Re LB
[2022] VSC 375
•1 July 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0081
| IN THE MATTER of an application under s 57(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| - and – |
| IN THE MATTER of an application by LB |
---
JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 July 2022 (on the papers) |
DATE OF JUDGMENT: | 1 July 2022 |
CASE MAY BE CITED AS: | Re LB |
MEDIUM NEUTRAL CITATION: | [2022] VSC 375 |
---
CRIMINAL LAW – Mental Impairment – Application for extended leave – Whether granting extended leave on the conditions proposed would seriously endanger the safety of the applicant or members of the public – Application not opposed – Application for extended leave granted with conditions – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 38, 39, 40, 42, 56, 57 and 75.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | – | Victoria Legal Aid |
| For the Secretary to the Department of Health | – | Department of Health |
| For the Attorney-General of Victoria | – | Victorian Government Solicitor’s Office |
HER HONOUR:
Introduction
By a Notice of application for extended leave filed on 1 April 2022 pursuant to section 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘Act’), LB (‘the applicant’) applies for his first grant for extended leave.
Procedural history
On 9 December 2005, the applicant repeatedly stabbed his flatmate (‘the deceased’) using a kitchen knife whilst subject to paranoid and persecutory delusions. In the week leading up to the offence, the applicant reported experiencing auditory hallucinations telling him that the deceased was going to kill him and had knives and a gun.
On 3 November 2006, the applicant was found not guilty of murder by reason of mental impairment. On 8 December 2006, he was declared liable to supervision pursuant to s 23 of the Act and placed on a Custodial Supervision Order (‘CSO’) with a nominal term of 25 years commencing 9 December 2005.
Applicable legislation
Extended leave is leave for a forensic patient to be absent from his or her place of custody for a period not exceeding 12 months, and subject to conditions, if any, fixed by a court.[1]
[1]Act, s 56.
An application for extended leave may be made by a forensic patient to the Court that made the supervision order to which they are subject.[2]
[2]Act, s 57(1)(a).
The Court may grant the application if satisfied on the evidence available that the safety of the applicant or members of the public will not be seriously endangered as a result of the applicant being allowed extended leave.[3]
[3]Act, s 57(2).
‘Serious endangerment’ is not defined in the Act. However, it is a well-understood concept encompassing both the probability that a harmful event might occur and the gravity of the harm in that eventuality. The interplay between probability and gravity is best illustrated by the oft-cited example that a highly probable risk of minor harm might not amount to serious endangerment whereas a mathematically improbable risk of grave harm might do so.[4]
[4]NOM v Director of Public Prosecutions (2012) 38 VR 618, [63] (Redlich and Harper JJA and Curtain AJA) (‘NOM’), citing with approval In the Matters of Major Reviews of Percy, Farrell and RJO [1998] VSC 70, [56] (Eames J).
As described by the Court of Appeal in NOM, at the heart of the concept of serious endangerment is the probability of risk:
The gravity of the harm may be relevant to assessing the nature of the risk, but the probability of any risk, be it high or low, is the critical concept of endangerment. In the absence of any parliamentary guidance on the meaning of the word, this much is clear from the term’s ordinary and literal meaning. … The ordinary meaning of endangerment entails the concept of chance or risk.[5]
[5] NOM, [58].
In considering the application for extended leave, the Court must have regard to the overriding principle of parsimony enshrined in s 39(1) of the Act and the list of matters outlined in s 40(1). The Court of Appeal in NOM described this assessment as follows.
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]
[6] NOM, [47].
The Court cannot significantly reduce the degree of supervision to which the applicant is subject without receiving and considering the materials outlined in s 40(2) of the Act. The Court must also consider the leave plan prepared and filed pursuant to s 57A of the Act by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (‘VIFMH’).[7]
[7]Act, s 40(2)(da). This plan consists of the proposed conditions of extended leave for the applicant, outlined in the appendix in Dr Lysenko’s report.
Notification of family members and victims
If a grant of extended leave would significantly reduce the degree of supervision to which the applicant is subject, the Director of Public Prosecutions (‘Director’) must give notice of the application to each family member of the applicant, and to each victim of the offence with which the applicant was charged.[8]
[8] Act, ss 38C(1) and (2)(d).
