Re WL
[2021] VSC 689
•25 October 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CR 2018 0260
| IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| and |
| IN THE MATTER of an application by WL under section 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 for revocation of a non-custodial supervision order and a review of a non-custodial supervision order under section 32(5) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 August 2021 |
DATE OF JUDGMENT: | 25 October 2021 |
CASE MAY BE CITED AS: | Re WL |
MEDIUM NEUTRAL CITATION: | [2021] VSC 689 |
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CRIMES MENTAL IMPAIRMENT – Review of a non-custodial supervision order (‘NCSO’) – Application for revocation of NCSO – Generally good progress by applicant on NCSO – Some instability in residence and presence of residual illness in first year of NCSO – Supervising psychiatrist supportive of revocation – Expert evidence that risk posed by applicant low whether NCSO in place or not – Views of experts formed over limited period of time applicant on NCSO – Application supported by Secretary to the Department of Health – Application opposed by Attorney-General - Principle of parsimony – NCSO confirmed – Further review to occur within 12 months – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 31, 32, 33, 39 and 40.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Bevan | Victoria Legal Aid |
| For the Secretary to the Department of Health | Ms E Frawley | Legal Services Branch, Department of Health |
| For the Attorney-General | Mr L McAuliffe | Victorian Government Solicitor’s Office |
| For the Director of Public Prosecutions | Ms L Custovic | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
The applicant (‘WL’) was made the subject of a non-custodial supervision order (‘NCSO’) on 22 August 2019.[1] She now applies for revocation of the NCSO. This application is brought alongside a review of the NCSO pursuant to s 32(5) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’).
[1]DPP v Brook (a pseudonym) [2021] VSC 566 (Hollingworth J) (‘Brook’).
BT’s application to revoke the NCSO is supported by the Secretary to the Department of Health (‘the Secretary’). The position of the Attorney-General (‘the Attorney’) is that the NCSO ought to be confirmed and brought back for further review in six to twelve months’ time.
The Director of Public Prosecutions (‘the Director’) was excused from attendance at the hearing, having discharged her obligation to notify the victims of the index offence and family members of WL of the matters set out in s 38C of the Act. I note that the Court has not received any reports from these individuals pursuant to s 42 of the Act.
Background
The applicant is a 48 year old woman, born in China. She married her husband in 1996. They moved to Australia in 2004 and had their son. In 2016, the applicant and her husband separated and then divorced.
In January 2018, the applicant was diagnosed with breast cancer and underwent treatment. The applicant’s ex-husband returned to residing at the family home to assist with caring for the applicant and their son. The applicant’s ex-husband slept in a separate bedroom.
The applicant developed symptoms of depression and anxiety shortly after her diagnosis with breast cancer. She also experienced suicidal ideation from February 2018.
The applicant received some psychiatric support leading up to the index offence, including trialling an anti-depressant (mirtazapine) and an anti-psychotic medication (quetiapine), which she had ceased taking prior to the index offence. She was also prescribed an anti-anxiety medication (diazepam) during this time. Associate Professor Andrew Carroll opined that on the applicant’s description the anti-depressant may have exacerbated her suicidal thinking (a recognised possible side effect), and the anti-psychotic may have further dulled her emotions such that she felt already dead, indicative of a phenomenon called ‘depersonalisation’ in which people with severe depressive symptoms feel detached from the real world.[2]
[2]Report of Associate Professor Carroll dated 28 September 2018 [139], [141] (Appendix 4 to the Summary of Proceedings and Facts).
In the lead up to the index offence, the applicant made attempts on her life.[3] She also developed thoughts that killing her son would solve the problem of who would care for him when she died (as she did not believe that her ex-husband could adequately do so), while killing her ex-husband was to avoid him waking up and intervening in her plan.[4]
[3]Report of Drs Trisno dated 5 July 2021 [13].
[4]Ibid [12], [14].
The victims in this matter are the applicant’s ex-husband and their son who was aged 11 years at the time of the index offence. Shortly after midnight on 23 May 2018, whilst in the grips of a major depressive episode, the applicant entered her ex-husband’s bedroom with a cup of methylated spirits and a bundle of bamboo sticks, the ends of which had been wrapped in toilet paper, doused in methylated spirits and set alight.
