Secretary to the Department of Health and Human Services v Rendina
[2020] VCC 363
•1 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-09-01249
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 Michael RENDINA
BETWEEN
| SECRETARY TO THE DEPARTMENT OF HEALTH & HUMAN SERVICES | Plaintiff |
| v | |
| MICHAEL RENDINA | Defendant |
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JUDGE: | HIS HONOUR JUDGE TAFT | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 13 March and 25 June 2019, 6-7 February and 17 March 2020 | |
DATE OF REASONS FOR JUDGMENT: | 1 April 2020 | |
CASE MAY BE CITED AS: | Secretary to the Department of Health & Human Services v Rendina | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 363 | |
REASONS FOR JUDGMENT
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Subject:
Catchwords: Non-Custodial Supervision Order(NCSO) – reviewee is 52 year old man who suffers from significant intellectual disability and level of autism - application for revocation – NCSO imposed 11 years ago with nominal term of 5 years-– absence of offending - secure accommodation – compliance with medication – significant supports
Legislation Cited: Crimes (Mental Impairment and Unfitness to be Tried)Act 1997
Cases Cited:
Judgment: NCSO revoked
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APPEARANCES: | Counsel | Solicitors |
For the DHS | Mr P Teo | |
| For the Attorney-General For the DPP (13 March 2019) For the Reviewee | Ms D Costaras Ms L Wilkinson Mr G Buchhorn |
HIS HONOUR:
1On 17 March this Court revoked a Non-Custodial Supervision Order (NCSO) attaching to the Reviewee, Michael Rendina.
2I publish my reasons for that decision. These reasons are in short compass and should be read in conjunction with previous judgments concerning Mr Rendina.
Background
3Mr Rendina is 52 years old and has had a life-long intellectual disability. He was assessed on 18 May 2009 by Ms Jane Lofthouse, neuropsychologist, as having a full-scale intelligence quotient of 46, which falls within the moderately intellectually impaired range. He has also been diagnosed with Autism Spectrum Disorder.
4Ms Lofthouse noted that Mr Rendina’s schooling had been undertaken at a special developmental school, that he was basically illiterate and his reading age was estimated to be age six. When he was required to write a sentence Mr Rendina was only able to write his name in large capital letters. When tested for his word pronouncement ability Mr Rendina obtained a correct score of four words out of one hundred.
5On 18 September 2009, a jury found Mr Rendina unfit to plead pursuant to the provisions of the Crimes (Mental Impairment and Fitness to be Tried) Act 1997 (the Act). Expert evidence was adduced from Dr Danny Sullivan, consultant forensic psychiatrist at the Victorian Institute of Mental Health (Forensicare) and Ms Anthea Lemphers, senior clinical and forensic psychologist at Forensicare.
6Following that determination, a special hearing was conducted and, on 28 September 2009, a jury determined that Mr Rendina had committed four offences.
7Mr Rendina was released on a NCSO for the nominal term of five years, running from 5 January 2009. That term took into account the period that Mr Rendina had been held in custody pending the resolution of the proceeding.
Index Offences
8Mr Rendina was found to have committed the offence of recklessly causing injury which arose from an altercation with a 12 year old boy in Flinders Street after Mr Rendina had been the subject of teasing. Further he was found to have committed the offences of stalking and indecent assault. The victim was a young woman who travelled into town each day to work. Mr Rendina would talk to her and try to kiss her and continued his harassment after the subject of his unwanted attention changed railway stations in an attempt to avoid contact. The young woman recounted an occasion when she explained to Mr Rendina that she had a boyfriend and was just being friendly to him. Mr Rendina’s response was “No we’re more than that. I love you”. He then started crying. The final charge arose from Mr Rendina talking to and kissing a 15 year old girl. That founded the offence of indecent act.
9Mr Rendina was arrested and held in custody on remand for over 11 months. In the time he was held on remand Mr Rendina represented a management problem and at times was held in isolation, in 23 hour lockdown and was subject to being managed by instruments of restraint.
10When Mr Rendina first appeared in this Court he presented as a caged animal, agitated and uncomprehending as to why he was treated in the way he was. His circumstances were an indictment of the criminal justice system and its treatment of a man whose intellectual disability and autism were not of his making.
11I have previously expressed my concerns about Mr Rendina’s detention for over 11 months in such conditions. Prison was neither a necessary nor desirable outcome for an intellectually disabled man who was manifestly unfit to stand trial and whose offending would most probably have not attracted a prison sentence upon the entry of guilty pleas in the Magistrates’ Court.
