Re JWH (No 3)
[2020] VSC 455
•13 February 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2015 01599
| IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| and |
| IN THE MATTER of an Application by JWH under section 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 for revocation of a non-custodial supervision order |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 February 2020 |
DATE OF JUDGMENT: | 13 February 2020 |
DATE OF REASONS: | 27 July 2020 |
CASE MAY BE CITED AS: | Re JWH (No 3) |
MEDIUM NEUTRAL CITATION: | [2020] VSC 455 |
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CRIMINAL LAW – Mental impairment – Application for revocation of non-custodial supervision order – Whether applicant would be likely to endanger himself or others if order revoked – Unanimity between experts – Non-custodial supervision order revoked – Suppression order made – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – ss 31, 33, 39, 40.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Dhanji | Victoria Legal Aid |
| For the Secretary to the Department of Health and Human Services | Ms E Frawley | Department of Health and Human Services |
| For the Attorney-General | Ms J Buxton | Victorian Government Solicitor’s Office |
| For the Director of Public Prosecutions | Ms R Marques | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
On 4 March 2009, at the age of 20, JWH (‘the applicant’) killed his mother while operating under a delusional belief that she was planning to kill him and other members of his family.
On 7 September 2009, a consent mental impairment hearing was conducted in this Court before Coghlan J. At the conclusion of that hearing, his Honour directed that a verdict of not guilty of murder by reason of mental impairment be recorded. On 21 September 2009, Coghlan J declared the applicant liable to supervision under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) and imposed a custodial supervision order (‘CSO’) with a nominal term of 25 years, commencing on 4 March 2009.
The applicant was admitted to Thomas Embling Hospital (‘TEH’) and remained there until he was granted extended leave by Croucher J on 1 April 2015.[1] Further extended leave was granted by Jane Dixon J on 31 March 2016.[2]
[1]Re HWJ [2015] VSC 170.
[2]Re JWH [2016] VSC 307.
On 29 March 2017, Hollingworth J ordered the variation of the applicant’s CSO to a non-custodial supervision order (‘NCSO’).[3]
[3]Re JWH (No 2) [2017] VSC 144.
Having spent close to five years living in the community on a full-time basis since his first grant of extended leave, by application filed 12 November 2019, the applicant made an application pursuant to s 31 of the Act for revocation of his NCSO.
The application came on for hearing before me on 13 February 2020. It was supported by both the Secretary to the Department of Health and Human Services (‘the Secretary’) and the Attorney-General of Victoria (‘the Attorney’), as well as by the applicant’s treating team.[4]
[4]As is the usual course, the Director of Public Prosecutions (‘the Director’) took no position with respect to the application and took no part in proceedings other than to confirm compliance with s 38C of the Act.
Having heard the application, I ordered that the NCSO then in place be revoked. I indicated at the time that I would publish detailed reasons for my decision at a future time. These are those reasons.
The law
The present application is made under s 31 of the Act and is governed by s 33, which provides:
(1) On an application under section 31 for variation or revocation of a non-custodial supervision order or on a review of a non-custodial supervision order directed under section 27(2) or on a further review of a non-custodial supervision order directed under subsection (2) or section 32(5), the court must, by order—
(a) confirm the order; or
(b) vary the conditions of the order; or
(c) vary the order to a custodial supervision order; or
(d) revoke the order.
(2) Unless the court revokes the order, 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.
(3) A direction may be given under subsection (2) more than once.
Section 39(1) of the Act provides:
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.
Section 40(1) of the Act outlines the following matters to which the Court must have regard when deciding whether to revoke a supervision order:
(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 v Director of Public Prosecutions (Vic) (‘NOM’).[5] 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.[6]
[5](2012) 38 VR 618.
[6]Ibid 633 [47] (Redlich and Harper JJA and Curtain AJA) (citations omitted).
In accordance with s 40(2) of the Act, the Court cannot order that a person be released unconditionally from a supervision order, or significantly reduce the degree of supervision to which that 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 made under section 42; and
(da)…
(e)has obtained and considered any other reports the court considers necessary.
Finally, s 38C of the Act requires the Director to provide notice of the hearing to family members of the person who is subject to the supervision order and each victim of the index offence.
I am satisfied that all of the requirements of s 40(2) of the Act have been met in this case.
