Re XY (No 4)
[2022] VSC 21
•23 November 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2018 00076
| IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”) |
| - and - |
| IN THE MATTER of an application for revocation of a non-custodial supervision order under section 31 of the Act by XY |
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JUDGE: | ELLIOTT J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 November 2021 |
DATE OF DECISION: | 23 November 2021 |
DATE OF PUBLICATION OF REASONS: | 1 February 2022 |
CASE MAY BE CITED AS: | Re XY (No 4) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 21 |
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CRIMINAL LAW – Mental impairment – Application for revocation of non-custodial supervision order – Custodial supervision order varied to non-custodial supervision order in 2020 – Principles to be applied – Relocation of applicant to Queensland – Non-custodial supervision order revoked – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 31, 38C, 38E, 39, 40, 42.
SUPPRESSION ORDER – Continuation of non-publication order – Long-term order – Principles to be applied – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), s 75 – Open Courts Act 2013 (Vic), s 12.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms O Ridley | Victoria Legal Aid |
| For the Secretary to the Department of Health | Ms S Varney | Department of Health and Human Services |
| For the Attorney-General | Ms J Buxton | Victorian Government Solicitor’s Office |
HIS HONOUR:
A.Introduction
The applicant, XY[1] (“the Applicant”), is a 35 year old woman. In 2009 the Applicant, then aged 23, attacked and killed a 65 year old woman (“the Deceased”).[2] The Deceased was not known to the Applicant.[3]
[1]Consistent with a suppression order previously made which remains in place, the name of the Applicant and the Deceased, as well as any family members, will be anonymised in these reasons. See pars 41-48 below.
[2]Re XY [2018] VSC 456, [2] (Croucher J).
[3]Ibid.
The Applicant has suffered from paranoid schizophrenia, a major mental disorder, since she was a teenager. At the time she killed the Deceased, the Applicant was floridly psychotic as a result of this disorder. In 2010, the Applicant was found not guilty of the murder of the Deceased by reason of mental impairment.[4]
[4]Ibid, [4].
Following this finding, Coghlan J declared the Applicant liable for supervision under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”). A custodial supervision order was imposed on the Applicant for a nominal term of 25 years, and the Applicant was committed to the custody of the Victorian Institute of Forensic Mental Health (“Forensicare”), specifically the Thomas Embling Hospital in Fairfield.[5]
[5]Re XY (No 2) [2019] VSC 268, [3].
In 2018, the Applicant was granted extended leave.[6] This entitled her to be absent from the Thomas Embling Hospital subject to various conditions, for a period of 12 months pursuant to section 57(1) of the Act. Leave was extended for a further period of 12 months in 2019.[7] In 2020, the Applicant successfully applied to have her custodial supervision order varied to a non-custodial supervision order (“the Order”).[8]
[6]Re XY [2018] VSC 456.
[7]Re XY (No 2) [2019] VSC 268.
[8]Re XY (No 3) [2020] VSC 195 (Taylor J).
The Applicant now applies for the revocation of the Order. By way of a consolidated response to the application, the Secretary of the Department of Health and the Attorney-General supported the revocation of the Order. The Attorney-General’s support was subject to the evidence of expert witnesses being tested in open court.
Immediately following a hearing in which the experts gave their evidence and were the subject of cross-examination, the Order was revoked. On that day, the parties were informed reasons for the revocation would be published in due course. These are the reasons.
B.Legislative framework
The Act enables the Applicant to apply for the revocation of the Order.[9]
[9]Section 31(1).
The Act governs the court’s ability to vary or revoke a non-custodial supervision order. It relevantly provides that on an application for variation or revocation of a non-custodial supervision order, the court must either confirm the order, vary the conditions of the order, vary the order to a custodial supervision order, or revoke the order.[10] Unless the court revokes the order, the court may direct the matter be brought back to court for further review at the end of the period specified by the court.[11]
[10]Section 33(1).
[11]Section 33(2).
