Re Or: An application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
[2020] VSC 406
•2 July 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S ECI 2020 01973
| IN THE MATTER of an application pursuant to s 57(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| - and - |
| IN THE MATTER of an application for extended leave by ‘OR’ |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 June 2020 |
DATE OF JUDGMENT: | 2 July 2020 |
CASE MAY BE CITED AS: | Re OR: An application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
MEDIUM NEUTRAL CITATION: | [2020] VSC 406 |
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CRIMINAL LAW – Mental impairment – Application for extended leave pursuant to s 57 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Whether granting the applicant extended leave on the conditions proposed would seriously endanger the safety of the applicant or members of the public – Treating team unanimously supportive of application – Application supported by Secretary to the Department of Health and Human Services and Attorney-General – Application granted – Conditions imposed on extended leave in accordance with leave plan – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 38C, 39, 40, 42, and 57.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J Munster | Victoria Legal Aid |
| For the Secretary of the Department of Health and Human Services | Ms E Frawley | Department of Health and Human Services |
| For the Attorney-General | Mr J Stoller | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
On 23 February 2006, the applicant, OR, killed his father by stabbing him to the chest with a knife (‘the index offence’). At the time, he was acting under the influence of a psychotic illness. The applicant was charged with murder.
On 11 December 2006, a consent mental impairment hearing was conducted in this Court before Coldrey J pursuant to the provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). At the conclusion of the hearing, his Honour directed that a verdict of not guilty because of mental impairment be recorded. On 26 February 2007, Coldrey J declared the applicant liable to supervision under the Act and imposed a custodial supervision order (‘CSO’) with a nominal term of 25 years, commencing on 23 February 2006.
The applicant was admitted under the CSO to Thomas Embling Hospital (‘TEH’) and has remained there since, progressing through the treatment and rehabilitative regime of the hospital, including taking part in escorted and unescorted leave.
By application filed 30 April 2020, the applicant now seeks a grant of extended leave pursuant to s 57 of the Act.
The application is supported by both the Secretary to the Department of Health and Human Services (‘the Secretary’) and the Attorney-General of Victoria (‘the Attorney’). The grant of extended leave is also recommended by the applicant’s treating team. As is the usual course, the Director of Public Prosecutions (‘the Director’) takes no position with respect to the application.
The law
The application for extended leave is made pursuant to s 57 of the Act. Section 57 relevantly provides as follows:
57 Granting of extended leave
(1)An application for extended leave for a forensic patient or forensic resident may be made to the court that made the supervision order to which they are subject—
(a)in the case of a forensic patient, by the forensic patient or the authorised psychiatrist for the designated mental health service;
(b)in the case of a forensic resident, by the forensic resident or the Secretary to the Department of Human Services.
(2)The court may grant an application under subsection (1) if satisfied on the evidence available that the safety of the forensic patient or forensic resident or members of the public will not be seriously endangered as a result of the forensic patient or forensic resident being allowed extended leave.
(3)An application for extended leave can be made and granted more than once.
As explained by the Court of Appeal in NOM v Director of Public Prosecutions (Vic) (‘NOM’),[1] an assessment of ‘serious endangerment’ in s 57(2) of the Act requires the Court to consider both the chance of a harmful incident occurring as a result of the applicant being granted extended leave,[2] and the gravity of the harm that might result if that risk were to materialise.[3] As stated in NOM, a highly probable risk of minor harm may not equate to serious endangerment, while conversely, a mathematically improbable risk of grave harm may satisfy the Court of such a criterion.[4]
[1](2012) 38 VR 618.
[2]Ibid 637 [58] (Redlich and Harper JJA and Curtain AJA).
[3]Ibid 639 [63], quoting Re Percy, Farrell and RJO (1998) 102 A Crim R 554, 566 (Eames J).
[4]Ibid.
Pursuant to s 39(1) of the Act, in deciding whether to grant extended leave to the applicant, the Court is required to apply the principle of parsimony, whereby restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Section 40(1) of the Act outlines the matters to which the Court must have regard when deciding whether to grant extended leave. Those matters 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.
