Secretary to the Department of Families, Fairness and Housing v Besen (a pseudonym)
[2022] VCC 3
•12 January 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
IN THE MATTER of a review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
and
IN THE MATTER of ADAM BESEN (a pseudonym)
and
In the matter of a Review and an Application for Revocation of a Non-Custodial Supervision Order.
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA
and
SECRETARY TO THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING
and
DIRECTOR OF PUBLIC PROSECUTIONS
| SECRETARY TO THE DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING | Applicant |
| v | |
| ADAM BESEN (a pseudonym) | Reviewee |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 09 December 2022 | |
DATE OF RULING: | 12 January 2022 | |
CASE MAY BE CITED AS: | Secretary to the Department of Families, Fairness and Housing v Besen (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 3 | |
REASONS FOR RULING
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Subject:CRIMINAL LAW
Catchwords: Review of a non-custodial supervision order – second application for revocation of the order – revocation opposed by one party only – improvement in insight in to psychological condition since last review – compliance with treatment and improvement in insight in to impact of illicit drug use and psychological state since last review – offender found to be a low risk of endangering himself and others
Legislation Cited: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; Mental Health Act 2014
Cases Cited:NOM v Director of Public Prosecutions and Ors [2012] VSCA 198; Fowler (a pseudonym) v The Secretary to the Department of Health and Ors [2014] VSCA 231; Briginshaw v Briginshaw (1938) 60 CLR 336
Ruling:Order that the non-custodial supervision order be revoked.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | No Appearance | - |
| For the Reviewee | Ms S Delaney | Victoria Legal Aid |
| For the Attorney-General | Ms J Buxton (Review Hearing) Mr J Sheppard (Ruling) | Victorian Government Solicitors Office |
| For the Secretary to the Department of Health | Mr D Bruno (Review Hearing) Ms C Luong (Ruling) | Department of Families Fairness and Housing |
HIS HONOUR:
Introduction
1This is a review of a non-custodial supervision order (the order) and an application for its revocation. The governing legislation is the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the Act).
2On 14 February 2014, the order was made after Adam Besen[1] had, the previous year, been found not guilty of the offence of intentionally causing serious injury by reason of his mental impairment. The order has been reviewed regularly and confirmed each time. It was confirmed as recently as January 2021.
[1]A pseudonym.
3At this review, Mr Besen again seeks the revocation of the order. Its revocation is not opposed by the Secretary of the Department of Health and Human Services but it is by the Attorney-General, who seeks its confirmation. The Director of Public Prosecutions chose not appear at this hearing, having complied with her obligations under the Act. Neither the victim nor Mr Besen’s mother or brother filed a report in respect of this review.
4I heard from the following witnesses:
(a) Christine Rizkallah, a psychiatric registrar;
(b) Gayatri Devasthali, a consultant psychiatrist;
(c) Cara James, a registered nurse.
5Various reports and other documents were admitted into evidence including reports from each of the three witnesses.
Circumstances
Offending
6In her sentencing reasons, her Honour, Judge Lewitan, set out the circumstances of the charge of causing serious injury intentionally[2]:
“…On Sunday 2 September 2012 the victim Stephen Rose (‘Rose’) was at his home…with his friend…and housemate watching a movie and smoking. At about 8pm you arrived at Rose’s home.
Rose heard loud knocks at the door. Rose got up off the couch and opened the front door. You had known Rose for about six months at the time of the offending. As soon as Rose answered the door, you began accusing Rose of hacking your computer. You were holding a sword. Rose started shouting at you and you raised your hands and struck the right side of Rose’s head with the sword. The blow stunned Rose and he fell off balance. Rose went to grab the sword and wrestled with you. You both fell to the ground. Rose cut his hands from trying to grab the sword.
The altercation occurred outside the front door of Rose’s home and moved to the driveway. During the struggle, you bit Rose’s left ring finger. Rose managed to break free and hit you with the sword.
Rose was bleeding profusely and was taken to hospital. As a result of the assault, Rose sustained a 7-10 cm incised wound to the right side of his scalp and required 7 sutures and minor abrasions to his hands.”
[2][2013] VCC 1891 at [6] to [9].