Section 39 provides the overarching principle that in deciding whether to make, vary or revoke a supervision order, 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.[12]
[12]Section 39(1).
Section 40 then provides that in deciding whether or not to make, vary or revoke a relevant order, the court must have regard to the following considerations:[13]
[13]Section 40(1).
(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 addition to section 39, community safety considerations are addressed in section 40(1)(c) and (d). The court is required to consider the likelihood of the person endangering themselves, another person, or other people generally because of their mental impairment, and the need to protect people from such danger. In relation to section 40(1)(c), this promotes a focus on “the extent of the chance, risk or peril of some harm materialising”.[14] To make this evaluation, the court need not obtain “psychiatrically underwritten guarantees that persons subject to such orders pose no possible danger”,[15] but rather should direct its attention to whether there is a “real as opposed to fanciful chance that the person, another person or the community generally will be endangered” by the revocation.[16]
[14]NOM v Director of Public Prosecutions (2012) 38 VR 618, 637 [58] (Redlich and Harper JJA and Curtain AJA).
[15]Ibid, 640 [65].
[16]Re Friedman (a pseudonym) [2019] VSC 251, [69] (Niall JA).
The relationship between sections 39 and 40 is well established:[17]
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.
[17]NOM v Director of Public Prosecutions (2012) 38 VR 618, 633 [47] (Redlich and Harper JJA and Curtain AJA).
It is not necessary that each of the factors to which the court must have regard be given equal weight in the exercise of its discretion.[18] Rather, the weight attached to the specified factors depends on the words of the applicable legislation, the nature of the relevant discretion, and the facts of the particular case.[19] In the context of the Act, while the community safety considerations in sections 39 and 40(1)(c) and (d) may be given greater prominence, it is not appropriate to elevate any of the factors to the status of a “test or decisive consideration”.[20]
[18]Ibid, 634 [49].
[19]Ibid.
[20]Ibid.
In circumstances where the court releases a person unconditionally or otherwise releases a person from custody, or significantly reduces the degree of supervision to which a person is subject, it must adhere to the terms of section 40(2). This provides as follows:
(2)The court cannot order a person to be released unconditionally or otherwise release a person from custody under Part 3, 4 or 5, or significantly reduce the degree of supervision to which a person is subject, unless it –
(a)has obtained and considered the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on –
(i)the person’s mental condition; and
(ii)the possible effect of the proposed order on the person’s behaviour.
(ab)in the case of a person who is subject to a supervision order, has obtained and considered the report of a person having the supervision of the person subject to the order; and
(b)has considered the report submitted to the court under section 41(1) or (3) (as the case may be); and
(c)is satisfied that the person’s family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and
(d)has considered any report of the family members or victims made under section 42; and
…
(e)has obtained and considered any other reports the court considers necessary.
The Director of Public Prosecutions must comply with obligations under sections 38C and 38E of the Act. These provisions require, among other things, that notice of hearings be provided to each family member of the person and each victim of the offence with which the person was charged,[21] and that certain information be provided to those persons.[22] These provisions facilitate the involvement of affected persons in the court’s process.
[21]Section 38C(2) sets out the types of hearings of which notice is required to be given, which relevantly include a review directed under section 33(2), as is presently the case.
[22]Section 38E.
Section 42 allows a family member of the person or a victim of the offence to make a report to the court.[23] The reports serve 2 legislative purposes: assisting counselling and treatment processes for all people affected by an offence, and assisting the court in determining any conditions it may impose on an order made in respect of a person under the Act or in determining whether or not to grant a person extended leave.[24] The reports may contain the views of the family member or victim on the conduct of the person and the impact of that conduct on the family member or victim.[25]
C.Evidence
[23]Section 42(1).
[24]Section 42(1).
[25]Section 42(2).
An affidavit sworn by a solicitor and filed on behalf of the Director of Public Prosecutions addressed the obligations under sections 38C and 38E of the Act. The evidence demonstrated that they have been discharged.
