COMMON LAW - Crimes Mental Impairment - Further review of non-custodial supervision order - Secretary to the Department of Health and Human Services and Attorney-General submit non-custodial supervision order should be confirmed - Reviewee submits non-custodial supervision order should be revoked - Whether revocation would endanger the reviewee or community - Non-custodial supervision order revoked - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss 33, 39, 40 - NOM v Director of Public Prosecutions

2 Mr Stein has longstanding cognitive deficits. A jury found him unfit to stand trial. The Court, having found that he was unlikely to become fit in the ensuing 12 months, directed a special hearing. The jury found that Mr Stein had committed the offence of culpable driving.[1]

3 On 8 October 2012 Mr Stein was made subject to a Non-Custodial Supervision Order (NCSO) for a nominal term of 10 years.[2] The period for review aside, the conditions of the NCSO were as follows:

1. That Mr Stein be subject to the lawful directions of the Secretary, Department of Human Services (Secretary), or his or her nominee, as to residence, treatment and counselling.

2. That Mr Stein not own, possess or have access to any motor vehicle or any other powered vehicle.

3. That Mr Stein not apply for any driver licence in Victoria or elsewhere.

4. That Mr Stein not attend licensed venues except in the company of a family member or any other person approved by the Secretary or his or her nominee.

4 Reviews of the NCSO were conducted in 2013 and 2015. Both reviews confirmed the NCSO and these four conditions.

5 This is now a further review of the NCSO pursuant to s 33(2) of the Act.

6 Mr Stein submits that the NCSO should be revoked. Both the Secretary and the Attorney-General (Attorney) submit that it should be confirmed. No party submitted that its conditions should be varied.

7 For the reasons articulated below, the NCSO is revoked.

8 This matter has been determined on the papers. Both the Secretary and the Attorney consented to that course. Mr Stein submitted that the matter should be determined at an oral hearing.

9 After reviewing the evidentiary materials and considering both the nature of the matter and the positions of the parties, I determined that it was in the interests of justice to determine the matter on the papers. Section 120 of the Act allows for determination of certain matters entirely on the basis of written submissions and without the need for a hearing.[3] Section 120(1)(c) specifically includes further reviews of supervision orders directed under s 33(2) of the Act.

10 In response to the invitation to file written submissions, all parties have done so.

11 Upon this further review of the NCSO I must confirm the order, vary its conditions, vary it to a custodial supervision order or revoke it.[4]

12 In exercising this discretionary power I must apply the principle of parsimony in s 39 of the Act and have regard to the s 40(1) factors. The Court of Appeal in NOM v Director of Public Prosecutions (Vic)[5] described the interplay between these sections 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.[6]

13 It is to be noted that in contradistinction to other decisions made under the Act, the revocation of a NCSO does not mandate any consideration as to 'serious endangerment' to either the person the subject of the order or the community. Rather, the relevant considerations as to endangerment are those in paragraphs 40(1)(c) and (d) of the Act.[7]

14 This consideration of likely endangerment may assume prominence in the overall assessment, but must not acquire the status of a decisive factor.[8] And the Act does not require 'psychiatrically underwritten guarantees'[9] that persons who are subject to supervision under it pose no danger.

15 Re Friedman (a pseudonym)[10] concerned a review of a NCSO where revocation was sought. Niall JA considered s 40(1)(c) of the Act with reference to NOM:

In NOM, the Court of Appeal observed that sub-s 40(1)(c) is concerned with the likelihood or probability that the person would expose themselves or other persons to harm or injury. Their Honours observed that the focus is upon the extent of the chance, risk or peril of some harm materialising, rather than the gravity of the harm that might ensue. A court is required to consider whether the person is, or would if released be, likely to endanger themselves or other persons. The phrase 'likely to endanger' requires an assessment whether the identified harm is likely to occur.[11]

16 His Honour concluded, with respect to s 40(1)(c), that the matter the court must have regard to is whether there is a 'real as opposed to fanciful' chance that the person the subject of the order, or the community generally, would be endangered if the NCSO were to be revoked (or varied).[12]

