Re RG
[2022] VSC 443
•8 August 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0114
| IN THE MATTER of an application under s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) |
| and |
| IN THE MATTER of RG |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 August 2022 (on the papers) |
DATE OF JUDGMENT: | 8 August 2022 |
CASE MAY BE CITED AS: | Re RG |
MEDIUM NEUTRAL CITATION: | [2022] VSC 443 |
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CRIMINAL LAW – Mental Impairment – Application for extended leave – Whether granting extended leave on the conditions proposed would seriously endanger the safety of the applicant or members of the public – Application not opposed – Application for extended leave granted with conditions – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 38, 39, 40, 41, 42, 56, 57 and 75.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | - | Victoria Legal Aid |
| For the Secretary to the Department of Health | - | Department of Health |
| For the Attorney-General | - | Victorian Government Solicitor’s Office |
HER HONOUR:
Introduction
By a Notice of application for extended leave filed on 6 May 2022 pursuant to section 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘Act’) RG (‘the applicant’) applies for a grant of extended leave. This is her first such application.
Procedural history
MR (‘the victim’) was the applicant’s mother-in-law. Prior to the index offence the applicant displayed paranoia and hostility towards the victim, including beliefs that the victim was already ‘spiritually deceased,’ the victim had made her husband’s brain ‘gone dead’ and that the victim was in a sexual relationship with her husband. The applicant regularly abused the victim over the phone or in person after walking from her home to the victim’s home.
On the evening of 10 February 2008 the applicant attended the victim’s home and stabbed her 61 times, predominantly in the upper back and neck area. The attack was fatal. The applicant’s father-in-law (‘PR’) was outside having a cigarette. He heard screaming from the kitchen and proceeded inside through the ajar front door. He observed the applicant holding a knife, raised near her head. The victim was lying on the kitchen floor with a lot of blood around her. PR shook the victim and asked if she was all right but she did not respond. The applicant turned towards PR with the knife blade facing him and took steps towards him. PR backed away from the kitchen, locked himself in the bedroom and called 000. The applicant was arrested at the scene.
During a recorded interview following her arrest, the applicant told police that she had walked to the victim’s home and, upon arrival, had asked for a glass of water. She then said to the victim, ‘[MR], why did you give me someone with their brain gone at home?’ and ‘He’s gonna kill me at home and the kids.’ The victim attempted to retreat but the applicant pushed her and she fell down on the floor. The applicant said that she dragged the victim by her hair to the kitchen and stabbed her ‘many times’ in the back, neck and on her side whilst the victim was crying. The applicant then washed the knife and placed the knife back in the sink from where she had obtained it.
At a consent mental impairment hearing on 8 May 2009, the applicant was found not guilty of murder by reason of mental impairment. She was declared liable to supervision under Part 5 of the Act and placed on a Custodial Supervision Order (‘CSO’) with a nominal term of 25 years commencing 10 February 2008.
Applicable legislation
The Act defines extended leave as leave for a forensic patient to be absent from his or her place of custody for a period not exceeding 12 months, and subject to conditions, if any, fixed by a court.[1]
[1]Act, s 56.
An application for extended leave may be made by a forensic patient to the Court that made the supervision order to which they are subject.[2]
[2]Act, s 57(1)(a).
The Court may grant the application if satisfied on the evidence available that the safety of the applicant and/or members of the public will not be seriously endangered as a result of the applicant being allowed extended leave.[3]
[3]Act, s 57(2).
Whilst serious endangerment is not defined in the Act, it is a well-understood concept encompassing both the probability that a harmful event might occur and the gravity of the harm in that eventuality. The interplay between probability and gravity is best illustrated by the oft-cited example that a highly probable risk of minor harm might not amount to serious endangerment whereas a mathematically improbable risk of grave harm might do so.[4]
[4]NOM v Director of Public Prosecutions (2012) 38 VR 618, [63] (Redlich and Harper JJA and Curtain AJA) (‘NOM’), citing with approval In the Matters of Major Reviews of Percy, Farrell and RJO [1998] VSC 70, [56] (Eames J).
As described by the Court of Appeal in NOM, at the heart of the concept of serious endangerment is the probability of risk:
The gravity of the harm may be relevant to assessing the nature of the risk, but the probability of any risk, be it high or low, is the critical concept of endangerment. In the absence of any parliamentary guidance on the meaning of the word, this much is clear from the term’s ordinary and literal meaning. … The ordinary meaning of endangerment entails the concept of chance or risk.[5]
[5] NOM, [58].
The Court must have regard to the overriding principle of parsimony enshrined in s 39(1) of the Act and the list of matters outlined in s 40(1) in considering the application for extended leave. The Court of Appeal has described this assessment as follows.
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.[6]
[6] NOM, [47].
