Re SC
[2020] VSC 58
•19 February 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2016 04091
IN THE MATTER of a review of a non-custodial supervision order pursuant to s 33(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)
and
IN THE MATTER of SC
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 October 2019 |
DATE OF JUDGMENT: | 19 February 2020 |
CASE MAY BE CITED AS: | Re SC |
MEDIUM NEUTRAL CITATION: | [2020] VSC 58 |
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CRIMES MENTAL IMPAIRMENT – Review of non-custodial supervision order – Reviewee sought revocation of non-custodial supervision order – Non-custodial supervision order confirmed upon the same conditions – Further review ordered to occur within 12 months – Crimes (Mental Impairment Unfitness to be Tried) Act 1997 (Vic) ss 31, 32, 33, 38C, 39, 40 and 41.
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APPEARANCES: | Counsel | Solicitors |
| For the Reviewee | Ms S Dhanji | Victorian Legal Aid |
| For the Secretary to the Department of Health and Human Services | Ms S Varney | The Department of Health and Human Services |
| For the Attorney General of Victoria | Ms M Pekevska | Victorian Government Solicitors Office |
| For the Director of Public Prosecutions | Ms S Borg | The Office of Public Prosecutions |
HIS HONOUR:
Introduction
This is a review of a non-custodial supervision order (‘NCSO’) pursuant to s 33(1) of the Crimes (Mental Impairment Unfitness to be Tried) Act 1997 (Vic) (‘the Act’). The person who is the subject of the order, SC, seeks a revocation of that order pursuant to s 33(1)(d) of the Act.
SC was found not guilty of two charges of attempted murder by reason of mental impairment in 2010. In 2011, Robson J placed SC on a custodial supervision order (‘CSO’) for a nominal term of 25 years which was to commence from 13 December 2010. In 2017, Lasry J granted SC extended leave for a period of 12 months. Further extended leave was granted for the same period in 2018. On 1 November 2018, the Court varied SC’s CSO to a NCSO and directed that the matter be brought back for further review in 12 months. That review fell due before me on 31 October 2019.
Each of the Secretary to the Department of Health and Human Services (‘the Secretary’) and SC’s treating team submitted that the NCSO should be revoked. The Attorney-General (‘the Attorney’) opposes the revocation but supports the confirmation of the NCSO. The Director of Public Prosecutions (‘the Director’) filed an affidavit deposing that the family members and victims had been notified of the review hearing. The Director was not required to and did not make submissions as to the substantive issues and took no position in the review.
For the reasons that follow, I am persuaded that the NCSO should be confirmed.
Legislative framework
The present review of a NCSO is governed by s 33 of the Act, which provides as follows (emphasis added):
(1) 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.
(2) Unless the court revokes the order, the court may direct that the matter be brought back to the court for further review at the end of the period specified by the court.
(3) A direction may be given under subsection (2) more than once.
In determining the appropriate disposition for the review, I am required to apply the guiding principle identified in s 39(1) of the Act, which states:
In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, the court must apply the principle that 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 the considerations to which the Court must have regard in determining whether to confirm, vary or revoke the order. It provides (emphasis added):
In deciding whether or not to make, vary or revoke an order under Part 3, 4, 5 or 5A in relation to a person, to grant extended leave to a person or to revoke a grant of extended leave, the court must have regard to—
(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.
Section 40(2) provides that the Court cannot revoke a NCSO 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
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(e) has obtained and considered any other reports the court considers necessary.
The considerations under ss 40(1)(c) and (d) therefore necessarily weigh heavily in my determination of the appropriate disposition on this review. Notwithstanding this, I must also apply the principle in s 39 and have due regard to the remaining factors in s 40(1) of the Act.
Notification of family members and victims
Pursuant to s 38C of the Act, the Director gave notification of this hearing to relevant family members and victims of the incident. I have considered the affidavit of Louise Wilkinson dated 25 October 2019, and am satisfied under s 40(2)(c) that relevant family members and victims have been notified of this hearing. I have also considered the report of SC’s former partner, made under s 42 of the Act, in which he described the impact of the index offences on him and his family. He stated that he was not supportive of a revocation of SC’s NCSO, or for any conditions to be varied, and asked the Court to confirm the NCSO and its conditions.
