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Supreme Court of Victoria |
Last Updated: 20 October 2023
AT MELBOURNE
CRIMINAL DIVISION
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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CRIMINAL LAW – Mental Impairment – Application for variation
of supervision order – Whether safety of the person
subject to the order
or members of the public will be seriously endangered as a result of the
variation – Application supported
by treating experts, the Secretary and
the Attorney-General – Application for variation granted – Crimes
(Mental Impairment Unfitness to be Tried) Act 1997, ss 31–2,
39–40.
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APPEARANCES:
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Counsel
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Solicitors
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For the Applicant
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Mr C Grant
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Melasecca Kelly & Zayler
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For the Secretary, Department of Health
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Mr J Teng
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Department of Health
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For the Attorney-General of Victoria
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Ms J Ryan
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Victorian Government Solicitor’s Office
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Introduction
1 The applicant (‘EW’) is currently subject to a custodial supervision order (‘CSO’) under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). He applies to vary his CSO to a non-custodial supervision order (‘NCSO’) pursuant to s 31 of the Act. The application is supported by EW’s treating team at Forensicare, the Secretary to the Department of Health and the Attorney-General.
Procedural history
2 In November 2015, a jury in this Court
found EW not guilty of murder by reason of mental impairment and EW was declared
liable to
supervision under Part 5 of the Act. In April 2016, EW was placed on a
CSO with a nominal term of 25 years, commencing from 6 January
2014, and
admitted to Thomas Embling Hospital
(‘TEH’).
3 In December 2021, EW was
granted 12 months’ extended leave, and he has since been living in the
community full-time pursuant
to a successive grant of extended
leave.
4 EW now applies to vary his CSO to a NCSO,
which would allow him to reside full-time in the community under the care of a
community-based
treating team, subject to the supervision of Forensicare via its
NCSO team.
Applicable law
5 On an application under s 31 of the Act,
the court must either confirm the CSO; vary the place of custody; or (subject to
s 32(2))
vary the CSO to a NCSO.[1]
Before a court can vary a CSO to a NCSO, the person subject to the CSO must have
completed a period of at least 12 months’
extended leave, and the court
— in deciding the matter — must take into account whether or not the
person has complied
with their extended leave
conditions.[2]
6 The
court must not vary a CSO to a NCSO during its nominal term unless it is
satisfied that the safety of the person subject to
the order, or members of the
public, will not be seriously endangered as a
result.[3] The phrase serious
endangerment is not defined in the Act, but involves consideration of both the
probability of harm occurring,
and the likely gravity of that harm if it does
occur.[4]
7 In
considering the application the court must apply the principle in s 39(1)
of the Act that restrictions on a person’s freedom
and personal autonomy
should be kept to a minimum consistent with community safety, and have regard to
the following factors in s
40(1) of the Act:
(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.
8 The Court of Appeal described the interaction between ss 39(1) and s 40(1) in NOM as follows:
Section 39 requires a value judgment informed by the competing considerations stated in the provision. Section 40(1) requires an evaluation of the appellant’s mental condition and progress and an assessment of risk against discrete but interrelated criteria. These assessments call for value judgments in respect of which there is room for reasonable differences of opinion. No particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The discretionary character of the decision is not displaced by the mandatory requirements that the judge ‘must apply’ the principle in s 39 or ‘have regard to’ the factors in s 40.[5]
9 Section 40(2) of the Act provides that a court cannot 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
...
(e) has obtained and considered any other reports the court considers necessary.
10 If the court varies the CSO to a NCSO, it may direct that the matter return to the court for review within a prescribed period.[6]
Notification of family members and victims
11 The Director of Public Prosecutions
(‘Director’) is required to give notice of the present application
to each of EW’s
family members and each victim of the index
offence.[7] An affidavit sworn by
Judith McDonald, solicitor at the Office of Public Prosecutions, confirms the
Director’s compliance with
this
obligation.
12 The Court received one family member
report under s 42, which is from EW’s mother (‘PW’). PW
describes her concerns
for EW and his mental health in the lead up to the index
offence, recalling in particular his escalating erratic behaviour at that
time.
