Secretary to the Department of Families, Fairness, and Housing v SM
[2021] VCC 285
•26 MARCH 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00013
CR-17-00014
IN THE MATTER of a major review of the
Non-Custodial Supervision Order pursuant to
s.35 of the Crimes (Mental Impairment and
Fitness to be Tried) Act 1997
and
IN THE MATTER of SM
BETWEEN
| SECRETARY TO THE DEPARTMENT OF FAMILIES, FAIRNESS, AND HOUSING | Applicant |
| V | |
| SM | Reviewee |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 MARCH 2021 | |
DATE OF RULING: | 26 MARCH 2021 | |
CASE MAY BE CITED AS: | Secretary to the Department of Families, Fairness, and Housing v SM | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 285 | |
RULING
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Subject:CRIMINAL LAW
Catchwords: Non-Custodial Supervision Order (NCSO) – Reviewee is a 43 year old female – Complex mental health and behavioural needs – Low level index offending
Legislation Cited: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Ruling: NCSO revoked
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APPEARANCES: | Counsel | Solicitors |
| For the Secretary of the DFFH | Ms M Wilson | Department of Families, Fairness, and Housing |
| For the Attorney-General For the Reviewee | Ms K Grinberg Mr T Marsh | Victorian Government Solicitor’s Office Victoria Legal Aid |
HER HONOUR:
1On 9 March 2021 I made an order revoking the non-custodial supervision order which had been made in respect to SM, and made a suppression order prohibiting publication of any information that would enable SM’s name or whereabouts to be identified, including the contents of any reports exhibited in this proceeding. These are my reasons for making those orders.
Background
2On 13 November 2017 Judge Taft made a non-custodial supervision order, pursuant to s23(a), s26(1) and s26(2)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“CMIA”) in proceedings number CR-17-00013 and CR-17-00014 (“the NCSO”). Prior to the making of the NCSO SM had been held on remand for 1 year, 6 months and 16 days for having resisted police who were attempting to enforce an intervention order taken out by her parents.
3The reports previously tendered in this matter set out the very distressing situation SM was in, the difficulties and failings which had led her to be there, steps which had been taken to better her situation, and prospects for the future. There is no need for me at this time to recite that history in detail. It is relevant to set out, however, a brief summary of problematic behaviour exhibited by SM:
(a) Whilst on remand, and for some time subsequently, her self-care and personal hygiene were very poor. She needed prompting to clean herself and her surroundings;[1]
(b) She sometimes displayed sexualised language or behaviour which could, in certain contexts, jeopardise her safety;[2]
(c) She had no understanding of her need for supports, her judgement was poor and she put herself into a range of situations where she was vulnerable;[3]
(d) Until recently she was opposed to voluntarily taking medication to regulate her behaviour and mental state, and it seems that until 2019 no medication she was given had a significant ameliorative effect;[4]
(e) She engaged in screaming outbursts which were extraordinarily loud and prolonged. These outbursts were unsettling to others when she was in an institutional setting and led to accommodation in the community becoming unsuitable due to action and concerns by neighbours who were impacted by this conduct;[5]
(f) When in an escalated state she would sometimes damage physical items or the structure in which she was living;[6]
(g) Whilst on remand and in the community, SM was at times physically and verbally aggressive towards staff caring for or supervising her;[7] and
(h) She would sometimes leave her supported accommodation, alone, for periods up to days, putting herself at risk. She would also attempt to go to her parents’ house which was problematic for several reasons.
[1]Report of Dr Douglas Bell dated 9 August 2017, [6] (“Bell Report”); Report of Dr Chad Bennett dated 31 May 2018, p 3 (“Bennett Report”).
[2]Bell Report, [22].
[3]Bennett Report, [12]; Bell Report, [6].
[4]Report of Dr Suzanne Redston dated 18 June 2018 (“Redston Report”).
[5]Bennett Report, pp 3-4.
[6]Ibid, p 4.
[7]Bell Report, [18]-[20].
4In 2019 SM was admitted to the Royal Talbot Rehabilitation Centre, as an involuntary patient. Her situation at that time was summarised as:[8]
“[SM] was admitted to the Heath Unit following a period during which she was residing in supported accommodation with 24-hour carer support provided by ERMHA. During this period, her behaviour was very unsettled, with frequent incidents of aggression and violence towards her carers, damage to property, difficulties with self-care and attempts to abscond from her accommodation. These issues led to frequent changes in accommodation, with [SM] residing in 14 different accommodations in the 12 months prior to her admission to APU.”
[8]Report of Dr Greg Roebuck dated 14 May 2019, p 1 (“Roebuck Report”).
5Whilst subject to the involuntary treatment order under the Mental Health Act 2014, SM was commenced on paliperidone, an antipsychotic medication. She responded very well to that medication, so that by the time of the major review of the NCSO in March 2020 real consideration was being given to whether the NCSO was necessary. Ultimately the position taken by all parties on that review was that the NCSO should not be revoked, and Judge Taft confirmed the order.[9]
[9]Secretary to the Department of Health & Human Services v SM [2020] VCC 378.
This Review
6Judge Taft directed that a major review, pursuant to s35 of the CMIA be conducted on or before 11 March 2021. His Honour retired last year, and so the Major Review was listed before me. I have informed myself by reading all the reports tendered in the proceeding, the Ombudsman Report titled “Investigation into the imprisonment of a woman found unfit to stand trial” dated October 2018, and the previous rulings by Judge Taft.
