Re HM
[2025] VSC 56
•21 February 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0251
| IN THE MATTER of an application for extended leave pursuant to section 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| - and – |
| IN THE MATTER of HM of Thomas Embling Hospital |
---
JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 February 2025 |
DATE OF JUDGMENT: | 21 February 2025 |
CASE MAY BE CITED AS: | Re HM |
MEDIUM NEUTRAL CITATION: | [2025] VSC 56 |
---
CRIMINAL LAW – Crimes 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 – Recent relapse – Treating team unanimously supportive of application – Application supported by Secretary to the Department of Health but opposed by Attorney-General – Application granted – Conditions imposed on extended leave in accordance with leave plan – Suppression order – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 38C, 39, 40, 42, 57, and 75.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms Bridie Kelly | Victoria Legal Aid |
| For the Secretary to the Department of Health | Ms Julia Greenham | Department of Health |
| For the Attorney-General | Ms Jasmine Still | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
HM, the applicant, is subject to a custodial supervision order (‘CSO’) made by John Dixon J on 1 June 2016, pursuant to s 26(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). He now makes his first application for a grant of extended leave under s 57 of the Act.
The application is supported by the Secretary to the Department of Health (‘the Secretary’), but opposed by the Attorney-General (‘the Attorney’).
The application proceeded before me on 18 February 2025. Affidavit material before the Court satisfied me that the Director of Public Prosecutions had complied with his obligations under ss 38C and E of the Act to give notice and provide information to family members and victims under the Act. Consistent with the usual practice, the presence of the Director was not required during the hearing.
Background
In 2014, the applicant killed a man who was a fellow resident of a boarding house in an eastern suburb of Melbourne. He killed the man by stabbing him to the torso. At the same time as this attack, the applicant attacked another person, who sustained injury. At the time of these events, the applicant was acting under the influence of a psychotic illness. He was charged with murder and recklessly causing injury. The matter proceeded as a consent mental impairment hearing before Lasry J in this Court. On 25 November 2015, Lasry J directed that a verdict of not guilty because of mental impairment be recorded in respect of both charges on the indictment. In due course, on 1 June 2016, John Dixon J made the CSO to which I earlier referred, committing the applicant to the custody of the Victorian Institute of Forensic Mental Health. The applicant has resided at Thomas Embling Hospital (‘TEH’) since that time.
The law
The application for extended leave is made pursuant to s 57 of the Act. Section 57 relevantly provides as follows:
57 Granting of extended leave
(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 Human Services.
(2)The court may grant an application under subsection (1) if satisfied on the evidence available that the safety of the forensic patient or forensic resident or members of the public will not be seriously endangered as a result of the forensic patient or forensic resident being allowed extended leave.
(3)An application for extended leave can be made and granted more than once.
As explained by the Court of Appeal in NOM v Director of Public Prosecutions (Vic) (‘NOM’),[1] an assessment of ‘serious endangerment’ in s 57(2) of the Act requires the Court to consider both the chance of a harmful incident occurring as a result of the applicant being granted extended leave,[2] and the gravity of the harm that might result if that risk were to materialise.[3] As stated in NOM, a highly probable risk of minor harm may not equate to serious endangerment, while conversely, a mathematically improbable risk of grave harm may satisfy the Court of such a criterion.[4]
[1](2012) 38 VR 618 (‘NOM’).
[2]Ibid 637 [58] (Redlich and Harper JJA and Curtain AJA).
[3]Ibid 639 [63], quoting Re Percy, Farrell and RJO (1998) 102 A Crim R 554, 566 (Eames J).
[4]Ibid.
Pursuant to s 39(1) of the Act, in deciding whether to grant extended leave to the applicant, the Court is required to apply the principle of parsimony, whereby restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Section 40(1) of the Act outlines the matters to which the Court must have regard when deciding whether to grant extended leave. Those matters are:
(a)the nature of the person's mental impairment or other condition or disability; and
(b)the relationship between the impairment, condition or disability and the offending conduct; and
(c)whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and
(d)the need to protect people from such danger; and
(e)whether there are adequate resources available for the treatment and support of the person in the community; and
(f)any other matters the court thinks relevant.
