Secretary to the Department of Health and Human Services v Avci

[2019] VCC 776

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case Nos. CR-13-01150, CR-13-01151, CR-13-01152

IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried)Act 1997 (“the Act”)

and

IN THE MATTER of a Major Review of a Non-Custodial Supervision Order (s. 35 the Act)

BETWEEN

SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES

and

THE ATTORNEY-GENERAL

and

OFFICE OF PUBLIC PROSECUTIONS

Applicant

and

JIM AVCI

Respondent

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JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2019
DATE OF RULING:	31 May 2019
CASE MAY BE CITED AS:	Secretary to the Department of Health and Human Services v Avci
MEDIUM NEUTRAL CITATION:	[2019] VCC 776

REASONS FOR RULING
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Subject:

Catchwords:             

Legislation Cited:    

Cases Cited:

Ruling:

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APPEARANCES:	Counsel	Solicitors
For DHHS	Ms S. Varney	Department of Health and Human Services
For the Attorney-General	Mr J. Tierney	Victorian Government Solicitor’s Office
For the Prosecution	Ms L. Wilkinson	Office of Public Prosecutions
For the Respondent	Mr J. McLoughlin	Victoria Legal Aid

HER HONOUR:

1. This is a Major Review of the Non-Custodial Supervision Order (“NCSO”) imposed by me on Mr Avci on 4 August 2014.

1. For this Review I received the following documents:

a.    A Report of Dr Nathaniel Popp dated 9 April 2019 (Exhibit A).

b. A Report by Larissa Gough dated 17 April 2019 pursuant to s.41(3) of the Act (Exhibit B).

1. I have also read the evidence of Dr Popp given before me on 26 July 2017 which enabled me to ascertain the progress or otherwise of Mr Avci on the NCSO.

1. Ms Wilkinson appeared at this hearing on behalf of the Director of Public Prosecutions.  In her Affidavit sworn 15 May 2019 Ms Wilkinson outlined notification to the victims of Mr Avci’s offending also to Mr Avci’s family members regarding this Major Review.

1. At the time of swearing her Affidavit Ms Wilkinson had not received any material from the victims or family members of Mr Avci.

1. Mr Tierney appeared on behalf of the Attorney-General at this Major Review.  His instructions were that Mr Avci’s NCSO should be confirmed, providing the evidence established Mr Avci would continue to receive a high level of supervision.

1. Ms Varney appeared on behalf of the Department of Health and Human Services (DHHS).  The Department was seeking that Mr Avci’s NCSO be confirmed.

1. Mr McLoughlin appeared on behalf of Mr Avci.  Mr Avci did not wish to attend this Major Review hearing.  Mr McLoughlin submitted Mr Avci did not oppose confirmation of the NCSO, however sought to explore the level of his supervision considered necessary. 

1. Despite the submission by the relevant parties the NCSO be confirmed, or in the case of Mr McLoughlin who submitted also at the end of the hearing he was not seeking the Order be “revoked”. I am required to independently consider whether the NCSO should be confirmed or otherwise (s.35(3)(b) the Act).

10  As I have said, in determining this Major Review I found it instructive to recall the evidence in chief of Dr Popp of 26 July 2017.  I turn to a brief summary of that evidence and then to the developments since then.

11  Dr Nathaniel Popp is a clinical neuropsychologist.  He gave evidence in 2017 that his role had been to oversee Mr Avci’s neuropsychological treatment from the perspective of his Acquired Brain Injury and its impact upon his behaviour.

·      He had been doing that in excess of a decade.

·      He saw Mr Avci periodically, could be monthly, although that could increase at times when there were complexities occurring.

·      He last saw Mr Avci a few months ago (prior to 26 July 2017).

·      He would see him more frequently during the time he was presenting as more agitated.

·      His objectives in the sessions with Mr Avci were multiple.  One was data collection.  To have a sense of how he was presenting and what the issues were from Mr Avci’s perspective.  Also at times to discuss things with Mr Avci’s wife to get a view about what was occurring at home.

·      He also looked at how the activities Mr Avci was involved in were functioning from Mr Avci’s perspective.

·      He had got to know Mr Avci quite well over the ten years he had been seeing him.

·      Mr Avci had (at 2017) been taking Androcur for over a year, prescribed by Dr Munir, his general practitioner.

·      Dr Popp understood there were multiple aims of that medication, primarily to reduce Mr Avci’s sexualised behaviour, in particular his sexualised seeking behaviour approaching women.

·      In addition, one of the aims of the medication was to reduce Mr Avci’s agitation.

·      Androcur stopped the production of testosterone in the body.

·      The effects of Androcur on Mr Avci he said had been profound.

·      That medication had, for an extended period of time, completely shifted Mr Avci’s behaviour, so that sexualised behaviour of unknown females, or females other than his wife, had dropped off dramatically.  Mr Avci did not approach women in that same manner and he now rarely spoke about women in a sexualised way.  Previously that pre-occupied his thoughts.

·      Mr Avci’s previous interactions with women in public, had often been coupled with a sexualised component.  That was very much a part of Mr Avci’s initiation of contact with women, even when just talking to them.

·      Now (2017) Mr Avci had contact with women within the community in a normal manner and reflected upon those experiences in a positive light and in a way appropriate to women rather than the idea they were objects to have sex with.

·      He received his information about Mr Avci’s interventions, through direct interview with him, that is his self-report, also from the reports of attendant carers who directly observed Mr Avci’s behaviour.  

