Re WL (No 2)
[2022] VSC 838
•10 October 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CR 2018 0260
| IN THE MATTER of a further review of a non-custodial supervision order under s 33(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| - and – |
| IN THE MATTER of WL |
---
JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 October 2022 |
DATE OF JUDGMENT: | 10 October 2022 |
DATE OF REASONS: | 10 July 2023 |
CASE MAY BE CITED AS: | Re WL (No 2) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 838 |
---
CRIMES MENTAL IMPAIRMENT – Further review of a non-custodial supervision order (‘NCSO’) – Unanimity between the parties that NCSO should be revoked – Application by reviewee for suppression order – NCSO revoked – Suppression order made for life of reviewee - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 31, 32, 33, 39 and 40.
---
APPEARANCES: | Counsel | Solicitors |
| For the Reviewee | Mr J Chandramohan | Victoria Legal Aid |
| For the Secretary to the Department of Health | Mr D Bruno | Legal Services Branch, Department of Health |
| For the Attorney-General | Mr P Santamaria | Victorian Government Solicitor’s Office |
| For the Director of Public Prosecutions | Ms L Custovic | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Introduction
This is a further review of a non-custodial supervision order (‘NCSO’) made in respect of the reviewee (‘WL’), arising pursuant to Order 2 of the NCSO confirmed by this Court on 25 October 2021.
By way of a ‘consolidated response’ filed with the Court on 6 October 2022, WL, the Attorney-General (‘the Attorney’) and the Secretary to the Department of Health (‘the Secretary’) unanimously submitted that WL’s NCSO should be revoked. WL also sought the making of a suppression order under s 75 of the Act for the lifetime of WL.
Having heard the review on 10 October 2022, I made an order revoking the NCSO. I further ordered that the suppression order previously made in this matter be continued to a time to be specified in the detailed reasons which I indicated I would provide at a later time.
These are those reasons.
Background
WL 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, WL and her husband separated and then divorced.
In January 2018, WL was diagnosed with breast cancer and underwent treatment. WL’s ex-husband returned to residing at the family home to assist with caring for WL and their son. WL’s ex-husband slept in a separate bedroom.
WL developed symptoms of depression and anxiety shortly after her diagnosis with breast cancer. She also experienced suicidal ideation from February 2018.
WL 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. Expert evidence in the aftermath of the index offence indicated that on WL’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.
In the lead up to the index offence, WL made attempts on her life. 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.
The victims in this matter were WL’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, WL 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 WL standing next to the bed, spraying him with water from the bathroom. The victim ran downstairs and WL 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 WL to go outside.
WL 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.
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 review and application proceeded before me on 25 October 2021. WL’s application at that time for revocation of the NCSO was supported by the Secretary but contested by the Attorney, who argued that the NCSO should be confirmed, and brought back for further review in six to twelve months’ time.
In the end, I accepted the Attorney’s contention. I confirmed the NCSO and directed that the matter be brought back to the Court for further review before the expiration of 12 months from that date.[1]
[1]Re WL [2021] VSC 689.
As indicated above, by the time of the review, the position of the Attorney had changed, and the parties were unanimous in their contention that the NCSO should be revoked.
The law
Section 33 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘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’):[2]
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.[3]
[2](2012) 38 VR 618 (Redlich and Harper JJA and Curtain AJA) (‘NOM’).
[3]Ibid 633 [47] (citations omitted).
In Re BK,[4] Kaye J[5] 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.[6]
[4][2015] VSC 214R.
[5]As he then was.
[6]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.[7] In making a determination, the Act does not require ‘psychiatrically underwritten guarantees that persons subject to [supervision] orders pose no possible danger’.[8] The relevant consideration is whether there is a ‘real as opposed to fanciful’ chance of endangerment as a result of a NCSO being revoked.[9]
[7]NOM 634 [49].
[8]Ibid 640 [65].
[9]Re Friedman (a pseudonym) [2019] VSC 251 (Niall JA) [69] (‘Friedman’).
Notification of family members and victims
The Director of Public Prosecutions (‘the Director’) is required to give notice of certain hearings (including reviews of this kind)[10] to victims of the index offence and family members of the person subject to supervision.[11]
[10]The Act s 38C(2)(b).