7The purpose of a major review is to determine whether the person subject to the order is able to be released from it.[10] In deciding whether to vary or revoke the order I 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.[11]
[10]CMIA s35(2).
[11]CMIA s39(1).
8The CMIA sets out certain matters to which I must have regard,[12] and prescribes the reports which I must consider, together with other information or reports if in existence.[13]
[12]CMIA s40(1).
[13]CMIA s40(2).
9The following materials were tendered on this review:
(i)Report to the County Court required under s41(3), authored by M Tartaggia, and authorised by A Papoutsoglou, dated 16 February 2021;
(ii)Report of Dr Charu Gandhi dated 16 February 2021;
(iii)Addendum report of Dr Charu Gandhi dated 4 March 2021;
(iv)Affidavit of Julie Carpenter of the OPP dated 5 March 2021;
(v)Submissions on behalf of the DPP dated 5 March 2021; and
(vi)Submissions on behalf of the Reviewee dated 8 March 2021.
10Exhibits 1, 2, and 3 meet the requirements of s40(2) of the CMIA.
11The affidavit of Ms Carpenter established that the notice requirements of the CMIA were met. The Director did not seek to appear or otherwise be heard on the review.
12All parties appearing on the review supported the revocation of the NCSO.
SM’s Current Situation
13SM is now a voluntary patient and lives in the Step 2 Transitional Unit which is on the grounds of the Royal Talbot Rehabilitation Centre. She has settled into daily routines and is voluntarily compliant with taking her medication. She has done so since the end of the compulsory treatment order in July 2020. Over the last year she has worked at developing her daily living skills, gardening, relationship building and planning for the future.
14New accommodation for SM has been found in the community. SM has seen the proposed property and is willing to make the move to that new situation, but in view of the difficulties attending such a transition this process will take some time to ease her into the new address and circumstances. Once SM has transitioned into that housing there will be 24 hour a day staffing. Another resident will be introduced over time to that accommodation, contingent upon SM coping with that process.
15SM has a guardian appointed by VCAT, with that Order to be reviewed by 2 April 2021. She continues to receive funding via NDIS, which will enable workers provided through ermha to continue working with her. Her care team now meets monthly, with additional meetings as required. Once SM has transitioned to living in the supported accommodation in the community assistance provided under the MACNI program, within the Department of Families, Fairness and Housing, will recommence.
16SM’s self-care has improved significantly. She shows more insight about her personal wellbeing and will seek assistance from staff. She requires minimal prompting to carry out tasks such as showering, actively participates in daily living tasks, and will seek out assistance for health concerns such as dry skin.
17There has been no incident involving violence, threats of violence, or screaming episodes for more than 14 months. She appears to be developing some insight into her own needs and is learning to articulate her needs and concerns in a useful way.
18Dr Gandhi is a consultant psychiatrist who has been overseeing SM’s care at the Step 2 Unit, and has previously been involved in her care and treatment. He reports: [14]
(a) SM’s current diagnostic label is “Pervasive Developmental Disorder NOS with borderline intellectual functioning”. Her mental state and behaviour have been largely stable since February 2020;
(b) Her current level of risk to herself and others is low, although risk factors remain if she were non-complaint with treatment, and if stressors arise; and
(c) The care being provided to her would not be impacted by the revocation of the NCSO, as it has no impact on the provision of clinical care or supports.
[14]Exhibit 2 and Exhibit 3.
19Based upon the information in the exhibits, and provided in the course of the review hearing, I am satisfied that it is appropriate to revoke the NCSO.
20SM’s mental condition will not change but her response to the medication and care she has been receiving has altered her behaviour and circumstances significantly. Whilst there was a clear link between the offending and her mental condition, in view of the treatment she is now voluntarily undergoing, and the real improvements in her ability to self-regulate, I do not think that she would be likely to endanger herself or others by reason of her mental impairment.
21The protection of the community from harm carried out by SM is being met by the medication she takes and the supports she receives. The NCSO no longer provides any of those supports and in view of 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,[15] the Order has been revoked.
[15]CMIA s39(1).
22The change in SM’s circumstances owes a great deal to the work done by the professionals at the Austin Hospital and the Royal Talbot Rehabilitation Centre. Whilst a key factor in the improvement of SM’s situation has been her response to the medication paliperidone, the supports provided by her Guardian, the ermha staff funded by NDIS, and funding and services under the umbrella of the NCSO have also been important.
23Rather than listing the failings, which are well known, that led to the long period of incarceration of SM, I simply reflect that the provision of appropriate services has benefitted not only SM, but the community. SM is herself more settled and less of risk to herself. She presents a much lower risk to the community and is no longer prone to disturbing the peace of others living around her. Her improved behaviour reduces the need for attendances by police and the need for acute care in hospitals. The costs associated with her care have reduced very significantly indeed. It is to be hoped that these proceedings and the associated lessons will improve the lot of others who are or were in a similar position to SM.
Suppression Order
24SM’s representatives submitted that a further Suppression Order should be made, pursuant to s75 of the CMIA. The making of such an order was not opposed by any party.
25In view of SM’s mental condition I accept that any publication which could identify her or her whereabouts could be very detrimental to the progress she has made. She is wholly unequipped to deal with such stress or intrusion into her life, and I accept that any such publication would be likely to undo the progress she has made.
26In view of the earlier Ombudsman report, any public interest in reporting this case is outweighed by the public interest in maintaining SM’s progress and welfare.
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