Re TK
[2024] VSC 53
•21 February 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0180
| IN THE MATTER of the Crimes (Mental Impairment and Fitness to be Tried) Act 1997 (Vic) | |
| -and- | |
| IN THE MATTER of a major review of a custodial supervision order imposed on TK | |
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JUDGE: | Croucher J |
WHERE HELD: | Melbourne |
DATE OF HEARING & ORDERS: | 27 November 2023 |
DATE OF WRITTEN REASONS: | 21 February 2024 |
CASE MAY BE CITED AS: | Re TK |
MEDIUM NEUTRAL CITATION: | [2024] VSC 53 |
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CRIMINAL LAW — Major review of non‑custodial supervision order (“NCSO”) — In 2009, TK attacked family member causing life‑threatening injuries — TK psychotic at time as a result of effects of schizophrenia — TK found not guilty of attempted murder by reason of mental impairment — In 2011, TK placed on NCSO with nominal term of twelve‑and‑a‑half years — In mid‑2022, TK alleged to have committed further offending against different family members — In November 2022, TK granted bail and taken to Thomas Embling Hospital (“TEH”) under emergency power of apprehension — TK commenced on Clozapine and gained insight into illness and use of illicit substances — In September 2023, TK discharged from TEH and admitted to a secure extended care unit (“SECU”) — TK progressing well at SECU — Further time needed for TK to be discharged from SECU and released into the community — Psychiatrists recommend confirmation of NCSO with further review period of 12 months — NCSO confirmed — Further major review of NCSO directed to commence within 12 months — Non‑publication order — Crimes (Mental Impairment and Unfitness to be tried) Act 1997 (Vic), ss 35, 39, 40 & 75.
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APPEARANCES: | Counsel | Solicitors |
| For the reviewee | Mr J. Dalrymple | Victoria Legal Aid |
| For Secretary to the Department of Health | Mr J. Teng | Legal, Privacy and Integrity Branch, Department of Health |
| For the Attorney-General | Mr J. Tierney | Victorian Government Solicitor’s Office |
HIS HONOUR:
Overview
On 27 November 2023, pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”), I heard a major review of a non‑custodial supervision order (“NCSO”) imposed on TK in 2011. All parties submitted that the NCSO should be confirmed.
At the conclusion of the hearing, I confirmed the NCSO, directed that the matter be brought back to this Court for further major review by 27 November 2024, and made a non‑publication order.
I indicated that I would publish written reasons for my decision and orders at a later date. These are those reasons.
Background to the making of the NCSO
I turn first to the background to the making of the NCSO in 2011.
In July 2009, while in a psychotic state arising principally from his undiagnosed delusional disorder (schizophrenia), TK attacked a member of his family, leaving him with life‑threatening injuries. He was arrested, charged with attempted murder, and held in custody.
In 2010, at a consent mental impairment hearing conducted pursuant to s 21(4)(a) of the Act, a judge of this Court found TK not guilty of attempted murder by reason of mental impairment. This was because his Honour was satisfied, based on the evidence of two psychiatrists, that, at the time of the attack, TK could not reason with a moderate degree of sense and composure about whether his conduct, as perceived by reasonable people, was wrong.[1] While there was some evidence that TK’s delusional state may have resulted from the ingestion of illicit drugs, the judge accepted that it was a product of an endogenous psychotic illness — namely, schizophrenia. His Honour declared TK liable to supervision[2] and remanded him in custody in a prison awaiting evidence concerning the form of supervision order that might be made — i.e. whether an NCSO or a custodial supervision order (“CSO”) should be imposed.[3]
[1]See s 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[2]Pursuant to s 23(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[3]Pursuant to s 24 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
In February 2011, TK was transferred from prison to Thomas Embling Hospital (“Thomas Embling”) in order to assess whether he would be manageable in the community.
