Re SJ
[2024] VSC 578
•17 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0004
| IN THE MATTER of an application for variation of supervision order pursuant to s 31 or further extended leave pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 | |
| and | |
| IN THE MATTER of an application for variation of supervision order or further extended leave by SJ | |
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JUDGE: | NIALL JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 September 2024 |
DATE OF ORDERS: | 17 September 2024 |
DATE OF REASONS: | 20 September 2024 |
CASE MAY BE CITED AS: | Re SJ |
MEDIUM NEUTRAL CITATION: | [2024] VSC 578 |
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CRIMINAL LAW – Mental impairment – Application for variation of supervision order – Whether safety of the person subject to the order or members of the public will be seriously endangered as a result of the variation – Application supported by treating experts, the Secretary and the Attorney-General – Application for variation granted – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss 31–2, 39–40.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms O Ridley | Victoria Legal Aid |
| For the Secretary, Department of Health | Ms M Wilson | Department of Health |
| For the Attorney-General for the State of Victoria | Mr N Boyd-Caine | Victorian Government Solicitor |
HIS HONOUR:
This is an application to vary a custodial supervision order (‘CSO’) to a non-custodial supervision order (‘NCSO’) made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘Act’).
Applicable legislation
The application is made under s 31 of the Act. The application having been made, the Court must either confirm the order, vary the place of custody, or vary the order to an NCSO.[1] In summary, a CSO must not be varied to an NCSO unless the Court is satisfied by the available evidence that the safety of the person subject to the order or members of the public will not be seriously endangered as a result.[2] It is also a requirement that the applicant has completed a period of at least 12 months’ extended leave, granted by the Court under s 57 of the Act, and the Court must take into account whether the applicant has complied with any conditions associated with such leave.[3]
[1]The Act, s 32(1).
[2]Ibid s 32(2).
[3]Ibid s 32(3).
In exercising this discretion, the Court must have regard to the factors set out at s 40(1) of the Act, 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.
The Court’s discretion must also be exercised in conformity with the principle of parsimony set out at s 39(1) of the Act — that is, restrictions on a person’s freedom and personal autonomy should be kept to the minimum that is consistent with community safety.
In NOM v Director of Public Prosecutions (‘NOM’), the Court of Appeal considered the meaning of ‘endanger’ for the purposes of s 40(1)(c) of the Act. While ‘serious endangerment’, referred to elsewhere in the Act, takes into account the gravity of harm that might result, endangerment is concerned with the likelihood of harm materialising.[4] The Court of Appeal explained:
Endangerment is about the risk of harm. 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.[5]
[4]NOM v DPP (2012) 38 VR 618, 635–8 [54]–[60] (Redlich and Harper JJA and Curtain AJA).
[5]Ibid 637 [58].
The relationship between s 39 and s 40(1) was considered in NOM, with the Court of Appeal commenting on the discretionary nature of the decision called for by those provisions. Their Honours stated:
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.[6]
[6]Ibid 633 [47].
As a supervision order under the Act represents a restriction on an individual’s liberty and autonomy, it cannot be justified unless determined to be necessary.[7]
[7]Ibid 642 [71].
The Court may direct that the matter return for a further review at the end of a specified period.[8]
[8]The Act, s 32(5).
Finally, the Court may make a suppression order under s 75 of the Act where satisfied it is in the public interest to do so. That is a matter to which I shall return.
Notification of family members and victims
Section 38C of the Act requires the Director of Public Prosecutions to notify family members and victims of certain hearings under the Act, including an application to vary a CSO to an NCSO,[9] and to provide those family members or victims with the information specified in s 38E.[10] I am satisfied that there has been compliance with this requirement.
[9]Ibid s 38C(2)(c).
[10]Ibid s 38E(2).
The evidence
The application is based on two reports, one from the applicant’s supervising psychiatrist, Dr James Belshaw, dated 27 August 2024 and the other from her case manager at the Community Treatment and Transition program (‘CTTP’), Ms Donna Melia, dated 27 August 2024. Both clinicians support the application.
I granted extended leave to the applicant in 2022 and 2023 and my reasons for those orders set out much of the background.[11] It is unnecessary to rehearse it all. The current reports refer to that earlier material and provide an update as to the present position.
[11]Re SJ [2022] VSC 810R; Re SJ [2023] VSC 614.
