In the matter of an application for a non-custodial sentencing order by Roger Kozarov [2024] VSC 275 (27 May 2024)

2 On 6 February 2015, Mr Kozarov killed his father in the context of paranoid and persecutory delusions which were symptoms of his then poorly treated schizophrenia. He was subsequently charged with murder and remanded in custody.

3 On 20 January 2016, following a consent mental impairment hearing, Emerton J directed a verdict of not guilty of murder by reason of mental impairment.[1]

4 On 31 March 2016, her Honour made a CSO with respect to Mr Kozarov for a nominal term of 25 years, commencing from the date of the index offence, and ordered that the matter be brought back to the Court for review after five years.[2]

5 On 30 March 2021, her Honour reviewed and confirmed the CSO on the papers.[3]

6 On 3 June 2022, Hollingworth J granted Mr Kozarov 12 months' extended leave, allowing him to live full-time in the community under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health ('Forensicare').[4]

7 On 30 May 2023, Champion J granted Mr Kozarov a further 12 month period of extended leave, commencing from 3 June 2023,[5] subject to the following conditions:

(a) the applicant be under the supervision of the authorised psychiatrist of [Forensicare] ('the authorised psychiatrist') or their delegate;

(b) the applicant reside at a location known and approved by the authorised psychiatrist or their delegate;

(c) the applicant abide by the lawful directions of the authorised psychiatrist or their delegate;

(d) the applicant comply with treatment, testing and attending appointments as directed by the authorised psychiatrist or their delegate;

(e) the applicant abstain from the abuse of alcohol and illicit drugs; and

(f) the applicant not leave the state of Victoria without the written permission of the authorised psychiatrist or their delegate. This includes overseas travel, which must be approved by the authorised psychiatrist or their delegate.

8 Mr Kozarov has now been living in the community on extended leave, without incident, since June 2022.

9 All parties are in agreement that Mr Kozarov's application for variation of CSO to a NSCO should be granted.

10 When an application is made under s 31(1) for variation of a CSO to an NCSO, the relevant considerations for the Court are contained in s 32 of the Act, which provides as follows:

32 Variation of custodial supervision orders

(1) On an application under section 31 for variation of a custodial supervision order ... the court must, by order -

(a) confirm the order; or

(b) vary the place of custody; or

(c) subject to this section, vary the order to a non-custodial supervision order.

(2) The court must not vary a custodial supervision order to a non- custodial supervision order during the nominal term unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order.

(3) In the case of a forensic patient or forensic resident -

(a) the court must not vary a custodial supervision order to a non-custodial supervision order (whether during or after the nominal term) unless the forensic patient or forensic resident has completed a period of at least 12 months extended leave granted by the court under section 57; and

(b) in deciding an application to vary a custodial supervision order to a non-custodial supervision order, the court must take into account whether or not the forensic patient or forensic resident has complied with any conditions of their extended leave.

(4) If the court varies a custodial supervision order to a non-custodial supervision order before the end of the nominal term, that nominal term continues to run.

(5) The court may direct that the matter be brought back to the court for further review at the end of the period specified by the court.

(6) A direction may be given under subsection (5) more than once.

11 The alternative application is governed by s 57(2) of the Act. That section provides that the Court may grant extended leave if satisfied on the evidence available that the safety of the applicant or members of the public will not be seriously endangered as a result.

12 In making a determination on either application under s 31(1) or 57(1), the Court is required to apply the principle in s 39 and consider the factors in s 40(1).

13 Section 39(1) provides that in deciding whether to vary a supervision order, or to grant extended leave, 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.

14 Section 40(1) outlines a number of factors that must be taken into account in deciding whether to vary a supervision order, or to grant extended leave:

(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.

15 The interplay between ss 39(1) and 40(1) was described by the Court of Appeal in NOM v Director of Public Prosecutions (Vic):[6]

Section 39 requires a value judgment informed by the competing considerations stating 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.