However, during EW’s time at TEH, PW witnessed a marked improvement in
EW’s presentation, and following his release
on extended leave has
observed EW’s commitment to continue improving himself and a drive to help
others. PW expresses gratitude
for the help and interventions that EW has
received as a result of his CSO, but reflects on the tragedy of this coming at
the cost
of another man’s life. She reflects that EW himself may not have
made it without such intensive supports. PW supports EW’s
application to
vary his CSO to a NCSO.
13 I am satisfied that
notification as required by the Act has occurred.
Evidence
14 Two reports have been filed in the proceeding. These are the reports of:
(a) Dr James Belshaw, dated 18 September 2023; and
(b) Ms Donna Melia, dated 18 September 2023.
Report of Dr Belshaw
15 Dr Belshaw is a consultant forensic
psychiatrist who is employed within Forensicare’s community treatment and
transition
(‘CTT’) team. He has been EW’s psychiatrist on that
team since March
2022.[8]
16 Dr
Belshaw summarises EW’s history and progress on the CSO prior to being
granted extended leave as follows:
[EW] is a 29-year-old male who had a potential predisposition to the development of a mental disorder given the positive family history of bipolar affective disorder. There was evidence that his psychological development was influenced by inconsistent maternal attachment, parental separation and potentially the neglect of his own emerging mental health needs secondary to the focus of care on his brother’s established mental disorder.
It appeared that during adolescence he began to experience low mood and anxiety and therein he developed a pattern of abuse of substances to assuage emotional distress. The index offence occurred at a relatively early age, in the context of him moving into independent accommodation, aged approximately 18 years, a subsequent escalation in substance abuse, a lack of meaningful activity, family acrimony, interpersonal relationship stress and the onset of a range of psychotic and affective symptoms.
He was made subject to a CSO following a series of psychiatric assessments which attributed his symptoms to an enduring psychotic disorder. However, his progress during the CSO was characterised by an early and sustained remission of psychotic and affective symptoms in the absence of ongoing substance abuse. Therefore, his antipsychotic medication was able to be ceased in 2018 and he had not experienced any relapse of psychotic symptoms or clinically significant affective symptoms in the subsequent five years.
...
As opposed to difficulties regarding enduring manic or psychotic symptoms, during the CSO it was his early attachment, anxiety and emotional dysregulation issues which became more prominent and stymied his recovery. However, [EW] was noted to make steady rehabilitative gains in relation to these more innate issues from the age of approximately 25 years onwards, and this progress culminated in a grant of Extended Leave in late 2021.[9]
17 Dr Belshaw reports that EW’s
progress since he was last before the Court in December 2022 has been
positive overall. His
mental state has remained stable with no evidence of
psychosis or behavioural disorganisation, or any issues with anger management
or
interpersonal
difficulties.[10]
18 EW’s
main challenge has been consistency attending appointments, with Dr Belshaw
noting that EW has either been late to or
sought to reschedule eight out of nine
of his psychiatric reviews during the period of extended
leave.[11] EW puts the issue down to
challenges he has with being unorganised, rather than an intentional disregard
for his supervision or mental
health
interventions.[12] In Dr
Belshaw’s opinion, the issue can be better addressed in future by
implementing simple strategies such as diarising and
setting appointment
reminders.[13]
19 Dr
Belshaw notes the evolution of opinion with respect to EW’s diagnosis
since the index offence, it initially being thought
that EW had schizophrenia,
and later that he had bipolar affective disorder
(‘BPAD’).[14] It remains
Dr Belshaw’s opinion that, with the benefit of hindsight, it is more
likely EW suffers from a vulnerability to psychosis
and mania which can be
induced by substance abuse and is susceptible to extreme
stress.[15] Dr Belshaw does not
rule out the possibility that EW suffers from BPAD affective disorder, but
considers that EW’s sustained
remission of symptoms in the absence of any
ongoing pharmacological treatment makes the diagnosis less and less likely as
time goes
on.[16]
20 Dr
Belshaw notes that EW’s substance use was a precipitating factor in his
mental state deterioration leading to the index
offence.[17] EW has consistently
reported no issues with relapse or any urge to use
substances.[18] While some of his
acquaintances engage in cannabis use, EW reports that he does not participate
due to concerns about how it may
affect his mental health, as well as his
general health and fitness goals.
