Danyl Hammond (a Pseudonym)[1] v Secretary to the Department of Health and Human Services , the Attorney-General of Victoria and the Director of Public Prosecutions
[2018] VSCA 356
•21 December 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0246
| DANYL HAMMOND (a Pseudonym)[1] | Appellant |
| v | |
| SECRETARY TO THE DEPARTMENT OF HEALTH AND HUMAN SERVICES | First Respondent |
| and | |
| THE ATTORNEY-GENERAL OF VICTORIA | Second Respondent |
| and | |
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Third Respondent |
[1]To ensure there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the Appellant.
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| JUDGES: | PRIEST and T FORREST JJA and MACAULAY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 December 2018 |
| DATE OF JUDGMENT: | 21 December 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 356 |
| JUDGMENT APPEALED FROM: | Re SC [2018] VSC 642R (Champion J) |
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CRIMES MENTAL IMPAIRMENT – Appeal – Refusal of non-custodial supervision order – Homicide – Applicant killed de facto partner when psychotic – Diagnosis of major depressive disorder with psychotic feature – Considerations applicable in varying custodial supervision order to non-custodial supervision order – Appeal allowed – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 31, 32, 34, 39, 40 and 57.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms C M Harris QC with Ms G Cafarella | Victoria Legal Aid |
| For the Secretary, Department of Health and Human Services | Ms P C Knowles | Department of Health and Human Services |
| For the Attorney-General | Mr L Brown and Mr D P McCredden | Victorian Government Solicitor |
| For the Director of Public Prosecutions | Mr J McWilliams | Mr John Cain, Solicitor for Public Prosecutions |
PRIEST JA
T FORREST JA:
Background to the application
On 8 August 2010, the applicant, ‘Danyl Hammond’,[2] who was then psychotic, killed his de facto partner by stabbing her multiple times in the face, neck, chest, back and arms. The attack occurred in a house that they shared with their 11 year old daughter. She witnessed part of the attack and telephoned ‘000’ seeking help.
[2]Although leave to appeal is not required (see footnote 6), it is convenient to refer to him as the applicant.
The applicant was charged with murder; but, on 10 December 2012, Coghlan J directed the entry of a verdict of not guilty due to mental impairment.
Later, on 1 March 2013, under s 26(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’), Coghlan J ordered that the applicant be subject to a custodial supervision order, for a nominal term[3] of 25 years commencing from 8 August 2010. Pursuant to the custodial supervision order, the applicant was committed to the custody of the Victorian Institute of Forensic Mental Health.
[3]See s 26 of the Act.
A little over four years after the custodial supervision order was made, on 4 April 2017, Emerton J granted the applicant extended leave[4] for a period of 12 months. Almost a year later, on 27 March 2018, her Honour ordered a further 12 month period of extended leave. The principal practical effect of the orders made by Emerton J is that the applicant has been living in the community since April 2017.
[4]See s 57 of the Act.
The applicant is subject to the following conditions by reason of the orders made by Emerton J on 27 March 2018:
(a) That the Applicant be under the supervision of the Authorised Psychiatrist of the Victorian Institute of Forensic Mental Health or their delegate;
(b) That the Applicant reside at the address given in the leave plan attached to the report of Dr Shannon Reid, dated 23 February 2018 and filed in the proceeding or a location approved by the Authorised Psychiatrist of the Victorian Institute of Forensic Mental Health or his or her delegate;
(c) That the Applicant comply with the lawful directions of Authorised Psychiatrist of the Victorian Institute of Forensic Mental Health;
(d) That the Applicant comply with treatment and testing and attend appointments as directed by the Authorised Psychiatrist of the Victorian Institute of Forensic Mental Health or his or her delegate;
(e) That the Applicant abstain from the abuse of alcohol and from the use of illicit drugs; and
(f) That the Applicant not leave the State of Victoria without the written permission of the Authorised Psychiatrist of the Victorian Institute of Forensic Mental Health or his or her delegate.
By a Notice filed 1 June 2018, under s 31 of the Act the applicant applied for a variation of his custodial supervision order to a non-custodial supervision order. Alternatively, pursuant to s 57 of the Act, he applied for a further grant of extended leave.
When the applications came before Champion J on 12 September 2018, the application for variation was supported by the first respondent, the Secretary to the Department of Health and Human Services (‘the Secretary’), and the applicant’s treating team, but was not supported by the second respondent, the Attorney-General. Each of the Secretary, the treating team and Attorney-General did, however, support the alternative application for extended leave.
In the result, on 19 September 2018 Champion J refused the application for variation, but granted the application for further extended leave for a period until 27 March 2019, on the same conditions imposed by Emerton J on 27 March 2018.
By a Notice dated 15 November 2018,[5] the applicant sought leave to appeal[6] against the ‘confirmation’ of his custodial supervision order by Champion J on the grounds that his Honour:
[5]Section 34(3A) provides that an appeal is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order confirming the supervision order is made. At the commencement of the hearing in this Court, the applicant’s counsel sought, and the Court granted, an extension of time within which to file the notice.
[6]Notwithstanding that the Notice sought leave to appeal, leave is not required. Compare s 14A(1) of the Act, which provides that if a jury finds that the accused is unfit to stand trial, the accused may appeal to the Court of Appeal against the finding on any ground of appeal, with the leave of the Court of Appeal; and s 24AA, which provides that if a verdict of not guilty because of mental impairment is recorded against a person, the person may appeal to the Court of Appeal against the verdict on any ground of appeal, with the leave of the Court of Appeal.
1. erred in law in construing s 32(2) of the Act as involving a value judgment informed by competing considerations;
2. ought to have construed s 32(2) of the Act as requiring him to form a state of satisfaction, based on the evidence available on the application, as to whether the applicant or the public will not be seriously endangered as a result of the release of the applicant on a non-custodial supervision order;
3. should have been satisfied, having concluded that the evidence established a low risk of violence to the public and himself, that the safety of the applicant and the public will not be seriously endangered as a result of the release of the applicant on a non-custodial supervision order;
4. erred in law in treating as a consideration against the exercise of his discretion pursuant to s 32(1) of the Act to vary the applicant’s custodial supervision order to a non-custodial supervision order, the orders made by [Emerton J] on 27 March 2018 for the grant of extended leave (‘the extended leave orders’);
5. erred in law in not exercising his discretion to vary the custodial supervision order applicable to the applicant to a non-custodial supervision order on the basis that the extended leave orders should be adhered to with the effect that it was not open to vary the order to a non-custodial supervision order unless there had been a significant change in circumstances justifying the variation;
6. erred in law in determining the application on the basis that the applicant had the onus of proof to justify the grant of the variation of the custodial supervision order to a non-custodial supervision order; and
7. erred in law in failing to give effect to the principles in s 39(1) of the Act that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
For the reasons that follow, we would allow the appeal and remit the matter to another judge for determination in accordance with these reasons.
The legislative regime
As we have said, the applicant sought an order pursuant to ss 31(1) and 32(1)(c) of the Act, that his custodial supervision order be varied to a non-custodial supervision order.[7]
[7]Alternatively she sought further extended leave.
Section 39(1) provides the guiding principle to be applied by a court when deciding whether to vary a custodial supervision order:
39 Principle to be applied
(1) In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, 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.
Section 32(1) provides that, on an application for variation of a custodial supervision order, the court must, by order:
(a) confirm the order; or
(b) vary the place of custody; or
(c) subject to this section, vary the order to a non-custodial supervision order.
