Re RKH
[2018] VSC 235
•27 April 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2016 05336
IN THE MATTER of an application for further extended leave pursuant to section 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
AND
IN THE MATTER of an application by RKH
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JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 April 2018 |
DATE OF JUDGMENT: | 27 April 2018 |
CASE MAY BE CITED AS: | Re RKH |
MEDIUM NEUTRAL CITATION: | [2018] VSC 235 |
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CRIMES MENTAL IMPAIRMENT – Custodial supervision order – Application for further extended leave – Whether the safety of the applicant or members of the public will be seriously endangered as a result of a grant of further extended leave – Whether granting application would be consistent with principle that applicant’s freedom and personal autonomy should be kept to minimum consistent with safety of community – Further extended leave granted with conditions – Crimes (Mental Impairment and Unfitness to the be Tried) Act 1977 (Vic) ss 38C, 39, 40, 57 and 57A.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms J. Taylor | Victoria Legal Aid |
| For the Attorney-General of Victoria | Ms A. Haban-Beer | Victorian Government Solicitor’s Office |
| For the Secretary to the Department of Health and Human Services | Mr M. McLay | Department of Health and Human Services |
| For the Director of Public Prosecutions | Ms J. Carpenter | Office of Public Prosecutions |
HIS HONOUR:
Overview
This is an application for further extended leave by RKH (‘the applicant’), pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘the Act’).
The notice of application, dated 1 February 2018, sought a variation of the applicant’s custodial supervision order (CSO) to a non- custodial supervision order; or in the alternative, a grant of further extended leave. In the course of proceedings, the applicant withdrew his application for variation of the CSO and sought only a grant of further extended leave.
The applicant seeks the extension on the same conditions as the existing grant of extended leave made in orders by Lasry J on 28 April 2017. The report prepared by the applicant’s treating psychiatrist, Dr Shannon Reid, dated 27 March 2018 proposed a variation to the condition requiring that the applicant abstain from the consumption of any alcohol, to permit him to engage in the use of a limited and controlled amount of alcohol. The Secretary to the Department of Health and Human Services (DHHS) initially put forward this variation in the proposed leave plan.
However, during the course of the proceeding, DHHS indicated it did not support a variation of the condition requiring the applicant abstain from the consumption of alcohol. The Attorney-General of Victoria similarly did not support such variation. As such, the applicant did not pursue an application for a variation to that condition. The Attorney-General, DHHS and the applicant’s treating team, being the Community Treatment and Transition (CTT) team at Forensicare,[1] supported the grant of a further extended period of leave sought by the applicant in the same terms as the previous orders made by Lasry J.
[1]Formerly known as the Community Integration Program (CIP). The CTT team is responsible for assisting patients to apply for extended leave and their subsequent treatment and management once extended leave is granted.
The original offence occurred on 17 April 2010 when the applicant killed his de facto partner by stabbing her with a knife, and injured her daughter as she tried to protect her mother and call 000. The applicant was charged with murder and intentionally causing injury. He pleaded not guilty to both charges on the basis of mental impairment.
At the time of the offence, the applicant had been living with the deceased for approximately three years. Their relationship was apparently harmonious, without any history of violence. However, the applicant had a long history of bipolar disorder, diagnosed some 20 years prior to the index offence.
On 21 March 2011, Curtain J directed a verdict of not guilty by reason of mental impairment. Her Honour made orders that the applicant be placed on a CSO for a nominal term of 25 years and directed DHHS to provide a Certificate of Available Services pursuant to s 47 of the Act. As there was no practicable alternative at that time, the applicant was committed to custody in prison. On 20 May 2011, once the availability of necessary facilities and services was confirmed, Curtain J imposed the CSO and committed the applicant to custody at the Thomas Embling Hospital (‘TEH’).
Between 2011 and 2016, evidence indicated the applicant progressed well through the treatment regime at TEH. On 30 December 2016, the applicant filed a notice of application for extended leave.
On 28 April 2017, Lasry J granted the application for a period of 12 months on the following conditions:
1.That the applicant be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or his or her delegate.
2.That the applicant reside at the Austin Community Recovery Program or a location approved by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or his or her delegate.
