Re or (No 3)
[2025] VSC 78
•6 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECI 2020 01973
| IN THE MATTER of an application for extended leave pursuant to section 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: | On the papers |
DATE OF JUDGMENT: | 6 March 2025 |
CASE MAY BE CITED AS: | Re OR (No 3) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 78 |
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CRIMINAL LAW – Crimes mental impairment – Application for extended leave pursuant to s 57 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Applicant successfully completed most recent period of extended leave - Whether granting the applicant a further period of extended leave would seriously endanger the safety of the applicant or members of the public – Secretary to the Department of Health and the Attorney-General both support grant of extended leave – Application granted – Conditions imposed on extended leave in accordance with leave plan – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 39, 40, 57, 58 and 75.
HIS HONOUR:
Introduction
By an application filed on 13 December 2024, the applicant, OR, applies for a further grant of extended leave pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried Act 1997 (‘the Act’). Were I to grant this application, it would be the fourth grant of extended leave to the applicant.
The consolidated response of the parties provided in an email dated 14 February 2025 indicated that the application is supported by both the Secretary to the Department of Health (‘the Secretary’) and the Attorney-General of Victoria (‘the Attorney’).
The parties indicated in the consolidated response that they would be guided by the Court as to whether the matter should proceed to a hearing or be dealt with on the papers. In light of the circumstances of this case, and the unanimous position of the parties, my view was that it would be appropriate for this application to be determined on the papers.
Background
OR is 49 years old. He has a longstanding diagnosis of schizophrenia or schizoaffective disorder and cannabis use disorder.
On 23 February 2006, while psychotic, OR confronted his father and fatally stabbed him with a large kitchen knife. The incident was witnessed by OR’s sister, who bravely intervened and suffered a stab wound to her left leg as a result, and OR’s mother, who managed to retrieve and hide the knife from OR.
The matter proceeded before the Court as a consent mental impairment hearing and a verdict of not guilty because of mental impairment was directed. On 26 February 2007, the Court declared OR liable to supervision and imposed a custodial supervision order (‘CSO’) with a nominal term of 25 years, commencing 23 February 2006.
Pursuant to the conditions of the CSO, OR was admitted to Thomas Embling Hospital (‘TEH’) as a forensic patient. His overt psychotic symptoms persisted until 2011, and in 2014 he attempted to commit suicide, after absconding during a period of unescorted leave from TEH. However, by 2019, OR’s mental state had stabilised and he was referred to Forensicare’s Community Treatment and Transition (‘CTT’) team, who recommended him for community transition.
The use of the antipsychotic medication clozapine has played an important part in the treatment and stabilisation of OR since his admission to TEH.
In July 2020 OR was granted his first period of 12 months’ extended leave, permitting him to reside full-time in the community in supported accommodation.[1] In July 2021, OR was granted a further period of 12 months’ extended leave, the first period having been deemed a success by OR’s treating team.
[1]Re OR [2020] VSC 406 (Tinney J).
During his second consecutive grant of extended leave, OR transitioned from living in supported accommodation in the community to independent accommodation in the northern suburbs. In April 2022, OR filed an application to vary his CSO to a non-custodial supervision order (‘NCSO’) (‘the variation application’). That application was listed for hearing on 9 June 2022.
On 1 June 2022, just over a week prior to the scheduled hearing of the variation application, in the context of a destabilisation in OR’s mental state, the Chief Psychiatrist suspended OR’s grant of extended leave under s 58(1) of the Act and filed an application for it to be revoked under s 58(4) of the Act (‘the revocation application’). On 9 June 2022 Hollingworth J granted the revocation application, and simultaneously granted leave to OR to withdraw the variation application.
A further grant of extended was made by me on the papers, for a period of twelve months commencing on 15 March 2024.[2]
[2]Re OR (No 2) [2024] VSC 117 (Tinney J).
Applicable legislation and caselaw
The legislation and some of the caselaw applicable to this application was summarised in my decisions in Re Or and Re OR (No 2). I will not set it out here.
The evidence
Two reports were prepared for the purpose of this application. These were
a. Psychiatric Court Report of Dr James Belshaw dated 29 January 2025; and
b. Case Management Report of Ms Ann Walsh dated 29 January 2025.
Dr Belshaw’s report
Dr Belshaw is a consultant forensic psychiatrist within Forensicare’s Community Treatment and Transition (‘CTT’) team, which is responsible for assisting patients applying for extended leave. He has been OR’s allocated CTT psychiatrist since October 2019. Since the most recent grant of extended leave in March 2024, he has reviewed OR on 11 occasions. In the preparation of his report, Dr Belshaw had regard to information gleaned from his reviews, the regular reviews conducted by OR’s case manager Ms Walsh, and a large body of additional material.
