Re KL (No 3)
[2024] VSC 665
•17 October 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0338
| IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) | |
| -and- | |
| IN THE MATTER of an application by KL to vary a custodial supervision order to a non‑custodial supervision order | |
---
JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING & ORDERS: | 17 October 2024 | |
DATE OF WRITTEN REASONS: | 30 October 2024 | |
CASE MAY BE CITED AS: | Re KL (No 3) | |
MEDIUM NEUTRAL CITATION: | [2024] VSC 665 | First revision: 8 November 2024 |
---
CRIMINAL LAW — Application to vary a custodial supervision order (“CSO”) to a non‑custodial supervision order (“NCSO”) — In 2016, KL, in delusional state, stabbed and killed neighbour, GH — In 2017, at consent mental impairment hearing, KL found not guilty of murder because of mental impairment — KL placed on CSO with 25‑year nominal term, and committed to Thomas Embling Hospital — KL granted extended leave in April 2023 and again in March 2024 — Psychiatric opinion supportive of variation to NCSO — Family members of GH oppose application — Secretary to Department of Health, Attorney‑General and KL submit CSO should be varied to NCSO — Statutory test satisfied on evidence — CSO varied to NCSO — Review of NCSO in 12 months — Non‑publication order as to name and address of KL and GH, and their relatives — Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 3, 26, 31, 32, 38C, 39 & 40.
---
APPEARANCES: | Counsel | Solicitors |
| For KL | Mr P. Galbally | Galbally & O’Bryan |
| For the Secretary to the Department of Health | Ms M. Wilson | Legal, Privacy and Integrity Branch, Department of Health |
| For the Attorney‑General | Mr N. Boyd‑Caine | Victorian Government Solicitor’s Office |
HIS HONOUR:
Overview
On 17 October 2024, I heard an application by KL to vary her custodial supervision order (“CSO”) to a non‑custodial supervision order (“NCSO”) pursuant to s 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”).
The application was supported by psychiatric opinion in a report and in viva voce evidence, and by a report from KL’s case manager. This evidence was unchallenged.
In addition, I received reports from members of GH’s family detailing the impact of her death on them, and opposing the application.
By counsel, KL, the Secretary to the Department of Health (“the Secretary”) and the Attorney‑General all submitted that, based on the evidence and the statutory tests to be applied, the CSO should be varied to an NCSO.
At the conclusion of the hearing, I indicated that I accepted both the psychiatric evidence and the submissions of the parties. Accordingly, I ordered that the CSO be varied to an NCSO. I also ordered that the matter be brought back for review within 12 months, and that the names and addresses of KL and GH, and their relatives, not be published.
The reasons that follow — which should be read together with my reasons given on KL’s two previous reviews and applications for extended leave[1] — are my reasons for making those orders.
Background
[1]See Re KL [2023] VSC 182; and Re KL (No 2) [2024] VSC 149.
In grips of delusional disorder, GH kills KL
Early on an autumn morning in 2016, after a chance meeting on a walk near her home, KL killed her neighbour GH in the street by stabbing her multiple times to the chest and neck.[2] At the time, KL was in the grips of an undiagnosed delusional disorder. Later that morning, she handed herself in at her local police station, and was charged with murder.
[2]These names have been anonymised pursuant to the order I previously made, and have made again, for non‑publication of information tending to disclose the identities and addresses of KL, GH, and members of their families. See below.
GH not guilty of murder because of mental impairment, placed on CSO
In 2017, a consent mental impairment hearing was conducted by Jane Dixon J in this Court pursuant to the Act. Her Honour directed a verdict of not guilty of murder because of mental impairment. As a result, a CSO was imposed on KL, with a nominal term of 25 years. Thereafter, KL was housed as a forensic patient at Thomas Embling Hospital pursuant to the CSO.
Reviews and confirmation of CSO in 2019 and 2021
On 3 December 2019 and 2 December 2021, the CSO was reviewed and confirmed by Taylor J and Jane Dixon J, respectively.
