Re EN [2026] VSC 87 (4 March 2026)

2 Based on those opinions, at a consent mental impairment hearing on 6 November 2024, the parties agreed that I should find EN not guilty of murder because of mental impairment. I did. I also declared her liable to supervision under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ("the Act").

3 From 20 December 2024, with the consent of the parties, EN was the subject of a forensic remand order transferring her from prison to Thomas Embling Hospital. This was done so that EN might be assessed, treated and prepared ahead of what was expected to be her eventual release on a non‑custodial supervision order (an "NCSO").

4 Just short of 12 months later, on 8 December 2025, based on psychiatric evidence of her progress during that period, and a certificate of available services, the parties jointly submitted that EN should be released on an NCSO in accordance with specified conditions. I accepted that evidence and those submissions, and ordered that EN be released on an NCSO accordingly. Also consistently with the submissions of the parties and psychiatric opinion, I ordered that the matter be brought back to this Court for review in 12 months, and I made a non‑publication order concerning the identification of EN and her family.

5 While I daresay my reasons for making those orders were apparent to the parties at the time, I indicated that I would publish written reasons, in a de‑identified form, at a later date. These are those reasons.

Summary of consent mental impairment hearing (6 November 2024)

6 Before turning to EN's progress in the 12 months before her release on an NCSO, I shall summarise the events that led up to the killing of AB, as well as the proceedings at which I found her not guilty of his murder by reason of mental impairment.

7 EN was born in New Zealand in 1991. She was 31 when she killed her son, and is 34 now.

8 EN gave the following history of her early life to Dr Adam Deacon, who saw her on four occasions between 7 July and 6 September 2023.[1]

9 Her mother has Samoan heritage, but lived mostly in New Zealand. Her father is of Anglo‑Saxon heritage. Her parents and younger brother live in Auckland. Her older sister lives in Queensland with her partner and daughter. Her older brother lives with his partner in Sydney.

10 EN described her early childhood as "great". She fondly recalled enjoyable family holidays.

11 However, EN's parents developed marital problems during her early teens. Her father was verbally abusive to all family members. EN was called derogatory names and blamed if she tried to protect her mother. She felt anxious in response to her father's tirades. She feared that he would be physically abusive. She protected herself by avoiding confrontation and emotionally shutting down if her father yelled. She was exposed to her father's verbal abuse until she left home aged 21.

12 EN felt responsible for the care of her younger sister. Her parents discouraged her from obtaining a job, as she was expected to care for her sister instead. She resented her father's controlling nature.

13 EN attended primary and secondary school in Auckland. She completed Year 12 (although secondary school includes Year 13 in New Zealand). She performed below average throughout her schooling. She vaguely recalled receiving some remedial teaching aid in primary school. She was not required to repeat any school years.

14 EN was bright and active in her primary school years, but she was a timid and shy student who lacked self‑confidence in secondary school. She developed severe social anxiety around the age of 15. She struggled to make new friends, because she lacked confidence speaking. She was preoccupied with whether she would be judged and disliked. She felt persistently and pervasively anxious, most severely in social settings. She avoided leaving her home, fearing that she would be afflicted with more severe anxiety.

15 EN's anxiety manifested with prominent physical symptoms, including neck tightness, breathing difficulties, elevated heart rate, tremulous hands and cognitive difficulties whereby she felt that her mind was in a state of blankness.

16 EN's anxiety state was so severe that she intermittently avoided attending school. She sometimes truanted and hid without informing her parents. She feigned feeling sick so that her mother would be sympathetic and allow her to stay home. She hid in public toilets during the day before returning home.

17 EN's anxiety condition led to a secondary depression. She felt constantly sad and depressed. She experienced sleep difficulties. She felt hopeless, helpless and suicidal. She lay in bed constantly thinking of suicide, but struggled to identify a means of successfully achieving that outcome. She wanted to ensure she completed the task, rather than be left with a disability.

18 EN vaguely recalled attending a doctor when she was aged 15 for an assessment of her anxiety and depression. She was referred to a mental health clinician, but she avoided attending.

19 EN's family moved residence when she completed her schooling. She hoped her mental health would improve if she had a good diet and exercised. However, her mental health did not improve, and she mostly stayed home for a couple of years.

20 EN enrolled in a beauty course in the Auckland CBD. She left after a few months as a result of overwhelming anxiety.

21 EN attended a mental health service in 2012 aged 20 for a further assessment. She was assessed by a doctor in the company of her mother. She was reticent to disclose the extent of her depression and suicidality in her mother's company, so she mostly shared her anxiety problems. She was prescribed antidepressant medication and referred to a psychologist. She took a single dose of the medication before discarding it into a bin, as she worried that she might impulsively overdose. She vaguely recalled attending two sessions with the psychologist.

22 EN reported that her depression was persistent and severe in quality and intensity. She felt persistently low in mood. She felt that life lacked purpose and value. She struggled to sleep. She lacked energy. She was unable to enjoy life other than to a limited degree when she bushwalked or attended the beach. She felt hopeless and helpless. She was constantly afflicted with suicidal ideation. She thought of different ways she could commit suicide. She thought she would have done so, if she could have found a way that led to certain death. She had thoughts of jumping off an elevated carpark or cliff. She had thoughts of asphyxiation with a plastic bag over her head. She recalled feeling in this depressed state constantly, except for the odd week each year.