The Court of Appeal considered the interaction between ss 39 and 40(1) of the Act in NOM. Their Honours held that:
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 (n 1) 633 [47] (citations omitted).
More recently, this Court has applied the method described by the majority of the Court of Appeal in the matter of Hammond v Secretary to the Department of Health and Human Services[6] to applications for extended leave under s 57 of the Act. As stated by Taylor J in Re CJC:[7]
… in relation to an application for extended leave, 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 if the application is granted and, when doing so, take into account the s 40(1) factors and apply the principle in s 39.[8]
[6][2018] VSCA 356 (Priest and T Forrest JJA, Macaulay AJA) (‘Hammond’).
[7][2019] VSC 508 (‘CJC’).
[8]CJC (n 7) [13], citing Hammond (n 6) [44] and Re GB: An application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 [2019] VSC 4, [21]–[22] (Macaulay J).
Finally, s 40(2) of the Act provides that the Court cannot significantly reduce the degree of supervision to which a person is subject unless it:
(a)has obtained and considered the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on—
(i) the person’s mental condition; and
(ii) the possible effect of the proposed order on the person’s behaviour; and
(ab)in the case of a person who is subject to a supervision order, has obtained and considered the report of a person having the supervision of the person subject to the order; and
(b)has considered the report submitted to the Court under section 41(1) or (3) (as the case may be); and
(c)is satisfied that the person’s family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and
(d)has considered any report of the family members or victims made under section 42; and
(da)in the case of an application for extended leave—has considered the leave plan filed under section 57A; and
(e)has obtained and considered any other reports the Court considers necessary.
Diagnosis of applicant at time of making of CSO
The report provided to the Court pursuant to s 41 of the Act, which was provided prior to the making of the CSO, indicated a diagnosis of chronic paranoid schizophrenia, stimulant abuse in remission in a protected environment and cannabis abuse in remission in a protected environment. The applicant had first been diagnosed with a mental illness and been treated with anti-psychotic medication in 2007. In the years between then and the index offences, he had been treated intermittently for his illness, including as an inpatient on several occasions.
Contemporary psychiatric evidence
Dr Oladipo Sorungbe, Dr James Belshaw, and Ms Jennifer Star’s reports, each dated 28 January 2025, were filed with the Court. Both psychiatrists gave evidence at the hearing, and their reports were tendered.
Report of Dr Sorungbe
Dr Sorungbe, a Consultant Forensic Psychiatrist with Forensicare, has been involved in the care of the applicant since he became his treating psychiatrist in the Daintree rehabilitation unit at TEH in December 2017. The applicant had by that time progressed through acute and sub-acute units at the hospital.
Dr Sorungbe’s report sets out the personal background, criminal history, substance abuse history and psychiatric history of the applicant before he commenced residing at TEH, as well as the circumstances surrounding the index offences. It also summarises the progress made by the applicant in his years at the hospital. In the early years, the applicant was reasonably stable, but continued to experience residual and breakthrough psychotic symptoms including auditory hallucinations and ideas of reference from the television, in spite of being treated with two anti-psychotic medications.
The applicant managed the transition from an acute unit to a sub-acute unit, and then to the Daintree unit quite well, without any observed deterioration. In late April 2018, he was granted unescorted community leaves by the Forensic Leave Panel.
In spite of his ongoing compliance with treatment, positive engagement with his treating team, and abstinence from substance abuse, the applicant suffered a relapse of his mental illness in 2018. He suffered further relapses over the ensuing years, until a decision was made in July 2022, following consultation with the applicant and his family, to commence him on clozapine, a drug reserved for cases of treatment-resistant psychotic illness. There was significant improvement in the applicant’s clinical presentation, and he remained relatively stable throughout 2022 to 2024, with the exception of another setback in December 2022 when he misused illicit substances in the context of some stressors at the time.