7Her Honour explained what happened next[3]:
“You were arrested at your home at approximately 9pm that evening and conveyed to the Werribee police station.
You were taken to St Vincent’s Hospital where you were admitted to the psychiatric unit and remained there until 11 October 2012. In December 2012 you were admitted to the Sunshine Hospital Psychiatric Unit for four days, having become suicidal.
On 17 October 2012 you attended at the Melton Police Station for an interview. You did not remember going to Rose’s house…”
[3]At [10] to [12].
8In the months preceding the offence, Mr Besen was using up to 7 grams of cannabis daily. At the time of the offence[4]:
“…Mr Besen has described experiencing persecutory delusions about the victim. He had heard voices, including a voice which he believed to be the victim’s saying ‘I’m gonna get you’. He believed that the victim had placed ‘bugs’ in his roof, and that people were living in his roof listening to these bugs. He described receiving messages from the TV Psychic channel, and thought that bikies were driving by his house and threatening him.”
[4]Report of Katinka Morton, dated 14 February 2018 at [5].
Aftermath
9As quoted above, following the assault, Mr Besen was admitted to St Vincent’s Hospital as an involuntary patient. He spent 6 weeks there. For some of his time as an inpatient, he believed hospital staff were involved with “bikies”. Once stabilised, he was then referred to the Mid-West Area Mental Health’s Harvester Clinic as a voluntary patient. He remains a patient there.
10For three days in September 2013, Mr Besen was admitted to an inpatient psychiatric unit of Royal Melbourne Hospital. It was a crisis admission due to him not taking his medicine.
11On 13 May 2014, he was admitted to the emergency department of the Sunshine Hospital. His admission was short and occurred after an argument with his mother and intentionally overdosing on sodium valproate.
12On 27 September 2014, Mr Besen overdosed. This occurred despite the intervention of his treating team and in the context of conflict between his parents and the diagnosis of his uncle with a terminal illness.
13Between 6 and 8 April 2015, Mr Besen was admitted to the Sunshine Acute Psychiatric Inpatient Unit after expressing thoughts of self-harm in the context of his relationship breakdown with Amanda[5] and his father’s diagnosis with a terminal illness. Whether by herself or on her behalf, Amanda obtained a family violence intervention order where he was the respondent. The order was based on his threats to kill her. Its duration was for 12 months.
[5]A pseudonym.
14Finally, between 22 and 25 July 2015, he was again admitted to the same unit with an early relapse of his schizophrenia (hearing voices) following cannabis and amphetamine use and non-compliance with his medication. His admission was arranged by his treating team under the Mental Health Act 2014.
15Mr Besen’s father died in January 2016.
16In early 2016, Mr Besen was found guilty of a charge or charges relating to his threats to kill Amanda and was sentenced to an adjourned undertaking.
17By July 2016, Mr Besen had resumed contact with Amanda. It was described as “ongoing ambivalent contact” without conflict.
18By August 2016, he was discharged from his drug and alcohol counselling because of his successful remission.
19By the scheduled supervision review on 14 February 2018, Mr Besen had resumed his relationship with Amanda after having broken up late the previous year. A rash had appeared on his body, which was diagnosed as folliculitis and treated with antibiotics.
20Thereafter, his mental state improved. By 2019, he was in full remission of psychotic illness, stopped using substances, his insight improved, took his medicines, engaged positively with his treating team and there were no further breaches of his order.
Current
21Mr Besen is now 35. He lives alone in a rented house in West Melton. For a short while, he left these premises and lived with his mother in North Melbourne. This followed the end of his relationship with Olivia.[6] Mr Besen intends to remain in the West Melton property until late 2022, when the lease expires.
[6]A pseudonym.
22Now he receives an anti-psychotic injection, aripiprazole, from his general practitioner. He has done so since February 2021. Previously, these injections were administered by his local area mental health service. This change has proceeded smoothly.
23At one stage, Mr Besen wanted the size of the dosage reduced because he believed it caused him to gain weight. After being told it was at the lowest therapeutic level, he suggested a tablet instead of an injection. Ultimately, he accepted advice and remains on an injection.