WL poured the cup of methylated spirits onto her ex-husband’s face and bedspread whilst he lay asleep and dropped the lit sticks onto the bed. The victim awoke to find his clothes and bed on fire and the applicant standing next to the bed, spraying him with water from the bathroom. The victim ran downstairs and the applicant called 000, requesting the Fire Brigade and an ambulance. Their son, who was asleep in a nearby bedroom, was woken by the smoke alarm and directed by the applicant to go outside.
The applicant was charged with the attempted murder of her ex-husband and conduct endangering the life of her son.
On 1 April 2019, a consent mental impairment hearing proceeded before Hollingworth J in this Court. Her Honour was satisfied that the evidence established the defence of mental impairment pursuant to s 20(1)(b) of the Act and directed that verdicts of not guilty because of mental impairment to the two charges on the indictment be recorded. WL was declared liable to supervision under Part 5 of the Act. On 22 August 2019, a NCSO with a nominal term of 25 years was made, expressed to commence on 23 May 2018.[5]
[5]Brook, [42].
Amongst other orders made by her Honour on 22 August 2019, the matter was directed to be brought back to the Court for further review no later than 22 August 2021.By notice dated 5 August 2021, WL commenced an application for revocation of the NCSO.
The law
The revocation application is made by WL under s 31 of the Act and the review was directed under s 32(5).
Section 33 of the Act provides:
(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.
Section 39(1) of the Act provides:
(1)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) provides:
(1)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) sets out certain preconditions to the making of orders, including an order that significantly reduces the degree of supervision to which a person is subject. I am satisfied that all of the requirements of s 40(2) have been met in this case.
The interplay between ss 39(1) and 40(1) was addressed by the Court of Appeal in NOM v Director of Public Prosecutions (Vic) (‘NOM’):[6]
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. 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.[7]
[6](2012) 38 VR 618 (Redlich and Harper JJA and Curtain AJA) (‘NOM’).
[7]Ibid 633 [47] (citations omitted).
In Re BK,[8] Kaye J[9] described the process of revoking a NCSO as a particularly serious step which:
removes the last means by which the court can supervise the treatment and disposition of the Applicant. In effect it leaves the Applicant significantly to his own devices in maintaining his regime of treatment. Accordingly, I would only grant an application to revoke the Applicant’s non-custodial supervision order, if I were well satisfied, by sufficiently cogent evidence, that the Applicant would not endanger the community or himself were I to do so.[10]
[8][2015] VSC 214R.
[9]As he then was.
[10]Ibid [41].
Their Honours in NOM noted that, while considerations relating to community safety in ss 39(1), 40(1)(c) and (d) may be given greater prominence in the court’s overall balancing of relevant factors, they must not be elevated to the status of a decisive factor.[11] In making a determination, the Act does not require ‘psychiatrically underwritten guarantees that persons subject to [supervision] orders pose no possible danger’.[12] The relevant consideration is whether there is a ‘real as opposed to fanciful’ chance of endangerment as a result of a NCSO being revoked.[13]
[11]NOM 634 [49].
[12]Ibid 640 [65].
[13]Re Friedman (a pseudonym) [2019] VSC 251 (Niall JA) [69] (‘Friedman’).
Expert evidence
The Court received the following expert reports, and heard evidence from the authors of three of them:
(a) Annual Report of Dr Rose Clarkson dated 5 August 2020;
(b) Report of Dr Roth Trisno dated 5 July 2021;
(c) Report of Dr Ashis Vikas dated 8 July 2021;
(d) Report of Mr Benny Sebastian dated 13 July 2021.
Dr Clarkson
Whilst the report of Dr Clarkson was not tendered before me, and she was not called to give evidence, the report was provided to the Court by Forensicare on 26 November 2020 as the annual report prepared pursuant to s 41(3) of the Act and was referred to by Dr Trisno in his report. Dr Trisno indicated that his report would focus on the applicant’s progress since August 2020. Her progress on the NCSO from 2019 to 2020, indicated Dr Trisno, had been discussed in the previous report.[14] In the circumstances, whilst the principle report relied upon by the Secretary in the hearing was that of Dr Trisno, which was put forward as fulfilling the requirement of s 41(3) of the Act, the report of Dr Clarkson provides background for the period of the NCSO not specifically dealt with by Dr Trisno. It is able to be considered under s 40(2)(e) of the Act.
