Re V A S [2010] VSC 411 (16 September 2010)

2 On 19 September 1988 the applicant was found not guilty of murder by reason of insanity and made subject to detention at the Governor's pleasure.

3 The applicant is now residing in the community subject to a non-custodial supervision order made by Kyrou J on 22 August 2008.[1] When making that order, Kyrou J made a direction pursuant to s.32(5) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ("the Act") that the matter be brought back before the Court for review after two years. The matter was listed before me for the hearing of that review.

4 By a notice of application filed 20 August 2010, the applicant seeks revocation of the non-custodial supervision order. The application for revocation is made pursuant to s.31(1)(a) of the Act. If upheld, the last means by which the Court can supervise the applicant's treatment and disposition will be removed. The issue I must determine is whether it is appropriate to take that step now.

5 On my reading of Kyrou J's reasons he did not direct a review for the purpose of considering revocation, but rather he did so because of the unusual, possibly unique, circumstance that the applicant had been previously the subject of a non-custodial order which had been revoked for non-compliance and a custodial order reimposed.

6 Appearing on the review and the application were counsel on behalf of the applicant, the Director of Public Prosecutions, the Secretary of the Department of Health, and the Attorney-General. Counsel for the DPP dealt with the requirement under s.38C of the Act to notify specified persons of the application and was then excused. I am satisfied the notification requirements have been met. Counsel for the Secretary led evidence and tendered reports but otherwise advised that the Secretary did not take a position. Counsel for the Attorney-General cross-examined witnesses but did not oppose the application.

7 The evidence on the application is constituted by:

▪ A report by Dr Ria Zergiotis, the applicant's supervising psychiatrist at the Victorian Institute of Forensic Mental Health, dated 12 August 2010;

▪ A report by Dr H. Hassan, the applicant's consultant psychiatrist at North East Area Mental Health Service, prepared on or about 9 August 2010;

▪ A report by Ms Rosalind Preston, a registered psychiatric nurse and the applicant's case manager at North East Area Mental Health Service, dated 22 July 2010;

▪ A document entitled 'Early Warning Signs and Relapse Prevention & Management Plan' prepared by the applicant, Ms Preston and the applicant's partner on 13 August 2010; and

▪ Oral evidence from Dr Zergiotis, Dr Hassan and Ms Preston.

8 All the witnesses, both in their written reports and in their oral evidence, supported the application for revocation.

9 It is clear from the evidence that the applicant has responded well to treatment over the last 10 years. A turning point in the applicant's treatment came in March 2000 when he was prescribed the anti-psychotic drug Clozapine. Since his treatment on Clozapine commenced, there appears to have been no manifestation of the applicant's schizophrenia. Clozapine is a drug which requires intensive and careful monitoring involving, amongst other things, regular blood tests.

10 Dr Zergiotis' report provides a detailed account of the applicant's psychiatric history and treatment since the index offence. She describes the applicant as having a "well established history of chronic schizophrenia" with the offence occurring at a time when he was "acutely psychotic".

11 In her oral evidence, Dr Zygotis expressed the opinion that "from a therapeutic perspective" revocation of the order now would be beneficial for the applicant. She said:

"He will feel a sense of progression in terms of...recognition that he has tried very hard for over, you know, I guess over 20 years in terms of his rehabilitation, and I think he would like some acknowledgement that the last 10 years have been very good for him, and his progress. He does want to be treated as a well patient, not an unwell patient."

12 Dr Hassan has recently become the applicant's treating psychiatrist. She has only seen him professionally once. On the basis of that and her review of his clinical history she concludes that he is adequately treated for his schizophrenia and poses no risk of endangering himself or others.

13 Ms Preston meets with the applicant once per month and has done so for nearly two years. She said the applicant is totally compliant with all aspects of his treatment and possesses good insight into his need for that treatment to be ongoing. She says that although unemployed and on a disability support pension, the applicant uses his time productively and has strong support from his partner and their respective families.

14 Each of the witnesses was questioned about what I apprehend to be the issue of most concern on the application, namely the risk of the applicant failing to comply with his treatment if the order is revoked and he becomes a voluntary patient.