[11]Ibid s 38C(1).
Lana Maree Custovic, solicitor for the Office of Public Prosecutions, swore an affidavit on 6 October 2022 in which she deposed that notification of the hearing had been sent by letter to the victims in this matter (WL’s ex-husband and their son) and the family members of WL (WL’s two brothers) by express post on 19 September 2022. At the time of Ms Custovic swearing her affidavit, confirmation of delivery had been received for the letter sent to the victims, but confirmation of delivery was still pending in relation to the family members (who live overseas).
At the time of the hearing, no reports under s 42 had been received.
Evidence
The Secretary filed the following reports in advance of this review:
(a) Report of Dr Thomas Yeatman dated 12 September 2022;
(b) Report of Dr Sankara Subbu Saravanan dated 12 September 2022; and
(c) Report of Linnu Elsa Benny dated 23 August 2022.
Dr Yeatman
Dr Yeatman is a psychiatry registrar employed by Forensicare. He prepared his report under the supervision of Dr Zergiotis, who is a consultant psychiatrist at Forensicare.
In his report, Dr Yeatman confirmed WL’s mental state and presentation had remained stable since the last review in August 2021. Her medication regime was unchanged, she remained compliant with it, and was willing to continue taking it into the future for as long as she needs to.
WL had a busy routine, working as an accountant four days a week for a multi-national company, attending regular church services and groups, volunteering, and visiting friends. WL lived with a friend in the northern suburbs, and enjoyed this arrangement. Early on in the review period, WL canvassed a future move to live with her ex-husband and son, but appeared to have abandoned this idea. WL had retained her investment property, which she rents out.
WL’s son lived with his father, but often stayed with WL on weekends. These visits were unsupervised, and Child Protection’s current involvement was reportedly minimal. WL saw her son a couple of times during the week, and stayed overnight at her ex-husband’s house about once a week to provide extra support for their son. WL denied any plans to reunite with her ex-husband, but confirmed they get along well.
WL continued to see a psychologist in the community. While her psychologist was of the view that ongoing sessions were not necessary (presumably, on the basis that treatment goals had been attained), WL decided to continue the sessions – citing the work to be beneficial – and at the time of Dr Yeatman’s report, met with her psychologist on a monthly basis.
In relation to other clinical supports, WL met periodically with a psychiatrist and key clinician at Noogal Clinic through the Northern Area Mental Health Service (‘NAMHS’). It was indicated that if the NCSO was revoked, the Noogal Clinic team would continue to meet with WL for at least the next six months before discharging her treatment and care to her general practitioner.
In Dr Yeatman’s most recent review with WL on 5 September 2022, he noted that:
[WL] reported that she felt good overall, much better than she had done in the past. She said this was partly because her son was doing well, she was less busy than she used to be, and was no longer stressed by her ex-husband’s gambling (because she knew that it would not affect her son who was developing well). She reported having a good relationship with her long-standing general practitioner. Overall, her progress was thought to be excellent, and there was no evidence of symptoms relating to mood or psychosis.
… She appeared to have good insight into some of the causes of her previous deterioration, and was insightful into her mental health difficulties, and the ongoing need for support and treatment. She was compliant with treatment and stated her intention to remain so in the future.[12]
Risk assessment
[12]Report of Dr Thomas Yeatman dated 12 September 2022 [34]-[35].
Dr Yeatman assessed WL’s risk of future violence with the assistance of a widely used instrument, the HCR-20, which considers historic (static and unmodifiable), clinical (current and dynamic), and risk management (future) factors together to formulate an empirical assessment on future risk of violence.
Dr Yeatman analysed WL’s historic, clinical and future risk factors in his report, noting that the clinical factors included her good insight into her condition, which was supported by her active research into psychology and depression, her understanding of the nexus between her impairment and the index offending, and her choice to continue seeing her psychologist even when she was told it was no longer necessary. She was in full remission from her mental illness, with no signs of instability, and was fully compliant with treatment.