Reviewee’s psychiatric history
The details of SC’s psychiatric history, treatment and progress have been set out in the reasons of Jane Dixon, Champion, and Lasry JJ, as well as a number of psychiatric reports previously filed in this proceeding. It is therefore not necessary for me to rehearse this history in detail.
In summary, SC is now 52 years of age. SC has a diagnosis of a major depressive disorder with psychotic features. SC had previously been diagnosed with narcissistic personality disorder, although contemporary expert evidence suggests that SC no longer meets the criteria for that disorder.
In the lead up to the index offences, SC’s marriage had deteriorated and SC began to suffer from paranoid ideation about the safety of SC’s children, reporting delusional beliefs that the children had undergone plastic surgery and had been sexually assaulted.
On the day of the index offences, SC attempted to make an appointment with a general practitioner to obtain a prescription for sleeping tablets. SC recalls that the failure to obtain an appointment felt like ‘the straw that broke the camel’s back’, which reinforced feelings of rejection from both police and health services.
Following SC’s arrest and disposition for the index offences, SC was admitted to the Thomas Embling Hospital (‘TEH’) where SC received intensive treatments. SC was first granted extended leave to reside in the community on 1 March 2017. Since that time, SC has made significant and steady clinical progress in the community and now seeks a revocation of the NCSO.
Contemporary evidence
I have received the following three reports, which were prepared for the present review:
(a) report of Dr Ria Zergiotis, Consultant Forensic Psychiatrist at Forensicare, dated 18 September 2019;
(b) report of Dr Joaquin Pereyra, Consultant Psychiatrist at the Alfred Adult Area Mental Health Service (‘AMHS’), dated 26 September 2019; and
(c) report of Emma Lyons, Case Manager at the Alfred AMHS, dated 30 September 2019.
Dr Zergiotis
Dr Zergiotis has been SC’s supervising psychiatrist since October 2018, and was involved in SC’s care previously as SC’s treating psychiatrist at the TEH in 2013 and 2015.
In her report dated 18 September 2019, Dr Zergiotis confirms that SC has attended all appointments punctually and has been fully compliant with SC’s anti-depressant medication (venlafaxine 75mg daily) to which SC attributed tension headaches and nosebleeds. Notwithstanding this, SC has expressed a desire to continue SC’s current medication into the future.
SC has engaged positively with the NCSO team and maintained a strong therapeutic relationship with SC’s private psychologist, Ms Welsh, in the community. SC has also successfully completed a course in interior design and subsequently commenced an online accounting course since being released on NCSO. SC has consistently expressed enthusiasm for further studies and cites a desire to reskill in order to improve the prospects of gainful employment in the community, despite prior difficulties in obtaining employment. Notwithstanding these challenges, SC remains motivated to obtain employment and continues to work towards this goal.
In addition, SC cites reunification with SC’s children as a primary goal for the future. SC recently sought legal advice about this process and was informed that attempted reunification would likely be a long and arduous course. As it stands, SC has no contact with SC’s children and is unaware of where they reside or attend school. It is clear that SC continues to ruminate about SC’s children and the enduring impact of the index offences on their respective lives.
In terms of SC’s personal supports, Dr Zergiotis observes that SC maintains a strong relationship with SC’s elderly parents. However, SC’s relationship with SC’s sister, KV,[1] remained turbulent during the period of the NCSO. It is noted that the tension escalated earlier in 2019, when SC took KV’s son, KS, on an overnight trip to a motel in Philip Island without KV’s consent. The following day, SC was contacted by clinicians and family members who had been informed by KV that SC had ‘taken’ KS. Relevantly, SC had failed to inform the NCSO team and Waverley Continuing Care Team (‘CCT’) of this plan prior to going away.
[1]Relevantly, KV also suffers from a major mental illness.
In reflecting on the situation, SC recalled reading through the NCSO conditions prior to the trip and thinking that no conditions would be breached as SC would not be ‘residing’ at another location. Further, SC stated that there had been no intention to stay overnight, however changed plans when KS became too tired to travel back. SC reported that the overnight stay occurred with the knowledge and consent of SC’s parents, who SC perceived to have the ‘ultimate say’ in decisions regarding KS’s welfare due to KV’s fluctuating mental state.
