Re KP (No 2)
[2021] VSC 675
•15 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 06905
IN THE MATTER of a further review of a non-custodial supervision order pursuant to s 33(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)
IN THE MATTER of KP
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JUDGE: | ELLIOTT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Decided on the papers |
DATE OF JUDGMENT: | 15 October 2021 |
CASE MAY BE CITED AS: | Re KP (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 675 |
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CRIMES MENTAL IMPAIRMENT - Review of non-custodial supervision order - Custodial supervision order varied to non-custodial supervision order in 2018 - Non-custodial supervision order confirmed on previous review in 2020 - Principles to be applied - Non-custodial supervision order confirmed - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 33, 38C, 38E, 39, 40.
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APPEARANCES: | Counsel | Solicitors |
| For the Reviewee | - | Victoria Legal Aid |
| For the Attorney-General of Victoria | - | Victorian Government Solicitor’s Office |
| For the Secretary to the Department of Health | - | Department of Health |
| For the Director of Public Prosecutions | - | Office of Public Prosecutions |
HIS HONOUR:
IntroductionA.
This matter concerns a review of KP’s non-custodial supervision order (“the Order”) in accordance with section 33(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”).[1]
[1]A non-publication order made by Coghlan JA on 26 September 2014 was extended by Beach JA on 22 September 2017. On 21 September 2018, Bell J made a further non-publication order which operates until further order, which was confirmed by Bell J on 15 October 2019: see further par 48 below.
By way of a consolidated response supplied at the request of the court, each of KP, the Secretary to the Department of Health (“the Secretary”), and the Attorney-General seek for the Order to be confirmed.
For the reasons set out below, it is appropriate to confirm the Order on its current terms, and direct that the matter is to be brought back to the court for further review within 1 year, pursuant to section 33(2) of the Act.
BackgroundB.
The index offence to which this review relates occurred on 8 August 2004. KP, then aged 23 years, killed his pregnant girlfriend by compression of her mouth and nose while experiencing psychotic symptoms. On 23 October 2006, KP was charged with murder. By reason of mental impairment, Whelan J directed that a verdict of not guilty be delivered, and that KP be placed on a custodial supervision order for a nominal term of 25 years. KP was subsequently admitted to Thomas Embling Hospital.
On 26 September 2014, by application, KP was granted extended leave pursuant to section 57 of the Act, for a period of 12 months. By the extended leave, KP was permitted to reside at the Austin Health Community Recovery Program. Subsequently, extended leave was granted each year through to 2017.
On 21 September 2018, Bell J varied KP’s custodial supervision order to a non-custodial supervision order, having been satisfied that the safety of KP and members of the public would not be seriously endangered as a result of KP’s release on a non-custodial supervision order.[2] On 15 October 2019, this Order was confirmed, pursuant to section 33(1) of the Act, and his Honour directed that the matter be brought back to the court for further review within 2 years.
Legislative frameworkC.
[2] Re KP [2020] VSC 57, [7].
Section 33 of the Act addresses the court’s powers in relation to reviews of non-custodial supervision orders. It relevantly provides that on an application for variation or revocation, or on a review or further review of the non-custodial supervision order, the court must either confirm the order, vary the conditions of the order, vary the order to a custodial supervision order, or revoke the order.[3]
[3]Section 33(1).
Part 6 of the Act sets out the principles on which the court is to act in such a determination. Section 39 provides that in deciding whether to make, vary or revoke a supervision order, 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.[4] Section 40 sets out the matters to which the court must have regard in deciding whether or not to make, vary or revoke an order, namely:[5]
[4]Section 39(1). The Explanatory Memorandum indicates that this is the “overriding principle” which the court must apply when considering whether to make, vary or revoke a supervision order or whether to remand a person in custody.
[5]Section 40(1).
(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 relationship between sections 39 and 40 is well established:[6]
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]NOM v Director of Public Prosecutions (2012) 38 VR 618, 633 [47] (Redlich and Harper JJA and Curtain AJA).
Further, the weight attaching to specified factors will depend on the words of the applicable legislation, the nature of the relevant discretion and the facts of the particular case.[7] In the context of the Act, while more weight may be given to the community safety considerations which appear in sections 39 and 40(1)(c) and (d), it is otherwise not appropriate to elevate any of the factors to the status of a “test or decisive consideration”.[8]
[7]Ibid, 634 [49].
[8]Ibid.