The Court of Appeal considered the interaction between ss 39 and 40(1) of the Act in NOM. Their Honours held that:
Section 39 requires a value judgment informed by the competing considerations stated in the provision. Section 40(1) requires an evaluation of the appellant’s mental condition and progress and an assessment of risk against discrete but interrelated criteria. These assessments call for value judgments in respect of which there is room for reasonable differences of opinion. No particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The discretionary character of the decision is not displaced by the mandatory requirements that the judge ‘must apply’ the principle in s 39 or ‘have regard to’ the factors in s 40.[5]
[5]Ibid 633 [47] (citations omitted).
More recently, this Court has applied the method described by the majority of the Court of Appeal in the matter of Hammond v Secretary to the Department of Health and Human Services[6] to applications for extended leave under s 57 of the Act. As stated by Taylor J in Re CJC (‘CJC’):[7]
… in relation to an application for extended leave, the court must consider the ‘critical issue’ as to whether it is satisfied that the safety of the community or the applicant will not be seriously endangered if the application is granted and, when doing so, take into account the s 40(1) factors and apply the principle in s 39.[8]
[6][2018] VSCA 356 (Priest and T Forrest JJA, Macaulay AJA) (‘Hammond’).
[7][2019] VSC 508 (‘CJC’).
[8]Ibid [13], citing Hammond (n 6) [44] and Re GB: An application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 [2019] VSC 4, [21]–[22] (Macaulay J).
Finally, s 40(2) of the Act provides that the Court cannot 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; 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
Section 38C(2)(d) of the Act requires the Director of Public Prosecutions to provide notice of an application for extended leave to family members of the person subject to a supervision order and each victim of the index offence where the granting of the application would ‘significantly reduce the degree of supervision to which the person is subject’. As the present application, if successful, would represent the applicant’s first grant of extended leave and a significant reduction in his supervision, the notification requirement arises.
The affidavit of Julie Carpenter of the Office of Public Prosecutions sworn 12 June 2020 outlines compliance with s 38C(2)(d) of the Act. I am satisfied that reasonable notice of the hearing of the application has been given as required.
The Court has received one report made pursuant to s 42 of the Act, being the report of the applicant’s sister and daughter of the deceased, KR.
In her report, Ms R detailed the impact of the applicant’s previous episodes of psychosis throughout her adolescence, including instances of violence towards herself and other family members prior to the index offence. In particular, she described her repeated experiences of the applicant’s pattern of sustained mental stability followed by rapid deterioration and sudden violence. She expressed fear that the applicant’s present period of wellness will not be sustained if he is permitted to live in the community full time, given the reduction in supervision relative to TEH.
Ms R is opposed to the grant of extended leave. However, she stated in her report that should such a grant be ‘inevitable’, the Court should include as one of the conditions of extended leave a requirement that the applicant be subject to regular drug testing, citing the applicant’s admitted history of cannabis use, as well evidence of abuse of other substances such as methamphetamine.
In her report, Ms R lamented the length of time she had had to prepare for the hearing, the fact that she and her mother were not legally represented, and the fact that she had not had access to the expert reports or the details of the supervision order upon which the applicant is currently held. In light of her attitude to the application and misgivings expressed in her report, steps initiated by the Attorney were taken to ensure that Ms R was aware of her right to seek leave to appear and be represented at the hearing.
Ms R attended the hearing via audio-visual link. At the commencement of the hearing I took up those matters with her. She indicated that she did not at that time wish to seek legal representation. She was then present throughout the hearing. At its conclusion, I asked her whether she sought to make any further representations or to seek time to be legally represented. She declined the offer, indicating that she did not consider it to be in anyone’s interests for her to seek to be a party to the proceedings.
Applicant’s psychiatric history and the index offence
The applicant is now 45 years old. He has an established diagnosis of schizophrenia dating back to when he was 21 years old and first demonstrated symptoms of paranoid and religious delusions. He was first introduced to cannabis at age eight and, following a period of abstinence, re-commenced the use of that drug at 16, which escalated to daily use by the age of 18.