17 Revocation of a NCSO represents the final step in achieving community reintegration for a person subject to supervision under the Act. It is a serious step, having the effect of entirely removing the Court's supervision of that person's treatment and disposition.[13] The serious nature of the step is to be balanced with the fact that supervision under the Act is a restriction on a person's liberty and autonomy that can only be justified where it is found to be necessary. The continuation of a NCSO cannot be justified on the basis that its practical impact is minimal. [14]

18 On this review, the Court cannot release Mr Stein unconditionally or significantly reduce the degree of supervision to which he is subject unless it has obtained and considered the material stipulated in s 40(2) of the Act. I am satisfied by the materials filed (and considered below) that this section has been satisfied.

19 I am satisfied by the affidavit of Ms Louise Wilkinson, a solicitor with the Office of Public Prosecutions, sworn 3 December 2020 that the Director has discharged her obligation to notify the family members and each victim of the index offence of this review.[15]

20 The Court has received four reports under s 42 of the Act.

21 The first is from Mr Stein's son, Clinton. Mr Clinton Stein has power of attorney with respect to Mr Stein's financial affairs. He states that Mr Stein occasionally withdraws between $50 and $100 to purchase personal items during outings with his care manager. Mr Stein requires assistance to gain access to the community and therefore has no ability and little interest in attending licenced venues. Mr Stein does attend 'happy hour' at his residence about twice a week and consumes two drinks before returning to his room. Mr Stein has no ability to obtain a driver's licence or a vehicle, nor has he expressed an interest in doing so. Mr Clinton Stein is of the view that the NCSO has no bearing on the way Mr Stein lives.

22 The remaining reports are from family members of the deceased, namely her daughter Margaret Higginbotham and two granddaughters, Debra Williams and Julie Sharpe. Common to all three reports is the grief and sense of loss at the death of the deceased and the manner in which she was killed. All are concerned that if the order is revoked then Mr Stein will be free to consume alcohol and / or attend licenced premises and then drive. They are fearful of history repeating itself in the absence of the NCSO.

23 Mr Stein was 63 years of age at the time of the index offence. He is currently aged 72 years.

24 In 1968, at the age of 20 years, Mr Stein sustained an extremely severe traumatic brain injury following a serious car accident in which he was the front passenger. The most significant enduring impact of the accident has been deficits in his memory and learning capacity.

25 Mr Stein married in 1973. He has two sons from that relationship, Clinton and Aaron. The marriage ended after 20 years when Mr Stein's wife left to return to the Netherlands. Mr Stein's alcohol consumption increased in the wake of the separation.

26 Between 1995 and 1999 Mr Stein was involved in several drink-driving related incidents. As a result, he lost his driver's licence.

27 In the early 2000s Mr Stein purchased a unit at Lexington Gardens Retirement Village in Springvale (Lexington Gardens). In 2003 he commenced a romantic relationship with a woman named Jean and they spent most of their days together.

28 Mr Stein regained his driver's licence in 2001. At the suggestion of his brother, an alcohol interlock device was fitted to his vehicle. This was ostensibly effective in curbing Mr Stein's tendency to drive whilst under the influence of alcohol. However, when a replacement device was installed in the vehicle in 2008, Mr Stein was provided with a passcode to disable its operation. Mr Stein again lost his licence in 2010.

29 Also in 2010, Mr Stein's father died. The next year, a month before the index offence, Jean died. Mr Stein apparently struggled to cope with these losses in rapid succession.

30 At 4.11 am on 12 May 2011 Mr Stein was driving around the grounds of Lexington Gardens when he crashed through the deceased's bedroom as she was sleeping. His vehicle landed on top of the deceased, killing her instantly. A sample of Mr Stein's blood, taken at 5.45am, revealed a blood-alcohol concentration level of 0.174%.

31 Following this offence, Mr Stein moved from Lexington Gardens into a one-bedroom rental unit in Mentone. In April 2013, six months after the imposition of the NCSO, he moved to an assisted-living apartment at Kingston Green Retirement Village (Kingston Green) in Cheltenham. He has remained there since.