In respect of the current review, the following evidence was tendered in accordance with the Act:
(i) A psychiatric court report prepared by Dr Sobia Khan (“Khan”), a consultant forensic psychiatrist employed full time at Forensicare, dated 20 October 2021.[26]
[26]Khan also prepared an annual report on the Applicant pursuant to section 41(3) of the Act, dated 12 July 2021. The content of the annual report was substantially similar to that of the report prepared for the application to revoke the Order, except that the latter included details of a Forensicare Supervision Review on 1 September 2021, a formal risk assessment, and an opinion in respect of this application.
(ii) A psychiatric court report prepared by Dr Bethany Whitehouse (“Whitehouse”), a consultant psychiatrist employed by Austin Health, dated 20 October 2021.
(iii) A letter from Emily McLean (“McLean”), a registered nurse and the manager of the community mental health service which has been monitoring and providing treatment for the Applicant, dated 27 October 2021.
C.1 Applicant’s History
Details of the Applicant’s personal and psychiatric history have been set out in previous decisions of the court, and so it is not necessary to set them out in detail here. To summarise:
(iv) The Applicant is a 35 year old woman who lives alone in a rented flat. She has been diagnosed with schizophrenia.
(v) The Applicant appears to have been exposed to domestic violence and potentially to sexual abuse at a young age.
(vi) The Applicant experienced depression from the age of 14 to 17, and reported a history of bulimia and self-inflicted lacerations during this period.
(vii) The Applicant also commenced use of cannabis in that period, and continued to use cannabis on an essentially daily basis until she was 17. The cannabis use caused persecutory ideation towards strangers. The Applicant commenced drinking alcohol when she was 18, and drank for several years, particularly on weekends.
(viii) The Applicant has reported experience with tactile hallucinations, passivity phenomena (where she experienced her volitional acts or thoughts to be controlled directly by an outside source) and auditory hallucinations commanding her to commit a violent act.
(ix)Prior to the killing of the Deceased, the Applicant had a history of violence in various settings and towards various victims, including members of her family and an elderly woman who bumped her with a shopping cart.
(x) At the time of the killing of the Deceased, the Applicant was floridly psychotic. She described experiences of hearing and being “touched” by voices that she attributed to “angels”, and developed the view that the voices would cease if she killed someone.
(xi)The Applicant was stabilised on clozapine in April 2010. Since that time, clozapine has been the mainstay of her antipsychotic treatment.
C.2 Progress on non-custodial supervision order
Each of the experts made positive comments about the Applicant’s progress. There was substantial common ground between the experts as to the Applicant’s current mental state and the positive behaviours and strategies in which she has engaged.
The Applicant has maintained her medication regime and recognises the importance of medication in managing her mental illness. Whitehouse noted that compliance with the medication regime was evident in the Applicant’s stable mental state, her reporting of side effects, and her occasional clozapine levels measured through regular blood tests. Khan noted that the Applicant uses a Webster pack to assist in keeping track of her medication, and has shown a willingness to continue with this strategy. McLean commented that a prescription of clozapine requires a level of diligence, commitment and insight by those prescribed it, and that the Applicant had been consistent in her responsibilities, meeting all monitoring requirements without issue. McLean said that this behaviour in and of itself spoke to the Applicant’s capacity, willingness and desire to remain well.
The Applicant reports that she has not experienced any symptoms from her mental illness for a number of years. Khan noted that the Applicant has good insight into the early warning signs that her mental health is declining and has said that if these warning signs were to occur she would seek assistance.
The Applicant also understands the links between the use of certain substances and her mental illness. She reports she has not used these substances for years and has tested negative for all such substances in random urine drug screening.