24He attends the Mid-West Area Mental Health Service in Melton (the service). He receives weekly Humira injections for his skin condition, hidradenitis suppurativa. This condition results in skin abscesses. It is improving. He believes there is no need for surgery to remove one of the abscesses. Whether he undergoes such surgery is a matter of his choice.
25Mr Besen has been approved for an NDIS package. It will be managed by CoHealth. Among other things, he intends to use it to fund a personal trainer and a dietician: the former to improve his fitness, the latter to improve his diet.
26Admitted into evidence is the NDIS plan developed for Mr Besen[7]. The plan started on 10 October 2021 and will be reviewed in two years. The total amount available over that period is $185,791.71. The document is written in the first person as though it contains solely Mr Besen’s ideas. Plainly, a good deal is his work although some of the information must come from others.
[7]Exhibit E.
27Mr Besen identified as “really important” to him an ability to live independently. Under the heading “Core Supports”, the plan allocated $128,461.56 “to help with daily activities, my current disability related needs and to work towards achieving my goals”. Consistent with the early stages of the plan and, no doubt, the restrictions caused by the pandemic, there is little detail about how the “core support” funding will be used beyond wound management, domestic assistance, garden management and transport.
28Under the heading “Capacity Building Supports”, these supports “are intended to build my independence and reduce my need for the same level of support into the future. My progress and outcomes from these supports will be shared at each plan review”. The total available under this heading is $57,330.15. There is a little more detail about the nature of the services with annual amounts for occupational therapy, psychology, individual skill development, specialised driver training and exercise physiologist. There is an amount for a nutritionist for the entirety of the plan and 100 hours for a psychological recovery coach for “support to help me build on my strengths, take control of my life and address barriers to achieving my goals”.
29The NDIS package now pays for the cleaning of his house and maintaining its large garden. These were things he paid for previously. They were prioritised because of the financial strain on Mr Besen for him to pay for these services. The monies now saved will enable him to continue renting his home by extending the lease in 2022.
30Incidentally, Mr Besen’s application for NDIS funding was not as relatively straightforward as one might imagine. His area mental health service helped him to prepare his application through an alternative program called “IPSA”.
31Also admitted into evidence is Mr Besen’s “NWMH Recovery and Wellness Plan”[8]. It is also written in the first person. The plan’s purpose “is for me to think about the things that are important for me and my recovery and how staff can work with me to stay well”. His friend, Olivia, and his key clinician, Ms James, had input into the plan. The third page contains three kinds of lights – green, yellow and red. “Green” deals with the signs of his behaviour when he is well and what he can do to remain so. “Yellow” deals with signs when he is getting unwell and what he can to stay well. “Red” deals with the signs when he is unwell and what he must do. Under the “yellow” and “red” lights, Olivia figures significantly.
[8]Exhibit G. The plan is undated but was apparently made in late 2021.
32Recently, Mr Besen started attending a psychologist, Michael Wright. He hopes Mr Wright will help with his anxiety and with, for example, being in public and shopping. He would also like Mr Wright to help him understand his mental illness and why he committed the offence.
33His financial position is more stable. His rent and bills are paid through Centrelink. He was able to buy, without borrowing, a motor vehicle to replace his existing one. The new vehicle is cheaper to run than the earlier one.
34Mr Besen has remained drug-free since March 2019.
35A very important person in Mr Besen’s life is his mother. Their relationship has not always been smooth. However, in the last few years, it has improved considerably.
36Mr Besen was in a relationship with Olivia but they have broken up. They remain friends. Olivia still supports him with treating his wounds. This is a source of stress for her. With the advent of the NDIS funding, this treatment should be done by others. This should relieve the stress on her. Mr Besen has become less reliant on Olivia and has assumed more responsibility himself in attending his general practitioner and his area mental health service.
37He explained why he wants the revocation of the order[9]:
“I want to get off the NCSO because I believe I have served my time and it would give me a feeling of moving on with my life. The court process has taken a lot out of me.”
[9]Affidavit sworn 7 December 2021 at [16].
Expert opinion
Morton
38Katinka Morton is a consultant forensic psychiatrist[10]. Although Dr Morton had been Mr Besen’s supervising psychiatrist since April 2014, she met him for the first time on 19 November 2014. At that stage he was living with his parents.
