Re Kozarov [2025] VSC 439 (22 July 2025)

2 The application is not opposed by the Secretary to the Department of Health ('the Secretary') and the Attorney-General.

3 I heard the application on 16 July 2025 and made orders that the NCSO be revoked on 22 July 2025. These are my reasons.

4 On 6 February 2015, Mr Kozarov killed his father in the context of paranoid and persecutory delusions arising from poorly-treated schizophrenia.

5 Following a hearing pursuant to s 21(4) of the Act in which a verdict of not guilty of murder by reason of mental impairment was entered, on 20 January 2016, Mr Kozarov was made subject to a custodial supervision order ('CSO') with a nominal term of 25 years.[1] In May 2024 I granted an application varying the CSO to the current NCSO.

6 I refer to my written reasons in that application for a more fulsome history of the matter, including the personal and psychiatric history of the applicant.[2]

7 Pursuant to s 33(1) of the Act, on an application for revocation of an NCSO, the Court must either confirm the order, vary its conditions, vary the order to a CSO, or revoke the order.

8 In exercising this discretion, the Court must have regard to the factors set out at s 40(1) of the Act, being:

(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.

9 The Court's discretion must also be balanced against the principle of parsimony set out in s 39(1) of the Act - that is, restrictions on a person's freedom and personal autonomy should be kept to the minimum that is consistent with community safety.

10 In NOM v Director of Public Prosecutions,[3] the Court of Appeal considered the meaning of 'endanger' for the purposes of s 40(1)(c) of the Act. While 'serious endangerment', referred to elsewhere in the Act, takes into account the gravity of harm that might result, 'endangerment' is concerned with the likelihood of harm materialising.[4] The Court of Appeal explained:

Endangerment is about the risk of harm. The gravity of the harm may be relevant to assessing the nature of the risk, but the probability of any risk, be it high or low, is the critical concept of endangerment.[5]

11 In relation to the interplay between s 39 and s 40(1), the Court of Appeal stated:

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.[6]

12 Given a supervision order constitutes a significant restriction on an individual's liberty and autonomy, it cannot be justified unless determined to be necessary.[7]

13 In Re Stein,[8] Taylor J considered that:

[r]evocation 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.[9]

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.[10]

15 Under s 40(2) of the Act, a NCSO must not be revoked unless the Court:

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

(i) the person's mental condition; and

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

(ab) in the case of a person who is subject to a supervision order, has obtained and considered the report of a person having the supervision of the person subject to the order; and

(b) has considered the report submitted to the court under section 41(1) or (3) (as the case may be); and

(c) is satisfied that the person's family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and

(d) has considered any report of the family members or victims made under section 42; and

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

16 Unless the order is revoked, the court may direct the matter return for a further review at the end of a specified period.[11]

17 Section 38C of the Act requires the Director of Public Prosecutions to notify family members and victims of certain hearings under the Act, including an application to revoke a NCSO,[12] and to provide those family members or victims with the information specified in s 38E.[13]

18 In an affidavit sworn on 11 July 2025, Julie Carpenter, on behalf of the Director, deposed that the family members in this matter were notified of the present hearing and their right to make a report to the Court. At the time of the hearing of this application, no reports have been received by the Court.

19 In the circumstances, I am satisfied that there has been compliance with this requirement.

20 Three reports were filed in satisfaction of s 40(2) of the Act:

(a) Report of Dr Subendran Mahendranathan, psychiatric registrar overseeing Mr Kozarov's care under Forensicare's NCSO Program (supervised by Dr Jeanne O'Bryan, consultant psychiatrist with Forensicare), dated 12 June 2025;

(b) Report of Dr Sanjay Naik, Mr Kozarov's treating psychiatrist at the Noogal Clinic, Northern Area Mental Health Service ('NAMHS') since May 2025, dated 11 June 2025; and

(c) Ms Nicole Joos, senior social worker and case manager for Mr Kozarov at the Noogal Clinic, dated 11 June 2025.

21 Dr Mahendranathan, Dr Naik and Ms Joos are all supportive of the NCSO being revoked.

22 Dr Mahendranathan has overseen Mr Kozarov's care since February 2025. Dr Mahendranathan's report confirms Mr Kozarov's diagnosis of schizophrenia, characterised by persecutory delusions, delusions of reference, and auditory hallucinations. Mr Kozarov is currently prescribed a long-acting injectable antipsychotic medication (risperidone) and an antidepressant medication (escitalopram), and he continues to be compliant with both.[14]

23 Since commencing on the NCSO, Mr Kozarov's progress has reportedly been positive. His clinical mental health care was transferred to the Noogal Clinic, which includes the fortnightly administration of his medication, monthly case manager reviews and six-weekly medical reviews. Mr Kozarov's treating team at the Noogal Clinic includes a nurse, consultant psychiatrist, psychiatric registrar and case manager. In addition, Mr Kozarov attends quarterly appointments with medical staff at Forensicare.

