Re JWH (No 2)
[2017] VSC 144
•31 March 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2015 01599
| IN THE MATTER of an application for variation of a custodial supervision order to a non-custodial supervision order pursuant to s 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) | |
| and | |
| IN THE MATTER of an application for further extended leave pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) | |
| and | |
| IN THE MATTER OF an application by JWH | |
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JUDGE: | HOLLINGWORTH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 March 2017 |
DATE OF JUDGMENT: | 31 March 2017 |
CASE MAY BE CITED AS: | Re JWH (No 2) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 144 |
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CRIMINAL LAW – Crimes mental impairment – Application for variation of custodial supervision order to non-custodial order – Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the applicant | Mr J Fitzgerald | Victoria Legal Aid |
| For the Secretary of the Department of Health and Human Services | Mr M McLay | Department of Health and Human Services |
| For the Attorney-General | Ms A Haban-Beer | Victoria Government Solicitor |
| For the Director of Public Prosecutions | Ms J Carpenter | Solicitor for Public Prosecutions |
HER HONOUR:
Introduction
By notice dated 25 January 2017, JWH applied under s 31(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”) for an order varying his custodial supervision order (“CSO”) to a non-custodial supervision order (“NCSO”). In the alternative, he applied for a further grant of extended leave under s 57 of the Act.
The index offence occurred on 4 March 2009, when the applicant was 19 years old. While impaired by schizophrenia, the applicant killed his mother, acting under a psychotic delusion that she was trying to kill him and his family.
On 21 September 2009, Coghlan J found the applicant not guilty of murder by reason of mental impairment. The applicant was placed on a CSO for a nominal term of 25 years, commencing 4 March 2009.
Following the commission of the index offence, the applicant was initially remanded in custody. He was subsequently admitted to Thomas Embling Hospital (“TEH”). He remained at TEH, until he was granted extended leave by Croucher J on 1 April 2015.
The circumstances surrounding the index offence, and the applicant’s progression through the treatment and rehabilitation regime at TEH, were discussed in detail in Croucher J’s reasons,[1] particularly at paragraphs [8] to [21], and [41] to [46].
[1]Re HWJ [2015] VSC 170 (“the Croucher J reasons”).
On 31 March 2016, Jane Dixon J ordered that further extended leave be granted until 30 March 2017.
Both sets of extended leave were granted on the following conditions:
(a) The applicant be under the supervision of the authorised psychiatrist of [Forensicare] (“the authorised psychiatrist”), or their nominee.
(b) He reside at a specified address, or another address notified to and approved by the authorised psychiatrist or their nominee.
(c) He comply with the lawful directions of the authorised psychiatrist or their nominee.
(d) He comply with the treatment, testing and attend appointments as directed by the authorised psychiatrist or their nominee.
(e) He abstain from the use of illicit drugs.
(f) He abstain from the consumption of alcohol, other than as agreed with his treating team.
(g) He not leave the State of Victoria without the written permission of the authorised psychiatrist.
The applicant lived in the community during both periods of extended leave.
The current application came on for hearing before me on 29 March 2017. The Secretary to the Department of Health and Human Services, and the Attorney-General both supported the application for variation of the CSO to an NCSO.
At the conclusion of the hearing, I made orders varying the CSO to an NCSO; these are my reasons for making those orders.
Relevant statutory provisions
When an application under s 31 is made for variation of a CSO to an NCSO, the relevant considerations for the court are contained in s 32 of the Act, 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.
The test to be applied is different for the alternative application (for further extended leave). Section 57 of the Act provides that the court must be “satisfied on the evidence available that the safety of the forensic patient… or members of the public will not be seriously endangered”, if further extended leave is granted.
Sections 39 and 40 specify additional mandatory considerations that apply to both applications. Section 39(1) relevantly provides that in deciding whether to vary a supervision order, or to grant extended leave, 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.
The Court of Appeal in NOM v Director of Public Prosecutions (Vic)[2] stated that s 39 requires the court to “balance the interest of the liberty of the detainee with protection of the community and in doing so assess risk factors which, in turn, depend upon value judgments”.[3]
[2]NOM v DPP [2012] VSCA 198 (“NOM”).
[3]NOM at [21].
Further, when applying s 39, s 40(1) outlines a number of factors that must be taken into account:
(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.
While those considerations are mandatory, the Court of Appeal noted that:
Section 39 requires a value judgment informed by the competing considerations stating 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.[4]
[4]NOM at [47].
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.