Notification of family members and victims
Ms Marques appeared for the Director to confirm that the Director had provided notice of the hearing to the applicant’s family members and victims of the index offence in accordance with s 38C of the Act. While those persons were notified of the opportunity to make a report on the applicant’s conduct and its impact on them pursuant to s 42 of the Act, consistent with his previous applications to this Court, no report was received by the Court. The father of the applicant was present at Court for the hearing of the application.
Applicant’s psychiatric history and the index offence
The applicant’s psychiatric history, circumstances surrounding the index offence and progress on the supervision order are set out in a number of decisions delivered by this Court.[7]
[7]Re HWJ [2015] VSC 170 [8] – [21], [41] – [46] (Croucher J); Re JWH [2016] VSC 307 [20] – [23] (Jane Dixon J); Re JWH (No 2) [2017] VSC 144 [19] – [24] (Hollingworth J).
In summary, the applicant is a 31 year old man with an established diagnosis of paranoid schizophrenia and a history of polysubstance abuse, both in remission. He first experienced depression and suicidal ideation as a teenager and commenced using alcohol and illicit substances from an early age, including hallucinogenic substances. He reports heavy drug use in the 12 months prior to the index offence.
In September 2008, the applicant’s family members noticed a decline in his mental state, including symptoms of psychosis. By December 2008, the applicant had been admitted to the psychiatric unit of a local hospital as an involuntary patient following aggressive behaviour towards his father and a housemate.
In January 2009, he was transferred to Orygen Youth Mental Health Services (‘OYMHS’) for inpatient treatment and commenced on antipsychotic medication. However, his psychotic symptoms persisted in the form of auditory hallucinations and delusional beliefs, including that he was able to communicate telepathically with others. During his admission, he absconded from OYMHS on three occasions, reported to police that his mother was trying to kill him and made two attempts to commit suicide.
The applicant was granted overnight leave in the care of his mother on 3 March 2009, having shown an improvement in his condition in the previous fortnight and denying any recent psychotic symptoms. At the time, the applicant’s mother was living with the applicant’s sister. It was during this occasion of overnight leave that the index offence occurred.
The applicant killed his mother by striking her a large number of times to the head in two separate episodes in the garage of his sister’s house. She died of severe head injuries occasioned by the multiple applications of blunt force inflicted by him by means of punches, elbows and knees. Having killed his mother, the applicant awaited the arrival home of his sister. She found her mother deceased, and the applicant admitted what he had done. When speaking to police, the applicant admitted punching his mother until she was dead. When asked why he had done so, he said that he thought she was trying to kill him and his family. He said that she had knives and guns in a car and that she had been looking at knives when walking around the house. These were all delusional beliefs.
Following the index offence, the applicant apparently continued to believe that his mother was alive for some weeks afterwards due to hallucinations of her voice. These symptoms initially persisted following his transfer to TEH on 12 March 2009, but began to remit upon commencement of olanzapine, an antipsychotic medication.
The applicant progressed through the treatment and rehabilitation regime at TEH over the course of the next six years without relapse of his psychotic illness. Initially, he displayed some negative symptoms, including suicidal ideation, and cannabis use. However, he gradually demonstrated improved engagement with staff and co-patients, and in January 2012, he was transferred to the Jardine Unit where he commenced making links with community services in preparation for extended leave.
The applicant has been living in the community since his first grant of extended leave in April 2015. During that time, he has maintained remission from psychotic symptoms and abstinence from the use of illicit substances.[8]
[8]It is noted that the applicant experienced an acute episode of suicidal ideation in December 2016. However, there was no corresponding evidence of depression or psychotic relapse at that time. See Report of Dr Zergiotis dated 9 January 2020, [68], [79].
Contemporary expert material
The Court received three expert reports in relation to this application. These were the reports of:
(a) Dr Ria Zergiotis, dated 9 January 2020;
(b) Dr Owais Sharif, dated 21 January 2020; and
(c) David Thomas, dated 8 January 2020.
The authors of all three reports were present in Court either in person or on video link, available to give evidence. In the end, only Dr Zergiotis and Mr Thomas gave evidence before me.