23 EN briefly lived with her aunty and considered enrolling in a course, but she felt unable to do so. She returned to live with her parents. She managed to complete two tourism courses over one to two years, hoping she might be able to travel to overcome aspects of her social anxiety. She then moved to live with her sister in the Auckland CBD. She worked in a shoe store for a few months, but left due to difficulties talking to customers. She then worked as a hotel housekeeper for a couple of years, but she felt so overwhelmed with stress and anxiety that she would not complete her tasks on time. She worked for a few months at a call‑centre, but left because she was unable to talk to prospective customers. Her sister had a child and consistently asked her to help, leaving her little time for herself. She was made to feel guilty if she spent time with her friends.

24 In 2016, EN and CD met on an online dating service in their native New Zealand. After a few months of messaging, the pair began going out, and they formed a relationship. They moved in together after another six months or so.

25 As we have seen, EN had a history of poor mental health dating back to her teenage years, which included social anxiety and suicidal ideation. However, her mental health appeared to improve when she met CD. Happily, the couple had a loving, caring and supportive relationship.

26 About a year into that relationship, EN fell pregnant. This was unplanned and unexpected. After some consideration of the financial strain that would come with having a child, EN and CD decided to continue with the pregnancy. Their son AB was born by emergency caesarean section in September 2019 at a hospital in Auckland.

27 EN found the demands of motherhood stressful and in some respects overwhelming. CD's parents, who lived nearby in Mount Wellington, cared for AB about once a week for one to two hours. EN's parents lived about an hour away, and they assisted with the care of AB about once a month.

28 Around September 2020, the young family moved into an address in a suburb of Auckland. EN's mental health deteriorated further at this new address, and she had suicidal thoughts.

29 In mid‑2022, CD was approached about a job opportunity in Melbourne. In July 2022, he travelled to Melbourne for a short trial period with his prospective employer, MZ. The trial led to an offer of employment. MZ arranged and paid for CD and his young family to fly to Melbourne. They arrived on 3 October 2022. MZ organised for long‑term accommodation for the family, and paid the bond along with three months' rent. They moved into that accommodation on 9 October 2022.

30 CD commenced full‑time employment with MZ a few days later, while EN stayed at home as a full‑time carer for their son.

31 EN and CD were apprehensive about moving to Melbourne because of the lack of family support here, but they made the decision to relocate in pursuit of CD's employment opportunity.

32 MZ took steps to ensure that CD and his young family felt supported and provided for. For example, he offered financial support if it was needed. He also included them in family and social events. For example, CD, EN and AB spent both Christmas Day (in 2022) and Saint John's Day (20 January 2023) celebrating at the family home of MZ.

33 I turn now to the days preceding the death of AB.

34 On Wednesday 1 February 2023, AB attended his first day of kindergarten.

35 On the morning of Saturday 4 February 2023, EN had a medical appointment with her GP at which the results of her recent liver scan were discussed. Despite having had persistent thoughts of harming AB for "a week or a couple of weeks", she did not discuss this with the GP. Nor did she inform the doctor about her mental health difficulties.

36 Later that Saturday, EN, CD and AB went on an outing to Flinders Peak.

37 On the Sunday, they went on an outing to the Great Ocean Road, including to the Red Wood Forest walk, and to Hopeton Falls. They arrived back home at around 8:30 p.m.

38 CD did not observe any behaviour in EN that was unusual or out of character over the course of the weekend.

39 On Monday 6 February 2023, CD woke up at around 7:30 a.m. AB was asleep in his room, and EN was still in bed, but awake. CD spoke briefly to EN before leaving for work at about 7:48 a.m.

40 Shortly afterwards, EN heard AB was awake, and she got up to tend to him at around 8:00 a.m. She noticed he had a dirty nappy, which she changed.

41 EN later told police she had been having thoughts of harming AB for a week or two. It was alleged by the prosecution that, upon waking that morning, she had firm thoughts of killing him. The defence submitted that the better view of the evidence was that she did not form that intention until moments before she drowned her son. In my view, it made no meaningful difference in the scheme of things.

42 After EN had changed AB's nappy, she put him in the bath. She left him there playing with his toys, and paced up and down the house thinking of drowning him. She later told police she was going to kill him then, but decided not to.

43 She then got him out of the bath and sent him outside to play. She also gave him some food. She continued to ruminate about killing him.

44 While EN had fleeting thoughts of self‑harm during the morning, she was preoccupied with thoughts of killing her son, and did not engage in any self‑harm or give serious thought to self‑harm or suicide.

45 At about 10:40 a.m., EN topped up the bath with water, and called AB back inside. By then, she had decided to kill him. She told him that he had to have another bath because she had fed him, but the truth was that she wanted to drown him.

46 When AB got into the bath, EN held him under water. While she was doing this, she considered stopping, but thought it would be worse because he would be brain‑damaged. So, instead, she persisted until he drowned.

47 She said that AB initially struggled against being held under the water, including by attempting to push up against her hands, arching his back, and kicking his legs. He vomited and defecated. Then he became still.

48 After AB died, EN paced around the house. She left him in the bath full of water, which was dirty now, for a couple of hours. Later, she said that she left him in there because she wanted him to die, but she wished it had been her instead.

49 She wrote several notes which she left on the kitchen bench, including a note concerning AB's full name, date of birth and other details. She also wrote in a notebook the names and contact details of her own family and CD's family members. Another note said, "[CD], I'm so sorry for what I've done, and I love you so much."

50 After about two hours, she drained the bath of the dirty water. She saw that there was blood and foam coming out of AB's nose. She washed his body and his hair. She brushed his hair and washed him again because there was lint from the towel on his body. While cleaning him, she hugged him a few times. She also checked his pulse, but said it was already too late, and if she tried to bring him back, it would be "not good".