32 In satisfaction of ss 40(2)(a)-(b) and 41(3) of the Act, the Court has received the reports of Dr Loretta Evans dated 1 November 2020 and Ms Liana Raitman dated 9 November 2020. Dr Evans is a Director and Senior Clinical Neurophysiologist at Community Health Partners. Ms Raitman is a Disability Justice Coordinator at the Department of Health and Human Services (DHHS).

33 The Court has also received an affidavit of Samuel Norton, Mr Stein's solicitor affirmed on 1 December 2020. Exhibited to that affidavit are the letters of Rajbir Singh dated 30 November 2020 and Veronica White dated 26 November 2020. Mr Singh is Care Manager at Kingston Green. Ms White is a Case Manager at Wintringham Specialist Aged Care Services (Wintringham). These materials may, if determined to be relevant, be considered pursuant to paragraph 40(1)(f) of the Act. In my view, they are relevant.

34 It is to be noted that Mr Norton expressly declined to submit any report pursuant to s 40(2)(a) of the Act.[16]

35 Dr Evans was engaged by the DHHS to assess Mr Stein in preparation for this review. She is familiar with his background, having previously assessed him in 2019 in connection with the preparation of an annual report as required by the Act.[17]

36 In her report, Dr Evans rehearses briefly the contents of previous expert assessments. She notes that, in the lead up to the imposition of the NCSO in 2012, two consultant psychiatrists - Dr Lester Walton and Dr Kevin Ong - and a clinical neuropsychologist - Dr Peter Dowling - were all of the opinion that Mr Stein presented with clear cognitive deficits.

37 During her own assessment in 2019, Dr Evans observed further cognitive decline in Mr Stein, noting, particularly, his very poor insight and high degree of apathy. Dr Evans also expressed concern that Mr Stein may have an underlying neurodegenerative disorder. It was her opinion at that time that if Mr Stein was not afforded the structure of a NCSO, he would pose an unacceptable risk of danger to himself and others in the community. Dr Evans further expressed the view that Mr Stein's condition was unlikely to improve materially over the ensuing 12 months.

38 Dr Evans' current assessment embraces both an update as to Mr Stein's cognitive functioning and her opinion as to the risk he poses. She notes that although Mr Stein frequently questioned the purpose of the assessment and was quick to become unnerved and irritable, overall he was alert, lucid and reactive. He is said to have engaged adequately with the testing.

39 Based on her updated assessment, Dr Evans is of the opinion that Mr Stein has demonstrated a further, subtle deterioration in most, but not all, cognitive domains. She considers this to be more than what would be expected for normal age-related cognitive decline, but not necessarily as much as would be expected for someone with a neurodegenerative disorder.

40 Dr Evans still considers it a 'distinct possibility' that Mr Stein has such an underlying disorder, but states that if so, it is perhaps at an earlier stage than she thought in 2019. She considers it possible that at the time of the 2019 assessment, some of the deficits displayed by Mr Stein were amplified due to his residual grief over the death of his brother in 2018. That explanation is consistent with the main areas in which Mr Stein shows subtle improvement from 2019, namely cognitive processing and sustained attention, as these are the domains most sensitive to mood state.

41 Notwithstanding these subtle improvements, Dr Evans considers Mr Stein's cognitive deficits to be permanent and does not anticipate any meaningful improvement to his cognitive functioning over the next 12 months.