Dr Zergiotis
Dr Zergiotis, a consultant forensic psychiatrist within the Community Forensic Mental Health Service (‘CFMHS’) team at Forensicare, had been the applicant’s supervising psychiatrist since September 2018, and was previously involved in his treatment in the Jardine Unit at TEH. In preparing her report, she had access to a vast array of material including a large number of past reports to the Court, the Forensicare clinical file, and clinical information made available by the applicant’s then current treating team at the Castlemaine Community Mental Health Service (‘CCMHS’). The focus of her report was the applicant’s progress since being placed on an NCSO.
Dr Zergiotis’ report confirmed that the applicant was currently being treated with 100mg of lurasidone daily, having ceased olanzapine in December 2017 due to negative side effects. In May 2018, his dosage was reduced from 120mg without any deterioration in his mental state. Despite his stated interest in a further decrease to minimise side effects, namely, flat mood,[9] he acknowledged the benefits of this medication and expressed a desire to maintain compliance into the future.[10] No medication compliance issues were noted in Dr Zergiotis’ report.
[9]Report of Dr Zergiotis dated 9 January 2020, [126].
[10]Ibid [120], [126].
The applicant resides in Castlemaine, having relocated there from Coburg in February 2018. As a consequence of that move, the applicant’s ongoing treatment and case management was transferred from the North West Area Mental Health Service to the CCMHS. According to Dr Zergiotis, the applicant described the transition between treating teams as ‘smooth’.[11] Dr Zergiotis reported that the applicant now resides in rental accommodation with his partner, Jessie, and their two young children, being Jessie’s four-year-old son from a previous relationship and the couple’s one-year-old daughter. The applicant met Jessie shortly after moving to Castlemaine. Dr Zergiotis described their relationship as ‘highly supportive’, noting that she is aware of his forensic history.[12]
[11]Ibid [91].
[12]Ibid [140], [160].
Dr Zergiotis noted that the applicant enjoys parenthood and shares childcare tasks with Jessie. In addition to his partner and children, the applicant continues to enjoy social support from a broad network of family and friends. He maintains strong relationships with both his and his partner’s families, who also provide additional caregiving support for their children.[13] Dr Zergiotis reported that the applicant’s family have been actively involved in his treatment and support planning.[14]
[13]Ibid [122].
[14]Ibid [135].
Throughout his NCSO, the applicant has maintained employment in a number of fields, including as a cleaner and a builder’s labourer. He ceased his studies upon moving to Castlemaine and is currently undertaking a full-time carpentry apprenticeship. Outside of work, the applicant’s interests include music and jiu jitsu, and building items for the family home.
Dr Zergiotis reported that the applicant continues to abstain from illicit substances and ceased tobacco use during his partner’s pregnancy. He describes a strong desire to continue to avoid illicit substance use, feeling that he ‘owes it’ to his family and friends to stay mentally well, and noting that he dislikes the impact of substance use on some of his friends.[15] He continues to consume one to two alcoholic drinks per week. His partner consumes minimal alcohol and does not use illicit substances.
[15]Ibid [32].
Relevantly, the applicant had accrued three breaches of his NCSO conditions since 2017. Dr Zergiotis characterised these as ‘small’ breaches, attributable to ‘misunderstandings’ between him and his treating team. They included attending his grandfather’s funeral in New South Wales believing that he had been granted permission to do so, failing to inform Forensicare about a change of address until after his move, and returning a drug screen testing positive for opiates after having taken a codeine-based medication prescribed to his partner, to treat his back pain. In each instance, the applicant was made aware of the breach and no further action was taken.
Dr Zergiotis opined that the applicant engaged well with his treating team at CCMHS and attended all appointments as required. His mental state remained stable, with no psychotic symptoms. According to Dr Zergiotis, he demonstrates an awareness of the early warning signs of relapse, notably paranoia, sleep disturbance, appetite change and agitation, and shows good insight into his mental illness, including the need for long-term treatment.[16]
[16]Ibid [92].
Despite feeling satisfied with his daily life, the applicant reported feeling some frustration with the ongoing constraints of his NCSO, including having to take time off work and drive long distances to attend appointments, and feeling a lack of control over his own life decisions.[17] Dr Zergiotis noted that the present application for revocation is motivated by an aspiration to move on from the past and to establish practical independence.[18]
[17]Ibid [125].
[18]Ibid [130].