[10]Report dated 14 February 2018.
39In her report, Dr Morton sets out in considerable detail Mr Besen’s progress under the order since the first supervision review on 17 March 2014 and culminating on 14 February 2018.
40As early as 9 December 2015, Mr Besen was telling Dr Morton of his wish to revoke the order; something she would not then support.
41Under the heading “Opinion and Recommendation”, Dr Morton observed[11]:
“Considerable progress has been made in stabilizing Mr Besen’s mental state, and minimizing the risk to the community, since the commencement of the NCSO. The extent of Mr Besen’s substance use has been assessed and understood. His cannabis use was particularly challenging, and the association between this and continued psychosis established. An episode of methamphetamine use led to a rapid escalation of psychotic symptoms, and risk to others, that required an admission in July 2015.”
[11]At [100].
42After noting his abstinence from illicit substances since September 2015, his positive engagement with his treating team and commitment to ongoing care, his limited progress in terms of socio-occupational rehabilitation and the stability of his mental state over the last two years, Dr Morton supported the revocation of the order, saying[12]:
“In the context, I believe Mr Besen’s risk to others is currently low. For this risk to increase to moderate he would have to cease treatment with antipsychotic medication, or resume illicit drug use. He is stating a commitment to remain well, and expressing insight into the risks associated with relapse. I consequently believe that it is unlikely that his risk to others will increase, and that if his risk did increase, it could be recognised by his treating service, and contained under the Mental Health Act.”
[12]At [106].
Zergiotis
43Ria Zergiotis is a consultant forensic psychiatrist. On 30 March 2021, she prepared an annual report for the Court. She has been Mr Besen’s supervising psychiatrist regarding the order since September 2018.
44Dr Zergiotis summarised the quarterly, supervision review and case conference reports for 2020 and 2021. In all, she summarised in detail 10 reports. She gave these opinions in the final two paragraphs of her report:
“74. In my opinion, the current risk of violence in the community is low, however this would increase should he use illicit substances, experience significant psychosocial stress, or if he disengages with his treating team and becomes non-compliant with medication.
75. Given Mr Besen’s demonstration of mental stability, his improved insight into his mental illness and substance use issues, his compliance with medication, and his abstinence from illicit substance and alcohol use, the NCSO plays a less significant role in risk mitigation at the current time.”
Rizkallah
45Dr Rizkallah is responsible for the management of patients under the non-custodial supervision orders program at the Victorian Institute of Forensic Mental Health (the program). Mr Besen is one such patient. The preparation of Dr Rizkallah’s report was supervised by an experienced forensic psychiatrist, Ria Zergiotis[13]. Since the last progress report was dated 30 March 2021, Dr Rizkallah purposely spoke of developments since that date.
[13]Report dated 16 November 2021.
46In early 2021, Mr Besen suffered from increased anxiety and poor coping. This was due to the confirmation of the order and the ending of his relationship. However, these symptoms lessened, so that by mid-2021, he had shown a consistent improvement in his anxiety and panic symptoms and improvement in his functioning. This last included an improved ability to leave the house and spend time in public.
47Dr Rizkallah last saw Mr Besen on 11 October 2021. On my reading, the results of her mental state examination were essentially normal.
48Dr Rizkallah and the order team at VIFM liaised regularly with what she calls Mr Besen’s treatment team at Mid-West Area Mental Health Service. Plainly, she relied on this information when forming her views.
49Dr Rizkallah conducted a risk assessment of Mr Besen of future violence or other problem behaviours. Initially, she used the “Historical Clinical Risk Management Tool” or HCR-20. She then examined clinical risk factors and the existence and probable use of the factors for the management of risk.
50In what she described as the “current settings”, Dr Rizkallah assessed Mr Besen’s risk of violence as low. Looking at each of three areas, she found:
(a) historical risk factors:
(i)a history of violence while an adolescent and adult;
(ii)a history of anti-social behaviour;
(iii)problems with intimate relationships;
(iv)issues with previous employment;
(v)a history of substance use;
(vi)major mental illness;
(vii)being witness to traumatic experiences in childhood;
(viii)a history of non-compliance with medication.