The experts each made mention of the resilience shown by the Applicant. McLean noted that the Covid-19 pandemic caused significant disruption to the Applicant’s routine, but that despite this disruption the Applicant remained focused, showing resilience and problem solving capacities. Whitehouse noted the positive manner in which the Applicant has responded to challenges from changing treatment staff, disruption of plans due to Covid-19 restrictions, and the process required to arrange holidays to Queensland to visit her mother while complying with the Order. Khan similarly noted the Applicant has coped well with disruptions including loss of employment, change of accommodation and Covid-19 restrictions. Whitehouse noted that the Applicant remains quite socially isolated in Melbourne, and that this has required her to engage independently in tasks for self-care.
C.3 Risk Assessment
Khan noted that best practice in offending risk assessment is to use a structured professional judgment tool to ensure the assessment is transparent and evidence based. To this end, she used a tool known as the HCR-20 v3 (“the Assessment Tool”). The Assessment Tool takes into account 20 risk factors over 3 domains of risk, which have been found in research to be associated with re-offending. The 3 domains considered by the Assessment Tool were historical factors, which concerned the past; clinical factors, which concerned the present; and risk management factors, which concerned the future.
Khan outlined that the Applicant had several historical, and therefore static, risk factors. These included:
(xii) The Applicant’s index offence, the homicide of the Deceased, as well as a history of previous violence in various settings and towards various victims, which occurred in the context of prodromal and acute phases of psychosis.
(xiii) A history of other antisocial behaviours which began at the early age of 13 to 14, and included serious behaviour disturbances, truancy, heavy cannabis use, self-harm, property damage, theft, breaking into cars and houses, interpersonal conflict, fire setting in bins, and poor academic performance.
(xiv) A significant history of substance abuse, with alcohol, cannabis and experimenting with amphetamine and ecstasy.
(xv) A history of a major mental illness, schizophrenia, as well as additional diagnoses of major depression, anti-social personality disorder and bulimia nervosa in her mid-teens.
(xvi) A history of victimisation, with significant physical abuse by her father, reports of sexual abuse both to her sisters and to herself, and witnessing domestic violence between her parents.
Khan noted that, in contrast to her high loading of historical risk, the Applicant’s clinical risk factors were absent. Khan explained that in contrast to the static historical risk factors, clinical factors were dynamic and therefore modifiable. Khan outlined that the Applicant:
(xvii) Has good insight into her diagnosis, her early warning signs, and the impact of substances on her behaviour and violence risk.
(xviii) Accepts that treatment is necessary for her and will be required on a long term basis.
(xix) Does not currently show any evidence of holding violent attitudes.
(xx) Has not experienced active symptoms of psychosis or mood related symptoms for many years.
(xxi) Shows stability in her affect, behaviour and cognitions.
(xxii) Has coped well with external stressors and instability.
(xxiii) Has been fully compliant with all aspects of her treatment, supervision and monitoring.
In terms of risk management factors, Khan noted that the Applicant:
(xxiv) Has shown good engagement and rapport with mental health services, and has been accepting of the need to remain in touch with mental health services for the foreseeable future.
(xxv) Tolerates her medication well and has no plans to change her treatment.
(xxvi) Has limited personal support in her current location, but this would be likely to improve if she were to relocate to be close to her mother.
(xxvii) Has positively availed herself of contact with family, despite the distance and travel restrictions.
Khan noted that stress remains a likely future risk factor for the Applicant, but that recent history suggested that with appropriate personal and professional supports in place, the Applicant could manage stress well.
Taking into account each of the factors outlined, Khan concluded that in her opinion, the Applicant remained a low risk of harm to others. She noted that relapse of mental illness and substance abuse were the most likely risk scenarios for violence to occur, and that as a result appropriate management of the Applicant’s psychotic illness remained the main focus of any future risk management strategy.
Whitehouse and McLean expressed similar conclusions to Khan. Whitehouse considered that the Applicant presented a low risk of danger to the community in the future, and a very low risk currently. Important factors noted by Whitehouse were the Applicant’s robust levels of insight, motivation and independence in managing her mental health, her cessation of drug use coupled with maturity and improvement in emotional regulation, and the likelihood that the Applicant would seek assessment and treatment if she became unwell in the future. McLean noted that the Applicant had been assessed to be of low risk during each clinical interaction, which meant that no specific intervention had been considered necessary. While acknowledging that risk could increase if the Applicant became unwell, McLean indicated that the Applicant’s treatment team considered this risk to be greatly diminished due to the Applicant’s insight, compliance and engagement with supports.
