Neal Richards (a pseudonym)[1] v The Queen [No 2]
[2017] VSCA 174
•30 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2016 0227
| NEAL RICHARDS (A PSEUDONYM)[1] | Appellant |
| v | |
| THE QUEEN [NO 2] | Respondent |
[1]To ensure that 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: | MAXWELL P, SANTAMARIA and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATES OF HEARING: | 1, 15 June 2017 |
| DATE OF ORDERS: | 15 June 2017 |
DATE OF REASONS FOR JUDGMENT: | 30 June 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 174 |
| JUDGMENT APPEALED FROM: | DPP v [Richards] (Unreported, County Court of Victoria, Judge Tinney, 22 May 2015) |
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CRIMINAL LAW – Appeal – Mental impairment – Supervision orders – Person declared liable to supervision – Court required to make supervision order – Whether custodial or non-custodial supervision order – Whether power to make non-custodial supervision order depends on certification of availability of services – Whether court should specify ‘person having the supervision of’ person subject to order – Appeal allowed – Non-custodial supervision order substituted – DPP nominated as supervisor – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 26, 29, 41, 47.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T R Marsh with Mr R De Vietri | Victoria Legal Aid |
| For the Respondent | Mr C B Boyce SC | Mr J Cain, Solicitor for Public Prosecutions |
| For the Secretary to the Department for Health and Human Services | Dr I R L Freckelton QC with Ms J Davidson | Department for Health and Human Services |
MAXWELL P
SANTAMARIA JA
McLEISH JA:
This is an appeal from the making of a custodial supervision order (‘CSO’) pursuant to s 26(2)(a) of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997. The judge who made the order held that a court lacks power to make a non-custodial supervision order (‘NCSO’) in circumstances where there are no facilities or services available for the treatment of a person declared liable to supervision under the Act. He held that there was no alternative under the Act to a CSO to be served in a prison, and made an order to that effect accordingly.
The Crown concedes on the appeal that the construction of the Act adopted by the judge, which the Crown itself had earlier advanced, was in error. For the reasons that follow, when the appeal came on for final hearing we accepted that concession, set aside the supervision order made by the judge and ordered in its place that the appellant be subject to an NCSO.
Background
In 2012, the appellant was charged with several sexual offences, including common law rape and carnal knowledge of a girl under 10, alleged to have been committed between 1974 and 1984. The appellant had a history of psychiatric treatment including inpatient admissions. Police became concerned, during the record of interview, about his presentation. They called a Crisis Assessment and Treatment Team, who assessed the appellant as requiring further medical treatment.
On 7 August 2014, a jury was empanelled to determine whether the appellant was fit to stand trial.[2] The Crown and the defence agreed that he was unfit to do so. A report obtained by the defence from a clinical neuropsychologist, Dr Robert Bourke, opined that the appellant was unfit to stand trial due to a significant cognitive impairment. The report stated that this cognitive impairment probably reflected a combination of an acquired brain injury suffered in 1972, when the appellant was kicked in the head by a horse; cognitive changes following coronary artery bypass graft surgery in 1998; and further changes after a stroke in 2009. A report obtained by the Crown from a forensic psychiatrist, Dr Elena Bhattacharya, endorsed Dr Bourke’s findings. Both experts concluded that the appellant was unfit to stand trial. The jury found the appellant unfit. The judge determined under the Act that the appellant was not likely to become fit to stand trial within the following 12 months.[3]
[2]See Act s 7(3)(b).
[3]See ibid s 11(4)(a).
The judge ordered that the original indictment be severed. Accordingly, two special hearings were conducted in accordance with pt 3 of the Act. In August 2014, the appellant was found by a jury to have committed five of the six charges on the first indictment. The judge declared the appellant liable to supervision pursuant to s 18(4) of the Act. Under s 26(1) of the Act, the court was therefore obliged to make a supervision order in respect of the appellant. The issue that then arose was whether the supervision would be custodial or non-custodial. The judge ordered that a report be provided on the appellant’s mental condition[4] and that the Secretary to the Department of Health and Human Services (‘DHHS’) provide a certificate of available services.[5]
[4]See ibid s 41.
[5]See ibid s 47.