16 In addition, s 40(2) provides that the Court cannot significantly reduce the degree of supervision to which a person is subject (for example, by varying a CSO to a NCSO) 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 -

(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

(da) in the case of an application for extended leave - has considered the leave plan filed under section 57A; and

(e) has obtained and considered any other reports the court considers necessary.

17 Finally, s 40(4) provides that the Court cannot make a further grant of extended leave unless it has obtained and considered:

(a) the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on -

(ii) the possible effect of the proposed further grant on the person's behaviour; and

18 An affidavit was sworn and filed by Julie Carpenter, a Legal Prosecution Specialist from the Office of Public Prosecutions, on 24 May 2024.

19 The affidavit confirms that a letter was prepared for each of the victims and family members of Mr Kozarov advising them of the application pursuant to ss 38C and 38E of the Act. This letter was sent to the wife of the deceased on 6 May 2024 and receipt of this letter was confirmed in 24 May 2024. A letter was also sent to the daughter of the deceased on 6 May 2024. After it was not possible to confirm that this letter had been received, another letter was sent on 14 May 2024 and was delivered on 15 May 2024.

20 Mr Kozarov is now 47 years old. His personal and psychiatric history, and the circumstances leading up to and surrounding the index offence were previously summarised by Hollingworth J, as follows:[7]

[RK] and his older sister were raised in Melbourne with their parents, who had moved to Australia from Macedonia.

RK reported that his mother has a history of depression, requiring an inpatient admission when RK was a child, and ongoing medication. RK described his father as an alcoholic and a strict man, who exposed RK growing up to the abuse and violence he perpetrated against RK's mother.

After completing his year 12 education, RK received unemployment benefits for about one year, before beginning periodic factory work.

RK has a history of substance use, including using cannabis for about 5 years from age 18, and heroin for about a year at age 22. RK's drug use negatively affected his employment and relationships. RK has been abstinent from drugs since his diagnosis with schizophrenia in 2000.

RK had a long psychiatric history prior to the index offence, which may be summarised as follows.

In December 1999, RK was admitted to hospital after jumping through a glass window and lacerating his leg. The hospital records for this admission refer to RK saying that his father "has always tried to kill him", however he was assessed by the psychiatry service as not being motivated by psychotic symptoms.

In January 2000, RK was admitted as a voluntary patient to a psychiatric unit, after entering another person's house and acting in a bizarre manner. He had used cannabis heavily in the preceding days. He was discharged the next day, because he did not appear to show signs of acute psychosis.

During his treatment with Orygen between 2000 and 2002, RK presented with intermittent auditory hallucinations, referential experiences, difficulties with his parents, and mood instability. Upon discharge, RK was referred to the northern area mental health service, and subsequently to the care of private psychiatrists up until the time of the index offence. During this period, RK experienced a number of relapses in psychotic symptoms due to medication non-compliance.

RK saw his treating psychiatrist the day before the index offence, attending an appointment with his sister due to family concerns about his deteriorating condition. The psychiatrist prescribed an increased dose of medication. RK attended a chemist to fill this prescription but the item was out of stock, and RK was told to return the next day.

RK was living with his parents at their home. In the lead up to the index offence, RK's psychotic symptoms worsened, including delusions that his father intended to kill him imminently, referential delusions involving lottery numbers on television, and hallucinations of what RK described as calligraphy instructing him to kill his father.

On the day of the index offence, RK was at home with his parents. That morning, all three of them went into the garage and discussed RK's medication. RK's mother went back inside the house to get ready, leaving RK and his father in the garage. RK's mother returned shortly after to find her husband in a pool of blood in the garage with his throat cut. RK had left.

After his arrest, RK was assessed as acutely psychotic. He was admitted to TEH for compulsory treatment in April 2015. RK [then remained there following the CSO being made in March 2016], progressing through the hospital's treatment and rehabilitation program.