Notwithstanding this, SC agreed to inform the Waverley CCT or NCSO team of any changes in living circumstances, including overnight trips, going forward. SC was advised to make proper enquiries regarding SC’s rights to unsupervised time with KS. Since this time, SC has made greater efforts to obtain permission from KV before spending time with KS. Further, notwithstanding the interpersonal difficulties between SC and KV, Dr Zergiotis observes that SC does not appear to hold any enduring resentment toward KV.
In her oral evidence, Dr Zergiotis elaborated that SC has been very proactively involved in SC’s nephew SK’s care and there has not been any concerns raised in relation to their interactions.
In her report, Dr Zergiotis notes that SC was harassed by some neighbours in the department of housing units in Ashwood in the lead up to the last hearing in this Court. While the cause of the harassment was unknown at that time, Dr Zergiotis reports that it has since transpired that the catalyst was KV disclosing the index offences and other elements of SC’s personal history to one of SC’s neighbours, which led to SC being harassed and intimidated.
In May 2019, SC moved to new accommodation in Prahran with the support and approval of the Waverley CCT and the NCSO team. Thereafter SC began engaging with the Alfred AMHS which consists of a treating psychiatrist, Dr Joaquin Pereyra, and a case manager, Ms Emily Lyons. SC continues to engage with SC’s private psychologist, Ms Welsh, and reports good progress in psychological treatment.
SC has settled in well to the new accommodation, which is close to all necessary amenities, public transport, and SC’s parents. SC receives regular visits from KS, and reports having been made to feel welcome by SC’s new neighbours. SC describes feeling calm and ‘emotionally lighter’ without the stressors associated with the former accommodation, and compares the two situations as being like ‘night and day’. Additionally, since moving to the new accommodation, SC now has two cats which provide both company and comfort to SC.
During her oral evidence, Dr Zergiotis was cross-examined by counsel for the Attorney on whether SC would benefit from the ‘continuity of care’ provided by the NCSO team in the context of SC’s recent move from Ashwood to Prahran and a transfer of SC’s treatment team from Eastern Health to the Alfred Health. Dr Zergiotis confirmed that her oversight as the supervising psychiatrist can be advantageous at times, and states that SC’s local area mental health team feels ‘quite reassured’ that the NCSO team knows ‘[SC’s] extensive history and can give specialist advice and support if a difficult scenario arose..’.
With regard to overall risk assessment, Dr Zergiotis opines that although SC has a number of historical risk factors of concern, including a major mental illness, violent behaviour relating to the index offences, relationship instability and personality difficulties, SC also has a number of protective factors that are likely to moderate SC’s overall risk of harm. These protective factors include SC’s consistent compliance with medication, positive response to treatment, stable accommodation, personal supports and good insight into the illness and the role of treatment. In addition, there is no evidence of poor insight, active symptoms of mental illness, negative attitudes supportive of future violence or impulsivity. SC has demonstrated resilience to stressors and changes in the community and has been proactive in working towards identified goals notwithstanding these stressors.
In considering all of these factors, Dr Zergiotis concludes that SC’s overall risk of harm to self and others is low in the context of ongoing compliance with medication and treatment. Accordingly, Dr Zergiotis is supportive of SC’s NCSO being revoked. Dr Zergiotis opines that the main area for ongoing input is supporting SC through any stress that may arise a result of the legal process of attempting to gain access to SC’s children.
Dr Pereyra
Dr Pereyra has been SC’s treating psychiatrist in the community since 13 May 2019, and has reviewed SC on two occasions since this time. Dr Pereyra confirms SC’s stable mental state and notes that SC has consistently denied active depressive or psychotic symptoms.
In terms of SC’s clinical contact with the local area mental health service, Dr Pereyra reports that SC meets with a mental health clinician at the Alfred AMHS once every three weeks, and a psychiatric registrar or consultant psychiatrist every three to six months. SC continues to attend psychological treatment sessions in the community with Ms Welsh, and attends appointments with a general practitioner on a ‘needs only basis’.