Importantly, s 32(2) of the Act provides that a court must not vary an order to a non-custodial supervision order under sub-s (1)(c) during the nominal term unless satisfied that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order:
(2) The court must not vary a custodial supervision order to a non-custodial supervision order during the nominal term unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order.
Further, in deciding whether to vary a custodial supervision order, s 40(1) requires the court to have regard to a number of considerations, including 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 the need to protect people from such danger. It is in the following terms:
40 Matters to which the court is to have regard
(1) In deciding whether or not to make, vary or revoke an order under Part 3, 4, 5 or 5A in relation to a person, to grant extended leave to a person or to revoke a grant of extended leave, 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.
Moreover, by virtue of s 32(3)(a), the court must not vary a custodial supervision order to a non-custodial supervision order unless the applicant has completed a period of at least 12 months’ extended leave granted by the court under s 57. And, by virtue of s 32(3)(b), in deciding an application to vary a custodial supervision order to a non-custodial supervision order, the court must take into account whether or not the applicant ‘has complied with any conditions of their extended leave’. (In the present case, the applicant has completed some 20 months’ extended leave granted by the court under s 57; and, it seems, has complied with the relevant conditions).
Finally, s 40(2) provides that the court cannot vary a custodial supervision order to a non-custodial supervision order unless the court has considered necessary reports (or a leave plan, in the case of an application under s 57) and been satisfied that interested persons have been given reasonable notice.[8]
[8]Section 40(2) provides that the court cannot order the release of a person from custody under Part 5 unless it:
(a) has obtained and considered the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on—
(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
(da) in the case of an application for extended leave—has considered the leave plan filed under section 57A; and
(e) has obtained and considered any other reports the court considers necessary.
The judge’s reasons
So as to understand the applicant’s contentions, it is necessary to set out aspects of the primary judge’s reasons for decision[9] in moderate detail.
[9]Re SC [2018] VSC 642R (‘Reasons’).
The judge commenced his analysis by discussing the history of the matter, including the circumstances of the ‘index offence’ and the orders made by Coghlan J and Emerton J.[10]
[10]Ibid [3]–[6].
His Honour set out s 32 of the Act, and said:[11]
In relation to the applicant’s alternative application for further extended leave, s 57 of the Act provides that the Court may grant the application if satisfied that the safety of the applicant or members of the public will not be seriously endangered as a result. The period of extended leave may be of any duration within 12 months.[12]
The consideration of serious endangerment requires a court to balance the level of risk of a harmful incident occurring, against the gravity of harm that might occur if the risk were to transpire. It is important to note that a highly probable risk of minor harm does not necessarily amount to serious endangerment. Equally, a mathematically improbable risk of grave harm may amount to serious endangerment.[13]
In determining the application, the restrictions on the applicant’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community, pursuant to s 39 of the Act. Additionally, I must have regard to the matters set out in s 40(1)-(2) of the Act.
[11]Ibid [8]–[10] (footnotes as in original).
[12]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 56.
[13]NOM v DPP & Ors [(2012) 38 VR 618] [2012] VSCA 198 [63], citing In the Matters of Major Reviews of Percy, Farrell and RJO [1998] VSC 70 [56].
The judge then turned to the applicant’s psychiatric history, noting that he is a 64 year old male of Italian heritage, who had no formal psychiatric history prior to the index offence, but who has since received the diagnosis of a major depressive disorder with psychotic features, currently in remission.[14]
[14]Reasons, [14]–[15].
His Honour then summarised the evidence relating to the applicant’s current psychiatric condition, principally that of Dr Shannon Reid, consultant psychiatrist within the Community Treatment and Transition Programme of the Community Forensic Mental Health Service. He noted that Dr Reid was of the opinion that the applicant’s overall risk of future violence towards the public, and to himself, was considered to be ‘low’. The judge said:[15]
With respect to risk assessment, Dr Reid opined that the applicant has a number of historical risk factors, including the diagnosis of a serious mental illness, the extreme violence of the index offence, a history of volatility in previous relationships, and mild personality fragility.
However, the applicant also has a number of dynamic factors that are likely to moderate his overall risk of interpersonal violence. These include good insight into his illness, positive engagement with supervision, compliance with treatment, behavioural stability, strong community engagements, personal supports, stable employment, realistic plans for future supervision, and increased resilience in managing stressful situations.
Taking all these factors into account, Dr Reid is of the opinion that the applicant’s overall risk of future violence towards the public, and to himself, is considered to be low. This assessment applies whether he remains on extended leave, or transitions to a [non-custodial supervision order]. Further, Dr Reid opined that future supervision will be supported by the applicant’s positive attitude toward treatment and supervision, and his abstinence from substance abuse.
[15]Ibid [31]–[33] (emphasis added to this and following passages).
The judge then found as follows:[16]
[16]Ibid [44].
Weighing the applicant’s historical risk factors against his dynamic factors, I accept that there appears to be a low risk that the applicant would seriously endanger himself or others in the community if the application were to be granted on the conditions proposed by Dr Reid.
And said:[17]
In assessing serious endangerment pursuant to s 32(2) of the Act, I must have regard to all the matters set out in s 40(1), and form a value judgment informed by the various relevant competing considerations.
Whilst the evidence is that the applicant presently represents a low risk of violence to the public and himself, I am obliged to have regard to the nature of the his (sic) medical condition, whether the cause of that condition has been identified, and the extent to which it can be adequately treated. I am also to assess the gravity of the risk that may materialise in the event that the NCSO is granted. Further, I must take into account any other factor that I consider relevant, pursuant to s 40(1)(f).
[17]Ibid [45]–[46].
His Honour then referred to the grant of extended leave made by Emerton J in March 2018, which he considered to be consistent with the Act’s ‘structured approach to the gradual reintegration of forensic patients into the community’, and said that in his opinion ‘the orders made by Her Honour should be adhered to’.[18] Significantly, the judge considered that ‘the circumstances and outcome of that application [were] relevant matters for [his] consideration in forming the required value judgment’[19] (the required value judgment presumably being that ‘informed by the various relevant competing considerations’ to which his Honour had earlier referred).[20] He said that it appeared ‘that the applicant’s circumstances have changed little from when the application for further extended leave was decided by Emerton J’, and observed that on the basis of very similar considerations to those now before him, Emerton J had ‘decided that the period of extended leave would be set for 12 months’.[21] In the judge’s opinion, ‘unless there exists a substantial reason to do so, the orders of Emerton J should be respected’.[22]
[18]Ibid [47].
[19]Ibid [48].
[20]See [23] above.
[21]Reasons, [50].
[22]Ibid.
His Honour observed:[23]
[23]Ibid [54].
There have been no changes in the evidence or the applicant’s circumstances in this application that would cause me to be satisfied that the [custodial supervision order] should be varied to a [non-custodial supervision] order at this stage. I do not consider the suggested change to the applicant’s treatment and supervision, that would occur with transition to his local area mental health service, to be a significant change in circumstances justifying variation to a [non-custodial supervision order].
But then said:[24]
I accept that it is not necessary for an applicant to show a change in circumstances in the present situation. However, the ability to do so may add significant weight to the prospects of persuading the Court to disturb an existing order of the kind made by Emerton J. …
[24]Ibid [62].