[19] EW cites the same reason for
moderating his consumption of alcohol and keeping it to one to two drinks every
one to two months.[20] EW agrees
that he has a susceptibility to mental illness, particularly if he does not
abstain from substance
use.[21]
21 In
January 2023, EW returned a result for temazepam (a benzodiazepine medication
typically used to treat insomnia) following a
random urine drug screen
(‘UDS’).[22] EW met with
Dr Belshaw following the incident and said that a friend had provided him with
the drug after EW mentioned that he was
having issues sleeping, and that EW
accepted it believing it was not a prescription drug and would not classify as
an illicit substance.[23] In
discussing the incident with Dr Belshaw, EW reflected that it had been poor
judgment to take a tablet without knowing the ingredients,
and to not discuss
his sleeping issues with his treating
team.[24] Following the incident the
frequency of EW’s UDS’s was increased temporarily, but there were no
further incidents and
the frequency returned to
normal.[25] EW now receives an
over-the-counter medication for his sleep
issues.[26]
22 In
terms of personal supports, Dr Belshaw notes that EW continues to be supported
by and have positive relationships with his
family.[27] EW recommenced an old
intimate relationship in early 2023, which ended after a few months on amicable
terms.[28] EW is not currently in a
relationship.[29]
23 EW
has engaged in some vocational activities during the period of extended leave.
He worked at a gym in the Melbourne CBD up until
June 2023, and also spent some
time working for his father.[30]
However, EW left his job at the gym due to issues with his manager (potentially
connected to EW’s history and index offence
becoming known at the gym),
and left the job with his father as he found it boring and wanted to pursue peer
support work instead.[31] EW had
planned to finish an outstanding module in an alcohol and other drugs course,
but did not get to this, again citing his desire
to pursue peer support
work.[32] EW initially had some
challenges obtaining this type of work, but as of August 2023 had secured two
roles within
Forensicare.[33]
24 EW’s
current professional supports consist of his treating team at Forensicare, who
he meets with for regular
reviews.[34] He engaged with a
private psychologist between September and November 2022, but ultimately ceased
due to the costs which were not
covered by
NDIS.[35]
25 In
April 2023 a case conference was held between Forensicare and EW’s local
area mental health service
(‘AMHS’).[36] This was
part of a broader process of planning to transition to a NCSO and continue
moving towards a community-based treatment
model.[37] If EW’s CSO is
varied to a NCSO, his day-to-day treatment will move from Forensicare’s
CTT team to the AMHS, with Forensicare
retaining overall oversight of EW’s
supervision through its NCSO team.
Risk assessment
26 Dr Belshaw used the HCR-20 to assess
EW’s risk of future violence.
27 He notes that
EW has several historical risk factors which cause his baseline risk of violence
to be
high.[38]
28 In
terms of clinical risk factors, Dr Belshaw notes that EW has not shown any
recent symptoms of mental illness, or issues with
violent ideation, behavioural
instability, or insight.[39]
However, his forgetfulness of appointments does fall within the category of
problems with treatment and supervision
response.[40] Dr Belshaw recommends
some simple strategies to implement to mitigate issues with missing
appointments.[41]
29 In
terms of future risk management factors, Dr Belshaw does not anticipate any
issues in the immediate future, noting EW’s
accommodation and familial and
professional supports are expected to remain
stable.[42] In the event of any
unexpected stressors, Dr Belshaw does not express any specific concerns and
notes that EW has shown the ability
to adapt to stressors
appropriately.[43]
30 Dr
Belshaw opines that EW’s risk of future violence is
low.[44]
31 In
concluding his report, Dr Belshaw states:
[EW’s] progress during the two successive periods of Extended Leave have demonstrated that he had been able to transition back to full-time and independent living in the community, without any relapse of symptoms or substance abuse. There had also been no adverse incidents. His risk rating has remained low throughout. In my opinion the treatment and monitoring provided by Forensicare’s CTT program is no longer significantly mediating his risks or adding to his ongoing recovery.