When reviewed by Dr Sorungbe on 7 January 2025 for the purpose of the preparation of the current report, the applicant was apparently stable, with no concerns for his mental health. He was happy with the transition which was then ongoing to the Austin Community Recovery Program (‘CRP’), enjoying his community linkages, and comfortable with his discharge trajectory, including the scheduling of the hearing in this Court on 18 February 2025.
Unfortunately, on 17 January 2025, the applicant, when being reviewed by Dr Belshaw, reported that he had been experiencing a relapse of symptoms for the preceding week. He was then reviewed by Dr Sorungbe on 21 January 2025. During that assessment, the applicant acknowledged that he had been struggling for a week, and that his anxiety and psychotic symptoms had increased in intensity. He reported having been under stress for a few weeks, and trying to manage himself. In the course of doing so, he admitted to having obtained some diazepam through a friend and using it to treat his anxiety. He reported that he had been experiencing ideas of reference from the television, intrusive thoughts, and auditory hallucinations. He stated that he had been worried to ask staff for additional medication as he thought this might negatively impact his progress.
Dr Sorungbe increased the applicant’s clozapine dose in the aftermath of this relapse, being concerned about the lower-than-usual serum levels. When he reviewed him again on 28 January 2025, the applicant’s mental state had returned to its baseline level.
Dr Sorungbe indicated there had been no recent incidents of physical violence or aggression towards staff or fellow patients, and no adverse events while on leave. He detailed the positive involvement of the applicant in a violence-related group treatment program in which he participated during 2022 and 2023. He also summarised the daily activities in which the applicant had engaged.
Dr Sorungbe described the progression of the applicant’s leaves from the hospital since first being granted off campus leave by the FLP on 6 February 2017. He commenced three unescorted overnight leaves in May 2024, and as at the time of the report, had had over 30 successful sets of such leave. His mental state and clinical presentation have remained stable throughout.
Dr Sorungbe described the significant progress made by the applicant in his transition back into the community. At the time of the report, he was transitioning to the Austin CRP and was case managed by the Forensicare Community Treatment and Transition team (‘CTT team’), with Dr Belshaw as his consultant and Ms Starr his case manager.[9]
[9]See [40] below regarding a change to the applicant’s case manager.
Dr Sorungbe carried out a risk assessment of the applicant using the HCR-20. His baseline risk for violence remains high due to his high loading of historical risk factors. His risk of perpetrating violence in the medium term (six months) was found to be in the medium range. The risk of violence was not higher due to the supervision being received by the applicant in the Daintree unit, and this would continue if he was discharged to the Austin CRP. In view of the nature of the applicant’s past offending, the risk of serious violence remained high, but ‘the imminence of violence in his current treatment setting in a secure hospital is low’.[10] Dr Sorungbe noted that the risk of violence would likely become elevated should any of the existing protective factors change. He identified some of the potential stressors. Future violence would most likely occur in the context of acute deterioration in the applicant’s mental state, which may be precipitated by medication non-compliance, use of illicit substances, or interpersonal difficulties.
[10]Psychiatric Court Report of Dr Oladipo Sorungbe, 28 January 2025 [102].
In stating his opinions, Dr Sorungbe indicated that it was his view that the recommended and appropriate next step for the applicant’s transition back into the community is via the extended leave pathway. In light of the supervision and monitoring he would receive from the CTT team and the Austin CRP, it is likely that any potential escalation in his risk of violence would be identified early and adequately managed before serious harm occurs.
Dr Sorungbe stated that the recent relapse and how effectively it was managed were indicative of the need for a high level of support to manage risk in the community, which would be provided to the applicant.
Dr Sorungbe stated that it was his considered opinion, and that of the treating team in the Daintree unit, that there would be no additional benefits to be gained from applicant being retained as an inpatient at TEH. He can be safely managed and supervised in the community by the CTT team and staff at the CRP. He will not present a risk of serious endangerment to the community or himself should he return to living in the community full time. In those circumstances, Dr Sorungbe supported the applicant’s application for a grant of extended leave, and the leave plan proposed by Dr Belshaw.