Extended leave granted in 2023
On 4 April 2023, I heard a third review of the CSO and an application by KL for extended leave. Psychiatric opinions, which were unchallenged by any other expert evidence, were supportive of KL’s application for extended leave. In addition, I received heartfelt reports from GH’s family. Some opposed extended leave, while others doubted whether such an order would provide any guarantee of community safety.
Those appearing for the Secretary, the Attorney‑General and KL all submitted that, based on the evidence and the statutory tests to be applied, the CSO should be confirmed and the application for extended leave should be granted.
At the conclusion of the hearing, having accepted both the psychiatric evidence and the submissions of the parties, I ordered that the CSO be confirmed, and that KL be granted extended leave for 12 months, on the conditions set out in the leave plan filed with the Court. I also ordered that the names and addresses of KL, GH, and their relatives, not be published. Subsequently, I published written reasons for making those orders.[3]
[3]Re KL [2023] VSC 182.
Second period of extended leave granted in 2024
On 26 March 2024, I determined a further application for extended leave for 12 months on the papers.
That application was supported by psychiatric opinion, and the parties were agreed that I should make the order sought.
In chambers, having accepted both the psychiatric evidence and the submissions of the parties that the application for a further extended leave should be granted, I ordered that KL be granted extended leave for 12 months, on the conditions set out in the leave plan filed with the Court. I also continued the order that the names and addresses of KL, GH, and their relatives, not be published. Subsequently, I published written reasons for making those orders.[4]
Applicable legislation
[4]Re KL(No 2) [2024] VSC 149.
Application for variation of CSO to NCSO
A CSO is an order that commits a person to custody either in an appropriate place, i.e. a designated mental health service or a residential treatment facility,[5] or a prison.[6] Under the Act, a person subject to a CSO in a designated mental health service is described as a forensic patient.[7]
[5]See the definition of “appropriate place” in s 3 of the Act.
[6]See s 26(2)(a) of the Act.
[7]See the definition of “forensic patient” in s 3 of the Act.
An NCSO is an order that releases a person into the community on conditions decided by the Court and specified in the order.[8]
[8]See s 26(2)(b) of the Act.
Relevantly, s 31 of the Act provides that a forensic patient may apply to the Court that made the CSO for a variation of that order. If such an application is refused, a person on a CSO may not make another application within three years, unless the Court specifies a lesser period.
Section 32(1) of the Act provides that, on an application for variation of a CSO, the Court must confirm the order, vary the place of custody or vary the order to an NCSO.
Section 32(2) of the Act provides that the Court must not vary a CSO to an NCSO during the nominal term of the order unless satisfied on the evidence 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 an NCSO.
Section 32(3) provides that, in the case of a forensic patient, the Court must not vary a CSO to an NCSO unless the forensic patient has completed at least 12 months of extended leave; and that, in deciding whether to vary the CSO, the Court must take into account whether or not the forensic patient has complied with any conditions of the extended leave.
Section 32(5) provides that the Court may direct the matter be brought back for further review at the end of a period specified by the Court.
Statutory principles
In considering an application to vary a CSO to an NCSO, by operation of s 39(1) of the Act, this Court “must apply the principle that restrictions on a person’s freedom and personal autonomy must be kept to a minimum consistent with community safety”.
The Court must also have regard to the matters set out in s 40(1), which are as follows:
(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 [herself], another person, or other people generally because of 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.
Section 40(2) provides that the Court cannot significantly reduce the degree of supervision to which a person is subject, unless the Court:
(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 [such as a CSO], 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 [s] 41(3); 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 [s] 42; and
(da) in the case of an application for extended leave—has considered the leave plan filed under [s] 57A;
(e) has obtained and considered any other reports the court considers necessary.
In NOM v DPP & Ors, the Court of Appeal explained the considerations in ss 39 and 40 in this way:[9]
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.
[9]NOM v DPP & Ors (2012) 38 VR 618 at 633[47] (per Redlich and Harper JJA and Curtain AJA).