In October 2014, the appellant was found by a jury to have committed two of the four charges on the second indictment. He was again declared liable to supervision. The judge again ordered that a report on the appellant’s mental condition and a certificate of available services be provided.
Peter Stanislawski, forensic psychologist, duly prepared a report dated 12 November 2014, which concluded that further neuropsychological assessment was necessary. Mr Stanislawski reported that his interview with the appellant indicated that the appellant was feigning or exaggerating his psychological impairment so as to avoid a CSO. The DHHS produced a certificate dated 19 November 2014, based on Mr Stanislawski’s opinion, stating that it had no ‘appropriate place[s]’[6] available to accommodate the appellant pursuant to a CSO but that it could provide various support services for his care under an NCSO.
[6]See ibid s 3(1).
At a hearing shortly after the provision of these documents, the judge adjourned the matter so that the additional assessment sought by Mr Stanislawski could be conducted, further reports could be provided and the appellant’s desired accommodation, an aged care facility in Dandenong, could be assessed for its suitability.
Dr Peter Ashkar, forensic psychologist, then prepared a report dated 22 December 2014 stating that his assessment of the appellant ‘provided strong evidence of volitional underperformance associated with feigning/malingering of memory dysfunction’. It was therefore not possible for Dr Ashkar to obtain a valid measure of the appellant’s intellectual and cognitive functioning. Further assessment was suspended. Mr Stanislawski prepared an addendum report dated 12 February 2015. It stated that, while the appellant may have had a cognitive impairment, he did not have an intellectual disability. It also stated that it was impossible to determine whether the appellant had an acquired brain injury due to the appellant’s exaggeration of his symptoms.
Dr Maria Triglia, psychiatrist at the Victorian Institute of Forensic Mental Health (‘Forensicare’), prepared a report dated 26 February 2015 in which she opined that the appellant did not suffer from a mental illness and that it was possible that there was an element of feigning. She considered that, while the appellant probably had a low baseline IQ, he was not in the ‘intellectually disabled range’.
The DHHS prepared a fresh certificate dated 26 February 2015 stating that there were no facilities or services available for the custody, care or treatment of the appellant as he did not have a disability or an intellectual disability within the meaning of the Disability Act 2006.
At a hearing on 3 March 2015, the judge, having received the above materials, again adjourned the matter so that a further certificate could be prepared addressing custodial and non-custodial placements that provided psychiatric services and so that the appellant could seek information directly from his preferred aged care facility.
On 18 March 2015, Forensicare provided a certificate stating that, based on Dr Triglia’s report, it could not provide any appropriate treatments or services. By letter dated 27 March 2015, the Department of Justice and Regulation (‘DJR’) stated that it ‘[did] not consider it had the legislative authority’ to supervise a person subject to an NCSO.
At the next hearing, on 1 April 2015, the matter was adjourned again as the appellant’s solicitors had not made the relevant enquiries of the aged care facility. At a hearing on 23 April 2015 evidence was given by two employees of that facility.
On 22 May 2015, the judge ordered that the appellant be subject to a CSO with a nominal term of 20 years.[7] He did so reluctantly, having indicated that if the Act permitted him to release the appellant to the appellant’s preferred aged care facility on an NCSO, with the DHHS actively engaged in and supervising such an order, he would at least have considered that as an option. The judge considered, however, that since no facilities or services were available, he was driven by the Act to make a CSO to be served in a prison. He held that to do otherwise would be to compel the DHHS to supervise the appellant under an order, notwithstanding that the DHHS had certified under the Act that it had no facilities or services available for that purpose. Acceding to the submission then advanced by the Crown, the judge considered that this course was not open under s 26 of the Act and that prison was the only option remaining.
[7]See ibid s 28(1). By operation of s 27(1), a supervision order operates for an indefinite term. The appellant was granted bail pending appeal, pursuant to which he resided at the aged care facility: see Richards (a pseudonym) v The Queen [2017] VSCA 57.
The appeal
The appellant appealed under s 28A(1) of the Act. His notice of appeal lists five grounds. Grounds 1–2 allege a failure properly to apply ss 39 and 40(1) of the Act, and ground 5 alleges a failure to interpret the Act consistently with the Charter of Human Rights and Responsibilities Act 2006. It is convenient, however, to proceed directly to grounds 3 and 4, which in substance allege that the judge erred in his construction of s 26 of the Act. That is because the Crown concedes these grounds of appeal.[8]
[8]It is therefore not necessary to deal with grounds 1, 2 and 5.