In terms of risk assessment, Dr Zergiotis recorded that the applicant’s historical risk factors, including his use of violence, history of substance abuse and diagnosis of schizophrenia, are moderated by a number of protective factors, including his sustained engagement with treatment and good insight into his illness. On this basis, Dr Zergiotis expressed the opinion that the applicant’s risk of violent behaviour in the next 12 months continued to remain ‘in the low range’. Should the applicant’s symptoms remain well-controlled, and he maintain abstinence from illicit substances, Dr Zergiotis considered that he will continue to pose a low risk in the future.[19]
[19]Ibid [161] - [162].
In concluding her report, Dr Zergiotis stated that:
[The applicant] has responded well to treatment and has maintained remission of the positive symptoms of schizophrenia since 2009. He has made significant gains in his rehabilitation in the community in that he has found a supportive relationship, has stable accommodation, has remained abstinent from illicit substances, and gained full-time employment as a carpenter apprentice. Between his home life, work, and family relationships, he has a busy and rewarding social life. He has also recently navigated the challenges of new parenthood in a balanced manner and without significant issue.[20]
[20]Ibid [167].
Taking into account the applicant’s stability, insight, and engagement with community services, Dr Zergiotis was of the opinion that the NCSO played only a minor role in his ongoing risk management, such that she was supportive of its revocation.[21] Should his application be successful, Dr Zergiotis confirmed that the applicant will continue to receive treatment from CCMHS for at least a further 12 to 18 months as part of a ’transition period’. The applicant has expressed that he intends to remain a case-managed client of CCMHS for ‘as long as was needed'.[22]
[21]Ibid [169].
[22]Ibid [151].
In her evidence before me, Dr Zergiotis confirmed the truthfulness and accuracy of her report. By way of update, she indicated that there was to be a change in the applicant’s treating psychiatrist, but that she had no concerns about this, especially in light of the fact that Mr Thomas would continue his involvement in the treatment of the applicant.
Insofar as she had indicated in paragraph 161 of her report that the applicant’s risk of violent behaviour in the next 12 months was in the low range, that would not change to her mind if the NCSO was revoked. That order, she considered, played only a minor role in the risk management of the applicant. So too, in respect of the risk of self-harm.
Dr Zergiotis further opined that the revocation of the order would actually have a positive psychological effect on the applicant.
If the NCSO was revoked, the future treatment of the applicant would be a voluntary process, assuming he stayed stable and well, as he had been for nearly ten years now. If he again became unwell and met the criterial for involuntary treatment under the Mental Health Act 2014, then that would need to be enacted.
Dr Zergiotis described the applicant as being very invested in maintaining his mental health and very insightful about what he needs to do to achieve this. He had demonstrated this over a number of years. She was therefore confident that he would stay engaged with mental health professionals because he understands the need to do so. She was confident he would continue to look after himself in future. Furthermore, were he to break off contact with Mr Thomas or his psychiatrist, that would trigger alarm bells to those close to him. Dr Zergiotis considered there was a very low risk of that happening.
Dr Sharif
Dr Sharif, a consultant psychiatrist employed within the CCMHS team at Bendigo Health, had been involved in the applicant’s care as his treating psychiatrist since April 2018 and had conducted regular reviews of the applicant in that time. In preparing his report, Dr Sharif relied upon his own examinations of the applicant, the CCMHS clinical records and discussions with the applicant’s CCMHS case manager, David Thomas.
Dr Sharif confirmed the applicant’s current medication regime and that there were no recent issues in relation to medication compliance. He shared Dr Zergiotis’ opinions regarding the applicant’s level of insight, dedication to abstinence from illicit substances and understanding of the link between such use and his mental illness. Dr Sharif confirmed that the applicant engaged well with CCMHS staff and showed an awareness of the need for continued treatment to maintain his mental stability.
In relation to community linkages, Dr Sharif stated that the applicant is happily settled in the relationship with his partner, enjoys spending time with his family and has a good network of friends. He reported that the applicant manages his daily activities well, including his full-time work, and presents with a ‘positive view about life’.[23]
[23]Report of Dr Sharif dated 21 January 2020, 3.