21 In June 2022, Mr Kozarov was granted extended leave allowing him to live in the community for a period of 12 months. During that period of extended leave, Mr Kozarov returned to live with his mother. His progress while living in the community on extended leave was characterised by full engagement with his treatment, stability in his mental state and sustained positive steps. Reflecting on the anniversary of his father's death in 2023, Mr Kozarov said that while the day was challenging, his grief was becoming easier to manage over time and he felt that thinking about him every day assisted this process. In view of Mr Kozarov's positive progress during his first period of extended leave, he was granted a further period of 12 months' extended leave in May 2023, commencing from 3 June 2024.

22 Two reports were filed in support of the applications, being the reports of Dr Madushi Rowel, dated 23 April 2024, and Ms Ann Walsh, dated 3 May 2024. Dr Rowel is a psychiatric registrar employed by Forensicare, and has been Mr Kozarov's allocated registrar since February 2024. In her report, Dr Rowel notes that she has been supervised in her review of the applicant by Mr Kozarov's primary psychiatrist, Dr James Belshaw, who is a consultant forensic psychiatrist employed by Forensicare. Dr Rowel states the recommendations in her report have been discussed with Dr Belshaw. Ms Walsh is a senior nurse employed by Forensicare, and has been Mr Kozarov's case manager since January 2023.

23 Both Dr Rowel and Ms Walsh agree that Mr Kozarov has continued to make positive progress over the last 12 months. He has maintained mental stability, complied fully with his treatment and supervision, attended and meaningfully participated in all appointments and reviews, developed positive relationships with a range of different mental health care professionals,[8] demonstrated good insight into his mental illness and the need for medication, remained abstinent from alcohol and drugs, and shown no signs of relapse of psychotic symptoms.[9] He has also willingly and meaningfully participated in further reviews of a relapse prevention plan and care pathway plan, through which he has identified goals to support his overall wellbeing and plan for variation to an NCSO, should his application be successful.[10]

24 He is prescribed a long-acting injectable antipsychotic medication (risperidone) and an antidepressant medication (escitalopram), and he continues to be compliant with both.[11] He visits his general practitioner every two weeks for medical reviews and the administration of his antipsychotic medication, and has been proactive in contacting the Community Treatment and Transition ('CTT') team (who are responsible for his treatment and management whilst he is on extended leave) to obtain his prescriptions.[12]

25 He receives a disability support pension, and manages his finances independently. He also receives an NDIS package, which funds sessions with his psychologist and occupational therapist and is currently due for review. Mr Kozarov's NDIS supports would remain in place under an NCSO.[13]

26 Mr Kozarov has experienced two recent losses: the passing of his brother-in-law in October 2022, and his godfather in September 2023. He stated that the passing of his brother-in-law shocked him, and that he had a tough couple of weeks following the death of his godfather, with whom he had been very close. He coped well during this difficult period and did not experience any relapse of mood or psychotic symptoms.

27 He continues to live with his mother, without issue.[14] She is one of his main supports, and he reciprocates by helping her with groceries, household chores, and driving her to medical appointments. He plans to continue living with his mother and supporting her for the rest of her life, and she has told his CTT team that she has included a provision in her will allowing him to continue living in the home for the rest of his life.

28 Mr Kozarov's other supports include his sister, a friend from his cricket club, and his NDIS funded psychologist; all of whom are cognisant of his mental health issues and whom he feels comfortable going to when he feels stressed.[15] He also enjoys spending time with his three nephews, who he takes to soccer training and helps umpire their games.

29 He continues to be an active member of his cricket club. During game season, he attends practice twice per week, plays in weekend matches, provides assistance as a volunteer, and attends various fundraising and social events at the club.[16] Mr Kozarov's occupational therapist is supporting him to further expand his social connections and to obtain work after the cricket season. There is also an opportunity for Mr Kozarov to undertake paid casual work at his psychologist's clinic.[17]

30 The proposed NCSO conditions are essentially in the same terms as those to which Mr Kozarov is subject to on extended leave, in terms of his restrictions and obligations.[18] The most significant change is that the responsibility for Mr Kozarov's day-to-day management would pass from the CTT team to the Noogal Clinic (which is part of the northern area mental health service).

