Re JT
[2016] VSC 681
•23 November 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 03281
| IN THE MATTER of an application for variation of a custodial supervision order to a non-custodial supervision order pursuant to section 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) |
| – and – |
| IN THE MATTER of an application by JT |
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 November 2016 |
DATE OF JUDGMENT: | 23 November 2016 |
CASE MAY BE CITED AS: | Re JT |
MEDIUM NEUTRAL CITATION: | [2016] VSC 681 |
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CRIMES MENTAL IMPAIRMENT – application for variation of custodial supervision order to non-custodial supervision order – whether release of applicant on non-custodial supervision order would seriously endanger safety of applicant or members of the public – whether applicant has completed a period of 12 months extended leave and complied with the conditions of that leave – whether granting application would be consistent with principle that applicant’s freedom and personal autonomy should be kept to minimum consistent with safety of community – whether applicant would be likely to endanger himself or any other person or people generally – whether court has obtained and considered reports of medical practitioner and person having supervision of the applicant – Crimes (Mental Impairment and Unfitness to the be Tried) Act 1977 (Vic) ss 32(2)-(3), 39(1), 40(1), (2)(a) and (ab).
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | Ms S Delaney | Victoria Legal Aid |
| For the Attorney-General of Victoria | Ms J Swanwick | Victorian Government Solicitor’s Office |
| For the Department of Health and Human Services | Ms L Torres | Department of Health and Human Services |
| For the Director of Public Prosecutions | Ms L Wilkinson | Office of Public Prosecutions |
HIS HONOUR:
JT makes application pursuant to s 31(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) for an order varying his custodial supervision order (‘CSO’) to a non-custodial supervision order (‘NCSO’). In the alternative, he applies for a further grant of extended leave pursuant to s 57. Both the Attorney-General and the Secretary to the Department of Health and Human Services are supportive of the application for variation of the CSO to a NCSO.
The events that gave rise to the making of the CSO are set out in the Summary of Proceedings and Facts of the Case dated 30 October 2013, filed by the Office of Public Prosecutions.
The index offence occurred on 4 March 2006 when JT attacked and stabbed three men as they walked through a riverside car park at Spotswood, killing one and seriously injuring two others. He appeared to have experienced his first episode of psychosis at the time, for which he had not been assessed, diagnosed or treated. He also had a co-existing substance dependence disorder and a history of anti-social and criminal behaviour.
On 1 June 2007, he was tried for one count of murder and two counts of attempted murder and found not guilty by reason of mental impairment. He was placed on a CSO under pt 5 of the Act with a nominal term of 25 years which commenced on 6 March 2006.
After the imposition of the CSO, the applicant was detained at the Thomas Embling Hospital and gradually progressed through the rehabilitation regime offered by Forensicare.
The applicant was first granted extended leave under s 57 for 12 months by Dixon J on 27 November 2013. His Honour’s detailed reasons set out the circumstances of the index offending and JT’s background and history. Further extended leave periods of the same duration were granted on 21 November 2014 and on 10 November 2015 by Bongiorno J and Macaulay J respectively. It follows that the applicant, though still the subject of a CSO, has been residing continuously in the community for almost three years. In terms of s 32(3)(a), he has successfully completed a period of extended leave for a period of at least 12 months. The extended leave was subject to conditions. In terms of s 32(3)(b), he has complied with the conditions of that leave.
The first application for variation of the CSO was filed on 10 November 2015 and was set down for hearing on 10 February 2016. On 13 January 2016, the applicant through his solicitor withdrew the application. The current application was filed on 11 August 2016.
In accordance with s 38C of the Act, the Director of Public Prosecutions has given notification of this hearing to the relevant family members and victims of the index offence. The Director has also notified them of the opportunity to make a report on the conduct of the applicant and its impact on them. No reports have been received from the victims or family members.
Legislative framework
Consideration of JT’s application is governed by s 32, which provides as follows:
32 Variation of custodial supervision orders
(1) On an application under section 31 for variation of a custodial supervision order … the Court must, by order—
(a) confirm the order; or
(b) vary the place of custody; or
(c) subject to this section, vary the order to a non-custodial supervision order.