·      Mr Avci’s response to Androcur had been consistent.  There was good evidence to suggest his testosterone levels had likely been low throughout this entire period.

·      There had recently (prior to April 2017) however been an event which spanned a few months where Mr Avci demonstrated more agitation in the community, not necessarily sexualised, just agitation.

·      In addition, there had been a number of sessions Dr Popp had with Mr Avci where Mr Avci made sexualised comments and, at times, sexualised threats.  Those instances were however always limited to the sessions.  There was never any alteration of Mr Avci’s behaviour outside that conversation.  That also occurred in discussions with Mr Avci when he felt stressed. 

·      The sexualised threats included him saying sexually explicit words, in that he would sexually perform an act upon a woman or that he would go and touch somebody.

·      What triggered that sort of threat had been difficult to determine.  Contextually, it was around conversations with Mr Avci that he had found confronting or difficult regarding restrictions placed upon him, ideas about Court, his ideas about wrongdoing, and the thought he had done something wrong and was going to be in trouble.

·      This appeared to be, in part, a very unsophisticated psychological reaction to things Mr Avci thought he had done wrong.  It was an incredibly immature position where Mr Avci escalated in response in order to achieve a good outcome. 

·      The ‘few-month’ period Dr Popp referred to previously was in April to June 2017.  At that time Mr Avci was also on Androcur.

·      From his then presentation (April to June), Dr Popp had concerns there may be issues with Mr Avci’s compliance with Androcur.  Dr Popp spoke to Mr Avci’s general practitioner, who ordered a full blood-test review.

·      Historically, Mr Avci had been very compliant with medication and there was not any idea that he was actively not taking medication, however, Dr Popp was concerned there was an “area in the system” they were missing, so he sought that blood test.

·      Dr Popp understood, from his discussion with Dr Munir on 26 July 2017, that Mr Avci’s testosterone level was extremely low, indicating the effect of Androcur and his compliance with it.

·      Regarding the time between April and June 2017 – and a possible explanation for that, Dr Popp stated he thought there could be (although not necessarily) a satisfactory explanation.  It could be the possibility of a delayed effect, expected with Androcur.  One of the questions he had was whether, due to his brain injury itself, there had been a “trade response” in that process (page 15).

·      In Dr Popp’s opinion, however, the most satisfactory view was that it was more likely Mr Avci was agitated and that for whatever reason, he had tapped into his previous pattern of behavioural repertoire.  That is, reverting to the way he behaved prior to Androcur use (page 16).

·      Since then, there had been an improvement in Mr Avci’s agitation.  There had been a return to the same therapeutic response seen from the Androcur. 

·      In the opinion of Dr Popp it was important from his perspective there be continued high level of monitoring of Mr Avci (page 16).

·      It was critical in his opinion that Mr Avci remain on Androcur for quite a period of time and to consolidate his “new” behavioural presentation (page 16).

·      Androcur needed to continue to be monitored.  From Dr Popp’s perspective it was the ongoing attendant care support and supervision that Mr Avci was provided with, when he accessed the community that was required.  The monitoring provided his mood stability and behaviour.  Also the regular meetings in which there was review of how well he was presenting in the community, what was going on in his environment, and adjusting to the supports.

·      It was Dr Popp’s understanding that Mr Avci required support when he entered the community and that was also his therapeutic recommendation. 

·      Dr Popp stated that Mr Avci’s thinking as a result of the brain injury was somewhat concrete (page 17).  He responded incredibly well to routine, to instruction and to very clear guidelines.  The Supervision Order (a previous Order not currently in place) provided a very clear and unambiguous guideline or external force by which he was compelled to receive attendant care and support. 

·      It would be, he said, in Mr Avci’s best interests to have the continuing support because sometimes when he accessed the community he could act inappropriately and put himself and the community at risk as a result.  Mr Avci’s insight was not so well developed that he would fully accept that advice, and that could result in him either refusing support and/or that he might access the community independently in such a manner that could place he and others at risk. 

·      Given the current regime of restrictions and support from workers when Mr Avci was in the community, and his use of Androcur, Dr Popp considered Mr Avci’s likelihood of re-offending was low to moderate.

·      In Dr Popp’s opinion, that would change if Mr Avci was in the community unescorted (page 18).  That would affect his risk assessment to high or very high (page 18).  It was his recommendation that for therapeutic reasons and for community safety the current regime of community support workers, access restrictions and Androcur should continue.

·      There could be unwanted side effects in relation to Androcur, one being a reduction in bone density.  Mr Avci had been assessed for that with no evidence of any alteration which was positive.  There could also be a side effect of “feminisation”.  At that time (2017), there was no evidence of that having occurred, but such would require regular monitoring.

·      He was not aware of any reason why Mr Avci could not continue to take Androcur. 

·      Dealing with situations when Mr Avci’s wife and his parents were away, arrangements had been made and put into place to support him.  There had been very extensive discussions about that.

·      The options then considered involved two models.  The most extreme from a funding perspective, would be to place Mr Avci in supported accommodation for the duration of time his wife and/or parents were away.  That was however considered to be a high-risk strategy, as placing Mr Avci in supported accommodation would increase the adaptive demands placed upon him.  He would find adapting to new environments very hard and would take up a lot of critical resources, resulting in a high level of stress for him.  A high level of stress was related to his agitation, which remained a potential for increasing his sexualised or inappropriate sexualised behaviour.  Making such a profound alteration to accommodation at that point was not considered sensible. 

