DFFH v Nielson (a pseudonym)
[2022] VCC 1811
•22 July 2022
| Revised Suitable for Publication |
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-01295
THE SECRETARY TO THE DEPARTMENT OF FAMILIES
FAIRNESS AND HOUSING
| v | |||
| EDWARD NIELSON (a pseudonym) | --- | ||
JUDGE: | HER HONOUR JUDGE RIDDELL | ||
WHERE HELD: | Melbourne | ||
DATE OF HEARING: | 4 February 2022 | ||
DATE OF RULING: | 22 July 2022 | ||
CASE MAY BE CITED AS: | DFFH v Nielson (a pseudonym) | ||
MEDIUM NEUTRAL CITATION: | [2022] VCC 1811 RULING --- | ||
Subject: | Crimes Mental Impairment and Unfitness to be Tried Act1997 --- Statutory Interpretation | ||
Catchwords: | Crimes Mental Impairment and Unfitness to be Tried Act 1997 --- Offender unfit to stand trial --- Offender on Custodial Supervision Order --- 2 grants of Extended Leave for period of 12 months each in 2018 and 2019 --- Variation to Non-Custodial Supervision Order in 2020 --- Offender Breached Non-Custodial Supervision Order conditions --- Variation to Custodial Supervision Order in 2021 --- On Review or Application for Variation s.32 Requirement for Extended Leave of 12 months prior to any variation to Non-Custodial Supervision Order --- Question of Statutory Interpretation whether previous grants of Extended Leave enliven power to vary or whether the offender must undertake a ‘new’ or ‘fresh’ period of Extended Leave ‘immediately’ before any variation | ||
Legislation Cited: | Sections 32, 39, 40, 41 Crimes Mental Impairment and Unfitness to be Tried Act 1997 | ||
Cases Cited: | Colonial Range v CES Queen [2016] VSCA 328 -- Momcilovic v The Queen [2011] HCA 34 -- Re: LB [2020] VSC 232 -- R v Robinson (2004) 11 VR 165 -- Re: PEL [2018] VSC 786R -- RDM v DPP (1999) 2 VR 270 | ||
Ruling: | Plain reading of the provision in light of purpose and scheme of the Act --- Previous periods of Extended Leave enliven power to vary --- No requirement of further or fresh period of Extended Leave --- Ultimate test of Serious Endangerment pursuant to s.32(2), considered in light of principle of parsimony in s.39 and taking into account factors in s.40, must still be met prior to variation | ||
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APPEARANCES: Counsel Solicitors
For the Reviewee Ms O Ridley Victoria Legal Aid
For the Secretary Mr D Bruno Department of Families,
Fairness and Housing
For the Attorney General Ms M Pekevska Victorian Government
Solicitors Office
HER HONOUR:
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
1This is a decision regarding an issue of statutory interpretation of the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”).
2Specifically, a Custodial Supervision Order (“CSO”) under the Act may be varied to a Non Custodial Supervision Order (“NCSO”) either on a review or on the basis of an application for variation. Under the Act the test for both is set out pursuant to s.32 and applying the overarching principle of parsimony contained in s.39 and in light of the considerations of s.40.
3Section 32 requires the Court to either confirm the order, vary the place of custody or vary the order to a NCSO, subject to the provisions of the section.
4There are limits on the power to vary a CSO to a NCSO in s.32. The first is that the Court must not vary a CSO to a NCSO 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 variation (“the serious endangerment test”).
5The second is that in the case of a forensic patient or resident, variation cannot occur unless the forensic patient or resident has completed a period of at least 12 months extended leave granted by the Court, and the Court has taken into account whether or not he or she complied with any conditions of the extended leave.
6The issue which has arisen in this case, put simply, is whether a person subject to a CSO and who has previously completed a period of at least 12 months extended leave must complete a further or fresh period of 12 months extended leave before variation to a NCSO can be made.
Circumstances of this Case
7That has arisen in circumstances where Mr Edward Nielson[1] was previously subject to a CSO and living at the Intensive Residential Treatment Program (“IRTP”). In 2018 and 2019 I granted extended leave for 12 month periods. He complied with the conditions of his extended leave and in May 2020 I varied the CSO to a NCSO with Mr Nielson residing in private accommodation in the community. I ordered a review in 12 months’ time.
