Re Ng (a pseudonym)
[2018] VSC 346
•29 June 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2018 2316
| IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) | |
| and | |
| IN THE MATTER of an application for revocation of a non-custodial supervision order by JASON NG (A pseudonym) | |
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JUDGE: | HOLLINGWORTH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 June 2018 | |
DATE OF RULING: | 29 June 2018 | |
CASE MAY BE CITED AS: | Re Ng (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VSC 346 | |
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CRIMINAL LAW – Crimes Mental Impairment – Application for revocation of non-custodial supervision order – Whether the applicant is or would be likely to endanger himself or others if order revoked – Revocation application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Secretary to the Department of Health and Human Services | Mr S Moglia | Department of Health and Human Services |
| For the Attorney-General for Victoria | Ms J Greenham | Victorian Government Solicitor’s Office |
| For the Director of Public Prosecutions | Ms K Maikousis | Office of Public |
HER HONOUR:
Introduction
In December 2012, the applicant, while experiencing an acute psychotic episode, stabbed his then wife (‘the victim’) several times with a pocket knife. Afterwards, he attempted to commit suicide by consuming weedkiller.
In February 2014, the applicant was found not guilty of attempted murder by reason of mental impairment. In March 2014, he was placed on a non-custodial supervision order for a nominal term of 12½ years (‘the NCSO’), and committed to the custody of the Victorian Institute of Forensic Mental Health (‘Forensicare’).
By notice dated 18 April 2018, the applicant applied under s 31 of the Crimes (Mental Impairment Unfitness to be Tried) Act 1997 (‘the Act’) for an order revoking the NCSO. The revocation application came on for hearing before me on 25 June 2018. At the hearing, the applicant also made an oral application for a suppression order under s 75 of the Act, to prohibit publication of any information that might enable him to be identified.
In support of both applications, oral and written evidence as to the applicant’s history and current condition was given by Dr Katinka Morton (a consultant psychiatrist at the NCSO team at Forensicare, who has overseen the applicant’s NCSO since its imposition), Dr Anindya Banerjee (the applicant’s treating psychiatrist at Mercy Mental Health since October 2017), and Ms Abby Mzungu (the applicant’s case manager at Wyndham Community Mental Health Team).
The Secretary to the Department of Health and Human Services (‘the Secretary’), and the applicant’s treating and supervising team, all supported the revocation application and the suppression application. However, the Attorney-General submitted that the NCSO should continue.
At the conclusion of the hearing, I reserved my decision in relation to both applications.
Relevant statutory provisions
Section 33 of the Act provides that on an application under s 31 for revocation of a non-custodial supervision order, the Court has the option to:
(a)confirm the order; or
(b)vary the conditions of the order; or
(c)vary the order to a custodial supervision order; or
(d)revoke the order.
Part 6 includes the principles on which the Court is to act in the course of such application, and s 39 of the Act relevantly 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 a minimum consistent with the safety of the community.
In NOM v Director of Public Prosecutions,[1] the Court of Appeal held that s 39 requires the court to ‘balance the interest of the liberty of the detainee with protection of the community and in doing so assess risk factors which, in turn, depend upon value judgments’.[2]
[1]NOM v DPP [2012] VSCA 198 (“NOM”).
[2]NOM at [21].
Further, when applying s 39, s 40(1) outlines a number of factors that must be taken into account when deciding whether or not to revoke an NCSO. Those factors are:
(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.
In addition, s 40(2) provides that the court cannot revoke an NCSO unless it:
(a) has obtained and considered the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on—
(i) the person's mental condition; and
(ii) the possible effect of the proposed order on the person's behaviour; and
(ab) in the case of a person who is subject to a supervision order, has obtained and considered the report of a person having the supervision of the person subject to the order; and
(b) has considered the report submitted to the Court under section 41(1) or (3) (as the case may be); and
(c) is satisfied that the person's family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and
(d) has considered any report of the family members or victims made under section 42; and
(da) in the case of an application for extended leave—has considered the leave plan filed under section 57A; and
(e) has obtained and considered any other reports the Court considers necessary.
Notification of family members and victims
The DPP filed an affidavit dated 12 June 2018, setting out the measures taken to notify the persons required to be notified under s 38C of the Act. The victim was not notified, because her contact details are not known to police; she is believed to have moved back to the country in which both she and the applicant were born (‘the home country’). Notices were given to the applicant’s current partner and daughter; however, no reports were received in response to those notices.
Matters relevant to risk assessment
The applicant is 37 years old and has been diagnosed with paranoid schizophrenia.
He migrated to Australia in 2003. His parents and younger sister still live in the home country.
The applicant’s first contact with mental health services occurred in his early 20s, when he experienced feelings of depression, following an unsuccessful romance. He was prescribed medication by a psychiatrist, which alleviated the symptoms. One year later, the applicant experienced similar symptoms, without any specific triggers, and was again successfully treated with medication.
Whilst living in the home country, the applicant was reportedly diagnosed with bipolar disorder, having experienced episodes of excessive gambling, increased energy and reduced need for sleep.