Section 26, which appears in pt 5 of the Act, relevantly provides:
26Supervision orders
(1)If a court declares that a person is liable to supervision under this Part, the court must make a supervision order in respect of the person.
(2)A supervision order may—
(a)commit the person to custody (custodial supervision order)—
(i)subject to subsection (3), in an appropriate place; or
(ii)subject to subsection (4), in a prison; or
(b)release the person on conditions decided by the court and specified in the order (non-custodial supervision order).
(3)The court must not make a supervision order—
(a)committing a person to custody in an appropriate place; or
(b)providing for a person to receive services in an appropriate place or from a disability service provider or the Secretary to the Department of Health and Human Services—
unless it has received a certificate under section 47 stating that the facilities or services necessary for the order are available.
(4)The court must not make a supervision order committing a person to custody in a prison unless it is satisfied that there is no practicable alternative in the circumstances.
…
As mentioned, the certificates issued pursuant to s 47 concluded that no facilities or services were available to the appellant. Notwithstanding this, the appellant contended for an NCSO. The question that arose before the judge was whether a certificate stating that the services referred to in s 26(3)(b) were available was a prerequisite to the making of any NCSO. The appellant argued that the existence of such a certificate was not a prerequisite. The Crown and the DHHS argued, and the judge accepted, that it was. The appellant challenged that conclusion on appeal.
The Crown conceded on appeal, contrary to the position it took before the judge, that the existence of a certificate of available services was not a prerequisite to the making of an NCSO, and that it was open to the judge to make an NCSO that was not subject to the condition in s 26(3)(b). It is convenient to explain the basis of the Crown’s concession before turning to the appellant’s arguments.
The Crown contended that the plain meaning of s 26 is that, if a court makes an NCSO providing for a person to receive services of the type specified in s 26(3)(b), then it must have received a certificate stating that the necessary facilities or services are available. But it is open to a court to make an NCSO that is not subject to the condition in s 26(3)(b). If an NCSO not subject to that condition is sought to be made, it is not necessary for a certificate of the kind referred to in s 26(3) to have been provided.
The Crown submitted that s 29(1) does not weigh against that conclusion. Section 29(1) provides:
A person having the supervision of a person under a non-custodial supervision order (the supervisor), the Secretary to the Department of Health and Human Services may apply to the court that made the order for a variation of the order if it appears to the supervisor, the Secretary to the Department of Health and Human Services that the person subject to the order has failed to comply with it.
It submitted that the comma before ‘the Secretary to the Department of Health and Human Services’ should be read as creating two alternatives (the supervisor or the Secretary), rather than as introducing the Secretary as the supervisor referred to in the first clause. In that way, s 29(1) did not presuppose that the Secretary has a supervisory role under every NCSO made under the Act.
Nor, the Crown contended, do ss 41 and 47 require the result reached by the judge. Section 41(3) provides for the filing by the ‘appropriate person’ of reports concerning the treatment, therapy or counselling that the subject of the supervision order has undergone, and the services that he or she has received, and describing any changes to the person’s prognosis or behavioural problems. ‘Appropriate person’ is defined in s 41(4) to mean, relevantly, the Secretary to the DHHS ‘if the person is … receiving treatment or services under a supervision order’ from, among others, a disability service provider or the Secretary. The Crown contended that this does not mean that reports under s 41(3) must be filed in respect of all persons subject to an NCSO. Rather, by reason of the ‘if’ in the definition of ‘appropriate person’, the reporting obligations need only be met if that definition is engaged and there is such a person in respect of the order in question. As to s 47, it merely requires the provision of certificates relating to the availability of services if those services are to be provided for in a supervision order, rather than compelling the provision of the services described in s 47 pursuant to every supervision order.
The appellant adopted the Crown’s submissions. He also pointed to s 47(3), which provides that if there are no facilities or services available, the certificate may contain other options that the Secretary to the DHHS considers appropriate for the court to consider in making the proposed order. Section 47(3) therefore contemplates the making of a supervision order where no services are available. The judge’s interpretation gave s 47(3) no work to do.