Of the ten historical factors, Dr Rizkallah identified eight were present with Mr Besen;
(b) of the five clinical risk factors, she identified one as being partially present in Mr Besen – some affective instability in terms of distress related to his physical health issues and recent relationship turbulence following his misperception that his partner had been unfaithful;
(c) of the five partial risk management factors if he were in the community, two were present – the destabilising effect of the possible transition from his local area mental health service to his general practitioner or a private psychiatrist and the lesser supervision if the transition occurs.
51Dr Rizkallah concluded[14]:
“Given Mr Besen’s sustained improvement over several years and the last 12 months in particular while on the NCSO, with complete remission of his psychotic illness and substance use, improvement in anxiety and overall functioning, and excellent compliance with treatment and engagement with professional services, the NCSO plays a less significant role in risk mitigation, and it is my opinion that Mr Besen is suitable for revocation of his NCSO at the current time.”
[14]At [48].
52During her oral evidence, Dr Rizkallah said Mr Besen now demonstrated an excellent insight into his condition, the need for compliance with his treatment and the need to abstain from substances because of the role they played in his offending[15]. She went so far as to describe him as one of the most stable patients in the program[16].
[15]Transcript at pp 12 and 16.
[16]Transcript at p 24.
53In relation to his overall functioning, Dr Rizkallah was impressed by Mr Besen’s ability to recognise and state his needs in his successful application for NDIS funding. The existence of the funding and the supports they will obtain, should improve his overall functioning. She was also impressed by his increased ability to deal with stress and conflict and solve the issues giving rise to the stress and conflict.
54Dr Rizkallah did not see the need for Mr Besen to use specialist drug and alcohol services now due to his lengthy abstinence. However, she saw the need for a relapse prevention plan for him.
55Her assessment of the risk of re-offending took into account the revocation of the order. If the order was revoked, she envisaged the possibility of Mr Besen ceasing his involvement with the service. If the service decided to disengage then the need for its services to him must by then be reduced significantly.
56Overall, Dr Rizkallah saw the revocation of the order as beneficial to Mr Besen’s mental health even though the order helped him achieve stability of his mental state, engage with services and avoid using substances.
Devasthali
57Gayatri Devasthali is a consultant psychiatrist, working with the service. Mr Besen has been a patient of the service since October 2012 and Dr Devasthali has treated him since August 2019[17].
[17]Report dated 16 November 2021.
58Dr Devasthali reviewed Mr Besen on 17 February and 11 October 2021. To her, and to others, he has displayed no psychotic symptoms and says he does not take illicit substances. On each presentation, he engaged well and appeared normal. On the second occasion, she records a rational discussion about the form and dosage of his anti-psychotic medicine.
59After noting his consistent attendance upon his general practitioner to receive depot injections, the support of his case manager, general practitioner, mother, Olivia and the availability of NDIS funding, Dr Devasthali observed[18]:
“Mr Besen’s risk to himself and the community is currently low due to good compliance with the prescribed medication and abstinence from illicit substance use. He denies current thoughts of harming himself or others. He remains subject to chronic risk of relapse in the event of poor adherence to medications and any resumption of the use of illicit substances.”
[18]At [22].
60While previously, Dr Devasthali described Mr Besen’s insight into his psychological condition as “superficial”, apparently she no longer does. He now accepts he suffers from schizophrenia and[19]:
Q: “Does it indicate anything about his degree of insight into the importance of medication for his illness? -- ..yes, it does. I mean he is aware that he needs to take his medication and now he has…to take the responsibility of taking the medication, and towards that in his actions he has demonstrated that he has been able to do that.”
[19]Transcript at 58.
61Her service would not discharge Mr Besen until the NDIS services were implemented. It would ensure his general practitioner is fully briefed about Mr Besen’s history and condition before being discharged from the service. Since Mr Besen has been a patient of the general practitioner since February 2021, it is unclear what more the general practitioner would need to know.
James
62Cara James is Mr Besen’s case manager with the service[20]. Since August 2021, she has been his key clinician. Before taking over this role, Ms James undertook a handover during which she read his file and learnt the requirements of the order program. Ms James has had frequent contact with Mr Besen.