Ultimately, in refusing the application for a variation (but granting further extended leave), his Honour said:[25]
In my opinion, the evidence of the applicant’s progress in the community should be borne out over a longer period of time before a transition to a [non-custodial supervision order] is considered further. I accept the submission of the Attorney that caution should be exercised, given all of the circumstances. To do so would also be consistent with the order made by Emerton J on 27 March 2018 that extended leave should be granted for 12 months. The conclusions and orders of Emerton J, insofar far as they illuminate my consideration of the circumstances now before me, simply confirm that a cautious and graduated approach should be adhered to. It seems to me that such a staged approach is entirely consistent with the overall legislative scheme. Therefore, I will grant the application for further extended leave for a period until 27 March 2019, on the conditions that currently apply pursuant to the order made by Emerton J on 27 March 2018.
[25]Ibid [63].
Finally, noting that s 31(2) of the Act precludes an unsuccessful applicant from making another application for variation within a period of three years, the judge gave a direction permitting a further application for variation to be made from 27 March 2019.[26]
[26]Ibid [64].
Section 32(2) of the Act and its application: grounds 1, 2 and 3
The submissions of the parties
Counsel for the applicant argued grounds 1, 2 and 3 together. The three grounds contend, first, that the primary judge erred in construing s 32(2) of the Act ‘as involving a value judgment informed by competing considerations’; secondly, that the judge should have construed s 32(2) as requiring him to form a state of satisfaction as to whether the applicant or the public will not be seriously endangered as a result of the applicant’s release on a non-custodial supervision order; and, thirdly, that the judge should have been satisfied that the safety of the applicant and the public will not be seriously endangered as a result of the applicant’s release on a non-custodial supervision order.
When a court is considering varying a custodial supervision order to a non-custodial supervision order, the applicant submitted, the Act dictates a two-step process. First, the test provided for in s 32(2) requires a separate threshold determination, before the court considers and applies the criteria spelled out in ss 39 and 40(1): that is, is the court satisfied that the safety of the person who is subject to the order, or the safety of members of the public, will not be seriously endangered as a result of the release of the person on a non-custodial supervision order? The second step, it was submitted, involves the application of the principle in s 39 and consideration of the various matters in s 40(1). While s 40 involves considerations of risk and endangerment, the criteria in ss 40(1)(c) and (d) pose a different factual question than that posed by s 32(2). The applicant submitted that it is plain from the structure of the Act that the factors in s 40(1) do not form the basis upon which the state of satisfaction required by s 32(2) is to be considered. It was contended, however, that the primary judge conflated what should have been distinct questions.
The applicant submitted that there are sound reasons why the two distinct questions should not be conflated. There is a material difference between the threshold in s 32(2) — which involves a determination of a risk of serious endangerment arising by reason of release on a non-custodial supervision order — and the criterion in s 40(1)(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. A determination of a risk of serious endangerment — which, if it exists, will prevent the court from exercising the power to vary the custodial supervision order — involves a higher level of risk. The applicant submitted that if the question of serious endangerment was assessed by reference to the various criteria in s 40(1), it may — contrary to the language of s 32(2) — ‘lead to a lower level of endangerment being adopted as the threshold at which the Court must not make an order’.
The Secretary’s position generally coincided with that of the applicant. Counsel for the Secretary submitted that s 32(2) of the Act imposed a mandatory requirement that the Court to be satisfied that the safety of the applicant or members of the public would not be seriously endangered as a result of a variation. Counsel for the Secretary submitted that s 32(2) creates a separate, narrow test, which must be satisfied before there can be any exercise of the discretion found in s 32(1). The test speaks to whether the applicant’s or the public’s safety would be seriously endangered. If the discretion in s 32(1) is enlivened, counsel submitted, s 40(1) then sets out the factors that must be considered in the exercise of that discretion. To describe the test in s 32(2) as involving a ‘value judgment’[27] is to operate upon a wrong principle. The ‘value judgment’ applies to the Court’s subsequent consideration of the principle in s 39 and the matters in s 40(1). Counsel submitted that, while s 40(1) sets out the mandatory considerations to be considered in deciding whether to grant an application to vary a custodial supervision order to a non-custodial supervision order, the test in s 32(2) forms a ‘separate, threshold determination’ before any consideration and application of the matters in ss 39 and 40(1). It was submitted that the judge’s analysis of these provisions is ‘juxtaposed’, and that ‘a close reading of his Honour’s reasons suggests a conflation of the test’. Having been satisfied on Dr Reid’s evidence that the applicant had satisfied the test in s 32(2), counsel for the Secretary submitted, the judge then considered an irrelevant consideration; that is, whether the existing extended leave orders should be adhered to.
[27]See [23] and [24] above.
Counsel for the Attorney-General submitted that the applicant’s construction of s 32 should be rejected. It was submitted that this Court, in considered obiter dicta, considered that the matters specified in ss 39(1) and 40(1) apply to the Court’s task under s 32(2).[28] In any event, properly construed the Act required the Court to make a ‘composite decision’ under s 32(1) of the Act; so that, in deciding the application, the judge was required to turn his mind to the mandatory relevant considerations under ss 39 and 40(1), and, if necessary, form the state of satisfaction mandated by s 32(2). Counsel submitted that a finding under s 32(2) ‘foreclosed’ an order varying the custodial supervision order to a non-custodial supervision order. A decision could not be made under s 32(1)(c) unless the condition in s 32(2) was fulfilled.
[28]Citing NOM v Director of Public Prosecutions (2012) 38 VR 618, 637–8 [60] (footnotes 55 and 56 and accompanying text).
Discussion
In determining these grounds, it is necessary to return to some of the key provisions of the Act.
Section 31(1), as has been observed, permits a person subject to a custodial supervision order to apply to the court for a variation of the order.
Section 32(1) makes clear that, on an application like the present, the court has only two options: first, to confirm the order (s 32(1)(a)); or, secondly, subject to the provisions s 32(2), to ‘vary the order to a non-custodial supervision order’ (s 32(1)(c)).[29]
[29]In the circumstances of this case, s 32(1)(b), which permits the court to vary the place of custody, is inapplicable.
Section 32(2) — to which orders under s 31(1) are subject — provides, however, that notwithstanding s 32(1)(c), the court must not vary a custodial supervision order to a non-custodial supervision order[30] unless satisfied on the available evidence that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order.
[30]During the nominal term.
Section 40(1) makes plain that in deciding whether or not to vary a custodial supervision order (or to make or revoke an order Parts 3, 4, 5 or 5A,[31] or to grant or revoke extended leave[32]) the court must have regard to the factors enumerated in that subsection.
[31]Orders include those made under s 19 (including as to bail or remand) pending the making of a supervision order; the making of a supervision order under ss 24 and 26, following a finding of not guilty based on mental impairment; and orders made in the Children’s Court under Part 5A, including after a finding of unfitness to stand trial and mental impairment.
[32]See ss 57 and 58.
And s 39(1) provides that in deciding whether to vary a custodial 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.
The interrelation between ss 39(1) and s 40(1) was described in NOM v Director of Public Prosecutions[33] as follows:[34]
Section 39 requires a value judgment informed by the competing considerations stated in the provision. Section 40(1) requires an evaluation of the applicant’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.
[33](2012) 38 VR 618 (Redlich and Harper JJA and Curtain AJA) (‘NOM’).
[34]Ibid 633 [47] (footnotes omitted)
As has been seen, the considerations in s 40(1) are generic, in the sense that they must be applied by a court when considering a range of different orders (distinct from an order for variation under s 31(1)). Thus, in deciding whether or not to make any one of the range of orders to which it applies, the court must (among other things) have regard to 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 the need to protect people from such danger.