31 Under his extended leave, Mr Kozarov is supervised and treated by the CTT team at Forensicare; including fortnightly visits and mental health reviews by his case manager, the consultant psychiatrist, and the psychiatric registrar.[19] On an NCSO, a new team at Forensicare, being the NCSO team, would assume overall responsibility for his supervision.[20] However, his day-to-day management, including his mental health care and treatment, would be conducted by the Noogal Clinic.

32 In January 2024, Mr Kozarov made an informal visit to the Noogal Clinic to become more familiar with the service, in preparation for the current application for variation of his CSO to a NCSO. In March 2024, he was referred to the Noogal Clinic and allocated a key clinician, Ms Joos, a psychiatry registrar, Dr Akurana, and a consultant psychiatrist, Dr Owais.[21] On 5 April 2024, the CTT team supported Mr Kozarov to attend an initial appointment at the Noogal Clinic, where he met with Dr Akurana and a mental health intake clinician. Since then, he has independently attended an appointment with Ms Joos.[22] Mr Kozarov has also been allocated a NCSO co-ordinator, Mr Carmichael, and a NCSO consultant psychiatrist, Dr Rodrigo, from Forensicare.[23] The report of Ms Walsh notes that Mr Kozarov had an appointment scheduled at the Noogal Clinic with Dr Owais on 9 May 2024, and a meeting scheduled with the NCSO team on 22 May 2024. Should the CSO be varied to a NCSO, a case conference has been scheduled for 6 June 2024 between the CTT team, the NCSO team, and the Noogal Clinic.[24]

33 Dr Rowel has administered an updated risk assessment using the HCR-20 (version three) tool and assessed Mr Kozarov as a low risk of future interpersonal violence.

34 Mr Kozarov has several historical risk factors which place his baseline risk of violence in the high range, namely, exposure to violence as a child, history of violent and non-violent offending, diagnosis of schizophrenia, and history of difficulties with interpersonal relationships, employment, substance abuse, and treatment/supervision non-compliance.[25] Dr Rowel contextualised how these factors contributed to the index offence as follows:[26]

Mr Kozarov has a genetic predisposition to develop psychiatric illness and together with early traumatic experiences in the context of his father's alcohol abuse, violent behaviour towards his mother, and criticism towards Mr Kozarov would have increased his vulnerability to develop the illness further. Also, his father's authoritative behaviour and criticism towards him would have led to the development of fear, rejection sensitivity, insecurity, and low self-esteem. Witnessing violence would have led to increased hypervigilance and modelling violence as a method of coping when resolving conflicts. In the context of this trauma, negative affective states and communication style Mr Kozarov commenced abuse of substances during his teenage years, ostensibly to mediate his trauma-related symptoms and mood states. However his use of substances likely further stimulated the precipitation of his psychotic symptoms, amplified his disorganised behaviour and led to ostracism from his family. At the age of 22 years, he had his first clear episode of psychosis, with symptoms including the paranoid delusion that his father was going to kill him.

Mr Kozarov was managed with oral and depot antipsychotic medications to which he responded. Prior to the index offence there have been relapses, primarily due to non-compliance with medications or treatment with subtherapeutic doses of medication. Mr Kozarov's limited insight regarding mental illness and side effects from the medications had contributed to poor treatment compliance or the prescription of higher doses of more efficacious antipsychotic medications.

Mr Kozarov's index offence also occurred in the context of the relapse of his psychotic illness. It may be postulated that his less assertive management by the private psychiatric services and the family's limited ability to identify his early warning signs and to direct him to appropriate services were all relevant antecedent factors.

