Re RD
[2023] VSC 189
•18 November 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECI 2019 03665
| IN THE MATTER of a further major review of a non-custodial supervision order pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| - and - |
| IN THE MATTER of an application by RD to revoke a non-custodial supervision order under s 33(1) of the Act |
| - and - |
| IN THE MATTER of an application by RD for a suppression order under s 75 of the Act |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 November 2022 |
DATE OF JUDGMENT: | 18 November 2022 |
DATE OF REASONS: | 14 April 2023 |
CASE MAY BE CITED AS: | Re RD |
MEDIUM NEUTRAL CITATION: | [2023] VSC 189 |
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CRIMES MENTAL IMPAIRMENT – Further review of a supervision order – Application for revocation of a non-custodial supervision order (‘NCSO’) – Applicant subject to a supervision order for over 30 years – Secretary to the Department of Health and the Attorney-General in support of revocation – NCSO revoked – Suppression order extended for life of applicant – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 33, 38, 39, 40, 41, 42, 75.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Delaney | Victoria Legal Aid |
| For the Secretary to the Department of Health | Ms Yusur Al-Azzawi | Legal Services Branch, Department of Health |
| For the Attorney-General | Ms S Wallace | Victorian Government Solicitor’s Office |
| For the Director of Public Prosecutions | Ms L Wilkinson | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
This was a concurrent major review of a non-custodial supervision order (‘NCSO’) under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) and an application to revoke the order by RD.
On 11 November 2022 a consolidated response[1] was filed which indicated that all parties supported the application for revocation of the NCSO. The Director of Public Prosecutions (‘the Director’) was not included in the consolidated response, having discharged her obligation under s 38C of the Act to give notice of the present review and revocation application to the family members of RD and each victim of the index offence. I was satisfied on the evidence set out in the affidavit of Louise Wilkinson that no reports pursuant to s 42 were provided.[2] The Director did not take a position on the application, as is her usual approach in these proceedings.
[1]It has become the practice of this Court to require a ‘consolidated response’ from the parties giving notice of their positions.
[2]Affidavit of Louise Wilkinson, 8 November 2022 [8].
The Attorney-General and RD consented to the matter being determined on the papers. The Secretary to the Department of Health (‘the Secretary’), however, considered that a hearing was appropriate as the matter concerned a revocation. As it turned out, the matter came on for hearing before me on 18 November 2022.
With respect to RD’s application for a non-publication order, the Secretary and Attorney-General did not take a position.
Having heard the review and application, I decided that it would be appropriate for the NCSO to be revoked. I revoked the order, and made an order extending the suppression order previously made for the lifetime of RD. I indicated at the time that I would publish detailed reasons at a later time. These are those reasons.
Procedural history
On 2 March 1988, RD killed his mother in her home by repeatedly stabbing her to the chest, abdomen, arms and legs. At the time, RD was experiencing untreated symptoms of schizophrenia, including command hallucinations directing him to kill his mother. RD had been diagnosed with schizophrenia in mid-1987 and commenced an antipsychotic medication regime, but ceased compliance with treatment two weeks prior to the index offence.
On 8 August 1989, RD was found not guilty of murder on the grounds of insanity, and ordered to be detained until the Governor’s pleasure was known (‘Governor’s Pleasure order’). On the coming into effect of the Act on 19 April 1998, he was deemed to be subject to a custodial supervision order (‘CSO’) with a nominal term of 25 years, deemed to have run from the day on which the Governor’s Pleasure order was made.
In 2014, at the expiry of the nominal term, Coghlan JA confirmed the CSO and ordered a further review in two years’ time. In 2016, the CSO was again confirmed by this Court.
In November 2018, I heard a further review and confirmed the CSO, granting RD a period of 12 months’ extended leave in the community.[3] On 27 November 2018, I made a further order granting RD an additional 12 months’ extended leave.
[3]See Re RD [2014] VSC 552R (Coghlan JA); Re RD [2016] VSC 269R (Beale J); Re RD [2018] VSC 774R (Tinney J).
Having resided in the community for two years pursuant to grants of extended leave, RD applied to vary his CSO to a NCSO. His order was varied by me on 25 November 2020, with a further major review to take place within two years’ of the NCSO commencement date.[4] This was that review.