·      The second alternative was to review Mr Avci’s current attendant care and concentrate on the times when clinical care was being provided by his wife and ‘replacing’ that by support workers.

·      It was recommended that attendant care support extend hours with him past 8.30pm.  The Transport Accident Commission (TAC) would fund that.  There was some concern as described by Dr Popp in relation to “nocturnal behaviours” by Mr Avci (described page 20).

·      The carers would know when extra support was required, as in the opinion of Dr Popp, Mr Avci’s behaviour was highly predictable within the home environment.  If he was highly agitated, making threats, and saying “I’m going to go out, I’m going to do this”, that would be a very clear and overt trigger for carers.

·      Dr Popp said he was not seeing evidence that Mr Avci was always wanting to go out after 8.30pm likely the result of his by-products of Acquired Brain Injury, together with the medication he was taking.  Cognitive and physical fatigue occurred due to his brain injury and medication.  Mr Avci would become tired and sleep through the night.  If someone was there to talk to him (i.e. carers) taking up his bed routine time, there would likely be a desire by him to go out. 

·      In an attempt to minimise or reduce what had been identified as a small risk, namely Mr Avci going into the community independently, this contact with carers could generate a whole new pattern and set of behaviours that Dr Popp would class as high risk, when trying to “pull them away” (page 20).

·      The whole system (of carers) had been developed to reflect the desires of Mr Avci and his needs, while managing his behaviour and keeping him occupied. 

·      Workers could stay beyond their scheduled shift time if they felt they should.  They had never done that previously.  He had (in 2017) spoken with Michelle, the attendant care coordinator from the attendant care agency who confirmed all the staff were prepared to “stay on” after hours if required. 

·      He was not aware of Mr Avci going into the community independently since Dr Popp gave evidence before me in May 2016.

·      Apart from the incidents of agitation that Dr Popp described, there had not been other concerning behaviours of significance.  There had been a profound behavioural change in Mr Avci and they were pleased with that.

·      I asked questions about Androcur medication.  Dr Popp agreed it “requires a lot of checks and balances along the way” (page 25).  The primary checks and balances were regarding side effects.  If something negative started to happen from a physiological perspective, that would alter things quickly.  There needed to be monitoring for that and it needed to be high monitoring.

·      Regarding the “blip” during the “few month” period of time (April-June) where there were concerns Mr Avci’s patterns of behaviour and thoughts were reinforced in his mind by his brain injury.  Mr Avci was vulnerable to perseverate, to become stuck upon, to ruminate and not be able to shift his mind from certain activities or thoughts or behaviour.  This had resulted in very deep engraining of some of those patterns of behaviour.  The hope was always that he could shut down those drives and develop a new behavioural repertoire and maybe “we could remove Androcur”.  In his opinion, it was only a year since its commencement, and it was going to take a longer period of time before Mr Avci established enough pro-social patterns of behaviour, such that he could withstand the presence of testosterone. 

·      In Dr Popp’s opinion, Mr Avci required a consolidated period on that medication … maybe a couple more years before we reconsider the idea of trialling a reduction in Androcur (page 26–27).  It would require continued monitoring.

12     I received a more recent report from Dr Popp, dated 9 April 2019 prepared for this Major Review and he also gave evidence before me.  Within the report he set out the material that he had access to for the purposes of preparing his recent report (pages 2 and 3). 

13     His report provided updated information on Mr Avci’s current cognitive and behavioural functioning and he was also asked to provide a risk assessment. 

14     Dr Popp referred to Mr Avci’s background and review of the various orders that he had been on in the past, including the current Non-Custodial Supervision Order made on 4 August 2014.

15     By way of history, Dr Popp noted Mr Avci had been referred for neuropsychological treatment in 2006 for a significant behavioural, emotional and cognitive disturbance and had been in receipt of treatment and support since.  In the opinion of Dr Popp, Mr Avci’s case was rather complex and complicated. 

16     That history assisted me to understand the “engrained” nature of Mr Avci’s issues and the difficulty in treating same.

17     Dr Popp referred to Mr Avci’s involvement in a motor vehicle collision on 28 April 1990 and resultant injuries.  Further, he referred to Mr Avci’s behavioural problems continuing, including behavioural intervention from August 1999 to June 2001 due to concerns about his sexually-inappropriate behaviour with females (paragraph 10, page 6).

18     In a report from Mr Beadle, clinical neuropsychologist, January 2004, there had been little change at that time in Mr Avci’s presentation since 2001.  There had been some sexually inappropriate behaviour as previously described that had continued (paragraphs 10 and 11).

19     Reference was made to Dr Graham, senior psychiatry registrar at Forensicare, who provided an assessment report in May 2004.  It was noted Mr Avci was displaying sexual disinhibition with regards to conversation and also inappropriate touching.  Angry outbursts were also reported towards authority figures.  Cognitive problems were identified as limiting Mr Avci’s ability to benefit from cognitive strategies. 

20     In 2006, Mr Avci was managed by neuropsychologist, Dr John Lloyd.  Mr Avci had been prescribed Epilim and Risperidone.

21     Dr Popp referred to early 2006, when he assessed Mr Avci, noting at that time Mr Avci’s situation included continued indecent assaults which had resulted in a number of charges (paragraph 16).