[1] A pseudonym.
8Within a short time-frame, Mr Nielson breached the conditions of his NCSO by non-compliance and later by allegations of further offending.
9Application was made by the Secretary to the Department of Families Fairness and Housing (“the Secretary”) in November 2020 to vary Mr Nielson’s NCSO ‘back’ to a CSO on the basis of his non-compliance[2]. In December 2020 he was taken into custody in prison due to the alleged further offending.
[2] Pursuant to s.29 of the Act
10In August 2021 I granted the application by the Secretary, and additionally on the review, I varied the order back to a CSO. Mr Nielson was then transferred from imprisonment to the IRTP facility. The full details of that chronology are available in my reasons for varying the NCSO back to a CSO.
11More recently, I held a review of Mr Nielson’s CSO on 4 February 2022. I confirmed the CSO. A further review is listed for September 2022.
12The question raised relates to my powers on the review. In particular, given Mr Nielson completed two previous periods of extended leave of 12 months each, do I already have the power to vary the CSO to a NCSO or does the legislation require him to complete a ‘further’ or ‘fresh’ 12 month period of extended leave immediately before a variation could be made?
Submissions of the Parties
13I gave the parties time to provide written submissions. I received written submissions from the Secretary to the DFFH, the Attorney-General and from Victoria Legal Aid on behalf of Mr Nielson in relation to s.32 of the Act.
14There is no dispute that Mr Nielson was found unfit to stand trial and placed on a supervision order. There is no dispute that he is a “forensic resident” within the meaning of the Act. Therefore, there is no dispute that the condition in s.32(3)(a) applies before the power to vary his CSO to a NCSO is enlivened.
15The Secretary and VLA submit that s.32(3) does not require a further period of extended leave to be completed immediately prior to a variation.
16The Attorney General submits that given the purpose of the Act is to provide for a graduated reintroduction to the community, s.32(3) should be read as requiring a period of extended leave to be completed immediately prior to any variation of a CSO to a NCSO.
Section 32
17Section 32 is in the following terms:
(1) On an application under section 31 for variation of a custodial supervision order or on a review of a custodial supervision order directed under section 27(2) or on a further review of a custodial supervision order directed under subsection (5) or section 33(2), 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.
(2) The court must not vary a custodial supervision order to a noncustodial 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.
18The section imposes a further requirement where a person is a forensic patient or resident:
(3) In the case of a forensic patient or forensic resident—
(a) the court must not vary a custodial supervision order to a noncustodial supervision order (whether during or after the nominal term) unless the forensic patient or forensic resident has completed a period of at least 12 months extended leave granted by the court under section 57; and
(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 forensic patient or forensic resident has complied with any conditions of their extended leave.
19And finally:
(4) If the court varies a custodial supervision order to a non-custodial supervision order before the end of the nominal term, that nominal term continues to run.
(5) The court may direct that the matter be brought back to the court for further review at the end of the period specified by the court.
(6) A direction may be given under subsection (5) more than once.
Principles
20There is no dispute between the parties as to the fact this is an exercise in statutory interpretation conducted taking account of the purpose of the Act.[3] There is no dispute as to the principles applicable in that regard.
[3] Colonial Range v CES Queen [2016] VSCA 328
21In summary, the purpose of the Act as a whole must be identified. The provision under construction should be construed in a way which is consistent with the language and purpose of all provisions of the statute. When the ordinary meaning of the text is consistent with the legislative purpose the Court should adopt that as the legal meaning. If there is more than one possible construction the section should be interpreted in a way which promotes the purpose of the Act. Certain circumstances exist which would permit a departure from the ordinary meaning of a provision, though none are relevant here.
Secretary to the Department of Fairness Families and Housing
22The Secretary submits that on a plain reading of s.32(3)(a) completion of a single period of extended leave satisfies the pre-condition in that sub-section.
23The Secretary submits that s.32(3)(b) obliges the Court to consider any earlier grant/s of extended leave prior to any second or subsequent variation of a CSO. Timing of the earlier extended leave will be relevant to whether the Court can be satisfied of the serious endangerment test in s.32(2).