42 As to risk assessment, the following two paragraphs of Dr Evan's report are particularly relevant.

1. Capacity to reflect on his legal matters: Mr Stein stated he "vaguely" recalled he had been involved in a Court case, and when pressed about the circumstances he aggressively replied: "because I killed someone didn't I?". He acknowledged he had been disqualified from driving, but when asked if he would like his licence to be re-instated he said: "yes and no". When pressed to elaborate, he was unable to nominate any specific reason or purpose as to why he would need to drive again (or not); admitting he was collected each week to conduct his grocery shopping and was transported to appointments if required. However, whilst Mr Stein agreed he did not currently own a car, he confirmed he would return to driving if his licence was re-instated and was dismissive when it was suggested he may be 'a little rusty'. Moreover, he did not accept he was a potential danger on the road and went into a tirade when this was proposed to him (yelling: "were you in a car accident? Did you go over a cliff?", etc.). Moreover, he did not express his regret, remorse, shame, or guilt about the accident in 2011 and was easily irritated when such concepts were presented to him. In this regard, Mr Stein made numerous comments to suggest impaired theory of mind [i.e., the ability to infer what others may be thinking or feeling] as well as highly ego-centric thinking. Therefore, the capacity to reflect adequately on his offending behaviour, capacity to drive, or reactions to such issues, impressed as impaired.
2. Risk: Due to deficits in the cognitive skills required for safe driving; some of which have declined further since 2012 and 2019, from a neuropsychological perspective, I consider Mr Stein is likely to pose as a significant risk to self and others if he were to attempt a return to driving. Furthermore, although Mr Stein does not have access to a car, I consider he has the potential to demonstrate opportunistic reactions (attempt to drive an unattended idling car) - that is further compounded by the fact that he remains physically capable to actually do so. Thus, given the Order currently affords the structure and legal provision for care providers to ensure his safety and the safety of the community, my concerns expressed in 2019 remain, and it is my opinion that revoking the Order would pose as an unacceptable risk.[18]

43 Dr Evans further articulates general concerns as to the possible consequences if Mr Stein were to be independently responsible to monitor his own alcohol intake, or if he were to consume alcohol at all,[19] based upon his impulsive behaviours, poor insight and already vulnerable cognition.

44 Dr Evans is of the opinion that Mr Stein's demonstrated compliance with the NCSO to date is not attributable to Mr Stein's cognitive capacity. Rather it is due only to his current level of supervision, structure and support, of which the NCSO is an integral part. In Dr Evans' opinion, the NCSO performs a necessary legal function in permitting person's involved in Mr Stein's care to intervene if required. It would be required if, for example, he attempted to drive.

45 It follows that Dr Evans supports the confirmation of the NCSO.

46 The DHHS Disability Justice Program (DJP) is responsible for supervising Mr Stein's NCSO on behalf of the Secretary. Ms Raitman has been Mr Stein's Disability Justice Coordinator since 6 August 2020.

47 Due to COVID-19 related restrictions, Ms Raitman has not met Mr Stein in person.[20] She has had contact with Mr Clinton Stein, Mr Singh and Ms White. She states that she has not received report of any concerns.

48 Ms Raitman notes that Mr Stein has been resident at Kingston Green for some seven years. His residence is within the central building of the facility and he has access to staff 24 hours a day. His medical and daily living needs are largely managed 'in-house' by Kingston Green.

49 Overall Mr Stein is of good health with periodic episodes of confusion and forgetfulness. Ms Raitman notes that Mr Stein has limited appreciation for the extent to which he relies upon others to support him in his day to day living and decision making. He engages well with other residents and has developed a close friendship with a co-resident with whom he regularly plays cards and smokes. Mr Singh told Ms Raitman that Mr Stein chooses not to participate in the daily 'happy hour' and does not otherwise consume alcohol.[21]

50 Mr Stein's community access is supported by Wintringham, managed by Ms White. Every Monday an outreach worker meets with Mr Stein to assist him with activities in the community, usually shopping or attending appointments. He looks forward to these outings and is noted to have been compliant with COVID-19 related restrictions.

51 The COVID-19 related restrictions at Kingston Green have had little impact upon the routine of Mr Stein, notwithstanding most activities have been suspended. He, like other residents, have been allocated a 'lifestyle carer' for one-on-one support as required.

52 Ms Raitman notes that Clinton Stein is Mr Stein's main family contact. He assumed that role after Mr Stein's brother died in 2018. Mr Clinton Stein has regular contact with both his father and Ms Raitman.

53 As to risk, Ms Raitman defers to the opinion of Dr Evans after noting that he 'has presented with 'no issues' at his place of accommodation over the reporting period and is reported to be 'doing well'.' She concludes that in line with Dr Evans' assessment, 'the department' recommends the confirmation of the NCSO.