(2) The court must not vary a custodial supervision order to a non-custodial supervision order during the nominal term unless 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.
(3) In the case of a forensic patient or forensic resident –
(a)the court must not vary a custodial supervision order to a non-custodial supervision order (whether during or after the nominal term) unless the forensic patient or forensic resident has completed a period of at least 12 months extended leave granted by the court under section 57; and
(b) in deciding an application to vary a custodial supervision order to a non-custodial supervision order, the court must take into account whether or not the forensic patient or forensic resident has complied with any conditions of their extended leave.
(4) If the court varies a custodial supervision order to a non-custodial supervision order before the end of the nominal term, that nominal term continues to run.
(5) The court may direct that the matter be brought back to the court for further review at the end of the period specified by the court.
(6) A direction may be given under subsection (5) more than once.
In relation to the applicant’s alternative application for further extended leave, s 57(2) provides:
57 Granting extended leave
(1) …
(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.
Sections 39 and 40 specify a principle that must be applied and mandatory considerations that must be taken into account in the determination of applications for variation of a CSO.
In relation to the principle that must be applied, s 39(1) provides:
39 Principle to be applied
(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 the minimum consistent with the safety of the community.
As the Court of Appeal stated in NOM v Director of Public Prosecutions (Vic)[1], the principle in s 39(1) involves ‘balanc[ing] the interest of the liberty of the detainee with protection of the community and in doing so assess[ing] risk factors which, in turn, depend upon value judgments’.[2]
[1][2012] VSCA 198 (24 August 2012) (Redlich and Harper JJA and Curtain AJA) (‘NOM’).
[2]Ibid [21].
In relation to the considerations that must be taken into account, s 40(1) specifies them to be:
(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.
These mandatory considerations need not be given equal weight.[3] Ultimately a decision on an application of this nature is discretionary, provided that the principle set out at s 39 is applied and the considerations specified in s 40(1)(a)-(f) are taken into account. The weight to be attributed to the individual considerations will depend on the facts of the case.
[3]NOM [2012] VSCA 198 (24 August 2012) [49] (Redlich and Harper JJA and Curtain AJA); see also Minister for Immigration and Citizenship v Khadgi and Anor [2010] 274 ALR 438, 458-9 [60]–[65] (Stone, Foster and Nicholas JJ); R v AB (No. 2) (2008) 18 VR 391, 405 [45] (Warren CJ, Maxwell P and Redlich JA).
In addition, s 40(2) provides that the court cannot vary a CSO to an NCSO 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.
Section 40(2)(a), (ab) and (c) apply in this case. The court has received the reports of Dr Shannon Reid dated 14 October 2016 and of Ms Eniola Akintola dated 13 October 2016 which satisfy the requirements under s 40(2)(a) and (ab) respectively. On the evidence submitted by the DPP, I am satisfied that notice has been given under s 40(2)(c) and that no family member or victim wishes to participate in the hearing.
Applicant’s psychiatric history
JT is a 39 year old single man with a well-established diagnosis of paranoid schizophrenia (in remission). He had no formal psychiatric history prior to the index offence. He commenced alcohol and cannabis use at the age of 14. Apart from periods when he lived in Macedonia, it appears that he engaged in anti-social behaviour and increasing levels of drug abuse. His parents reported that he grew increasingly paranoid in the period between 2004 and 2005 to the point that they had to take out an intervention order against him.
JT began to experience hallucinations in December 2005 which reinforced his grandiose and delusional beliefs. He was convinced of the divine nature of these experiences and felt compelled to act upon the commands. He had a vision the evening before the index offence that he was the ‘chosen one’ commanded by God on a mission to destroy evil people. He had another vision the following evening to kill ‘a bloke with a blue and pink shirt’ but no person answered that description. He was intercepted by police for speeding and subsequently confessed to his actions.
Following his arrest for the index offence, JT was admitted to Thomas Embling Hospital for anti-psychotic treatment which gradually decreased his auditory hallucination. He suffered a relapse of psychotic symptoms in June 2007 and was diagnosed with treatment refractory schizophrenia and promptly treated with Clozapine.