Lastly, both parties contended that, if their submissions as to the ‘plain meaning’ of the Act were rejected, then the principle of legality would operate to favour the construction that an NCSO was open, as this construction would entail the least infringement on the appellant’s common law rights.
Construction of s 26
The parties’ submissions as to the proper construction of s 26 should be accepted.
The language of s 26(2)(b) is broad. The Court is empowered to release the person ‘on conditions decided by the court and specified in the order’. In accordance with ordinary principles of statutory construction, such conditions are to be those consistent with furthering the statutory purposes of the order. In that regard, s 39(1) provides:
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.
It should also be recalled that s 26(4) requires the court not to make a supervision order committing a person to custody in a prison ‘unless it is satisfied that there is no practicable alternative in the circumstances’.
Section 40(1) specifies matters to which the Court ‘must have regard’ including when deciding whether or not to make an order:
(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 the present case, many of the matters specified in s 40(1) have no direct application because the appellant has no identified mental impairment and there are accordingly no resources available for his treatment. However, the matters to be taken into account plainly include the need to protect the community from the risk which the appellant has been found to present. By virtue of ss 26(4) and 39(1), that risk is to be managed as far as possible without resort to a CSO.
Consistently with these provisions, this Court in NOM v Director of Public Prosecutions drew attention to the parliamentary debates in respect of the Bill to enact the Act, where it was said that the emphasis of the legislation was on appropriate treatment, rather than punishment, and that the least restrictive alternative to a custodial disposition should be pursued.[9]
[9](2012) 38 VR 618, 641 [68] (Redlich and Harper JJA and Curtain AJA).
The approach required by ss 26(4) and 39(1), which mirrors the common law principle of legality, indicates that if s 26 is capable of more than one construction, that which allows a less restrictive impact on freedom and personal autonomy, consistent with the safety of the community, is to be preferred.
In our opinion, there is such an interpretation. In short, the limitations imposed by s 26(3)(b), which prevents a court from requiring a person to receive services in an ‘appropriate place’ or from a disability provider or the Secretary without a certificate under s 47 stating that the necessary facilities or services are available, are capable of operating of their own force. It is not necessary to imply from those limitations that s 26(2)(b) is confined so that the conditions upon which an NCSO is made must provide that a person receive services either in an appropriate place or from a disability provider or the Secretary.
The judge was fully aware of all the above provisions but considered that the effect of s 41 was that a person must receive treatment or services under a supervision order. Section 41 provides for the ‘appropriate person’ to ensure that the court is informed as to the mental condition of a person declared liable to supervision, both before an order is made and at intervals of not more than 12 months thereafter. The judge considered that this provision ensures that there is a person to supervise compliance with the order.
The definition of ‘appropriate person’ in s 41(4) refers to the Secretary to the DJR if the person is in custody in a prison, or the Secretary to the DHHS if the person is either in custody in a residential facility or institution or a mental health service, or receiving treatment or services under a supervision order from a residential facility or institution, a disability service provider, a mental health service or the Secretary to the DHHS. As the judge observed, if a person is receiving no such treatment or services, there is no ‘appropriate person’ under the Act to ensure that reports as to the person’s mental condition are provided. By implication, the judge reasoned, that result would undermine the supervisory purposes of the Act. It would also be at odds with an assumption arguably implicit in s 40(2)(b), which requires a court making a supervision order to consider ‘the report’ submitted under s 41 before releasing a person from custody or significantly reducing the person’s supervision.
However, an alternative approach to s 41 is that if a person is not receiving treatment or services (and is not in custody), then it simply follows that no reports as to his or her mental condition are required. It is understandable that reports would not necessarily be required in that situation. As the appellant argued, the Act recognises that an NCSO might be made even where no services or facilities are available. Section 47(3) provides:
If there are no facilities or services available, the certificate may contain any other options that the Secretary to the Department of Health and Human Services considers appropriate for the court to consider in making the proposed order.
This provision recognises that, despite a certificate confirming that no facilities or services are available, the court might still need to consider other options. On the narrow view of s 26(2)(b), there are no other options but custody in prison. But by envisaging alternatives to that course which the Secretary might wish to suggest to the court, s 47(3) indicates that s 47 and other provisions concerning the provision of services by the DHHS are facultative; they do not limit the power in s 26(2)(b). Again adopting an interpretation of the Act which least restricts the freedom of a person under supervision, consistent with the safety of the community, the better view is that ss 41 and 47 do not mandate the narrow construction of s 26(2)(b) favoured by the judge. On that basis, the requirement under s 40(2)(b) to consider ‘the’ report submitted under s 41 is to be read as a requirement to consider ‘any’ such report.