Report of Dr Belshaw
Dr Belshaw is a Consultant Forensic Psychiatrist working within Forensicare’s CTT team, which is responsible for assisting patients to prepare for an extended leave application, and for their subsequent treatment and management once extended leave is granted.
Dr Belshaw has been the applicant’s allocated CTT psychiatrist since February 2024. He had reviewed him on 13 occasions at the time of his report. In his report, he summarised all relevant aspects of the past history of the applicant, including the progress he has made during the CSO.
The applicant began attending monthly appointments with the CTT team in preparation for this application. His attendance has been excellent. Dr Belshaw visited the Austin Health CRP flat in which the applicant resided when away from TEH, finding it to be safe, clean, organised and appropriate. The CTT team had regularly liaised with the Austin CRP, who had expressed no concerns about the presentation and behaviour of the applicant.
The applicant has indicated an intention to remain illicit drug free in future. Unfortunately, through no fault of the applicant, his Alcohol and Other Drug (‘AoD’) counselling had been terminated in December 2024. The report indicated that the CTT team would support him in obtaining a referral to another AoD provider. Dr Belshaw indicated that in the event of the applicant being discharged from TEH, the CTT team would conduct random urine drug screens in the initial months.
Dr Belshaw set out the circumstances of the applicant informing his CTT Case Manager on 17 January 2025 that he had experienced a relapse into psychotic symptoms in the preceding week. The applicant had first informed his mother and sister, who insisted that he inform the CTT team and staff at Daintree. Of note, the applicant had been residing at the Austin CRP for the preceding three days and had not notified staff of his concerns.
Dr Belshaw was of the view that the applicant’s increased smoking had likely led to a reduction in his serum clozapine levels, which, combined with the stress of the impending application and potential release, had precipitated a ‘minor relapse’.[11]
[11]Psychiatric Court Report of Dr James Belshaw, 28 January 2025 [93] (‘Belshaw report’).
The applicant also admitted to Dr Belshaw on 23 January 2025 that he had illegally obtained and consumed diazepam tablets, which the applicant described as a ‘stupid decision’[12] which he would not make again.
[12]Ibid [95].
Dr Belshaw’s mental state examination of the applicant on 23 January 2025 revealed that the applicant was stable, and denying any psychotic symptoms, although he maintained a belief that the victim of the index offence was still alive.
Dr Belshaw carried out a risk assessment using the HCR-20. He assessed that the applicant’s baseline risk of violence, determined by historical factors, was high. There were some recent dynamic risk factors for violence. However, the applicant had reasonable insight into his illness, had shown no recent violent ideation, and his compliance with medication, treatment and attendance at appointments had been excellent.
Bearing in mind the access the applicant would have to mental health services in the community, the availability of a stable living situation, the personal supports available to him, his ready compliance with treatment, and notwithstanding the increased exposure to illicit substances upon a return to full time living in the community, Dr Belshaw described the risk for future violence posed by the applicant upon a grant of extended leave as being moderate. That risk rating will decrease in the coming three to six months in the event his mental state continues to stabilise following the recent relapse.
In the opinion section of the report, Dr Belshaw stated:
[HM]’s progress since the index offences was underpinned by sustained compliance with prescribed medication, an absence of significant violence or offending and a significant improvement in his insight and engagement with mental health rehabilitation. His relapses to substance abuse during the CSO appeared indicative of a regression to both his lifelong behaviour of utilising substances to cope with stressors; and his chronic cognitive issues and impulsivity which impact his decision making. Nonetheless there was evidence of improvement in this area following the commencement of clozapine which appeared to increase his resilience to relapse.