Notification of family members and victims
Section 38C of the Act requires the Director of Public Prosecutions to give notice of the application for variation of the CSO to an NCSO to family members of the person subject to the CSO and to victims of the offence with which the person was charged.[10] An affidavit of Marianne Doyle of the Office of Public Prosecutions sets out the steps taken on behalf of the Director in respect of those obligations. Ms Doyle also filed written submissions.[11]
[10]The Director did not seek to appear at the hearing, but would have done so if required by the Court or requested by one of the parties. Neither the Court nor the parties requested an appearance by or on behalf of the Director.
[11]Ms Doyle’s affidavit was sworn 14 October 2024, and the submissions were signed on the same date.
Three reports made pursuant to s 42 of the Act were received from members of GH’s family and placed before the Court.[12]
[12]Despite letters sent by Registered Post to family of GH and KL pursuant to s 38C of the Act, the Director did not receive responses from all of those persons. Hence only the three reports placed before the Court.
GH was aged 45 at the time of her death. She lived with her daughter, who was then aged 20 or 21.
In their reports, GH’s family spoke of the incalculable grief and bitterness they continue to suffer at the loss of their loved one. Understandably, they all said, implicitly if not explicitly, that they do not think that KL should be released on an NCSO.
GH’s daughter feels the ongoing impact of the loss of her mother, including through fear, hurt and frustration. She feels helpless to stop or change this process of KL transitioning to the community under the regime of the Act. She chooses to attend court hearings to know what KL looks like so as to protect herself, but even so, she will never feel safe knowing KL is in the community.
GH’s mother (who read her report to the Court) says her grief, depression and anger at losing her daughter have not— and will not — diminish. She hopes and prays that no other family is subjected to the same amount of grief as hers resulting from the lack of supervision of KL that led to GH’s death. She also asked how any assurance can be given that this will not happen again.
GH’s cousin talked about how, in addition to the family’s devastation and grief, they are now burdened by the anxiety and fear of KL being in the community. She also spoke of the tremendous pain that the family continues to endure as a result of GH’s death.
The reports are powerfully expressed and profoundly moving. I have had regard to the views expressed in those reports.
However, given the expert evidence I am about to summarise, which is uncontested, and the statutory tests and principles of law that must be applied, I consider that I am compelled to grant the application for variation of the CSO to an NCSO, notwithstanding the views expressed by GH’s family.
Dr Belshaw’s report
Dr James Belshaw, forensic psychiatrist
I turn now to the evidence of KL’s progress in the last seven months, commencing with the report of Dr James Belshaw.[13] It will be seen that Dr Belshaw’s opinions and his recording of KL’s progress is very much that same as it was in March this year.[14]
[13]Dr Belshaw’s report is dated 16 September 2024.
[14]See and compare Re KL(No 2) [2024] VSC 149.
Dr Belshaw, who also provided reports for KL’s two applications for extended leave, is a consultant forensic psychiatrist working within Forensicare’s Community Treatment and Transition Team (“CTT team”) based at the Community Forensic Mental Health Service in Clifton Hill. The CTT team is responsible for assisting patients to prepare for extended leave applications, and for their subsequent treatment and management once extended leave is granted.
Dr Belshaw has been KL’s allocated CTT psychiatrist since April 2022. Since the further grant of extended leave in March of this year, he has reviewed KL on two occasions. KL was primarily reviewed each month by a CTT psychiatry registrar (a psychiatrist in training). During this period, KL was also regularly reviewed by her CTT case manager Zahra Jafari (who has also provided a report for this application, which I shall come to later). In addition to these reviews, KL’s progress and risks were examined via a six‑monthly in‑depth CTT case review (known as a care pathway plan) on 25 June 2024.
KL’s progress since March 2024
Dr Belshaw noted that KL continues to live with her husband. She reports that she has no plans to relocate and has no current issues with her neighbours.
In May 2024, permission was granted for KL’s daughter and her daughter’s partner to reside at the property. KL reports that they have stayed over in July 2024 for a number of days and that the stays were uneventful, cordial and added to KL’s sense of independence and normality following her discharge from Thomas Embling Hospital.
