Re XY (No 2)
[2019] VSC 268
•30 April 2019
| Not Restricted |
IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
S CI 2018 0076
| IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) |
| - and - |
| IN THE MATTER of an application for extended leave by "XY" |
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JUDGE: | ELLIOTT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 April 2019 |
DATE OF RULING: | 30 April 2019 |
CASE MAY BE CITED AS: | Re XY (No 2) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 268 |
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CRIMINAL LAW – Mental impairment – Application for further extended leave – Applicant found not guilty of murder by reason of mental impairment – Whether safety of applicant or members of the public will not be seriously endangered if application granted – Leave plan prepared – Psychiatrist and case manager supportive of application - Application supported by Secretary to the Department of Health and Human Services and Attorney-General – Application granted – Conditions imposed on extended leave in accordance with leave plan – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 38C, 39, 40, 57.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Fitzgerald | Victoria Legal Aid |
| For the Secretary to the Department of Health and Human Services | Ms S Varney | Department of Health and Human Services |
| For the Attorney-General | Ms A Haban-Beer | Victorian Government Solicitor |
HIS HONOUR:
A. Introduction
The applicant, XY[1] (“the Applicant”), is 33 years old. In 2009, at the age of 23, the Applicant stabbed and killed an elderly woman (“the Deceased”)[2] who the Applicant did not know (“the Offence”).
[1]A pseudonym is used to protect the identity of the Applicant for the reasons given by Croucher J in Re XY [2018] VSC 456, [93], the evidence on this application again being that XY’s anonymity should be preserved to foster rehabilitation and reintegration back into the community, and is therefore in the public interest: see further par 32 below.
[2]The non-disclosure of the Deceased’s name is also to protect the identity of the Applicant.
The Applicant has suffered from a major mental disorder—paranoid schizophrenia — since her teens. At the time she killed the Deceased, the Applicant was, as a result of that disorder, floridly psychotic.
In 2010, in this court, the Applicant was found not guilty of the murder of the Deceased by reason of mental impairment. Coghlan J declared the Applicant liable for supervision under Pt 5 of the Crime (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”),[3] and imposed on the Applicant a custodial supervision order, for a nominal term of 25 years.[4] Pursuant to that order, the Applicant was committed to the custody of the Victorian Institute of Forensic Mental Health (“Forensicare”); specifically, the Thomas Embling Hospital in Fairfield.[5]
[3]Re XY [2018] VSC 456, [38] (Croucher J); see also the Act, s 23(a).
[4]Ibid, [39] (Croucher J).
[5]Ibid.
On 30 April 2018, the Applicant applied to this court for extended leave pursuant to s 57(1) of the Act,[6] and was granted extended leave (“the First Grant”). The First Grant entitled the Applicant to be absent from her place of custody, the Thomas Embling Hospital, for a period of 12 months (“the First Leave Period”), subject to the following conditions:
[6]Ibid, [1].
(1)The Applicant be under the supervision of the Authorised Psychiatrist of Forensicare (“the Authorised Psychiatrist”) or his or her delegate.
(2)The Applicant reside at a location approved by the Authorised Psychiatrist or his or her delegate.
(3)The Applicant abide by the lawful directions of the Authorised Psychiatrist or his or her delegate.
(4)The Applicant comply with treatment and testing and attend appointments as directed by the Authorised Psychiatrist or his or her delegate.
(5)The Applicant abstain from the abuse of alcohol and the use of illicit drugs.
(6)The Applicant not leave the State of Victoria without the written permission of the Authorised Psychiatrist or his or her delegate.
In addition, the First Grant recorded an undertaking given by the Applicant that, during the First Leave Period, she not attend a particular country town, being the place at which she killed the Deceased.
The Applicant applies to this court for a grant of further extended leave, on the same conditions as the First Grant.
For the reasons that follow, the Applicant will be granted further extended leave, for a period of 12 months, and subject to the same conditions of the First Grant.
B. Applicable legislation and approach
This application is made pursuant to s 57(1) of the Act, which provides, relevantly, that a forensic patient, such as the Applicant, may make an application for extended leave to the court that made the supervision order to which they are subject.[7] This includes applications for further extended leave.[8]
[7]That is, this court: see par 3 above.
[8]The Act, s 57(3).
Section 57(2) of the Act provides that the court may grant such an application if it is satisfied on the available evidence that the safety of the forensic patient or members of the public “will not be seriously endangered” as a result of the forensic patient being allowed extended leave.
Assessing whether the Applicant or members of the public will or will not be “seriously endangered” requires assessing 2 factors in combination: first, the risk that a harmful event or events might occur; and, secondly, the gravity of harm that would occur should that risk materialise.[9] As a result, a significant risk of insignificant harm may not amount to “serious endangerment”, whereas a relatively insignificant risk of very significant harm may amount to “serious endangerment”.[10]
[9]In the matter of an application by LD [2019] VSC 9, [7] (Bell J).