51 At 12:59 p.m., she sent CD a message on Facebook Messenger detailing various family contact details. At 3:49 p.m., she sent a further message to CD saying, "[CD], I'm so sorry for what I've done, and I love you so much." CD did not see these messages until later.

52 At 4:09 p.m., EN rang triple‑zero. She confessed to the operator that she had drowned her son.

53 When police and paramedics arrived at 4:17 p.m., EN told them she had killed her son. She directed them to the bath, where they found AB. He showed no signs of life, and was declared deceased at 4:22 p.m.

54 Police cautioned EN, explained her rights, and arrested her for the murder of her son.

55 EN repeatedly expressed concern that her family, and CD and his family, should be notified of what had occurred and that her apologies be conveyed to them.

56 When in the police car, and later when formally interviewed at the police station, EN confessed again that she had drowned her son. She explained that she had wanted to kill herself but had not been able to find a way to do it. She described herself as a bad mum. She said she loved AB but hated being a mum and was worried that he would probably grow up horrible, even though he had a great dad. She explained that she had had problems with anxiety and her mental health since she was 15.

57 EN also confessed that she had tried to drown AB on 9 October 2020, but had stopped part way through. He was vomiting and looked swollen. She had never told anyone about this. She believed that this had caused AB chronic health issues. She took AB to a scheduled appointment with the doctor three days later, but she did not raise the incident, nor did the doctor raise any concerns about his health.

58 At the conclusion of the formal interview, EN was charged with murder. She remained in custody continuously at the Dame Phyllis Frost Centre until soon after the consent mental impairment hearing, after which, as we shall see, she was transferred to Thomas Embling Hospital.

59 I turn now to the psychiatric evidence received at the consent mental impairment hearing. Three psychiatrists - Dr Deacon,[2] Dr David Batten[3] and Dr Adam Martin[4] - considered the materials, examined EN, and provided reports. A fourth psychiatrist - Dr Danny Sullivan - did not examine EN but considered the materials, as well as the three reports of the other psychiatrists, and provided his own report as well.[5]

60 In these reasons, it is convenient to adopt, in the main, Dr Sullivan's summaries of the opinions of the other psychiatrists.

62 He noted that EN "struggled to cope when she was placed in a position to openly discuss the offence"; that she "sought to delay the assessment of the offence in the second session"; and that she was "visibly distressed and transiently overwhelmed when the offence was explored in detail".

63 Dr Deacon detailed EN's self‑report of her mental health and family upbringing, which we have seen earlier. He described her as not having previously had a relationship before CD due to anxiety, having not obtained a driver's licence due to anxiety, feeling criticised by her family and CD's mother, feeling lonely and isolated, avoiding school, and experiencing features of anxiety and depression. She described increasing preoccupation with suicide prior to killing AB, which was prominent in the days before the drowning.

64 Dr Deacon had access to Justice Health medical records. He considered that EN met diagnoses of generalised anxiety disorder, social anxiety disorder, persistent depressive disorder, and major depressive disorder. He considered that she had "vulnerable personality traits, including detachment, negative affect, avoidance and dependency". He considered that she experienced anxiety and depressive symptoms from mid‑adolescence and had persistent suicidal ideation which abated temporarily in the context of a relationship with CD developing. He considered that she would have met a diagnosis of post‑natal depression.

65 Dr Deacon opined that, at the time of the killing, EN was experiencing a range of depressive and anxious disorders on a background of personality vulnerabilities, and that her capacity to think clearly and rationally at the time of the offence and exercise reasonable judgement was significantly compromised. He considered the killing to represent altruistic filicide, and he supported a mental impairment defence.

66 He considered that, after killing AB, EN was "likely shocked to the extent that she was unable to process the gravity of her conduct".

67 I also heard viva voce evidence from Dr Deacon at the hearing on 6 November 2024, affirming the opinions he gave in his report.

68 Dr Batten was a senior psychiatry registrar. His report was prepared under the supervision of consultant forensic psychiatrist, Dr Elena Bhattacharya, at the request of the Office of Public Prosecutions through Forensicare. Dr Batten assessed EN for 130 minutes on 28 November 2023 by video‑conference to the Dame Phyllis Frost Centre.

69 Dr Batten considered that EN met diagnoses of major depressive disorder and generalised anxiety disorder. He questioned whether she met the criteria for avoidant personality disorder but noted avoidant personality traits and also reported features of dissociation, falling short of a diagnosis of dissociative disorder. He did not consider she had a psychotic disorder.

70 He considered that EN's motivation for killing AB was negative, with suicidal thoughts extending to incorporate her son, and that, consequently, she killed AB to avoid him suffering in life as she did. He opined that she would have a defence of mental impairment available to her.

71 At the hearing on 6 November 2024, Dr Bhattacharya gave viva voce evidence confirming the opinions of Dr Batten.

72 A further report was prepared at the request of the Office of Public Prosecutions by consultant forensic psychiatrist Dr Martin. He interviewed EN for two hours at the Dame Phyllis Frost Centre on 17 April 2024.

73 Dr Martin considered that EN was "severely depressed" leading up to the alleged offending. Her symptoms would have "merited a diagnosis of major depressive disorder", and she "would have been experiencing a comorbid anxiety".

74 He referred to video footage of her police interview and considered that, at the relevant time, she was likely experiencing dissociation. He considered that she was concerned about the potential for her son to have a difficult life due to her depressive symptoms.