When a court is dealing with an application to vary a custodial supervision order, however, the effect of s 32(2) is that, once all of the factors in s 40(1) have been weighed in the balance, a court is prevented from ordering a variation unless satisfied on the available evidence that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person.
The provisions of s 32 — in particular, s 32(2) — which are concerned solely with the variation of custodial supervision orders, may be contrasted with those of s 33, which are concerned with the variation or revocation of non-custodial supervision orders. Importantly, s 33 contains no equivalent of s 32(2). The significance of that fact was canvassed in NOM, a case concerned with a failure to revoke a non-custodial supervision order under s 33. Having discussed s 40(1)(c) — and the meaning of the phrase ‘likely to endanger themselves or others’ — the Court observed:[35]
In contradistinction, the requirement for demonstrating ‘serious endangerment’ is evident in numerous other provisions of the Act relating to variations, confirmations or revocations of other custodial and non-custodial arrangements.[36] Some of these provisions require advertence to the ‘serious endangerment’ the applicant poses to the community in addition to the factors set out in s 40.[37] However, unlike these provisions, s 33, the section that grants the power to revoke a non-custodial supervision order, does not specify any factors other than those in ss 39 and 40 for the purposes of exercising the discretion. Given the express reference to the likelihood of endangering the applicant or others, the consideration of ‘serious endangerment’ to the applicant or the community is not a necessary consideration for the purposes of revoking a non-custodial supervision order under s 33.[38] This factor, among others, may be relevant to a decision under s 33, by virtue of s 40(1)(f), but it is not incumbent on a court to advert to factors not adumbrated in s 40(1)(a)–(e), including the gravity or seriousness of harm to oneself or others that may result from non-compliance. The necessary and relevant consideration for the purposes of ss 33 and 40(1)(c) is whether or not the person is, or would if released be, likely to endanger him or herself, another person, or other people generally, because of his or her mental impairment.
[35]Ibid 637–8 [60] (citations in original).
[36]Examples include ss 30(1)(b) (Emergency power of apprehension), 32(2) (Variation of custodial supervision order), 35(3)(a)(i) (Major reviews), 50(3)(b) (Special leaves of absence), 54(2)(b) (Granting on-ground or off-ground leave), 55(1) (Suspension of special leave), 57(2) (Granting of extended leave), 58(1) and 58(4)(b) (Suspension or revocation of extended leave), 73F(5) (Review of persons transferred to Victoria) and Sch 3 cl 4(2) (Revocation of supervision order for existing detainees).
[37]See note to s 57(2). The application of criteria in s 40 to some of the these provisions was due to an amendment to the Act (Forensic Health Legislation (Amendment) Act 2002 s 19(1), and explanatory memorandum to the Forensic Health Legislation (Amendment) Bill, cl 9), notwithstanding that the issue of ‘serious endangerment’ already constituted a relevant consideration.
[38]See Pearce and Geddes, Statutory Interpretation, 6th ed, (2006), [4.28]–[4.29] and the cases cited therein, including Tasmania v Commonwealth and Victoria (1904) 1 CLR 329 and Eastman v Commissioner for Superannuation (1987) 15 FCR 139.
As we have said, in a case such as this concerned with an application for variation of a custodial supervision order, the court has two alternatives: first, confirm the order; or, secondly, vary it to a non-custodial supervision order. With respect to the second alternative — whether to vary the order — there is one critical issue that must be determined: is the court satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order?
In determining that critical issue, the court must to take into account the cumulative considerations set out in s 40(1), including 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 the need to protect people from such danger. If, after having regard to the evidence bearing on those cumulative requirements, the court cannot be satisfied that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order, variation of the order must be refused.
Thus, although it is necessary for the court to take into account — together with all of the other considerations in s 40(1) — 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 the need to protect people from such danger, it is only if the court is satisfied that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order that the court may order a variation.
We consider that the approach set out above (at [33] to [45]) is derived from the plain meaning of the words of ss 31, 32, 39 and 40. The application contemplated by s 31, and confined by s 32, fits squarely with the operation of ss 39 and 40. In particular, in deciding whether to vary a custodial supervision order to a non-custodial supervision order the Court will be deciding:
· ‘whether to vary a supervision order’ (s 39); and
· ‘whether or not to … vary and order under Part 5’ (s 40).
In our view, the ordinary and plain meaning of the language employed leaves no room for any different interpretation.
It is tolerably clear, in our opinion, that the primary judge misunderstood the critical issue to be determined under s 32(2), and conflated it with a number of the distinct considerations set out in s 40(1). He referred to the ‘dynamic factors that are likely to moderate [the applicant’s] overall risk of interpersonal violence’, and Dr Reid’s opinion ‘that the applicant’s overall risk of future violence towards the public, and to himself, is considered to be low‘ (whether or not he ‘transitions’ to a non-custodial supervision order). His Honour also accepted that ‘that there appears to be a low risk that the applicant would seriously endanger himself or others in the community if the application were to be granted’. But the judge said that whilst ‘the evidence is that the applicant presently represents a low risk of violence to the public and himself’, the factors in s 40(1) — including, by virtue of s 40(1)(f) — and any other factor he considered relevant, his Honour essentially refused the application for variation because he considered that ‘the evidence of the applicant’s progress in the community should be borne out over a longer period of time’. He made no distinct finding whether he was satisfied that ‘the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order’.
As was made clear in NOM, endangerment is about the probability of the risk of harm. The Court said:[39]
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. … The ordinary meaning of endangerment entails the concept of chance or risk. The terms of s 40(1)(c) requires a court to assess whether a person is ‘likely to endanger themselves or others’. This serves to emphasise that the focus is upon the extent of the chance, risk or peril of some harm materialising. If the harm or injury which is likely to result is substantial but the ‘chance’, ‘risk’ or ‘peril’ of it eventuating is minimal, then a person subject to a supervision order is not necessarily ‘likely to endanger’ himself or others under s 40(1)(c).
[39]NOM, 637 [58] (footnotes omitted; emphasis added).
In the present case, the judge, as we have said, apparently accepted that there appears to be a low risk that the applicant would seriously endanger himself or others in the community if the application were to be granted, but made no distinct finding under s 32(2) concerning the risk of serious endangerment. He should have done so.
For these reasons, the applicant has established grounds 1, 2 and 3.
The impact of the extended leave order: grounds 4, 5 and 6
Submissions of the parties
Grounds 4, 5 and 6 were also argued together. They contend that the primary judge erred, first, by treating the order for extended leave made by Emerton J on 27 March 2018 as a consideration militating against varying the applicant’s custodial supervision order to a non-custodial supervision order; secondly, by deciding (in effect) that it was not open to vary the applicant’s custodial supervision order to a non-custodial supervision order absent a significant change in circumstances; and, thirdly, in determining the application on the basis that the applicant had ‘the onus of proof to justify’ the grant of the variation.
Counsel for the applicant submitted that the primary judge appears to have regarded the grant of the extended leave orders by Emerton J as determinative of the application before him for variation, on the basis that the applicant could not be eligible for a variation of a custodial supervision order to a non-custodial supervision order until such extended leave orders have expired. There is, however, no support in the provisions of the Act for such an approach. Moreover, the statutory scheme does not involve any requirement to establish a change in circumstances, so that the judge misdirected himself as to the statutory task he was required to undertake. Counsel submitted that although the judge acknowledged that there is no provision in the Act that requires a change in circumstances before a variation may be made, as a practical reality the judge nevertheless approached the matter as if there was some presumption that the application could not be granted unless the evidence showed a change in circumstances since the making of the extended leave orders. Finally, it was submitted that although no party bears an onus of proof in proceedings under the Act, the judge appeared to proceed on the basis that there was some burden on the applicant to demonstrate why a variation should be granted (at least in circumstances where the extended leave orders made by Emerton J still had a period to run).