I believe that input via the local AMHS (Alfred Health) in concert with the Forensicare NCSO team, will be sufficient to progress [EW’s] recovery goals; whilst also providing a commensurate level of risk mediation, mental health monitoring and support as required.[45]
32 Dr Belshaw supports EW’s CSO being varied to a NCSO on the following conditions:
Report of Ms Melia
34 Ms Melia is a senior registered
psychiatric nurse within Forensicare’s CTT team. She has been EW’s
case manager since
December
2020.[48]
35 Ms
Melia notes that EW initially lived with an aunt and uncle upon first being
granted extended leave in December
2021.[49] He remained there until
September 2022, at which time he moved to private rental accommodation as part
of a move towards greater
independence.[50] Ms Melia reports
that EW coped well with the change and increased responsibility, and has
expressed a strong desire to maintain his
independence.[51] She states that
there are no concerns with respect to EW’s ability to undertake daily
living activities, such as budgeting,
chores and self-care,
independently.[52]
36 Because
of EW’s young age at the time of the index offence, Ms Melia notes there
were limited opportunities for him to engage
in the workforce prior to his
placement on the CSO, and that — after his placement on the CSO —
his ability to work was
also limited by his placement at
TEH.[53] During his time on extended
leave EW has worked for both a gym and for his father (conducting data entry),
but he left both jobs
in June 2023 to pursue employment in peer
support.[54] EW reported feeling
restless and dejected after finishing up at work, but Ms Melia states that he
was not otherwise adversely affected
by the temporary loss of
routine.[55] As noted by Dr Belshaw,
EW has since obtained casual peer support work with
Forensicare.[56]
37 EW
enjoys focusing on health and fitness and socialising with family and
friends.[57] EW is supported by his
father and step-mother and has positive relationships with his younger siblings
and extended family, with
everyone often gathering together at the family
home.[58] EW sees his father
regularly and their relationship is particularly close, with EW considering his
father to be one of his main personal
supports.[59] EW describes an
amicable relationship with his mother, but does not see her regularly due to her
living out of
inner-Melbourne.[60]
38 Ms
Melia notes that a handover has been conducted between Forensicare and
EW’s AMHS, and that the AMHS has a copy of EW’s
crisis plan which
includes information about EW’s diagnosis, early signs of relapse, key
contacts and crisis numbers.[61] EW
was scheduled to meet with his new treating team at the AMHS shortly after
Ms Melia’s report was
prepared.[62]
39 In
concluding her report, Ms Melia states:
[EW] is currently free from psychotic or mood symptoms in the absence of any psychotropic medication. He is future-focused with good family support, part time peer work, and maintaining a healthy lifestyle with exercise being important for [EW].
[EW] remains committed to abstinence from alcohol abuse and illicit substances.
[EW] coped well with the stressors of moving house and living independently for the first time in several years and adapted positively to the increased responsibilities taking care of himself and tending to [activities of daily living] within his own home.[63]
40 In view of EW’s positive progress to date, Ms Melia is supportive of his application to vary his CSO to a NCSO.[64]
Analysis
41 I am well satisfied that, having
regard to the s 40(1) factors and applying the principle of parsimony in s
39(1), the safety of
the community or EW will not be seriously endangered if the
CSO were to be varied to a NCSO.
42 Opinions
regarding EW’s diagnoses have varied and evolved with time,
with the contemporary assessment of Dr Belshaw being that:
Whilst it remains possible that he may have an enduring BPAD, the ongoing remission of his symptoms in the absence of pharmacological treatment makes this increasingly unlikely with each passing year.[65]
43 The current and unchallenged evidence
of Dr Belshaw is that EW has been able to transition to full-time and
independent living
in the community during the two successive periods of
extended leave, without any relapse of symptoms or substance abuse. There have
been no adverse incidents and his risk rating has remained low throughout. Dr
Belshaw’s opinion is that the treatment and monitoring
provided by
Forensicare’s CTT program is no longer significantly mediating EW’s
risks or adding to his ongoing recovery.
44 I have
had regard to each of the matters in s 40. I note that the index offence was
associated with an episode of psychosis. Significantly,
the evidence shows a
long period of stability in EW’s mental state. There is no recent evidence
of psychosis or other mental
illness and he has consistently presented as
stable. He has developed an insight into his illness and offending and of the
need to
seek assistance in the event he becomes unwell. He has strong family
support, and resources within the community and has available
to him Alfred
Health in the event he requires professional support. In addition, conditions
can be imposed on the non-custodial supervision
order to ensure some degree of
oversight by the Chief Psychiatrist.
45 EW is not
currently medicated, there are no symptoms of psychosis, mental illness or
instability, there are no anger management
problems and he is living
independently. The risk assessment undertaken by Dr Belshaw places the risk as
low. Although the historical
static risk is high based on the offending, the
dynamic factors are favourable and well support Dr Belshaw’s overall
assessment.