24The Secretary points out that there are other circumstances where the Act does not require a period of extended leave before variation of a CSO to a NCSO, such as where a person is committed to prison on a CSO. The sole question for the Court would be whether the serious endangerment test is met, in conjunction with the over-arching principle of s.39 and considerations in s.40.
25Similarly, at a Major Review under s.35 the Court must vary a CSO to NCSO unless the serious endangerment test in s.35(3)(a) is not met. Extended leave is not a pre-condition.
26The Secretary submits this demonstrates that the purpose of the Act of graduated reintegration should not be read to include a requirement for a current or immediate 12 months of extended leave on every application for variation. The Secretary submits this would result in an interpretation which is more restrictive on the liberty and personal autonomy of the person subject to a supervision order and as such, unambiguous language would be required were that the legislative intention.
Victoria Legal Aid on behalf of the Reviewee
27Ms Ridley on behalf of Mr Nielson adopted the submissions of the Secretary.
28She also relies on comments in the Second Reading speech and the overall provision and scheme of the Act to submit the Attorney General’s approach is inconsistent with the scheme and purpose of the Act.
29Ms Ridley highlights the need for the Act to respond with a high degree of flexibility to the needs of the individual in each case. In particular, the Minister’s comments that –
The bill provides for a high degree of flexibility in terms of treatment, the provision of services and the degree of supervision to which a person is subject in order to facilitate the tailoring of appropriate conditions in each individual case.[4]
[4] Victoria, Parliamentary Debates, Legislative Assembly, 18 September 1997, p186 4 Momcilovic v The Queen [2011] HCA 34
30 Ms Ridley submits that the principle of legality also requires the Act to be construed to avoid or minimize the encroachment on rights and freedoms of an individual.4 She submits if there is ambiguity in the legislation, the purpose of which involves an interference with the liberty of the subject, it should not be interpreted to require another 12 month period of leave to occur immediately as this would be more restrictive, making progression from a CSO to NCSO more onerous.
Attorney General
31The Attorney-General submits that such an interpretation is inconsistent with the graduated step-down process provided for under the Act.
32The Attorney General also relies on the intention to provide for a flexible approach tailored to the individual’s treatment and supervision needs. Ms Pekevska on behalf of the Attorney General submits that the flexibility recognises that a person subject to a supervision order may have periods of positive progress and may, at times, require further treatment and supervision, ‘such is the unique complexity of a mental impairment and an individual’s circumstances’.
33Given the Act requires the Court to take into account the level of compliance with extended leave, the Attorney General submits that a plain reading of s.32 means that each time an application is made for variation the court must not vary the CSO unless the person has completed 12 months extended leave immediately before that application. She submits this is consistent with the comments by Coghlan JA in Re LB[5] that extended leave should be viewed as a step on the path to variation to a NCSO. Further, that that is a plain reading of the Act consistent with the graduated process towards final revocation as described by Callinan J in R v Robinson[6].
[5] Re: LB [2020] VSC 232
[6] R v Robinson (2004) 11 VR 165
34The Attorney General submits extended leave is akin to a test period of community living for a person subject to a CSO, enabling the Court to assess not only risk, but also requiring the Court to assess compliance before an application for variation under section 31 can be determined. As such a person’s progress during a past period of extended leave may not inform an assessment of current progress or a future graduated transition plan back into the community. Requiring a current period of extended leave is in accordance with the scheme of the Act and consistent with taking a risk-based or cautious approach.
35The Attorney General submits that the Secretary and VLA’s reading of the section would serve to undermine the utility of section 32(3)(b). Further that the Secretary’s submission incorrectly combines the serious endangerment test with the express requirement for the court to consider a person’s compliance with extended leave.
36Other circumstances relied on by the Secretary which do not require extended leave before variation, are said by the Attorney General to be different factually. Further that the Major Review process is a safeguard and as such cannot assist in interpretation of s.32.
37The Attorney General argues that the mandatory statutory requirement of extended leave should not be considered as being more restrictive given it is a step towards decreasing the level of supervision.
38Finally I was referred to the case of Re PEL[7] as an example where a fresh period of extended leave was instated following variation of a NCSO back to a CSO and prior to a further variation.
[7] Re: PEL [2018] VSC 786R
The Legislative Scheme
39Relevantly the purpose of the Act in s.1(c) is to provide new procedures for dealing with persons who are unfit to stand trial or who are found not guilty because of mental impairment.