75 Dr Martin considered the possibility of an alternative self‑serving formulation (that is, that her own life would be better with her son being dead), instead of the altruistic formulation. However, he discounted the likelihood of this and preferred instead the following view:[6]

I take the view that she most likely took the life of her son ... in the context of highly disordered judgment where she was experiencing sustained feelings of hopelessness, worthlessness and guilt, and where she projected nihilistic feelings onto her son, and likely believed that he was better off dead. Her highly disturbed mental state likely had evolved over time, with numerous factors relevant, including a genetic loading for depression, experience of developmental trauma, sustained depressive phenomena, feeling isolated and where she had impaired coping capacity.

76 Dr Martin considered that, even if the alternative is considered (i.e., the "self‑serving" motivation), this:[7]

clearly would also have been illogical and irrational, and in my mind, evidence in itself of highly disturbed thought processes arising from a major mental illness, and not negating the issue of mental impairment.

77 Dr Martin considered that a defence of mental impairment was available to EN.

78 It is convenient to extract the conclusionary part of Dr Sullivan's report, almost in full:[8]

[41] [EN] had no formal mental health history - that is, she had not previously seen a psychiatrist or psychologist and had not had contact with mental health services. However, review of her primary care files from Australia and New Zealand demonstrates a pattern of somatic complaints for which no physical cause had been identified, including neurological, gastrointestinal and genital urinary symptoms. Her health concerns suggest that she may suffer an illness anxiety disorder or a somatic symptom disorder, as set out in the [DSM‑5]. These conditions reflect a morbid preoccupation with health concerns that are not clearly founded in disorders of physical health. Alternatively, her concerns about health may have been an element of depressive and anxiety disorder manifest in a negative focus on her health with marked distress.

[42] [EN] described a long history of anxiety and avoidance which has likely influenced her interaction with healthcare providers. The expert reports suggest that this was manifest in multiple domains of her life and was relevant to her not having sought help for low mood and not having disclosed thoughts of suicide or of harming AB before the alleged offence.

[43] After the death of her child, [EN] appeared unnaturally [calm] in discussing the events. Several clinicians subsequently considered she had significant dissociative features which persisted for weeks after the alleged events. Dissociation here reflects [EN] being detached from her emotions and is considered in mental health to reflect a defence mechanism which in some people occurs at times of intolerable stress or distress.

[44] [EN] has subsequently described a range of significant negative cognitions about her capacity to parent and the prognosis of her health issues, and expressed profoundly pessimistic views about the future of her son. Her concerns about his future appeared to reflect an irrational extension of her beliefs about herself to him. In the absence of my own assessment, there are grounds to consider these as poorly formed delusional beliefs, overvalued ideas or depressive cognitions. I note that the experts all described her aberrant and preoccupying beliefs but did not describe these as delusional in form.

[45] There was no indication of other psychotic phenomena including hallucinations or overt delusional beliefs. She consistently described nihilistic, pessimistic and suicidal thoughts and a range of depressive symptoms at the time of the killing of her son. These persisted after remand into custody and both antidepressant and psychological treatments were commenced.

[46] After reception into custody, suicidal ideation continued, and it appears that over some weeks her understanding of her actions developed. Psychological notes reflect her growing insight and the return of more rational thinking about what she had done as well as the growing realisation that she had done the wrong thing, whereas at the time of her actions she believed that her actions were justified.

[47] Each of the experts agrees that she understood the nature and quality of her conduct.

[48] Each of the experts considers that a mental impairment defence is available to her. I note that they do so for slightly different reasons.

[49] Dr Martin considered that, due to severe depression, "her judgment was significantly clouded by distorted cognitions and feelings of nihilism, hopelessness, shame, guilt and worthlessness."

[50] Dr Deacon considered that, although [EN] "may have retained some understanding that the conduct constituting the offence was wrong", "[her] reasoning at the time of the offence was significantly compromised, and overrode any vestiges of clarity that the conduct was wrong", "[and she] reasoned that [AB] would benefit from being killed, as it would relieve him of future suffering".

[51] Dr Batten considered that negative beliefs about herself - "that her life was torture and suicide was the only means of escape" - "gradually expanded to incorporate [AB]" and "[she] became convinced that he would suffer in life, as she did, and wanted to spare him from this".

[52] The experts unanimously considered that, [at] the time she drowned [AB], [EN] was unable to reason with a moderate degree of sense and composure about the wrongfulness of her conduct.

[53] I agree with this conceptualisation of her motive. All other evidence suggests a strong attachment and a loving parenting relationship. There was no indication of disordered attachment or of critical, harsh, punitive or abusive interactions with [AB]. Medical records are consistent with a "normal" pattern of medical attendance, immunisation and help‑seeking for the child.

[54] There is no indication of any relational difficulties which may provide a motive by which [EN] sought to punish [CD] by killing his son. Despite the absence of overtly psychotic beliefs, such as delusions or hallucinations, I consider that the preponderance of evidence supports the profound irrationality of her actions. These were based on her erroneous and distorted views of her own health status, capacity to mother, but most importantly, repeatedly expressed [concern] that [AB's] life would be awful and that she was saving him from this.

[55] In my opinion, the materials support a clear diagnosis of a depressive disorder with overlapping anxiety symptoms, the likelihood of abnormal personality traits or vulnerabilities. I consider this forms a cogent basis for a mental impairment defence due to [EN's] inability at the time to reason about the wrongfulness of her conduct. She has since reportedly developed at least some insight into the wrongfulness of her conduct.

[56] I did not consider there to be clear grounds to dispute the opinions of each of the three experts who have assessed [EN].