Dr Belshaw noted that KL continues to have weekly contact with both her daughter and her mother. She has had no contact with her sister or brothers since Dr Belshaw’s last report.
KL advised Dr Belshaw that she had completed her course of psychology in May 2024. She said that she believed there to be no significant areas requiring ongoing psychological input, given her improved communication with her family members. Dr Belshaw noted a discharge summary was provided by KL’s psychologist which stated she had engaged very well and had not presented with any symptoms of concern. The psychologist is open to seeing KL privately, if she wants to do so in the future.
Dr Belshaw reported that, in June 2024, KL raised questions about the longer term need for mirtazapine, with a specific concern about potential dependence. She was provided psycho‑education about the medication. Subsequently, she reported that she was reassured and had decided to remain on the medication at the prescribed dose of 30 milligrams. In September 2024, KL reported that she continued to be happy with her medication and that she was “a bit frightened to come off it in case [she] became unwell”.
In relation to the presence of any forensic or risk issues, KL continued to maintain a low risk rating throughout the past six months. In Dr Belshaw’s opinion, KL continued to demonstrate significant remorse regarding the index event[15] and excellent insight into her mental health issues and associated risks.
[15]In this area of discourse, it is common — for barristers, solicitors, judges, psychiatrists and other mental health professionals alike — to describe the behaviour giving rise to the criminal charge as the “index offence”. However, while it is perhaps a little pernickety, I do not consider the term “offence” to be appropriate in this context. This is simply because, notwithstanding acceptance of the presence of the actus reus and the mens rea of the offence charged, there is, in my view, by definition, no “offence” if the patient has been found not guilty by reason of mental impairment. Hence my choice of the terms “index event”, “index incident”, or their equivalents, or perhaps even “the killing” (where the charge was murder or manslaughter), instead of “index offence”.
KL engaged well with the CTT psychiatry registrar. This, in Dr Belshaw’s opinion, is a good prognostic indicator that she will develop positive therapeutic relationships with new or non‑forensically trained doctors.
KL has otherwise maintained her stable weekly routine, as detailed in the contemporaneous CTT case management report by Ms Jafari.
Mental state examination
As for the mental state examination that Dr Belshaw conducted on 10 September 2024, he noted that KL was on time and well kempt. He saw no abnormal psychomotor movements. Her speech was normal in rate and tone.
KL stated her mood was an eight out of ten. She reported that “court gives me nerves” as the main reason her mood was not higher. She denied any sustained sleep dysregulation. Dr Belshaw observed no depressive or biological symptoms of depression.
Objectively, in Dr Belshaw’s view, KL was euthymic and reactive.
She did not report any psychotic symptoms. There was no formal thought disorder, and no psychotic symptoms were objectively observed. She was orientated to time, place, and person.
KL reported that she was able to reflect on how her delusional symptoms were “consuming” and “preoccupying” in the years prior to the index event. She reported that she did not want to experience a relapse, and would therefore continue to follow her treatment plan.
Risk assessment
In Dr Belshaw’s opinion, the best practice for assessing an individual’s risk of future violence involves the use of a structured professional judgement tool — for example, the Historical Clinical Risk 20 (“HCR‑20”). In his view, the use of this approach facilitates the combination of empirically derived data from a range of known historical and contemporaneous risk factors, together with nuanced clinical information to form an overall formulation of violence risk.
As Dr Belshaw had noted in his previous reports regarding KL, she had several historical risk factors for future violence. As they have already occurred, they are considered to be static and unmodifiable. In the past 12 months, there had been no additions to KL’s HCR‑20 historical risk factors, and therefore he considered her baseline risk of violence remained in the moderate range.
In terms of current dynamic risk factors for violence, Dr Belshaw considered KL had excellent insight into her mental health issues and her violence risk. There had been no issues with supervision, violent ideation, instability or symptoms of relapse.