The Secretary’s counsel submitted that — particularly given the principle in s 39(1) — the Act contemplates that courts should decide supervision orders by making an independent assessment and evaluation of risk. By considering himself bound to ‘respect’ the orders of Emerton J,[40] rather than independently considering and applying the provisions of the Act, the trial judge eschewed the necessary statutory task of evaluating the relevant risk. Counsel for the Secretary also submitted that the judge erroneously considered that the absence of a material change in circumstances since the extended leave orders was a factor contrary to the grant of an non-custodial supervision order. Finally, it was submitted that, the judge’s self-imposed requirement that the applicant needed to show a change in circumstances before a non-custodial supervision order could be made, placed an onus on the applicant to establish a change in circumstances or otherwise demonstrate a substantial reason to depart from the grant of extended leave. So much is inconsistent with the principle enshrined in s 39(1) and contrary to the Act.[41]
[40]See [24] above.
[41]Citing NOM, 642 [72], 646 [84].
Counsel for the Attorney-General submitted that the judge did not wrongly fetter the exercise of his discretion, treating the existence of the extended leave order made by Emerton J as only one of a number of relevant considerations to be weighed in determining the application before him. Further, so it was submitted, a proper reading of the judge’s reasons does not support the notion that the applicant was ‘subjected to a burden of proof on the application’. The primary judge did not purport to, and did not, place any particular onus on the applicant.
Discussion
In our opinion, each of grounds 4, 5 and 6 are made out.
In an application for variation of a custodial supervision order to a non-custodial supervision order, the combined focus of ss 40(1) and 32(2) principally is whether or not the person is, or would if released be, likely to seriously endanger him or herself, another person, or other people generally, because of his or her mental impairment. Although s 40(1)(f) permits a court to take into account ‘any other matters the court thinks relevant’, those matters must be consistent with the principal focus of ss 40(1) and 32(2).
A fair reading of the primary judge’s reasons demonstrates that he seems to have regarded the extended leave orders by Emerton J as determinative of the application for variation. The provisions of the Act do not, however, support such an approach. In the application before him, the judge was required to decide for himself the central issue whether the applicant was, or would if released would be, likely to seriously endanger him or herself, another person, or other people generally. Although the applicant’s progress on extended leave might be relevant to that issue, the fact that another judge had seen fit to impose a further period of extended leave was not.
Moreover, we agree with the applicant’s submissions that the statutory scheme under the Act does not involve any requirement that the applicant establish any change in circumstances before being entitled to a variation of his custodial supervision order, yet that was the manner in which the judge approached the matter. Although the judge acknowledged that the Act does not require a change in circumstances before a variation may be made, that nevertheless was the approach that the judge took.
Hence, his Honour remarked that the orders made by Emerton J ‘should be adhered to’, and said that the ‘the circumstances and outcome of that application [were] relevant matters for [his] consideration in forming the required value judgment’. The judge observed ‘that the applicant’s circumstances have changed little’ from when the application for further extended leave was decided; and, significantly, he said that on the basis of similar considerations to those confronting him, Emerton J had decided that there should be a further period of extended leave. And central to the judge’s reasoning was his view that ‘unless there exists a substantial reason to do so, the orders of Emerton J should be respected’.
In light of the foregoing, the conclusion is inescapable that the primary judge fettered the exercise of his discretion by reference to irrelevant considerations.
Finally, although it is plain that no party bears an onus of proof in proceedings under the Act,[42] by reasoning that the variation should not be granted unless there had been a change in circumstances, the judge appears to have proceeded on the basis that the applicant needed to show such a change. His Honour was wrong to have approached the matter in that way.
[42]See s 38 of the Act. See also NOM, 642 [75], 646 [84].
The principle in s 39(1): ground 7
The submissions of the parties
By ground 7, it was contended that the primary judge failed to give effect to the principles in s 39(1): that is, in deciding whether to vary 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’.
Counsel for the applicant submitted that, apart from a passing reference to s 39(1) in his reasons,[43] the judge provided no analysis of how the principle in s 39(1) influenced his decision (if at all). These submissions were in effect supported by counsel for the Secretary.
[43]See Reasons, [10], [58].
The Attorney-General’s counsel submitted that the judge adverted to s 39(1) in his reasons. By determining that there remained a need for the current level of restriction on the applicant’s freedom, the judge acted in accordance with s 39(1) of the Act.
Discussion
A fair reading of the primary judge’s reasons indicates that, apart from acknowledging the principle that in determining the application, restrictions on the applicant’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community, his Honour attempted no analysis of how the principle enshrined in s 39 bore upon his decision to refuse to vary the custodial supervision order.
Section 39 required the judge to make a value judgment informed by the competing considerations stated in the provision, and apply that when making the value judgment required by s 40(1).[44] It is not perspicuous from his reasons that he did so.
[44]See [39] above.
Ground 7 is established.
Conclusion and orders
For the foregoing reasons, we consider that the judge’s decision is vitiated by error, so that the appeal must be allowed.[45] The desirable course, in our view, is to remit the matter to another judge for reconsideration in accordance with these reasons. There is, however, a possible difficulty in adopting that course.
[45]The nature of the appeal was not debated, and, given that discrete legal error was identified, that issue need not be decided. See, eg, NOM; Nigro v Secretary to the Department of Justice (2013) 41 VR 359 (Redlich, Osborn and Priest JJA); Carolan v The Queen (2015) 48 VR 87 (Ashley, Redlich and Priest JJA).
The primary judge’s principal order had the effect of confirming the custodial supervision order on the same conditions as had existed previously:
The application for variation of the custodial supervision order (‘CSO’) to a non-custodial supervision order (‘NCSO’) be dismissed, and the CSO be confirmed with the same conditions, pursuant to s 32(1)(a) of [the Act].
The appeal in this case is against that order.
Relevantly, s 34(1) of the Act permits a person who is subject to a supervision order to appeal to this Court ‘against an order confirming or varying the supervision order’; and subsections 34(4), (6) and (7) provide:
(4) On an appeal against a confirmation of a supervision order, the Court of Appeal may—
(a) confirm the supervision order; or
(b) set aside the supervision order and make any order that the court could have made under section 29, 32, 33 or 35 (as the case requires); or
(c) set aside the supervision order and remit the matter, with or without directions, to the court that made it.
(6) If the Court of Appeal remits a matter to a court under subsection (4)(c) …, that court must hear and determine the matter in accordance with this Act and any directions given by the Court of Appeal.
(7) If the Court of Appeal sets aside a supervision order in respect of a person under this section, the Court of Appeal may make any order that it could make under section 28A(5)[[46]] pending the making of another supervision order in respect of the person.
[46]Section 28A(5) permits the Court of Appeal, pending the making of a supervision order in respect of a person, to grant bail to the person; remand him or her in custody (in a prison or an ‘appropriate place’); order a medical or psychological examination (with the results to be put before the court); or make ‘any other order the court thinks appropriate’.