15 When asked about the applicant's willingness to engage and comply with his treatment, Dr Zygotis said:

"[the applicant] is fully accepting of his diagnosis of having schizophrenia and he is very willing to continue taking Clozapine pretty much for the rest of his life. He is very insightful into his illness and his early warning signs of relapse and has been so for many years."

16 As the applicant's consultant psychiatrist, Dr Hassan was asked about what steps would be taken if the order was revoked and the treating team suspected that the applicant was not complying with his treatment. She said that she would use the Mental Health Act 1986 "to bring him to hospital for a formal assessment." She expressed confidence in the clinic's ability to detect and respond to the applicant's non-compliance "because of our history and our knowledge of what happens to him if he's not on medication."

17 In relation to the question of compliance as a voluntary patient, Ms Preston said the following:

"Over and above the non-custodial supervision order, [the applicant] has always proved to be very well organised and very thoughtful towards his own health. He does understand that if he isn't well it impacts on others. It will impact on his partner. He shares a home with somebody. He looks after his own health. If he did not have this particular order I don't think that would change, he takes his own health quite seriously, he is interested in what we do for him. He is interested in the subject of how to stay well."

18 In terms of the applicant's future treatment, Dr Zygotis says in her report that it is likely he will remain a client of the North East Area Mental Health Service for the next two years. She writes that at some point in the future the applicant's care and administration of Clozapine may be transferred to his general practitioner.

19 The applicant's partner was present in Court and I allowed her to address me from the body of the Court. Her concern and regard for the applicant was clear and heartfelt. She has had problems of a somewhat similar kind in her own life.[2]

20 Earlier I referred to the fact that the applicant had previously had a non-custodial order revoked and a custodial order reimposed. It is necessary to set out the relevant circumstances in which that occurred.

21 Until March 1999 the applicant was subject to a custodial supervision order. In March 1999 Hampel J heard an application for revocation of that order.[3] The application for revocation was withdrawn. Instead, Hampel J varied the custodial order to a non-custodial one. One year later, in March 2000, Eames J revoked the order made by Hampel J and reimposed a custodial supervision order pursuant to s.29(1) of the Act.[4] This is, so far as I can ascertain, the only instance where a non-custodial supervision has been revoked and a custodial supervision order reimposed.

22 At the time of the application before Hampel J, the applicant had been on leave and residing in the community for a consecutive period of 9 months, and a cumulative period since the commission of the index offence of well in excess of 12 months. Leave had been revoked a number of times due to incidents in which the applicant had exhibited aggressive behaviour. Each incident had caused the applicant's treating team sufficient concern to revoke his leave on suspicion that it represented a relapse of his schizophrenia. In determining to vary the order, Hampel J emphasised the conclusion of the applicant's then treating team that these incidents had not been relapses, but had instead been caused by other behavioural problems. Hampel J also emphasised evidence given by the then treating team that any relapse would be noticeable and would take time to develop.

23 In November 1999 the applicant was detained in a psychiatric ward pursuant to s.30 of the Act. The events leading to his detention were as follows:

▪ On 13 June 1999 he verbally abused and physically pushed a co-resident. His own account of the event was demonstrative of paranoid behaviour.

▪ On 26 September 1999 the applicant followed a woman home in his vehicle from a service station late at night in a manner causing her fear and leading to a confrontation with her partner. The applicant was subsequently charged and convicted of stalking.

▪ On 9 November 1999 the applicant was observed by a member of his then treating team tailgating another vehicle in a concerning manner.

24 An application was brought on behalf of the applicant's then supervising psychiatrist at the Victorian Institute of Forensic Mental Health for reimposition of a custodial order on the ground of non-compliance with the non-custodial supervision order made by Hampel J. Eames J found that non-compliance had been established, both by reason of the applicant's behaviour in the events the subject of the stalking charge, and by his failure to report that behaviour. His Honour revoked the non-custodial supervision order and placed the applicant back on a custodial supervision order because of the need for there "to be a fairly high level of vigilance and management in the immediate future."[5] His Honour considered this could only be achieved by a custodial supervision order.