I am satisfied on the basis of evidence filed by the Director that the relevant family members and victims have been notified of this application.[9] No reports have been received from any of the victims or family members of the applicant.[10] The Director has not been contacted by any of the victims or family members indicating that they seek to file a report with the Court.[11]
[9]Act, s 40(2)(c).
[10]Affidavit of Molly Lombardi affirmed 21 June 2022, [12].
[11]Outline of Submissions on behalf of the DPP dated 21 June 2022, [12].
Personal Background and Psychiatric History
The applicant is now 41 years old. The applicant has an established diagnosis of treatment resistant paranoid schizophrenia. He has had a comorbid substance use disorder relating to cannabis and alcohol.
The applicant’s father was an alcoholic and had schizophrenia. His mother had psychotic depression and agoraphobia. His parents separated when he was 18 months old. Shortly after the separation, the applicant suffered injuries (requiring skin grafts) from a house-fire, and lived in emergency accommodation for two years following this event.
The applicant was raised by his mother and had limited contact with his father. He was briefly placed in respite care at the age of six in response to his mother suffering an episode of psychotic depression. He attended several different schools and reported academic difficulties as well as being bullied physically and verbally throughout his school years. He exhibited behavioural difficulties including truancy, smashing windows, cutting his fingers, and writing messages in blood and was expelled on multiple occasions. As a result of his behaviour, he was sent to a secondary school for students with behavioural difficulties.
The applicant commenced using cannabis around 13 years of age and became dependent on it between the ages of 17 and 22. He reported that he had used cannabis to help him cope with symptoms of mental illness and poor body image. He also abused alcohol from the age of 16, with occasional blackouts from binge drinking. On a few occasions during his youth, he used other illicit substances including heroin, cocaine and psilocybin, Lysergic Acid Diethylamide and amphetamines. He reported abusing benzodiazepines when unwell. There is no history of habitual use of substances other than cannabis and alcohol and no history of intravenous drug use.
The applicant has a history of unstable employment. He has worked in a supermarket, as a shoemaker, printer and motor vehicle detailer and in cleaning roles. His employment was frequently terminated for reasons related to his alcohol and cannabis use. He was in receipt of a Disability Support Pension prior to the index offending.
The applicant has no previous criminal convictions. He was charged in 2001 with assault with a weapon and possession of a prohibited weapon (a knife). He was released without conviction on an undertaking for a period of two years, with special conditions as to remaining in treatment and obeying the lawful directions of his case manager. In the same year, he reports fashioning a bow and arrow out of bamboo as a weapon and threatening to kill his mother. He was charged in relation to this incident, but it was later withdrawn. He also reports once pushing his mother off her feet, and damaging property whilst arguing with her under the influence of alcohol and cannabis. He has no known history of intimate partner violence.
The applicant has had two year-long relationships with women in his adult life. He is not currently in a relationship. He has two adult sons and continues to have a positive relationship with their mother, his ex-partner. He does not have contact with a third son, who was born to another woman with whom he had a brief relationship. The applicant’s second son was diagnosed with schizophrenia and substance use disorders and experienced homelessness. The applicant’s maternal uncle and grandfather were reported by his mother to have been diagnosed with schizophrenia.
In 2001, aged 20 years old, the applicant suffered a psychotic episode and was admitted to a psychiatric facility in Parkville where he was first diagnosed with schizophrenia, paranoia and psychosis.
Between 2002 and 2005 the applicant had approximately seven admissions to inpatient psychiatry units in the context of drug abuse and medication noncompliance. He reported that he engaged in reckless substance use when unwell. He also engaged in reckless and self-harming behaviours. On one occasion, he climbed onto a roof to serenade his female neighbour whilst experiencing auditory hallucinations involving a woman’s voice and suggestive sexual content. Police were called and he was subdued with capsicum spray. On another, he held a razor blade to his wrist and attempted to hang himself after experiencing command auditory hallucinations instructing him to kill himself.