With respect to an assessment of risk, Dr Sharif stated that the applicant had not presented any danger to himself or others during the period of his involvement with CCMHS. He opined that the applicant may pose a risk of harm to himself or others should he cease taking antipsychotic medication or resume the use of illicit substances. However, he noted that this risk can be managed through the continued support of CCMHS to monitor his mental health. Dr Sharif confirmed that the applicant’s partner is aware that she is able to contact the CCMHS for advice and support if required.
In closing, Dr Sharif expressed endorsement of the applicant’s application for revocation of the NCSO, stating as follows:
At this stage he would benefit from voluntary treatment as a less restrictive measure compared to a supervision order. This would enable him to be more in control of his care with continued support from the community mental health service.[24]
[24]Ibid.
Mr Thomas
David Thomas is a registered mental health nurse and the lead clinician and team leader of the adult mental health team at CCMHS. His report was based on his own contact with the applicant, as his case manager, on clinical notes held by CCMHS, and on further material outlined in the report.
Mr Thomas was in regular contact with the applicant via phone at one to two week intervals and in-person meetings every two to three weeks. He stated that, at times, this level of contact had been difficult to maintain due to the applicant’s full-time work as an apprentice.
According to Mr Thomas, the applicant had developed a good rapport and therapeutic relationship with staff since commencing treatment with CCMHS. He agreed with Drs Zergiotis and Sharif as to the applicant’s level of treatment compliance, sustained mental stability and commitment to remaining drug free.
Mr Thomas stated that at the time of the report, the applicant did not utilise any other service supports in the community, as he was comfortable with the level of support offered by CCMHS. This included assistance available through the National Disability Insurance Scheme which the applicant had declined, stating that he ‘wants to get on with his life and live independently’.[25] Mr Thomas confirmed that there are numerous local community services available should the applicant wish to engage with these in future.
[25]Report of Mr Thomas dated 8 January 2020, 3.
In relation to the question of risk, Mr Thomas stated that the applicant does not exhibit any signs of danger to himself or others. Despite the applicant showing feelings of remorse for the index offending, Mr Thomas stated that he presented as ‘settled, with no psychotic features and is logical and practical in his outlook on life’.[26] Based on historical factors, however, Mr Thomas opined that should the applicant cease taking his prescribed medication or engage in illicit substance use, his mental state could deteriorate, thereby placing others at risk of harm.
[26]Ibid 4.
Overall, Mr Thomas stated that:
[The applicant] has shown his ambition to move on in his life. He has moved back to the area he is familiar with from his younger days and has friendships with supportive people. He has a partner who has a child from a previous relationship and has now had a child to [the applicant]. He has gained employment as an apprentice in the building industry and took it upon himself to independently find employment and then obtain an apprenticeship at a lower wage rate with the long term plan to work independently in his own building business.
…
[The applicant] wants to move on with his life. He does carry the burden of the past and this is quite evident, however he does well to cope and is practical in his approach to living what one might call a ‘normal’ life.[27]
[27]Ibid 4–5.
On this basis, Mr Thomas supported the applicant’s application for revocation of the NCSO. He noted that the applicant’s mental state is affected by the NCSO’s restrictions which link back to ‘events that have had a horrific effect on so many people including the loss of life of his own mother’.[28]
[28]Ibid 4.
In the event that the applicant’s application is successful, Mr Thomas opined that he would benefit from ongoing voluntary treatment in the community. This could be through continued case-management by CCMHS, leveraging off the relationship that he has already developed with that service, or through referral back to the CCMHS by either the applicant or his general practitioner should his mental state deteriorate. Mr Thomas advised that referral to yearly psychiatric consultations with the Bendigo Health Annual Review Clinic is another available option for the applicant’s continued treatment in the community.
In his brief sworn evidence before me, Mr Thomas confirmed the truthfulness and accuracy of his report. He noted that the applicant has demonstrated a capacity to cope with stressors and change. Mr Thomas had a good rapport with the applicant, and was confident that would continue if the NCSO was revoked.
Submissions
In their brief submissions, which it is unnecessary for me to summarise in the circumstances, there was unanimity between the parties that revocation of the applicant’s NCSO was the appropriate course in the present application.