25 On the application before Eames J, two of the applicant's then treating psychiatrists re-evaluated the position which had been taken by the treating team on the application before Hampel J. The psychiatrists considered that the incidents which had led to revocation of the applicant's leave prior to the hearing before Hampel J were part of a pattern of escalating behaviour demonstrating that the applicant's mental health was more fragile than had been assessed at the time.

26 In light of his behaviour in the months following Hampel J's order, and the success of his treatment since being prescribed Clozapine, it could not be said that the applicant was being successfully treated in 1999. It is fortunate that the decision to vary the custodial supervision order then was not met with tragic consequences.

27 The applicant remained in custody at Thomas Embling Hospital until successfully applying for extended leave before Osborn J in October 2005.[6] Osborn J's order stipulated that the applicant reside at a transitional facility adjacent to Thomas Embling Hospital, save for being permitted to stay two nights per week at the residence of his partner. He had met his partner in 2002.

28 Further grants of extended leave were made by Kellam J in August 2006[7] and by Osborn J in August 2007.[8]

29 It was upon expiration of Osborn J's second order of extended leave that Kyrou J varied the applicant's custodial supervision order to a non-custodial supervision order. His Honour observed that the applicant had made steady progress since 2000 and that neither his safety nor that of the public would be seriously endangered by the variation. Given the history, the purpose of Kyrou J's directed review after two years was, in my view, to ensure that that progress had continued.

30 In In the matter of SKD,[9] I summarised the legal principles applicable to an application for revocation of a non-custodial supervision order as follows:

"5 Section 40 of the Act sets out matters to which the Court must have regard when deciding whether to revoke an order. Those matters are:

(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.

1. Section 39 of the Act is also important. It provides that when considering (among other things) revocation of a supervision order, 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.
2. I am mindful of the fact that every case in this area is different. There are, however, some principles set out in the decisions on similar cases to which I have been referred which are of importance. They are:
   1. Parliament wanted the assessment of dangerousness to be made by a judge, not by psychiatrists, however much the judge may rely on expert opinions in informing himself or herself.[10]
   2. It is open for a judge to conclude that the chronic nature of schizophrenia, the possibility of future changes in treatment or personal circumstances, and a lack of clear support controls in the Mental Health Act 1986 creates a risk of serious endangerment if all controls are removed, even where the psychiatric evidence is strongly supportive of the application for revocation.[11]
   3. To the extent the Court needs to be satisfied of matters bearing on relevant questions, the standard of proof is the civil standard, but given the serious consequences of a mistake being made the Court must be satisfied in accordance with the precepts laid down in Brigginshaw v Brigginshaw.[12]
   4. Revocation of a non-custodial supervision order is a particularly serious step. The principal consideration is the protection of the community and the applicant.[13] The Court is entitled to take a cautious approach, as each case history is demonstrative of the terrible tragedy that could occur if a revocation was ordered without sufficient care.[14]"

31 I have also had regard to two decisions of Kaye J on applications to revoke non-custodial supervision orders.[15] I adopt Kaye J's observation that the critical issue under ss.39 and 40 of the Act is to determine "whether the applicant would be likely to endanger himself or other members of the community should I make an order revoking the applicant's non-custodial supervision order."[16] His Honour describes the applicant's onus of proof as follows:

"I would not be disposed to grant the application unless I was satisfied on cogent evidence, and to a comfortable degree, that the applicant would not endanger himself, or other members of the community, should I revoke his non-custodial supervision order."[17]

32 On behalf of the applicant it was submitted that what was said by the Court of Appeal, albeit it in a different context, in RJE v The Secretary of the Department of Justice & Ors is applicable. The passage relied upon was the following:

"Judges are, of course, expert in assessing matters of fact, and an expert report 'is no better than the facts on which it is based.' But where - as here - the facts are not in contest, and the expert opinion is both cogent and unchallenged, a judge should ordinarily be slow to depart from the risk assessment which the expert has made." [18]

33 Applications under the Act can be distinguished from those involving the Serious Sex Offenders Monitoring Act 2005, which was the subject of the appeal in RJE. As the Court of Appeal explained, in the latter context the legislation explicitly recognises that the "prediction of dangerousness, if it is to be attempted at all, is a matter of expert opinion."[19] In the context of this application I consider that I should apply the principle espoused by Winneke P in RDM,[20] that assessments of dangerousness under the Act are to be made by a judge, not by psychiatrists. It may be that the differences between the two approaches are more apparent than real.