For these reasons, a court may make an NCSO even if it does not receive a certificate stating that the services referred to in s 26(3)(b) are available.
On the other hand, we agree with the judge’s observation that there must be somebody who is charged with supervising a person subject to a supervision order. Otherwise the legislative purpose of protecting the safety of the community[10] would not be achieved. In our opinion, this can be achieved by making orders directed to that end. We explain this aspect of the matter below.
[10]Act s 40(1)(d).
Further disposition of the appeal
Section 28A(3) provides for this Court’s powers on appeal against the imposition of a supervision order. It states:
On an appeal under this section, the Court of Appeal may—
(a)confirm the supervision order; or
(b)set aside the supervision order and make another supervision order in substitution for it; or
(c)set aside the supervision order and remit the matter, with or without directions, to the court that made it; or
(d)set aside the supervision order and order the person who was subject to the supervision order to be released unconditionally.
For the purposes of the appeal, the appellant sought a report from Associate Professor Warwick Brewer, clinical neuropsychologist. The report stated that the overall diagnostic picture
reflect[ed] a man with mild cognitive impairment who suffer[ed] significant anxiety in the context of longstanding features of post‑traumatic stress and who remains highly vulnerable for depression. In addition, [the appellant] demonstrates dependent and obsessive personality traits that reflect, in part, socio-developmental immaturity.
Associate Professor Brewer found that the cognitive profile depicted in the assessments undertaken was unreliable due to the appellant’s unpredictable ‘behavioural decompensation’. This was probably associated with the appellant’s history of post‑traumatic stress disorder (‘PTSD’). The report also found that suggestions of feigning or malingering were ‘unconvincing’, given that the appellant had already been found to have committed the offences, that he demonstrated unresolved emotional stress, and that his attempts at feigning were inconsistent and disorganised such that ‘cognitive and emotional compromise’ could not be ruled out.
Associate Professor Brewer stated that he was not an expert in rehabilitation or forensic risk. However, he considered that the appellant was a moderate risk to young girls in particular, and to the community at large, once he found his confidence improving if he had a stable, permanent position at the aged care facility. He stated that the appellant should remain supervised (by his wife, family members, or staff from the aged care facility) if out in the community. He stated that a review of the order after 12 months was appropriate, so as to monitor whether the appellant’s risk of reoffending was re-emerging.
Associate Professor Brewer stated that the aged care facility could provide adequate support services while the appellant was resident there. He considered that the appellant should engage weekly in therapy for at least 18 months in order to address his PTSD, which was the driver for his risk of reoffending, ongoing anxiety, depression and cognitive decompensation.
The Crown requested a psychiatric report from Dr Danny Sullivan, forensic psychiatrist. Dr Sullivan examined the appellant on 14 May 2017, and produced a report dated 22 May 2017. Dr Sullivan took the view that the appellant suffered from mild cognitive impairment, probably associated with cerebrovascular disease and the sequelae of cardiac bypass. He could not associate the impairment with past head trauma (the horse kicking the appellant in the head). Dr Sullivan also stated that the appellant suffered from recurrent depressive disorder of mild–moderate severity, albeit his symptoms remained mild while on bail at the aged care facility. He also considered that the appellant suffered from PTSD stemming from sexual abuse that the appellant reported suffering when he was a boy. Finally, Dr Sullivan believed the appellant to suffer from mixed personality disorder with dependent and borderline elements, having regard to the fact that the appellant was ‘keen to be looked after and prone to decompensate after stress’.
Dr Sullivan observed that he had limited information about the appellant’s offending. On the basis of the information available, he described the risk as low. Dr Sullivan said that this risk could be managed in the appellant’s current setting. He considered that the vigilance of staff at the aged care facility could contain any risk of offending against female visitors. The risk could also be managed by requiring that the appellant be restricted in his access to the community, for instance by way of GPS bracelet or by only allowing him access to the community when accompanied by aged care facility staff.