In February 2005 during an admission to the Royal Melbourne Hospital the applicant commenced clozapine, an antipsychotic used in treatment-resistant schizophrenia. This was after a period where his continued thought disorder, disorganised behaviour, bizarre delusions, and auditory hallucinations had not responded to treatment with the antipsychotic olanzapine. He was then transferred to a mental health residential facility in Norfolk, where he resided from February to December 2005 whilst transitioning to independently living in a flat in suburban Melbourne.
At the time of the index offence, the applicant had been residing in the suburban flat with the deceased and receiving mental health support from his local area mental health service. He was reported to have been non-adherent with his prescribed clozapine for some months prior to the offending due to an ongoing belief that the deceased had taken his medications from him. The applicant had also previously reported animosity between himself and the deceased. He reported being frustrated, worried and angry since he began living with the deceased and having had difficulty raising concerns and adequately asserting himself.
Notably, in August 2005 (some four months prior to the index offending), the applicant was re-admitted to the Royal Melbourne Hospital for five days due to violent thoughts of self-harming and harming others including the deceased, following his non-adherence with medication and increasing alcohol use. The applicant was discharged and continued to share the accommodation with the deceased until the index offence occurred.
The applicant has resided at Thomas Embling Hospital (‘TEH’) since being placed on the CSO in December 2006. He was initially admitted to an acute unit. He has since progressed through various units at TEH, returning from a rehabilitation unit to a subacute unit in 2010 for a three year period when his symptoms worsened and he was expressing paranoid beliefs towards other patients.
The applicant initially presented to TEH with residual manifestations of schizophrenia including heightened anxiety, perceptual disturbances, thought insertion and paranoid fear of a co-patient. His symptoms were observed to increase in response to stressors in family relationships. He underwent neuropsychiatric testing which indicated a poor memory for lengthy and complex verbal information. He also demonstrated mild executive dysfunction, reduced self-monitoring and inhibition.
Earlier in his admission, the applicant was involved in some incidents of interpersonal violence. He reportedly injured two staff members while they attempted to restrain and seclude him, made indirect threats to a staff member on another occasion, punched and pushed co-patients and punched a wall and kicked a window. He once engaged in socially inappropriate behaviour with a female staff member in 2016. There have been no recent reported incidents of this nature.
The applicant has been involved in two incidents of unsanctioned substance use since being placed on a CSO. In November 2014, he consumed alcohol at a family event whilst on accompanied leave. In April 2015, his tobacco pouches returned a positive swab test for ephedrine. His leave was suspended following this incident, but reinstated after two weeks. No deterioration in his mental health was noted in relation to these incidents. He continues to submit to random alcohol breath testing and urine drug screening and there have been no other reported incidents of substance use.
In addition to paranoid schizophrenia, the applicant also fulfils diagnostic criteria for Social Anxiety Disorder. He has engaged in intensive treatment with a psychologist, targeting anxiety management. There has been a reduction in the intensity of his anxiety and psychotic experiences.
The applicant receives medical treatment for hypertension, hypercholesterolemia, and gastro-oesophageal reflux disease. He has had access to a general practitioner in the community since August 2021. He has suffered from obesity and intermittent back pain, which were addressed by dietary advice and encouragement to exercise along with pain relief as required. His recent engagement in exercise has prompted him to lose some weight.
The applicant’s mental state has been stable since 2013, and he has not demonstrated significant deterioration in his mental state in the past 12 months. He has remained largely adherent to clozapine and other antipsychotic medications used to augment his treatment. His symptoms have reduced over time in response to consistent adherence to antipsychotic medication, abstinence from substance use and psychological and psychosocial rehabilitation interventions.
He has also developed insight into the role of consistent adherence to medication and abstinence from substance use to maintain his mental health. He has expressed remorse for the offence and acknowledged the impact it has had on his family and the deceased’s family. He also reported demonstrating a capacity to use positive affirmations (such as ‘This will be ok. This will pass. Nobody’s going to get hurt’) to respond to his single remaining attenuated psychotic symptom, being visual hallucinations/disturbances.