[4]Re RD [2020] VSC 788.
Background
In 2000, RD was transferred from custody to Thomas Embling Hospital (‘TEH’) as a forensic patient when the facility first opened. RD continued to experience psychotic episodes and symptoms of schizophrenia until he was commenced on clozapine in 2005.[5] Since this time, RD’s psychotic illness has been in remission and his mental state has remained stable. RD resided at TEH for nearly 18 years before transitioning to a privately owned apartment in an inner suburb of Melbourne.
[5]An antipsychotic medication targeting treatment-resistant schizophrenia and other schizoaffective disorders.
RD came before this Court as a 56 year-old man who had been subject to supervision by this Court since the age of 22. Following his stabilisation on clozapine, RD continued to make progress on his CSO and later NCSO, supported by the Victorian Institute of Forensic Mental Health (‘Forensicare’) and other agencies. He applied to be released unconditionally from the Court’s supervision and continue his treatment voluntarily in the community.
The law
Reviews and applications to revoke NCSOs are dealt with by s 33(1) of the Act:
On an application under section 31 for variation or revocation of a non-custodial supervision order or on a review of a non-custodial supervision order directed under section 27(2) or on a further review of a non-custodial supervision order directed under subsection (2) or section 32(5), the court must, by order—
(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.
The overriding principle to be applied on review of a supervision order is that of parsimony, being that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.[6] This principle is be applied within the framework of s 40(1), which sets out considerations to which the Court must have regard:
[6]The Act, s 39(1).
(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; and
(c)whether the person, if released, is likely to endanger themselves, another person or other people generally due to the 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 cannot order a person to be released unconditionally from a supervision order 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
…
(e) has obtained and considered any other reports the court considers necessary.
Expert evidence
The following three reports were tendered by the Secretary at the hearing:
· Psychiatric court report by Dr Ria Zergiotis, 28 September 2022;
· Mental health report by Maria Kyvernitakis, 19 October 2022; and
· Psychiatric report by Dr Rohan Dilip Mendonsa, 20 October 2022.
Dr Ria Zergiotis
Dr Zergiotis is a consultant psychiatrist with Forensicare and had been RD’s supervising psychiatrist since November 2020, prior to which she was his treating psychiatrist in the Jardine rehabilitation unit at TEH.
I was satisfied that Dr Zergiotis’ report fulfilled the ss 40 and 41 requirements under the Act.[7]
[7]The Act, ss 40(2)(a), (ab) and (b), and s 41(3).
In her report, Dr Zergiotis indicated that she was ‘fully supportive of [RD]’s application for revocation of the NCSO’ and the parties did not seek to challenge her evidence led in this respect, unanimously submitting that the order should be revoked.[8] What follows is a brief summary of Dr Zergiotis’s report, the contents of which were not in dispute.
[8]Psychiatric court report by Dr Ria Zergiotis, 28 September 2022 [77] (‘Dr Zergiotis report’).
In terms of RD’s progress over the past twelve months, Dr Zergiotis noted that he had ‘remained stable and fully compliant with the conditions of the NCSO,’ with no evidence of disordered thought, mood disturbance or any of the positive symptoms of his schizophrenic illness.[9]
[9]Dr Zergiotis report [18], [27]-[28], [38].
RD was supported by a network of agencies funded through the National Disability Insurance Scheme (‘NDIS’), including workers from Harmony Homecare, a dietician, and occupational therapist. RD’s mental health care was provided under the supervision of Forensicare by a treating team at the Hotham Street Clinic,[10] including Dr Mendonsa, treating psychiatrist, and Ms Kyvernitakis, mental health clinician, to whose evidence I will later turn. Dr Zergiotis reported that RD ‘feels very well supported by his community team’ and receives monthly visits from his brother with whom he has a good relationship.[11]
[10]Part of the Northern Area Mental Health Service. See also, ‘Northern Health Recovery and Wellness Plan,’ filed 16 November 2022.
[11]Dr Zergiotis report [36]-[37].