79 Dr Sullivan reiterated that he considered that a defence of mental impairment was available to EN.

Submissions at consent mental impairment hearing

80 At the hearing on 6 November 2024, Mr Gibson KC, who appeared with Ms Taylor for the Director of Public Prosecutions, and Mr Matthews SC, who appeared with Ms Ballard for EN, both submitted that I should accept the psychiatric evidence, find that the defence of mental impairment is established, and, in consequence, direct a verdict of not guilty because of mental impairment.

81 Having considered all of the evidence before the Court, including the unanimous and uncontradicted opinions of the four psychiatrists, and the submissions of counsel, I was satisfied that, at the time EN intentionally killed her son, she was suffering from a mental impairment. This mental impairment had the effect that she did not know that her conduct was wrong (that is, she could not reason with a moderate degree of sense and composure about whether her conduct, as perceived by reasonable people, was wrong).[9]

82 Accordingly, pursuant to s 20(1)(b) and (2) of the Act, I found EN not guilty of the murder of AB because of mental impairment. And, pursuant to s 21(4)(a) of the Act, I directed that a verdict of not guilty because of mental impairment be recorded.

83 Mr Matthews accepted Mr Gibson's submission that, instead of being released unconditionally under s 23(b) of the Act, EN should be declared liable to supervision under Part 5 of the Act, in accordance with s 23(a). I made that declaration.

84 In conformity with the submissions of the parties, I also made orders:

a) pursuant to s 41 of the Act, directing the Secretary to the Department of Justice and Regulation to arrange a report by a registered medical practitioner on the mental condition of EN, including a diagnosis and prognosis of her condition, her response to treatment, and any suggested treatment for managing her condition, and have the report filed with the Court on or before 16 December 2024;

b) pursuant to s 47, directing the Secretary to the Department of Health and Human Services, by or before 16 December 2024, to provide the Court with a certificate of available services in respect of this matter;

c) pursuant to s 24(1)(c), remanding EN in custody in prison and directing her to appear at this Court on 19 December 2024;

e) pursuant to s 75, prohibiting publication of information that might enable the identification of EN and her family.

85 On 13 December 2024, the Court received a report authored by psychiatrists Dr Voharika Gardiyawasan and Dr Asiri Rodrigo, recommending that there be a six‑to‑nine‑month period of treatment of EN at Thomas Embling Hospital under a "forensic remand order" (meaning, an order under s 24(1)(b) of the Act) in order to prepare her for discharge on an NCSO. The Court also received a certificate of available services declaring that Thomas Embling Hospital had the facilities and resources necessary to provide inpatient treatment to EN from 19 December 2024 for a period of six months.

86 On 19 December 2024, the matter returned to this Court. At that hearing, in conformity with the submissions of the parties, I made orders the following day, in chambers, adjourning the matter to 16 June 2025 and remanding EN to Thomas Embling Hospital for that period, consistently with the recommendations of Dr Gardiyawasan and Dr Rodrigo.

87 On 10 June 2025, the Court received a report by psychiatrist Dr Karthik Sheshachala recommending that EN continue to be remanded at Thomas Embling Hospital for three to six months in order to continue preparing her for eventual discharge on an NCSO. Again, the Court received a certificate of available services declaring that Thomas Embling Hospital had the facilities and resources necessary to provide inpatient treatment to EN from 16 June 2025 for a period of six months.

88 On 16 June 2025, upon the return of the matter, again in conformity with the submissions of the parties, I made orders adjourning the matter to 8 December 2025 and remanding EN to Thomas Embling Hospital for that period, consistently with the recommendations of Dr Sheshachala. I also made orders directing the Secretary to the Department of Health to provide an updated report on EN's progress and a certificate of available services.

Evidence at hearing to determine form of supervision order (8 December 2025)

89 Prior to the hearing on 8 December 2025, pursuant to the orders made on 16 June 2025, the Court received a second report from Dr Sheshachala, in which he recommended that EN be placed on an NCSO (with conditions). The Court also received a certificate of available services declaring that the necessary services were available to release EN on an NCSO.

90 At the hearing on 8 December 2025, both parties submitted that, based on Dr Sheshachala's second report and the certificate of available services, I should release EN on an NCSO (with the conditions recommended), with a review period of 12 months. Both parties also submitted that there should be a non‑publication order.

91 Before turning to his second report, it is instructive to reproduce Dr Sheshachala's conclusions from his first report,[10] which was received ahead of the hearing on 16 June 2025:[11]

[135] [EN's] presentation is consistent with a DSM‑5TR diagnosis of major depressive disorder, recurrent episode, severe (code 296.33), along with features of generalised anxiety disorder (300.02). Though some of the symptoms associated with [the] loss of her son may overlap with features of depression, such as intense sadness, rumination about the loss, insomnia, poor appetite, and weight loss, these symptoms were peripartum in onset and present before the index offence. Similar diagnostic impressions have been formed by her treating team and previous psychiatrists who have assessed her for court [reports].

[136] Previous court reports suggest the possibility of [a] yet to be diagnosed avoidant personality disorder and possible somatic symptom disorder, which are reasonable alternative explanations for [EN's] presentation, however, warrant further assessment before a definitive diagnosis can be assigned.

[137] Moreover, [EN's] clinical picture is dominated by complicated grief: she experiences unremitting yearning for her son, ruminates incessantly on his death, perceives life as devoid of meaning without him, and alternates between fixating on reminders of [her son] and attempts to avoid any cue linked to his memory.