By November 2007, indicia of increasing insight were noted and JT was able to identify the early warning signs for relapse. He reported no auditory hallucinations and only minimal intermittent paranoia. He demonstrated a positive response to Clozapine, although positive symptoms were persisting on an intermittent basis.
By November 2008, JT was able to show good insight into his mental illness and its association with substance abuse and risk of violence associated with relapse. He has been in remission from active psychotic symptoms since 2009 and showed a steady recovery.
JT was first granted unescorted leave in December 2010 and began taking unescorted off-ground leave within curfew hours a year later. His first overnight leave to his parents’ home was in September 2012. In December 2012, NEAMI, a non-government mental health organisation that provides rehabilitation, housing and recovery support for mentally ill people, placed JT in transitional supported housing in Box Hill to be shared with another patient. He was granted up to three nights overnight leave in a seven-day-period.
JT was officially discharged from Thomas Embling Hospital on 21 November 2013 after being granted extended leave. He has remained free of positive psychotic symptoms, abstinent to illicit substance and alcohol, been fully compliant with medication, and developed positive and ongoing therapeutic relationships with those involved in his treatment.
Applicant’s progress on extended leave between 2014-2015
Two psychiatric reports were received by the court in connection with JT’s previous application for renewal of extended leave, granted on 10 November 2015. One was the report of Dr Ann Brennan, Consultant Psychiatrist, Victorian Institute of Forensic Mental Health, dated 21 October 2015. The other was the report of Eniola Akintola, Case Manager, Victorian Institute of Forensic Mental Health, dated 20 October 2015.
According to these reports of Dr Brennan (his then treating psychiatrist) and Ms Akintola, JT had shown no evidence of either emergence of psychotic symptoms or any deterioration in his mental state at any time over the period of extended leave between November 2014 and October 2015. His mental state had been effectively treated with Clozapine and Sodium Valporate. Despite his significant history of alcohol and substance dependence, he had maintained complete abstinence to drugs and alcohol since 2006. This was evident in the 3 monthly urine drug screening results which have all returned negative. He had demonstrated sustained insight into the link between drug and alcohol abuse and further relapse of his mental illness.
JT had been fully compliant with his anti-psychotic medication, Clozapine. Dr Brennan noted that he became skilled in adjusting the timing of his medication intake to fit in with his work schedule. Ms Akintola noted that he ‘spoke openly about his acceptance of lifetime need for treatment’. Dr Brennan noted that ‘he can understand and describe the link between him being psychotic and having committed the index offences’ and that his ‘insight was very good and he showed a good understanding of his illness, the factors that are likely to lead to relapse of his illness and the factors that are likely to contribute to future violence’. He appeared to have a clear understanding of the importance of compliance with anti-psychotic medication and abstinence from illicit substances. He also expressed an intention to comply with these treatment recommendations.
In relation to his physical health, JT recognised the impact of cigarettes on his health. He was regularly monitored by the Heart Function Clinic at Austin Health for mild Clozapine-induced cardiomyopathy which has been stabilised.
JT had maintained stable accommodation in a shared Neami unit in Box Hill with another person whom he met at Thomas Embling Hospital. They appeared to have formed a supportive friendship and indicated they were happy to remain at their current unit for several years after declining an offer for a vacant two bedroom segment 1 housing in Hawthorn by the Office of Housing.
Reports confirmed that JT had been working part-time in a gardening role since 20 October 2014. He reported that he enjoyed the type of work he was doing and had a good relationship with his employer.
Ongoing family supports are detailed in the reports. JT’s parents have continued to support his transition to a NCSO. His father noted that he was different to when he was unwell and there is no evidence of anger or drug use. His mother was proud of him for working again and expressed no concern about him getting unwell. Both parents have engaged in detailed discussions with Dr Brennan and Ms Akintola about how they might respond if he appeared to be unwell, and the transition process to an Area Mental Health Service as well as the changes with a variation to a NCSO disposition in the future. Both parents indicated that they would not hesitate to contact services if they notice any early signs of relapse.