22     At that time, Dr Popp considered a combination of Mr Avci’s emotional behaviour and cognitive problems directly contributed to his inappropriate sexual behaviour.  That he remained a high risk of re-offending (paragraph 18).

23     It was also stated that counselling aimed at reducing Mr Avci’s behaviour was unlikely to be successful and it was recommended increased supervision be implemented to ensure the safety of others (paragraph 19).

24     Dr Walton, psychiatrist, took over psychiatric management of Mr Avci from Dr Lloyd and prepared a report in March 2008 (paragraphs 20-23).

25     Dr Walton advised on 30 June 2008, he had been trying to assist Mr Avci towards better control of his unacceptable behaviour by adjusting his pharmacological regimen.  The effect of that, however, was minimal (paragraph 24).  Dr Walton’s prognosis at the time was that it was realistic to expect there would be continuing episodes of inappropriate sexualised behaviour by Mr Avci for the foreseeable future.

26     Reference was made to an assessment by Dr Davis, psychologist, in February 2009 (paragraph 26 +).  Regarding risk of sexual re-offending, Dr Davis was of the opinion Mr Avci posed a high risk (paragraph 27).

27     In early 2010, Dr Popp became aware from a support worker, of sexually inappropriate behaviour by Mr Avci regarding a young girl at his home (paragraph 30).  That led to an assessment of Mr Avci by Ms Raymond, consultant forensic psychologist, who was of the opinion Mr Avci continued to be in a high risk category for sexual re-offending in a like manner to his previous offending behaviour (paragraph 30).

28     Dr Popp noted that despite Mr Avci’s ongoing high-level of support and monitoring in March 2010, he had been charged with two charges of indecent assault. 

29     Dr Popp observed that environmental support systems were currently in place where carers received a large amount of training and support to help manage Mr Avci’s behaviour in the community.  That had assisted Mr Avci to participate in a number of activities and provide important respite for his family.

30     However, Dr Popp noted that despite those changes, Mr Avci continued to demonstrate difficulties with an obsession around women and sex dominating most areas of his thinking (paragraph 33).

31     Dr Popp referred to both Dr Walton, and himself, being independently consulted with respect to providing an opinion as to Mr Avci having a mental impairment defence and charges.  Both of the view Mr Avci had a viable defence of mental impairment.

32     Mr Avci was assessed by Dr Patel (consultant psychiatrist) as having the potential to benefit from anti-androgen medication and in October 2010 VCAT ordered a guardian be appointed to make medical decisions with respect to that medication.  No trial of medication occurred however, and the Office of the Public Advocate (“OPA”) ultimately ceased guardianship.

33     Due to ongoing difficulties within the family home, Mr Avci lived for most of 2011 at Darebin Lodge.  His placement there was terminated in late 2011 after a significant behavioural outburst by him (paragraph 38).  He then returned to live with his family and had stayed there since.

34     In July 2012, Ms Raymond reviewed Mr Avci’s risk of sexual re-offending and concluded he fell into the high-risk category in a like manner to his previous offending behaviour.

35     Ms Raymond also addressed Mr Avci’s risk of offending against his daughter (paragraph 40).

36     Mr Avci was made subject to a Non-Custodial Supervision Order on 4 August 2014.  At that time the NCSO and a Supervision Order ran concurrently for a period of time, with Mr Avci being case managed by both Corrections Victoria and DHHS. 

37     The previous Supervision Order expired on 8 June 2015 and as the NCSO was in place and managed by DHHS, Corrections Victoria made no application for the Supervision Order to be extended.  Mr Avci remains subject to the NCSO.

38     Dr Popp referred to relatively short-lived decompensation by Mr Avci during 2015.  That had dissipated over time and was no longer part of Mr Avci’s automatic behaviour and cognitive repertoire (paragraph 43).  However, throughout that period, Mr Avci continued to approach women on a regular basis and it was evident to observers his sexualised conversation with women made them uncomfortable.

39     In 2015, Dr Walton advised Mr Avci and his family that he was unable to make any further progress with Mr Avci and recommended a second opinion be sought. 

40     As a result, Dr Popp referred Mr Avci to Dr Edward Theologis, consultant psychiatrist, who met with Mr Avci in October 2015.

41     Dr Theologis recommended a trial of anti-androgen medication and liaised with Mr Avci’s general practitioner regarding it.

42     The prescription of anti-androgen medication occurred in January 2016 and by May 2016 there was a marked improvement in Mr Avci’s behaviour.

43     Mr Avci no longer displayed inappropriate behaviour and no longer sought out women as he once had.  His testosterone levels were measured to be extremely low in late 2016, which indicated he was compliant with that medication.

44     In mid-2017, there were, however, reports Mr Avci had recommenced approaching women during a weekend evening when he was out in the community.

45     Turning to Mr Avci’s current situation, a tailored Behavioural Management Plan remained in place for which carer training and support was provided.  Mr Avci’s overall attendant care and community access program had been developed and established around a number of fundamentals (see paragraph 48).

46     Mr Avci’s direct engagement in the activities he found meaningful assisted with regulation of his mood and therefore his risk, and also limited the duration he would otherwise spend engaged in sexualised ideation.  Observational reporting protocols were also maintained.

47     With the exception of recent events in 2019, Mr Avci’s offending behaviour was at a “minimal” level, largely the result of his highly supervised community access (paragraph 49).