3.That the applicant abide by the lawful directions of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health 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 Victorian Institute of Forensic Mental Health or his or her delegate.
5.That the applicant abstain from the consumption of any alcohol and from the use of illicit drugs.
6.That the applicant not have, or attempt to have, any personal contact directly or indirectly with [two named persons] and that, in respect of [one named person], such a condition operate in support of the intervention order of the Frankston Magistrates’ Court dated 4 April 2017.
7.That the applicant not leave the State of Victoria without the written permission of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or his or her delegate.
Applicable legislation
The application for further extended leave is made under s 57(1) of the Act, which provides that:
(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 Health and Human Services.
Section 57(2) of the Act provides that an application for extended leave may be granted if 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 applicant being allowed extended leave.
The meaning of ‘serious endangerment’ requires me to exercise a discretionary judgment by considering both the gravity of harm that might be caused by the applicant if there was a relapse and the probability of that occurring. In making that judgment, I am bound to consider the guiding principle set out in s 39 of the Act, which states ‘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 sets out a list of considerations to which I must have regard in deciding whether or not to grant extended leave to the applicant, being:
(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.
With respect to the evaluation of mental condition and risk assessment, the Court of Appeal in NOM v DPP & Ors said:
Section 39 requires a valued judgment informed by the competing considerations stating 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 inter-related criteria. These assessments call for valued 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.[2]
[2][2012] VSCA 198 [47] (Redlich, Harper JJA and Curtain AJA).
In addition, s 40(4) of the Act provides that a further grant of extended leave cannot be made unless I have obtained and considered the report of at least one registered medical practitioner, or registered psychologist, who has personally examined the person on their mental condition, and the possible effect of a proposed further grant on their behaviour, together with a leave plan filed pursuant to s 57A. I note this requirement has been complied with by the provision of a detailed psychiatric report from the applicant’s treating psychiatrist, Dr Reid of Forensicare.
Notification requirement
Section 38C of the Act requires the Director of Public Prosecutions (DPP) to give notice of certain applications under the Act to each family member of the applicant and each victim of the offence with which the applicant was charged. However, notice is not required to be given of an application for extended leave unless the granting of the application would ‘significantly reduce the degree of supervision to which the person is subject’.
On 19 April 2018, the Office of Public Prosecutions provided an affidavit of service confirming they had notified, between 19 and 29 March 2018, all known victims and family members that: the applicant had made an Application for Variation of a CSO and an Application for Extended Leave; the hearing would take place on 24 April 2018; and the victim or family member may make a report to the Court regarding the conduct of the applicant and the impact of his conduct on them.
Three known victims and family members of the applicant provided written material to the Court, and two persons gave evidence before me. Apart from assisting with preliminary matters, the DPP took no further part in the proceeding and Counsel appearing on the DPP’s behalf was excused.
Psychiatric history
The applicant has a long history of bipolar disorder. On 7 April 2010, shortly prior the index offence, the applicant was admitted as an involuntary patient at the Casey Hospital and treated for a manic episode with psychotic features. The applicant’s psychiatric history and background, the circumstances surrounding the index offence, his mental impairment that led to the acquittal in 2011, and the history of his treatment up to April 2017 are set out in the judgments of Lasry and Curtain JJ. It is not necessary to repeat the details of those matters in these reasons.
Contemporary clinical evidence
In support of the applicant’s current application for further extended leave, the applicant relies on a report dated 27 March 2018 prepared by Dr Shannon Reid, a consultant psychiatrist of the CTT team of Forensicare. Dr Reid has been involved in the applicant’s psychiatric care since March 2016 and states he most recently reviewed the applicant on 21 March 2018.
Dr Reid states the applicant has demonstrated a good level of clinical stability over the last 12 months, with no evidence of persistently elevated or depressed mood, nor any experience of psychosis. He notes that while the applicant describes occasional mild anxiety, it does not appear to be of a pathological level and that there has been no recent evidence or report of ‘early warning signs’ of relapse.
In his mental health examination of the applicant, Dr Reid notes the applicant displayed ‘a normal mood state with occasional mild anxiety’. He adds, ‘There has been no recent evidence of delusional ideas or perceptual abnormalities. [The applicant] has good insight regarding his illness and the need for treatment.’