Both clinicians assessed JT as low risk of violence to the community at that point in time, noting that his treatment with Clozapine, and mental state require continued monitoring. Dr Brennan noted that although JT was clinically stable and had been fully compliant with the conditions of his extended leave for the duration of almost two years, and as such he was ‘suitable’ to be considered for a variation to a NCSO, there were still a number of service provision issues and steps that needed to be undertaken before he was successfully transitioned to a NCSO. As such, Dr Brennan recommended that these issues be addressed over the next two-three months and the application for variation be considered in February 2016.
Ms Akintola confirmed that if JT remained on extended leave, he would continue to be reviewed by herself and Dr Lucas Cheney (allocated Psychiatric Registrar) on a monthly basis to monitor his mental state for evidence of relapse and changes in critical risk level. She would continue to liaise with the Koonung treating team and Neami to monitor his level of engagement every three months. He would also be reviewed by Dr Brennan every three months to ensure there was sufficient supervision over his transition to a NCSO.
Applicant’s progress in last 12 months
The evidence of JT’s progress over the last 12 months has been well documented in the subsequent reports of Dr Shannon Reid, his currently treating psychiatrist, dated 14 October 2016, and Ms Akintola dated 13 October 2016.
In his report, Dr Reid notes that the records reflect that, in the last 12 months, JT has continued to engage positively with the treating team in the community and shown a good response to treatment and supervision. There has been no evidence of thought disorder or perceptual abnormalities.
According to Dr Reid, JT has consistently demonstrated a good level of insight into the nature of his mental illness, the need to comply with medication, and the negative impact of drug use.
JT reported that he has ceased attending a drug and alcohol service in Box Hill after the service expressed the view that he was progressing well and no further work was required. There has been no evidence of alcohol or drug use and JT reported that he has reduced his cigarette intake to approximately 12 per day.
Dr Reid reports that there have been two periods of employment since JT has been granted extended leave. It is reported that JT resigned from being a labourer with a gardening and landscaping business in November 2015 after being told that he needed to work more and there was a possibility that his pay would be reduced. Dr Reid notes that JT was not interested in mediation despite offers of support from both WISE employment service and his Forensicare case manager. At the moment, JT reports that he is looking for factory or warehouse work while volunteering at the ‘Sprouts’ organisation where he does gardening on Mondays and Tuesdays between 10am and 1pm.
Dr Reid notes that JT’s relationship with his parents have improved during his period of extended leave. He relocated with his flatmate to a permanent accommodation in Collingwood in August 2016 and reports that he has not been exposed to any evidence of drug use at this accommodation.
JT receives ongoing support from an Neami key worker and an allocated worker from WISE employment agency. If an NCSO is imposed, JT’s psychiatric case management will be transferred to a treating team at Clarendon Community Mental Health Service (St Vincent’s Health). JT has had three appointments with staff about service and has engaged well. The Clarendon Community Mental Health Service would assume responsibility for overseeing the treatment and monitoring of his mental illness. He would also transition from Forensicare’s Community Integration Program team (‘CIP’) to its NCSO team. The role of the NCSO team would be to oversee his treatment and management by the Clarendon team and to provide specialist forensic input as required.
This model of care would involve a minimum of quarterly liaison between the NCSO team and the Clarendon team. JT’s level of mental health supervision/input would remain largely the same under an NCSO as it is under extended leave on a CSO. It also appears that the main point of difference would be the point of contact within his crisis management plan. Instead of contacting his CIP team at Forensicare during times of crisis, JT or others involved in his case would contact his treating team at Clarendon Community Mental Health Service. Emergency admissions concerning mental health deterioration would occur at the St Vincent’s inpatient unit or another public hospital. If there were to be ongoing significant mental health concerns, significant breaches of the conditions of NCSO or a pervasive increase in his risk profile, his Clarendon treating team with his NCSO team could also apply to vary his NCSO to a CSO and readmit him back into Thomas Embling Hospital.
Dr Reid concluded that JT presents as a low risk of violent offending at present. He considers that the risk of harm in the medium to long term is also low.
Dr Reid further concluded his report by saying that the treating team supports JT’s application for variation of his CSO to an NCSO.