As we have said, we are of the view that the decision of the primary judge should be set aside and the matter remitted to another judge for determination in accordance with these reasons. In disposing of an appeal under s 34, however, s 34(4) provides this Court only with three options. The most suitable of those options in the present case, enshrined in s 34(4)(c), is for the Court to ‘set aside the supervision order and remit the matter, with or without directions, to the court that made it’. Subsection 34(4)(c) plainly envisages, however, that when remitting the matter, this Court must set aside the supervision order. In turn, that seems to contemplate the odd result that, appealable error having been established, the Court has no option but to set aside the custodial supervision order to which the applicant has been subject prior to the remittal, leaving a vacuum (subject to the kinds of orders available under s 28A(5), which in this case are inapposite).
Quite clearly, it is undesirable that the applicant not be subject to the current custodial supervision order in the period leading up to decision on the remitted proceeding. And, equally clearly, in circumstances where this Court has determined that there ought to be a remitter, it is inapposite to make orders pursuant to s 34(4)(a) or (b) (or s 28A). In those circumstances, the practical solution to the conundrum
created by the drafting of s 34(4) is to obey the dictates of subsection (4)(c) and make an order setting aside the custodial supervision order, but stay the operation of that order until final determination of the remitted proceeding.
In the result, we would make orders allowing the appeal; setting aside the custodial supervision order to which the applicant is subject; and remitting the proceeding to another judge of the Trial Division for determination in accordance with these reasons. We would stay the operation of the order setting aside the custodial supervision order until final determination of the remitted proceeding, or further order.
As a final observation, we would urge legislative reform of s 34(4), so as to avoid the difficulties its drafting presented in this case being repeated in others. The Court of Appeal should be capable of setting aside the decision of the primary court and remitting the matter for hearing, whilst at the same time preserving the status quo until the proceeding is finally determined on the remittal.
MACAULAY AJA:
I have had the advantage of reading in draft the reasons for judgment of Priest and T Forrest JJA. I gratefully adopt their Honours’ description of the facts, outline of the legislative regime, and summaries of the primary judge’s reasons and the arguments put by each of the parties on the appeal in this Court. I also agree with the proposed disposition of the appeal, the orders proposed and their Honours’ analysis in relation to grounds 4, 5, 6 and 7.
Although I respectfully agree with Priest and T Forrest JJA’s conclusion that the primary judge was in error in his construction of s 32(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act (‘the Act’), as formulated in grounds 1 and 2, I differ with their Honours on the analysis of the proper construction of that section; in particular, its relationship to ss 39 and 40(1) of the Act.
Their Honours noted that ss 39 and 40(1) were interrelated, calling for the exercise of a value judgment informed by the principles and factors contained in those provisions.[47] On their Honours’ analysis, the question whether the court is satisfied on all the evidence that the safety of the person subject to the supervision order or members of the public will not be seriously endangered as a result of the release of the person, as posed in s 32(2), is to be answered once all of the factors in s 40(1) are weighed in the balance.[48].
[47]Para [39]
[48][41], [43], [44], [46]. Although not stated expressly, it seems to me that the same reasoning must involve consideration of the s 39 principle at the same time.
I must respectfully disagree with that aspect of their Honours’ analysis.
Further, I would not uphold ground 3, which contended that the primary judge should have been satisfied that neither the safety of the applicant nor of the public would be seriously endangered if the applicant was released on a non-custodial supervision order. Rather, given that I think the proceeding should be remitted for rehearing before a different judge, I would remit that question for rehearing as well.
The application to vary the custodial supervision order to a non-custodial supervision order was made under s 31 of the Act, that section appearing in Part 5. That section permits a person subject to a supervision order to apply for a variation to a non-custodial supervision order (among other things). In this matter, if not granted a variation to a non-custodial supervision order the applicant applied, in the alternative, for a further period of extended leave.[49]
[49]The alternative application was made pursuant to s 57(2). Subsection (3) permits applications for extended leave to be made more than once.
Section 32(1) provides that on such an application a court ‘must’ either confirm the (existing) order, vary the place of custody or, ‘subject to this section’, vary the order to a non-custodial supervision order. In respect of the last-mentioned alternative, sub-s (2) provides:
The court must not vary a custodial supervision order to a non-custodial supervision order during the nominal term unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order.
The two ways in which s 32(2) might be construed are as follows:
·that it requires a threshold finding of fact, to be ascertained separately from and before any consideration of the principles in ss 39 and 40, which conditions the court’s power to decide whether to vary the custodial supervision order to a non-custodial supervision order; or, alternatively,
·that it erects a condition which must be fulfilled before the court can decide to vary the custodial supervision order to a non-custodial supervision order but which, nonetheless, is to be considered and evaluated along with and subject to the principles in ss 39 and 40.
The first construction could be characterised as a gateway to the court’s discretion to vary; the second could be characterised as a ‘proviso’ that limits the court’s discretion to vary. It ought to be said immediately, it is not likely to be often that the application of the different approaches would make a practical difference to the outcome.
The primary judge appeared to adopt the second of the two constructions of s 32(2). That is, his Honour considered whether the applicant or the public would be seriously endangered by the applicant’s release on a non-custodial supervision order as a component of his discretion to vary the custodial supervision order, along with the ss 39 and 40(1) factors. The clearest exposition of that construction is found in para [45] of the judgment in which his Honour said:
In assessing serious endangerment pursuant so s 32(2) of the Act, I must have regard to all the matters set out in s 40(1), and form a value judgment informed by the various relevant competing considerations.
The applicant argued that the primary judge erred in doing so, contending that the first of the two constructions (that is, the gateway approach) is the correct approach. The Secretary agreed. The Attorney-General disagreed, contending that the judge adopted a correct construction of s 32(2).
For the reasons that follow, the approach of the applicant and the Secretary should be accepted and the Attorney-General’s construction should be rejected.
The operation of the Act
If a person is found not guilty of an offence because of mental impairment, unless released unconditionally a judge must declare that person liable to supervision: s 18(4). A court must then make a supervision order in respect of that person: s 26(1). The order may either be a custodial supervision order or a non-custodial supervision order: s 26(2). If custodial, the person can only be committed to a prison if there is no other practicable alternative (s 26(4)), otherwise it must be to an ‘appropriate place’ – that is, either a designated mental facility, a residential treatment facility or residential institution: s 26(3). A person detained in a designated mental facility is a ‘forensic patient’ and a person detained in one of residential facilities is a ‘forensic resident’: s 3.
Adjustments may subsequently be made to the form of supervision applying to a forensic patient or resident: a custodial supervision order can be varied and a non-custodial supervision order can be varied or revoked: s 31(1). The permissible types of variation are made clear in s 32 (see below).
An application for the variation or revocation of a supervision order may be made by any of four persons, namely: the person subject to the order; the person having custody, care, control or supervision of the person; the Director of Public Prosecutions; or the Attorney-General: s 31.
Section 31 only authorises the making of the application; it does not confer power on a court to determine the application. That power is provided in s 32. Other routes to s 32 exist via other provisions in the Act, but the present application only concerns applications made under s 31.
Sections 32, 39 and 40(1)
Section 32(1) provides:
(1)On an application under section 31 for variation of a custodial supervision order … the court must, by order—
(a) confirm the order; or
(b) vary the place of custody; or
(c)subject to this section, vary the order to a non-custodial supervision order.