Dr Reid states the applicant has been able to maintain this good level of stability, despite stressful situations that have occurred in the past 12 months. Notably, in June 2017, a television news program about the applicant and index offence was to be aired. Dr Reid states the applicant was able to manage this situation appropriately with the support of his CTT clinician and staff of the Austin Community Recovery Program (CRP). Also of note, in November 2017, the applicant’s mother died. Dr Reid states the applicant had a very close relationship and regular contact with his mother, but he ‘was able to manage his feeling regarding her illness and loss very appropriately’. Dr Reid states the applicant was also able to participate in the practical arrangements involving his mother’s estate, with minor, transient and non-pathological sleep disturbance reported shortly after her death.
The applicant’s treatment regime and supervision
Dr Reid states the applicant continues to be treated with mood stabiliser medication sodium valproate and the antipsychotic and mood stabiliser medication olanzapine. The applicant denies any adverse effects resulting from his medication regime. Dr Reid notes the applicant’s psychotropic medication is currently prescribed through the Austin CRP.
For the majority of the last year, the applicant was seen on an approximately weekly basis by a CTT member. That is, fortnightly by a psychiatrist or psychiatry registrar from the CTT, as well as fortnightly by his CTT clinician. After review in March 2018, it was determined suitable to reduce the applicant’s reviews to fortnightly sessions – that is, one monthly session with each his psychiatrist and clinician. Apparently, the applicant has not failed to attend any sessions.
The applicant has also undertaken appointments with a psychologist at the Banyule Community Health Service. Dr Reid states the psychologist describes excellent progress using therapy focused on the applicant’s personality, management of stress, stabilisation of mood and interpersonal skills. He notes this therapy usually runs for one year, and anticipates it will soon cease, but the applicant will be able to continue to use the skills developed, using other clinical supports, to manage stressful situations that may arise in future.
Social support, work and residence
For the past 12 months, the applicant has resided full time at the Austin CRP. He shares a flat with one other person and describes getting on well with his flatmate, despite differences in lifestyle. The applicant has reported he participates in activities occurring at the CRP, including groups for boosting skills in computing, interpersonal communication, finding accommodation, cooking and fitness. In October 2017, the applicant attended a short camp with staff and patients of the CRP.
Dr Reid states the applicant expects to progress to independent accommodation after his stay at the CRP, and that his treating team considered he has adequate skills to make this change. The applicant has described a budget that would permit him to privately rent a small apartment. It is expected he will apply for private rental accommodation in mid to late 2018.
Over the past year, the applicant has engaged in range of activities and programs, including participating in a gardening program, an activity group at a community centre and a discussion group for men. He describes having supportive associates through these connections.
The applicant has continued working at a Salvation Army store. Feedback from this service in May 2017 indicated he was socialising well with co-workers, completing set tasks and maintaining a cheerful demeanour at work. Dr Reid reports the applicant has recently noted a reduced level of enjoyment of this work, due in part to its physical demands. The applicant has instead expressed an intention to pursue a long held interest in working with animals and had has applied to work as a volunteer at a Blue Cross centre.
Family
The applicant has two children from his first marriage, prior to his relationship with the deceased. At the time of Lasry J’s decision in April 2017, it was noted they had made it clear he was not to initiate contact with them, though they would occasionally contact him and go on some outings.
Dr Reid reports some development in the connection between the applicant and his daughters over the last year. By December 2017, the applicant reached an arrangement whereby he is able to initiate some contact with them. He also met with one of his daughters at the Austin CRP, and they have attended the Community Forensic Mental Health Service for discussions with the applicant’s clinical team. The applicant also has intermittent contact with his brother. He denies any contact or interest in future contact with his ex-wife.
During the course of this application, I heard evidence from the daughter of the deceased, who was also in her own right, a victim of the applicant’s violent conduct. I also heard from a daughter of the applicant. Both women had provided written material to the court for its consideration. Both women are to be congratulated for their courage in expressing the views they have, both in writing and before me by the giving of oral evidence. The information they provided has been helpful to the decision making of the court. I acknowledge their pain and suffering over the events that occurred, as well as that of other family members and friends.