Ms Akintola also notes that JT has a good level of insight and fully accepts the diagnosis of paranoid schizophrenia. He has been free of psychotic presentation since 2009. According to Ms Akintola, he has consistently demonstrated a good understanding of his early warning signs of relapsing into schizophrenia and has indicated that he would contact his treating team if experiencing any of those symptoms. He has also demonstrated good insight into the linkage between illicit drug use and his offending and has discussed his determination to maintain abstinence from drugs and alcohol.
Ms Akintola reports that JT is able to attend his general medical reviews and to collect his scripts on a regular basis. He also attends for his full blood examination on a monthly basis without a reminder.
She reports that he has settled into his Office of Housing apartment in Collingwood with his flatmate and appears to appreciate the accommodation. She notes positively of the relationship between him and his flatmate who is also case managed by the CIP team.
JT has established positive linkages with Neami and WISE employment agency that would continue to support his transition into the community. Although he is not currently employed, he has demonstrated an ability to engage in paid work and is currently seeking employment through WISE.
Ms Akintola also reports positively of the relationship JT has with his family, noting that his parents have contributed to his treatment on a regular basis.
Finally, Ms Akintola notes that JT has been accepted for case management with Clarendon Community Mental Health Service and was allocated to a treating team, Ms Keller (case manager), Dr Ong (consultant psychiatrist) and Dr Pang (registrar). She reassures that if JT’s CSO were to be varied to an NCSO, he will be supervised by the NCSO team at Forensicare.
Conclusion
JT suffers from paranoid schizophrenia and there is a direct link between that condition and the index offence. JT’s psychotic symptoms have been in full remission since 2009 and he has been fully compliant with his treatment while he has been on extended leave since 2013.
The reports of Dr Reid and Ms Akintola disclose that JT has progressed satisfactorily during extended leave and that his CIP treating team supports the application for variation.
It is apparent that a sensible plan is already in place which will transition JT’s case management to Clarendon Community Mental Health Service should he be released on a NCSO.
The Attorney-General and the Secretary to the Department of Health and Human Services support the application for variation of the CSO to a NCSO.
On the evidence, I am satisfied varying the applicant’s CSO to a NCSO would not seriously endanger the safety of the applicant or members of the public as specified in s 32(2).
As required by s 32(3)(a), the applicant has completed a period of at least 12 months extended leave. As required by s 32(3)(b), I have taken into account that the applicant has complied with the conditions of that leave.
As required by s 40(2)(a), I have obtained and considered the report of a registered medical practitioner, Dr Reid, in relation to the applicant. As required by s 40(2)(ab), I have obtained and considered the report of the person having the supervision of the applicant, Ms Akintola.
In my view, the variation would be consistent with the application of the principle that restrictions on his freedom and personal autonomy should be kept to the minimum consistent with the safety of the community, as specified in s 39(1). In so concluding, I have had regard to the considerations specified in s 40(1)(a)-(b), and in particular that, under para (c), varying the CSO to a NCSO would not be likely to endanger the safety of JT, any other person or members of the public generally.
It was for these reasons that on 10 November 2016 I ordered that JT’s CSO be varied to an NCSO. The orders that I made were as follows:
1. Under s 32(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), the applicant’s custodial supervision order is varied to a non-custodial supervision order subject to the following conditions:
(a) the applicant is to be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (‘VIFMH’) or his or her delegate;
(b) the applicant is to reside at a location known and approved by the authorised psychiatrist of the VIFMH or his or her delegate;
(c) the applicant is to abide by the lawful directions of the authorised psychiatrist of the VIFMH or his or her delegate;
(d) the applicant is to comply with treatment and testing and attend appointments as directed by the authorised psychiatrist of the VIFMH or his or her delegate;
(e) the applicant is to abstain from the abuse of alcohol and from use of illicit drugs; and
(f) the applicant is not to leave the State of Victoria without the written permission of the authorised psychiatrist of VIFMH or his or her delegate.
2. Pursuant to s 75 of that Act, until further order, no person shall publish or cause to be published or broadcast by means of radio, television or by other means:
(a) any matter which might directly or indirectly enable identification of the person subject of these proceedings or his or her place of residence;
(b) any matter which might directly or indirectly enable identification of only a victim relevant to the proceedings or his or her place of residence; and
(c) any matter which might directly or indirectly enable identification of a family member of the person the subject of these proceedings or his or her place of residence.
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