34 I approach this application with particular caution. Caution is always required in these applications, but it seems to me that particular caution is required here, given the history.

35 I have concluded that the non-custodial supervision order should not be revoked at this time. My reasons are as follows:

(a) The applicant has done extremely well since 2000. But my assessment of the position is that his successful treatment only began then. Thus, while he has been "in the system" for over twenty years, he has been successfully treated for only 10 years.

(b) This is not a case where both the risk of non-compliance and the danger in the event of non-compliance are independently low.[21] Here, if there is non-compliance, the events of both 1999 and of the index offence itself demonstrate that the danger is significant. Non-compliance is a risk which can never be entirely eliminated, as Dr Zergiotis frankly conceded. In the circumstances here, a history of 10 years of compliance with successful treatment is not long enough in my view.

(c) I accept that revocation will have therapeutic benefits for the applicant, but in the circumstances I cannot put those benefits ahead of my concern about the danger if the applicant should, against all current expectations, become non-compliant.

36 Continuation of the non-custodial order will not, it seems to me, impose on the applicant any significant practical restrictions. His treatment will remain the same. Reference was made to inhibitions on travel, but the evidence of both Dr Zergiotis and Dr Hassan was that appropriate arrangements could be made so as to enable him to travel with his partner if he wishes. The nature of his treatment will restrict his capacity to travel, but the application was made on the basis that he will continue that treatment whether he is subject to an order or not. It is also envisaged that he will stay with North East Area Mental Health Service for the next two years, whether he remains on an order or not.

37 Pursuant to s. 35(1) of the Act, a major review of his case must be undertaken at least three months before 18 September 2013.

38 For the reasons I have given, I dismiss the application to revoke the non-custodial supervision order.

39 If the applicant wishes to vary the conditions of the order to which he is currently subject, I will hear an application for variation under s.33(1)(c). Otherwise, I will confirm the order under s.33(1)(a) of the Act.

[1] [2008] VSC 318R.

[2] The applicant's partner was also found not guilty of murder by reason of mental impairment. Her own supervision order was recently revoked: Transcript of Proceedings, Re ZM (Supreme Court of Victoria, Coghlan J, 23 July 2010). Her mental illness and other circumstances are very different to those of the applicant.

[3] Transcript of Proceedings, Re VAS (Supreme Court of Victoria, Hampel J, 9 March 1999), 62-9.

[4] Pathe v "V.S" [2000] VSC 58 ("Pathe").

[6] Re VAS [2005] VSC 420R.

[7] Transcript of Proceedings, Re VAS (Supreme Court of Victoria, Kellam J, 25 August 2006), 48-52.

[8] Re VAS [2007] VSC 378R.

[9] [2009] VSC 363 (Edited version).

[10] RDM v Director of Public Prosecutions [1999] VSCA 86; (1999) 2 VR 270 ("RDM") at 287 per Winneke P quoting Eames J in In the matters of major reviews by Percy, Farrell & RJO [1998] VSC 70 ("Percy").

[11] RDM per Winneke P at 287, Charles JA at 290, Chernov JA at 291.

[12] In the matter of LN [2006] VSC 62 at [10].

[13] In the matter of PSG [2005] VSC 325R at [44].

[14] In the matter of TDD [2004] VSC 504R at [27].

[15] Re an application by "PL" (No. 4) [2004] VSC 21R ("PL"); In the matter of an application for revocation of a Non-Custodial Supervision Order - MS [2010] VSC 283R ("MS").

[16] "PL" at [44]; "MS" at [60].

[17] "PL" at [45]; "MS" at [61].

[18] [2008] VSCA 265 per Maxwell P and Weinberg JJA at [18].

[19] RJE, per Maxwell P and Weinberg JA at [16]; Serious Sex Offenders Monitoring Act 2005, s.9(2)

[20] At 287 per Winneke P quoting Eames J in Percy.

[21] In contrast to cases such as "PL".