[138] Over five months, [EN's] psychiatric state has transitioned from acute, grief‑driven anxiety and self‑harm risk to more stable mood and functional incremental progress through structured leaves. She remains vulnerable to situational suicidal ideation (particularly around grief reminders) but has demonstrated improved coping (box breathing, sensory tools) and gradual tolerance of environmental stressors.

[139] [EN] has made measurable therapeutic gains in medication adherence and clinical stability (psychiatry); acquisition of coping skills, grief processing (initial stages), and risk‑management strategies (psychology); improved community navigation and functional independence (occupational therapy); consistent engagement in therapeutic and leisure programs (nursing); and active pursuit of housing and legal advocacy (social work).

[140] Family involvement (partner [CD], Bouverie therapy) and social supports (Salvation Army, WAM) are strengthening her discharge plan.

[141] Pending benchmarks include eight consecutive weeks of unescorted leave without incident, confirmed stable two‑bedroom accommodation, and finalisation of community mental health linkages, following which [EN] should be ready for safe community transition.

[142] However, she remains within an avoidant coping style that necessitates extended, supervised, stepwise community exposures. Without confirmation of safe, unescorted leave outcomes, secured housing, and formalised community supports - including ongoing psychotherapy and CCU or local area mental health and wellbeing service linkage - the risk of relapse into severe anxiety, decompensation, or self‑harm remains unacceptably elevated.

[143] Accordingly, we request his Honour for a three‑to‑six‑month extension of forensic remand to:

> Allow completion of unescorted leave benchmarks, demonstrating [EN's] ability to navigate community settings safely under minimal supervision;

> Finalise stable, appropriate housing arrangements - whether via CCU placement, transitional supported housing, or independent rental - before community discharge;

> Consolidate [EN's] safety plan across inpatient, leave, and community contexts, including documented involvement of [her] partner and outpatient providers;

> Facilitate formal introduction to community‐based psychological services (e.g., area mental health and wellbeing service, private forensic/clinical psychologist) for seamless handover upon community transition; and

> Ensure [EN's] legal and visa statuses are resolved (via Refugee Legal and relevant agencies) to avoid destabilising deportation events in early community reintegration.

[144] A longer remand will enable the multidisciplinary team to provide clear and objective evidence that [EN] can achieve and sustain safe functioning in the community. It will also provide an opportunity to prepare [EN] for a potential transfer to an NCSO, should the ... court consider this an appropriate disposition in future.

92 In his second report,[12] Dr Sheshachala reached the following conclusions regarding EN's risk of interpersonal violence and her risk of suicide or self‑harm:[13]

[54] [EN's] static risk profile anchors her baseline risk [for interpersonal violence] as [moderate], but robust clinical improvement and layered community supports have shifted her acute risk to low-moderate. Her potential long‑term risk is moderate, should the supports collapse.

[55] With the above conditions in place, supervised release under an NCSO is a proportionate and safe next step. Ongoing multidisciplinary oversight remains critical to prevent relapse in the context of foreseeable stressors (grief anniversaries, partner's workload, immigration uncertainty).

...

[62] ... [Her] current suicide/self‑harm risk is best described as low‑moderate - manageable within community, provided a periodic review of mood/anxiety levels, especially around anniversaries, occurs, [EN] continues engagement with therapy and mentoring and receives periodic reinforcement of crisis‑response steps during each review; and has mechanisms for a prompt clinical re‑assessment if insomnia, grief‑related rumination, or feelings of hopelessness re‑emerge. Without these measures, [EN's] risk of suicide remains at a level warranting close monitoring and coordinated intervention.

[63] A supervisory framework like [an] NCSO is the least restrictive way to facilitate care coordination smoothly among the different stakeholders involved in [EN's] care.

93 Dr Sheshachala went on to summarise his concluding opinions in these ways:[14]

[65] [EN's] presentation is consistent with a DSM‑5TR diagnosis of major depressive disorder, recurrent episode, severe (code 296.33), along with features of generalised anxiety disorder (300.02). More recently, an evaluation to diagnose ADHD was undertaken, with the results pending at the time of this report.

[66] Over the past 11 months, [EN's] psychiatric state shifted from acute grief‑related anxiety and self‑harm risk to a more stable mood and residual anxiety, with incremental progress through structured leaves. At the same time, she remains vulnerable to situational suicidal ideation, especially around grief.

[67] [EN] has completed more than eight consecutive weeks of unescorted leave without incident. She shows improved coping (box breathing, sensory tools) and demonstrated safety during her off‑campus leaves, tolerating environmental stressors effectively.

[68] Significant progress has been made in securing a safe discharge destination - confirmed stable two‑bedroom private rental accommodation ..., that has been assessed for safety by the MDT, and [EN] has had a total of 16 uneventful overnight leaves to this accommodation in the past six months, while demonstrating safety and effectively navigating stressful situations in the community.

[69] Clinically, she has tolerated her medications well, with no emergent side effects and a progressive decline in anxiety episodes, absence of active suicidal ideations and an improvement in depressive cognitions and return of hope.

[70] Psychologically, she has assimilated emotion‑regulation strategies (TIPP, PMR, paced breathing) and consistently applies them during exposure‑based activities, as evidenced by her successful completion of 16 overnight leaves without incident.

[71] Occupationally, she has compiled a current CV, secured an Access Travel Pass, and participated meaningfully in multiple group‑based activities, demonstrating improved social cognition and community living skills.

[72] Family engagement - via regular contact with her partner and family members, family therapy sessions and formal family meetings - has consolidated relational supports and clarified roles for crisis assistance.