Dr Belshaw notes that to an extent the applicant’s psychosis has been intractable but has been controlled by clozapine. There remain some ongoing manifestations of delusional belief. The applicant also has significant health issues and impaired mobility.
The applicant is currently residing in supported accommodation where it is intended she will remain. She is on the NDIS and has the benefit of funded support workers who have largely been helpful although there have been some changes to providers.
Dr Belshaw says that the applicant remains at a low risk of future violence having regard to both static and dynamic factors. I accept that evidence. He concludes:
In my opinion [SJ’s] 24 months of Extended Leave should be viewed as a success. Her mental health has remained stable during the period of transition, despite several stressors, including the death of [a family member] and accidental omission of her clozapine medication.
In my opinion [SJ’s] recovery within the auspices of the CTT team has been optimised. At the same time her physical health needs have outpaced the level of expertise and input that can be provided between the specialist forensic CTT team and her community GP alone.
Therefore, I believe that [SJ] would benefit from a variation to an NCSO, so that she can have enhanced access to non-forensic public health services, whilst her mental health can continue to be monitored and treated by the local AMHS.[12]
[12]Report of Dr James Belshaw dated 27 August 2024, [52]–[54].
Ms Melia is similarly supportive.
The Attorney-General and the Secretary to the Department of Health similarly support the application to vary the CSO to an NCSO.
I am satisfied that neither the community nor the applicant would be seriously endangered if the order were varied to an NCSO. In reaching that conclusion, I accept the evidence of Dr Belshaw and Ms Melia and note that it is consistent with the picture that has emerged over the last few years of treatment and support. I find that:
(a) The applicant is at low risk of future violence. There have been no reports of substance use in the preceding 12 months;
(b) The applicant’s mental state has remained stable over the past 24 months of extended leave;
(c) The applicant has had excellent attendance at appointments over the past 12 months and has demonstrated good engagement with her treating team;
(d) The applicant remains fully compliant with her medication.
(e) The applicant continues to have stable housing, with access to professional services including her NDIS-funded psychologist; and
(f) The applicant has been accepted by her local mental health service. She has been allocated a treating psychiatrist and case manager, with a handover to occur prior to 17 September 2024.
I am also of the opinion that the variation of the CSO to a NCSO is consistent with 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. There will be a change in the treating team as a result of the variation of the order but Dr Belshaw has explained in his evidence that there will be a similar frequency and level of monitoring and support within the community setting. He notes that there will be no forensic specialists within the local area team but that the community treatment team of Forensicare will still have a role to play and will provide support and supervision to the applicant in the community.
I am satisfied that there are adequate resources available for the treatment and support of the applicant in the community. She will continue to reside at the Supported Independent Living home funded by her NDIS plan should the order be varied. She will be supported by the local Area Mental Health Service, supported by Forensicare’s NCSO team. She has also been referred to an enhanced physical health outreach program for people with chronic disease and/or complex needs who are at risk of presenting to hospital frequently. The applicant will also remain supported by other NDIS-funded supports and professional inputs, such as occupational therapists.
I am satisfied that with the community supports she has, including NDIS support workers, she will be able to access these supports. And I note Dr Belshaw’s evidence that over time the applicant has engaged positively with new members of treating teams and although she has found that change to routine difficult at times, including, for example, finding new locations form which treatment is provided, he was satisfied that there will be sufficient support in the community to enable her to transition and overcome those difficulties.
It follows that I am satisfied that it is both appropriate and necessary to vary the CSO to an NCSO. I will make the order on the conditions recommended by Dr Belshaw in his report.
Suppression order
Dr Belshaw also explained that a suppression order (noting that one is currently in place) would be of value in terms of therapeutic benefit and treatment and that disclosure of the details of the report would put at risk to some extent the applicant’s treatment and recovery that has been demonstrated today. I am satisfied that there is a therapeutic benefit in the continued application of a suppression order. I am also satisfied that it is necessary to make that order in the public interest to ensure that the community is adequately protected by the continuing therapeutic gains the applicant has achieved to date. Accordingly, I will also make a suppression order.
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CERTIFICATE
I certify that this and the 6 preceding pages are a true copy of the reasons for judgment of Niall JA of the Supreme Court of Victoria delivered on 20 September 2024.
DATED this twentieth day of September 2024.
Associate
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