In the following years, the applicant alternated between periods of relative stability and relapse, requiring admission to a range of inpatient psychiatric services and the imposition of several Community Treatment Orders. He was alternatively diagnosed with schizoaffective disorder, as well as cannabis dependence. Despite being treated with antipsychotic medications and electroconvulsive therapy, his response was compromised by poor compliance with medication, ongoing cannabis use and limited insight. He continued to experience persecutory delusions and auditory hallucinations, involving beliefs that his family members were evil, leading to incidents of violence, including an occasion in 1997 when he held a knife to his mother’s throat and punched holes in the walls of the family home, and another instance in 2001 in which he attempted to strangle his uncle.
In the days prior to the index offence, the applicant’s psychotic symptoms included delusional beliefs that his father was the devil and that he wanted to harm the actress Angelina Jolie and her unborn baby whom he believed to be Jesus. He became convinced of the need to kill his father on the night prior to the index offence and, having failed to sleep, carried out his attack in the family home on the morning of 23 February 2006, in the presence of both his sister and mother. His sister bravely attempted to intervene and protect her father, resulting in her being stabbed once in the leg.
The applicant has had no contact with either his mother or sister since the index offence.
Treatment and behaviour at TEH
Despite being trialled on a range of antipsychotic medications following his admission to TEH, the applicant’s psychotic symptoms persisted between 2007 and 2009, and he exhibited a lack of routine and motivation in relation to his recovery. A transfer to the low-medium Daintree Unit in 2008 was followed by a relapse into psychotic symptoms and a return to an acute unit for stabilisation. A later transfer to a lower level unit preceded a further relapse. In 2009 whilst in an acute unit, the applicant assaulted a staff member as a result of the delusion that the victim had placed a curse on his room.
There were two unsuccessful trials of the ‘gold standard’ antipsychotic clozapine, and then a third trial in August 2009. This trial did not bring instantaneous success by any means, and problems with side-effects and ongoing psychotic symptoms persisted for a time. However, the applicant remained compliant, and by 2012, he had stabilised on a moderate dose of clozapine accompanied by the use of antidepressant and other medication. His mental state had markedly improved and his psychotic symptoms resolved. His engagement with TEH staff and participation in psychology groups was noted to also improve, allowing his progression to the TEH Jardine Unit, a low secure, mixed gender rehabilitation and independent living unit outside the TEH perimeter wall. The applicant first obtained unescorted leave from the TEH campus in November 2011.
The initial transfer to the Jardine Unit was not a success, leading to a return to the Daintree Unit in 2014. This transfer was perceived by the applicant as a backwards step, and he began to experience low mood which escalated to a suicide attempt in May 2014 whilst on unescorted leave. The applicant was subsequently admitted to TEH’s Bass acute mental health unit but eventually progressed back to the Jardine Unit in February 2018.
Throughout much of this period, despite progress on many levels, the applicant remained reluctant to discuss the index offence or his psychiatric history and continued to experience complicated grief related to the death of his father and consequential estrangement from his mother and sister.
Upon his return to the Jardine unit, the applicant established links to the community, including undertaking volunteer work at a Red Cross opportunity shop and the completion of a certificate IV in information technology. In April 2018, he formally changed his first name in response to the fact that internet searches of his name readily identified his commission of the index offence.
Contemporary psychiatric evidence
Three expert reports were filed with the Court and tendered during the hearing of the application. These were the reports of Dr Tessa Daws, dated 20 May 2020, Dr James Belshaw, dated 20 May 2020, which includes a leave plan in accordance with s 57A of the Act, and Ms Donna Melia, dated 15 May 2020.
Dr Daws has been the applicant’s treating psychiatry registrar at the Victorian Institute of Forensic Mental Health (‘Forensicare’) since February 2020 and is supervised by consultant psychiatrist Dr Jerome Nicholapillai, who has been the applicant’s treating psychiatrist since August 2018. Dr Belshaw is a consultant psychiatrist within Forensicare’s Community Treatment and Transition (‘CTT’) team who has been involved in planning for the applicant’s extended leave application since October 2019. Ms Melia, a senior mental health clinician/nurse, is the applicant’s case manager within the CTT team at Forensicare.