[73] [EN's] community mental health linkages have now been finalised. [EN] was referred to and accepted by [a] community team of [an] AMHS for voluntary case management.

[74] [EN] has been linked with a community GP who has created a mental health care plan for [her] in collaboration with the Barossa team. As per this plan, [EN] has been linked with a community psychologist, closer to her future residence, who will continue her psychological work, with their first session scheduled for 2 December 2025. This is a significant progress given difficulties faced by [EN] in accessing National Disability Insurance Scheme and Centrelink benefits due to her immigration status.

[75] Collectively, these developments indicate that acute risk factors have receded, protective structures are now in place, and [EN] presents as clinically stable, insight‑oriented, and ready for the planned transition to supervised community care under [an] NCSO.

[76] The [relevant] Regional Forensic Mental Health Services ["RFMHS"] of Forensicare will supervise [EN] upon her discharge from the hospital, if placed on an NCSO. A review has been scheduled with [EN] on 26 November 2025, in preparation for her discharge and to establish a therapeutic alliance.

[77] Therefore, if the ... court considers placing [EN] on an NCSO, which represents the least restrictive option to safely manage her mental health and well‑being needs and her risks, I would be supportive of the same, for the reasons mentioned above.

[78] Should the ... court consider granting an NCSO for [EN], the proposed conditions are appended to this report.

[79] Given relative stability, consistent engagement with treatment, and the community mental health supports in place, a 12‑month review period is reasonable.

94 Dr Shashachala proposed the following conditions on the NCSO:

[1] That [EN] be under the supervision of the Authorised Psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH) or their delegate.

[2] That [EN] resides in a location known and approved by the Authorised Psychiatrist of the VIFMH or their delegate.

[3] That [EN] abides by the lawful directions of the Authorised Psychiatrist of the VIFMH or their delegate.

[4] That [EN] complies with treatment, testing and attends appointments as directed by the Authorised Psychiatrist of the VIFMH or their delegate.

[5] That [EN] abstains from the abuse of alcohol and the use of illicit drugs.

[6] That [EN] does not leave the State of Victoria without the written permission of the Authorised Psychiatrist of the VIFMH or their delegate.

95 An NCSO is a supervision order that releases a person into the community on conditions decided by the Court and specified in the order.[15]

96 Section 39(1) of the Act requires that, in deciding whether to make a supervision order, which includes an NCSO, this Court "must apply the principle that restrictions on a person's freedom and personal autonomy must be kept to a minimum consistent with community safety".

97 The Court must also have regard to the matters set out in s 40(1), which are as follows:

(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 [herself], another person, or other people generally because of 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.

98 In NOM v DPP & Ors, the Court of Appeal explained the considerations in ss 39 and 40 in this way:[16]

[47] 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.

99 While a supervision order - and therefore an NCSO - is for an indefinite term,[17] the Court must set a nominal term, which, in this case, is 25 years.[18]

100 Further, when making a supervision order, the Court may direct that the matter be brought back for review at the end of the period specified.[19]

101 The making of non‑publication orders is governed by s 75(1) of the Act, which incorporates a public interest test. Such an order may be made on the application of a party or on the Court's own initiative.[20] The provision is flexible enough to allow publication of a judgment about a matter where the forensic patient is described in a way that suppresses his or her identity, should it be in the public interest to do so. It is that type of order that is sought here.

102 I turn now to my conclusions, commencing with the form of supervision order to impose on EN.

103 Realistically, in a case like the present, there are only two alternative options presented by s 26(1) of the Act: either committing EN to custody at Thomas Embling Hospital on a CSO[21] or releasing her on an NCSO on conditions.[22]

104 Neither party submitted that I should impose a CSO, and the evidence does not support such an order. Indeed, that course is inconsistent with the evidence of Dr Sheshachala, which I accept. To impose a CSO would pay no or insufficient regard to the considerations in paragraphs (c), (d) and (e) of s 40(1). This is because the gist of Dr Sheshachala's evidence is that, if released on an NCSO, EN would not be likely to endanger herself or others and that there are adequate resources available for the treatment and support of EN in the community. Further, to impose a CSO would be to act inconsistently with the principle in s 39(1) - that restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community. Thus, a CSO is both unnecessary for community safety and would unduly infringe EN's freedom and personal autonomy. I am therefore satisfied that I should not impose a CSO.

105 That leaves only an NCSO, the making of which the evidence plainly supports. In fact, the evidence is all one way, is uncontradicted, and is compelling.

106 As we have seen, Dr Sheshachala considers that "robust clinical improvement and layered community supports have shifted [EN's] acute risk [of interpersonal violence] to [a] low‑moderate" level, and her "current suicide/self‑harm risk is [also] best described as low‑moderate". Her "psychiatric state has shifted from acute grief‑related anxiety and self‑harm risk to a more stable mood and residual anxiety". She has safe discharge accommodation. She has tolerated her medications well. Psychologically, she has "assimilated emotion‑regulation strategies", and she consistently applies them during exposure‑based activities. She has improved social cognition and community living skills. Her family engagement has consolidated her relational supports and clarified roles for crisis assistance. Her community mental health linkages have been finalised. Upon her release, she would be supervised by an RFMHS of Forensicare. Collectively, in Dr Sheshachala's opinion, these developments indicate that "acute risk factors have receded, protective factors are now in place, and [EN] presents as clinically stable, insight‑oriented, and ready for the planned transition to supervised community care under [an] NCSO".