The applicant later moved to Scotland, where he married his first wife. However, that relationship broke down, due to the applicant feeling that he had changed sexually. The applicant was prescribed an anti-anxiety medication by his general practitioner.
Following the breakdown of his first marriage, the applicant moved to Melbourne and was involved in two brief relationships. Then he and the victim were introduced to each other via the internet and their respective families. The victim migrated to Australia in 2011, and married the applicant that same year. In 2012, she suffered two miscarriages. The second miscarriage occurred only days before the index offence, at which time tension was heightened, with the victim indicating that she may leave the applicant and return to the home country.
In the lead up to the index offence, the applicant developed a complex delusional system, which focused on a conspiracy against him, and included paranoid delusions that: the victim was conspiring with police to set him up; his private conversations were being monitored; his first wife’s family members were persecuting him; his mother was not safe and needed to return to the home country; the victim had miscarried on purpose; and his friends and customers were making derogatory comments about him, his sexuality, the victim and his mother. The applicant reported some of these concerns to police, but continued to believe that the persecution was continuing through text messages and Facebook.
After his arrest for the index offence, the applicant was initially transported to the Northern Hospital, before being transferred to the Acute Assessment Unit of Melbourne Assessment Prison in late December 2012, where he was trialled on an antipsychotic medication, risperidone. Whilst on remand, the applicant continued to express persecutory delusions about the victim. He believed that all of his problems began with her, and that she had instigated a conspiracy against him, which involved his friends and colleagues.
In January 2013, the applicant was released on bail. He was subsequently placed on a Community Treatment Order, pursuant to the Mental Health Act2014.
In March 2014, following a finding of not guilty by reason of mental impairment, the applicant was placed on the NCSO.
The applicant’s diagnosis is paranoid schizophrenia, which is in partial remission, with minimal residual delusions. At the time of his offending in 2012, he was experiencing an acute episode of persecutory delusions.
During early 2017, the applicant continued to believe that he had been persecuted by the victim at the time of the index offence. He also maintained the belief that the government had participated in that persecution, and that his phone calls were being monitored. According to Dr Morton, these beliefs were not psychotic delusions; rather, they were simply a reflection of his poor insight at that time into his mental illness.
In February 2017, the applicant met his current partner. In April 2017, the applicant informed his NCSO team that his partner was pregnant with their first child. The applicant’s forensic history, his diagnosis and treatment were then discussed with his partner, before the applicant was given permission to relocate with her and her mother to a new suburb.
In September 2017, the applicant sought permission to relocate again, to a private rental property within the area of the Mercy Mental Health Service.
In November 2017, the applicant was again reviewed by Dr Morton, who noted that he appeared mentally stable, and was able to describe his diagnosis as well as the need for long-term treatment. In addition, his insight had developed and he was able to identify his previous symptoms as attributable to his schizophrenia. His insight into his illness has continued to improve since then.
The applicant’s daughter was born in December 2017. The applicant is a devoted father, and his relationship with his partner, her mother and their daughter is described by all the witnesses as being supportive, and protective in terms of his mental health. He does not exhibit any negative thoughts regarding his partner. He also continues to enjoy a close relationship with his family back in the home country.
In December 2017, the applicant started a new delivery business, which is continuing to expand. He has coped well with the substantial stress of setting up a new business.
Both doctors agreed that there is no evidence of any active psychotic symptoms. Although the applicant continues to express doubts regarding the victim’s fidelity, he acknowledges that the conduct of the index offence was grossly inappropriate, and was influenced by his illness. In addition, the applicant has developed greater insight into his illness, acknowledging that he has a chronic illness that requires long-term treatment.
Dr Bannerjee said that if the NCSO was revoked, Mercy Mental Health would continue to provide appropriate services and support to the applicant for at least the next six months, while beginning to transition him towards eventual treatment by a private psychiatrist and general practitioner. Dr Morton accepted that such a treatment plan was appropriate.
The witnesses all believe that the applicant is fully committed to continuing treatment with Mercy Mental Health, and have no concerns that he would discontinue treatment were the NCSO to be revoked.
With respect to risk assessment, Dr Morton adopted the structural clinical judgment in assessing the applicant’s risk of future violence. This methodology identifies variables known to be empirically associated with the risk of future violent offending, and weighs these against other protective factors that might reduce the applicant’s risk.
In the applicant’s case, his diagnosis of paranoid schizophrenia and a history of depressive symptoms are major historical risk factors. He also has a history of difficulties with relationships, and difficulty with his early treatment.
Against those static risk factors are the protective factors, which might mitigate the likelihood of endangerment. He has been fully compliant with medication since 2014, when he was commenced on an antipsychotic depot injection, aripiprazole. Because that is taken by way of monthly injection, his treating team would become immediately aware of any non-adherence with his medication. He has demonstrated adequate insight into his illness, acknowledged the need for long-term treatment, and affirmed a commitment to engage with mental health services out of a strong desire to avoid reoffending. The applicant has also been able to identify his past symptoms as being connected with his psychotic illness, and recognises his risk of relapse if he were to become non-compliant with medication and treatment.