In relation to the future risk factors for violence, Dr Belshaw considered KL’s risk based on her application for variation to an NCSO being granted. In such a scenario, Dr Belshaw observed that KL’s accommodation will remain stable; that she has been accepted for case management with the local Area Mental Health Service, who will assume the role of the CCT team, and as such she will not have any difficulty accessing mental health services; and that she will be able to continue to attend her general practitioner. There are no predicted stressors which may arise in her life in the next six months. In his view, she has demonstrated a good ability to manage stress. Although comparatively small, KL’s personal support network (which is comprised of her husband, his family, and their daughter) has demonstrated an ability to provide her with a stable and sufficient level of care during her recovery to date.
In those circumstances, Dr Belshaw concluded that, if KL’s CSO were to be varied to an NCSO, her risk for future violence would be low.
Opinions
Towards the end of his report, Dr Belshaw provided the following summary of KL’s history and his opinions.
He said that KL is a 61‑year‑old female whose early acculturation difficulties and experience of parenting likely increased her vulnerability to developing a mental disorder in later life. At the age of 45 years, following an otherwise normal psychosocial trajectory, she began to experience symptoms of a depressive disorder and a delusional disorder. The exact nature of her mental health issues remained unknown to KL and her family, and, as a result, she did not received any support or treatment from mental health services.
The killing of her neighbour occurred in the context of approximately ten years of untreated depressive and psychotic symptoms. In Dr Belshaw’s opinion, KL has a diagnosis of delusional disorder according to the criteria laid out in the Diagnostic and Statistical Manual of Mental Disorders (“DSM‑5”), which has been in sustained remission since approximately 2018. She also met the DSM‑5 criteria for a depressive disorder, which was most prominent in around 2017, and which also has been in sustained remission since 2018.
Aside from pharmacological treatment, during her recovery, she has also successfully completed specialist psychotherapy to enhance her ability to communicate adaptively with family members and mental health treating teams, and to avoid any future delays in her accessing mental health treatment.
In Dr Belshaw’s opinion, KL’s completion of recovery goals and progress during transition back to full‑time community living during her extended leave has been exemplary. Dr Belshaw thinks there is no further requirement for her to be managed by the CTT team. In his opinion, the next stages of her recovery would be more optimally delivered by the local, public mental health service through an NCSO.
Recommendations and proposed conditions
Dr Belshaw supports KL’s application for variation of her CSO to an NCSO.
In the event that her application for variation is granted, he proposed the following conditions for the NCSO:
1)that KL be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (“VIFMH”) or their delegate or nominee;
2)that KL resides at a location known and approved by the authorised psychiatrist of the VIFMH or their delegate or nominee;
3)that KL abides by the lawful directions of the authorised psychiatrist of the VIFMH or their delegate or nominee;
4)that KL complies with treatment, testing and attends appointments as directed by the authorised psychiatrist of the VIFMH or their delegate or nominee;
5)that KL abstains from the abuse of alcohol and the use of illicit drugs; and
6)that KL not leave the State of Victoria without the written permission of the authorised psychiatrist of the VIFMH or their delegate (this includes overseas travel, which must be approved by the authorised psychiatrist or their delegate at VIFMH).
Dr Belshaw’s viva voce evidence
In very brief viva voce evidence, Dr Belshaw said that he was not aware of any incidents that had taken place since the date of his report that would change his conclusions.
He said that there were no treatment options available to KL under her CSO that would not be available to her on an NCSO.
He also said that the local public mental health service would be able to contact the CTT team for any historical information, but that they would more typically communicate directly with the NSCO team to ensure continuity in KL’s transition from a CSO to an NCSO.
Zahra Jafari’s report
Ms Jafari, case manager, CTT team
I turn now to the report of Ms Jafari,[16] who is KL’s case manager in the CTT team.
[16]Ms Jafari’s report is dated 16 September 2024.
Ms Jafari is a registered nurse employed by Forensicare. As well as an undergraduate degree in nursing, she has a Master of Mental Health Nursing, completed in 2022.
Her report addresses KL’s current social and community supports, and is intended to be read in conjunction with Dr Belshaw’s psychiatric report.
