Re P K (No 2)
[2006] VSC 185
•12 May 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 1414 of 1999
NOTE:The name and address of the forensic patient and any information which may identify him or the victim have been suppressed from publication by Order of the Court
IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
- And –
IN THE MATTER of an Application for a Grant of Extended Leave by “PK”
- And -
IN THE MATTER of an Application for Variation of a Custodial Supervision Order to a Non-custodial Supervision Order by “PK”
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JUDGE: | HARPER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 MAY 2006 | |
DATE OF JUDGMENT: | 12 MAY 2006 | |
CASE MAY BE CITED AS: | IN THE MATTER OF “PK” (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 185 | |
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Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Applications for grant of extended leave and for variation of a custodial supervision order to a non-custodial supervision order – Applications granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R. Williams | Mental Health Legal Centre Inc. |
For the Attorney-General (Vic) | Ms F. Ellis | Victorian Government Solicitor |
| For the Department of Human Services | Ms A. Ring | Legal Services, DHS |
| For the Director of Public Prosecutions | Mr P. Raimondo | Stephen Carisbrooke, Acting Solicitor for Public Prosecutions |
HIS HONOUR:
These are applications for, respectively, a grant of extended leave and the variation of a custodial supervision order to a non-custodial supervision order.
On 8 April 1999 the applicant was found not guilty, on the ground of mental impairment, of one count of murder. On that date, a custodial supervision order pursuant to s.26(2)(a)(i) of the Crimes (Mental Impairment & Unfitness to be Tried) Act 1997 was made, committing him into custody in the Rosanna Forensic Mental Health Centre or other appropriate place.
On 30 May 2005 after hearing an application made on 17 May that year, Justice Balmford granted an application by the applicant for extended leave. In accordance with the provisions of the Act, that leave was granted for a period not exceeding 12 months. The 12-month period expires at the end of the present month.
The applicant has accordingly applied for a fresh grant of extended leave pursuant to s.57 of the Act. That application is unopposed by the other interested parties. Among these are the victims and the relatives of the applicant, as well as the Department of Human Services, the Attorney-General and the Director of Public Prosecutions.
In support of the application, I have heard evidence from the applicant's treating and supervising psychiatrist, Dr Nicholas Owens, and the applicant's present case manager, Ms Sophie Shapiro. Both witnesses support the grant of the application and gave what seemed to me to be impressive and convincing evidence backing their opinion that the grant of the application would be beneficial to the applicant. More particularly, I am satisfied on the evidence available that the safety of neither the applicant nor members of the public will be seriously endangered as a result of the application for extended leave being allowed. In those circumstances, I propose to grant that application.
The second application, that for a variation of the custodial supervision order to which the applicant is presently subject is a little more complicated. It was opposed by the Attorney-General in part on the ground - which (for the purposes of the Attorney's position) seems to me to be entirely proper - that no material had been filed in support of it.
That circumstance in turn is to be explained, I think, by reason of the fact that the court failed to include the application for a non-custodial supervision order in orders which, on the court's own motion, were made so that this matter could be brought on for hearing today.
On 14 March 2006, Master Kings gave certain directions designed for that purpose. Those directions were mistakenly limited to the application for extended leave: it seems that the Master was unaware that a separate application for variation of the custody order was also on foot. This in turn may be the result of the Court’s failure to maintain any index at all of the contents of the relevant Court file. But whatever the explanation may be, the mistake is a most regrettable one. It is a serious embarrassment to the Court, as well as being the reason why the Director of Public Prosecutions failed to give the notices required by s.38C of the Act. I dealt with this circumstance in a separate ruling given earlier this morning.
Another result of the Court’s overlooking the application for a variation of the applicant’s custodial supervision order is that, apart from the applicant himself, none of the parties present this morning anticipated until very shortly before the hearing today that there would be any application for such variation. As for the applicant, he doubtless had no reason to anticipate that there would be any difficulty in his pursuing it today.
