Application by "W" for revocation of a non-custodial supervision order
[2001] VSCA 225
•4 December 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 98 of 2001
| APPLICATION BY "W" |
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JUDGES: | WINNEKE, P., BROOKING and BUCHANAN, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 4 December 2001 | |
DATE OF JUDGMENT: | 4 December 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 225 | |
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Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - Appeal from judge's refusal to revoke non-custodial supervision order - Applicant refusing to give undertakings for continuing treatment conditional upon granting of application.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr R. Backwell | Victoria Legal Aid |
| For the State of Victoria | Ms M. Hodgson | Victorian Govt. Solicitor |
| For the Department of Human Services | Mr T.V. Hurley |
WINNEKE, P.:
I will invite Buchanan, J.A. to give the first judgment in this application.
BUCHANAN, J.A.:
The applicant, who is 45 years of age, was born in Ethiopia. He came to Australia in 1989 as a refugee, having suffered from the cataclysmic events that had recently devastated the Horn of Africa. At the age of 29 the applicant was arrested by the military government and accused of being a political activist. He was imprisoned and tortured. On his release he travelled to an area of Ethiopia controlled by rebels. He was accused by the rebels of being a pro-government activist and imprisoned in an underground cell for some two-and-a-half years. Upon his release, he travelled to Sudan where he was refused political asylum as he had no identification papers and was placed in a refugee camp. The applicant travelled from Sudan to Egypt on foot following the course of the Nile. He was arrested in Egypt and charged with being an Israeli spy. After spending three months in custody in Cairo, the applicant was accepted by Australia as a refugee. On 19 May 1990 the applicant married Mulu Tiruneh Gessey, an Ethiopian woman whom he had met in Egypt and whose migration to Australia he had sponsored.
On 1 August 1990 the applicant killed his wife by stabbing her repeatedly with a knife. At the conclusion of his trial for murder the jury found the applicant not guilty by reason of insanity. On 20 May 1992 the trial judge ordered pursuant to s.420 of the Crimes Act 1958 that the applicant be kept in custody until the Governor's pleasure was known. On 5 September 1992 the Governor ordered that the applicant be detained in custody.
On 18 April 1998 the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ("the Act") came into operation and thereupon the applicant was deemed to be subject to a custodial supervision order pursuant to the Act. The applicant applied
pursuant to s.31 of the Act to vary the custodial supervision order to a non-custodial supervision order. On 8 December 1998 the application was granted. On 11 December 2000 the applicant applied to the Supreme Court to revoke the supervision order. After hearing evidence and submissions the judge said that he was minded to grant the application if the applicant would undertake to attend for treatment at the Victorian Institute of Forensic Mental Health in accordance with any advice from the Institute that treatment should be given and to see a case manager from the Institute when the case manager required. The applicant would not give those undertakings and the judge refused the application. He said that the risk of a relapse into a depressive illness was small, but the consequences of a relapse were potentially grave. He said:
"Given the possible consequences of a possible relapse by the applicant into mental illness, I do not think it appropriate at present that the applicant be the one who decides whether or not to continue that management where it constitutes no substantial imposition upon him ... "
The applicant seeks leave to appeal from that decision on the singularly unhelpful grounds that the judge erred in failing to revoke the supervision order and in deciding to impose conditions upon its revocation.
Section 39 of the Act provides that the principle which the Court is to apply in deciding whether to revoke a supervision order is that "restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community". Section 40(1) of the Act provides:
(1)In deciding whether or not to make, vary or revoke [a supervision] order under Part 3, 4 or 5 in relation to a person, the court must have regard to -
(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."
The judge heard evidence from Dr Carroll, the psychiatrist who had been treating the applicant since 1 October 2000, Mr Hall, a social worker who had been the applicant's case manager since September 1999, and the applicant. His Honour was also provided with comprehensive reports by Dr Carroll and Mr Hall.
In his report Dr Carroll said that at the time he murdered his wife the applicant was suffering from a major depressive disorder. In the succeeding decade he had several relapses into depression, but none as severe as the original episode. Dr Carroll said that the applicant had been free of any signs of mental illness for over three years, despite a number of stressful circumstances, and had been off medication for over 12 months with no signs of relapse. He said that the applicant "is currently very well from a psychiatric point of view" and "is unlikely to pose a risk to self or others in the future". Similarly, Mr Hall in his report said that the applicant presented "a relatively low risk of harm to himself and others"; he said that he seemed to be able to deal successfully with large stresses; he said that the only untested area that remained was a close intimate relationship. In their oral evidence Dr Carroll and Mr Hall described their ongoing treatment and monitoring of the applicant. Dr Carroll said that he thought he would continue to see the applicant at intervals of between one and two months over the next three years, when he hoped that the applicant would need no further treatment. Mr Hall said that he saw the applicant once a month and would continue to do so.
The basis of his Honour's refusal to revoke the supervision order was his conclusion that it was appropriate that the applicant continue to receive treatment for the depressive illness that led him to murder his wife. That conclusion was inescapable: both Dr Carroll and Mr Hall said that they expected to continue to treat
the applicant, and that could only be because treatment was necessary or at the very least desirable, and they were of the opinion that the applicant faced stressful circumstances which were relevant to his vulnerability to depression. Further, both Dr Carroll and Mr Hall, while minimising the prospect of a relapse and consequent danger to others, did not altogether rule it out. The judge was prepared to ensure that treatment continue by means of undertakings. In the absence of undertakings he had no option in my view but to leave the order in place so that treatment would continue.
I can detect no error in his Honour's reasons. Continued treatment was appropriate. Both the experts called to give evidence in effect said so. The applicant's counsel has criticised the attempt by the judge to compel the acceptance of treatment by extracting undertakings, submitting that there is no power under the Act to do so. In the event no undertakings were given and treatment will continue because the supervision order remains in place. In my opinion that result in the circumstances of this case is consonant with the principle set out in s.39 of the Act. It is unnecessary to consider whether his Honour had power to extract undertakings. His Honour's view that he had the power to require undertakings did not in my opinion vitiate the exercise of his discretion.
I would refuse the application.
WINNEKE, P.:
I agree.
BROOKING, J.A.:
I, too, agree.
WINNEKE, P.:
The formal order of the Court is that the application is dismissed.
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