The court’s ability to release a person from custody, or significantly reduce the degree of supervision to which a person is subject, is tempered by its consideration of various items expressed in section 40(2). This provides as follows:
(2)The court cannot order a person to be released unconditionally or otherwise release a person from custody under Part 3, 4 or 5, or significantly reduce the degree of supervision to which a person is subject, unless it –
(a)has obtained and considered the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on –
(i)the person’s mental condition; and
(ii)the possible effect of the proposed order on the person’s behaviour.
(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
…
(e)has obtained and considered any other reports the court considers necessary.
The Director of Public Prosecutions is subject to obligations under sections 38C and 38E of the Act. These provisions require, among other things, that notice of hearings be provided to each family member of the person and each victim of the offence with which the person was charged,[9] and that certain information be provided to those persons.[10]
EvidenceD.
[9]Section 38(2) sets out the types of hearings of which notice is required to be given, which relevantly include a review directed under section 33(2), as is presently the case.
[10]Section 38E.
An affidavit sworn by a solicitor and filed on behalf of the Director of Public Prosecutions addressed the obligations under sections 38C and 38E of the Act. The evidence demonstrated that they have been discharged.
KP’s psychiatric history has been set out elsewhere.[11] For the purposes of this review, the following facts are relevant. KP is currently 40 years old. KP was first diagnosed with schizophrenia in 2000, at which point he experienced his first psychiatric admission to Royal North Shore Hospital. KP was also diagnosed with major depressive disorder, and substance abuse. Prior to the index offence, KP was admitted to various hospitals concerning his psychotic symptoms.
[11]See, for example, Re KP [2020] VSC 57, [19]-[22] (Bell J); In the matter of an application by KP [2019] VSC 7, [18]-[21] (Bell J).
Following the index offence, and KP’s placement at Thomas Embling Hospital on a custodial supervision order, KP commenced treatment on clozapine. KP’s mental state improved. Since 2014, KP has received community mental health services from the Austin Community Recovery Program, and subsequently, from the North East Area Mental Health Service of Austin Health under supervision from Forensicare.
In respect of the current review, the following reports were tendered in accordance with the Act:
(1)An annual report by Dr Ria Zergiotis (“Zergiotis”) dated 6 September 2020, prepared in her capacity as KP’s supervising psychiatrist between September 2018 and September 2020.
(2)An annual report by Dr Christine Rizkallah (“Rizkallah”) dated 9 September 2021, prepared in her capacity as KP’s supervising psychiatry registrar for the non-custodial supervision order.[12]
(3)A report by Mr Barry Beaton (“Beaton”) dated 13 September 2021, prepared in his capacity as KP’s case manager at the North East Area Mental Health Service of Austin Health.
(4)A report by Dr Dilini Dharmage (“Dharmage”) dated 10 September 2021, in her capacity as consultant psychiatrist treating KP with the Mobile Support Team of the North East Area Mental Health Service since May 2021.
Zergiotis’s evidenceD.1
[12]This report was supervised by Zergiotis.
Zergiotis was KP’s supervising psychiatrist for his non-custodial supervision order from September 2018.[13] This supervision was undertaken on behalf of Forensicare. The report was prepared pursuant to section 41(3) of the Act, to provide the court an update of KP’s progress between September 2019 and September 2020.
[13]This was in addition to having been his treating phsychiatrist in earlier times.
Zergiotis’s report accounts for 3 supervision review interviews and her regular liaisons with the non-custodial supervision order and treating teams. These interviews and reports included consideration of KP’s positive employment situation, stable accommodation, stable social life and close ties with his family, abstinence from illicit substances, denial of psychotic experiences and positive engagement with his treatment team, amongst other things. In relation to alcohol consumption, Zergiotis noted that KP continued to consume alcohol, was reluctant to talk about his alcohol intake and that KP’s consumption of alcohol had historically been problematic. However, KP denied that his alcohol intake is a problem, in spite of that history.
KP’s stable mental state, lack of evidence of psychotic symptoms or depressive syndrome, compliance with medication regimen, stable social life, employment and lack of any breaches or risk issues over the previous 12 months were also reported in liaison meetings with KP’s then case manager.
In these circumstances, Zergiotis assessed that KP’s risk of future violence remained low, and that the non-custodial supervision order held a continued role in contributing to the stability of his mental health, and mitigating the risk of future offending.
Rizkallah’s evidenceD.2
Rizkallah has been KP’s psychiatry registrar since August 2021. Her report was also prepared in accordance with section 41(3) of the Act. It comprised a review of KP’s Forensicare clinical file, annual reports, three-monthly area mental health service reports and correspondence with the North East Area Mental Health Service.
After noting KP’s background and psychiatric history, Rizkallah made the following observations about KP’s progress in the past 12 months:
(1)KP has continued to reside alone in stable government accommodation, and has maintained employment as a cleaner (albeit, with reduced work hours as a result of the COVID-19 pandemic).