Report of Dr Daws
Dr Daws’ report confirmed that the applicant’s mental state has remained stable in the last 12 months as he continues to be treated with 475mg of clozapine, 150mg sertraline antidepressant, and 100mg of lamotrigine mood stabiliser daily. Dr Daws advised that the applicant is compliant with his medication and remains abstinent from alcohol and illicit substances. Her report noted that the applicant expresses an understanding of the benefits of his medication and demonstrates good insight into his illness and the early warning signs of relapse.
Dr Daws reported that the applicant engages well with his treating team to consolidate his skills in managing distress and identifying early warning signs of relapse. He participates in fortnightly psychology sessions centred on emotional awareness, the impact of the index offence on others, and his relapse prevention plan. Despite improvement in this domain, Dr Daws opined that the applicant continues to utilise strategies of avoidance and denial to manage emotions associated with the loss of his family. He has, however, formed friendships with a number of fellow patients during his time at TEH, and enjoys social interactions with clients of The Austin Community Recovery Program (‘CRP’) and other volunteers at the Red Cross opportunity shop where he continues to work.
The applicant continues to pursue further studies, having completed a certificate IV in bookkeeping in 2019, and recently commencing a bachelor’s degree in accounting. He has also engaged with a job agency with the aim of obtaining part-time employment in the community once COVID-19 restrictions are lifted. At present, he is financially supported by the disability support pension and additional funding under the National Disability Insurance Scheme (‘NDIS’).
With respect to risk assessment, Dr Daws relied upon the results of an assessment completed by Jardine Unit forensic psychologist, Dr Alison Barber, in May 2020. She set out the applicant’s historical risk factors which include previous episodes of violence, a history of substance abuse and major mental disorder, difficulties in relationships, and previous issues with treatment and supervision response. Positively, however, she noted that the applicant does not evidence any history of entrenched violent attitudes in the absence of psychotic symptoms.
Dr Daws advised that at present, the applicant continues to demonstrate some dynamic risk factors which remain key targets of psychological intervention, including his tendencies to make impulsive decisions and to avoid negative emotional states. Dr Daws described risk factors in the event of his release on extended leave as including partial difficulties with treatment and supervision response, stress and coping, and personal supports. Despite these residual difficulties, Dr Daws anticipated that the applicant will continue to engage with clinicians in a forthcoming manner and noted no concerns related to his professional supports or accommodation arrangements.
Based on the foregoing, Dr Daws expressed the opinion that the applicant’s risk of violence, including self-harm, over the next six to 12 months is low. That risk would likely increase should his mental state deteriorate or in the event of a significant change in his social circumstances. According to Dr Daws, such risk can be mitigated by ongoing psychiatric care.
Her report noted that the applicant speaks optimistically about the future and expresses gratitude for his treatment and a desire to move forward. Positively, he describes an aspiration to help others, and to this end, has served as a representative on the Consumer Advisory Group within TEH and recently volunteered to share his experiences as part of the Royal Commission into Victoria’s Mental Health System. Dr Daws indicated that the applicant demonstrates good judgement in his plans for extended leave, reciting his ‘three rules’ for transition to full-time community living, specifically, medication compliance, abstinence from alcohol and drugs, and keeping ‘the lines of communication open’.[9]
[9]Exhibit B [62].
With ongoing treatment, including continued adherence to medication and psychological supervision, Dr Daws was of the opinion that the safety of the applicant and members of the public will not be endangered as a result of him being granted extended leave. On this basis, Dr Daws advised that the applicant’s treating team supports the application for extended leave.
Report of Dr Belshaw
Dr Belshaw stated that the applicant was first referred to the CTT team in April 2019, and following an in-depth assessment, was deemed appropriate for allocation to a CTT psychiatrist and case manager. The applicant’s attendance at CTT appointments has been excellent, with the applicant displaying an openness to working with the CTT and Austin CRP teams to progress to full-time community living. Dr Belshaw confirmed that there have been no issues of treatment non-compliance or substance abuse since he became involved in the applicant’s care.
Dr Belshaw remarked positively with respect to the applicant’s weekly routine, comprising two weekly shifts at the Collingwood Red Cross opportunity shop, three nights’ leave at The Austin CRP, fortnightly individual psychology sessions, weekly appointments with an NDIS support worker, regular study towards his accounting degree, and social games of golf with friends. The applicant has impressed his treating team with his capacity to adapt this routine to the lockdown restrictions imposed in response to COVID-19, including engaging in daily online study and maintaining contact with his NDIS support worker and Austin CRP clinician via videolink and telephone.
