Dr Imogen Wang); a psychologist (Ms Khai Lan Wong), and an NDIS funded recovery coach (Mr Hao), all of whom were sourced by Mr He on his own initiative. It was noted that Mr He has moved into new accommodation in Werribee with better access to public transport than he formerly had in Laverton, and that since moving in early January he has seen his private psychiatrists. 

9Counsel for the Attorney-General, Ms Greenham, sought confirmation of the order for a further 10 months on the basis of the Court’s discretion to take a different view from the experts. She conceded that the experts in their viva voce evidence had clarified a number of matters which were of concern, including: Mr He’s development of insight, which was currently good; his progress and commitment to treatment; his safe transition to new accommodation; his low level of risk; their satisfaction that he understands the nature of his mental illness, accepts the need for lifelong medication and treatment, and has a private treatment team (two psychiatrists, a psychologist, and a psycho-social worker) in place, all of whom speak Chinese, and with whom he is fully engaged and sees more often than Forensicare or Wyndham clinic doctors.

10Nevertheless, she submitted that given the seriousness of the offending, the multiple admissions between 2016 and 2020 following relapses resulting from failure to take anti-psychotic medication, and the relatively short period of time (since mid-2022) during which his insight has been said to be good and his condition stabilised, confirmation of the NCSO with a further review in ten months’ time would allow an additional period during which he would have “additional points of contact”.

11At the conclusion of the hearing, I gave brief oral decisions, reserving a right to expand upon them, as I have done below.

12I accept the opinions and assessments of the psychiatrists that in the past 12 months Mr He has overcome a cultural barrier to accepting his diagnosis, that he has of his own initiative put together a private treating team of Mandarin speakers with whom he is well-engaged; that his mental state is stable and he accepts his lifelong need for antipsychotic medication; that he is likely to be compliant with his medication regime and is at low risk of future violent offending; that his private team is seeing him more regularly than his public team and is more likely to be aware of early signs of deterioration in his mental state and has been working on giving him internal resources to manage his stressors; that it is appropriate that his care team be streamlined; and that transition to private treatment will take place over time, with a treatment plan to be agreed upon as well as  appropriate safeguards in place concerning crisis management. At any point in the future, he can be referred back to the Wyndham clinical team. It was noted that since the easing of COVID restrictions, he has resumed socialising with his friends, and sees his son for unsupervised access. It was also noted that Ms Lu sees him weekly or fortnightly (by phone) and monthly in person; that he sees his private psychiatrists weekly and his private psychologist fortnightly or monthly. On the other hand, on the public treatment side, he is reviewed by a Forensicare psychiatrist and by a Wyndham Clinic psychiatrist every three to four months, and is seen monthly by his case manager.

13In the light of the evidence, which I accept, I am satisfied, firstly (under sections 40(1)(c) and (d) of the Act) that there is a low risk of Mr He committing violence to others or himself; secondly (under section 40(1)(e)), that there are adequate resources for the treatment and support of Mr He in the community; and, finally, that his mental health needs (and the safety of the community) can be met without the ongoing monitoring and supervision which occurs within the framework of the supervision order. I do not consider it appropriate to delay revocation for a further ten months in the absence of evidence that it is desirable to do so, or on the basis of the matters ultimately relied upon by counsel for the Attorney-General.

Conclusion

14For these reasons, the NCSO made on 15 December 2020 is revoked.