Accommodation
Ms Jafari noted that KL has been residing with her husband in the family home since her discharge from Thomas Embling Hospital in April 2023. The property is owned by her husband, and is stable and secure. No risks were identified at the home visits conducted by the CTT team.
KL plans on continuing to reside in the family home as she has no issues with her husband, and none are expected to arise. KL has also been getting to know her neighbours without concern.
Community linkages and activities
KL had a conversation with Dr Belshaw in June 2023 regarding going back to work, but she explained that she is happily retired and is not seeking employment.
Ms Jafari reported that KL has been volunteering with the Salvation Army since February 2023, on a weekly basis. She also volunteers her assistance twice a month at a botanic garden, which is a hobby she enjoys, although she has recently expressed wanting to cease because of the physical nature of the role.
Ms Jafari confirmed that KL was seeing a psychologist from Spectrum. She initially engaged with him on a weekly basis from the time she was granted her extended leave until 20 November 2023. But she reduced the frequency of the sessions to fortnightly following a conversation with Dr Belshaw. KL had her final session on 21 May 2024. She has been informed she can resume privately with the psychologist if she requires. There have been no concerns raised by KL since cessation of these sessions.
KL’s sees her general practitioner for physical health reviews. She was most recently prescribed Celebrex for ongoing knee pain. She reports that this has significantly improved her pain, quality of life and sleep.
KL also enjoys walking regularly — either solo or with her husband or her daughter. She prefers walking in the cooler weather, but still finds time to do so in the warmer months. She also occasionally cycles with her husband.
An NCSO team has been allocated already to KL in the event her CSO is varied to an NCSO. Ms Jafari noted an introductory appointment would be scheduled for October 2024 between KL and that team.
KL was referred to Western Health Mental Health and Wellbeing Service (Outer Community team) in August 2024. In September 2024, that referral was accepted, and she was allocated a team with her local health and community service.
Family and personal support
KL has a good relationship with her husband, who has been happy to have her company since she commenced extended leave. She has noticed an improvement in their relationship compared with prior to the index incident. She now raises issues in their relationship, no matter how small, and her husband is more in tune with her emotions. She has shared her relapse prevention plan with him and believes it is her family’s obligation to ask for help, if she requires it.
KL has one child. Their relationship is positive and supportive of her recovery. KL believes they are able to have more open conversations now. She stated that she and her husband “feel more comfortable raising all manner of issues, which is something new to us”, and that they “were a bit closed off, but now [they are] not”. Her daughter is aware of her mother’s early warning signs and has a copy of her relapse prevention plan. KL trusts her daughter will contact the CTT team with any concerns. KL’s daughter and her daughter’s partner stayed at the family home whilst visiting Melbourne. KL reported the stay went well and expressed feeling grateful. At the most recent care pathway plan, KL’s daughter said this:[17]
She’s doing really great and is keeping herself busy with Salvos and going on day trips. We stay in contact over the phone. I try to message her as much as I can without being overbearing. I’m really happy, as a family we’re healthier than we’ve ever been.
[17]Ms Jafari’s report, p 4[20].
Ms Jafari confirmed that KL’s mother has dementia and is deteriorating in health. At the time of KL’s discharge from Thomas Embling Hospital last year, her mother was still living at home in a country town with KL’s brother, and was receiving at‑home care. KL would visit her on a fortnightly basis with her husband and call her every second day. As her health deteriorated, KL’s mother was transferred to an aged care home in Melbourne. KL now sees her weekly. She has described the visits as “bittersweet”, but is happy her mother is “looked after, fed and safe”. KL has been able to manage the stress of this situation, and receives support from her husband and daughter.
KL continues to have no contact with her brothers and sister. She is open to rekindling the relationship with her sister if she reaches out, but she has no intention of doing so herself.
KL reports being open to developing new friendships but is not actively seeking them out. She maintains contact with an imprisoned friend through letters.
Activities of daily living
Ms Jafari notes that KL is able independently to care for herself, including with respect to her activities of daily living. She shares the household chores with her husband.
KL holds a driver’s license and can independently drive herself to appointments.