[10]In the Matters of Major Reviews of Percy, Farrell and RJO (1998) 102 A Crim R 554, 566.2 (Eames J), cited in NOM v Director of Public Prosecutions (2012) 38 VR 618, 639 [63] (Redlich and Harper JJA and Curtain AJA).
Further, in exercising the discretion to grant extended leave, the court must apply the principle stated in s 39(1) of the Act, having regard to the factors enumerated in s 40(1) of the Act.[11]
[11]NOM v Director of Public Prosecutions (2012) 38 VR 618, 633 [46].
The principle set out in s 39(1) is 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) relevantly provides that, in deciding whether to grant extended leave, the court must have regard to the following matters:
(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.
In NOM v Director of Public Prosecutions,[12] the Court of Appeal explained that ss 39 and 40 call for the exercise of judicial discretion, informed by the considerations set out in those provisions. It stated:[13]
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.
(Citations omitted.)
[12](2012) 38 VR 618.
[13]At 633 [47] (Redlich and Harper JJA and Curtain AJA).
There is a further relevant requirement. Section 40(4) of the Act provides that a grant of further extended leave, such as that applied for here, cannot be made unless the court has obtained, and considered: first, the report of at least 1 registered medical practitioner or registered psychologist, who has personally examined the person applying for further extended leave, on that person’s mental condition and the possible effect of a grant of further extended leave on that person’s behaviour; and, secondly, a leave plan filed under s 57A of the Act.[14]
[14]Where, as here, the person applying for a grant of further extended leave is a forensic patient, a leave plan must be prepared and filed with the court by the Authorised Psychiatrist: see the Act, s 57A(a).
That requirement has been satisfied. The court has received a report prepared by the Applicant’s supervising and treating psychiatrist, Dr Shannon Reid, dated 5 April 2019 (“the Reid Report”), appended to which is a proposed leave plan.
For completeness, I observe that, in the circumstances, there was no requirement that notice of the hearing be provided by the Director of Public Prosecutions to the family of the Deceased pursuant to s 38C of the Act.[15] This is because, in relation to an application for extended leave, the Director of Public Prosecutions is required to provide notice of the hearing only where the granting of the application would “significantly reduce the degree of supervision to which the person is subject”.[16] As this application contemplated maintaining substantially the same degree of supervision as under the First Grant, the requirement to provide notice did not arise.
[15]See also Re CJA [2019] VSC 149, [5] (Beach JA); In the matter of an application by LD [2019] VSC 9, [11] (Bell J).
[16]Section 38C(2)(d).
C. Psychiatric history
It is unnecessary to rehearse, in detail, the Applicant’s psychiatric history. That history is comprehensively set out in the decision of Croucher J in respect of the First Grant.[17]
[17]Re XY [2018] VSC 456, [12]-[22].
It is sufficient to observe the following:
(1)At a young age, the Applicant appears to have been exposed to domestic violence, and, potentially, sexual abuse.[18]
(2)At the age of 16, the Applicant was first referred to mental health services. By that age, the Applicant was already a heavy cannabis user.
(3)Throughout her teenage years, the Applicant apparently suffered from bulimia, and was diagnosed with severe depression, for which she was prescribed antidepressant medication. She engaged in self-harm, and unsafe drug use, which, on at least 1 occasion, resulted in an overdose.
(4)By age 19, the Applicant reported symptoms of psychosis, including auditory and tactile hallucinations.
(5)In her early 20s, the Applicant was formally diagnosed with schizophrenia, for which she was prescribed antipsychotic medication.
(6)At the age of 22, the Applicant spent 2 months as an involuntary patient in the psychiatric ward of a regional hospital. She was re-admitted to that hospital shortly after being discharged following an incident in which she had approached her mother with a knife and held it to her mother’s throat. She was made subject to a community treatment order on the basis that she posed a moderate risk of future violence, by reason of her mental illness, impulsivity and emotional dysregulation.
(7)The Applicant was being treated with antipsychotic medication,[19] under case management, and subject to a community treatment order at the time she killed the Deceased. As noted above, at that time, the Applicant was floridly psychotic, by reason of her schizophrenia.[20]
[18]Ibid, [13].
[19]Noting that she says that she had stopped taking her medication about a month prior to the Offence.
[20]See above par 2.
D. Contemporary reports
The court has received 2 reports summarising the Applicant’s progress over the First Leave Period: the Reid Report, and a report from Ms Donna Melia, dated 3 April 2019 (“the Melia Report”). Further, Dr Reid gave oral evidence at the hearing of this application.