A report was provided to the Court, authored by Ms Linda Bennett, clinical and forensic psychologist which, in my view, accurately summarised Mr Rendina’s offending. She observed that the charges before the Court were not at the most serious end of the criminal spectrum and that his offending could be characterised as instances of:
“Severe public nuisance behaviours and ‘corrupted courtship’ behaviours which have occurred in the context of Mr Rendina’s loss of family and social support, limited social skills and capacity to live independently in the community and a hostile world view; the result of years of provocation and denigration by local youths. Mr Rendina’s offences reflect not only his propensity for rule violation and anti-social behaviour but his vulnerability and limited capacity to cope with the trials of everyday life.”
13Ms Bennett noted that Mr Rendina responded best when treated with kindness, good humour and respect and that he would most appropriately be supervised by experienced disability workers who were able to respond to him in a calm, warm and empathic manner.
Accommodation
14After the jury verdict this Court was dissatisfied with the limited services DHHS stated it could provide. It was not until the Secretary to the DHHS was advised of a requirement to give evidence pursuant to s47(5) of the Act and questions were asked in Parliament about Mr Rendina’s plight that a suitable accommodation option was presented. The Department ultimately provided accommodation on the grounds of Plenty Residential Services (PRS) in Bundoora and Mr Rendina was supported by well-trained and stable disability services staff. For the past 11 years the stable accommodation and structure supporting Mr Rendina have been a resounding success and have provided him with a decent life. He has not been charged with further offences. Mr Rendina has continued to be subject to the NCSO imposed in 2009 and it must be conceded that, when considering whether the NCSO should be confirmed or revoked, this Court has been mindful of the risk that Mr Rendina’s accommodation and support could evaporate in the absence of a court mandated NCSO. It can only be hoped that the DHHS honours the commitments and assurances it has given to this Court about the ongoing security and supports it has guaranteed Mr Rendina in the future.
Application to revoke NCSO
15On the current major review of the NCSO before this Court, counsel for the DHHS and for Mr Rendina submitted that the NCSO should be revoked. Counsel for the Attorney contended it should be confirmed. The proceeding was adjourned part heard in order to allow more evidence to be obtained and to better understand Mr Rendina’s future needs and supports.
16A number of reports were provided to the Court. They included:
·Reports from Dr David Thomas, consultant psychiatrist at Forensicare, respectively dated 7 September 2019, 20 November 2018, 27 February 2019 and 16 May 2019. In addition Dr Thomas gave viva voce evidence on 6 February 2020;
·Report from Dr Debra Bennett, clinical and forensic psychologist dated 18 February 2019:
·Pursuant to s41(3) of the Act, report from Janelle Devine, Disability Justice Coordinator dated 20 February 2019 with addendum dated 5 June 2019 and report dated 17 January 2020. Ms Devine also gave viva voce evidence on 7 February 2020;
·Correspondence from Janelle Devine and Anna Devine on the letterhead of the DHHS dated 11 March 2020 providing assurances about Mr Rendina’s accommodation;
·Reports from Kara Gill and Michelle Hansen, Disability Accommodation Services, dated 20 February 2019 and June 2019;
·Document detailing Mr Rendina’s National Disability Insurance Scheme (NDIS) plan dated 1 March 2019;
·Correspondence from Rhiannon Glewis of Gellibrand Support Services dated 4 February 2020;
·Incident Report detailing incidents relating to Mr Rendina between 8 January 2018 and 13 March 2020; and
·Correspondence from Life Without Barriers signed by Nicole Hassall which was augmented by viva voce evidence on 6 and 7 February 2020.
17On 6 February 2020 the Court also heard evidence from Belinda Toohey, director/owner of Including You Disability Services and Mr Rendina’s support coordinator.
18The duration of this proceeding has been extended by the uncertainty arising from the transfer of services at PRS from the DHHS to Life Without Barriers which is a not- for-profit agency providing disability services in several states. The process of transfer is close to completion and will result in management of PRS being undertaken by Life Without Barriers in the near future. Many former departmental staff have secured positions in Life Without Barriers. Effectively the majority of funding for clients such as Mr Rendina is now sourced through the NDIS as the State DHHS withdraws from much of its former remit.
19Most significantly this Court received correspondence from Janelle Devine, Acting Senior Disability Justice Coordinator, Disability Justice, North Division dated 11 March 2020 in which it is stated that Mr Rendina’s residence at PRS is owned by the DHHS and operates as a Residential Service under the Disability Act 2006. The letter indicates that Mr Rendina is able to reside at the designated property ‘as long as he chooses.’ Should Mr Rendina’s support needs change as he ages, the Department will collaborate with Mr Rendina and his service providers to identify an alternative appropriate model of accommodation. ‘This support will be provided regardless of whether Mr Rendina remains subject to an NCSO.’