The Court cannot significantly reduce the degree of supervision to which a forensic patient is subject without receiving and considering the materials outlined in s 40(2) of the Act. The Court must also consider the leave plan prepared and filed under s 57A of the Act by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (‘VIFMH’).[7]
[7] Act, s 40(2)(da).
Notification of family members and victims
If a grant of extended leave would significantly reduce the degree of supervision to which the applicant is subject, the Director of Public Prosecutions (‘Director’) must give notice of the application to each family member of the applicant and to each victim of the offence with which the applicant was charged.[8]
[8] Act, ss 38C(1) and (2)(d).
An affidavit filed on behalf of the Director confirms that the relevant family members and victims have been notified of this application.[9] No reports have been received from any of the victims or family members of the applicant. The Director has not been contacted by any of the applicant’s victims or family members indicating that they seek to file a report with the Court.
[9]Act, s 40(2)(c).
Personal Background and Psychiatric History
The applicant is a middle-aged female with an established diagnosis of treatment resistant paranoid schizophrenia.
She is the second of two children born and raised in Melbourne within a devoutly Catholic family. Her parents were migrants to Australia from Western Europe. The applicant reported a close relationship with her parents and older sister while growing up. Apparently the family struggled financially. The applicant’s maternal grandmother also lived in the family home and there was occasional verbal conflict between her father and maternal grandmother. The applicant was raised bilingual during her childhood. She reported having lifelong difficulties reading and writing in English. She attended high school until Grade 11.
The applicant’s paternal grandmother suffered from mental illness suggestive of schizophrenia and ended her life by suicide.
The applicant’s mother died when she was 12 years of age. At that time her father began smoking and increased his alcohol consumption. Her father remarried when she was 14. The applicant had difficulties accepting her father’s remarriage and experienced feelings of resentment and hostility towards her stepmother. She felt controlled by her stepmother. She believed that her stepmother was possessive of her father and wanted to alienate him from his children. The strained relationship culminated in her stepmother asking her to leave home when she was 19.
The applicant subsequently purchased a flat in the inner city using her inheritance. After leaving school the applicant worked in various hospitality roles for a number of years before commencing employment as a ticket inspector. She was engaged in home duties immediately prior to the index offending.
The applicant met her first husband aged 22 years and they married two years later. The marriage ended after two and a half years. Whilst engaged in divorce proceedings, she met her second husband, GR, (the victim’s son). They had two children. The applicant reported experiencing frequent domestic violence in her second marriage and being injured on at least nine occasions. The most serious assault resulted in her requiring treatment for a laceration to her head and fractured thumb. The applicant’s father reported that GR received a two-year good behaviour bond for the assault. The applicant believed the assaults were due to GR being dissatisfied with her completion of domestic duties. She also reported frequent conflict with GR’s family, citing racial and religious differences. The applicant’s accounts of her familial relationships have differed somewhat from those provided by her family members.
The applicant acquired a diagnosis of schizophrenia in her late 20s. Her first experience of mental deterioration occurred in 1992 when she became intensely jealous and preoccupied with sexualised thoughts regarding her husband having an affair. As a result she terminated her honeymoon. She also suffered from postnatal depression that year. In mid-1994 the applicant was hospitalised for two weeks, diagnosed with schizophrenia and treated with antipsychotics. She had further unsuccessful trials of medication and two subsequent admissions to public psychiatric hospital in 2001. Her illness was predominantly managed by her private psychiatrist. Records show that the applicant’s psychotic symptoms endured until the commission of the index offence. Her father reports that she did not have a single symptom-free period during this time. It is also reported that the victim often cared for the applicant’s children during protracted periods of mental illness and that the applicant may have been jealous of the relationship that the victim had with their children.
Prior to the index offending the applicant frequently carried knives to protect herself and had been observed by her children making stabbing gestures in the air. She was reported to have made threats to kill her husband and on one occasion held a knife to his throat. Her psychotic symptoms have mainly presented as persistent persecutory, religious and erotic delusions and tactile, visual and auditory hallucinations often with grandiose themes (seeing, speaking with and being touched by Jesus, the Virgin Mary and the Devil and having a sexual relationship with God).
The applicant has no history of substance abuse. She has had (well-controlled) Type 2 Diabetes Mellitus since 2015, takes medication for hypercholesterolemia and underwent a colonoscopy to remove polyps in early 2022.
Following her admission to Thomas Embling Hospital (‘TEH’) on 18 February 2008, the applicant progressed from a women’s specialist unit to a low-medium secure unit and transitioned to a rehabilitation and independent living unit in late 2018.
By June 2018, the applicant’s treating team considered that her paranoid and persecutory delusions were in complete remission but the auditory, tactile, and visual hallucinations persisted. She continued to believe that she was able to communicate directly with Jesus. However, the applicant no longer perceived these experiences as threatening or unpleasant and related them to her normative religious beliefs (for example, that ‘she must be special for God to reveal himself to her in this way’).