In the event however, I have heard evidence relevant to that application from both Dr Owens and Ms Shapiro. Dr Owens addressed the considerations which seemed to me to be relevant in my consideration of the application. Dr Owens gave evidence that the applicant has in the past complied with all conditions imposed upon him by reason of his status under the Act. Dr Owens further gave evidence that there had been no relapse or deterioration in the applicant's mental condition, that the applicant had a positive attitude to his treating team, that he complied with all requests of that team, and that he had established and was maintaining an appropriate degree of interaction with the wider community.
There was one concern to which, appropriately, Ms Ellis directed the court's attention both in cross-examination of Dr Owens and in final submission. The applicant suffers from a number of chronic physical conditions which - perfectly understandably - are of concern to him. It was conceded, properly, by Dr Owens that if the applicant's physical health were to deteriorate markedly then that might well have - indeed I think it is safe to say, probably would have - an adverse effect on his mental health; although that the degree of the adverse effect remains of course a matter at present purely of speculation.
It is clear, however, that at present the applicant is coping well with his physical health, that those circumstances have not given rise to any signs of depression or other adverse effects on his mental health and that generally he is managing his physical health problems appropriately with the assistance of his general practitioner. I conclude from the evidence of Dr Owens that there is no more than a mere possibility that an acute deterioration in the applicant's physical health might lead to a deterioration in his mental health such that his being subject to a non-custodial supervision order would not be appropriate.
I must not vary a custodial supervision order to a non-custodial supervision order during the applicant’s nominal term unless I am 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 variation: s.32(2) of the Act. In the present case, however, I am so satisfied. I accept on the evidence before me that the applicant has such insight into his condition that he will deal appropriately with any perceived deterioration in his mental health and that, in addition, he will have available to him assistance in the identification of any such a deterioration. He will likewise have available to him assistance in taking the appropriate steps should such a deterioration become apparent.
In her final submissions to me, Ms Ellis pointed to a number of matters which she properly submitted should be considered by the Court before its decision in relation to the application for a variation of the custodial supervision order was made. Ms Ellis pointed to the general philosophy of the Act, which is that a person subject to it should be taken by gradual steps from the more restrictive to the less restrictive regime that is available under the Act, while always being the beneficiary of the principle, to be found in s.39, that restrictions on a person’s freedom and personal autonomy should be kept to a minimum consistent with the safety of the community.
Ms Ellis pointed to what she submitted was a relatively rapid progression of the applicant in that regard. In response, Mr Williams pointed out that the applicant has been on overnight leave since May 2004 and that he has successfully negotiated the last 12 months of residence in the community. In the circumstances, it seems to me that this consideration is not one that should stand in the way of the success of the application.
Ms Ellis referred to the fact that, at present, there is no established regime involving the applicant's social and family contacts by which those contacts will be made aware of his circumstances, and thereafter able to deal appropriately with any signs of a deterioration in his mental health. Without such a regime, he and the community are more exposed than otherwise they would be to the danger that the legislation is designed to minimise.
While I accept Ms Ellis's point, it seems to me that that is a position which can be rectified. It is true that the applicant’s family members reside outside Victoria, but he remains close to them in other ways, including by regular communication. I would expect that, in the near future, family members and other relevant contacts will be made familiar with the means by which appropriate assistance can be provided should the applicant's mental health deteriorate.
Another matter which is of concern to me – and which has been raised explicitly by Ms Ellis - is the fact that, had the relevant authorities been aware before a time very shortly before today that the applicant was proceeding with an application for a variation of his non-custodial supervision order, steps would have been taken to reach a memorandum of understanding with the appropriate local area mental health service.
Such steps have not been taken for reasons which I have outlined. I am satisfied, however, that steps will be taken to reach an appropriate memorandum of understanding with the appropriate service and that those steps will be fruitful. I am accordingly not prepared to hold that the present absence of such a memorandum of understanding is a barrier to the success of this application.
In summary, my assessment of the evidence called before me today and of the matters about which I am required to have regard is that the applications should each succeed. I have considered the submissions helpfully put to me by Ms Ring in relation to the relevant statutory provisions; and, having considered those provisions, I am of the view that the applications should succeed. I will order accordingly.
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