Director of Public Prosecutions v Malham

[2014] VCC 2249

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR X

DIRECTOR OF PUBLIC PROSECUTIONS

v

VICTOR HOWARD MALHAM

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	21 October 2014
CASE MAY BE CITED AS:	DPP v Malham
MEDIUM NEUTRAL CITATION:	[2014] VCC 2249

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hughan	Office of Public Prosecutions
For the Offender	Ms J. Munster	Victorian Legal Aid

HIS HONOUR: 

1In this matter I make the following orders, if necessary I propose to prepare fuller written reasons at a later point, but just dealing with it, given the circumstances, Mr Malham wishing to know, no doubt, what is going to happen and so too the Department and his lawyers, and they are in Bendigo, and Mr Hughan in Melbourne and I am here in Geelong.  I will be brief about it.

2Taking into account the guiding principles and other requirements set out in the Crimes Mental Impairment and Unfitness to be Tried Act, taking into account all the circumstances of the index offence; the unambiguous fact that Mr Malham has a moderate to severe intellectual disability.

3Taking into account the clear and helpful reports provided by their medical practitioners, including the report received subsequent to the jury findings that he was unfit to be tried and subsequently that he committed the offence; taking into account also the current circumstances of Mr Malham and the care provided to him.

4Taking into account s.47 Certificate provided, and the submissions of counsel, including concessions of defence counsel, I am of the opinion that pursuant to s.18(4) of the Crimes Mental Impairment and Unfitness to be Tried Act, I declare that Mr Malham is liable to supervision under Part 5.

5Again, based on all the materials that I have already outlined, and the submissions of counsel, and applying again the principles and provisions of the Act, it is appropriate, in my opinion, to order that the supervision order be a non-custodial supervision order.

6So, pursuant to s.26(2B) of the Crimes Mental Impairment and Unfitness to be Tried Act, Mr Malham is released and made subject of the supervision order to be supervised by the Secretary to the Department of Human Services, with the following conditions.

7I should, before detailing those conditions, indicate that a supervision order is for life, the nominal period, given the offence committed was seven and a half years.

8Pursuant to the provisions of the Crimes Mental Impairment and Fitness to be Tried Act, I fix a review, the first review, being two years from today's date.

9Conditions of the non-custodial supervision order, again taking into account, Mr Malham's current and perhaps reasonably optimistic circumstances, it seems clear that Mr Malham is doing well and the recommendation of those who care for him are that the conditions and circumstances in which he currently lives, continue; that they will become part of an order of the court which he must comply with.  If he does not, there can be breached proceedings brought pursuant to the Act, but, also, on the other side of the coin, if there needs to be any amendment or alterations to the conditions, then that can be done by application by the Secretary or Mr Malham, or any other relevant party.

10So the conditions are these that Mr Malham reside at an address as directed by the Secretary, the Department of Human Services, or his or her delegate.

11Secondly, that Mr Malham, obey all lawful instructions and directions given to him by officers and staff of the Secretary of the Department of Human Services, or his or her delegate.

12Thirdly, that the Department of Human Services Disability Client Services Division, provide Outreach services which will continue, and Mr Malham is to accept case management and Outreach support, including weekly visits and telephone calls from officers of the Department of Human Services Disability Client Services.

13Fourthly, that Mr Malham attend appointments with medical and/or other health professionals and attend and receive services in respect of financial assistance and other services, including alcohol and drug programs, as directed by Disability Services, as is considered appropriate by the persons providing those services.

14As indicated, the supervision order is to commence from - should it be today's date or should it be from the date of the finding by the jury?  We will just pause there for a moment.

15MR HUGHAN:  It should be, I think, from today's date, Your Honour, because the Act provides a situation that once a finding is made before the declarations are - finding by the jury before the declarations that Your Honour comes to are made ‑ ‑ ‑

16HIS HONOUR:  Yes.

17MR HUGHAN:  ‑ ‑ ‑ the reports and so forth are processed and gone through is needed ‑ ‑ ‑

18HIS HONOUR:  Yes, it can backdated if they're in custody, but that is not the situation here, so the supervision ‑ ‑ ‑

19MR HUGHAN:  That seems to be - yes, I'm sorry, I cut across Your Honour.

20HIS HONOUR:  The supervision order is to commence from 21 October 2014.  Pursuant to s.28 of the Act, the nominal term for this order is seven years' and six months'.

21Pursuant to s.35 of the Act, a major review should be undertaken at least three months before the expiration of the nominal terms.  Pursuant to the provisions of the Act as indicated, there will be a review in two years' from 21 October 2014.

22Is there anything further required?

23MR HUGHAN:  Your Honour, it may be just as an abundance of caution - I am sure it is implicit in what Your Honour said, but s.28(4) requires there also to be a setting of the nominal - so when the nominal term is set, the court must declare the day from which the nominal term runs.  It is obviously implicit that it is today, but maybe it should be explicit if anybody's looking at it in the future, and is confused.

24HIS HONOUR:  Yes.  The nominal term.  This order is seven years' and six months' to commence on 21 October 2014.

25ME HUGHAN:  Your Honour please.

‑ ‑ ‑