As observed, s 32 confers a power on the court to confirm the existing custodial supervision order or non-custodial supervision order, vary the place of custody under the custodial supervision order or vary the custodial supervision order to a non-custodial supervision order. So, the only types of variation which s 31 contemplates are variations to the place of custody (in the case of a custodial supervision order) or from a custodial supervision order to an non-custodial supervision order. No other alternatives are permissible but within those options the court has to make a choice.
Crucially for what is to come, by s 32(1) the court is given both the duty and power to decide whether to vary or revoke a supervision order made under s 26 (falling in Part 5 of the Act).
Before turning to s 32(2), it is convenient to consider Part 6 of the Act which is headed, ‘Principles on which the court is to act, reports and certificates’.
The first section in that Part, s 39, provides relevantly as follows (emphasis added):
39 Principle to be applied
(1)In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, 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
That is then followed by s 40(1) in these terms (emphasis added):
40 Matters to which the court is to have regard
(1)In deciding whether or not to make, vary or revoke an order under Part 3, 4, 5 or 5A in relation to a person, to grant extended leave to a person or to revoke a grant of extended leave, 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.
In terms, both s 39 and s 40(1) prescribe principles that the court must apply, and matters to which the court must have regard, when deciding whether to vary or revoke an order of the kind made in Part 5, including a supervision order. That is, those sections mandate the considerations that the court must apply or have regard to when exercising the power conferred by s 32(1) to decide whether to vary or revoke a custodial supervision order or non-custodial supervision order.
It is clear that the power to decide whether to vary or revoke such orders is a discretionary power. The court is not told in these provisions how it must decide the question. Consistent with it being entrusted a discretionary power, the court is given a balance it must aim to achieve between two potentially conflicting goals (s 39) and a set of considerations to which it must have regard, some of which pull in opposing directions (s 40(1)).
Notably, the factors to which the court must have regard pursuant to s 40(1) include, first, whether the supervised person would, if released, be ‘likely to endanger themselves’ or others because of his or her mental impairment, and second, the need to protect people from such danger: ss 40(1)(c) and (d).
Returning to s 32(2) (see above at [81]), Parliament has directed that the court ‘must not’ vary a custodial supervision order to a non-custodial supervision order unless satisfied on the evidence available that the safety of the supervised person or members of public ‘will not be seriously endangered’ as a result of the person’s release on a non-custodial supervision order. Here no discretion is permitted. That is, if the condition in s 32(2) is not satisfied the result is that the court is not entrusted with any discretion to decide whether to vary the custodial supervision order to a non-custodial supervision order. In other words, the discretion conferred under s 32(1), to be exercised upon the principles and having regard to the factors in ss 39 and 40, is not available to the court in the circumstances described in s 32(2).
Although the enquiry in s 32(2) bears a resemblance to one of the factors to which a court must have regard once the discretion is opened (s 40(1)(c)), that resemblance must not mislead one into thinking that the s 32(2) test involves the same enquiry as is raised by the discretionary factor and that the two must therefore be part and parcel of a single, composite exercise (as argued by the Attorney-General).
The enquiries are quite distinct:
·section 32(2) is a provision which is devoid of discretionary language: the words ‘must not…unless' are inconsistent with the exercise of any sort of discretionary power;
·furthermore, s 32(2) calls upon the court to reach (or not, as the case may be) a state of satisfaction about the existence of a single, identified fact upon ‘the available evidence’;
·the discrete, factual nature of that enquiry is made clear by the words ‘satisfaction … on the available evidence… will not be…’;
·whether a person’s safety is seriously endangered is a question of fact which requires the construction of the meaning of those words and, then, the application of that construed meaning to the facts as found on the evidence available;
·focusing on the ingredient of endangerment, a binary question of fact as to whether the public or a person’s safety will or will not be seriously endangered because of the person’s release on a non-custodial supervision order is fundamentally different in concept and meaning to a discretionary consideration, among others, whether a person would be ‘likely to endanger’ themselves or others:
othe first connotes both probability and gravity whereas the second connotes only probability;[50]
othe first is a single, ‘hard fact’ question; the second is an ingredient amongst others in forming a value judgment; and
othe first defines a circumstance in which scope for judicial choice is removed; the second is an ingredient to be considered in the exercise of judicial choice.
[50]NOM, 638 [60].
Thus, on close analysis, the apparent similarities in the two enquiries evaporate. Further, the argument put by the Attorney-General that the court is given no guidance for the resolution of the s 32(2) question, unless it uses ss 39 and 40, is incorrect. As already mentioned, the court must apply the meaning of the words appearing in s 32(2) – as in any statutory construction analysis – to the facts as found ‘on the evidence available’ to reach (or not reach) the requisite state of satisfaction.
In doing so, the court is not constrained by the considerations in ss 39 or 40. It is only constrained by concepts of relevance. And that is not to say, of course, that the court may not have regard to the factors listed in s 40(1). But, should it do so, it would be because those are relevant matters, as a matter of common sense, to making the finding of fact required under s 32(2), and not because they are mandated by s 40(1).
Some of the principles and factors mentioned in ss 39 and 40(1) are simply ill-suited for determining the serious endangerment question posed by s 32(2). For example, the principle of keeping the restriction on a person’s autonomy to a minimum consistent with the safety of the community (s 39) can have no logical bearing on the question whether the safety of members of the public will be seriously endangered by that person’s release on a non-custodial supervision order.[51]
[51]Support for the view that the issue of serious endangerment overrides and is considered separately from the consideration of freedom and personal autonomy is found within the Act: s 73F(5), s 73P(5).
The argument in favour of applying s 39 to the s 32(2) enquiry rests upon construing the words, ‘in deciding whether to make, vary or revoke…’ as an apt description of the s 32(2) task. As noted, however, there is no logical relationship between the subject-matter of the two provisions. Good reason exists, therefore, to give a meaning to those words that does not assume that the s 32(2) enquiry is involved in deciding whether to make, vary or revoke a supervision order. Applying the same meaning to those words in s 40(1), neither is there any statutory necessity to have regard to the list of factors in that subsection to determine the s 32(2) enquiry.
Other provisions employing ‘serious endangerment’
Having paid attention to the text of ss 32, 39 and 40 it is important to examine those provisions in the context of the whole of the Act. Doing so supports the construction I have just advanced.
The question whether the supervised person or public will be seriously endangered by some change in the person’s supervision is raised in a number of other provisions in the Act.
There are a number of places in the Act which provide for the Chief Psychiatrist or the Forensic Leave Panel to make a decision granting or suspending different species of leave of absence for a supervised person, contingent upon their view as to whether the safety of that person or of members of the public will be seriously endangered as a result: ss 50(3), 54(2), 55(1), and 58(1). In none of these instances does the Act make the exercise of the power to decide the question of serious endangerment subject to the principles or factors in ss 39 or 40 (which are expressly confined to a decision made by a court).
Sections 30(1) and 38ZL provide the supervisor of a supervised person, a police officer, an ambulance officer or a prescribed person the power to apprehend and detain a supervised person (including a child) who is on a non-custodial supervision order. The power may be used if the relevant arresting person reasonably believes the supervised person (or child) has failed to comply with their order and that, if not apprehended, their safety or that of the public will be seriously endangered.
Since none of these last-mentioned powers is to be exercised by the court, the principles and factors in ss 39 and 40 do not apply. It follows that in each of those situations, the meaning given to serious endangerment is not to be determined or informed by the principles (or, necessarily, the factors) in Part 6 of the Act. It would be odd, and therefore not preferable, to construe the same expression in different parts of the Act as having different meanings depending on where it was located or by whom it was to be applied.