24 Dr Mahendranathan notes that Mr Kozarov has consistently maintained a stable mental state, remained compliant with his treatment and supervision, not consumed any drugs or alcohol, attended all scheduled appointments and reviews, and developed good relationships with a range of medical health care professionals.

25 Mr Kozarov continues to live with his mother and receives strong support from her, which is reciprocated. He maintains regular contact with his sister, who lives in the same suburb as he does and is active in his care. He consults a private psychologist fortnightly, and his physical health is managed by a general practitioner, whom he visits as needed. He occasionally assists with the gardening at his psychologist's clinic, plays cricket regularly, and exercises about two hours each day. Mr Kozarov recognises the importance of these supports in reducing his risk of future offending.

26 At a case conference on 11 June 2025, Mr Kozarov's treating teams at the Noogal Clinic and the NCSO Program agreed that the likelihood of his reoffending is low given his prior offending was specifically directed towards his now-deceased father. Moreover, Dr Mahendranathan notes:

Should the NCSO be revoked, the treating team expressed support for maintaining the existing support systems and level of monitoring. Furthermore, they are in agreement with the application of the Mental Health and Wellbeing Act 2022 in the event of non-compliance with treatment or signs of relapse.[15]

27 Using the HCR-20 (version three) tool,[16] Dr Mahendranathan concludes that Mr Kozarov is a low risk of future violence if he continues to engage with the high level of support and treatment he is currently receiving. If Mr Kozarov were to stop taking his medication, Dr Mahendranathan considers that his risk of violence is likely to increase significantly.

28 In making this assessment, Dr Mahendranathan refers to several historical factors which are static and unchanging. These include Mr Kozarov's exposure to violence as a child, diagnosis of schizophrenia, history of violent and non-violent offending, and his history of difficulty with interpersonal relationships, treatment and supervision non-compliance, substance abuse, and employment issues.

29 In terms of clinical risk factors, Dr Mahendranathan reports that Mr Kozarov has demonstrated sustained insight into his illness and the need for ongoing treatment, including the risks of relapse associated with non-compliance and substance use. Over the past 12 months he has remained symptom-free and clinically stable, not exhibited any violent ideation or concerning behaviours, and shown good insight into his historical risk of violence.

30 In relation to risk management factors, Mr Kozarov has consistently and meaningfully engaged with professional services and continues to follow his risk management plan, which Dr Mahendranathan considers sufficient to mitigate any future risk of violent offending. Mr Kozarov understands that psychosocial factors like stable housing and social engagement help prevent relapse. He benefits from a solid support network and stable living environment and appears to handle stress well.

31 Dr Mahendranathan supports revocation of the NCSO, concluding that:

... there is no further role for the NCSO as Mr Kozarov has remained consistently engaged with all his professional services and supports, he is accepting of his treatment, he has maintained a relatively stable mental state and avoided the need for inpatient care. To our knowledge, Mr Kozarov has not engaged in any further offending since his index offence, and we are not aware of any further episodes of serious physical violence.

Should Mr Kozarov's mental state deteriorate, it is likely to be detected quickly given his frequent contact with various support services, and he could be managed with increased assertive community supports or in a psychiatric inpatient facility, within the constraints of the Mental Health and Wellbeing Act 2022 if required. Further secondary consultation with forensic clinical specialist clinicians and Forensicare regarding matters pertaining assessment and management of risk would also be available. [17]

32 With regard to s 39 of the Act, Dr Mahendranathan is of the view that an ongoing NCSO imposes greater restrictions on Mr Kozarov's freedom and personal autonomy than is required to ensure the safety of the community.

33 In the event that the Court decides to uphold the NCSO, Dr Mahendranathan recommends an earlier review period of six months.

34 Ms Joos reports Mr Kozarov to be stable, well-engaged with his treating team and compliant with his prescribed medication. He attends regular reviews and is positive and future-oriented. Mr Kozarov benefits from a strong network of community supports, which offers both physical activity and social engagement. He has completed a Wellness and Recovery Plan and maintains a structured lifestyle with regular exercise, sleep and social routines that support his wellbeing.

35 Ms Joos notes that Mr Kozarov experiences anxiety when discussing medication changes or the index offence, preferring to avoid these topics and keep a positive mindset as a means of coping. He denies any current thoughts of harm to himself or others and reports abstinence from substance use, which Mr Joos considers to be an indication of his low risk of harm. However, it is noted that Mr Kozarov's risk significantly increases during periods of mental illness. To that end, Ms Joos explains that in the event of a deterioration, a considered response would be initiated. This would include an immediate medical review, contact with his family and support network, and interventions under the Mental Health and Wellbeing Act 2022 (Vic) if required.