[14]Seemingly a reference to Dr Clarkson’s report, which, like Dr Trisno’s report, had been supervised by Dr Ria Zergiotis.
In her report, Dr Clarkson, as indicated already, set out the progress of the applicant from the time of the making of the NCSO until August 2020. The report summarised the results of the Forensicare reviews of the applicant on 16 September 2019, 19 December 2019, 30 April 2020 and 30 July 2020.
Whilst it would be correct to describe the overall progress of the applicant during the period as significant, that progress was not entirely linear. The depression from which the applicant suffered remained a factor for some time and indeed, in April 2020, the applicant contacted her treating team case manager to discuss a recent deterioration in her mood. Whilst not actively suicidal, the applicant expressed what was described as ‘a passive death wish not to be alive anymore’,[15] and she also expressed a desire to go back to prison because it would be ‘easier’ than her current situation.
[15]Report of Dr Clarkson [29].
The applicant was assessed by the treating team psychiatrist Dr Jothibabu on 28 April 2020 as presenting with mild to moderate depressive symptoms, in the context of the disruption caused by the COVID-19 pandemic.
At the review on 30 April 2020, the NCSO team supported the treating team’s plan for increased monitoring of the applicant, with fortnightly medical reviews and twice-weekly check-ins by the case manager. The NCSO team also recommended that the ex-husband of the applicant be contacted to discuss the current presentation and to be made aware of potential risk issues.
At the review on 30 July 2020, Dr Clarkson considered that the applicant appeared to be coping well with recent life changes, and was then in full remission from her depression.
In terms of her risk assessment, Dr Clarkson noted that the applicant had not presented with active symptoms of psychosis since her release from prison. Her depressive disorder seemed to have responded to pharmacological and psychological therapy and although she had had a partial relapse within the last 12 months, this had been well managed. The applicant had demonstrated good insight into her illness and remained motivated to remain in treatment.
The applicant’s risk was assessed as low. In terms of future risk, if she were to become non-adherent with medication, in conjunction with exposure to stressors, there was a clear risk that her depressive and possibly psychotic symptoms would return.
Dr Clarkson noted the changes of service providers which had occurred had been a barrier to the formation of a stable long-term therapeutic relationship with her treating team. She considered that the applicant would benefit from longer-term psychological work to address some of the underlying factors which had contributed to her depression.
Dr Clarkson described the applicant as being early in her recovery, and indicated that notwithstanding the significant progress she had made, the NCSO still served a role in maintaining her safety in the community and managing her future risks.
Dr Trisno
Dr Trisno is a forensic psychiatry registrar employed by Forensicare who was responsible for the management of the applicant on the NCSO in the year leading up to the current review. In the report, Dr Trisno noted that in the quarterly supervision reviews in the NCSO program, the applicant did not present with any mood or psychotic symptoms. She had demonstrated a good understanding of her illness, was agreeable to treatment and was fully compliant with the conditions of her NCSO.
In August 2020, at a case conference between the NCSO team, the treating team, Child Protection Services (‘CPS’), and others, the progress of the applicant and the potential for family reunification were discussed. It was determined that any further relocation applications by the applicant would not be supported until she had demonstrated a period of stability and engagement with her new Northern Area Mental Health Service (‘NAMHS’) treating team and she had been established with a psychologist.
In November 2020, a case conference was convened by CPS involving the applicant, the Noogal Clinic[16] treating team, the NCSO coordinator, and others. At the time, the applicant was permitted unsupervised access to her son four times per week, during which he would have unsupervised overnight stays at her house. The applicant and her ex-husband were both happy with this arrangement, but the ex-husband had sought increased contact and for the applicant to be able to sleep overnight at his home with their son. It was the recommendation of CPS that a further 12 month child protection order was needed to observe a further period of stability before increased contact could be considered.
[16]The clinic at which the applicant has been treated since under the treatment of the NAMHS (‘Noogal’).
