Re Ss
[2008] VSC 621
•5 May 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
CRIMINAL DIVISION
No. 1403 of 2001
IN THE MATTER OF an Application pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997:
| SS |
JUDGE: | CUMMINS J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 April 2008 | |
DATE OF JUDGMENT: | 5 May 2008 | |
CASE MAY BE CITED AS: | DPP v SS (Crimes Mental Impairment) | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 621 | |
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Murder – insanity – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s 31 - non-custodial supervision order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J Kantor | Office of Public Prosecutions |
| For the Attorney-General | Ms Erin Gardner | Victorian Government Solicitor’s Office |
| For the Department of Human Services | Mr S Moglia | Department of Human Services |
| For the Applicant | Ms K Blair | Mental Health Legal Centre |
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HIS HONOUR:
This is an application filed in the Court on 11 March 2008 for a Non-Custodial Supervision Order pursuant to s.31 Crimes (Mental Impairment and Unfitness to be Tried Act) 1997. Alternatively, a further period of extended leave under s.57 of the Act is sought.
I heard the matter on 18 April and was satisfied on the evidence before me, both oral and documentary, that the primary Order sought, that is to say the Non-Custodial Supervision Order, ought be granted, and I granted that order. By reason of press of business in the Court that day I said I would give my reasons which now I do.
The applicant was found not guilty of murder by reason of insanity in the Supreme Court following a trial in December 1986. The constituent events occurred on
22 December 1985. By reason of the operation of the Act the applicant is currently subject to a Custodial Supervision Order. On 22 April 2005 he was granted Extended Leave for a period of 12 months. On 7 April 2006 he was again granted Extended Leave for the same period with conditions. On 20 April 2007 he was granted Extended Leave again with conditions.
I have had the benefit of reading the judgment of Kellam J of 22 April 2005, particularly paragraph 30 thereof in relation to the first of those matters, and the judgment of Williams J of 20 April 2007, particularly paragraph 43 thereof in relation to the second. I note in particular the partial reservations expressed by Her Honour in that paragraph of that judgment.
I have had the benefit before me of exhibited material, together with oral evidence of the primary caring psychiatrist, Dr Andrew Carroll. Before me tendered was the report of Dr Carroll of 11 March 2008, which I marked as Exhibit A. Dr Carroll was the consultant forensic psychiatrist at Forensicare and holds a high academic position as well.
Dr Carroll had access of course to all the Forensicare files including previous reports in the case. He initially was the applicant's treating psychiatrist from August 1998 to July 1999, when the applicant was an in-patient at M5 Unit at Mont Park Hospital. Dr Carroll also had contact with the applicant as a community psychiatrist from June to December 2003, at which stage the applicant was having overnight leave at the Northern Community Care Unit while still being an in-patient at the Thomas Embling Hospital. Dr Carroll was his treating psychiatrist in the community since March 2007.
I was most assisted by Dr Carroll's clear evidence before me. He was led in examination by Mr Moglia on behalf of the Department and was relevantly and carefully cross-examined by Ms Gardner for the Attorney and Ms Blair for the applicant.
I note in particular the opinion expressed at the final page of Dr Carroll's report as follows:
“SS has a diagnosis of chronic schizophrenia and shows some long term deficits in terms of social anxiety and social skills deficits. In his case this is compounded by borderline low intelligence. Notwithstanding these problems, he has done remarkably well since entering the rehabilitation services of Forensic Mental Health over a decade ago. His good progress has been reflected by stability and a lack of risk concerns since his move to the community several years ago. Notwithstanding his significant loading of historical risk factors on his risk profile, I believe his current risk of endangerment to himself or others to be low. His current risk profile indicates that there are essentially no current active risk factors of concern. In my opinion this will continue to be the case if he is granted extended leave again. Furthermore, it would also be my opinion that his risk level will continue to be low even if he were to be transferred to a Non-Custodial Supervision Order. I emphasise again that such a variation would not trigger a change in his treating team. Such a change would only occur after he is established in long term accommodation and Forensicare were happy that he had demonstrated stability (for at least a year) in such an environment. While managed by Forensicare he will continue to have four-weekly contact with a psychiatrist and at least the same level of contact with a Forensicare case manager."
I note that there was an incident in September 2007 when the applicant told his Salvation Army worker that he sometimes heard a voice inside his head. This was explored by Dr Carroll and other persons and Dr Carroll concluded that it was not a persistent phenomenon or one which further troubled SS.
In particular I have given attention to the question of whether a physical change of accommodation or a geographical change of area might place the applicant under stress in a way which could create danger and I am satisfied, given his history of coping with change, that he would be able to appropriately cope with future change as planned by his treating team.
Also tendered before me as Exhibit B is a report of his case manager, Mr Anthony Cursio of 15 March 2008 and I have noted its contents, in particular its conclusion:
“If SS is granted a Non-Custodial Supervision Order by the Supreme Court, local Area Mental Health Service (currently the Royal Melbourne Hospital which covers West Melbourne) will be informed via his Community Forensic Mental Health Services Case Manager. This will include a Crisis Management Plan being provided which would advise the Local Area Mental Health Service of their responsibility to admit SS into their area beds. Hospitalisation would only occur in the event he becomes unwell and has a relapse of his mental illness requiring an in-patient admission to a psychiatric hospital. SS is aware of the early warning signs [and then there is reference to those signs] in relation to his mental state and the need to contact the Community Forensic Mental Health Service or the local Area Mental Health Service should he require assistance in the event that he becomes mentally unwell. SS has presented over the last year as a low risk to harming himself and a low risk of endangering others in the community."
Finally, I have had the affidavit of SS, the applicant, placed before me, sworn 18 April 2008, and I note his good prognosis as is revealed therein.
The relevant persons affected by the proceedings have been notified and affidavits have been filed to that end.
Bearing in mind the material placed before me and the care with which it was addressed by counsel in the proceeding before me, I was satisfied and am satisfied that the Non-Custodial Supervision Order ought issue. I am satisfied consonant with s.32(2) Crimes (Mental impairment and Unfitness to be Tried) Act 1997 on the evidence available that the safety of the person subject to the order and members of the public will be not seriously endangered as a result of the release of the person on the Non-Custodial Supervision Order. For those reasons I granted the application and made the Order on 18 April 2008.
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