The applicant’s history
The following history has been obtained primarily from the Croucher J reasons, and from written and oral evidence before me from Dr Nicholas Owens and Ms Emma Stephens. Since February 2016, Dr Owens has been the applicant’s treating psychiatrist in the Community Integration Program (“CIP”) conducted by the Community Forensic Mental Health Service of Forensicare. Ms Stephens is the applicant’s most recent case manager at CIP.
The applicant has been diagnosed with paranoid schizophrenia, and polysubstance abuse, both of which are in remission.
The applicant’s first contact with a mental health service was in 2005, when he was 16 and suffering from a depressive episode combined with suicidal ideations.
During his teenage years, prior to a hospital admission in late 2008, the applicant reported using alcohol, cannabis, LSD and ecstasy.
Towards the end of 2008, when the applicant was 19, his mental state deteriorated and he became aggressive towards his family and housemates. Ultimately, in December 2008, the applicant was admitted as an involuntary patient to a psychiatric unit at the hospital in his home town. Shortly after his admission, the applicant was transferred to a specialist youth mental health service in the Melbourne metropolitan area. During his time at the youth mental health service, the applicant was diagnosed with his first episode of psychosis. That diagnosis was based on the applicant’s presentation with persecutory delusions, thought possession abnormalities, and aggression.
On 3 March 2009, after more than two months as an inpatient, the applicant was assessed as suitable for overnight leave from the facility. He was released into the care of his mother, and was due to return to the facility the next morning. On 4 March 2009, after his older sister and brother-in-law left for work, the applicant killed his mother.
The applicant was detained at TEH from the time of the index offence, until his release on extended leave in April 2015.
The applicant is now 28 years old and single. He has three siblings and a father, with all of whom he remains close. He is predominantly supported by his older sister and his father. He has a stable social network and good community linkages in Melbourne, as well as in his home town in regional Victoria.
Since extended leave was first granted in 2015, the applicant has been satisfactorily living alone in a three bedroom house in Melbourne, which is provided by VincentCare. As that accommodation is of a transitional nature, it is highly likely that he will need to move house within the next year. VincentCare will provide him with the practical assistance he requires to locate and move to new accommodation.
The applicant receives a disability support pension. For several years, he has also worked part-time as a cleaner, in a supportive work environment.
The applicant has now been living in the community on extended leave for two years. When granting further extended leave in March 2016, Jane Dixon J noted that the applicant had shown no clinical signs of relapse such as delusions or hallucinations. Although he had experienced some periods of lowered mood and sadness, he had not been consistently depressed, and had responded well to social and psychiatric support.
The applicant has completed seven random urine screens in the last 12 months, all of which have been negative for illicit drugs. All but one of these screens were completed on the day requested; one of them was completed two days late, due to a misunderstanding on the applicant’s part. The evidence is that the applicant now has an adequate insight into the link between substance use, mental illness and offending.
In the last 12 months, Dr Owens has seen the applicant on 10 occasions. In addition, the applicant was reviewed by a CIP psychiatric registrar on six occasions, and by another supervising psychiatrist, Dr Ria Zergiotis, on five occasions. He has also seen his case manager on a regular basis.
The applicant is also linked in with Co-Health, engagement with which is a requirement of his VincentCare housing. His current Co-Health outreach worker is Ms Sandra Richards. It appears that he has not engaged as well with her at a personal level as he did with his previous outreach worker.
A significant development during the last 12 months was the applicant’s formation of an intimate relationship with a woman named Stella.
In mid-2016, the applicant informed Forensicare that he had, on several occasions, stayed overnight at Stella’s house. Forensicare was concerned that this was in breach of the residence requirement contained in the extended leave orders made by Jane Dixon J, because he had not sought prior permission to stay overnight. After discussions with the applicant about the importance of complying strictly with his forensic order, the care team approved overnight absences from the applicant’s prescribed address. I agree with Dr Owens’ description of what occurred as a relatively minor breach of the order, which apparently flowed from a misunderstanding on the applicant’s part.
The applicant now understands that he is not allowed to stay overnight at any place which has not been approved in advance by Forensicare.
It was around that time that the applicant also discussed with his care team the possibility of moving with Stella to his home town in regional Victoria. CIP were of the view that it was reasonable to facilitate this request, but it would need to be done in a gradual and staged manner, beginning with establishing a range of linkages there.
Of primary concern was finding the applicant a local psychologist in his home town. The applicant met with a local psychologist on four occasions in mid-2016.
In August 2016, the applicant ended his intimate relationship with Stella. Also around that time, the applicant found out that his sister, with whom he is very close, was pregnant. For those reasons, the applicant decided to remain living in Melbourne.