In the preceding 16 months [HM]’s newfound resilience enabled his successful placement at the Austin Health CRP, abstinence from illicit substances and alcohol, increase in utilisation of overnight leave away from the TEH, implementation of a reasonable weekly repertoire of activities and engagement with a range of personal and professional supports in the community.
In my opinion [HM’]s aforementioned relapse and behaviour in early January 2025 provides foresight into the most likely clinical and risk scenarios which may arise in the event Extended Leave is granted. The events of January 2025 showed that [HM] still needs support to improve his ability to identify and communicate his mental health symptoms to those involved in his care, in a timely manner, and without fear of what he may perceive as a punitive response. At the same time there was evidence that his relapses can be detected whilst living largely in the community and mediated via prompt treatment changes and the provision of extra support. At the same time the relapse was not related to any violent ideation or significant change in behaviour.
I therefore conclude that [HM] has reached his ceiling of recovery within the confines of the TEH. Further rehabilitation aimed at increasing his transparency and independence will be more optimally delivered in a community setting, whilst the level of support and monitoring proposed will maintain that his risks are sufficiently mediated.[13]
[13]Belshaw report (n 11) [125]-[128].
Dr Belshaw indicated that the CTT team therefore supports the applicant’s application for a grant of extended leave. The report had proposed recommendations for the leave included as Appendix 1.
Report of Jennifer Star
Ms Star, a senior clinician (Occupational Therapist) at Forensicare, was the applicant’s case manager at the Community Treatment and Transition Program (‘CTTP’). Her report outlined the community linkages and activities, accommodation, family support, and daily activities of the applicant. It is unnecessary to further deal with these here. Ms Star indicated that the CTTP supports the application for extended leave by the applicant. At the hearing, Ms Greenham, for the Secretary, notified the court that Ms Star had gone on leave, and that Ms Karabatsos, who was in attendance at the hearing, was the applicant’s new case manager.
The evidence in the hearing
In examination-in-chief by Ms Greenham, Dr Belshaw confirmed the truth and accuracy of his report. He indicated the intention of the CTT team was to have weekly random urine screens of the applicant. He explained what he saw as the factors relevant to the January 2025 relapse, including the applicant’s anxiety about the pending court date and his possible impending release into the community, along with the reduced serum clozapine levels, potentially caused by increased smoking, at the time. Whilst the reporting by the applicant was delayed, and not ideal, it still occurred in a ‘reasonable clinical timeframe’[14] and there were no adverse incidents or evidence of serious endangerment to the community. Dr Belshaw explained the rationale behind his indication in the report that the risk posed by the applicant would likely decrease in the coming three to six months. And he confirmed that in his opinion, the change in the applicant’s case manager did not impact on the risk determination.
[14]Transcript 8.
Dr Belshaw gave evidence about the security and staff qualifications at Austin CRP, as well as the arrangements under which the applicant would live there, describing the accommodation as safe and appropriate for the purposes of extended leave. The staff would be well appraised of the early warning signs of the applicant. There has been extensive handover from the CTT team to Austin Health and there will continue to be regular liaison. He detailed the proposed ongoing reviews and supervision.
When asked to characterise the proposed overall care and structure which would be provided to the applicant, Dr Belshaw opined:
in terms of the accommodation and access to professional services, and the number of individuals who are able to support the CTT team to monitor [HM’s] mental state, it is as close to gold standard as I have experienced in working with this cohort of clients being discharged from the TEH in recent years.[15]
[15]Ibid 12.
Dr Belshaw stated his view that a refusal of the application would represent a therapeutic setback for the applicant due to the negative effect it may have on his self-esteem.
He outlined the steps that would be taken in the event of a further relapse.
In cross-examination by Ms Kelly, for the applicant, Dr Belshaw stated that any public reporting identifying the applicant would cause direct stress to him, and may impair his prospects of both recovery and integration within the community.