At a case conference between the treating team, the NCSO team and others on 28 June 2021, Dr Vikas confirmed the applicant’s depressive illness to be in remission and that she had not displayed mood or psychotic symptoms in her reviews. He noted her to be adherent to medication, very high functioning, and to be enjoying her role as a mother and an accountant. He would likely recommend lifelong treatment given her illness history but considered that she could be managed without the NCSO.
Dr Trisno considered that the applicant demonstrated good insight into her illness and good judgment as to the requirement for ongoing treatment. She affirmed her willingness to remain compliant with medication and engaged with her treating team even should the NCSO be revoked.
In terms of his risk assessment, Dr Trisno stated:
[The applicant] is currently assessed to be at low risk of future violence. However, this risk may increase if she were to become non-adherent to her treatment, particularly in the setting of major psychological stressors. Given [her] progress thus far, the risk of this occurring is low.[17]
[17]Report of Dr Trisno [78].
Dr Trisno noted the good level of support received by the applicant through her church and friendship group. He noted also that her son is a major protective factor for her. She had continued to engage well at Noogal. In concluding his opinion and recommendations, Dr Trisno stated:
The most likely risk scenario of [the applicant’s] future risk of violence increasing is if she were to become unwell in her mental state and suffer an acute relapse of major depressive illness with psychotic features. The risk of such deterioration in mental state is low if she remains on her current treatment, continues to engage in psychological interventions to develop positive stress management strategies, and challenge her tendency to catastrophise stressors. Regular monitoring and treatment as available to her through her general practitioner, treating area mental health service, and psychologist would be able to monitor for such a risk and respond adequately.
The NCSO team believes that there is limited role for ongoing forensic oversight of [the applicant’s] mental health treatment given her risk profile is low and she is very well engaged in psychiatric care through her current treating team.
Should [the applicant] apply for revocation, this would be supported on the basis that she continues to engage with her psychiatric treating team and remain compliant with prescribed medications. It is likely that she needs to receive lifelong psychotropic treatment.[18]
[18]Ibid [83]-[85].
In his evidence before me, Dr Trisno indicated that he believed the applicant would remain stable in the face of future stressors including from a further diagnosis of breast cancer and the continued CPS involvement which had been discussed. In fact she has demonstrated resilience in coping with a number of stressors during the period of the NCSO and Dr Trisno believed she would continue to cope well in the absence of the NCSO. He reiterated his view that she would continue to attend voluntarily for treatment in the absence of the NCSO. He discussed a number of the protective factors available to the applicant, including her house mate and the degree of insight she has into her illness.
Dr Trisno opined that the revocation of the NCSO would not increase the risk posed by the applicant to the community. Indeed, asked whether there would be a therapeutic benefit to her in revoking the order, Dr Trisno stated:
I think there will be a – in following the spirit of recovery and rehabilitation in psychiatric (sic) there certainly is a lot of benefit in the revocation of the order and, a sort of a mark of success for [the applicant] in progressing in her recovery.[19]
[19]Transcript 11.
When asked whether, in the event the order was revoked, non-compliance with treatment would be picked up, Dr Trisno stated that he believed her treating team would stay engaged with her, and she would have a general practitioner (‘GP’), a psychologist, and close church and other supports around her, all of whom are aware of her presentation and would be able to ‘raise alarm bells should there be deterioration noted’. [20]
[20]Ibid 12.
When asked whether in his opinion, the applicant has spent enough time in the community for him to be confident as to his assessment that she is a low risk, Dr Trisno stated that he was ‘fairly confident on that’.[21] He went on to say that he did not believe a further period of six to 12 months ‘would add any therapeutic value to [the applicant] or any benefit’.[22]
[21]Ibid 12.
[22]Ibid 13.
In cross-examination by Mr McAuliffe for the Attorney, Dr Trisno was taken through the changes in residence and treating team experienced by the applicant and the partial relapse into depression in the first year of the NCSO. The relapse occurred in the context of a number of stressors.
Dr Trisno was asked about the recommendation from the treating psychologist mentioned in his report of the ongoing treatment needs of the applicant. It would not be uncommon for a patient with the applicant’s diagnosis to require ongoing treatment.