(2)KP has maintained a positive and supportive relationship with his family, including parents and siblings.
(3)KP has continued to enjoy hobbies, including skating and creating music, both individually and with members of a band.
(4)The three-monthly reports indicate that KP’s mental state has overall remained stable, and KP has not displayed any mood or positive psychotic symptoms.
(5)KP has abstained from using illicit substances, and has continued to drink alcohol in moderation in social settings.
(6)KP has raised various physical health concerns over the past 12 months.
Rizkallah also noted that since March 2021, KP has begun to exhibit early warning signs of relapse of psychosis. These warning signs included reduced medication compliance, mild functional decline and disorganised behaviour, which manifested in reduced work attendance, misplaced medication packs, and missed appointments with KP’s community treating team. KP attributed reduced medication compliance to forgetfulness and physical side effects. Following a discussion with Dharmage, a variation to KP’s medication regimen was agreed, with low doses of clozapine to be maintained for stability while KP transitioned to a new long-acting injection.
Rizkallah assessed that KP may be vulnerable to relapse in the next 12 months, and will require ongoing supervision and assertive treatment to mitigate that risk. This conclusion had regard to KP’s significant historical risk factors, unstable employment, early childhood antisocial attitudes, diagnosed schizophrenia, and historical issues with treatment response and substance abuse.
Nonetheless, Rizkallah also considered KP’s risk of future violence to be low given KP’s current stable mental state, good insight into his illness and treatment, regular engagement with his treating team, stable social circumstances and supportive family.
In the circumstances, Rizkallah concluded that a non-custodial supervision order would continue to support KP’s stability and mitigate the risk of any future re-offending.
Beaton’s evidence D.3
Beaton is a case manager with the North East Mobile Support and Treatment Service of Austin Health, and has worked with KP’s treatment team since 7 May 2021.
Beaton also addressed KP’s psychiatric condition and the circumstances leading to his original apprehension and detention, in addition to his current medication regimen.
With regard to KP’s current condition, Beaton noted that although KP works 8 hours a week at present, his employer has reported that KP has taken increasing amounts of time off work, and if that were to continue KP’s employment may be terminated.
On balance, Beaton considered that KP’s mental state remains reasonably stable. He reported that KP continues to abstain from substances and has maintained a positive attitude towards his treatment. Further, KP demonstrates good insight into his mental illness, early warning signs and the link between substances use and mental illness. This assessment is notwithstanding that KP has shown some non-compliance with his prescribed oral medication regimen, however Beaton accepted that KP is willing to work on this with his treating team.
Finally, Beaton considered that the Order should be confirmed, due to KP’s recent transition to a more intensive community support team for the purpose of monitoring and stabilising him on his new medication regimen. As the regimen changes, there is “a chance” that KP’s psychotic symptoms may increase. Nonetheless, Beaton considered that KP’s risk of harm to himself or others remains low.
Dharmage’s evidenceD.4
Dharmage is a consultant psychiatrist with the mobile support team of the North East Area Mental Health Service. In her role, Dharmage sees KP at least monthly for medical reviews. She assesses KP’s mental state and risks, reviews his medication regimen, and provides supportive input. KP has been a client of this service since being referred on 7 May 2021, and a client of other mental health teams within the North East Area Mental Health Service since 2014. The referral from North East Area Mental Health Services’ continuing care team was a response to KP’s poor compliance with his medication regime, as the mobile support team had the ability to provide KP with medication supervision at home.
With regard to KP’s current condition, Dharmage noted that for a period in July 2021, KP experienced grandiose delusions by which he informed a clinician that he was designing vehicles for the military and NASA, and was privy to classified information from those organisations. However, since July, this condition has diminished and KP speaks of simpler inventions he would one day like to manufacture. KP considers these “dreams” as something that makes him happy, which he can talk about in social settings. Relevantly, Dharmage highlights that KP has not experienced any persecutory delusions about anybody in recent months, nor experienced hallucinations.
Dharmage also referenced an instance of KP’s limited judgment, whereby he romantically pursued a female friend with “multiple texts characterised by heavy romantic sentiments”. This communication perturbed the woman in such a way that she felt harassed and reported the matter to police. After KP was made aware of this situation he ceased contact with her.
Dharmage also noted KP’s preference against his prior clozapine regimen, recording his complaints that it made him feel nauseated, that it sedated him, and that it had caused weight gain.