54 Mr Singh notes that Mr Stein has access to internal supports through Kingston Green as well as external supports through Wintringham. The latter is a weekly, accompanied shopping trip. Mr Singh states that the NCSO is irrelevant to the current or future provision of these services. And, in the event that the NCSO is revoked, there will be no change to Mr Stein's level of care.

[Mr Stein] does not drive or have access to any motor vehicles. If he wish to drive, he will need to be assessed by Occupational Therapist and GP in order to start application for driving with VicRoads. [Mr Stein] prefer not to drive. He have access to taxi or community bus in case he needs to go out.[22] (sic)

56 Mr Singh also notes that like all residents, Mr Stein is permitted to have a single beer per day during the happy hour, which takes place between 4pm and 5pm.

57 Ms White states that neither she nor Mr Stein's Wintringham carer have seen evidence that Mr Stein consumes alcohol and, further, Mr Stein has expressed his desire not to drink alcohol. She states that Mr Stein has no access to a vehicle and has no desire to drive. Mr Stein's carer reported to Ms White that Mr Stein manages well on their weekly outings and has gained confidence in his community interactions.

58 Ms White notes that the NCSO has no bearing on the level of supervision Mr Stein's Wintringham carer provides in the community. She states that upon easing of the COVID-19 related restrictions, Wintringham will get Mr Stein more involved with community outings organised by their recreation team. She comments '[w]e are limited where we can take [Mr Stein], as [Mr Stein] cannot attend Licensed Venues, therefore misses out on morning melodies at RSL'.

59 In his written submissions on behalf of Mr Stein, Mr Norton contends that the NCSO should be revoked under s 35(2)(b)(iii) of the Act. Assuming that to be a typographical error and intended to refer to s 35(3)(b)(iii), that section is inapposite to this review. The power to revoke the NCSO on this review, being a review ordered pursuant to s 33(2) of the Act, is to be found in s 33(1)(d). I treat the application for revocation to be made accordingly.

60 The gravamen of Mr Norton's submissions is that the evidence of Dr Evans demonstrates no real likelihood of Mr Stein endangering himself or others in the event that the NCSO is revoked. Mr Norton submits that Dr Evans focuses upon the gravity of the harm should Mr Stein drive a car rather than the likelihood of him doing so. This, he argues is contrary to the approach stipulated in NOM. Mr Norton further submits that the expression of interest by Mr Stein in obtaining his licence, as reported by Dr Evans, was in response to her direct and seemingly pressing questioning on the issue. This is in contradistinction to the s 42 report of Clinton Stein, who states that Mr Stein has never raised the issue of obtaining a car or a licence since the imposition of the NCSO in 2012.

61 Mr Norton also submits that the NCSO plays no role in the structured environment in which Mr Stein lives. Particularly, it is otiose to the 'strict supervision' of him referred to by Dr Evans. As such, it is submitted that the s 39 principle of parsimony demands its revocation.

62 In written submissions on behalf of the Secretary, Ms Pathan quotes the opinion of Dr Evans as to the risk posed by Mr Stein in paragraph 32 of her report (and reproduced at paragraph [42] above). She then submits that:

...at present, Mr Stein would be likely to endanger himself or others because of his mental impairment, given the significant risk posed by Mr Stein were he to attempt to drive, combined with his potential for opportunistic reactions and his continuing physical capacity to attempt to drive an unattended vehicle. (Dr Evans has previously opined that given the likely nature and progression of Mr Stein's underlying condition, she considers his physical capabilities are likely to diminish over time.)[23]

63 She submits that the confirmation of the NCSO is the least restrictive outcome, having regard to both s 39(1) and s 40(1) of the Act.

64 Written submissions filed on behalf of the Attorney refer to the evidence of Dr Evans that the structured environment and strict supervision of Mr Stein as well as his lack of opportunity to drive are significant contributors to his compliance with the NCSO. They further refer to her opinion of significant risk and Mr Stein's incapacity to reflect adequately on his offending.

65 Relying on this evidence, the Attorney submits that the NCSO should be confirmed.

66 Turning to the section 40(1) factors to which I must have regard, there is little dispute between the parties as to paragraphs 40 (1)(a),(b) and (e).