As of November 2014, the applicant’s psychotropic medication included clozapine, amisulpride and a low dose of lamotrigine, a mood stabiliser. The amisulpride was increased in October 2020 when she had a transient increase in psychotic symptoms due to contact with her husband and daughter, COVID-19 restrictions and anxiety related to her transition to Austin Health’s Community Recovery Program (‘CRP’). The applicant commenced transitioning to the CRP in April 2021 and her first grant of overnight leave to the CRP occurred in May.
A neuropsychological assessment conducted in April 2021 indicated that the applicant had been functioning within the ‘Low Average’ to ‘Borderline’ range prior to the onset of her illness and experienced a further deterioration in her cognitive functioning consistent with the onset of enduring schizophrenia symptoms. Her cognitive difficulties are presently relatively stable but susceptible to a transient functional decline should her mental state deteriorate significantly.
Contemporary psychiatric evidence
Three expert reports have been prepared and filed with respect to this application in satisfaction of 40 and 41 of the Act. They are the psychiatric reports of Drs Elena Bhattacharya and James Belshaw, respectively dated 12 and 15 July 2022 and a case management report of Ms Joanna Karabatsos dated 15 July 2022.
Dr Bhattacharya’s report
Dr Bhattacharya is the staff specialist in forensic psychiatry practising at the Jardine unit of TEH. She has been the applicant’s treating specialist since 31 May 2021. She met the applicant on several occasions, including to assist in the completion of her report. Her report supports the application for extended leave.
Dr Bhattacharya’s report relies on an assessment of the applicant using the HCR-20, conducted by a Forensicare clinical psychologist in June 2022. The applicant rated on five out of 10 historical risk items; namely violence, problems with relationships, mental disorder, traumatic experiences and treatment/supervision response and partially on one item, problems with employment. She also scored on two out of five clinical risk items; insight and treatment/supervision response and partially on two items; symptoms of major mental disorder and cognitive instability. In terms of future risk items (with a view to being placed in the community), the applicant rated on one out of five items, being problems with personal support and partially on two items; treatment/supervision response and stress and coping. This indicated the applicant had a moderate baseline risk for violence, a moderate risk of engaging in further violent behaviour in the medium to long term and a low risk of imminent violence.
Dr Bhattacharya is of the opinion that this risk can be managed by adequate supervision provided by the applicant’s treating team, compliance with medication and the structured, relatively predictable and supportive environment of the CRP. She notes that the applicant has maintained a stable mental state, understands the necessity for ongoing medication and has supports in the community. While her insight into the symptoms of her mental illness remains limited, she understands she had a mental illness which contributed to her offending and what it looked like when she was severely unwell. There have been no concerns regarding drug or alcohol use and the applicant’s urine drug screens have always been negative. It is Dr Bhattacharya’s view that the applicant will not seriously endanger the community if she were to reside at the CRP under the conditions proposed in Dr Belshaw’s report.
Dr Belshaw’s report
Dr Belshaw is a consultant forensic psychiatrist within Forensicare’s Community Treatment and Transition (‘CTT’) team. He has been the applicant’s CTT psychiatrist since April 2022. He has reviewed the applicant in-person on five occasions.
Dr Belshaw supports the application for extended leave on the basis that the applicant’s risk for future violence is low. His assessment confirms the historical risk factors for future violence identified in Dr Bhattacharya’s report. The applicant’s dynamic risk factors are ongoing issues related to insight, symptoms of a major mental disorder and the persistence of these symptoms despite optimal antipsychotic treatment. Based on the supports and services available to her at the CRP and in the community, Dr Belshaw is of the view that the applicant would continue to access mental health services and maintain a stable living situation. The applicant’s social support networks provide her with coping strategies to minimise unforeseen stressors. And although she experiences residual psychotic symptoms, she remains committed to medication compliance and her attendance at CRP rehabilitation groups and appointments has been excellent.
Dr Belshaw states that despite lacking insight into her mental health issues, the applicant has demonstrated an ability to openly communicate her psychotic experiences to staff (albeit via a lens of religion or spirituality). She may benefit from further support to achieve her recovery goals, including increased social links, developing independent living skills and the eventual goal of independent accommodation. The applicant’s present supports and services in the community are, in his view, sufficient to achieve the necessary balance between safety and autonomy.
Ms Karabatsos’ report
Ms Karabatsos is a senior social worker employed by the VIFMH and has been the applicant’s case manager since December 2021.
Ms Karabatsos is supportive of the applicant being granted extended leave. In her opinion, the applicant has made great gains towards recovery, participated in recovery-focused groups, managed a level of stability throughout her progression at TEH and has engaged meaningfully and therapeutically with treating teams.