[20]Report dated 12 November 2021.
63Under the heading of “Risk”, Ms James commented:
“Given that Mr Besen is currently compliant with treatment and remains abstinent from illicit substances it is my belief that he is of low risk to harm himself or others. It is my opinion however that this risk could change in the event of significant psychosocial stressors, as this has caused Adam to use ice in the past. It is also pertinent that in the event of this Mr Besen has strategies that he can utilise to manage his anxiety and distress, such as those he would learn through psychological input.”
64Since Ms James started dealing with Mr Besen, he has been eager to engage with her. Based on the past, she has no reason to doubt that will continue to occur if the order is revoked.
65Again, based on her experience, Ms James believes both Mr Besen’s mother and Olivia would contact either her service or his general practitioner if his mental state deteriorated. This consideration may even apply to his NDIS support co‑ordinator.
66Ms James’ view is it is unlikely the revocation of the order would change Mr Besen’s compliance with his treatment, whether from her service or his general practitioner.
Legal considerations
67S 33 sets out the procedural circumstances in which a non-custodial supervision may be varied or revoked.
68S 39 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.
(2) In subsection (1), supervision order includes an order made under section 38ZH.”
69S 40 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.
(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; and
(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
(da)in the case of an application for extended leave—has considered the leave plan filed under section 57A; and
(e)has obtained and considered any other reports the court considers necessary.
(3) Subsection (2)(c) does not apply if section 38C provides that notice is not to be given, or need not be given, to a family member or victim.
(4) The court cannot make a further grant of extended leave for a person who is on extended leave at the time of the application unless the court has obtained and considered—
(a)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 further grant on the person’s behaviour; and
(b) the leave plan filed under section 57A.”
70Counsel drew my attention to NOM v Director of Public Prosecutions and Ors[21] and Fowler (a pseudonym) v The Secretary to the Department of Health and Ors[22].
[21][2012] VSCA 198.
[22][2014] VSCA 231.
71Relevant to this proceeding, these propositions stem from NOM:
(a) no party carries the onus of proof, legal or evidential, in this review. The standard of proof is the balance of probabilities informed by Briginshaw v Briginshaw[23] – “the process of reasoning by which reasonable satisfaction is attained must necessarily be affected by the gravity of the consequences flowing from findings in this jurisdiction”[24];
(b) the general principle in s 39 of the Act recognises that supervision is a restriction on liberty and autonomy and it can only be justified where it is found necessary[25];
(c) the factors in s 40 inform the application of the general principle in s 39[26];
(d) s 40(1)(c) of the Act requires an assessment of the likelihood of the risk materialising and whether or not that risk is more than merely possible. That is the critical consideration, not the gravity of the harm that may eventuate[27].
[23](1938) 60 CLR 336.
[24]At [74].
[25]At [71].
[26]At [70].
[27]At [59].
72In Fowler, counsel relied on certain paragraphs of the Court’s judgment for the propositions the existence of the entire regime provided for by the Mental Health Act 2014 is a relevant consideration in a revocation application although, depending on the circumstances, it may not provide a basis for revocation.
Discussion
73As I said at the start of this ruling, the order was reviewed in December 2020 where Mr Besen again sought its revocation. After a hearing, following somewhat similar lines to mine, the order was confirmed. I have read the ruling in that proceeding[28]. In the proceeding before me, Mr Besen and the Secretary sought the revocation of the order and the Attorney-General its confirmation. The Attorney-General submitting its revocation was premature even though Mr Besen had made progress since the last review.
[28][2021] VCC 12.
74The issue of Mr Besen’s risk of endangerment is tied up with two factors. First, the degree of Mr Besen’s insight into his psychological state which then raises his desire to be compliant with his treatment. Second, his ability to abstain from taking or using illicit substances.
75Since the last review his insight has improved markedly. Mr Besen accepts he has a psychological disorder rather than his symptoms being due to his drug use. He sees the need for treatment if he is to maintain his current mental health.
76Since 2019, Mr Besen has complied with his treatment, a main form of which is his regular depot injection. His compliance must be seen against the background of compulsion inherent in the Order itself. However, he has shown considerable insight into the nature of the psychological disorder.