67 Mr Stein has significant and persisting cognitive deficits arising from a traumatic brain injury sustained more than 50 years ago. This impairment existed at the time of the 2011 index offence and resulted in him being unfit to stand trial and a qualified finding of guilt[24] with respect to the charge of culpable driving. Further, the history of his residence and support at Kingston Green demonstrates adequate resources for his treatment and support in the community.

68 At issue is paragraph 40(1)(c) (and its corollary, 40(1)(d)), namely whether Mr Stein would, if not subject to a NCSO, be likely to endanger himself or others because of his mental impairment (and the need to protect people from such danger).

69 As the Court of Appeal stated in NOM, and as further explained by Niall JA in Re Friedman, I must focus on the extent of the chance of harm and not the gravity of the harm, should it eventuate.

70 Obviously, should Mr Stein drive, the seriousness of any realised harm may be grave indeed. The fears of the deceased's daughter and granddaughters are understandable in that context. But, on the evidence before me, the chance of that harm occurring is extremely low. It is based on his 'potential' to opportunistically happen upon an idling car. Given the evidence as to his routine and supervision, it is fanciful to suppose that he would be likely to come upon an idling, unattended car in circumstances where he could, even if physically capable and desirous of doing so, take advantage of that situation. And that is without considering how likely it is that idling, unattended cars are something which might be found at Kingston Green or during Mr Stein's Monday outings to shops or appointments.

71 I further note three things. First, that the chance of risk presented by Mr Stein is disconnected from whether he holds a drivers licence or not. I am not concerned with whether he will drive lawfully, but whether he will, opportunistically, drive at all. Therefore his answer to Dr Evans as to his desire for a licence which, at its highest, is equivocal, and his impaired capacity to reflect upon his ability to drive are of little moment to the assessment of the risk of him driving. Second, as the chance of happening upon and entering an idling car would only arise opportunistically, there is little substance in the notion that the NCSO adds to the strict supervision which prevents Mr Stein from driving. The evidence is that none of his supervision or support will change if the NCSO is revoked. Third, it has never been a condition of the NCSO that he not consume alcohol. The NCSO therefore plays little role in protecting Mr Stein and others from the risks of driving under the influence, as opposed to just driving.

72 It follows that, given that the extent of the chance of harm presented by Mr Stein is fanciful and not real and that the NCSO contributes little if anything to the mitigation of that chance, the principle of parsimony demands its revocation.

[1] Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Act), s 17(c).

[2] Re Stein [2012] VSC 487 (Coghlan J).

[3] The Court also presently has the power to determine matters entirely on the basis of written submissions and in the absence of the consent of the parties pursuant to s 129B of the Supreme Court Act 1986 (Vic).

[5] [2012] VSCA 198; (2012) 38 VR 618 (NOM) (Redlich and Harper JJA and Curtain AJA).

[6] NOM, 633 [47] (citations omitted).

[10] [2019] VSC 251 (Re Friedman).

[11] Re Friedman [67] (citations omitted).

[13] In the matter of an application by BK [2015] VSC 214R, [41] (Kaye JA).

[14] Re MP (No 2) [2018] VSC 299, [25] (Priest JA).

[16] Email of Samuel Norton, dated 26 November 2020, addressed to the Court and parties.

[18] Report of Dr Loretta Evans, dated 1 November 2020 at [13], [32].

[19] It is to be noted that the conditions of the NCSO in force since 2012 do not prohibit Mr Stein from drinking alcohol. This is considered further below.

[20] It appears implicitly from her report that Ms Raitman has had no direct contact by any means with Mr Stein.

[21] Previous reports vary on this issue. The 2019 annual report indicated that Mr Stein was regularly participating in happy hour and consuming alcohol. The 2017 and 2018 annual reports both cite his desire to avoid happy hour and alcohol consumption.

[22] It is to be noted that the 2019 annual report stated that Mr Stein would, on occasion, lament not having his driver's licence or access to a car.

[23] Outline of Submissions of the Secretary to the DHHS, dated 7 December 2020, [22].

[24] The Act, ss, 17(1)(c) and 18(3)(a).