Dr Belshaw advised that the applicant will reside at The Austin CRP if granted extended leave, where he will be provided greater opportunities for off-campus leave and community engagement in comparison to TEH. Dr Belshaw explained that responsibility for prescribing and monitoring the applicant’s medication would shift to The Austin CRP on extended leave, while the applicant would maintain access to the CTT team through ongoing reviews and bi-monthly collaborative meetings held between the two services. The applicant has been supported to register with a community general practitioner in preparation for extended leave and would continue to undergo monthly blood testing and annual cardiac investigations overseen by the CTT team in support of his clozapine treatment.
Dr Belshaw expressed the opinion that the applicant presents a low risk for future violence, describing the applicant’s protective factors as his good level of insight, compliance with medication, sustained remission of symptoms associated with his mental illness, absence of violent ideation, and his eagerness to engage with the CTT and Austin CRP teams.
Dr Belshaw stated that despite the applicant’s unsteady early progress through the forensic system, it is to the applicant’s credit that:
…in the preceding four years he has been able to gradually work with TEH teams to explore these sensitive issues and learn more adaptive ways of coping, such as talking and mobilising supports. In so doing he was able to complete a number of goals aimed at increasing his readiness for a return to community living and mediate factors associated with a future risk of violence.[10]
[10]Exhibit A [116].
Dr Belshaw concluded his report by stating that the applicant’s mental health and associated risks can be appropriately managed in the community through The Austin CRP, the CTT team, NDIS-funded supports and his local general practitioner. On this basis, he supported the applicant’s application for extended leave, expressing the view that the applicant would not represent a serious endangerment to the public were he to return to full-time community living at the Austin CRP. He provided this opinion with due regard to the altered levels of service provision necessitated by the COVID-19 pandemic.
I note that the proposed conditions included in the leave plan annexed to Dr Belshaw’s report include a prohibition on the use of illicit substances and a requirement that the applicant comply with, amongst other things, testing as directed by the authorised psychiatrist or his or her delegate.
Report of Donna Melia
Donna Melia commenced working as the applicant’s CTT case manager in February 2020 and was previously involved in his care as a nurse on the TEH Daintree unit between 2012 and 2014. She has met with the applicant every two to three weeks since becoming his case manager and has maintained regular phone appointments with him since the implementation of COVID-19 restrictions. Ms Melia reported that the applicant has engaged well in developing a treatment and care plan for his transition to community living, accepts the role of medication in his recovery, and demonstrates an awareness and willingness to engage in regular and ongoing reviews with the CTT team in the event he is granted extended leave.
In the opinion of Ms Melia, the applicant’s graduated transition to three night’s per week of overnight leave at the Austin CRP can be deemed a success. The applicant will be able to reside at The Austin CRP for up to 24 months if granted extended leave and will continue to attend weekly appointments with the CTT team for the first three months, alternating between case management and psychiatric review sessions. CTT appointments would then be reduced in frequency, with the capacity to increase reviews as required. Ms Melia would maintain regular contact with the applicant’s key Austin CRP worker, Mr Daniel Santosh, while collaborative meetings between the CTT team, Austin CRP and TEH staff every two months would provide further channels of communication for those involved in the applicant’s care. The applicant’s expressed desire to work towards independent living will be a focus of his treatment once he has had time to adjust to full-time community living.
Ms Melia advised that the applicant has provided his consent for the CTT team to liaise directly with his NDIS supports and general practitioner, and to provide each with a copy of his relapse prevention plan. Further, she confirmed that the applicant would continue to be subjected to random urine drug screening and breathalyser tests if granted extended leave.
Ms Melia concluded her report by stating:
[The applicant] has consistently engaged with the CTTP and has attended regular scheduled appointments. He is accepting of ongoing support, supervision and treatment from the service. Based upon all available information and the management plan that is in place to supervise and monitor [the applicant] effectively, I am in support of his application for Extended Leave.[11]
[11]Exhibit C [69].