107 As I have said previously,[23] it is, of course, for the Court, not psychiatrists, to make findings of fact and to determine whether to make an order under the Act, including an order releasing a person on an NCSO. But judges are not psychiatrists. Yet much of what is in issue in cases of this nature turns on matters of psychiatry. The Court's findings of fact, and its determinations, are necessarily very much informed by the opinions of the relevant psychiatrists when those opinions are well‑reasoned and convincing, come from experienced, well‑qualified and responsible professionals who have been involved in the treatment or assessment of a forensic patient, and are not contradicted by other evidence. I consider those to be the characteristics of Dr Sheshachala's opinions, and that I should act on his evidence.

108 In light of all the evidence, including that of Dr Sheshachala, I am satisfied that, if released on an NCSO with the proposed conditions attached, EN would not be likely to endanger herself or others. I am also satisfied that there are adequate resources available for the treatment and support of her in the community. Further, I accept that to release her on an NCSO would be to act consistently with the principle in s 39(1).

109 Accordingly, I am satisfied that EN should be released on an NCSO with the conditions proposed in Dr Sheshachala's second report.

110 I am also satisfied that there should be a review of the NCSO, and that that should occur in 12 months' time. This will allow EN time to familiarise herself with her NCSO, and for the experts, and then the Court, to assess her progress. This time frame is also in line with the submissions of both Ms Taylor and Mr Matthews, and with Dr Sheshachala's recommendation.

111 Accordingly, I shall direct that the matter be brought back to this Court for further review within 12 months.

112 Previously, there was a non‑publication order prohibiting publication of any identifying information related to EN and her family. The basis for making that order was the risk that publication of EN's identity may destabilise her and thwart her recovery, or perhaps worse.[24]

113 I am satisfied that a non‑publication order is all the more necessary in the public interest now. This is because EN will be living full‑time in the community, which in turn will create a greater opportunity for identification of her and, thereby, a greater risk that her mental health might deteriorate in consequence.

115 It is for the foregoing reasons that I made the following orders at the conclusion of the hearing on 8 December 2025:

1. Pursuant to s 26(2)(b) of the Act, EN is released on a non‑custodial supervision order ("NCSO"), subject to the following conditions:

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

b. that EN reside at a location known and approved by the authorised psychiatrist of the VIFMH or their delegate;

c. that EN abide by the lawful directions of the authorised psychiatrist of the VIFMH or their nominee;

d. that EN comply with treatment and testing, and attend appointments, as directed by the authorised psychiatrist of the VIFMH or their nominee;

e. that EN abstain from the abuse of alcohol and the use of illicit drugs; and

f. that EN 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 of the VIFMH or their delegate).

2. Pursuant to s 27(1) of the Act, the NCSO is for an indefinite term.

3. Pursuant to ss 28(1), (3)(a), (4) and (5) of the Act, the nominal term of the NCSO is 25 years, and that nominal term runs from 6 February 2023.

4. Pursuant to s 27(2) of the Act, the matter is to be brought back to this Court for review on 7 December 2026.

5. Pursuant to s 75 of the Act, until further order, publication of the following is prohibited:

a. the names and addresses, or former addresses, of EN, the deceased and their relatives; and

b. any information which might identify the names and addresses, or former addresses, of EN, the deceased and their relatives, except in so far as such information is contained in a de‑identified form in the Court's written reasons for judgment.

[1] Report of Dr Deacon (17 September 2023) at pp 2‑3.

[2] I referred to Dr Deacon's report (of 17 September 2023) earlier. See above. Dr Deacon also provided a letter (dated 25 October 2023) concerning his opinion that media coverage would be likely to impact on EN's mental health, and it could be significant. He noted that she has been susceptible to experiencing suicidal ideation, particularly when overwhelmed with anxiety.

[3] Dr Batten's report was dated 4 January 2024. He interviewed EN by video‑link on 28 November 2023.

[4] Dr Martin's report was dated 12 May 2024. He interviewed EN at the prison on 17 April 2024 over two hours.

[5] Dr Sullivan's report was dated 9 September 2024.

[6] Report of Dr Martin (12 May 2024) at [55].

[7] Report of Dr Martin (12 May 2024) at [56].

[8] Report of Dr Sullivan (9 September 2024) at [41]‑[56].

[9] See s 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried Act 1997 (Vic).

[10] Dr Sheshachala's first report (2 June 2025) was supervised by Dr Sobia Khan, Consultant Forensic Psychiatrist, Director of Clinical Services, Community Forensic Mental Health Service, Forensicare.

[11] Report of Dr Sheshachala (2 June 2025) at [135]‑[144].

[12] Dr Sheshachala's second report (19 November 2025) was supervised by Dr Mark Ryan, Consultant Forensic Psychiatrist, Acting Director of Clinical Services, Community Forensic Mental Health Service, Forensicare.

[13] Report of Dr Sheshachala (19 November 2025) at [54]‑[55] & [62]‑[63] (emphases in original).

[14] Report of Dr Sheshachala (19 November 2025) at [65]‑[79] (emphasis in original).

[15] See s 26(2)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

[16] NOM v DPP & Ors [2012] VSCA 198; (2012) 38 VR 618 at 633[47] (per Redlich and Harper JJA and Curtain AJA) (footnotes omitted).

[17] See s 27(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

[18] See s 28(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

[19] See s 27(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

[20] See s 75(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

[21] Pursuant to s 26(2)(a)(i) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

[22] Pursuant to s 26(2)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

[23] See, e.g., Re HWJ [2015] VSC 170 at [124].

[24] See, e.g., the opinion of Dr Deacon in his letter (dated 25 October 2023), as set out in footnote 2, above.