The applicant transitioned to the Jardine Unit (an intensive rehabilitation and independent living unit located just outside the secure perimeter wall of the hospital) in July 2017 and presently resides there four nights a week. He commenced off-ground leave[12] to the Austin Health’s Community Recovery Program (‘CRP’) in November 2020, and now resides there three nights each week. The CRP is a supported living environment with a case manager and resident psychiatrist. The applicant shares a flat with a former co-patient and is expected to attend regular group programs.
[12]Act, see s 53(b).
Contemporary psychiatric evidence
The Court has received three expert reports prepared for the purposes of this application. They are the psychiatric reports of Drs Elena Bhattacharya and Gregory Lysenko, respectively dated 1 June and 9 June 2022 and a case management report of Mr Thomas Crawford dated 10 June 2022.
Dr Bhattacharya’s report
Dr Bhattacharya is the staff specialist in forensic psychiatry practising at the Jardine unit of TEH. She has been the applicant’s treating specialist since 31 May 2021. She met the applicant on several occasions, including to assist in the completion of her report. Her report supports the application for extended leave.
Dr Bhattacharya refers to an updated assessment of the HCR-20, a tool for assessing the risk of violence in adults, administered by a clinical psychologist to the applicant in May 2022.
The applicant rated on seven out of 10 items in relation to historical risk factors, including violence, problems with relationships, problems with employment, substance use, mental disorder, traumatic experiences, and treatment/supervision response, and partially on one item, violent attitudes.
Regarding the clinical risk factors, the applicant rated partially on three out of five items, including insight, cognitive instability and treatment/supervision response.
Regarding the future risk factors (with a view to being put in the community), the applicant rated partially on three out of five items, including personal support, treatment/supervision response and stress and coping.
The applicant’s profile of historical risk factors indicates a high baseline risk for violence. However his recent presentation and the evaluation of his likely circumstances as an inpatient on the Jardine Unit being granted extended leave in the community indicate that he has a moderate risk of engaging in further violent behaviour within the medium- to long-term. His risk of imminent violence is low due to the stability of clinical factors in the last six months.
Dr Lysenko’s report
Dr Lysenko is a psychiatry registrar in Forensicare’s Community Treatment and Transition (‘CTT’) team. He has been involved in the applicant’s care since February 2022 and reviewed the applicant face-to-face and via telephone on four occasions.
Dr Lysenko supports the application for extended leave on the basis that the applicant does not pose a risk of serious endangerment to the public.
The applicant was also assessed by Dr Lysenko using the HCR-20. His profile of historical risk factors, noted above, indicated a high baseline risk for violence.
He had a partial presence of four clinical risk factors. These were recent problems with insight (he demonstrated fluctuating capacity to report an awareness of early warning signs of relapse, and whilst he acknowledged his mental health decline following non-compliance with medication he continued to maintain that non-compliance prior to his index offence was secondary to the victim taking his medication and concluded that his risk of violence in future was low as he would not allow for such a thing to occur again), recent symptoms of major mental disorder (ongoing mild visual hallucinations, some limitations with memory and executive functioning secondary to cognitive effects associated with schizophrenia), recent instability (difficulty in maintaining focus/concentration for a sustained period), recent treatment/supervision response (episodes of unintentional medication non-compliance and episodes of missing appointments deemed secondary to cognitive deficits associated with schizophrenia).
There were also three future risk factors. These were future problems with personal support (due to his limited social network), future issues with treatment/supervision response (due to his reliance on staff to maintain adherence to treatment and attend scheduled appointments) and problems with stress/coping (stress vulnerability secondary to cognitive limitations including impairments with working and verbal memory, social cognition, and new learning, as well as ongoing personal stress related to concern for his mentally unwell son). This placed the applicant at a moderate risk of future violence.
Dr Lysenko opines that further violent offending by the applicant would most likely occur in the context of destabilisation of his mental state leading him to develop persecutory delusional beliefs. Destabilisation of his mental state would most likely be precipitated by suboptimal compliance with antipsychotic medication. A return to alcohol and/or cannabis abuse or dependence would further increase the likelihood of violent reoffending.