On 26 August 2011, having received reports from another two psychiatrists, the judge ordered that TK be released into the community on an NCSO[4] on 29 August 2011. While a nominal term was not mentioned in the order, by operation of law, the nominal term of the NCSO was twelve‑and‑a‑half years from that date.[5]
[4]Pursuant to s 26(2)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
[5]See s 28 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
TK’s history on the NCSO
I turn now to a potted summary of TK’s progress on the NCSO.
After his discharge from Thomas Embling in August 2011 through to mid‑2015, TK largely complied with his NCSO. He had some positive urine drug screens (“UDSs”) for cannabis in that time, but he remained free of psychotic symptoms.
In November 2015, TK acknowledged some cannabis use. He said that, when he had used cannabis, his psychotic symptoms had returned, and for this reason he had decided not to use cannabis again.[6]
[6]Report of Dr Katinka Morton (dated 29 August 2016), at p 3.
In April 2016, TK had a positive UDS for amphetamines. He was admitted to hospital for further assessment, and then discharged nine days later. No psychotic symptoms were elicited.[7]
[7]Report of Dr Morton (dated 29 August 2016), at p 4.
A few weeks later, in May 2016, TK was admitted to hospital as a result of concerns about medication compliance and so that he could commence Olanzapine depot. He was discharged six days later.[8]
[8]Report of Dr Morton (dated 29 August 2016), at p 4.
In June 2016, TK was again admitted to hospital on the basis that he was using cannabis, and had assaulted an associate in circumstances similar to the attack on his family member in 2009. He acknowledged further amphetamine use.[9] On assessment 15 days later, TK was not experiencing any psychotic symptoms, and denied experiencing any prior to his admission. After the Mental Health Tribunal varied his inpatient treatment order to a community order, TK was discharged, having spent 22 days in hospital.[10]
[9]Report of Dr Morton (dated 29 August 2016), at p 4.
[10]Report of Dr Morton (dated 29 August 2016), at p 5.
In August 2016, TK was admitted to an acute psychiatric ward, and he tested positive for amphetamines. He was discharged three days later.[11]
[11]Letter from TK’s case manager (dater 12 January 2017).
In September 2016, TK was assessed as mentally stable at hospital, but he tested positive for amphetamines.[12]
[12]Report of Dr Morton (dated 7 October 2016), at [12]-[13].
In October 2016, TK was detained at Thomas Embling after being apprehended under s 30(1) of the Act.[13] A day later, the Secretary to the Department of Health made an application under s 29(1) of the Act to vary TK’s NCSO to a CSO. In December 2016, TK was discharged from Thomas Embling.[14]
[13]Report of Dr Morton (dated 11 January 2017), at [49]-[50].
[14]Report of Dr Morton (dated 11 January 2017), at [54].
In January 2017, the Secretary indicated by letter to the Court an intention to withdraw the application to vary on the basis that the clinical reports filed indicated TK presented a low risk to himself and the community, and therefore did not meet the threshold for serious endangerment. In February 2017, the application was formally withdrawn before a judge of this Court.
In July 2017, TK acknowledged he had re‑commenced cannabis use.[15]
[15]Report of Dr Morton (dated 26 July 2017), at [38].
TK had positive UDSs in March 2018 (for cannabis and amphetamines) and May 2018 (for cannabis only).[16]
[16]Report of Dr Ria Zergiotis (dated 10 October 2018), at [48].
In August 2020, TK was taken to a local emergency department with a suspected heroin overdose and suicidal ideation. He was admitted to the inpatient unit as a voluntary patient.[17] While an inpatient, three days after his admission, TK’s UDS was positive for opioids and amphetamines. He was discharged after approximately two weeks.[18]
[17]Report of Dr Zergiotis (dated 12 October 2020), at [64]-[65]
[18]Report of Dr Zergiotis (dated 12 October 2020), at [69] & [72].
TK’s suboxone treatment was ceased in mid‑2021 by his GP.[19]
[19]Report of Dr Christine Rizkallah and Dr Ria Zergiotis (dated 13 October 2021), at [23].
In June 2021, TK was involved in a car accident.[20]
[20]Report of Dr Rizkallah and Dr Zergiotis (dated 13 October 2021), at [21].