The applicant’s risk of violence is also mitigated by the absence of anti-social behaviour, violent attitude, urges or ideation, or a history of substance abuse. He has been fully compliant with the conditions of the NCSO whilst living in the community since 2014.
In further mitigation of the applicant’s risk is his supportive living arrangement with his partner, her mother and their child. The applicant and his partner have a mutually supportive relationship, and have successfully navigated through the stressful transition to parenthood with the support of his treating team.
The emergence of the applicant’s previous psychotic symptoms occurred in the context of relationship stress. However, over the course of the past year, the applicant has endured significant relationship pressures, including forming a new partnership, and the birth of his first child, without any re-emergence of psychotic symptoms. Although the applicant continues to experience some low-level beliefs regarding the victim’s fidelity, they are no longer powerful and commanding in nature. Neither of the psychiatrists was concerned about those residual beliefs. Moreover, he has demonstrated significant progress whilst on the NCSO, and intends to remain engaged with mental health services.
Balancing these risk factors against the dynamic factors, both Dr Morton and Dr Banerjee described the applicant as presenting a low risk of future violence. Both psychiatrists supported the application for revocation of the NCSO, as did Ms Mzungu.
Reasons for revoking the NCSO
There are two practical reasons why the applicant wants to have the NCSO revoked at this particular time. The first is that he wants to visit his family in the home country, particularly to see his mother who is very unwell, and to introduce his daughter to them. He also wants to give his partner an opportunity to consider the possibility of relocating to the home country, sometime in the future. Additionally, the applicant wants to have the NCSO revoked, in order to reduce the amount of days that he is required to take off work to attend appointments with Forensicare.
Neither of those reasons would justify revocation in themselves, if the applicant was not otherwise well enough to have the NCSO revoked. However, for the reasons already given, his mental health has improved and stabilised to such an extent that he presents a low risk of re-offending.
The terms of the NCSO would permit the applicant to visit the home country with the permission, and under the supervision, of Forensicare. However, Dr Morton explained that a Forensicare-supervised visit would have to be highly structured, and would therefore be inflexible in terms of permitting the applicant to stay longer if his mother’s health declined further.
Neither of the psychiatrists had any concerns about the applicant’s ability to cope with the stresses inherent in overseas travel. Further, because the applicant is very close to his parents and sister, who have all been highly supportive of him throughout his illness, he would be travelling to a protective environment. A supply of his current injectable medicine could be taken to the home country, and administered each month by a local practitioner; it could also be obtained on prescription in that country. The victim lives in a different part of the home country, and the likelihood of accidentally meeting her seems remote. Even if that were to happen, both psychiatrists believed the applicant is well enough to deal with such an event. For those reasons, all of the witnesses supported the proposed trip to the home country, and saw therapeutic benefit in it.
As far as the inconvenience of attending appointments at Forensicare is concerned, none of the witnesses believed that the applicant requires ongoing supervision by Forensicare. They are all of the opinion that he has recovered to such an extent that his treatment needs can be adequately met by Mercy Mental Health, as he transitions back into ongoing support in the general community.
In deciding to revoke the NCSO, I have had particular regard to the following matters (which I am required to consider under ss 39 and 40):
(a) The principle that restriction on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community;
(b) The evidence that, if the applicant is released, there is a low risk of him endangering himself or the community;
(c) The fact that the applicant will continue to be monitored by a local mental health treating team, and that any failure to attend for his monthly injections or treatment would be noted and acted upon; and
(d) The fact that there are adequate resources for treatment and support of the applicant available in the community.
For those reasons, I will order that the NCSO be revoked.
Suppression order application
The applicant sought a limited order under s 75 of the Act, suppressing the release of any information which might identify him. The Secretary supported the application; the Attorney-General expressed no view in relation to it.
Both psychiatrists and the case worker supported the application, for the following reasons. Publicity about something a person did at a time when they were very unwell may be destabilising to the recovery of any person in the applicant’s position, for a variety of reasons. Here, the applicant has worked hard to regain his mental health, and rebuild his life, since the index offence. Establishing a new business, so that he is gainfully occupied and can provide for his family, has been an important part of that recovery process. It is not fanciful to think that publicity about the applicant and his case may be harmful to his new business, and therefore counterproductive in terms of his recovery.
It seems that there has been no previous publicity concerning the applicant or the index offence, notwithstanding the lack of any suppression order to date. So the proposed suppression order would not cause practical difficulties, in that it would not require the media or others to remove or edit existing material on the internet.
There is some force in the Secretary’s submission that some sections of the media seem to regard changes in a person’s status under the Act as newsworthy, even where there has been little or no previous interest in the case. Accordingly, I cannot simply assume that there is no risk of media coverage of my decision to revoke the NCSO, based on the lack of reporting to date.
I propose to make the limited suppression order sought by the applicant. It is in the community’s interests, as well as the applicant’s interests, that he be able to continue the process of recovery and reintegration into the community, without being exposed to publicity.
The suppression order will not prevent the reporting of this case, merely of any details which might identify the applicant.
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