77Also since 2019, Mr Besen has not used illicit substances. He understands his taking of illicit substances affects his psychological state adversely.
78The advent of the NDIS funding represents an enormous step forward for Mr Besen. Although most of the finer details are yet to worked out, there is a large amount of money available over a 2‑year period. Even at this early stage, one can see the financial benefit for Mr Besen. There are monies for house maintenance and gardening. He previously paid for these items. The monies saved means he can contemplate continuing in this rental property rather than look for a cheaper alternative. For an anxious person, this has already reduced an area of stress.
79During 2021, Mr Besen sought the help of a psychologist. After a few attendances, he stopped but intends to re‑engage. Whether through a mental health care plan or the NDIS monies, there is plenty of financial capacity for him to attend upon a psychologist. He gained benefit from the psychologist by being taught strategies to manage his anxiety. His reason for stopping was seen by Dr Rizkallah as temporary and reasonable.
80Counsel for the Attorney-General submitted that at the last review Mr Besen demonstrated a “significant” reluctance to seeking NDIS assistance and to engage in psychological treatment. She submitted the existence of the order played a part in his change of attitude and therefore the mitigation or management of the risk to himself and the community.
81I accept the submission. Although Mr Besen speaks of the NDIS funding in his affidavit, he does not directly talk about his motivation for applying. It appears he was determined to succeed in his application after being refused at his first attempt. It is also clear he is starting to reap the benefits of the funding.
82Counsel for the Attorney-General also submitted the effect of the NDIS funding is at its early stages; a co‑ordinator has been appointed and cleaning and gardening are in place. The therapeutic aspects are still to be implemented and that may take time. That is so. Subject to the vagaries caused by the pandemic, one can expect the pace of implementation will quicken in 2022 since a co‑ordinator has been appointed. That person’s task is to arrange suitable, funded therapeutic services for Mr Besen.
83In light of the refusal of Mr Besen’s application for revocation at the last review, it is understandable to focus on what has changed. That is not the test which appears in s 39 of the Act. One must examine the overall situation.
84As to the risk factors identified by Dr Rizkallah, that of transition is well understood and will be implemented carefully. The process of implementation started in February 2021 when the general practitioner became involved.
85The existence of the Mental Health Act 2014 and the entire regime it creates may be a relevant consideration. It is not in this case. Mr Besen has insight into his psychological disorder. For that reason, he realises the need for treatment to avoid its resurfacing. As such, he will continue receiving such treatment even if the order is revoked. He understands the role played by his use of the substances in the commission of the index offence. His usage was sufficiently severe to justify the diagnosis of a recognised psychological disorder. It is now in remission and has been for more than two years. He has not used substances in that period. He does not intend to use substances in the future.
86The psychiatric and other opinion points in the same direction. Owing to his insight into his condition, his compliance with treatment, his insight into the effect of illicit drug use and his psychological state and abstention from using substances for more than two years, Mr Besen is a low risk of endangering himself or others. Dr Rizkallah, supported by Dr Zergiotis, is more positive in her predictions than Dr Devasthali. The latter appears, by nature, to be cautious. Even she conceded there is no evidence Mr Besen will not comply with his treatment[29].
[29]Transcript at p 82.
87Mr Besen suffers from schizophrenia. The symptoms of this disorder are well-controlled by treatment. Mr Besen sees the need for the treatment. He also sees the need to avoid using illicit substances from the perspective of his psychological state. It remains possible the symptoms of his disorder will resurface if he ceases his treatment or resumes drug taking or both. It is a possibility where what is needed to make a finding is actual persuasion bearing in mind the Briginshaw overlay. On the evidence, I could not find Mr Besen is likely to endanger himself, another person or other people generally because of his psychological condition or mental impairment.
88Endangerment is one of the factors set out in s 40(1). Taking it and the other factors in the sub-section into account and applying them to the general principle in s 39, I am satisfied the order should be revoked.
Conclusion
89I will revoke the non-custodial supervision order.
90If I publish this ruling, as opposed to providing copies to the parties, then I will use the pseudonyms used by Judge Lewitan and any other pseudonym if necessary.
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