35 Dr Rowel goes on to note that these historical risk factors are mitigated by Mr Kozarov's steady mental health recovery, sustained improvement in terms of insight into his illness and factors that increase his risk of relapse, compliance with treatment and supervision, commitment to abstinence from alcohol and illicit substances, ongoing mental stability, high engagement with his treating team and support services, stable accommodation, and positive familial and social relationships.[27]

36 Dr Rowel further notes that, should Mr Kozarov's application to vary his CSO to an NCSO be successful, no treatment or supervision issues are predicted, for the following reasons:[28]

(a) Mr Kozarov is agreeable to psychiatric and case management follow-up by the Noogal Clinic;

(b) Mr Kozarov will continue to receive his antipsychotic and antidepressant medication;

(c) Mr Kozarov's NDIS supports will remain in place;

(d) Mr Kozarov's accommodation and finances are stable;

(e) Mr Kozarov has adequate personal supports; and

(f) Mr Kozarov has demonstrated an enhanced ability to cope with stressors whilst on extended leave (namely, the death of his brother-in-law and godfather) and therefore it can be expected that he will also manage future stressors adaptively.

37 Dr Rowel supports the application to vary the CSO to an NCSO.[29] She concluded that Mr Kozarov's risk of future violence is low, and that the NCSO team and the Noogal Clinic will be able to support him to maintain his stable mental state, detect any future deterioration, and assertively treat him as required. This will help to ensure that he will not pose a danger to himself or others.[30] In Dr Rowel's opinion, Mr Kozarov will not experience a significant relapse of psychosis or increased risk to himself or others if he continues to take his medication and abstain from illicit drugs.[31]

38 Ms Walsh also supports Mr Kozarov's application to vary his CSO to an NCSO, based on his consistent progress and his positive engagement with the CTT team whilst on extended leave.[32]

39 I am satisfied that the report of Dr Rowel fulfils the requirements in ss 40(2)(a), (ab), (b) and (da) of the Act. I am also satisfied that the family and victims of the offence have been given reasonable notice of this application under s 40(2)(c) and I have considered the report of Ms Walsh.

40 The primary question in determining whether to vary a custodial supervision to a non-custodial supervision order is set out in s 32(2) of the Act. This dictates that I must not vary the order unless I am satisfied, having regard to the factors in s 40(1) and the principle of parsimony in s 39(1), that the applicant or the public will not be seriously endangered by the applicant being released on a non-custodial supervision order.

41 Dr Rowel reports that the applicant's mental health has been good for the past twelve months and his psychotic and mood symptoms remain in remission. He displays insight into his mental illness and the need to comply with his medication requirements to remain well.

42 The applicant has expressed remorse about his offending and has implemented strategies to deal with his grief surrounding his actions. He also experienced the significant loss of his godfather in the past year, however I am reassured that this upset did not cause any relapse in his symptoms.

43 Overall, I accept the opinion of Dr Rowel that the transition to an NCSO will not impact on the risk that the applicant poses to himself or the community, and that he remains at low risk of reoffending.

44 The switch to an NCSO will involve a change of the applicant's treating team from the CTT team to the AMHS (Noogal Clinic of Northern Health). Dr Rowel does not foresee any issues in this transition, as the applicant will continue to receive the same antipsychotic and antidepressant medication. He has also already engaged with this treating team and reportedly understands the requirements for a transition to an NCSO and is willing to work with the Noogal Clinic team.

45 I am therefore satisfied that the treatment protocol for the applicant when he transitions to an NCSO will enable him to maintain his mental stability and that this change will not impact on his low risk of endangering himself or the community.

46 A variation of this kind will never be entirely free of risk. However, it is always worth bearing in mind that this is not the intention of the legislation in determining whether to transition an applicant onto a non-custodial sentencing order. Instead, the question is whether the change brings with it a risk that the applicant or the community will be seriously endangered.