36 Mr Kozarov's case management is expected to cease at the end of May 2026. At that stage, he may elect to be transferred to the Noogal Clinic's outpatient service, which encompasses fortnightly administration of his antipsychotic medication, quarterly reviews by nurse clinicians, and biannual reviews by a psychiatrist.

37 Ms Joos concludes that Mr Kozarov should be treated in the least restrictive manner, without the need for a NCSO, provided he continues to receive consistent support and monitoring.

38 Consistent with Dr Mahendranathan and Ms Joos, Dr Naik reports Mr Kozarov's mental state to be stable and confirms his compliance with treatment. According to Dr Naik, Mr Kozarov presents as polite and well-groomed, without any abnormality in thought process. He shows good insight into his illness and the need for medication, remains abstinent from drug use, and keeps a strict routine with his lifestyle and habits.

39 While Dr Naik was unable to form an opinion on the revocation of the NCSO - which is appropriate given he only recently commenced treating Mr Kozarov - he did observe that Mr Kozarov's denial of any currents thoughts to harm himself or others indicates a low risk of harm.

40 I have been guided by the reports of Dr Mahendranathan and Ms Joos, both of whom gave frank and forthright evidence on the application. They agree that Mr Kozarov poses a low risk to the community if he continues to engage with the treatment and support he is receiving. Neither see any use in the continuation of the NCSO; it does not, as I understood their evidence, offer any additional benefit to Mr Kozarov's stability or wellbeing. In addition to this, Dr Mahendranathan and Ms Joos were of the view that the NCSO is imposing greater restrictions on Mr Kozarov's freedom and personal autonomy than is necessary to ensure the safety of the community.

41 It is clear that Mr Kozarov has established strong supports in the community and is meaningfully engaged with his treatment. He not only has the support of his mother but that of his sister. He receives a disability support pension and manages his finances independently, which funds sessions with his psychologist and occupational therapist. This, together with his involvement in a local cricket club, offer further layers of support which serve to mitigate any risk he might pose.

42 It is noteworthy that the application is supported by the Secretary to the Department of Health and by the Attorney-General. I have had regard to their submissions, as well as the submissions of Mr Kozarov's counsel. Counsel for the Attorney-General submitted that the resources in place for Mr Kozarov should be considered in the context of Mr Kozarov's sustained insight into his illness and commitment to engage in treatment. It is evident that Mr Kozarov has a developed a good understanding of the risk he poses when he is unwell and the need for ongoing treatment.

43 While the gravity of Mr Kozarov's mental illness is a significant factor, as is the direct connection between his mental illness and the offending, the unanimous evidence at this juncture is that his condition is well treated and stable. I have had regard to the fact that Mr Kozarov has only been subject to a NCSO for just over a year. Although the relatively short duration of the order is notable, it is important to bear in mind that Mr Kozarov has been in the community without incident since June 2022.[18] Moreover, he has not relapsed in over 10 years. Considering this, I am satisfied that case management through the Noogal Clinic, which will continue whether or not the NCSO is revoked, is sufficient to maintain a low level of risk and address any future deterioration to prevent this risk increasing.

44 While revoking an NCSO inherently carries some risk, it bears repeating that the purpose of the legislation is not to entirely eliminate risk. Rather, the Court must consider the likelihood of the applicant endangering themselves or another person, and balance that risk against the principle of parsimony as set out at s 39(1) of the Act. That is, the notion that restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with community safety.

45 Having regard to all of the factors in s 40(1) of the Act, I am persuaded that Mr Kozarov will not pose a serious risk of endangerment to himself or the community if he continues to engage with his treatment. It follows that the continuation of the order represents a curtailment of Mr Kozarov's freedom and personal autonomy greater than necessary to ensure the safety of the community.

46 For the reasons stated, Mr Kozarov's NCSO is to be revoked.

[1] The nominal term commenced from the date of the index offence.

[2] In the matter of an application for a non-custodial supervision order by Roger Kozarov [2024] VSC 275.

[3] [2012] VSCA 198; (2012) 38 VR 618.

[4] Ibid 635-8 [54]-[60] (Redlich and Harper JJA and Curtain AJA).

[8] [2020] VSC 843.

[9] Ibid [17] (Taylor J) (citations omitted).

[14] Exhibit A1, Report of Dr Mahendranathan dated 12 June 2025, [13].

[16] Historical, Clinical, Risk Management 20, version 3, a structured professional judgment tool used to assess risk of future violence. This tool takes into account factors over three domains, historical (past), clinical (present) and risk management (future) in order to formulate an overall risk assessment

[17] Exhibit A1, Report of Dr Mahendranathan dated 12 June 2025, [38]-[39].

[18] On 3 June 2022, Mr Kozarov was granted extended leave for a period of 12 months pursuant to s 57 of the Act. This was extended for a further 12 months on 3 June 2023.