In terms of the applicant’s susceptibility or vulnerability to stressors, whilst her illness may make her more vulnerable, she has done a lot of work in the last two years enhancing her understanding of her vulnerabilities and early warning signs, which is reassuring. She has come a long way in understanding her maladaptive behaviours. Furthermore, she has done well over the last two years in dealing with all of the stressors to which she has been exposed.
Dr Trisno agreed that many of the protective factors present now for the applicant were present at the time of the index offence, but made the point that her improved understanding of her illness has now enhanced those factors.
In cross-examination by Mr Bevan for the applicant, Dr Trisno expanded upon the above proposition, describing the insight now present as being the missing link in the past in enabling the protective factors to provide a good level of protection. He noted that the applicant has come a long way since the August 2020 report.
In re-examination, Dr Trisno indicated that the greater understanding that those around the applicant now have of her mental health issues is an additional protective factor present.
Dr Trisno indicated that now he would have no concerns should the applicant desire to move residence, whether she remained on an NCSO or not. Nor would there be any concerns about a change in treating team. Furthermore, he was confident that even with the revocation of the NCSO, the applicant would continue to voluntarily attend for treatment and to comply with medication and instructions.
Dr Vikas
Dr Vikas is a consultant psychiatrist at Noogal, employed by NAMHS. He was the treating psychiatrist for the applicant until late-July 2021. In that capacity, he had reviewed the applicant twice, but his report was based on information recorded on her file at Noogal, information gathered from her case manager, and his own observations and assessments.
In his brief report, Dr Vikas indicated that the applicant has remained well during her care with Noogal. If she remains adherent to treatment, the risk of her relapsing into depressive illness with its associated risk to herself and others is low. He indicated that he had no opposition to her NCSO being revoked.
In his sworn evidence, Dr Vikas discussed the importance of the good insight the applicant now has into her illness. It would make her more likely to accept and remain in treatment, and reduce the risk of relapse.
As for the low risk of relapse attested to in his report, Dr Vikas did not consider that would alter if the NCSO was revoked. He considered that she would continue to take her medication and comply with treatment recommendations.
Dr Vikas gave evidence about the steps that could be taken by his service in the absence of the NCSO should the applicant cease attendance, including resort to the Mental Health Act 2014 (Vic).
Mr Sebastian
Mr Sebastian, a mental health social worker at Noogal is the applicant’s key clinician at Noogal, but as he indicated in his report, had had a very limited period of contact with the applicant, and largely based his report on information contained in the clinical file. In the report he detailed the resources available for the treatment and support of the applicant in the community. He indicated that her illness is in remission and she has no suicidal or homicidal thoughts or plans. She remains adherent with treatment, with a low risk of relapse into depressive illness with the associated risk to self or others. He indicated he had no opposition to the revocation of the NCSO.
In his brief evidence before me, Mr Sebastian noted that there would now be a change in the treating team of the applicant at Noogal, albeit that he, Mr Sebastian, would remain on the team.
Mr Sebastian expressed the view that should the NCSO be revoked, the applicant would continue to attend voluntarily for treatment. As for the low risk posed by the applicant, that would not increase as a result of revocation of the NCSO.
Submissions for the Secretary
Ms Frawley for the Secretary submitted that it would be appropriate, in light of the contents of the reports and the oral evidence, for the Court to consider revoking the NCSO. She reminded the Court of the principle of parsimony set out in s 39 of the Act, and then took the Court through each of the matters required to be considered under s 40, touching on the evidence bearing on each of these. In particular, in respect of s 40(1)(c) and (d), she submitted that in light of the evidence of Dr Trisno and the other witnesses, if the NCSO was revoked, the applicant would not be likely to endanger herself or others, and there would be no need to protect people from any danger. Her illness is in remission, she does not have suicidal or homicidal thoughts, and the revocation of the NCSO would not increase risk to the community. The Secretary relied upon the evidence of the good insight of the applicant into her illness as being a protective factor. In light of the Attorney’s contention that the protective factors in place now were in place at the time of the index offence, Ms Frawley advanced the insight now held by the applicant and the increased knowledge of her family, housemate and friends as being distinguishing features from the past position. Ms Frawley noted the evidence of Dr Trisno about the options available should the low risk of the applicant withdrawing from treatment and deteriorating eventuate. Ms Frawley submitted that there would be adequate resources for the treatment of the applicant in the community in the event the NCSO was revoked. She also summarised the many supports in place. The applicant would continue to be monitored by the NAMHS for at least the next 12 months. She has no imminent plans to move address, but even if she did move, that would not be problematic in light of how well she has managed previous moves.