That assessment takes into account a single positive drug screen for
benzodiazepam and an acknowledgement by EW that some of his
friends or
associates have consumed illicit drugs. He has coped well with stressors
including moving to live independently and in
employment. His forensic history
means that there will remain challenges in securing employment and there may
remain some stigma
associated with his past. EW has shown commendable fortitude
in navigating these difficulties and his behaviour and good mental health
has
provided a relatively secure platform on which Dr Belshaw and Ms Mellia were
able to base their opinions.
46 Based on the
evidence, and the submissions in support of the variation, I am satisfied that
EW will not likely endanger himself
or another person because of his mental
impairment should the variation be made.
47 The
grant of leave is supported by the Attorney-General and the Secretary.
EW’s therapeutic progress is very positive. I
am comforted by the fact
that where issues have arisen they have been addressed by EW and he appears to
have a good insight into
the possible risks and problems that may arise. The
return to independent living in the community will never be entirely free from
risk, but the risks that do exist appear to be well managed. Keeping EW on a CSO
would be counterproductive and limit his ongoing
rehabilitation. As already
noted, the evidence establishes that the risk to the community and to EW by the
variation of the CSO to
a NCSO is low, and I am satisfied that there is no
serious risk that the community would be seriously
endangered.
48 The CSO will be varied to a
NCSO.
49 This matter is currently subject to a
suppression order made by the Court on 13 December 2021 which, until
further order, prohibits
publication of:
(a) any matter which might directly or indirectly enable the identification of EW or his place of residence;
(b) any matter which might directly or indirectly enable the identification of the victim or his family relevant to the proceedings or their place of residence;
(c) any matter which might directly or indirectly enable the identification of any member of EW’s family or his or her place of residence; or
(d) any evidence given in the proceeding, including expert reports.
50 I am satisfied that this order should
continue in place.
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[1] The Act, s 32(1).
[2] Ibid s 32(3).
[3] Ibid s 32(2).
[4] NOM v DPP (Vic) [2012] VSCA 198; (2012) 38 VR 618, 639 [63] (Redlich and Harper JJA and Curtain AJA); [2012] VSCA 198 (‘NOM’).
[5] Ibid 633 [47] (Redlich and Harper JJA and Curtain AJA) (citations omitted).
[6] The Act, s 32(5).
[7] Ibid s 38C(2)(c).
[8] Report of Dr James Belshaw dated 18 September 2023, [2].
[9] Ibid [71]–[73], [75].
[10] Ibid [27], [29].
[11] Ibid [28].
[12] Ibid.
[13] Ibid [70].
[14] Ibid [20.3].
[15] Ibid [74].
[16] Ibid.
[17] Ibid [43], [54].
[18] Ibid [30], [35].
[19] Ibid [31].
[20] Ibid [35].
[21] Ibid [64].
[22] Ibid [32].
[23] Ibid [33].
[24] Ibid.
[25] Ibid [34].
[26] Ibid [34].
[27] Ibid [38].
[28] Ibid [37].
[29] Ibid.
[30] Ibid [39], [41].
[31] Ibid.
[32] Ibid [40].
[33] Ibid [41].
[34] Ibid [4].
[35] Ibid [25].
[36] Ibid [5].
[37] Ibid.
[38] Ibid [66].
[39] Ibid [67].
[40] Ibid.
[41] Ibid [70].
[42] Ibid [68].
[43] Ibid.
[44] Ibid [69].
[45] Ibid [76]–[77].
[46] Ibid [78], Appendix 1.
[47] Ibid [80].
[48] Report of Donna Melia dated 18 September 2023, [2].
[49] Ibid [7].
[50] Ibid [7]–[8].
[51] Ibid [10]–[11].
[52] Ibid [12]–[13].
[53] Ibid [14].
[54] Ibid [16]–[17].
[55] Ibid [16]–[19].
[56] Ibid [20].
[57] Ibid [21], [22].
[58] Ibid [24].
[59] Ibid.
[60] Ibid.
[61] Ibid [9], [34].
[62] Ibid [33].
[63] Ibid [35]–[37].
[64] Ibid [38].
[65] Report of Dr James Belshaw dated 18 September 2023, [74].
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URL: http://www.austlii.edu.au/au/cases/vic/VSC/2023/616.html