In July 2022, TK was charged with various offences, including aggravated burglary, criminal damage, making threats to kill and unlawful assault, which involved two of his family members. At the relevant time, he was experiencing an acute psychotic relapse in the context of a likely escalation of illicit substance use.[21]
[21]Report of Dr Hughes (11 November 2022), at pp 1-2.
In November 2022, TK was granted bail, and then apprehended under s 30 of the Act and detained at Thomas Embling.[22] Two days later, the Secretary filed an application under s 29(1) of the Act to vary TK’s NCSO to a CSO. The matter was listed before me on 14 November 2022 and adjourned until 28 August 2023 to allow a period of stabilisation for TK.
[22]Report of Dr Hughes (11 November 2022), at p 2.
On 25 August 2023, by consent, I adjourned the matter administratively to 27 November 2023 to allow TK to be discharged from Thomas Embling to a secure extended care unit (“SECU”) in a local hospital.
On 14 September 2023, by email, the Secretary withdrew the application to vary the NCSO to a CSO.
On 5 September 2023, TK was discharged from Thomas Embling to an SECU.
The major review
Commencement of the major review
Section 35(1)(a) of the Act provides that the Court that made a supervision order (such as an NCSO) must undertake a major review of the order at least three months before the end of the nominal term. Given the nominal term of TK’s NCSO (twelve‑and‑a‑half years) and its commencement date (29 August 2011), the date before which this Court was to commence undertaking a major review was 29 November 2023. I commenced hearing (and determined) this major review on 27 November 2023 — just before the deadline contained in s 35(1)(a).
Submissions
Mr Teng (counsel for the Secretary), Mr Tierney (counsel for the Attorney‑General) and Mr Dalrymple (counsel for TK) all submitted that the NCSO should be confirmed. For reasons I shall give shortly, I accepted that submission.
Applicable legislation
Major reviews are governed by s 35 of the Act, which, relevantly, provides as follows:
(1) The court that made a supervision order must undertake a major review of the order—
(a) at least 3 months before the end of the nominal term of the order; and
(b) thereafter at intervals not exceeding 5 years for the duration of the order.
(2) The purpose of a major review is to determine whether the person subject to the order is able to be released from it.
(3) On a major review, the court—
(a) …
(b) if the supervision order is a non‑custodial supervision order—
(i) may confirm the order; or
(ii) may vary the conditions of the order; or
(iii) may revoke the order.
(4) …
While ss 39(1) and 40(1) of the Act do not expressly refer to major reviews (whereas there is express mention of other reviews and proceedings under the Act), it would seem to stand to reason that the matters listed in those provisions should be applied to consideration of the appropriate disposition at a major review. Accordingly, pursuant to s 39(1), I regard myself as required to 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”. Further, pursuant to s 40(1), I think I must have regard to the following matters:[23]
a) the nature of TK’s mental impairment or other condition or disability; and
b) the relationship between the impairment, condition or disability and his offending conduct; and
c) whether TK is, or would if released be, likely to endanger himself, another person, or other people generally because of his 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 TK in the community; and
f) any other matters the Court thinks relevant.
[23]As to the approach to be taken to these two provisions, see, e.g., NOM v DPP & Ors (2012) 38 VR 618 at 633[47] (per Redlich and Harper JJA and Curtain AJA), which concerned an appeal against a refusal to order revocation of an NCSO upon a review of that order under s 33 of the Act.
Notification of family members and victim
Section 38C of the Act requires the Director of Public Prosecutions to give notice of a major review to family members and any victim of the offence with which the accused was charged.
The Court received an affidavit from Judith McDonnell of the Office of Public Prosecutions setting out the steps taken on behalf of the Director in respect of those obligations. Letters were sent by registered post to four of TK’s family members and delivered in October 2023. A letter was sent via express post to the victim of TK’s attack in 2009, and tracking indicated it was delivered on 22 November 2023. The address for two of TK’s family members could not be determined after searches were conducted. No reports or other responses were received.