48     Dr Popp noted ongoing treatment was provided to keep support workers fully appraised of any changes to Mr Avci’s management/community access program to ensure his behaviour management guidelines had been followed.  That had apparently worked well, however, unfortunately the underlying desires Mr Avci had towards inappropriate sexual behaviour remained present (paragraph 49). 

49     In periodic neuropsychological sessions, Mr Avci would engage well when redirected towards the importance of “good style” in a clear, non-confrontational manner.  Without that support, Mr Avci was prone to prolonged tirades and perseverative negative thoughts, including explicit sexual offence ideation.  

50     Neurological liaison and consultations had been provided to the treating team on a regular basis ensuring appropriate monitoring and responsiveness to Mr Avci’s dynamic situation (paragraph 51).

51     It was considered positive that since the introduction of anti-androgen medication, there had been a marked reduction in approaches by Mr Avci towards women, as well as general improvement in his behaviour in the community.

52     Referring to the fortnightly supervision sessions provided by DHHS, Dr Popp said they functioned as an explicit ongoing demonstration of his requirement to comply with obligations under the NCSO and provided an opportunity for him to demonstrate his compliance as well in his general routine.  This allowed for a more detailed report direct from support workers, which often yielded valuable information to support the general support worker notes.

53     Reference was made to September 2018, when Mr Avci’s family home was reviewed to include identification of ongoing regular verbal attacks and abuse by Mr Avci towards his wife (see paragraphs 53-55). 

54     As a result, Mr Avci was referred to Dr Theologis to consider medication, particularly around his behaviour in the home environment.  Funding for psychological treatment was also made available for Mr Avci’s now adult daughter.

55     Dr Popp was advised, as at the date of his current report, 9 April 2019, that Dr Theologis and Mr Avci’s general practitioner had discussed increasing the dose of anti-androgen medication, Androcur, and also trialling Abilify.

56     As of January 2019, Mr Avci has been attending with his new Disability Justice Coordinator (a female).  He continued to attend fortnightly supervision sessions, which allowed monitoring of his mental state and overall situation.

57     Blood test results indicated compliance with anti-androgen medication.  Despite that however, Mr Avci continued to express sexual desires, including the desire to have TAC fund ‘sex workers’, and agitation when they would not.

58     Mr Avci continued to make threats of escalating behaviour and sexual offences in an attempt to persuade others to resolve the matter (that is, his access to funding for ‘sex workers’).  Dr Popp noted those episodes had been short-lived (paragraph 60).

59     In the opinion of Dr Popp, such behaviour illustrated the ongoing underlying dysfunction of Mr Avci and his profound psychological disposition towards sexual activity and sexual offences.

60     Dr Popp noted Mr Avci was also “apparently” unable to perform ‘sexually’ and that would likely play a significant role in his agitation in the family home (paragraph 61).  Dr Popp however reported in evidence before me that “inability” may not be current.

61     There had, however, in his opinion, been some evidence of development and progression of insight by Mr Avci, where he recognised his current supports helped him to not commit further offences.  He continued to access the community accompanied by support workers on all occasions, except occasional family activities when his family provided supervision. 

62     Reference was made to a number of community activities in which Mr Avci had been/was involved (paragraph 63).  Despite expressing some depressive thoughts, as observed by those involved in his care, Mr Avci was observed regularly to engage in activities and display enjoyment with them (paragraph 65).

63     Occasional agitation was displayed by Mr Avci towards his support workers, which could occur in response to rather trivial matters (paragraph 66).

64     Referring to an incident on 27 February 2019 at Hope Springs Drop-In Centre, Mr Avci was reported to have touched a female client on the bottom.  The support worker in attendance was identified as not having provided adequate supervision of Mr Avci at the time.  Also the worker was not in the same vicinity as Mr Avci at times, spending excessive time looking at his mobile phone.

65     Following that incident, Dr Popp understood there had been a marked improvement in the supervision provided. 

66     In Dr Popp’s opinion, from his involvement with Mr Avci and from a treatment and management perspective, Mr Avci’s ongoing receipt of attendant care support and careful monitoring of community access, remained what he considered to be the core contributor to minimising his risk of re-offending. 

67     He also noted Androcur medication had tempered Mr Avci’s anger and agitation and had reduced his approaches towards women.  It had, however, not removed his risk of re-offending.

68     In the opinion of Dr Popp, the likelihood was that Mr Avci’s impulsivity, coupled with a vulnerability towards perseverative behaviour maintained his ongoing sexual ideation and risk of offending despite hormonal reduction.

69     Those concerning behaviours remained very much part of Mr Avci’s behavioural repertoire, having been self-reinforced for many years.

70     While anti-androgen medication had produced a most meaningful change in his behaviour to date, Mr Avci’s prognosis was guarded.  Dr Popp was also of the opinion the effects of the anti-androgen medication had not yet fully manifested themselves and some improvements may yet occur (paragraph 77).

71     Overall, Dr Popp was of the opinion that the ongoing management of Mr Avci through the NCSO allowed for direct supervision of him in the community and that markedly reduces his risk of re-offending.  It also improved his quality of life and management of his mood.

72     Further, fortnightly appointments with his Disability Justice Coordinator were likely to be of assistance as a functional reminder of his obligations to comply with the directions under the NCSO. 

73     Dr Popp had little doubt that in the absence of mandatory supervision when accessing the community, there would be a spate of displays of inappropriate sexual behaviour and a number of sexual offences committed by Mr Avci.  In his opinion, the risk of Mr Avci committing a sexual offence was “extremely high” (paragraph 79).