D.1 Dr Reid
Dr Reid is a consultant psychiatrist at the Community Treatment and Transition Program (“the Transition Program”) of Forensicare and has been the Applicant’s treating and supervising psychiatrist for the First Leave Period. Throughout the First Leave Period, the Applicant has received, at minimum, monthly psychiatric review.
Dr Reid, and the Transition Program, are supportive of the Applicant’s application for further extended leave.
Dr Reid assesses the Applicant’s overall risk of harm to others and self as low. The following factors, amongst others, relevantly inform that assessment.
First, there is no evidence that the First Grant has resulted in any deterioration in the Applicant’s mental state. The Applicant has maintained clinical stability throughout the First Leave Period. Indeed, there are signs of some clinical progress. In particular, during the First Leave Period, the Applicant has demonstrated increased comfort with therapeutic discussions, and decreased reluctance in exploring uncomfortable, but therapeutically important, issues during psychiatric review meetings. Further, the Applicant has demonstrated a degree of resilience, having endured significant potential stressors, including deterioration of at least 1 family relationship, without relapse.
Secondly, and significantly, throughout the First Leave Period, the Applicant has had no known occasions of aggressive conduct or harm to others or herself.
Thirdly, throughout the First Leave Period, the Applicant has shown an awareness that she has an illness requiring treatment, and a willingness to comply with her treatment on an ongoing basis. The Applicant administers her own medication — 500mg of the antipsychotic medication clozapine — daily. Her compliance with her treatment regimen is occasionally checked by staff at the Austin Community Recovery Program (“Recovery Program”), where the Applicant resides. There is no evidence that she is non-compliant with treatment. She apparently does not experience unmanageable side-effects from her medication, which, for obvious reasons, increases the likelihood of ongoing compliance. Similarly, the Applicant has complied with her reporting requirements and schedule of appointments, including whilst on permitted trips interstate. More generally, she has participated “actively and effectively” in the process of her supervision. In oral evidence, Dr Reid explained that there was no reason to expect that compliance would not continue should further extended leave be granted, even if, during further extended leave, the Applicant spent more prolonged periods interstate, visiting her mother.
Fourthly, there has been no evidence, throughout the First Leave Period, that the Applicant has used illicit drugs or alcohol.
Fifthly, the Applicant has, during the First Leave Period, managed stress by, in addition to her medical treatment, maintaining a steady routine of exercise and other activities. For example, in oral evidence, Dr Reid described the Applicant’s involvement in supported part-time employment through the Recovery Program, and her intention to seek further employment.
Sixthly, the Applicant has demonstrated a sound self-awareness of precursor symptoms of relapse or “early warning signs”, such as increased anxiety, anger, and benign auditory hallucinations. This awareness will assist the Applicant in seeking necessary support in advance of any future relapse. In any event, during the First Leave Period, she has not reported experiencing any of these precursor symptoms.
As a result of these factors, amongst others, and notwithstanding the Applicant’s history of psychosis, mood disturbance, substance abuse, and engagement in violent and antisocial activity, Dr Reid does not foresee “a high likelihood of problems with [the Applicant’s] treatment or supervision” should a further extended leave be granted.
In oral evidence, Dr Reid stated that he considered that the Applicant’s rehabilitation had progressed well over the First Leave Period, and that additional progress could be expected should further extended leave be granted. By contrast, Dr Reid described the outcome should further extended leave not be granted—that the Applicant be returned to her place of custody, the Thomas Embling Hospital — as “devastating”. A return to the Thomas Embling Hospital, Dr Reid said, would interrupt the therapeutic relationships the Applicant has developed within the Transition and Recovery Programs, cause personal distress, increase her risk of relapse, and, more fundamentally, damage her “sense of hope and confidence” in her rehabilitation.
Finally, Dr Reid was supportive of the maintenance of the non-publication order which accompanied the First Grant,[21] on the basis that the publication of material identifying the Applicant may harm her rehabilitation. In particular, Dr Reid considered that any such publication could result in her stigmatisation, which could harm her prospects of developing therapeutically beneficial social relationships, including relationships of employment.
[21]The power to make this order is found in s 75 of the Act.
D.2 Ms Melia
Ms Melia is a senior registered psychiatric nurse at Forensicare and has been the Applicant’s case manager in the Transition Program since December 2018. Ms Melia maintains regular contact with the Applicant via phone and email, as well as in fortnightly case management sessions.
Like Dr Reid, Ms Melia supports the Applicant’s application for further extended leave.
Ms Melia’s report described the Applicant’s involvement with the Transition Program during the First Leave Period.
Ms Melia’s report separately addresses several of the factors in favour of a grant of further extended leave raised by Dr Reid, including the Applicant’s: clinical stability during the First Leave Period; compliance with treatment; apparent abstinence from drugs and alcohol; maintenance of a steady routine, including participating in short-term employment and undertaking further education; and, awareness of precursor symptoms.