C.4 The Applicant’s relocation
The Applicant gave evidence that, if the Order was revoked, she intended to move to Queensland to live with her mother as soon as possible after the easing of Covid-19 restrictions and the opening of interstate borders. The Applicant also gave evidence that she was committed to continuing treatment, and understood that such treatment is likely to be required for the rest of her life. Each of the experts expressed support for the Applicant’s plan to relocate.
A letter from the Applicant’s mother was tendered into evidence. It was clear from this letter that the Applicant’s mother is highly supportive of the Applicant’s desire to relocate. The Applicant’s mother noted that the move would allow the Applicant to have a much more structured family life and engage more fully in activities that are beneficial to her mental health. Khan noted that the Applicant had reported a close relationship with both her mother and her mother’s partner, and that the Applicant’s mother was aware of the mental health services in her area and had a good understanding of the Applicant’s mental illness and early warning signs.
Khan noted that the Applicant’s relocation would be a protective factor for her overall recovery and wellbeing, and that if the Applicant was appropriately linked with mental health support services in Queensland, the move in itself would not destabilise her mental health or increase her risk of harm to others. Whitehouse noted that the same level of care and monitoring would be available to the Applicant in Queensland as had been provided in Melbourne.
Whitehouse explained that it would ultimately be her responsibility to ensure that the handover of the Applicant’s treatment was successful, and that the Applicant would not be officially discharged from her current service until it was confirmed that she had engaged with a new service in the new location. Khan also confirmed that Forensicare would be in contact with mental health services in Queensland to ensure the transition of care proceeded smoothly.
D.Analysis
It was the opinion of each of the expert witnesses that the Applicant would pose a low or very low risk to the community if the Order was revoked. The revocation of the Order was supported by the Secretary of the Department of Health and by the Attorney-General. Given the low threat to the safety of the community posed by the Applicant, the Order represents a curtailment of the Applicant’s freedom and personal autonomy greater than the minimum consistent with the protection of the community. As such, the appropriate outcome of this review is that the Order be revoked.
In making this decision, I have had regard to the factors in section 40 of the Act. The severe nature of the Applicant’s mental illness is a significant factor, as is the direct connection between the mental illness and the offending conduct. However, all the evidence indicated that if the Order is revoked, the Applicant will not be likely to endanger to herself, another person, or other people generally. I am also satisfied on the basis of the expert evidence that following the Applicant’s relocation to Queensland, there will be adequate resources available for the treatment and support of the Applicant in the community. In that regard, Whitehouse’s evidence that she would retain responsibility for the Applicant’s transition to an appropriate health service in Queensland, with Forensicare’s additional support, was important. It is clear that the Applicant will not be left in a situation where she does not have access to appropriate treatment and care during or following her relocation.
The requirements of section 40(2) have also been satisfied. Section 40(2)(a) was satisfied by the report of Khan dated 20 October 2021. Section 40(2)(b) was satisfied by the annual report of Khan dated 12 July 2021.[27] Section 40(2)(c) was satisfied by the affidavit of Julie Carpenter sworn 15 November 2021 and by the submissions filed on behalf of the Director of Public Prosecutions on 16 November 2021. In accordance with section 40(2)(d), I have considered the reports of the family members of the Deceased.
[27]See fn 26 above.
The court was provided with reports from the son and granddaughter of the Deceased. I have reviewed these reports, and from them it is clear that the killing of the Deceased has had a devastating impact. The Deceased’s son wrote of how his children have missed out on having their grandmother at birthdays, Christmas, weddings and other life milestones. The Deceased’s granddaughter spoke of the impact the killing has had on her own mental health, and how her adolescence and early adulthood were deeply marred by significant mental health barriers.