The evidence before me
The authors of all three reports were present at Court and available to give evidence during the application. In the end, by agreement, only Dr Belshaw gave sworn evidence.
In his evidence, Dr Belshaw confirmed the correctness of the contents of his report. He provided one update. The report had noted the fact that patients at TEH had had off-campus leave cancelled due to the COVID-19 pandemic. Last week, Dr Belshaw indicated, patient leave away from campus had been reinstated. As a result, the applicant had re-commenced overnight leave at the Austin CRP, where he had stayed on Thursday and Friday evening.[12]
[12]18 and 19 June 2020. The Court was informed by the legal representatives of the applicant on the morning of 2 July 2020 that after the hearing of the application, the applicant had three nights of overnight leave from 24 to 27 June 2020, and day leave on 29 and 30 June 2020.
Dr Belshaw informed the Court of the manner in which the applicant has received his medication in recent years. He does so independently and without prompting through the use of a medication dispenser known as a Webster-pak. Currently there are random checks by Forensicare staff to ensure compliance. Random checks would continue from staff at The Austin CRP should extended leave be granted.
Dr Belshaw confirmed that his opinion as to the overall risk of future violence posed by the applicant as being low as set out in his report[13] would not change in the event of extended leave being granted.
[13]Exhibit A [10].
Dr Belshaw was asked about the concerns expressed by Ms R in her report. He said that in response, he proposed giving the applicant an instruction under the conditions not to contact any family member unless having first discussed the matter with Forensicare.
When asked to explain in brief terms why he supported the applicant’s application for extended leave, he stated:
I believe that [the applicant] has successfully engaged with and completed a number of required factors related to his forensic rehabilitation, such that the current level of restriction imposed upon him requiring him to reside within a unit at the Thomas Embling Hospital is no longer required and that future recovery goals can only be achieved in a less restrictive setting, with added inputs and supervision still from a specialist forensic community mental health service. Which is what my team, Forensicare’s community treatment and transition program will provide.[14]
[14]Transcript 19-20.
Dr Belshaw provided detailed information to the Court about The Austin CRP. It is a 22 bed mental health residential centre, comprising single and double occupancy flats. It is staffed 24 hours a day with a multidisciplinary team including a treating psychiatrist. Should the applicant be granted extended leave, he would be allocated a key mental health clinician with whom he would have regular contact, daily contact with another allocated staff member, and regular reviews with the psychiatrist or psychiatric registrar. There would be a range of rehabilitative and other programs available. Forensicare would remain the treating team. Dr Belshaw would therefore remain responsible for the applicant’s medication dosages and compliance with medication, and abstinence from alcohol and drugs.
In cross-examination by Mr Stoller for the Attorney, Dr Belshaw was asked about the fact that his risk assessment was based on a three to six month period. He pointed out that ‘there’s a constant reanalysis of the risk assessment and the contemporaneous variables throughout the period of community transition’.[15]
[15]Transcript 25.
Dr Belshaw indicated that he had noted the concern expressed by Ms R as to the fact that the applicant in the past had had periods of stability followed by instances of deterioration. One of the key factors in his supporting the application was the fact that in the past, three things were missing which were now present. These were years of successful treatment with clozapine and sustained remission of his illness, a consistent high level of monitoring and structured support from a tertiary mental health team, and stability of accommodation and geographic location. The applicant has all of those things now, and that would continue to be the case if extended leave was granted.
In cross-examination by Ms Munster for the applicant, Dr Belshaw indicated that the applicant had spent three nights a week at The Austin CRP between May 2019 and March 2020 until the recent restrictions.[16] In that time there had been no issues or concerns expressed by any person working with him. Furthermore, the applicant had made significant gains in his time since living in the Jardine Unit from February 2018. That unit is quite similar to The Austin CRP unit in terms of physical security.
[16]I note that in the report of Dr Daws at paragraph 46, it was indicated that whilst the applicant was accepted into the program in mid-2019, he did not commence overnight leave at The Austin CRP until 2 August 2019.
Dr Belshaw made it clear that in the applicant’s progress through the acute units through to the Jardine Unit, and the leave that that process entailed, community safety has been at the forefront of every decision by either internal leave review committees or the Forensic Leave Panel.