74     Considering the nature of the support, Dr Popp advised there was a risk that support workers could develop complacency when with Mr Avci.  That risk continued to be an important aspect of support worker training.  Basically, Mr Avci displayed appropriate behaviour with women when under supervision and could be polite and courteous in his interactions.  That could lead to the erroneous conclusion there was no risk or behaviour to manage and therefore result in poor supervision.

75     There was, however, good evidence, he said, to indicate that the mere presence of a support worker to assist Mr Avci regulated his behaviour, and without their immediate supervision and support Mr Avci was vulnerable towards displaying impulsive and opportunistic sexual offending behaviour (paragraph 80).  There needed to be an appreciation of the potential for this by those who were involved in his care, and management was “absolutely” required to maintain the necessary vigilance.

76 I also received a report, as required under s.41(3) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, dated 17 April 2019 prepared by Larissa Gough. That report was prepared to provide an overview of Mr Avci’s progress since the last review of his NCSO on 26 July 2017.

77     Mr Avci was currently living in a home that he owned, with his wife and their eighteen-year-old daughter, next to the home of Mr Avci’s parents.

78     Mr Avci was on the Sex Offenders Register for life. 

79     Mr Avci was continuing to receive case management from the Disability Justice Health, DHHS.  Mr Avci had been in receipt of continuous case management from the Department since 2004.

80     Over the reporting period, Disability Justice continued to assist Mr Avci to access support services to reduce his risk of re-offending, as stated within the report.

81     Disability Justice coordinated case planning meetings with the care team and liaised with services involved with Mr Avci and his family to ensure he received an appropriate level of planned and structured activities and support.  The care team participants were listed within the Report (page 2 of 6).

82     Disability Justice also provided an important supervisory role, maintaining fortnightly supervision sessions with Mr Avci, those sessions modelled on the formal Corrections Victoria supervision sessions provided to him when he was previously subject to a Supervision Order under the Serious Sex Offenders (Detention and Supervision) Act 2009.

83     Mr Avci was described as extremely compliant with those sessions, which helped regarding structure and routine for him.

84     TAC had funded Mr Avci’s support needs, and his support was provided by Care For You Australia (“CFY”).  The current support timetable provided by CFY was set out in the report, some of the activities described in detail (pages 3 and 4).

85     Mr Avci was eligible for NDIS funding, and the author was going to continue to follow that up to ensure that his right to a fair and thorough planning process was not overlooked.

86     In January 2016, Mr Avci commenced anti-libidinal medication as prescribed by his general practitioner and after consultation with Dr Theologis. 

87     As at May 2016, there was marked improvement in Mr Avci’s behaviour and it was noted, also, Dr Popp’s observation in 2019, that “he was no longer displaying inappropriate behaviour and no longer sought out women as he once did”.  His testosterone levels were low and indicated compliance with medication.

88     In September 2018, Mr Avci was referred to Dr Theologis for a medication review and his ongoing verbal and aggressive behaviour in the family home.  The decision was made to increase his dose of anti-androgen medication and trial Abilify (antipsychotic medication), however, it was unclear to Ms Gough whether that had actually commenced.  Dr Popp in his evidence addressed that and I shall refer to that shortly.

89 It was noted that since the previous s.41(3) report of 17 October 2018, there had been no recorded instances involving police contact or new criminal charges involving Mr Avci.

90     To the writer’s knowledge, there had been two instances over the reporting period, the first over the weekend of 1-2 December 2018, when it was reported Mr Avci was hostile and aggressive towards his support worker and a second incident on 27 February 2019 at Hope Springs Drop-In Centre (page 6).

91     In fortnightly supervision sessions, Mr Avci indicated he believed the fortnightly supervision sessions were of benefit and also self-reported that current supports helped him to avoid committing further offences. 

92     Mr Avci’s care team was committed to providing a consistent approach to supporting him, regardless of whether he was on the Non-Custodial Supervision Order or not.  There was, however, in the opinion of the author, a protective benefit derived from Mr Avci being subject to the Order.  It was recommended by the author that the Non-Custodial Supervision Order be confirmed.

93     During the hearing I heard evidence from Ms Gough, Disability Justice Coordinator.  She had been Mr Avci’s Disability Justice Coordinator since late January 2019 and met with him fortnightly. 

94     She described the various activities Mr Avci was involved in within the community with support workers.  TAC funded his support workers for 66.5 hours a week.  It was her understanding TAC would continue to fund Mr Avci’s activities in the community. 

95     When Mr Avci was in the community, he was compliant with directions from the support workers.  The workers supplied a written information sheet after each community access.  Any incidents that required overseeing were forward to Dr Popp and herself. 

96     The Behaviour Management Plan prepared by Dr Popp was used by the support workers and Dr Popp ensured carers were properly trained and supported when involved with Mr Avci.  TAC funded that training. 

97     There were currently no service gaps that required NDIS assistance, however, Ms Gough understood NDIS would be willing to pick up any gaps that were identified.  Funding could be reviewed annually or earlier if required.

98     Neuropsychological intervention was by Dr Popp also funded through TAC as was the training of workers. 

99     Regarding Mr Avci’s current medication, she was under the impression there might be an increase in the anti-libidinal medication, but she deferred to Dr Popp regarding that information.

100   She confirmed Mr Avci continued to live with his wife and daughter.  They were planning to go to Turkey between 10 June and 29 July 2019, and Mr Avci’s parents who live next door would also be absent from the country from 20 May for approximately four months.