Analysis
Pursuant to s 39(1) of the Act, in deciding whether to exercise the judicial discretion contained in s 33(1)(d) to revoke the applicant’s supervision order, the Court was required to 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 explained by the Court of Appeal in NOM:
A supervision order, be it custodial or non-custodial, must only be imposed if necessary for balancing the safety of the community with the person’s freedom and autonomy. So much is clear from various remarks during the parliamentary debates of the Bill to the Act, including more specific comments that ‘no person should be deprived of his or her liberty unless it is absolutely necessary’…[29]
[29]NOM (2012) 38 VR 618, 641 [68] (Redlich and Harper JJA and Curtain AJA) (emphasis in original) (citations omitted).
In the recent decision of Niall JA revoking an NCSO in Re Friedman,[30] his Honour expanded on the remarks of the Court of Appeal as follows:
Picking up an observation from NOM, Priest JA stated in Re MP (No 2), that ‘supervision under the Act is a restriction on liberty and autonomy, and can only be justified where it is found to be necessary’. The word ‘necessary’ does not appear in the Act and is not a statutory test for the revocation of an NCSO. It can have different meanings in different contexts. What I understand from the reasons of the Court of Appeal in NOM is that there must be some positive reason to retain a supervision order having regard to the safety of the community.[31]
[30][2019] VSC 251.
[31]Ibid [53], quoting Re MP (No 2) [2018] VSC 299, [25] (Priest JA).
In applying the principle prescribed by s 39(1) of the Act, the Court was required to have regard to each of the specified matters in s 40(1) of the Act.
Considering each of the s 40(1) factors in turn, it was well established that there was a direct relationship between the applicant’s mental impairment, being his diagnosis of paranoid schizophrenia, and his commission of the index offence. The expert evidence filed in the present application provided the consistent opinion that the applicant has maintained remission of the positive symptoms of schizophrenia without any indication of relapse for many years. He continues to demonstrate total compliance with medication and treatment, maintains abstinence from illicit substances, has developed good insight into his condition, and engages well with mental health services.
In her report, Dr Zergiotis opined that the applicant’s risk of violent behaviour remains ‘in the low range’,[32] and will continue to do so into the future should his symptoms remain well-controlled and he continue to abstain from illicit substances.[33] That would remain so in the event of the revocation of the NCSO. Similarly, Dr Sharif and Mr Thomas considered that the applicant had not presented as a danger to himself or others throughout his involvement with the CCMHS.[34] Consistent with the findings of Dr Zergiotis, they both opined that the applicant’s risk profile is subject to change should he cease taking prescribed medication and/or engage in illicit substance use.
[32]Report of Dr Zergiotis dated 9 January 2020, [161].
[33]Ibid [162].
[34]See Report of Dr Sharif dated 21 January 2020, 3; Report of Mr Thomas dated 8 January 2020, 4.
I accepted and acted upon the unanimous evidence of the applicant’s treating team as to the many protective factors that might mitigate his risk of relapse. In those circumstances, I was satisfied that the likelihood of the applicant endangering himself or others because of his mental impairment was low.
I accepted that upon revocation of the NCSO, the applicant would continue to have access to treatment and case-management support through CCMHS for at least a further 12 to 18 month period. Furthermore, I accepted that he has an acute understanding of the need for continuing treatment, and that he would continue to avail himself of the treatment options and other support available to him in the community after that period.
Conclusion
There is no doubt that the index offence which led to the making of a CSO in this matter in 2009 occurred as a direct result of the psychotic illness from which the applicant suffered at that time. That illness has been in remission since a time early on in the applicant’s years in custody. From the time of his detention in TEH, the applicant has been compliant with medication and treatment, and has for many years expressed a firm commitment to remaining so. He has made steady progress and his illness has been in remission for many years. He has lived a stable and satisfactory life in the community, having developed supportive relationships, stable accommodation, good employment and a busy and rewarding social life. He has navigated the challenges of parenthood, and the other challenges which have come his way, in a balanced manner. He has remained free of drugs.
Applying the principle of parsimony inherent in s 39 of the Act, and having regard to the matters set out in s 40(1) of the Act, I was satisfied that the continued supervision of the applicant under an NCSO was no longer justified. To my mind, the revocation of the applicant’s NCSO pursuant to s 33(1)(d) of the Act was appropriate in the circumstances of the present application.
Conclusion
For the above reasons, the NCSO made by Hollingworth J on 29 March 2017 was revoked.
On the basis of expert evidence given before me, I made an order pursuant to s 75 of the Act prohibiting publication of material which might enable the identification of the applicant.
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