20Absent that assurance this Court would have concerns about whether revocation of the NCSO might trigger a change in accommodation and destabilise Mr Rendina’s mental health.
The Expert Evidence of Dr Thomas
21Dr Thomas told the Court that Mr Rendina’s mental state had not changed. He remained compliant with his medication and he adhered to a routine of turning up early each morning at the administration building to take his medication. A low dosage of Quetiapine is primarily directed to reducing his level of anxiety. There were still occasions when Mr Rendina vented his frustrations on staff by being verbally aggressive or kicking a door but the frequency and severity of incidents had declined. Mr Rendina might become agitated when feeling unwell or becoming pre-occupied with wildlife noises at night. There have been no in incidents in the community where Mr Rendina is supported by workers from Gellibrand Support Services. Indeed Dr Thomas could not recall any incidents of violence or threatened violence in the community during the 2 years he has worked with Mr Rendina. He considered that Mr Rendina’s general belief that any contact with the police was likely to have adverse consequences for him, represented a protective factor. That consideration was unconnected to the continuation of a NCSO.
22Dr Thomas indicated that he is contracted with the DHHS to work one day each week with the Community Forensic Disability Service. In that role he intends to have an ongoing involvement with Mr Rendina and should his mental state deteriorate he would be able to quickly respond. Dr Thomas’ professional assistance is not tied to the NCSO and would extend for some time before Mr Rendina was transitioned to the area mental health service.
23Dr Thomas described the preservation of stable accommodation as an essential need for Mr Rendina. As a result of assurances from the Department Dr Thomas’ understanding is that, subject to any physical decline that would require a higher level of service, his current residence is a home for life for him.
24Although Dr Thomas did not conduct a formal risk assessment of Mr Rendina he expressed the opinion that any risk of future interpersonal violence could be reasonably well managed so long as there is consistency and stability of his residential arrangement and of supports when he accesses the community. His one concern was the uncertainty about Mr Rendina’s physical health and his reluctance to engage with health care services which might make him more agitated and fearful.
25I accept the opinions expressed by Dr Thomas about Mr Rendina’s future risk of harming the community and also take into account his proven track record over the past 11 years.
26Pursuant to s35 of the Act, when conducting a major review, the Court is required to either confirm, vary the conditions or revoke a NCSO. In addition the Court is required to have regard to the considerations detailed in ss39 and 40 of the Act. Counsel for the Attorney submitted that revocation of the NCSO was premature while the transition to Life Without Barriers was incomplete. I accept that there remain some uncertainties as to the supports that Mr Rendina will have in the future. However, as a result of the contraction of State government provision of disability services and its replacement by the Commonwealth through the NDIS, there will always be elements of uncertainty when funding is determined on an annual basis by a body that is not amenable to the supervisory orders of the Victorian statute.
27In determining to revoke the NCSO I have had particular regard to:
·Mr Rendina’s stable mental state and adherence to prescribed medication;
·The absence of offending while the NCSO has been in place;
·The security of ongoing stable accommodation at PRS and the assurances of the DHHS;
·The commitments of both DHHS and Life Without Barriers to facilitate the transition of Mr Rendina as the management of the Bundoora site is transferred
·The ongoing involvement of Gellibrand Support Services in providing outreach support;
·The opinion of Dr Thomas as to Mr Rendina’s low level of risk to the community if the structures which provide for his stability are maintained;
·The resources and supports that will assist Mr Rendina in the community in the absence of a NCSO.
28Historically, there have been a range of predictors of future criminality. They have included racial and cultural stereotypes and phrenology. We do not need to be reminded of the consequences. Increasingly judges are required to make assessments of the future risk of an offender. They are often provided with opinions proffered by experts who disagree as between themselves. Judges have no particular expertise in assessing future risk and it is unsurprising that they sometimes get it wrong. Such an example is R v Carl Anthony Williams [1995] VSC 164 where the applicant succeeded in an appeal against sentence and the Court observed that on the material before them he had “excellent prospects for rehabilitation.”
29This Court cannot predict the future and guarantee that Mr Rendina will not reoffend. He has not done so for eleven years. However it is clear that Mr Rendina’s life has markedly improved from its nadir eleven years ago. I hope that through Mr Rendina, this Court has gained a better understanding of the circumstances in which disabled people have been poorly treated by the criminal justice system and that the Court has been a force for change.
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