101   It had been arranged that Mr Avci receive an extra 3.5 hours of staff time.  Instead of the staff leaving on Monday to Thursday at 5.00pm, funding was available to stay until 8.30pm (or later if required). 

102   It was anticipated Mr Avci would be alone at his home between 8.30pm and 10.00am.  Similar arrangements had been in place in 2017 when Mrs Avci was away from the family home.  On Friday and Saturday nights there was a support worker allocated to Mr Avci until 2.00 – 2.30am. 

103   Regarding the incident on 27 February 2019 referred to within her report and also the report of Dr Popp, Mr Avci told her there had been an “incident” at the centre but he could not recall what had happened, but apologised anyway. 

104   The Department had taken that incident into account when monitoring Mr Avci’s management strategies.

105   The Department would continue fortnightly meetings with Mr Avci and continue to obtain reports from carers involved with him, in order to decrease Mr Avci’s risk when in the community.

106   In her opinion, monitoring and supervision of Mr Avci was still necessary for the next 12 months for the protection of the public. 

107   In answer to questions from Mr Tierney, Ms Gough confirmed that psychological treatment had been made available for Mr Avci’s daughter, should she wish to utilise it. 

108   In answer to questions from Mr McLoughlin, Ms Gough confirmed there was some community access by Mr Avci with his family, including his father, which did not have support workers. 

109   Regarding the “Hope Springs” incident of 27 February 2019, Ms Gough agreed there were two different accounts in relation to that.  Ms Gough thought the incident may not have happened based on the report she had, however, said it was difficult for her to form a concluded view. 

110   Regarding Mr Avci being able to access the community by himself, she would defer to the opinion of Dr Popp.

111   Ms Gough confirmed her fortnightly supervision meetings with Mr Avci, used to check in with him, such as if he had any behavioural concerns, but also concentrating on what he was doing well. 

112   Ms Gough had extensive experience working with people with ABIs.  She also always consulted with the care team and Dr Popp regarding Mr Avci’s management. 

113   When speaking with Mr Avci and offering directions, she adopted the “gentle” persuasion approach.  That Mr Avci responded best to “gentle guidance”. 

114   I also heard evidence from Dr Popp during this hearing.  Dr Popp confirmed he had been Mr Avci’s treating neuropsychologist for approximately 12 to 13 years. 

115   As a result of his ABI, Mr Avci had profound executive disorder behavioural and mood issues also problems with his ability to be adaptive.  All that increased his risk of sexually reoffending.  Mr Avci had profound difficulty in particular, adapting to a new environment. 

116   Despite the problems Mr Avci had with regulation of his behaviour and moods, he could respond to guidance as offered by the support workers.  The workers helped Mr Avci manage within the community.  The role of the support workers was to assist Mr Avci to attempt to stop inappropriate behaviour by him occurring in the first place.  When that support was not there, Mr Avci’s thoughts returned to sexual preoccupation. 

117   Mr Avci’s response to the support tended to depend upon his degree of agitation.  The aim was to avoid his agitation becoming worse, by trying to distract him at the outset.  That was best delivered, he said, in a guided way, leading him towards realising his behaviour was not appropriate.  That would occur with the support worker but it could be difficult at times.  Any problems were brought to Dr Popp’s attention.  Sometimes he needed to intervene at the time.  Sometimes it was around training the support workers on how to minimise Mr Avci’s behaviour when in their company. 

118   The Behavioural Management Plan was designed to help guide the support workers involved with Mr Avci.  Dr Popp reviewed the Management Plan on a regular basis.  The Plan was also used to support the training of the carers and could be modified if required.  Dr Popp met the support workers up to four times a year.  That was funded by TAC.

119   Without the support workers, in the opinion of Dr Popp, Mr Avci’s risk of reoffending would be “extremely high”.  In his opinion, it was important Mr Avci had the external input to manage his behaviour that was currently in place. 

120   Regarding the use of medication, there had been an increase in the dosage of Androcur from December 2018.  Dr Popp’s understanding was that there had been marked changes in Mr Avci’s sexual arousal or activity and a reduced rate of same as a result of this increased dosage.

121   The drug Abilify is an antipsychotic and was yet to be tried with Mr Avci, although it may be tried in the future if considered appropriate. 

122   Reports from Mr Avci’s wife indicated Mr Avci was currently taking Seroquel twice a day which made him fatigued at night.  He was also prescribed Epilim, a mood stabiliser for his ABI. 

123   Regarding the aggressive behaviour referred to in the report of Dr Popp, by Mr Avci to his wife and daughter, the increase in Androcur had seen a decrease in reports of Mr Avci’s agitation at home.  Dr Popp also noted Mr Avci’s daughter was studying nursing and had benefited from the course in understanding how to deal with her father’s problem behaviours using her training at home.  She also minimised her conflict/contact with her father.

124   Regarding his report (paragraph 53), Mr Avci’s daughter contacted Dr Popp and gave that information to him. (Communication channels it seemed were open.)

125   Overall, regarding Mr Avci’s aggressiveness in the family home, there had been a profound change with both Mr Avci’s wife and daughter saying he was easily now manageable in the evenings. 

126   Referring to his report (paragraph 78), Dr Popp referred to aspects that reduced Mr Avci’s reoffending and assisted reduction of his risk and assisted his management.  The Behaviour Management Plan and the training was designed to assist a reduction in Mr Avci’s risk.  In the opinion of Dr Popp all the risk management strategies needed to continue for the next 12 months.  He conceded it was possible in the future there may be less supervision required of Mr Avci, however he could not say that at present. 