It was indicated in written submissions filed by Ms McDonnell that the Director did not seek to appear at the hearing unless required by the Court or by any of the parties. Neither the parties nor I required the Director’s appearance.
Evidence
Reports and viva voce evidence
On this major review, a number of reports were before me, including the following:
a) a report (dated 4 August 2023) of Dr Ria Zergiotis, a consultant psychiatrist at Forensicare;
b) a second report (dated 4 September 2023) of Dr Zergiotis;
c) a report (dated 31 October 2023) of a consultant psychiatrist[24] at the SECU; and
d) a report (dated 1 November 2023) of Dr Edith Chau, a consultant psychiatrist at Forensicare.
[24]I have not named the consultant psychiatrist, as to do so might enable identification of the SECU at which TK is situated, which in turn might tend to identify TK, contrary to the non-publication order I have made in this matter. See below.
In addition to these reports, I heard brief viva voce evidence from Dr Zergiotis.[25]
Report of Dr Zergiotis (dated 4 August 2023)
Summary of background history
[25]Also before me were a report (dated 27 October 2023) of a clinical social worker at the SECU, as well as the annual reports on TK by Forensicare for each year since 2013 (which, pursuant to s 41(3) of the Act, are required to be furnished to the Court at intervals of not more than 12 months for the duration of the order), some of which are referred to in my earlier footnotes.
Dr Zergiotis has been TK’s supervising psychiatrist since September 2018. Among other things, she said the following in her first report.
TK is a single divorced disability support pensioner and father of one adult son. He has a well‑established diagnosis of chronic paranoid schizophrenia and a longstanding history of poly‑substance abuse (methamphetamine, heroin and cannabis).
TK was referred to his local crisis assessment and treatment (“CAT”) team by family members twice in 2008. He was psychiatrically assessed, and a provisional diagnosis of a psychotic illness was made. Despite this diagnosis, he was first treated with antipsychotic medication while remanded after the attack on his family member in July 2009. After being admitted to Thomas Embling in February 2011, TK was able to give a history of psychiatric symptoms predating that attack by several years.
TK experienced a range of delusional beliefs, with persecutory, religiose and sexual themes. He expressed bizarre delusions, including with respect to thought control and broadcasting, and he experienced auditory hallucinations.
Overview of progress on NCSO
Dr Zergiotis observed that, in the past, TK has had some difficulties complying with conditions of the NCSO, in particular those in relation to abstinence from illicit drugs, completing UDS testing, and maintaining appointments with his treating and NCSO teams.
In October 2016, an emergency apprehension order under s 30 of the Act was made in response to concerns raised by TK’s treating team and his family. TK was treated for an acute relapse of his psychotic illness, which occurred in the context of both cannabis and methamphetamine abuse at the time.
In August 2020, TK experienced a depressive episode which culminated in an attempted heroin overdose and a reported verbal altercation with a family member. This required a voluntary admission to an inpatient psychiatric unit. Thereafter, he remained a voluntary patient receiving psychiatric treatment and, for a period, had been compliant with his depot medication and appointments.
In July 2022, TK was remanded in a prison on charges of family violence offences. Prior to this behaviour, it was reported that TK had sold his flat and was living out of his car. He appears to have experienced an acute psychotic relapse characterised by persecutory delusions, in the context of a likely escalation of illicit substance use (of methamphetamines and cannabis).
TK was admitted to the Erskine unit at Ravenhall Correctional Centre on 11 August 2022. He was difficult to assess on the unit, but had clear negative views towards his family and he reported intrusive auditory hallucinations. He continued to receive assertive psychiatric treatment in prison until he could be transferred to Thomas Embling under s 30 of the Act.
Summary of progress at Thomas Embling Hospital
TK was admitted to the Apsley unit of Thomas Embling on 8 November 2022. On admission, he reported experiencing some ongoing paranoia and continuing to hear a low‑pitched ringing sound and glass breaking, which he thought was likely related to his hearing issues or hallucinations. He declined a trial of Clozapine.