As for the decision by Dr Belshaw and others to support the current application, that was one that was not taken lightly, and required a review of the applicant’s entire history. The applicant has completed all of the recovery goals available to him in the current level of restrictions and to continue his rehabilitation, it will be required that he be transitioned to a less restrictive environment such as The Austin CRP. Indeed, it would be counter-productive to his rehabilitation were he to remain at the Jardine Unit.
An important factor in the recovery of the applicant is the insight he has developed into his illness and active symptoms and the risk of violence, and therefore, his need for ongoing medication and to abstain from the use of illicit substances. He understands the direct connection between his stability and compliance with treatment and the safety of others and himself.
The applicant has also developed insight into the index offence, and expressed regret and grief about what occurred.
He has been compliant with medication, and:
has an evident and characteristic relapse profile which is something that we could monitor. Such that we would pick up any early warning signs, any subtle, early changes with regards to deterioration in mental state.[17]
[17]Transcript 34.
Regular urine screens would continue to be performed at The Austin CRP. There have been no issues in respect of illicit drug use by the applicant at TEH or when he has been on overnight leaves.
In response to some questions from me, Dr Belshaw indicated that since the applicant was stabilised on his current medication in 2012, there have been no instances of his failing to abide by the requirement to take clozapine. Furthermore, since the time in 2014 when he absconded and self-harmed, there have been no significant problems in his ongoing treatment. As for psychotic symptoms, there has been no recurrence since 2009.
In respect of the risk of violence to family members, in light of the conduct of the applicant in the past, Dr Belshaw said he did not perceive a risk as long as the illness of the applicant is controlled and proximity is restricted.
Submissions of the parties
Ms Frawley’s economical but thorough submissions addressed the relevant considerations and legal requirements by direct reference to identified portions of the statements of the experts. She invited me to accept the expert evidence as to risk. In the circumstances, it is unnecessary for me to summarise her submissions. To my mind, she put forward a compelling case for the granting of extended leave in this case.
Mr Stoller for the Attorney had nothing to add to Ms Frawley’s submissions, and confirmed that the position of the Attorney remained that the application for extended leave should be granted.
Ms Munster for the applicant, again in very effective manner, submitted that the proper outcome of the application was clear, based on the unanimous expert opinions placed before the Court. The application for extended leave should be granted.
Analysis
The question for me is whether I can be satisfied on the material before me that the safety of the applicant or members of the public will not be seriously endangered if the applicant is allowed extended leave. That assessment requires me to consider both the chance of a harmful incident occurring as a result of the applicant being granted extended leave, and the gravity of the harm that might result if that risk were to materialise.
As was pointed out by Taylor J in CJC, based on what the Court of Appeal had said in NOM:
What is required is not that the psychiatric evidence guarantees the absence of risk, but rather a judicial approach to the assessment of risk, with the benefit of expert opinion, in considering the principles and factors mandated by the combined operation of ss 57(2), 39 and 40(1) of the Act.[18]
[18]CJC (n 7) [90].
As pointed out by Ms Frawley in her submissions, Dr Belshaw directly addressed the particular question I must decide when he stated in his report, ‘I believe that [the applicant] will not represent a serious endangerment to the community were he to return to full-time community living at The Austin CRP’.[19]
[19]Exhibit A [119].
The expert reports in this case throw substantial and unanimous light on many of the matters for consideration under s 40(1) of the Act.
The nature of the applicant’s mental impairment is clear. Dr Belshaw reached a diagnosis of schizophrenia, which is now in sustained remission. In respect of the relationship between the impairment and the offending conduct, that is equally clear. Dr Daws noted, as is clearly the case, that the Court when sentencing the applicant accepted that he had an established history of schizophrenia and that he had been experiencing an acute psychotic episode at the time of the index offence. The direct link between the delusions suffered at the time by the applicant and his conduct in killing his father is uncontroversial.
Turning to the matters contained in parts (c) and (d) of s 40(1), Dr Belshaw opined in his report:
In considering the current and historical risk issues together with the proposed move to The Austin CRP in the event that Extended Leave were to be granted, it is my opinion his overall risk for future violence was low.[20]
[20]Ibid [110].