On the question of insight, Dr Zergiotis described RD’s as ‘exceptional;’ the past 14 years of remission a testament to RD’s level of insight into his illness and the need for long-term treatment.[12] Dr Zergiotis attributed RD’s stable mental state since 2006 to, among other things, his ‘excellent response’ to clozapine, engagement with services, and overall rehabilitation efforts. RD’s self-report that the early warning signs of his psychotic illness reoccurring include ‘poor sleep, poor self-care and increased aggression’ was a further illustration of insight.[13]
[12]Ibid [75].
[13]Ibid [52].
Turning to the likelihood of RD endangering himself or others if released from the NCSO, Dr Zergiotis opined:
[DB]’s overall risk of future violence is low, as long as his mental state remains stable, he continues to have adequate community supports and he continues to engage with treatment for his mental illness for the long term. The most likely scenario of a psychotic relapse in [RD]’s case would be through non-compliance with medication and/or the presence of sustained psychological stressors in the context of reduced community supports.[14]
[14]Ibid [71].
Dr Zergiotis assessed RD’s risk of violence with the assistance of the Historical Clinical Risk (‘HCR-20’), a structured clinical judgment tool commonly used to assess the risk of violence in forensic psychiatric patients. It consists of three subscales of risk factors: historical (past), clinical (present) and risk management (future). If based entirely on historical risk factors, RD’s baseline level of risk for future violence would be moderate. However, the risk would be ameliorated by the absence of clinical risk factors and the presence of appropriate risk management plans.
Overall, Dr Zergiotis regarded RD’s risk of future violence as low, as long as his mental state remains stable and he continues to have adequate community supports and continues to engage with treatment for his mental illness for the long term. She went on to state:
[RD] has continued to present in remission from psychotic and mood symptoms over the last 12 months, and overall, his mental state has remained stable for an extended period of time. He reports full compliance with his medication and expresses good insight into the need for long-term treatment. [RD] has successfully maintained a stable mental state for over 14 years, and his insight has continued to improve during this time.
…
In my opinion, given [RD]’s longitudinal history of maintaining a stable mental state with full remission of his illness, good insight, and adequate engagement with his treating team, his risk of harm to himself and others if the NCSO were to be revoked at this time would be low. I am therefore fully supportive of [RD]’s application for revocation of the NCSO.[15]
[15]Ibid [74], [77].
At the review hearing, Dr Zergiotis gave evidence in respect of RD’s application for a lifetime suppression order.[16] In response to questions from Ms Delaney, who appeared on behalf of RD, Dr Zergiotis stated that RD’s ongoing rehabilitation in the community and efforts to minimise risks to him would be aided by a suppression order. She considered that the therapeutic benefits of a suppression order in RD’s case would continue indefinitely.
[16]The Act, s 75.
Maria Kyvernitakis
Ms Kyvernitakis, a senior mental health clinician, has been RD’s mental health worker since his referral to the Hotham Street Clinic in September 2020. She provided a brief report in which she spoke positively of RD’s good level of engagement and insight into his illness and the need for ongoing treatment. He has maintained a good level of functioning in the community and developed a good therapeutic relationship with his treating team. He is well engaged with his NDIS supports and maintains regular contact with his brother. She described RD as ‘future focused and well engaged with his support system,’ with very good insight into his mental health condition.[17] Ms Kyvernitakis observed that RD is aware of his early warning signs and recognises the strong link between stopping medication and developing symptoms. She concluded:
The treating team are supportive of a revocation of [RD]’s NCSO as we agree with [RD] that he has remained stable for many years, has good insight and [is] agreeable to continue treatment long term. The treating team have discussed with him ongoing mental health support by our service, if he was successful in a revocation of his NCSO. [RD] is agreeable to continue attending our service for ongoing treatment and management of his mental health. He is appreciative of the support provided by his treating team and wishes to continue receiving this support.[18]
[17]Report by Maria Kyvernitakis, 19 October 2022 [5].
[18]Ibid [6].
Dr Rohan Dilip Mendonsa
Dr Mendonsa has been RD’s treating psychiatrist since August 2021 at the Hotham Street Clinic. Dr Mendonsa expressed the view that RD ‘does not present any danger to himself or to the community given his stable mental state over a significant period of time,’ with RD’s condition first stabilising in 1992 and gradually improving since commencing use of clozapine in 2005.[19]
[19]Report by Dr Mendonsa, 20 October 2022 [2], [6].