If granted extended leave, the applicant will reside at Austin Health’s CRP, a facility providing accommodation and psychosocial rehabilitation for persons with long-term psychiatric disabilities. She has been residing at the CRP for three nights a week since December 2021 without incident, remaining compliant with her medication regime and with the conditions of her overnight and unescorted leave. She does not require support to attend to activities of daily living, personal care, domestic tasks, planning or attending appointments or medication management. She will continue to engage with her CTTP team, who will liaise regularly with the CRP treating team.
The applicant also has an active National Disability Insurance Scheme (‘NDIS’) plan managed by MyIntegra, an independent provider which ensures that the applicant’s support providers are paid appropriately. Her support coordinator from MIND Australia assists with sourcing suitable support services. The applicant also receives support from an allocated support worker/wellbeing facilitator one day a week in relation to accessing the community and attending medical appointments.
The applicant presently engages with a Forensicare psychologist on a fortnightly basis. As she will be unable to see this psychologist upon leaving TEH, there has been liaison between Forensicare and the applicant’s NDIS support coordinator to find a suitable psychologist in the community. A referral to Complex Psychology is pending.
The applicant participates in the activity-based programs offered at the CRP four days a week. These programs are aimed at enhancing an individual’s capacity to function independently in the community. She is also an active member of her local church and attends weekly church services on Sundays. She reports feeling like a valued member of the congregation and has recently commenced volunteering one day a week to assist with the cleaning and maintenance of the church building. It is recommended that the applicant continue engaging with her local church, NDIS supports and other community supports whilst on extended leave.
The applicant’s father and sister maintain daily phone contact with her and she identifies them as close personal supports. She reports last seeing her children and granddaughter two years ago and has fluctuating contact with her husband. If the applicant’s contact with her husband were to increase in the future, her treating team would assess the appropriateness of a referral for family therapy to minimise any risks associated with increased contact.
The parties’ positions
On 1 August 2022, the parties provided a consolidated response to the Court stating that the extended leave application ought to be granted subject to the conditions proposed in Dr Belshaw’s report. The parties also agreed that the application could be determined on the papers if the Court was minded to do so.
The applicant also seeks a suppression order under s 75 of the Act prohibiting the publication of any information which could identify her or her whereabouts. The Secretary and the Attorney General do not take a position in relation to the suppression order application.
In support of the application for a suppression order, the applicant filed an affidavit of Myra Jennifer Bigger, affirmed 29 July 2022, which details the media reporting of the index offence in February 2008. A further affidavit of Ms Bigger, affirmed on 5 August 2022, was filed. Annexed to that affidavit is a letter dated 4 August 2022 jointly signed by Dr Belshaw and Dr Bhattacharya. Both doctors support the making of a suppression order. They note that if details of the applicant’s background and ongoing mental health recovery were to be made more widely available, it may impact the mental health of the applicant both directly and indirectly. Increased stress would likely increase risk to her mental stability and may also expose her to negative stigmatisation, thereby hindering her access to community linkages.
Analysis
I have had regard to the psychiatric evidence, the circumstances of the applicant, the s 40(1) factors and s 39 of the Act. I am satisfied that the safety of the applicant and the members of the public will not be seriously endangered were the applicant to be granted further extended leave on the conditions proposed by Dr Belshaw. This disposition is supported by the parties and the applicant’s treating team. It is consistent with the principle of parsimony enshrined in s 39 of the Act.
While there are risks posed by the applicant’s limited insight into her psychotic symptoms and the persistence of these symptoms despite treatment, these risks are mitigated by the applicant’s presently stable mental state, sustained compliance with medication and consistent and frank engagement with treating practitioners. She presents as a low risk of future violence. She has adequate resources in the supportive and structured environment of the CRP.
With reference to the evidence regarding the effect of stress and negative stigmatisation on the applicant, I am also satisfied that it is in the public interest that a non-publication order pursuant to s 75 of the Act is made.
Conclusion
The orders of the Court shall be as follows.
The Applicant is granted extended leave pursuant to s 57(1) of the Act for a period of 12 months commencing 8 August 2022, subject to the following conditions:
(a) The Applicant be under the supervision of the authorised psychiatrist of the VIFMH or their delegate.
(b) The Applicant reside at a location known to and approved by the authorised psychiatrist of the VIFMH or their delegate.
(c) The Applicant abide by the lawful directions of the authorised psychiatrist of the VIFMH or their delegate.
(d) The Applicant comply with treatment and testing and attend appointments as directed by the authorised psychiatrist of the VIFMH or their delegate.
(e) The Applicant abstain from the abuse of alcohol and from the use of illicit drugs.
(f) The Applicant not leave the State of Victoria without the written permission of the authorised psychiatrist of the VIFMH or their delegate. This includes overseas travel, which must be approved by the authorised psychiatrist of the VIFMH or their delegate.
Pursuant to s 75(1) of the Act, any information that might enable the Applicant or her whereabouts to be identified must not be published.
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