In addition to the matters also addressed by Dr Reid, Ms Melia usefully sets out the supervision and support which the Applicant would receive should she be granted further extended leave.
Should the Applicant be granted further extended leave, the Applicant would:
(1)Initially continue to reside at the Recovery Program, though, she may, with the approval of the Transition Program, seek to transition to a private rental property. If so, the Recovery and Transition Programs would support the Applicant in finding suitable accommodation. A Recovery Program keyworker has, during the First Leave Period, worked with the Applicant on relevant daily living activities which would assist her to transition to independent living.
(2)Continue to have regular monthly blood serum investigations to monitor her adherence to her treatment regimen, and to check therapeutic levels of medication.
(3)Continue to be monitored for the use of alcohol and illicit substances by random breath and urine testing.
(4)Continue to attend, at minimum, fortnightly reviews with the Transition Program team, alternating, each fortnight, between monthly psychiatric review and case management meetings. However, as Dr Reid explained in oral evidence, should the Applicant transition to independent living, the Transition Program would increase this support for a period of some months. Specifically, Dr Reid stated that he expected that during any transition period, psychiatric review and case management meetings would occur fortnightly, rather than monthly.
(5)Continue to engage with relevant community supports, including support provided to the Applicant under the National Disability Insurance Scheme, and by her general practitioner and private counsellor. The Applicant would also continue to participate in Recovery Program activities.
(6)Continue to maintain close contact with her mother, who is also her primary support, including by undertaking further visits to stay with her mother interstate. As Dr Reid explained in oral evidence, previous visits for short periods had occurred without issue. Dr Reid considered it important that these visits incrementally increase, so as to strengthen the positive relationship the Applicant has with her mother and gradually familiarise her with her mother’s place of residence and surrounds.
E. Analysis
Having considered all of the evidence, I am satisfied that granting the Applicant further extended leave would not seriously endanger the safety of the Applicant or members of the public. I am further satisfied that the grant of extended leave is consistent with the principle set out in s 39(1) of the Act, having had regard to the matters identified in s 40(1) of the Act.
Certainly, given the violence and gravity of the Offence, the severity of the Applicant’s mental illness, and her history of substance abuse, antisocial and violent behaviour, releasing the Applicant on further extended leave involves some degree of risk.
However, in my view, this is adequately mitigated by a number of factors, including those identified by Dr Reid and Ms Melia. These include:
(1)The Applicant’s mental illness, whilst severe, appears to be well managed. The Applicant has apparently responded positively to nearly 10 years of supervised treatment, and has remained clinically stable during the entirety of the First Leave Period.
(2)The Applicant has a recent history of compliance, and indeed positive engagement, with her treatment and supervision.
(3)The Applicant has not recently experienced violent or antisocial ideation or engaged in violent or antisocial conduct.
(4)The Applicant has a recent history of apparent abstinence from illicit drugs and alcohol.
(5)The Applicant has developed a stable routine, involving some part-time employment, together with some vocational study both in the past and, it is anticipated, in the future.
(6)The Applicant has insight into her illness, and has developed at least some ability to identify precursor symptoms prior to relapse.
(7)The Applicant has demonstrated a degree of resilience in the face of potential stressors.
(8)The Applicant’s treatment and supervision, which has so far proved effective, will continue in substantially the same form, and with the same team from the Transition and Recovery Programs, should she be granted further extended leave.
Though not decisive in the exercise of the court’s discretion, it is relevant that the application for further extended leave is supported not only by the Applicant’s treating team, but also by the Secretary to the Department of Health and Human Services, and the Attorney-General for Victoria.
F. Conclusion
For the reasons stated, an order will be made, pursuant to s 57(1) of the Act, that the Applicant be granted further extended leave — that is, leave to remain absent from her place of custody, the Thomas Embling Hospital — for a further period of 12 months, commencing today, 30 April 2019, and subject to the following conditions:
(1)The Applicant remain under the supervision of the Authorised Psychiatrist or her or his delegate.
(2)The Applicant reside at a location approved by the Authorised Psychiatrist or her or his delegate.
(3)The Applicant abide by the lawful directions of the Authorised Psychiatrist or her or his delegate.
(4)The Applicant comply with treatment and testing and attend appointments as directed by the Authorised Psychiatrist or her or his delegate.
(5)The Applicant abstain from the abuse of alcohol and the use of illicit drugs.
(6)The Applicant not leave the State of Victoria without the written permission of the Authorised Psychiatrist or her or his delegate.
The orders will further record that the non-publication order that accompanied the First Grant remains in place.[22]
[22]See par 32 above.
I further note, and the orders will reflect, that the Applicant, through counsel, has renewed the undertaking given at the time of the First Grant that she will not, for the period of further extended leave, attend the country town specified in the orders.
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