Dr Belshaw set out the progress of the applicant in the 12 months preceding the report. During the period, OR remained generally stable and his attendance was excellent, although there were some concerns raised, including OR’s expressed reluctance to remain on clozapine long-term, a positive urine result for cannabis use in August, and OR’s dismissive attitude to the importance of transparency in reporting mental health symptoms to his treating team. In addition, OR admitted having heard ‘voices’ intermittently over the years, but Dr Belshaw considered this to be non-psychotic, and to represent OR’s inner monologue and not a symptom of relapse.
Dr Belshaw conducted a risk assessment of the applicant using the HCR-20. Whilst several historical factors ensured that OR’s baseline risk of violence remained high, a consideration of the overall position, including a number of matters reflecting on the dynamic risk factors, led Dr Belshaw to the view that the applicant’s risk of future violence remains low to moderate.
Dr Belshaw indicated that OR has an established diagnosis of schizoaffective disorder or schizophrenia and a severe cannabis use disorder. He opined that OR’s recovery since the index offence has been underpinned by an apparent remission of positive symptoms following commencement of clozapine, but that nonetheless, he has struggled to regain his independence mainly due to self-destructive behaviour, often when progressing towards less restrictive settings. He expressed the view that CTT is the appropriate service to support the applicant to achieve his outstanding recovery goals, in order to reduce his risk of future violence and provide a platform for him to ‘gradually uncouple himself from forensic services and subsist successfully in the community’.[3]
[3]Dr James Belshaw, Psychiatric Court Report, 29 January 2025 [58].
Dr Belshaw supported OR’s application, and proposed conditions for a further period of extended leave.
Ann Walsh’s report
Ms Walsh, a senior nurse employed by Forensicare, is the applicant’s case manager at the CTT Program (‘CTTP’). She detailed the applicant’s community linkages and activities, which are significant. He has appropriate accommodation and personal support from numerous friends. He manages his finances independently.
In setting out her opinion, Ms Walsh noted:
Throughout this period of Extended Leave, OR has engaged well with the CTTP in attending and meaningfully participating in all scheduled reviews. He has demonstrated an ability to advocate for himself and remains passionate about advocating for the needs of other consumers. He has experienced numerous disruptions in support, care, and planning in relation to his NDIS plan and has coped relatively well with this. OR experienced a lapse in cannabis use and following this he engaged with recommended alcohol and other drug support. OR would benefit from community-based psychological intervention to continue the positive psychological work he engaged in at TEH. He has been cooperative in the initial assessment phase of accessing this support.[4]
[4]Ann Walsh, Case Management Report, 29 January 2025 [27].
Ms Walsh indicated her support for the granting of a further period of extended leave.
Submissions
In his written submissions, Mr Dalrymple, for the applicant, addressed each of the matters to which the Court must have regard under s 40(1) of the Act, including that the applicant is assessed as having a low to moderate risk of future violence, that there are aspects of the applicant’s treatment and his attitude towards it which mitigate the need for community protection, and that the applicant currently has several and adequate supports. He submitted that failing to grant further extended leave would risk stymieing the applicant’s rehabilitation.
Mr Dalrymple also submitted that a further suppression order would have therapeutic benefit to the applicant.[5]
[5] It is not necessary to make a further order; see [34] below.
In their written submissions, Mr Kornhauser, for the Secretary, and Mr Hocking, for the Attorney, both supported the application for a further grant of extended leave.
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 granted 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 Re CJC,[6] based on what the Court of Appeal had said in NOM v DPP & Ors:[7]
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.[8]
[6][2019] VSC 508.
[7][2012] VSCA 198 (Redlich and Harper JJA and Curtain AJA).
[8]Ibid [90].
At the time of the most recent application for extended leave in 2024, I had regard to reports of Dr Belshaw and Dr Rose Clarkson, who at the time was the applicant’s treating psychiatrist at TEH. Both were of the view that a grant of leave at that time would not cause the safety of the applicant or members of the public to be seriously endangered.[9]
[9]Re OR (No 2) (n 2) [40].
Although that question was not specifically addressed in the reports before me on this application, there is nothing to indicate that the position has changed.
The applicant has proceeded through the last 12 months of extended leave in reasonably stable fashion. His psychotic symptoms have been in remission for some years now, and the unanimous view of the experts is that another grant of extended leave should be made.
Having considered the available evidence, and 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 a further grant of extended leave. I therefore grant OR’s application for extended leave.
Orders
Accordingly, I make the following orders:
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 15 March 2025 on the following conditions:
1. 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;
2. That the applicant reside at a location known and approved by the authorised psychiatrist of the VIFMH or his or her delegate;
3. That the applicant abide by the lawful directions of the authorised psychiatrist of the VIFMH or his or her delegate;
4. 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;
5. That the applicant abstain from the abuse of alcohol and the use of illicit drugs; and
6. 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 and 15 March 2024, I made orders pursuant to s 75 of the Act 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. On both occasions, those orders were expressed to apply until further order, and they continue to apply
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