KL and her husband are both retired and living off their savings. Their finances are managed by them both, and she denies experiencing any financial distress.
KL independently manages her medication administration. She has said, “I want to take it. It’s part of my routine. It’s helped me so much.” When granted extended leave last year, she was using a Webster pack but ceased doing so after a discussion with Dr Belshaw in October 2023, as she is on a singular medication and remains compliant.
KL had a discussion with Dr Belshaw in June 2024 about reducing the dosage of her medication. However, after the discussion, she decided to make no changes.
KL attends all her appointments with the CTT team on time, and there have been no issues with her attendance.
Opinions and recommendations
Ms Jafari relayed that KL felt relief after being granted a further period of extended leave in March 2024.
She has continued to engage meaningfully with the CTT team since her last hearing.
Ms Jafari recommends that KL continue to engage with her CTT team, her general practitioner, and then, should her CSO be varied to an NCSO, also her local health and community service and the NCSO team.
In Ms Jafari’s opinion, KL has displayed the ability to engage with multiple health professionals and to develop therapeutic rapport with them. She enjoys speaking with a variety of health professionals and feels comfortable doing so. This has extended to her interest in engaging with her new treating and supervision teams.
KL has continuously expressed not wanting to become unwell. In Ms Jafari’s view, she has excellent insight into her mental illness and the importance of the adherence to treatment.
Ms Jafari recommends that KL continue to maintain open and honest communication with her family, and her treating and supervision teams, and that she reengage her psychologist in the future should she or her treating and supervision teams deem it necessary.
In light of the foregoing matters, Ms Jafari supports KL’s application for variation of her CSO to an NCSO.
Submissions
Helpfully, Ms Wilson, who appeared on behalf of the Secretary to the Department of Health, and Mr Boyd‑Caine, who appeared on behalf of the Attorney‑General, filed detailed written submissions ahead of the hearing. They both, along with Mr Galbally, who appeared on behalf of KL, also made oral submissions at the hearing. All submitted that, in all the circumstances, the reports before me should persuade me that KL’s application for variation of the CSO to an NCSO ought to be granted.
In particular, Ms Wilson pointed out Dr Belshaw’s opinion that KL’s recovery and transition back to the community has been exemplary, and that both reports before me demonstrated that KL or members of the public would not be seriously endangered as a result of her release onto an NCSO. She also directed me to s 39 of the Act, which requires the Court to ensure that the restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Mr Boyd‑Caine submitted that the following matters support variation of the CSO to an NCSO:
a)First, KL’s mental state has remained consistently stable, with no evidence of psychotic symptoms for several years.
b)Second, KL has insight into her mental illness, and has been compliant with treatment over a number of years.
c)Third, provision has been made for continuity of KL’s mental health care should an NCSO be granted.
d)Fourth, since April 2023, KL has resided in the community with her husband on extended leave with no reported issues, including with her neighbours.
e)Fifth, KL has a small personal network who provide her with a stable and sufficient level of care.
f)Sixth, Dr Belshaw opines that there is no further requirement for KL to be managed by Forensicare’s Community Forensic Mental Health Service team, and that a local, public mental health service through an NCSO would be adequate.
g)Finally, Dr Belshaw opines that KL’s risk of future violence, were she to be granted an NCSO, is low.
Mr Galbally adopted the submissions of Ms Wilson and Mr Boyd‑Caine.
Regarding the period of any further review under s 32(5), Mr Boyd‑Caine took no position. Ms Wilson and Mr Galbally both submitted that 12 months was an appropriate period in which to bring the matter back for further review.
Conclusions
Application to vary CSO to NCSO should be granted
I turn now to my conclusions, commencing with the question whether the application to vary the CSO to an NCSO is to be granted or not.
KL has been on extended leave since 4 April 2023 and has therefore completed at least 12 months of extended leave and may apply for variation of her CSO.[18] She has not made an application for variation that has been refused within the last three years.[19]
[18]See s 32(3) of the Act.
[19]See s 31(2) of the Act.