In November 2022, TK reported that he had been prescribed methadone by a GP several months earlier to assist him with ceasing heroin. He also reported that he had been using intravenous heroin and smoking methamphetamines on a regular basis prior to his arrest on the family violence charges.
TK was transferred from the Apsley unit to the Atherton acute unit at Thomas Embling on 25 November 2022. While there, he disclosed that he had been using up to four points of heroin daily in the community and that he had spent funds from the sale of his unit to fund his habit.
He was approved for unescorted on‑campus leave on 29 December 2022.
On 14 February 2023, TK reluctantly commenced on a trial of Clozapine.
On 9 May 2023, it was observed that there was a significant improvement in TK’s mental state since he had commenced Clozapine. He was noted to be more reactive than his baseline, and he demonstrated improved insight on the impact of substance abuse on his mental health.
From 12 May 2023, TK engaged with a psychologist approximately weekly.
TK had off‑campus leave to a local hospital on 21 June 2023 for an abdominal x‑ray and an ultrasound of his legs, and to a local optometrist on 22 and 29 June and 6 July 2023, all of which went well and were without incident.
On 3 July 2023, TK reported hearing a woman’s voice. The voice, he said, which was unfamiliar to him, called his name from time to time. He would often look around but find no one there. He said that this was new, but non‑distressing. He remained convinced about some of his delusions. His insight into his diagnosis and associated symptoms remained poor, but he remained compliant with treatment and motivated to remain abstinent from substances.
On 7 July 2023, TK was transferred to the Bass subacute unit at Thomas Embling.
By 18 July 2023, TK had settled well on the unit, spending time in the communal area, with discharge planning to continue.
By 27 July 2023, TK had enrolled in several TAFE classes, which included computers, furniture making and building and construction.
On 1 August 2023, TK reported ongoing auditory hallucinations of a voice calling his name, and possible persecutory delusions involving past memories. He had partial insight, with ambivalence about his diagnosis.
Opinion and recommendations
In conclusion, Dr Zergiotis put her opinions and recommendations in these ways:[26]
… [TK] was referred to the … SECU … as a possible step‑down option to continue his psychosocial rehabilitation. It is anticipated that he will continue to improve on the Clozapine over the next six to 12 months and the SECU environment can provide adequate treatment and monitoring in a secure setting with a multidisciplinary team.
[TK]’s imminence of future violence, his risk of being violent in the near future, has been deemed moderate for both [Thomas Embling] and [an] SECU, due to both being inpatient hospital settings with treatment supervision and monitoring. [TK] is not currently suitable for independent living and requires intensive treatment and supervision for at least the next 12 to 18 months. It is anticipated that [an] SECU bed may become available in September 2023, and that [TK] can continue to be supervised under the NCSO in the community.
Second report of Dr Zergiotis (dated 4 September 2023)
Progress on the Bass unit in August 2023
[26]Report of Dr Zergiotis (dated 4 August 2023), at [141]-[142].
Dr Zergiotis’s second report was written a month after the first.
She noted that TK continued drug and alcohol counselling whilst on the Bass unit at Thomas Embling.
By 21 August 2023, he had been attending the gym, three TAFE courses, and had recently commenced cooking sessions.
Dr Zergiotis observed that, as of 22 August 2023, TK continued to be supported by his son, who requested to be updated about the discharge plans. TK, however, had had no contact with other family members, as there were three active intervention orders in place.
He had escorted off‑campus leave on 8, 25 and 31 August 2023, all of which went well, with no concerns noted.
Review of risk assessment
Dr Zergiotis repeated the view of risk she had expressed in her first report, which was to the effect that TK’s imminence of future violence, his risk of being violent in the near future, had been deemed low to moderate for both Thomas Embling and an SECU, as both are inpatient hospital settings with treatment supervision and monitoring.
Opinion and recommendations
On this occasion, Dr Zergiotis’s put her concluding opinions in this way, which, again, were similar to those expressed in her first report:[27]
… It is anticipated that [TK] will continue to improve on the Clozapine over the next six to 12 months and the SECU environment can provide adequate treatment and monitoring in a secure setting with a multidisciplinary team.