In December 2016, the applicant reconnected with Stella. Following an argument with Stella on 16 December 2016, the applicant experienced an episode of acute suicidal ideation while driving from Melbourne to his home town. To his credit, the applicant made immediate contact with his sister and with the relevant mental health services, and his crisis plan was implemented. The applicant attended the local hospital, but was discharged without admission, as it was assessed that the thoughts were transient. Later that same day, the applicant met with Dr Zergiotis at CIP. Dr Zergiotis concluded there was no evidence of a depressive illness or of the re-emergence of any psychotic symptoms; rather, he had presented with transient suicidal thoughts, in the context of stressful relationship dynamics.
Dr Owens agreed with Dr Zergiotis that the December incident was a response to a stressful relationship dynamic, which could affect anybody. It did not reflect a relapse of his psychotic illness, which remains in remission. The way the applicant identified what was happening to him at that time, and sought immediate and appropriate assistance, was very much to his credit, as it reflected his insight into his condition and the need for him to self-monitor.
Dr Owens was of the opinion that despite that incident, the applicant poses a low risk of serious harm to himself or others, and is not currently depressed.
Another matter that has arisen in the last 12 months concerns the applicant’s antipsychotic medication. For some years, the applicant has been prescribed the antipsychotic drug, Olanzapine. The initial dosage was 25 mg daily, which was reduced in 2016 to 20 mg daily. In late 2016, the applicant expressed concerns about the side-effects of that medication, including weight gain and feeling “groggy” in the mornings. In January 2017, Dr Owens decreased the applicant’s dose to 15 mg daily. Although there has been no reported reduction in the side effects experienced by the applicant, there has also been no decline in his mental state. The applicant is likely to need to continue taking such medication indefinitely. He has insight into the need to continue taking antipsychotic medication, and there have been no instances of non-compliance with his medication regime.
A few weeks ago, the applicant began studying a kinesiology course, which he plans to study full-time, while maintaining his part-time employment. The course will take three years if studied full-time, and longer if studied part-time. In the past, Dr Owens expressed some concerns about the course; first, because kinesiology is not a therapeutic discipline recognised by the Australian Health Practitioners Regulatory Authority; secondly, because the applicant will be required at some stage to conduct assessments of, and provide advice to, clients. However, after consulting with other professionals involved in the applicant’s care, Dr Owens agreed to support the applicant in the course of study, given that complementary medicine was one of the applicant’s few ongoing career interests. Dr Owens was also of the view that it was better that he engage in that study now, while he is under a supervisory framework that can provide support and guidance as the course progresses, rather than at some stage in the future when he is unsupervised.
In summary, Dr Owens was of the view that the applicant has made substantial progress over his two years of extended leave. He has maintained employment, maintained his accommodation, and remained free of psychosis with no incidents of relapse of symptoms, following a reduction in medication dose. His compliance with his medication has been confirmed by blood tests at frequent intervals. There has been no evidence of drug use, despite occasional exposure to people of his age group using drugs. Although he has consumed alcohol, that has generally been within agreed limits. Apart from the delay in having a test done in August 2016, he has complied with all requests made of him by the CIP team.
In relation to the applicant’s risk of violent recidivism, Dr Owens was of the opinion that the risk is low. Dr Owens stated that the applicant has shown good insight, no symptoms of major mental illness, and no violent ideation or intent.
Ms Stephens supported Dr Owens’ various observations and opinions.
The proposed change to an NCSO
Central to the decision whether to approve the variation of the CSO to an NCSO was an understanding of how the applicant’s day-to-day management and supervision would be affected by the variation.
The proposed NCSO conditions are essentially in the same terms as those ordered by Croucher and Jane Dixon JJ, in terms of the applicant’s restrictions and obligations. However, the principal change is that responsibility for the applicant’s day-to-day treatment will pass from CIP to the Moreland Clinic of the North-West Area Mental Health Service (“Moreland”). That includes responsibility for primary psychiatric treatment, requesting drug urine screens, managing the applicant’s medication, and liaising with the broader care team.
In preparation for the current application, earlier this year the applicant was allocated a care team at Moreland, which includes Mr Jyred Lawlor (case manager), Dr Simon Jones (consultant psychiatrist), Dr Sreejayan Kongasseri (psychiatric registrar) and Mr Julian Jamison (forensic clinical specialist). On 6 February 2017, the treating team at Moreland met with the CIP team to facilitate handover. The applicant then met with Mr Lawlor and Dr Jones on 20 February 2017.
It is proposed that the applicant will generally meet with a member of the Moreland care team on a fortnightly basis, which is the same general frequency as has applied with the CIP team. However, such meetings can be held more frequently if the applicant is undergoing stressful situations (for example, if the anticipated house move occurs).