Dr Sullivan did not consider that psychological treatment would be fruitful, having regard to the appellant’s limited capacity to apply himself to cognitive testing and his anxiety when being assessed. Still less would he benefit from a group treatment program. Anti-libidinal medication could pose a risk to the appellant’s health.
Dr Sullivan prepared an addendum report dated 29 May 2017. For the purposes of this report he was provided with the complainants’ evidence from the special hearings. Dr Sullivan described this additional information as revealing ‘significant risk factors’ and considered that the possibility of the appellant having unsupervised access to the community should be ‘curtailed entirely’. The appellant should be under direct observation by staff of the aged care facility when in contact with the community. Within the aged care facility, Dr Sullivan said that it should be ensured that the appellant has no possibility of unsupervised contact with female children.
On 31 May 2017, the day before the first hearing of the appeal, the parties advised the Court that they had reached agreement as to the appropriate order. They sought an NCSO, to be reviewed no later than two years after the date of the order, with conditions requiring that the appellant:
(a) continue to reside at the aged care facility;
(b) not leave the premises of that facility other than in the company of a staff member or an immediate family member;
(c) not drive a motor vehicle;
(d) seek a referral from his general practitioner for a mental health plan for the purpose of obtaining counselling and treatment for PTSD as appropriate; and
(e) not have any contact with children under the age of 16 years.
On 1 June 2017, shortly before the hearing, the Court received a letter from the General Manager — Operations of the aged care facility. The letter confirmed the willingness and ability of the staff at the facility to encourage and assist the appellant to comply with the terms of the NCSO and the willingness of the facility to enter into a memorandum of understanding with the person having supervision of the appellant to notify that person of any breach of those terms and provide information about the appellant necessary for review of the order by a court.
At the hearing on 1 June 2017 it became apparent that there remained outstanding the question who would be the ‘person having supervision’ of the appellant for the purposes of the Act. A ‘person having supervision’ has important functions under pt 5 of the Act. Under s 29(1), he or she may apply for variation or revocation of an NCSO if it appears that the person subject to the order has failed to comply with its terms. Under s 31(1), a ‘person having the custody, care, control or supervision’ of the person subject to an NCSO may apply for variation or revocation of a supervision order.[11] Additionally, the parties’ agreed position contemplated a review of the NCSO[12] no later than two years after the date of the order. Although the Act does not prescribe the person obligated to bring the matter before a court for review, the ‘person having supervision’ of the appellant was an obvious candidate.
[11]See also Act ss 30 (emergency power of apprehension), 30A–30B (right to apply for an arrest warrant if the person subject to the order has left Victoria).
[12]See Act s 27(2).
Ultimately, both parties expressed the view that the Secretary to the DHHS should be the ‘person having supervision’ of the appellant. The Secretary was not represented at the hearing,[13] so the matter was adjourned to 15 June 2017 so that she could be notified of the prospect of, and make submissions in relation to, this Court ordering that she undertake the role of ‘person having supervision’ for the purposes of the Act.
[13]The Secretary had previously advised the Court of Appeal registry that she did not intend to intervene or seek to be heard.
In written submissions filed in advance of that hearing, the Secretary pointed out that she had not had any discussions with the aged care facility regarding the terms of any NCSO. She submitted that it was ‘neither necessary nor appropriate’ for the Secretary to be the person having supervision of the appellant. The Secretary observed that the Act deems persons detained in certain facilities pursuant to a CSO to be in her custody.[14] The entity responsible for supervising the person subject to an NCSO, on the other hand, depends on the conditions of the order and the services that the person receives.
[14]See Act ss 26(8)–(9).
The Secretary contended that the Act did not require that there be a supervisor in respect of an NCSO. While the ‘person having supervision’ was empowered under the legislation to do certain things, in each instance there were other persons who could exercise those powers. For example, the power to act upon a breach of an NCSO, contained in s 29, was conferred on both the person having supervision and the Secretary. Nor did the Act require that there be a supervisor in order to initiate a review pursuant to s 27(2). There was no reason why the Director of Public Prosecutions or the appellant could not bring the matter back before the Court themselves. In addition, the aged care facility was precluded, by reason of the Privacy Act 1988 (Cth), from providing information relating to a breach of the proposed NCSO to the Secretary. It would not, however, be prevented from providing that information to the Director.[15] Further, the Director was entitled, pursuant to s 31 of the Act, to seek a variation of a supervision order. Finally, to the extent that it was contended that the Secretary should be the person having supervision of the appellant in order that she could enable preparation of material for a review of the proposed NCSO, the Secretary contended that she was in no better position than the Director to obtain material from the aged care facility.