KL’s CSO was made on 13 December 2017, with a nominal term of 25 years. I must not vary KL’s CSO to an NCSO during that nominal term unless satisfied that the safety of KL or members of the public will not be seriously endangered as a result of her release on an NCSO. I am so satisfied.
I accept the opinions expressed in the report of Dr Belshaw. In my judgment, those opinions place KL’s future risk at a level that satisfies the test for a variation of the CSO to an NCSO. That is, her future risk if released on an NCSO is low; and, as a result, KL and members of the public will not be seriously endangered should she be so released.
As I have said previously,[20] it is, of course, for the Court, not the psychiatrists, to make findings of fact and to determine an application for release on an NCSO. But judges are not psychiatrists. Yet much of what is in issue in cases of this nature turns on matters of psychiatry. The Court’s findings of fact, and its determination, are necessarily very much informed by the opinions of the relevant psychiatrists when those opinions are well reasoned and convincing, come from experienced, well‑qualified and responsible professionals who have been involved in the treatment or assessment of a forensic patient, and are not contradicted by other evidence.
[20]See, e.g., Re HWJ [2015] VSC 170 at [124].
In the present case, the opinions expressed by Dr Belshaw fall into that category. Moreover, I am persuaded that those opinions are sound and that I should act on them.
The ultimate question is whether, on the evidence available, the safety of KL and members of the public will not be seriously endangered as a result of her being released on an NCSO. Having considered the evidence before me, the matters set out in ss 39 and 40, the proposed conditions in the leave plan of the NCSO, and the submissions of counsel, I am satisfied, to the requisite standard, that the safety of KL and members of the public will not be seriously endangered as a result of her release on an NCSO.
Accordingly, KL’s application to vary her CSO to an NCSO should be granted.
Further review in 12 months
In relation to a further review, I accept the submissions of counsel that a 12‑month period is appropriate in this matter. Given that KL will be transitioning from her CSO team to her NCSO team, it would be prudent for the Court to monitor her progress on the NCSO over the next 12‑month period.
Accordingly, I shall direct that the matter is to be brought back to this Court for further review within 12 months (i.e., on or before 17 October 2025).
Non-publication order
In brief viva voce evidence, Dr Belshaw said that, from the perspective of KL’s mental health and ongoing recovery, a non‑publication order would be beneficial. This is because dissemination of her health information and mental health history could cause stress, which is a known precipitant for relapse.
I also asked GH’s family whether they wished to have the non‑publication order in respect of them continue. Understandably, they did.
In those circumstances, I am satisfied that a non‑publication order in its previous terms is justified, and ought to remain in place.
Accordingly, I shall make such an order again.
Orders
It is for the foregoing reasons that I made the following orders on 17 October 2024:
1)Pursuant to s 32 of Act, the custodial supervision order made on 13 December 2017 is varied to a non‑custodial supervision order, subject to the following conditions:
a)that [KL] be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (“VIFMH”) or their delegate;
b)that [KL] reside at a location known and approved by the authorised psychiatrist of the VIFMH or their delegate;
c)that [KL] abide by the lawful directions of the authorised psychiatrist of VIFMH or their nominee;
d)that [KL] comply with treatment and testing, and attend appointments, as directed by the authorised psychiatrist of VIFMH or their nominee;
e)that [KL] abstain from the abuse of alcohol and the use of illicit drugs; and
f)that [KL] not leave the State of Victoria without the written permission of the authorised psychiatrist of VIFMH or their delegate (this includes overseas travel, which must be approved by the authorised psychiatrist of VIFMH or their delegate).
2)Pursuant to s 75 of the Act, publication of the following is prohibited:
a)the names and addresses, or former addresses, of [KL], the deceased and their relatives; and
b)any information which might identify the names and addresses, or former addresses, of [KL], the deceased and their relatives, except insofar as such information is contained in the written reasons for judgment.
3)Pursuant to s 32(5) of the Act, the matter is to be brought back to this Court for further review within 12 months (i.e., on or before 17 October 2025).
---
0
3
0