Both victims who provided reports opposed the revocation of the Order. Both expressed concern for the safety of the community. The granddaughter of the Deceased said that due to her long term mental health issues, she did not want the Applicant anywhere near her. While I sympathise with the pain suffered by the victims, and acknowledge and understand their desire that the Applicant be punished for what she did, the purpose of the Act is not to punish but to protect. The evidence before me is that the Applicant no longer poses anything but a low risk to the community, and in the face of that evidence it is not open to me to continue to restrict the Applicant’s freedom.
E.Suppression Order
On 30 April 2018, Croucher J made an order pursuant to section 75 of the Act, prohibiting publication of the following:[28]
[28]Re XY [2018] VSC 456, [8].
(xxviii) the names and addresses, or former addresses, of the Applicant, the Deceased and their relatives; and
(xxix) any information which might identify the names and addresses, or former addresses, of the Applicant, the Deceased and their relatives, except insofar as such information is contained in the written reasons for judgment of the Court on this application.
This suppression order in the form of a non-publication order has been continued each time the Applicant has appeared before the court.[29] As a decision has been made to revoke the Order, the matter is unlikely to return to court, and as such it is necessary to consider the application of the suppression order.
[29]Re XY (No 2) [2019] VSC 268, [44]; Re XY (No 3) [2020] VSC 195, [61] (Taylor J).
The power for the court to make a suppression order is set out in section 75 of the Act. That section relevantly provides:
(1)In any proceeding before a court under this Act, the court, if satisfied that it is in the public interest to do so, may order—
(a)that any evidence given in the proceeding;
(b)that the content of any report or other document put before the court in the proceeding;
(c)that any information that might enable an accused or any person who has appeared or given evidence in the proceeding to be identified—
must not be published except in the manner and to the extent (if any) specified in the order.
Khan gave evidence that media attention or disclosure of the Applicant’s personal information could create a highly stressful situation, and that the Applicant might struggle to manage such a situation. Khan said that this might impact on the Applicant’s mental state, which could change her risk status, resulting in increased risk to herself and others. Whitehouse gave evidence to similar effect.
Obviously, there is a significant public interest in the Applicant remaining well and not experiencing any deterioration in her mental state. Further, I am satisfied that media attention would be likely to have an adverse effect on the Applicant’s mental state, and would have the potential to seriously undermine the significant and ongoing progress that has been achieved. I am therefore satisfied that the suppression order should continue to operate.
As to the length of the suppression order, the evidence before the court was that the Applicant’s mental illness would persist and need to be managed for the remainder of her life. While the illness persists, the justification for the suppression order will persist, as there will remain a risk that publication of the Applicant’s personal information could cause psychological or psychiatric harm, leading to a deterioration in her condition and an increased risk to the Applicant and the community. Accordingly, it is appropriate to order that the suppression order continue to operate for the remainder of the Applicant’s lifetime.
In reaching this conclusion, I have had regard to the fact that suppression orders are not made lightly, particularly on a long term basis. For example, under the legislative scheme set out in the Open Courts Act 2013 (Vic), the ability to make an order of indeterminate length is limited by section 12(3), which provides that a suppression order which is specified to operate until the occurrence of a future event which may not occur must also be specified to operate for a period not longer than 5 years from the date on which the order is made. Section 12(3) does not apply to the current suppression order,[30] but the public policy rationale for that statutory limitation upon suppression orders restricting access to information that would ordinarily be available and readily accessible in accordance with principle of open justice is equally applicable as a consideration in exercising the court’s discretion under section 75 of the Act.
[30]Open Courts Act 2013 (Vic), s 8.
Succinctly, the extended term of the order in this case is justified as being in the public interest given the Applicant’s circumstances. Her mental illness is likely to persist for the remainder of her life and thus the risks associated with publication will remain.
F.Conclusion
For the reasons stated, the application was granted, and the Applicant’s non-custodial supervision order was revoked.
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