… [TK] is not currently suitable for independent living and requires intensive treatment and supervision for at least the next 12 to 18 months. The plan to discharge [TK] to the … SECU bed on 5 September 2023 is supported by the NCSO team, and TK will continue to be supervised under the NCSO in the community.
[27]Report of Dr Zergiotis (dated 9 September 2023), at [34]-[35].
As indicated earlier, in accordance with that plan, TK was discharged from Thomas Embling to an SECU on 5 September 2023.
Report of consultant psychiatrist at SECU (dated 31 October 2023)
Progress at SECU
Nearly two months after Dr Zergiotis’s second report, a consultant psychiatrist at the SECU provided a report on TK’s progress at the SECU.
The psychiatrist said that TK did not present any challenging behaviours, and that he integrated well within the SECU. He spent most of his time in his room with limited engagement for activities.
TK’s mental state remained stable and he denied any obvious psychotic symptoms. He reported that Clozapine had helped him to realise some of his mistakes and also to reflect on the harmful effects of illicit substance use.
TK was initially given escorted leave, which was successful. A trial of unescorted leave was started over the two weeks prior to the report, and it had been successful as well.
TK underwent several occupational therapy assessments to establish his functional limitations to support his re‑application for NDIS funding.
His mental state was stable within a structured inpatient rehabilitation unit, which was thought likely to be a result of compliance with medications and an absence of access to illicit drugs.
TK had not presented with any significant risk behaviours in his time at the SECU. However, given that it is known that TK’s risk to others increases in the community in the context of illicit substance abuse and non‑compliance with his medications, the psychiatrist opined that TK’s transition to community must be carefully planned with adequate support framework to minimise the risk to others.
The psychiatrist also opined that TK needed a further period as an inpatient to enable a safe transition to a community setting.
At the time of the report, TK did not have stable accommodation, and he required ongoing support and follow up from the community team.
Finally, the psychiatrist recommended that TK’s NCSO should continue for another 12 months to enable structured rehabilitation and careful community reintegration.
Report of Dr Chau (dated 1 November 2023)
Report to be read with reports of Dr Zergiotis
Dr Chau’s report was the most recent, and was intended to be read alongside the two reports of Dr Zergiotis.
Review of progress in SECU
Dr Chau noted that, on 19 September 2023, a doctor advised that TK’s mental health had remained settled since his arrival at the SECU. He initially isolated himself but was spending more time in communal spaces over time. He was visited by his son. He also engaged with the alcohol and other drug clinician and was now prescribed depot Sublocade (a long acting, injectable suboxone).
On 26 September 2023, TK reported missing his friends at Thomas Embling, and feeling bored. He had not been granted escorted leave. He discussed the importance of family connection and was apologetic for what had occurred. He said that he did not experience side effects from Clozapine and that that drug had converted him into a different person. He reported experiencing low grade auditory hallucinations. In Dr Chau’s view, his insight into his illness, treatment and discharge options was good.
On 16 October 2023, a referral was planned for a drug and alcohol counselling service, as TK had expressed a desire to engage in such treatment. It was anticipated that he would remain at the SECU for roughly the next six months with the goal of setting up adequate psychosocial supports in the community to allow him to transition back to the community.
On 23 October 2023, TK said (again) that he missed his friends in Thomas Embling, as well as the increased freedom that he had there. He also said that his son was continuing to visit him, and he hoped to live with him and his ex‑partner after his eventual discharge from the SECU. He reported having two close friends who still visited him and having recently spoken to his mother.
TK identified that Clozapine was a good medication but that he experienced excessive salivation. He said that he heard noises rather than voices now, and that they were not troublesome. He explained that he had not used illicit substances for some time. He said that living alone and boredom had contributed to his substance use in the past.
Review of risk assessment
By application of the HCR‑20 risk assessment tool, Dr Chau assessed that TK has all ten historical risk factors, three out of five clinical risk factors, and three out of five risk management risk factors.