Overall, Dharmage assessed KP’s risk of danger to the community, and to himself, as low. While noting his grandiose delusions, poor judgment, and history of schizophrenia and other psychotic symptoms, these were considered to be balanced by his regular attendance for treatment, his attitude, his stable social life, and the current absence of any psychotic symptoms. Further, Dharmage noted that on many occasions KP has expressed remorse about his role in the death of his then girlfriend. KP reported heavy feelings of guilt and regret, but seeks to focus on “making the most of his life whilst maintaining a healthy state of mind”.
In view of the need to stabilise KP’s newly commenced medication regimen, Dharmage expressed a preference for KP to remain on the Order. In support of this, she noted that the new treatment, long acting injectable haloperidol, is more pharmacologically potent than clozapine, and that the process of graduating to a reasonable dose will take at least 6 months.
AnalysisE.
Each expert has independently concluded that the Order should be confirmed. This position is also accepted by KP.
The common factor underpinning these conclusions is the need to stabilise KP on his revised medication regimen. This current regimen was brought on by KP’s non-compliance with his prior regimen, which he attributed to “forgetfulness” and physical side effects. Each of Rizkallah, Beaton, and Dharmage acknowledged that KP had not been compliant with prescribed oral medication regimen within the past 12 months. That non-compliance precipitated KP’s referral to a mobile support team. Fluctuating clozapine levels was also a subject of contention in the review of the Order in 2019.[14]
[14]Re KP [2020] VSC 57, [56]-[57] (Bell J).
Rizkallah considered that such non-compliance constituted an early warning sign for a relapse of psychosis, alongside mild functional decline and disorganised behaviour. There are consequences to such a relapse. Rizkallah identified an outcome of this as being KP‘s reduced work attendance, which if maintained may result in his employment being terminated, and may cause some instability.
To KP’s credit, he has positively collaborated with his treatment team to engage in an alternative course of medication. However, as noted by Rizkallah, KP’s vulnerability to relapse in this phase warrants continued supervision and support. In Dharmage’s assessment, the potency of the treatment will require support and stabilisation for a period of at least 6 months.
In addition to these matters, each expert has indicated that KP’s risk of danger to himself and the community is low. KP has not recently experienced psychotic symptoms associated with aggression, such as persecutory delusions. Dharmage’s description of past grandiose delusions has subsided. By all accounts, KP has a stable social life, including strong relationships with family and friends and productive hobbies, including music. At present, KP’s income is derived from his work as a cleaner, with supplementary support from a disability support pension. He is supported by the National Disability Insurance Scheme. He resides in stable government accommodation. He has expressed contrition and regret for his past actions.
Further, KP has not evidenced any signs of alcohol or substance abuse. This is salient, as KP has a significant history of substance abuse, and alcohol intake was a point of concern in KP’s application for variation from his custodial supervision order to a non-custodial supervision order,[15] and the subsequent review.[16] While KP still drinks alcohol, Rizkallah accepted that KP no longer engages in problematic alcohol abuse.
[15]In the matter of an application by KP [2019] VSC 7, [40]-[45], [49] (Bell J).
[16]Re KP [2020] VSC 57, [59]-[61].
Finally, KP has, for the most part, engaged positively with his treatment team, displayed a positive attitude, and evinced a desire to improve his mental state. Further, each of Zergiotis, Rizkallah and Beaton reflected upon the fact that KP has demonstrated positive insights into his own mental illness.
ConclusionF.
In the circumstances it is appropriate to continue the Order on its current terms. Those terms are as follows:
(a)[KP] continue to be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or his or her delegate.
(b)[KP] reside at a location approved by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or his or her delegate.
(c)[KP] abide by the lawful directions of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or his or her delegate.
(d)[KP] comply with treatment and testing and attend appointments as directed by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or his or her delegate.
(e) [KP] abstain from the abuse of alcohol and from the use of illicit drugs.
(f)[KP] not leave the state of Victoria without the written permission of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or his or her delegate.
I recognise that these conditions continue to place restrictions on KP’s freedom and personal autonomy. However, the evidence that KP’s revised medication regimen requires a period of stabilisation and support is compelling. KP has also accepted the necessity for the Order to be confirmed, and is invested in his own treatment.
With regard to duration, considering the need for stabilisation on the revised medication regimen and KP’s vulnerability to relapse, I direct that this matter be returned to the court for further review in 1 year, pursuant to section 33(2) of the Act.
Finally, KP has sought to maintain a non-publication order under section 75(1) of the Act. On its terms, that order remains on foot unless the court otherwise orders. Both the Secretary and the Attorney-General declined to take a position on the continuation of the non-publication order. On the present state of the matter before the court, the court will not otherwise order.
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