40Part 5 sets out the regime for supervision orders. Pursuant to s.26 the Court must make a supervision order for a person declared unfit or not guilty by reason of mental impairment. Under sub-section (2) it is in the discretion of the court whether to (a) commit a person to an appropriate place or to a prison i.e. a CSO or (b) to release them on conditions i.e. a NCSO.
41Under s.27 a supervision order must be for a nominal term and under sub-section
(2) the court may direct a review at any time.
42Application for variation or revocation of an order may be made pursuant to s. 31. Section 32 (extracted above) then sets out the test to be applied to an application for variation and also on any review or further review of a custodial supervision order.
43The test contained in s.32(2) prohibits a variation of a CSO to NCSO unless the serious endangerment test is satisfied.
44The section imposes a further restriction in sub-section (3), prohibiting the Court from varying a CSO (a) where a person is a forensic patient or resident unless they have completed at least 12 months extended leave, and (b) the Court in deciding an application for variation has taken into account whether or not they complied with the conditions of extended leave.
45And finally s.32(4) states that after variation to a NCSO the nominal term continues to run. S.32(5) grants a discretion in the Court to direct a further review at a period specified by the Court, and s.32(6) permits more than one review to be directed.
46Part 6 of the Act sets out the principles on which the Court is to act, and reports and certificates to be considered. In that Part, s.39 establishes the principle of parsimony applicable to all decisions regarding supervision orders:
(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.
47Further, in s.40 the legislation spells out matters to which the court must have regard in deciding whether or not to make, vary or revoke an order, to grant extended leave or revoke a grant of extended leave. Relevantly, those matters include 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; and (d) the need to protect people from such danger.
48Further under s.40(2), the court cannot release a person from custody under Part 5, or significantly reduce the degree of supervision unless it has received and considered (a) the report of at least one registered medical practitioner or psychologist who has personally examined the person …on the possible effect of the proposed order on the person’s behaviour; and (ab) in the case of a person subject to a supervision order, a report of a person having the supervision of that person; and (b) a report under s.41(3).
49A report under section 41(3) must contain (a) a statement of any treatment, therapy or counselling that the person has undergone, or any services that the person has received since the making of the order or the last report; and (b) any changes to prognosis or behavioural problems and the plan for managing same. Specifically per s.41(3A) the purpose of a report under sub-section (3) is to assist the court in determining any application or undertaking any review in respect of the person to whom the report relates.
Judicial Consideration
50 The Act has been considered judicially on a number of occasions. The Court of Appeal in RDM v DPP[8] expressly recognised the purpose of the scheme of Part 5 of the Act is to provide a graduated process of release for a person subject to a supervision order. That is consistent with comments made in the Second Reading Speech.
[8] RDM v DPP (1999) 2 VR 270
Analysis
51I accept the submissions of the parties that the purpose of the legislation is to provide for the safe and graduated re-integration of a person on a supervision order to the community, in line with the principle of parsimony in s.39 and considering the factors in s.40.
52Where a person is a forensic resident on a CSO the most linear version of the graduated progress would look as follows: CSO - grant of forensic leave by the forensic leave panel - grant of extended leave by the Court - variation to NCSO - revocation of NCSO.
53However, as the parties agree, progress through those steps is not always linear and is always case dependent. That fact is catered for in the Act with powers for suspension or revocation of extended leave, and of variation from a CSO to a NCSO, or from a NCSO to a CSO where there has been a breach or on review, and by way of emergency powers. In that way I agree that the Act contemplates a flexible response.
54Section 32 establishes a part of those procedures, namely the power to vary a CSO to NCSO, but for a forensic resident only after completion of a period of extended leave. It is silent with regard to the timing of extended leave.
55On analysis I disagree with the interpretation by the Attorney General that the proper interpretation of the Act is such that a person in Mr Nielson’s circumstances is required to complete a further or fresh 12 months of extended leave before variation can be made. In my view to interpret s.32(3)(a) as requiring a period of at least 12 months extended leave immediately before a variation, impermissibly adds to the ordinary meaning of the section.