In addressing future risk management factors, Dr Yeatman noted that WL was well-engaged with professional supports, had a robust personal support network, and was involved in activities that are meaningful to her, including the care of her son, regular work, and connecting with her faith and church community. She had been responsive to treatment, receptive to professional advice, and aware of how to seek appropriate help in the event of mental state deterioration.
Taking all relevant factors into account, Dr Yeatman assessed WL’s future risk of violence as low for at least the next 12 months.
In summarising WL’s history and progress to date, Dr Yeatman stated:
In the time leading up to the index offence, there were a number of precipitating factors which resulted in the decline of [WL’s] mental health. She was undergoing treatment for a new diagnosis of stage 3 breast cancer. She was stressed by her husband’s gambling problem, and she was overwhelmed by her responsibilities working full time and as a mother, and then by the loss of these roles as a result of her cancer treatment. Her circumstances have changed since this time. She is separated from her husband and is no longer stressed by his gambling. She has also stated that she does not intend to reunite with him. Her cancer is in remission, and she has a more manageable set of responsibilities.
If any of the past problems were to recur or new stresses develop, she is better equipped to cope with them. She has now undergone extensive psychological treatment, formed a strong relationship with mental health services, and has a strong support network in the community and has (sic) full-time work which she enjoys. She was able to demonstrate this when she experienced a relapse of depression in April 2020. On that occasion, she notified the treating team of her difficulties and support was temporarily increased. She recognised that COVID-19 restrictions were isolating her, and she organised to move into a house share with a friend. She was then able to find high functioning work that made her feel more fulfilled.
Furthermore, she has expressed a commitment to receiving mental health support in the long term, having said that she will take medication for as long as professional opinion states it is necessary, and by continuing to engage with psychology after being advised that it is no longer necessary. The review of the structured risk assessment shows that the risk of future violent reoffending is low.
She has now demonstrated a sustained period of mental health and high function. Her depression has been in remission since before June 2020, and there has been no suggestion of psychosis while she has been supervised by the NCSO team.[13]
[13]Ibid [42]-[46].
In all of the circumstances, Dr Yeatman believed there to be a limited role for ongoing forensic oversight of WL’s treatment and care, and was supportive of WL’s NCSO being revoked. He, and the broader treating team at Forensicare, were of the view that this would be a positive therapeutic step for WL moving forward in her recovery, and that the risk to the community would not be elevated as a result.
Dr Saravanan
Dr Saravanan was WL’s treating psychiatrist at the Noogal Clinic. He had been working with WL in this capacity since August 2021, and had reviewed her on three occasions. His report was based on those reviews, his discussions with other staff involved in WL’s treatment and care, and clinical notes.
In his report, Dr Saravanan stated that WL had responded well to treatment, complied with medication, and attended all appointments as required. She had shown good insight into her mental illness, which was in remission, and her mental state was stable (and had been since her referral to the Noogal Clinic in July 2020). She did not present with any suicidal or homicidal thoughts.
Dr Saravanan opined that, subject to WL’s continued compliance with treatment, her risk of relapse and its corollary of causing harm to herself or others was low. He stated that he had ‘no opposition’ to the NCSO being revoked, and that if it was revoked, WL would continue to attend the Noogal Clinic for monitoring of her mental state, risks, and compliance with medication.
Ms Benny
Ms Benny was a mental health clinician employed by the Noogal Clinic. She had been WL’s key clinician at that service since February 2022, and her report was based on her interactions with WL since that time and clinical notes.
In summary, Ms Benny noted that WL had consistently engaged well with her treating team, attended scheduled reviews and adhered to prescribed medications. In addition to her supports at the Noogal Clinic and Forensicare, Ms Benny noted that WL saw a psychologist once a month, was linked to a local general practitioner, had a caseworker from Anglicare and/or the Department of Families, Fairness and Housing in relation to her son’s care, and was well supported by her housemate and a network of friends from her church.
Ms Benny noted that WLs depressive illness was in remission, and that she did not have any suicidal thoughts or plans. In circumstances where WL had remained compliant with treatment, it was Ms Benny’s opinion that her risk of relapse and causing harm to self and others was low. Similarly to Dr Saravanan, Ms Benny had ‘no opposition’ to WL’s NCSO being revoked.