In cross-examination by Ms Still, for the Attorney, Dr Belshaw confirmed that the diagnoses by Dr Owens prior to the making of the CSO of the applicant suffering from chronic paranoia, stimulant abuse disorder in remission and cannabis abuse disorder in remission continued to apply. He acknowledged that any further relapse into drug use would increase the risk of future violence, but saw the recent diazepam use by the applicant as of marginal significance.
Dr Belshaw distilled the risk scenarios relevant to the potential situation where the applicant returned to his pre-index offence lifestyle, including months of poly-substance abuse, non-compliance with medication, a lack of specialist mental health input, an absence of stable accommodation, and a deterioration in the quality of family support. He stated, ‘I believe all of those things would need to sequentially go wrong in [HM]’s life again for him to engage in an incident of serious violence’.[16] In light of the actual circumstances of the applicant’s life, now and if granted extended leave, Dr Belshaw stated, ‘I think there is a very low likelihood at the current time of him acting and behaving in a manner similar to that prior to the index offence’.[17]
[16]Transcript 20.
[17]Ibid 21.
When questioned about his assertion in the report at [121] about the prospect of the risk rating of the applicant decreasing in the coming three to six months as his mental state continues to stabilise, Dr Belshaw said that he is satisfied that the applicant’s mental state has already stabilised. When asked whether or not it would be helpful to have a further period of treatment at TEH to confirm the current mental state, prior to release on extended leave, Dr Belshaw responded in the negative, maintaining that a further period in hospital is not necessary to confirm that proposition, and that the addition of a further court date would likely precipitate a further period of anxiety and may lead to a repetition of the minor relapse which occurred in January.
Dr Belshaw attributed the applicant’s delay in reporting his symptoms to the fact his experience of chronic institutionalisation has engendered a pattern of mistrust of services at times. There is a risk he may again, in future, fail to fully report his symptoms, but that is a risk for every person discharged from TEH, he opined.
In respect of a risk of future relapse in the community, Dr Belshaw opined that the likely scenario of that would be very similar to what occurred in January 2025. As for the likely delay before the resumption of AoD counselling, whilst that is not ideal, it is a positive that the applicant has already navigated the more complex and difficult phases of abstinence.
When Dr Belshaw was asked by me about symptoms reported by the applicant and discussed in the report at [108] and [111], he indicated these were residual delusional beliefs which are not uncommon amongst those suffering from psychotic illnesses, had no impact on the risk assessment, and might be something which never goes away altogether, regardless of treatment.
In examination-in-chief, Dr Sorungbe confirmed the truthfulness and accuracy of his report. He concurred with Dr Belshaw’s characterisation of the system of care and support available to the applicant should he be granted extended leave, describing it as a ‘textbook discharge’.[18] He said that his rating of the risk posed by the applicant as ‘medium’ was the same as Dr Belshaw’s ‘moderate’. The ‘imminence’ of risk of violence is low. That would remain the case if leave was granted. He agreed with Dr Belshaw’s evidence that there would need to be many factors going wrong before there would arise a higher risk of serious harm. He said that the current level of supervision and support would be adequate to mitigate and manage any potential risk. He also agreed with Dr Belshaw that a refusal of the application, on balance, would likely have a negative impact on the applicant.
[18]Transcript 33.
In cross-examination by Ms Kelly, Dr Sorungbe stated his opinion that the applicant is already back to his baseline clinical presentation. He confirmed the possible harmful effect of publication of the case.
In cross-examination by Ms Still, Dr Sorungbe confirmed that the applicant is prone to relapses, and that stress is a major trigger for relapses. Commencing extended leave could arguably trigger a relapse, but on the other hand, it may be a bigger stressor for a person to be living in two separate places, as is his current arrangement (i.e. three nights at Austin CRP and four nights at TEH per week), rather than in one permanent address.
In relation to the most recent relapse, Dr Sorungbe opined that it was brought about by a combination of factors, but was not as severe as previous relapses, and was well-managed.
Dr Sorungbe agreed that the January 2025 relapse was not observed by clinicians. However, when Ms Still put to him that, if granted extended leave, the applicant may suffer an undetected relapse which could seriously endanger him or others, he disagreed with the proposition. He said it would take a lot more than just a relapse. Multiple factors would need to be present before the risk would escalate to that extent.