He gave sworn evidence before me that were I to grant extended leave, the risk of future violence would remain low.
Dr Daws indicated that the risk of the applicant perpetrating violence over the medium term, that is, the next six to twelve months, was assessed by her as being ‘overall low’.[21]
[21]Exhibit B [68].
Dr Daws also assessed the applicant’s risk of self-harm or suicide in the short to medium term as being low.[22]
[22]Ibid [70].
I note the fact that the sister of the applicant provided a report to the Court in which she set out, in very clear, forceful and impressive terms, why she opposed the grant of extended leave to the applicant. I commended Ms R for the quality of her report during the application, and informed her that I would carefully take the contents of the report into account in reaching my decision in this case. That, of course, is what I am required to do under s 40(2)(d) of the Act.
The sentiments expressed by Ms R are entirely understandable in the circumstances, as are her misgivings about the lack of information she has been provided about what has been happening over the years with her brother. I would respectfully suggest that in future, the concerns she has raised be addressed by the authorities in contact with her, in the hope that she may feel more comfortable about the steps taken in future aimed at fostering the continued rehabilitation of the applicant.
Notwithstanding the strong concerns expressed by Ms R, which of course principally flow from her knowledge and experience of events leading up to and including the index offence, the expert material before me would fully warrant the conclusions that for a number of years now, the applicant has been stabilised on medication which has suppressed the symptoms of his psychotic illness and controlled any disturbance of mood, and that he has been fully compliant with that medication. Those facts are consistent with the good degree of insight the applicant now possesses as to his illness, its possible effects upon his behaviour, and the resultant need to continue to take his medication and comply with treatment and other measures put in place.
As to the issue of whether or not there are adequate resources available for the treatment and support of the applicant in the community, there was abundant evidence in the expert material showing the high level of monitoring, supervision, treatment and support which would continue to be provided to the applicant should a grant of extended leave be made. This, along with the detailed knowledge now possessed by the supervising practitioners and the applicant as to his early warning signs, should go a long way to ensuring that any possible future relapse by the applicant would be detected and be able to be dealt with at an early time.
The expert material was clear as to the fact that the applicant has achieved all that he can with the current level of restrictions. To continue his rehabilitation, it will be necessary for him to be transitioned to a less restrictive environment such as The Austin CRP. In fact, it would be counter-productive to his rehabilitation were he to remain at the Jardine Unit of TEH.
In this case, it is undeniably the case that the gravity of the harm that might eventuate should there be a resurgence of psychotic symptoms in the applicant is high. Against that, the evidence warrants a finding that the likelihood of such an eventuality is low.
After a careful consideration of the available evidence, having had regard to the factors set out in s 40(1) and applying the principle of parsimony set out in s 39, I am satisfied pursuant to s 57(2) of the Act that the safety of the applicant or members of the public will not be seriously endangered as a result of him being allowed extended leave. I therefore grant his application for extended leave.
Orders
Accordingly, I make the following orders:
1 . The application for extended leave under section 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) is granted for a period of 12 months commencing on 2 July 2020 on the following conditions:
a) That the applicant be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (‘VIFMH’) or his or her delegate;
b) That the applicant reside at a location approved by the authorised psychiatrist of the VIFMH or his or her delegate;
c) That the applicant abide by the lawful directions of the authorised psychiatrist of the VIFMH or his or her delegate;
d) That the applicant comply with treatment and testing and attend appointments as directed by the authorised psychiatrist of the VIFMH or his or her delegate;
e) That the applicant abstain from the abuse of alcohol and the use of illicit drugs; and
f) That the applicant not leave the State of Victoria without the written permission of the authorised psychiatrist of the VIFMH or his or her delegate. This includes overseas travel which must be approved by the authorised psychiatrist of the VIFMH or his or her delegate.
I further note that on 23 June 2020, I made orders suppressing publication of the evidence in the proceeding or any other material which might enable the applicant or any person who appeared, gave evidence or provided a report in the proceeding to be identified. Those orders were expressed to apply until further order.
Finally, I note that in the ordinary course of events, the transcript of the proceeding will be prepared and made available to the parties.