127   Regarding the proposed absence of Mr Avci’s wife, daughter and parents overseas, Dr Popp was aware of the proposal to increase the support staff at his house Monday to Thursday.  He understood that if there were concerning signs of agitation at the time they were due to leave, staff would be able to stay on.  TAC supported this and would fund the extra hours.

128   In answer to questions from Mr Tierney, Dr Popp said he was not aware of any incidents involving Mr Avci since the date of his report. 

129   Specifically regarding the behaviour referred to his report (paragraphs 54 and 55), Dr Popp said there was no indication that behaviour was continuing, rather the contrary. 

130   Dr Popp stated that agitation could be a side effect of Androcur and that possibility when increasing Androcur dosage had been discussed by all medical practitioners.  He had not seen any evidence of increased agitation on the increased dosage of Androcur. 

131   The Seroquel medication twice a day received by Mr Avci was anti-psychotic medication around his agitation and managing his mood.  Dr Popp stated Mr Avci’s agitation would continue to be monitored and in his opinion a high level of supervision was critical. 

132   In answer to questions from Mr McLoughlin, Dr Popp conceded sedation could be the result of the medication currently received by Mr Avci.  Seroquel could have a sedating effect, also Epilim, although Dr Popp was not sure about Androcur. 

133   Dr Popp agreed there was concern regarding also prescribing Abilify as that would lead to “too much sedation”. 

134   Dr Popp confirmed in 2017 Mr Avci’s wife, daughter and parents had been absent and that had been managed successfully and appropriately by support carers. 

135   Dr Popp referred to the increased agitation during the latest reporting period but that had been managed.  Mr Avci’s behaviour was more stable now than in 2017. 

136   Regarding the “Hope Springs incident”, Dr Popp agreed the account of that in his report and that of Ms Gough’s were different.  He agreed Ms Gough had some reservations about what had occurred.  Dr Popp, however, said they knew certain things had occurred.  That Mr Avci had been massaging the shoulders of a woman.  The complainant had said Mr Avci touched her bottom.  In the opinion of Dr Popp, it was probable Mr Avci had touched the complainant’s bottom.  The issue for those managing Mr Avci was his conduct beforehand, the massaging of the shoulders.  Was the touching of the “bottom” an extension of being familiar with the complainant?  Mr Avci said they knew the complainant was upset, had reported it and that Mr Avci apologised.  As such this was treated as a possible risk situation which was addressed. 

137   Despite Mr Avci being on medication, Mr Avci when in the community remained vulnerable to agitation because of his ABI.  Mr Avci could become fixated and had concrete thoughts.  Medication had helped to quell the intensity of the degree of agitation.

138 Following the evidence, Ms Varney, for the Department of Health and Human Services, referred to the relevant sections of the Act to be addressed in this Major Review.

139 I was taken to s39 of the Act. When 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.

140   The Court must have regard in determining whether to make, vary or revoke this Order, the matters set out in s.40(a)-(f).  I have considered those matters as required in arriving at my decision.

141   Ms Varney submitted there were currently adequate resources provided by DHHS and the TAC providing supervision to manage Mr Avci when in the community.  She submitted the entire suite of supervision services Mr Avci was receiving was still necessary. 

142   Whilst the TAC would fund the support currently provided, even if Mr Avci was not on an NCSO, there was additional support being provided through DHHS through regular meetings with Mr Avci with Ms Gough who received incident reports regarding his behaviour.  The Department also liaised with service providers, and specialists such as Dr Popp.  All this she submitted was important to reduce Mr Avci’s risk of re-offending.

143   Ms Varney submitted the extra layer of supervision provided by DHHS was still required for the protection of the public.  That Mr Avci’s behaviours were still challenging including him recently having been agitated, in the home and in the community, albeit she noted there had been some improvement in Mr Avci’s agitation as a result Androcur medication.  Ms Varney submitted there had also been a promising response by Mr Avci to the increased dosage of Androcur since December 2018.

144   Ms Varney, however, referred to Dr Popp’s opinion that Mr Avci was not yet ready for a reduction in supervision.  Further, that Dr Popp wanted to see an extended period of time in which Mr Avci did not engage in any inappropriate sexual behaviour before there considering any reduction in the support provided to him.

145   Ms Varney submitted that given Ms Avci’s current presentation and limited ongoing capacity for self-regulation, the Order should be confirmed, and that the Department continue its supervision and monitoring of Mr Avci, and the Court also continue its oversight of Mr Avci.

146   Mr Tierney, on behalf of the Attorney-General supported the submissions of the Secretary to DHHS and noted Mr Avci was currently subject to a high level of supervision, which I understood he submitted, should continue.

147   Mr McLoughlin submitted he did not seek the Order be revoked. (I note in previous correspondence his instructions were to not oppose the Order being confirmed (see email to Court dated 21 May 2019)).

148   In my opinion, the evidence is clear Mr Avci requires ongoing significant supports when in the community to reduce his risk of re-offending, in particular, sexual re-offending.  In my opinion, it is appropriate the Order be confirmed on the same terms and conditions.  Ms Varney was going to prepare an Order, confirm its contents with the parties, and then forward to me for signing.

149   Such occurred and was signed by me on 22 May 2019.