Overall supervision will remain with Forensicare, although it will be transferred to the Forensicare NCSO team rather than the CIP team. The NCSO team will meet with the applicant quarterly. Moreland will provide the NCSO team with quarterly written reports about the applicant’s progress. Forensicare will continue to be responsible for making decisions about matters such as the applicant’s approved residence, and whether he can leave Victoria. The NCSO team will be available for the Moreland team to consult about treating decisions.
Both Dr Owens and Ms Stephens agreed that it is in the applicant’s best long term interests for him to also undertake counselling with a psychologist. He has not done so since his four meetings with the regional psychologist last year, and it is something he should attend to. That can be arranged either on a CSO or an NCSO. North West will be able to link the applicant in with a local psychologist.
Reasons for varying the supervision order
As mentioned earlier, in considering either application, the court must have regard to the matters set out in s 40(1) of the Act.[5]
[5]The following summary of the evidence as it relates to s 40(1) has largely been taken from the very helpful outline of submissions prepared by the applicant’s counsel.
(a) The nature of the applicant’s mental impairment is a psychotic illness, namely, paranoid schizophrenia. His symptoms and relapse signs appear to be well understood, and the applicant appears to tolerate the antipsychotic treatment well. He is currently in remission and his mental state is stable.
(b) There is a direct relationship between the applicant’s mental impairment and the index offence, insofar as the offence was committed while the applicant was in an acutely psychotic state, and believed that the victim was a threat to him and the rest of the family.
(c) Taking all factors into consideration, the likelihood of the applicant seriously endangering the safety of himself or the public is low. The evidence is that:
(i) The applicant’s mental state is stable, and his illness is well controlled by a medication that he tolerates. The applicant has good insight into his illness and understands the need for treatment;
(ii) The applicant has good social supports, with a supportive family and close friends who are aware of his mental illness and the index offence. His family are actively involved with the treating team, and are aware of the early warning signs of any relapse;
(iii) The applicant remains abstinent from the use of drugs and the abuse of alcohol, with negative urine drug screens and breath test results being returned, and no clinical signs of drug or alcohol intoxication evident. The applicant shows good insight into the need to not use illegal drugs, and to keep his consumption of alcohol to a safe minimum; and
(iv)The applicant has been, and will continue to be, well monitored by his treating team, and more informally by his social supports. The index offence was preceded by a long period of worsening symptoms; it is unlikely to think that a similar deterioration would go unnoticed by those charged with his care. In the one instance of transient suicidal ideation, in December 2016, the application referred himself to appropriate supports in a timely manner.
(d) The applicant has been, and will continue to be, adequately supported in the community, with supervision from his case manager and consultant psychiatrist, stable housing, part-time employment and social supports. The applicant has been actively engaged in making treatment decisions with his treatment team, and is accepting of their role in his life. There is no evidence to suggest that a more restrictive form of supervision order would increase the applicant’s mental stability. After the variation is granted, the immediate psychiatric supervision of the applicant will be undertaken by Moreland. The applicant has already commenced engagement with that service, with no apparent difficulties. Forensicare will continue to have an important overall supervisory role in relation to the applicant’s treatment.
The court has obtained and considered all necessary reports required by s 40(2). Notice was given under s 40(2)(c) to the applicant’s family members, who are also the victims of the offence. None of them made a report under s 42. It is clear from the evidence of Dr Owens and Ms Stephens that the applicant’s family are supportive of the variation to an NCSO.
In the absence of any evidence that would raise the issue of serious endangerment to the community or to himself, and having regard to the principle of “least restriction consistent with the safety of the community” embodied in s 39 of the Act, I determined that it was appropriate to vary the CSO to an NCSO on the following terms:
(a) The applicant be supervised by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (“the authorised psychiatrist”) or their delegate.
(b) The applicant reside at a location known and approved by the authorised psychiatrist or their delegate.
(c) The applicant abide by the lawful directions of the authorised psychiatrist or their delegate or nominee.
(d) The applicant comply with treatment and testing, and attend appointments, as directed by the authorised psychiatrist or their delegate or nominee.
(e) The applicant abstain from the use of illicit drugs.
(f) The applicant abstain from the consumption of alcohol, other than as agreed with his treating team.
(g) The applicant not leave the state of Victoria without the written permission of the authorised psychiatrist or their delegate. This includes overseas travel, which must be approved by the authorised psychiatrist or their delegate.
The existing suppression orders made by Croucher J on 1 April 2015, and Jane Dixon J on 31 March 2016, under s 75 of the Act, remain in force. That means there can be no publication of the names or current or former addresses of the applicant, the deceased and their relatives, or of any information which might identify those names or addresses, except in so far as such information is contained in the court’s reasons for decision.
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