Evidence of Dr Yeatman on the review
All three witnesses were available to give evidence during the hearing. In the end, only Dr Yeatman was called. He gave brief sworn evidence before me. He made a number of corrections to his report, and confirmed the contents of the report to be true and correct. He indicated that in the period since the hearing before me on 9 August 2021, WL continued to remain stable in her mental state and compliant with her medication and treatment. He indicated that WL’s risk of future violence towards others for at least the next 12 months would be low, whether the NCSO remained in place or not. As for the risk of harm to herself, that would also be low. If there was a relapse, the risk of violence to herself and others would increase, but Dr Yeatman considered that she was very well engaged in mental health services, and her risk would remain low even in the event of a relapse.
Dr Yeatman indicated he remained supportive of revocation of the NCSO.
Dr Yeatman informed the Court that notwithstanding the fact that in his report, it was indicated that the area mental health service would remain involved with WL for a six month period, more recent discussions he had had with the team indicated that the service had agreed to remain involved for two years. In any event, Dr Yeatman indicated that he would have no problem with WL being discharged from the service to her general practitioner (‘GP’) when that was considered appropriate.
Dr Yeatman considered that if WL became unwell or non-compliant with treatment, whether before or after being discharged to the care of her GP, that would come to the attention of the area mental health service. WL would have her GP and a great number of other people involved in her care and aware of her problems. As well as that, WL herself has demonstrated the capacity and willingness to herself engage with mental health services when problems arise.
He spoke, also, of the pathway for referral back to the area mental health service for the GP to follow, and of the prospect of resort to the mechanisms under the Mental Health Act 2014 if necessary.
Dr Yeatman expressed the view that WL would be much better equipped now to deal with significant stressors such as those she experienced in the lead up to the index offence than she was in the past.
As to the positive therapeutic benefit for WL that revocation would entail, Dr Yeatman opined that this would restore her faith in the system and be important for her recovery.
In cross-examination on behalf of the Attorney, Dr Yeatman indicated that he did not think the involvement of child protection services had presented a particular stress to WL.
In respect of the suppression order sought by WL, Dr Yeatman agreed with Mr Chandramohan that the continuation of the order for the remainder of WL’s life would be beneficial for her ongoing progress and rehabilitation.
Submissions
Mr Bruno for the Secretary submitted that, for reasons he briefly outlined, the NCSO should be revoked. The evidence, he submitted, demonstrated that WL can continue to be treated in the community without the need for supervision from Forensicare. The risk she posed would continue to be low in the absence of the NCSO. A sufficient safety net is in place to render the involvement of Forensicare and the Court unnecessary. It would no longer be consistent with the principle of parsimony in s 39 for the NCSO to remain in place.
The Secretary took no position in respect of the suppression order.
Each of Mr Santamaria and Mr Chandramohan adopted the submissions for the Secretary, and sought the revocation of the NCSO. Mr Santamaria took no position in respect of the suppression order. Mr Chandramohan sought a suppression order for the remainder of WL’s life.
Analysis
At the time of confirming the NCSO on 25 October 2021, I stated:
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.[14]
[14]Re WL [2021] VSC 689 [79].
I was satisfied that by the time this matter came on for hearing before me on 10 October 2022, that point had been reached. There had been a further period of stability in the life of WL, during which she had remained well, had continued to comply with medication and treatment, and had shown a willingness to continue to do so.
The clear and unchallenged evidence of Dr Yeatman indicated that WL posed a low risk of future violence to herself or others, and that would remain the case even were the NCSO to be revoked.
Bearing in mind the principle of parsimony in section 39 of the Act, and having regard to the considerations in s 40, I was satisfied that it was appropriate under s 33(1)(d) that the NCSO be revoked.
In respect of the suppression order sought by WL, having considered the application in light of the evidence touching on that issue, I was satisfied that it would be in the public interest to extend the suppression order previously made in this case for the lifetime of WL. I made an order accordingly.
Conclusion
For the reasons stated above, the non-custodial supervision order made in respect of WL on 22 August 2019 was revoked. The suppression order made on the same date was extended for the lifetime of WL.
0
2
0