Ms Frawley acknowledged that the revocation of the NCSO would conclude the oversight of the Court over the applicant, but in the circumstances, that oversight is no longer needed. Taking into account the principle of parsimony and bearing in mind the evidence that the risk posed would remain the same even if the NCSO was revoked, Ms Frawley submitted that I should give consideration to revoking the order.
Ms Frawley took me to some of the case law, including NOM and RJE v The Secretary to the Department of Justice.[23] In the latter case, Ms Frawley noted what had been said by the Court of Appeal at [18]:
Where, as here, the facts are not in contest and the expert opinion is both cogent and unchallenged, a judge should ordinarily be slow to depart from the risk assessment which the expert has made.
[23][2008] VSCA 265.
She touched on the decision of Bell J in Re SC,[24] which she correctly understood would be referred to by counsel for the Attorney. She noted some of the differences between that case and this case. She pointed out that the case came before the Court again in Re CK,[25] in which Taylor J stated that there is no minimum period for which a person should be on an NCSO before revocation occurs. Each case will turn on its own facts.
[24][2020] VSC 58.
[25][2020] VSC 707R.
In submissions in reply to those for the Attorney, Ms Frawley accepted that the Court can consider the gravity of any reoffending which might occurr, but submitted that the evidence before the Court was that any deterioration in the mental state or behaviour of the applicant would be picked up before reoffending would occur. As for the submission that the Court would need more time to assess risk, the evidence of Dr Trisno was that he did not require more time.
Submissions for the Attorney-General
Mr McAuliffe for the Attorney took no issue with Mr Frawley’s analysis of the legislative framework. Referring to the decisions of Re SC and Re CK, Mr McAuliffe submitted that the length of time spent on a NCSO may be relevant when it comes to a court considering the confidence with which it can view the psychiatric opinion as to an assessment of risk. Furthermore, the applicant has only been with her current treating team for a short time, with relatively limited contact.
In dealing with s 40(1)(c) and (d) of the Act, Mr McAuliffe conceded that the expert evidence would indicate the risk of reoffending is low, but submitted that the Court should also have regard to the nature of the risk and the seriousness of the harm should the risk eventuate. That would be severe in this case in light of the index offence.
Mr McAuliffe noted the stressors in the applicant’s life. It is concerning that she has had a number of changes in her accommodation and therefore instability in her living situation since her release into the community. There is ongoing CPS involvement which would be a stressor. The applicant has developed insight, but only to some of the maladaptive behaviours in which she has engaged in the past. Further psychotherapy is necessary to reinforce her psychological skills. By virtue of her diagnosis, she is more likely to suffer adverse reactions to stress, submitted Mr McAuliffe.
In conclusion, on the matter of the relevance of the period of time for which the applicant has been subject to the NCSO, Mr McAuliffe submitted that the Attorney was not simply pointing to that time period as not being long enough, but that the approach was a ‘more nuanced’ one[26] which questioned:
how and whether the Court can be satisfied and have confidence that [the applicant’s] risk will remain low in the community given the amount of time that the Court has been able to observe and consider the evidence of [the applicant] in the community.[27]
[26]Transcript 68.
[27]Ibid 68.
Mr McAuliffe submitted that the Court should confirm the NCSO, and further submitted that it would be prudent to set another review in six to 12 months’ time.
Submissions for the applicant
Mr Bevan for the applicant adopted the submissions on behalf of the Secretary. Insofar as Mr McAuliffe had relied upon the increased vulnerability of the applicant to stressors, Mr Bevan submitted that her increased insight and other protective factors would be likely to prevent her from relapse. The NCSO would not be necessary for the applicant to continue to access the supports which would reinforce her skills and strategies to prevent relapse.
Mr Bevan made submissions in support of a suppression order under s 75, relying upon the evidence of Dr Trisno that media publicity would be to her detriment.