Dr Chau was of the opinion that TK’s risk of future violence was low to moderate while in the SECU setting. He had a high baseline risk of violence due to historical factors, but this was mitigated by his current circumstances and those anticipated over the next 12 months.
Dr Chau opined that, if TK were to be discharged from the SECU, effort would need to be made to ensure that his living situation is addressed beforehand, that he is engaged with mental health services in the community, and that he receives counselling to address his substance use and coping more generally.
Opinion and recommendations
Dr Chau ultimately offered the following opinions and recommendations:[28]
Since transfer to [the] SECU, [TK] has maintained his clinical improvement and has improved insight. Adherence to Clozapine has not been an issue and he has remained abstinent from substance use.
As his mental state continues to improve, [TK] will progress through a process of gradually utilising more and less restricted leave from the unit. He is also planned to engage with a psychologist, substance use counselling, reapply for the NDIS and find new accommodation in the community.
[TK]’s risk of future violence is low to moderate in the setting of the SECU. If [TK] were to be discharged from [the] SECU, effort would need to be made to ensure that his accommodation is arranged, that he is re‑engaged with community mental health services and that he receives counselling to sustain abstinence from substance use and develop better coping strategies more generally.
Given that [TK]’s risk of violence has been mitigated by his containment in an inpatient unit, commencement on Clozapine and subsequent improved mental state, we would support [TK] remaining on an NCSO. This would allow for [TK] to remain supported while he consolidates his improvements and while he transitions from the SECU back to the community. We would suggest a review of this in 12 months’ time.
Dr Zergiotis’s viva voce evidence
[28]Forensicare Report of Dr Chau (dated 1 November 2023), at [40]-[43].
In her viva voce evidence, Dr Zergiotis adopted the contents of Dr Chau’s report, and added the following.
She conducted a supervision review on 20 November 2023. TK continued to present as stable with a good level of remission of his psychotic symptoms. He presented with very good insight, both into his illness and the need for treatment, and into the importance of remaining abstinent from illicit drugs. He also had improved insight into his recent offending. Dr Zergiotis attributed his improved insight to his treatment with Clozapine.
Dr Zergiotis said that TK is fully compliant with his medication regime, which consisted of 275 mg of Clozapine daily and 30 mg of Aripiprazole daily. He was also engaging well with the rehabilitation programme at the SECU.
TK reported ongoing abstinence from use of illicit substances. He engaged with a specialist drug and alcohol service at Thomas Embling, and remained highly motivated to remain abstinent from all illicit substances in the future.
Dr Zergiotis noted that TK had a small amount of unescorted leave in the community as part of his graduated leave programme. In her view, he will require a high level of monitoring in the coming months, especially as his level of unescorted leave increases.
Like Dr Chau, Dr Zergiotis opined that there will need to be very careful discharge planning to make sure that TK had appropriate housing, and appropriate community linkages and supports. That planning was currently underway between TK and his treating team. This process would most likely take several months in terms of planning and a gradual reintegration into the community with increased independence.
In Dr Zergiotis’s opinion, TK currently had a low risk of future violence. She attributed this revision (down from being a low to moderate risk) to TK’s settling into the SECU, complying with treatment, and engaging well, which is an improvement to his risk management factors.
Finally, Dr Zergiotis opined that TK’s NCSO ought to be confirmed and remain in place while he is at the SECU. She was also of the view that a review in 12 months would be appropriate to allow for TK’s ongoing psychological rehabilitation and community reintegration.
Conclusions on major review
TK’s progress while on his NCSO has not been linear. That is not unusual for person on orders under the Act and with a history like TK’s.
While TK had a significant stumble in the middle of last year with his most recent criminal charges, he used his time at Thomas Embling productively and appeared to be doing the same at the SECU.
Plainly, it is important that, as TK is reintegrated into the community, he remains compliant with his medication regime and abstinent from the use of illicit substances, something he appears motivated to do thanks to the insight gained by his use of anti‑psychotic medication.