47 I have been greatly assisted by the diligent assessment of Dr Rowel, under the supervision of Dr Belshaw, and the case management of Ms Walsh. These reports present a clear opinion that the Mr Kozarov is likely to pose a low risk to himself or the community when he transitions to a NCSO. It is noteworthy that there was no contest to this opinion from the Attorney-General or the Secretary.

48 I am satisfied that, if Mr Kozarov continues to engage with the Noogal Clinic and maintains the medication regime, he will not pose a serious risk of endangerment to himself or the community.

49 Pursuant to s 32(1)(c) of the Act, the CSO imposed on Mr Kozarov is varied to a NCSO. The NCSO is subject to the following conditions:

(a) that the Applicant be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH) or their delegate or nominee;

(b) that the Applicant resides at a location known and approved by the authorised psychiatrist of the VIFMH or their delegate or nominee;

(c) that the Applicant abides by the lawful directions of the authorised psychiatrist of the VIFMH or their delegate or nominee;

(d) that the Applicant complies with treatment, testing and attends appointments as directed by the authorised psychiatrist of the VIFMH or their delegate or nominee;

(e) that the Applicant abstains from the abuse of alcohol and illicit drugs;

(f) that the Applicant not leave the State of Victoria without the written permission of the authorised psychiatrist of the VIFMH or their delegate. This includes overseas travel, which must be approved by the authorised psychiatrist or their delegate at VIFMH.

50 The NCSO is to be reviewed by a judge of this Court on a date to be fixed after 6 June 2025.

51 In the original proceeding in which Mr Kozarov was made subject to a CSO, Emerton J made a suppression order to the effect that Mr Kozarov, his parents and sister should be referred to by their initials only. That order expired on 19 January 2017.

52 At the time of confirming the CSO in March 2021, Emerton JA refused to make a further suppression order.[33] Mr Kozarov was going to remain in TEH on the existing CSO, and her Honour found that there was inadequate evidence to support a further suppression order at the time.

53 On 3 June 2022, in granting Mr Kozarov extended leave, Hollingworth J made a suppression order for a period of 12 months, on the basis that Mr Kozarov's rehabilitation, and the safety of the public, would be best promoted by a period in which he was not at risk of public exposure, as he started to integrate into the community in which his mother lives.[34]

54 On 30 May 2023, Champion J made a further suppression order until 4:00pm on 3 June 2024 or further order (whichever was to occur first). His Honour, whilst not provided with any updated materials in relation to the application for further suppression order, accepted that its continuation would be in the public interest, as it would continue to protect Mr Kozarov's community reintegration process and mitigate against the possibility of his mental state worsening in the context of adverse media attention.[35]

55 Mr Kozarov's notice of application dated 13 March 2024 notes the existence of the current suppression order until 3 June 2024 at 4pm. However, no application has been made for a further order.

56 Given there is no evidence before the Court as to the need for a suppression order, I cannot take this issue any further.

[1] R v RK [2016] VSC 126 (Emerton J).

[2] R v RK [2016] VSC 126 (Emerton J).

[3] Re RK [2021] VSC 152 (Emerton JA).

[4] In the matter of an application for extended leave by RK [2022] VSC R322 (Hollingworth J).

[5] In the matter of an application for extended leave by RK [2023] VSC 339R (Champion J).

[6] NOM v DPP [2012] VSCA 198; (2012) 38 VR 618, [47] (Redlich and Harper JJA and Curtain AJA).

[7] [2022] VSC R322 [8]-[20].

[8] Including the Community Treatment and Transition team, his NDIS-funded psychologist, occupational therapist, support co-ordinator, and his GP.

[9] Rowel report [61]-[62], [66], and [71]-[72]; Walsh report [28].

[19] Rowel report [10]-[11] and [60].

[33] In the matter of an application by "RK" [2021] VSC 192 (Emerton JA).

[34] In the matter of an application for extended leave by RK [2022] VSC R322 (Hollingworth J).

[35] In the matter of an application for extended leave by RK [2023] VSC 339R (Champion J).