Dr Sorungbe indicated that in his view, it would not be helpful to have a further period of observation before a grant of extended leave to confirm the applicant has stabilised.
Submissions
Written and oral submissions were received by the Court from all parties. The submissions were universally of an excellent standard, and of great assistance to the Court. The submissions all dealt with the legal framework, the expert material, and the relevant case law. In the circumstances, the submissions can be dealt with very briefly, but of course, I took all submissions into account.
The submissions on behalf of the applicant and the Secretary analysed the expert evidence, focusing in particular on the wide array of supports and treatment available to the applicant, the circumstances of the January 2025 relapse, and why that should not stand in the way of a conclusion that a grant of extended leave would not lead to the applicant or members of the public being seriously endangered. The relapse was a minor one, not triggered by drug use, and not accompanied by any violent conduct or ideation, nor any significant change in behaviour. This could be clearly distinguished from the circumstances and the psychotic symptoms operating at the time of the index offences. The relapse was well handled in the community, demonstrating the effectiveness of the supports and treatment that would be provided to the applicant upon a grant of extended leave. Although the self-report was delayed somewhat, it is of note that it was made, and was accompanied by the applicant explaining his feelings, and acknowledging his mistakes and poor judgment.
In her oral submissions, Ms Greenham emphasised the evidence of the experts about the ‘gold standard’ or ‘textbook’ level of support being offered to the applicant. Much would have to change before the applicant would pose a serious risk to the safety of the community or himself, and the Court should be satisfied that this would be unlikely to occur.
Ms Kelly submitted that the central thing to take from the sworn expert evidence is that the system was working, and that what would be in place would be sufficient to manage the future risk of a relapse. The doctors agree that the applicant has now stabilised. The risk of serious harm similar to that arising from the index offences would require, for it to arise, a collection of things to go wrong. There is no prospect of that occurring.
Both Ms Greenham and Ms Kelly submitted that the Court should conclude that a grant of extended leave to the applicant would not lead to the safety of the applicant or the public being seriously endangered and therefore that I should exercise my discretion to grant the application.
Ms Kelly further submitted that the expert’s evidence would allow me to be satisfied that it is in the public interest to grant a suppression order under s 75 of the Act, in order to promote the applicant’s continued recovery and rehabilitation in the community.
Ms Still focused her written and oral submissions on the most recent relapse of the applicant. She submitted that the relapse is concerning for two reasons. First, relapses can increase the applicant’s risk of violence. Secondly, there was a delay in this relapse coming to the attention of the applicant’s clinicians. No symptoms were observed and the applicant did not initially report the symptoms, in keeping with the mistrust of care services he has historically displayed.
Ms Still submitted that a grant of extended leave at this time would be premature, as it appears that the applicant is still working on building rapport with his clinicians at Austin CRP and in the CTT team, and he needs to have a strong rapport so that he can promptly inform them of any escalation of his symptoms. In the circumstances, she submitted that it would be best for a further period of time to be permitted to elapse before a grant of extended leave, enabling the mental condition of the applicant to fully stabilise, and for the risk he poses to reduce. She submitted that the January relapse illustrates that there is currently the prospect for the applicant to experience an aggravation of his psychotic symptoms which may go undetected. A further such relapse would have the potential to increase risk. Such risk would be more difficult to manage if the applicant was living in the community full time.
Ms Still submitted that the need for caution in this case is reinforced by the fact that stress is a known trigger for relapses in the applicant’s mental condition. The commencement of extended leave would be a major transition involving a reduction in restrictions. It would have the potential to destabilise the applicant’s mental state.
Ms Still submitted that the application for extended leave should not be granted in light of the applicant’s current level of risk and the potential for this risk to escalate undetected.