Section 35(3) requires the court, on a major review of a supervision order,[52] to vary a custodial supervision order to a non-custodial supervision order unless satisfied that, by doing so, the safety of the supervised person or members of the public will be seriously endangered. Alternatively, if the court is so satisfied, it must confirm the order. It appears that no choice is permitted between those two options and the outcome is solely determined upon the finding as to serious endangerment. It is therefore difficult to envisage how the words ‘in deciding whether to…vary… a supervision order’ in ss 39 or 40 could sensibly apply to the judicial exercise framed by s 35(3). Yet, the enquiry in s 35(3) is essentially the same (albeit in the reverse) to the enquiry in s 32(2).
[52]Section 35 requires that court that made the supervision order undertake a major review of the order, at least 3 months before the end of the nominal term or thereafter at intervals of no more than 5 years, to determine whether the person subject to the order is able to be released.
Section 38ZO, in Part 5A of the Act, is a mirror provision of s 32, except it applies to a child and to the Children’s Court.
I come to s 57(2), in Part 7 of the Act, which relates to the granting of extended leave. Both ss 39 and 40 specifically apply when a court is deciding whether to grant a person extended leave. Section 57 provides for the making of an application for extended leave, the persons who may make such an application and the criteria governing the court’s decision whether to grant it. It provides as follows:
57 Granting of extended leave
(1) An application for extended leave for a forensic patient or forensic resident may be made to the court that made the supervision order to which they are subject—
(a) in the case of a forensic patient, by the forensic patient or the authorised psychiatrist for the designated mental health service;
(b) in the case of a forensic resident, by the forensic resident or the Secretary to the Department of Health and Human Services.
(2) The court may grant an application under subsection (1) if satisfied on the evidence available that the safety of the forensic patient or forensic resident or members of the public will not be seriously endangered as a result of the forensic patient or forensic resident being allowed extended leave.
Below sub- s (2) is a note in these terms:
Note
Sections 39 and 40 set out certain other principles and matters that the court must apply and have regard to in considering applications for extended leave.
The word ‘may’ in sub- s (2) signifies that the court has a discretion whether to grant extended leave. But only one order can be made. That is to be contrasted with ss 31 and 32(1), which provide for several possible applications and orders, and where the discretion is cast in terms of which order may be granted. Nevertheless, in both s 32 and s 57, the court is given a discretion whether to make, vary or revoke an order, as the case may be.
But, as with s 32, the exercise of the discretion in s 57 is subject to the condition that the court be satisfied there will not be serious endangerment to the safety of the supervised person or of the public. Section 57(2) could equally have been expressed by placing the condition, ‘if satisfied on the evidence…’, first, and the empowering phrase, ‘the court may grant…’, second. The meaning would be the same. Either way, a finding of the specified fact is the condition on which the discretion is enlivened. It is only then that the court is empowered to decide whether to grant extended leave.
The content of the note below sub- s (2) does not change the analysis.[53] The principles and matters in ss 39 and 40 are indeed matters which the court must apply and have regard to in considering a grant of extended leave; but noting that fact does not demand that those provisions are applied to the satisfaction of the factual question in s 57(2).
[53]Notes of this kind are part of the statute and may be used in construing it: s 36(4A) Interpretation of Legislation Act.
Thus, an analysis of the various provisions in the Act employing the test of serious endangerment to the safety of persons shows that they are to be applied:
·by persons other than the court in which case ss 39 and 40 clearly have no application; or
·by the court, either to produce an outcome that forbids the court making any discretionary judgement or one that opens the way for the court to exercise such a judgement.
Seen in this way, the scheme of the Act is to preclude the operation of any discretionary judgment – including by paying regard to the freedom and autonomy of the forensic patient or resident – where to make (or, if applicable, not make) the order in question would, as a matter of found-fact, seriously endanger that person or members of the public.
Further, the applicant is correct to point out that combining the ‘serious endangerment’ test with the autonomy principle and the other discretionary factors would have the potential to weaken the serious endangerment protective threshold which the legislature has erected.
The Attorney-General’s alternative argument was that, in any event, s 32(2) does not apply because the decision actually made was to confirm the order, under s 32(1)(a), and not to vary the non-custodial supervision order, under s 32(1)(c). Thus, it was said, s 32(2) was not engaged. That argument should be rejected.
First, the application before the court was for a variation from a custodial supervision order to non-custodial supervision order – that is, for a s 32(1)(c) order – so the judge was obliged to consider whether that order should be made. Embarking on that enquiry engaged s 32(2) because it erects the necessary condition for the grant of any such order. It was only because the judge considered and rejected the application to vary the existing order to a non-custodial supervision order that he was obliged to confirm the existing order. So much is revealed by the actual orders made by the judge.[54]
[54]See [69] above.
Finally, I should note that, in my opinion, there is nothing in this Court’s decision in NOM which, as a matter of binding precedent, precludes the above analysis. The closest that the Court came to addressing the issue was a comment in paragraph [60], namely that:
In contradistinction, the requirement for demonstrating “serious endangerment” is evident in numerous other provisions of the Act relating to variations, confirmations or revocations of other custodial and non-custodial arrangements. Some of these provisions require advertence to the “serious endangerment” the applicant poses to the community in addition to the factors set out in s 40. However, unlike these provisions, s 33, the section that grants the power to revoke a non-custodial supervision order, does not specify any factors other than those in ss 39 and 40 for the purposes of exercising the discretion. [footnotes omitted].
The distinction adverted to was one between statutory provisions that only concern the question of the probability of risk of endangerment (as in s 40(1)(c)) and those concerned with the question of ‘serious endangerment’ which combines the elements of both probability and gravity of risk. Thus, by using words in the second sentence, ‘in addition to the factors set out in s 40’, this Court emphasised that a test which incorporates ‘serious endangerment’ involves a consideration of the gravity of the risk, and not merely the probability of its occurrence.
But that observation says nothing about how the two tests operate in relation to one another; it simply observes that additional factors are involved. In any case, this Court in NOM did not have to consider, nor did it undertake to consider, whether the serious endangerment test was to be considered in conjunction with the s 39 principle and the s 40 factors or whether it constituted a separate threshold question.
Conclusion
It follows from the foregoing that I accept the arguments put forward by the applicant and the Secretary on the analysis of s 32(2) and its relationship to ss 39 and 40 of the Act. Section 32(2) operates as a gateway to the discretion conferred on the court in s 31(1). A finding whether the safety of the person subject to the order or members of the public would be seriously endangered by the release of the person in the manner proposed is to be made independently of the discretionary decision whether to make, vary or revoke a supervision order. Factors of the kind listed in s 40(1) may be considered in reaching that finding, not because of any statutory command to do so, but because they are relevant to making the factual finding.
In the result, in my view, grounds 1 and 2 are established, albeit for different reasons to those of Priest and T Forrest JJA.
As stated, I would not uphold ground 3. In my view, the primary judge wrongly conflated the test for serious endangerment under s 32(2) with the discretionary considerations under ss 39 and 40. That being so, no factual finding was made on the question of serious endangerment using the proper criteria. But, agreeing with their Honours that the entire matter should be referred for determination by another judge, and given that the judge is to rehear the evidence (and, most likely, additional evidence), in my opinion that new judge should determine all of the facts afresh and exercise his or her discretion on those facts. That should include making a finding of fact on the question of serious endangerment.
Regardless of these differences, I agree with the orders proposed by Priest and T Forrest JJA.
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