Drug and substance use
Mr Reid reports the applicant began to use alcohol in his mid-teens in a binge pattern. He notes a report of Dr Fiona Toal, dated 24 January 2010, documents that the applicant had been drinking excessively prior to his last admission to a mental health service before the index offence.
Dr Reid states there has been no evidence of the use of alcohol or illicit drugs since the applicant’s admission to TEH, including over the period of his extended leave. While the applicant has a history of difficulty in producing samples for urinary drug screen assessment due to anxiety around the issue, the Austin CRP has been able to collect samples to transport to the pathology service. He notes the applicant has not returned any positive drug screen in the period of extended leave.
Viva voce evidence of Dr Reid
Dr Reid gave viva voce evidence before me and confirmed the truth and accuracy of his report. Importantly, nothing emerged during the course of his evidence that I would consider sufficiently adverse to justify a change of opinion, or approach towards the ultimate conclusion of this application.
Proposed further extended leave and supervision
The applicant proposes, as supported by the report of Dr Reid, that if granted a further period of extended leave, he would continue his current appointment schedule. That is, he would be seen on a monthly basis by a psychiatrist or psychiatric registrar through the CTT team, interleaved with monthly assessment and home visits from his clinician, for an overall fortnightly review.
Once the applicant moves to an independent living situation, it is proposed the frequency of review would increase until a good level of stability has been established. From this point, the Forensicare CTT team would adopt responsibility for the applicant’s medication.
Risk assessment
In determining whether the applicant is likely to endanger himself or the community, historical risk factors include the applicant’s diagnosis, past history of violence, relationship difficulties, substance use involving alcohol, periods of illness, and difficulties with past treatment. Dr Reid notes the applicant has a history of relapses that have at times been of high frequency and intensity, and has some obsessive compulsive personality features that have previously caused difficulty in interactions with others.
The 12 months since the orders made by Lasry J have involved some stressors for the applicant. On balance, the applicant has managed well with professional support. The applicant has been attending appointments consistently with the CTT team, adhering to medication and treatment regimes, abstaining from alcohol and illicit substances, attending treatment with a psychologist, and navigating various life situations without mental deterioration. It appears that any symptoms experienced by the applicant are well managed with the current medication regime.
Dr Reid notes while the applicant will soon undertake a change in accommodation to an independent setting that will involve a reduction in his level of daily supervision, he has established a number of community supports that may assist in this change.
Dr Reid concludes the risk of harm associated with the applicant is low. Taking into account all the material that has been placed before me, I am satisfied the overall risk of future violence is low.
Conclusion
In all the circumstances, having regard to the evidence of Dr Reid and in light of the absence of opposition to the application, I am satisfied it is appropriate to grant a further period of extended leave. I am of the view that the grant of extended leave would be consistent with the principles set out in s 39(1) of the Act, having had regard to the considerations identified in s 40(1).
In forming this conclusion, I note that the application for extended leave was supported by the Attorney-General, who opposed the extended leave application before Lasry J 12 months ago, and by the Secretary to DHHS.
For these reasons, on 27 April 2018, I granted the application for extended leave, subject to conditions in similar terms the grant of extended leave by Lasry J on 28 April 2017. The orders I made are as follows:
(a)That the applicant be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or his or her delegate.
(b)That the applicant reside at the Austin Community Recovery Program or a location approved by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or his or her delegate.
(c)That the applicant abide by the lawful directions of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health 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 Victorian Institute of Forensic Mental Health or his or her delegate.
(e)That the applicant abstain from the consumption of any alcohol and from the use of illicit drugs.
(f)That the applicant not have, or attempt to have, any personal contact directly or indirectly with two named persons and that, in respect of one named person, such a condition operate in support of the intervention order of the Frankston Magistrates’ Court date 4 April 2017.
(g)That the applicant not leave the State of Victoria without he written permission of the authorised psychiatrist of the Victorian Institute of Forensic Health or his or her delegate.
(h)That the suppression order made by the Honourable Justice Lasry under s 75 of the Act on 28 April 2017 be confirmed.
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