[15]Privacy Act 1988 (Cth) s 6 (definition of ‘enforcement body’ para (ea)), Australian Privacy Principle 6.2(e).
The Secretary also observed that the Victorian Law Reform Commission (‘VLRC’), in its review of the Act, had considered the respective roles of the Director and the Secretary under the Act and recommended that the Director, not the Secretary, should be a party to proceedings under the Act to represent the interests of the community, with the Secretary’s role being to assist the court by providing reports and evidence on the treatment and management of the person on the supervision order.[16] The report noted the Director’s existing role in respect of reviews of indefinite sentences and proceedings under the Serious Sex Offenders (Detention and Supervision) Act 2009.[17]
[16]Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Report No 28 (2014) 286–8 [8.146]–[8.160], 290 [8.173]–[8.178].
[17]Ibid 287 [8.153].
The Director maintained that the Secretary was the appropriate person to supervise the appellant under an NCSO but acknowledged that the Director was better placed to manage the risk that the appellant presented to the community. Senior counsel indicated that the Director was prepared to undertake the role of supervision if the Court considered that to be appropriate.
Counsel for the appellant also maintained that the Secretary was an appropriate supervisor but did not object if the role was to be undertaken by the Director.
Conclusion as to supervision
There is force in the Secretary’s submission that the Act already provides for the person who is to exercise various powers that may need to be considered in the course of an NCSO. So, the Secretary can apply under s 29(1) for a variation of the order following breach or under ss 30A and 30B for a warrant to arrest the person subject to the order, and the Director or the Attorney-General can seek to have the order varied or revoked pursuant to s 31. As such, the Act does not require that the court making an order identify a person having supervision of the person subject to the order.
On the other hand, the Act does not preclude the making of such an order either. Section 26 does not confine the conditions which the court may decide to attach to an NCSO. In the present case, we considered that the fact that it was proposed that the appellant reside at an aged care facility, and receive no services from the DHHS or Forensicare, presented a heightened risk that any breaches of the conditions of his NCSO might go undetected. Our concerns in that regard were reinforced by the evident reluctance of both the Director and the Secretary to undertake any formal ongoing role in relation to the supervision of the appellant in the unusual circumstances of the present case. For these reasons, we determined that an order should be made identifying a person having supervision of the appellant under the order.
In the end, we considered that the Director was best placed to undertake the necessary supervision. Since no services are to be provided by the DHHS, the principal matter of public interest that arises for the term of the proposed order is the risk that the appellant might breach the conditions of the order. Those conditions are intended to protect the community from the risk which the appellant otherwise presents. We have, in particular, been mindful of Dr Sullivan’s advice that the appellant should not be permitted unsupervised access to the community, or unsupervised contact with female children within the aged care facility. We also noted the Director’s acceptance, which is consistent with the VLRC report, that he is best placed to manage risk to the community. Finally, it is important that the aged care facility might be constrained by privacy laws from providing some information to the Secretary, but not to the Director.
Orders
Following argument, we made some modifications to the form of order proposed by the parties.[18] In particular, we adopted an expansive definition of ‘contact’ in accordance with amendments suggested by the Secretary, required the appellant to comply with the counselling and treatment recommended in the proposed mental health plan and ordered that reports be served before the proposed review of the order in the County Court in two years.
[18]See [48] above.
For reasons already given, we directed that the Director ‘is the person having supervision of the appellant under the [NCSO] for the purposes of the Act, and must take steps to ensure that he is informed by the staff of [the aged care facility] of any failure by the appellant to comply with the terms’ of the order. In that regard, we ordered as conditions of the NCSO that the appellant consent to the Director and the Secretary providing the aged care facility with information about his offending and any medical or other reports relevant to his risk of reoffending, and that he consent to the aged care facility providing information to the Director and the Secretary as to his compliance with the conditions of the NCSO.
The orders which we made were otherwise substantially in the form of those proposed by the parties.
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