In her oral submissions, Ms Still submitted that the application should be refused for three reasons. First, because of the severity of the harm which may flow should the risk of future violence materialise in this case, in light of the nature of the index offence. Secondly, because of the very recent relapse only a matter of weeks ago which was neither detected by clinicians nor reported in a timely fashion by the applicant. Thirdly, because transition into the community full time could lead to changes that may make a further relapse more likely.
Analysis
A mere reading of the written outlines filed in this case would fully explain and justify why the Attorney took the attitude which was taken in this case. There is an understandable attraction to the proposition that since there was an undetected relapse in the condition of the applicant as recently as one month ago, and since three to six months must pass before the risk he poses will revert to its previous level, there may be good reason to delay any grant of extended leave for some months to enable that to occur.
Having heard the sworn evidence of the experts, however, I have concluded that things are not as simple as that.
The evidence of Dr Belshaw and Dr Sorungbe was that the recent relapse was a relatively minor one, which brought about no outward changes in the behaviour of the applicant, was not accompanied by any violent behaviour or ideation, did not pose any increased danger to the public, and was handled promptly and effectively in the community. There was clear evidence that the applicant’s mental condition has returned to its baseline level, and that his condition has stabilised. No further time at TEH is required for that to occur. In the overall scheme of things, whilst this language was not used by the experts, the January 25 relapse of the applicant can be seen as a relatively minor hiccup in the long history of the rehabilitation leading up to this point.
Nothing about the circumstances of the relapse, including its recency, led either of the experts to harbour any doubts about the appropriateness of a grant of extended leave at this time. Indeed, in some respects, the nature of the relapse and the way in which it was so readily handled in the community seemingly fortified the experts in their view that the time has arrived where the applicant has reached his ceiling of recovery within the confines of TEH, and his rehabilitation will be most effectively furthered in the community.
Both of the experts who gave evidence before me expressed the view that a great deal would have to go wrong before the applicant could be reduced to the dangerous state he found himself in prior to the index offences, and again engage in an incident of serious violence. As Dr Belshaw put it, in light of the current circumstances of the applicant and the trajectory of his rehabilitation, there would be a very low likelihood of that occurring.
The evidence of Dr Belshaw and Dr Sorungbe was clear that no purpose would be served by the applicant being held for a further period in TEH. There was the same unanimity of views that if anything, a refusal of this application may have a negative impact on the mental state and progress of the applicant.
Both the experts were impressed by the level of supports, monitoring and treatment which would be available to the applicant should a grant of extended leave be made. No doubt this was the central matter underpinning the clear evidence they both gave before me that a grant of extended leave would not increase, in any real way, the risk posed by the applicant to himself or the public.
Conclusion
After a careful consideration of the available evidence, having had regard to the factors set out in s 40(1) and applying the principle of parsimony set out in s 39, I am satisfied pursuant to s 57(2) of the Act that the safety of the applicant or members of the public will not be seriously endangered as a result of him being allowed extended leave. I therefore grant HM’s application for extended leave.
I am also satisfied that it is in the public interest to make the suppression order sought by the applicant, which was not opposed by any other party.
Orders
Accordingly, I make the following orders:
1.The application for extended leave under section 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) is granted for a period of 12 months commencing on 15 March 2025 on the following conditions:
(a)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;
(b)That the applicant reside at a location approved by the authorised psychiatrist of the VIFMH or his or her delegate;
(c)That the applicant abide by the lawful directions of the authorised psychiatrist of the VIFMH or his or her delegate;
(d)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;
(e)That the applicant abstain from the abuse of alcohol and the use of illicit drugs; and
(f)That the applicant not leave the State of Victoria without the written permission of the authorised psychiatrist of the VIFMH or his or her delegate. This includes overseas travel which must be approved by the authorised psychiatrist of the VIFMH or his or her delegate.
2.Pursuant to s 75 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997:
(a)any evidence given in the proceeding;
(b)the content of any report or other document put before the court in the proceeding;
(d)any information that might enable HM to be identified –
must not be published in any manner.
0