In his report, Dr Pereyra notes:
[SC’s] condition seems to have a limited impact on [SC’s] day to day activities. [SC] has completed an interior design course and recently commenced an online accounting course. [SC] identifies inability to contact [SC’s] children and difficulty gaining employment as the two aspects associated to [SC’s] psychiatric diagnosis that prevent [SC] from full recovery.
Dr Pereyra gave evidence in Court that, in the event that SC’s NCSO were to be revoked, it would be appropriate for SC to continue to receive follow-up treatment from the Alfred AMHS for a period of one to two years before being discharged to SC’s family doctor. He confirmed that there is no time limitation as to the period of care that can be offered to SC at the Alfred AMHS. SC is amenable to this course and indicated a willingness to engage with mental health services on a voluntary basis.
In concluding his report, Dr Pereyra makes the following assessment as to risk:
I believe that [SC’s] risk to self or others is significantly minimised. [SC] is compliant with medication which [SC] believes [SC] needs; [SC] is well supported by [SC’s] parents; [SC] is well supported by continuing care team, psychologist and GP, [SC] does not use any illicit substances, [SC] has stable accommodation and [SC] has good insight into [SC’s] condition and the need for ongoing treatment.
However, [SC’s] risk of relapse and violence is likely to increase if [SC] were to become non adherent with treatment, disengage from mental health services and a reduction in personal support.
In my opinion, [SC’s] non-custodial supervision order is not necessary to guarantee [SC’s] compliance with treatment, engagement with mental health services and safety to [SC] and the community.
Given the foregoing, Dr Pereyra confirmed his position in Court which is to support the revocation on the basis that the NCSO is, in his view, no longer required to maintain treatment compliance by SC.
Ms Lyons
Ms Lyons is SC’s case manager at Alfred AMHS and has been involved in SC’s care since 13 May 2019. In her report, Ms Lyons confirms that SC actively engages in treatment and therapeutic work, and has requested to continue treatment with the Alfred AMHS irrespective of whether the NCSO is revoked.
Ms Lyons observes that SC has a limited social network due to difficulties in being able to account for SC’s situation, including being a parent with no access to SC’s children. Notwithstanding this, SC remains closely connected with family and has a wide network of clinical supports. Ms Lyons opines that SC is likely to reach out to those supports as required, and confirms that SC has been able to recite a number of ways to seek out support in the community in the event of crisis.
In concluding her report, Ms Lyons states:
[SC] presents with stable mental state, [SC] presents with good insight into [SC’s] illness and the contributing factors which impacted on [SC] prior to the offence. [SC] is working hard to ensure [SC] is able to return to the workforce and hopes to be able to see [SC’s] children in the future. [SC] is remorseful of the assaults and grieves daily for the loss of [SC’s] children. I do not believe the current non-custodial supervision order serves any purpose [in SC’s] life or is in the best interest of [SC’s] children or the community.
Ms Lyons is also supportive of SC’s NCSO being revoked.
Submissions of the parties
As noted, the Secretary supports the revocation of the NCSO but the Attorney does not. The main argument in favour of revocation is that based on the evidence given by Dr Zergiotis and Dr Pereyra, being that the NCSO is no longer required in order to protect the community from the risks posed by SC. Both clinicians expressed confidence in the Alfred AMHS team’s ability to continue treatment and management of SC and to respond promptly and appropriately to any changes in SC’s mental state. In particular, Dr Pereyra elaborated on a number of different strategies which the Alfred AMHS could employ if they notice any changes to SC’s mental state, including daily visits from the crisis team, or admission to the Prevention and Recovery Care facility if necessary, or invoking the compulsory treatment provisions under the Mental Health Act 2014 (Vic).
Further, it is submitted by counsel for the Secretary that were the NCSO to be revoked, there would not be any changes to the current treatment and supervision of SC’s illness in that the Alfred AMHS would continue to prescribe SC’s medication and conduct regular reviews appointments. In essence, the absence of Forensicare’s involvement would not have any impact on the day-to-day management of SC.