56In my view sub-section s.32(3)(b) does not add to or inform the interpretation of the temporal connection between extended leave and variation. That sub-section simply means that the Court must consider the level of compliance with extended leave, regardless of when the period of extended leave occurred. That is not inconsistent with the purpose of Part 5 or of the Act more broadly.
57A Court considering the exercise of its powers on either an application for variation or on a review will always need to examine the performance of the reviewee, whether on extended leave or otherwise. That consideration necessarily informs the assessment to be undertaken under s.32(2) of serious endangerment. I disagree that the Secretary has blurred the two. Compliance or otherwise on extended leave will necessarily be part of the assessment of serious
endangerment. But it is not the entirety of considerations.
58If a period of extended leave is historical, even compliance and good performance is unlikely to convince a court that there should be variation. That would likely require some more recent demonstration of compliance or evidence of other factors which could satisfy the court that the safety of the reviewee or the public will not be seriously endangered if variation occurs.
59The more proximate the extended leave is to the application, the more relevant it is likely to be. Similarly, the more remote that period was, the less relevant it is likely to be and therefore less likely to satisfy the serious endangerment test.
60Put another way, interpreting s.32(3)(a) to mean that completion of a 12 month period of extended leave at some earlier time meets the requirement of that section is not inconsistent with the graduated process envisaged by the Act. That is so because it is not the case that a forensic resident who has had a grant of extended leave for 12 months is automatically entitled to a variation of their CSO to an NCSO. Extended leave is a threshold requirement. It will still be necessary for the Court to consider the person’s progress, which is likely to include compliance with conditions of leave (either through the forensic leave panel or extended leave) in order to be satisfied of the serious endangerment test in section 32(2) and of the principles in sections 39 and 40.
61In my view the Attorney General’s submissions about the need for flexibility contradict her interpretation of the Act. To suggest that every person who is on a CSO, having previously been on a NCSO which was breached or varied back to a CSO, must undertake a further minimum of 12 months extended leave immediately prior to any variation is applying a rigid approach. It does not allow for the individualised response to the unique complexity of a mental impairment and an individual’s circumstances. I accept the submissions of Ms Ridley that it in fact imposes an additional restriction.
62Once the threshold requirement is met it will be a matter of evidence to satisfy the tests under s.32 and under the Act more broadly. Allowing a period of less than 12 months extended leave permits flexibility. In the right case a person may only need 3 or 6 months extended leave to re-stabilise before they meet the serious endangerment test and can be released again to a NCSO. In another case an acute episode which has stabilised may need only forensic leave panel approval or may rely on a s.41(3) report. Stability may be achieved, and demonstrated, in a number of ways including through leave.
63That approach in my view is also consistent with the principle of parsimony.
64Further, that approach does not increase any risk to the community because all safeguards must still be satisfied – the serious endangerment test, consideration of compliance with any extended leave, and the over-arching mandatory considerations under s.40, and by extension consideration of the s.41(3) report. Those are safeguards provided in the legislation before graduated reduction can be granted.
Conclusion regarding s.32
65In my view therefore, provided a person subject to a CSO has completed a period of 12 months extended leave at any time during their Order they will have met the threshold requirement of s.32(3)(a). Whether the CSO is varied is a separate question subject to the test in s.32(2) and subject to the over-arching safeguards in the Act.
And I so rule.
Addendum
Disability Act 2006
66A secondary issue has arisen in this case. Mr Nielson’s placement at the IRTP occurs by operation of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 in conjunction with the Disability Act 2006.
67Pursuant to s.151(4) of the Disability Act 2006 a person undergoing compulsory treatment pursuant to, inter alia, a CSO under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, can only be admitted to a short-term residential treatment facility for a period not exceeding 5 years.
68The IRTP is a short-term residential treatment facility as defined by the Disability
Act 2006. Mr Nielson has been resident at that facility at various times during his CSO. By approximately February 2023 he will have accumulated 5 years’
residency.
69Therefore the secondary question is whether the 5 year limit is intended by the legislature to be a total or cumulative period across the life of a supervision order, or whether time ‘begins to run again’ when a person is readmitted.
70The Secretary and Attorney General have both indicated their position is that 5 years applies to each admission. VLA submits the section contemplates a cumulative or overall total which must not exceed 5 years.
71I intend to seek further submissions from the parties on this second issue.
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