Dr Lysenko concludes that the applicant’s risk profile is offset by the supports in place; namely ongoing supervision of medication, the use of a medication compliance aid (a Webster pack), routine serum clozapine level monitoring, random urine drug and alcohol breath testing, assistance with attending missed clinical appointments, engagement with vocational and therapeutic activities, receiving additional support from the NDIS, having stable accommodation and support from his family.
Mr Crawford’s report
Mr Crawford is a senior social worker and has been the applicant’s case manager since December 2021. He was also involved in the applicant’s care from December 2018 to June 2019.
The applicant commenced overnight leave at the CRP in December 2020 and gradually worked towards increased overnight leave. Although his transition was interrupted repeatedly due to COVID-19 restrictions, he resumed three overnight leave days in November 2021 without incident.
The applicant has participated meaningfully in programs at the CRP designed to enhance his capacity to function independently in the community; with a focus on budgeting, exercise and art-based work. His employment at a café approximately three days per week and volunteer role at his local Salvation Army store provide his weeks with structure and purpose.
The applicant has demonstrated an ability to maintain his activities of daily living to a high level, with his personal hygiene and the cleanliness of his residence kept to a reasonable standard. He is well supported in the community by his immediate family.
The applicant has difficulties with maintaining compliance with medication and remembering to attend scheduled appointments. This is attributed to long-standing difficulties with his working memory, secondary to his schizophrenia. His treating team has implemented measures (medication being dispensed by staff, and prompts to attend appointments) to assist with these issues.
Mr Crawford supports the application for extended leave.
If granted extended leave, the CTTP would become the applicant’s mental health treating team in the community. The CTTP will review the applicant weekly for at least three months and then fortnightly thereafter. This support can increase if required or as clinically indicated. The applicant’s medication will continue to be monitored and administered by CRP staff. The applicant will also receive assistance keeping track of scheduled appointments, through the provision of written information and notifications via text messages and telephone contact. His NDIS plan and contact with family will be maintained.
Position of the parties
By a consolidated response provided to the Court on 24 June 2022, the parties agree that this application should be determined on the papers.
The Secretary and Attorney-General take the position that the application for 12 months’ extended leave ought to be granted on the conditions proposed in Dr Lysenko’s report.
The applicant also wishes to apply for a suppression order. The Secretary and the Attorney-General do not take a position in relation to the suppression order application. In this regard, the applicant has an anxiety disorder, and his symptoms are exacerbated by stress. He described to Dr Bhattacharya intermittent visual hallucinations of patterns that he is usually able to ignore, but that are more difficult to ignore when he is under stress. It is clear that increased stress and anxiety have a detrimental effect on the applicant’s mental state and overall condition.
Analysis
Having considered all of the evidence, I am satisfied that granting the applicant extended leave would not seriously endanger his safety or that of members of the public. I am further satisfied that the grant of extended leave is consistent with the principle delineated in s 39(1) of the Act, having regard to the matters identified in s 40(1).
While the nature of the index offence, the severity of the applicant’s illness and his history of substance abuse combine to produce some risk in releasing the applicant on extended leave, I am satisfied, for the reasons articulated by those involved in his care that that risk is adequately mitigated.
In light of the evidence of the effect of stress and anxiety on the applicant, I am satisfied that it is in the public interest that a non-publication order pursuant to s 75 of the Act is made.
Conclusion
The Applicant is granted extended leave pursuant to s 57(1) of the Act for a period of 12 months, commencing 1 July 2022, and subject to the following conditions:
(a) The Applicant be under the supervision of the authorised psychiatrist of the VIFMH or their delegate.
(b) The Applicant reside at a location known to and approved by the authorised psychiatrist of the VIFMH or their delegate.
(c) The Applicant abide by the lawful directions of the authorised psychiatrist of the VIFMH or their delegate.
(d) The Applicant comply with treatment and testing and attend appointments as directed by the authorised psychiatrist of the VIFMH or their delegate.
(e) The Applicant abstain from the abuse of alcohol and from the use of illicit drugs.
(f) The Applicant 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 of the VIFMH or their delegate.
Pursuant to s 75(1) of the Act I order that any information that might enable the Applicant in this proceeding to be identified must not be published.
---
0
2
0