Counsel for the Attorney submitted that it would be too soon for the NCSO to be revoked as the Court has not had sufficient time to assess the risks of SC in the community given it has only been one year since [SC] was placed on an NCSO, and prior to that, 18 months on extended leave. In particular, it was submitted that SC is currently waiting to see a specialist with respect to SC’s medication and its possible side effects. In the event that SC’s current medication is reduced or changed, the Court may be inclined to conduct a further review.
Further, it is submitted that there are a number of current stressors in SC’s life that need to be addressed. These include that SC moved into a new area mental health service in May 2019, and as such has been allocated a new case manager, a new treating psychiatrist as well as a new general practitioner. The new area mental health service has had little contact with SC’s parents due to their elderly age and language barriers, which may indicate that they are less of a protective factor than previously. SC is currently undertaking some courses and intends to obtain paid employment, however, it is unknown as to how SC would cope with employment, or rejections. Further, SC’s ability to cope with various stresses and challenges arising out of the family law proceedings may be tested in that SC would either be not allowed to have contact with SC’s children or have to develop a relationship with the children after a number of years of separation.
Given the foregoing, including the number of foreseeable stressors and their unknown impact upon SC’s mental health, counsel for the Attorney submitted that the continuation of the NCSO is warranted in that it is the least restrictive and appropriate oversight mechanism available under the Act.
Consideration
SC has a diagnosis of a major depressive disorder with psychotic features, which is in remission. At the time of the index offences in 2010, SC was labouring under the delusional belief that SC’s children were being sexually exploited. It is clear that there was a direct relationship between SC’s mental impairment and the offending conduct. Since that time, SC has progressed to a state of full remission without any major regressions.
In determining whether SC is likely to endanger self or others in the community, SC’s psychiatric diagnosis, a history of violence relating to the index offences, SC’s personality difficulties and volatility in relationships are static risk factors which need to be considered. In addition, SC has only been living full-time in the community since 2017, has limited social and personal networks and is likely to be exposed to considerable stressors in the short to medium term as the family law proceedings progress.
Against these factors are those protective factors that might mitigate SC’s likelihood of endangerment. These include SC’s compliance with medication, positive engagement with treatment, sustained remission from psychotic symptoms, good level of insight and stable living arrangement in the community. Also relevant is SC’s proactivity in undertaking studies and seeking employment opportunities in the community, as well as SC’s mutually supportive relationship with SC’s parents, notwithstanding their elderly age and that they suffer from illnesses from time to time.
While I accept that SC has demonstrated a good capacity to withstand a certain degree of stress resulting from the normal pressures of life in the community, I am of the view that SC’s goal of reunification with SC’s children through the family law proceedings is likely to present SC with a particular set of challenges.
Further, I note that following the harassment incidents involving SC’s former neighbours, SC has successfully relocated to a new neighbourhood since May 2019. SC’s treatment and supervision have been transitioned to the Alfred AMHS, who received a comprehensive handover from the Waverley CCT with the oversight of the NCSO team at Forensicare. In addition, SC continues to attend treatment with SC’s psychologist, Ms Welsh. It is evident that SC benefits greatly from this alliance and I understand that SC intends to remain engaged with the Alfred AMHS for the foreseeable future and SC’s clinicians are supportive of this course.
While I accept Dr Zergiotis and Dr Pereyra’s respective risk assessment of SC being low risk of harm to SC and others, I share the Attorney’s concerns regarding the Court not having had sufficient time to assess the risks of SC in the community. In my view, more time needs to expire with SC living in the community on a NCSO on its present basis before real confidence in this issue can be expressed.
Accordingly, and for the reasons set out above, I conclude that it is premature at this time to make an order revoking the NCSO in respect of SC. While I recognise that SC has made significant clinical progress and established valuable linkages in the community, it is nevertheless of great importance that more time needs to expire for the Court to be satisfied that the risk of endangerment is minimised and can be managed. If the progress made by SC continues to advance, it may well be that at the next review hearing in 12 months’ time an application for revocation will have greater strength than is presently the case.
I therefore confirm the NCSO in respect of SC and order pursuant to s 33(2) of the Act that the matter be brought back for further review in 12 months.
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