Dr Mendonsa reported that in the time RD has been engaged with the Hotham Street Clinic, there has been no evidence of him experiencing delusions, hallucinations or disordered thoughts. However, RD continues to present with residual negative symptoms of schizophrenia of mild severity, described by Dr Mendonsa as:
reduced socialisation, reduced motivation in general to pursue goal directed activities, and concrete thinking…They are likely to affect his ability to manage his daily activities independently – such as managing housing, finances, social life. However with appropriate supports in place, I believe [RD] is able to live in (sic) community without any significant risks to self or others.[20]
[20]Ibid [3].
Submissions
In light of the parties’ united position that the NCSO should be revoked, and the lack of opposition by the Secretary and Attorney-General to RD’s application for a suppression order, counsel did not seek to be heard.
Analysis
In reviews of this type, the mandatory requirement contained in s 39 to apply two competing public interest considerations – taking account of each s 40(1) factor – involves a series of value judgments when assessing the reviewee’s mental condition and risk factors.[21] In NOM v Director of Public Prosecutions & Ors (‘NOM’), the Court found that although regard must be had to each s 40(1) matter, it is not necessary they be given equal weight.[22] The overriding principle that restrictions on a person’s freedom should be kept to the minimum consistent with public safety requires the court to only continue a supervision order if, on balance, it is necessary to protect the community.
[21]NOM v Director of Public Prosecutions & Ors (2012) 38 VR 618 [47].
[22]NOM [49] (citations omitted).
In RD’s case, I accepted the expert evidence that RD would pose a low risk of harm to himself or others if released from the NCSO. Therefore, the need to protect people from such danger was low.[23]
[23]The Act, ss 39, 40(1)(c)(d).
Having said that, I note the opinion of Dr Zergiotis that ‘RD’s overall risk of future violence is low, as long as his mental state remains stable.’[24] This speaks to the nature of RD’s mental impairment which is lifelong, treatment-resistant, and would seem unmanageable without intensive medication. As a result, the causal relationship between RD’s impairment and his offending conduct is clear and will require long-term observation in the community.[25]
[24]Dr Zergiotis report [71].
[25]The Act, s 40(1)(a)(b).
Having considered the reports of RD’s treating team at the Hotham Street Clinic, I am satisfied that there are adequate resources available for his treatment and support in the community without the need for a supervision order.[26] No doubt RD’s mental state will continue to be closely monitored and I take into account the availability of treatment under the Mental Health Act 2014 (‘Mental Health Act’). As observed by the Court of Appeal in Fowler (a pseudonym) v Secretary to the Department of Health & Ors,[27] the existence of this regime is relevant when assessing the need for a supervision order to continue. Of course, it has been said that the Mental Health Act is not a substitute for supervision by this Court, and consideration of whether to revoke an NCSO requires the balancing of every s 40(1) factor.[28]
[26]The Act, s 40(e).
[27](2014) 43 VR 530 at [26]. See also, Re DG [2021] VSC 624R [13] (Keogh J).
[28]Re Friedman (a pseudonym) [2019] VSC 251 [101] (Niall JA).
Conclusion
Since 1992 when RD’s condition first showed signs of stabilising,[29] he has made significant progress. By all accounts, RD’s progress can be attributed to his own compliance with medication, insight into his illness, engagement with treatment, the therapeutic bonds he has formed, and his demonstrated capacity to live in the community with the support of a wide network. The evidence before the Court by way of reports made it clear that the steady progress made by RD over many years as he progressed through the system, from being on a CSO to being granted extended leave, to transitioning into the community on a NCSO, had continued up until the time of the hearing. He is to be commended for his efforts, as is Forensicare for its excellent work in supporting him.
[29]Report by Dr Mendonsa [2].
It was clear that the public interest fell in favour of releasing RD from the NCSO and for the suppression order to continue indefinitely. I made the following orders.
Orders
1. Pursuant to s 33(1)(d) of the Act, the non-custodial supervision order made in respect of RD on 25 November 2020 is revoked.
2. The suppression order made on 3 December 2014 by the Honourable Justice Coghlan pursuant to s 75 of the Act is extended for the lifetime of RD.
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