Analysis
I commence by noting that less than 3 ½ years ago, the applicant set fire to her ex-husband, intending to murder him, in what was planned as the precursor to the murder of her son and her own suicide. The index offending undeniably occurred as a result of the major depressive illness with psychotic features with which the applicant was afflicted at the time. In noting the circumstances of the offending, I am conscious of the need not to allow the gravity of the danger posed by the applicant should the risk of her reoffending materialise to assume unjustifiable prominence in the task which I must perform.[28] I will not do so, but that is not to say, as Ms Frawley acknowledged, that I should not take the gravity of the danger into account in the mix of relevant considerations.
[28]NOM [57].
In my view, it is notable that almost two years after the index offending and eight months after the commencement of the NCSO, the applicant was still significantly affected by depression notwithstanding the treatment she had received to that time. Whilst not actively suicidal, the applicant was described as having ‘a passive death wish not to be alive anymore’, and she expressed a desire to return to prison as it would be easier than her then situation. It is not surprising that in those circumstances, her treating team formulated a plan for increased monitoring, and recommended contact being made with her ex-husband to inform him of the potential risk issues. It is also unsurprising that in November 2020, CPS recommended a further 12 months child protection order to enable a further period of stability to occur before increased unsupervised contact between the applicant and her son could occur.
In assessing the progress of the applicant during the NCSO, it is also of note to observe that in the first year, she had three changes in address, and consequently, a number of changes in her treating team. This led the authorities to the view that any further applications for relocation would not be supported until the applicant had demonstrated a period of stability and engagement with her new NAMHS treating team.
Since that time, the illness of the applicant has been in full remission, and there has been more of an appearance of stability about her life. I note, however, that the prospect of a further move by the applicant has apparently been given at least some consideration.
The evidence of Dr Trisno that the applicant poses a low risk of future violence so long as she remains adherent to her treatment, something which he believes she is likely to do, is at the heart of the material in support of revocation of the NCSO. Important, also, is the opinion of Dr Trisno that the applicant has demonstrated resilience coping with stressors, and would continue to do so were the NCSO to be revoked, such that the revocation of the NCSO would not increase the risk she poses.
The evidence of Dr Trisno was supported to an extent by the evidence of Dr Vikas and Mr Sebastian from the treating team, although it might be observed that both of these had seen the applicant a limited number of times over quite a short period of time.
While Dr Trisno and the other experts gave essentially unchallenged evidence pointing to the low risk of the applicant engaging in future violence, in my view the quite limited period of time over which Dr Trisno and the others have been able to treat and monitor the applicant in the community is a relevant matter to consider when deciding the level of confidence to have in their opinions as to risk.
In the end, of course, the discretion to be exercised under the Act whether to revoke the NCSO or not is mine to exercise, and not that of Dr Trisno or the other witnesses. To my mind, the relatively short time that the applicant has been in the community subject to the NCSO, the consequently short period of treatment, the difficulties experienced by the applicant with her illness in the first year of the order, the appearance of some instability in that first year in terms of residence and treatment, and the likelihood of further stressors impacting on the applicant, lead me to the view that it would not be appropriate to revoke the NCSO at this time. In my view, it would be to the benefit of the applicant and the community for the NCSO to continue for a further period of time.
Conclusion
I recognise that the applicant has made good progress on the NCSO, for which she is to be commended. She has repaired family relationships, complied with medication and treatment, maintained employment, and generally dealt well with stressors which have arisen. She is in remission from her illness, and there has been no return to the extreme state in which she carried out the index offending. There is reason to be confident that in the relatively near future, she will reach the point at which there will be no utility in the maintenance of the NCSO.
For now, however, having had regard to the matters set out in s 40(1) of the Act, and applying the principle of parsimony contained in s 39, I am of the view that the NCSO should remain in force.
I therefore confirm the order. I direct that the matter be brought back to the Court for further review before the expiration of 12 months from today.
Being satisfied that it is in the public interest to do so, I order, pursuant to s 75 of the Act, that until further order:
(a) any evidence given in the proceeding;
(b) the content of any report or other document put before the Court;
(c) any information that might enable the applicant or her son to be identified –
must not be published in any manner.
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