Notwithstanding his earlier stumbles, in the main, TK’s progress has been commendable, and things have changed quite quickly for him in his transition from Thomas Embling to the SECU.
While all of the reports were helpful in informing me as to that progress, the more recent opinions of Dr Chau in her report and Dr Zergiotis in her viva voce evidence helped illuminate how TK was progressing at the time of hearing this major review. I accepted Dr Zergiotis’s revised opinion with respect to TK’s current risk. None of these opinions was challenged. I add that they appeared reasonable to me in light of the evidence, including TK’s previous and current progress on the NCSO.
I had regard to the principles set out earlier in ss 39(1) and 40(1) of the Act. Plainly, a revocation of the NCSO would present lesser restrictions on TK’s freedom and personal autonomy. But I was satisfied that a revocation would not, at the present time, be consistent with community safety or TK’s treatment regime.
On all of the evidence available, and having regard to the joint submission of the parties, in my view, it was appropriate that TK’s NCSO be confirmed.
Further major review in 12 months
Mr Dalrymple submitted that, in accordance with the evidence and opinions of the consultant psychiatrist at the SECU, Dr Chau and Dr Zergiotis, the matter should be listed for a major review in 12 months’ time.
I accepted that that was an appropriate period within in which to bring this matter back before the Court. Should TK’s progress continue as it has been, in 12 months’ time, he is likely to be back living in the community. A further major review in 12 months will give those monitoring and treating TK, and the Court, an opportunity to determine how well he is coping on his new medication regime when not in either Thomas Embling or the SECU, as well as his ability to stay abstinent from illicit substances.
I also accepted the submissions of counsel that, as this was a major review conducted under s 35(1)(a) of the Act, my power to direct this matter be brought back for major review derived from s 35(1)(b). Given the terms of that provision, I could direct that a major review be brought before the Court for a period not exceeding five years.[29]
[29]This is in contrast to the powers under s 33 of the Act, which allow the Court to direct that a further review be brought before it at the end of a period specified.
Accordingly, pursuant to s 35(1)(b), I directed that a further major review of TK’s NCSO be brought before this Court within 12 months (i.e. by 27 November 2024).
Non-publication order
Finally, I turn to the application for a non‑publication order pursuant to s 75(1) of the Act.
Mr Dalrymple formally applied for such an order on behalf of TK. Neither Mr Tierney nor Mr Teng opposed that application.
At the end of the hearing, Dr Zergiotis was recalled and gave the following evidence:
I would … be supportive of a suppression order … be[ing] put in place in terms … [of it] assisting [TK] in his overall psychosocial rehabilitation … and … in the event that any publication of these proceedings … may cause some stress for him. So I support the suppression order.
I accepted the (unchallenged) evidence of Dr Zergiotis.
In matters such as this, it is particularly important that the rehabilitation of the reviewee is not put in jeopardy by the stress that may come with public identification and any associated reliving of distressing past events. Avoidance of those things not only assists the reviewee, but is also in the interests of the community.
Thus, it is important that the reviewee not be identified. That is why TK has been referred to in these reasons by randomly chosen initials, and why other parts of the reasons have been written in a way that limits the chances of his being identified.
In those circumstances, in accordance with s 75 of the Act, I was satisfied that it was in the public interest to make a non‑publication order in the terms set out below.
Orders
It was for these reasons that I made the following orders on 27 November 2023:[30]
[30]As edited to comply with the non-publication order.
1) Pursuant to s 35(3)(a) of the Act, the non‑custodial supervision order made by [a judge of this Court] on 26 August 2011 is confirmed.
2) Pursuant to s 35(1)(b) of the Act, a further major review of the non‑custodial supervision order is to be brought before the Court within the next 12 months (i.e. by 27 November 2024).
3) Pursuant to s 75(1) of the Act, except to the extent contained in the written reasons of the Court to be published in this matter at a later date [i.e., these reasons], no one shall publish any information arising from this major review that might enable the reviewee to be identified.
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