Neal Richards (a pseudonym)[1] v The Queen [No 2] - [2017] VSCA 174

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] VSCA 174
Decision Date: 30 June 2017

CaseChat Overview and Summary

The appellant, identified as Neal Richards, was convicted of charges including attempted armed robbery, and the Supreme Court declared him liable to supervision under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The court subsequently made a custodial supervision order, which Richards appealed, contending the court should have made a non-custodial supervision order instead. The appeal centred on the legal framework governing supervision orders for individuals declared liable to supervision due to mental impairment. The primary issues were whether the court's power to make a non-custodial supervision order was contingent on a certification of the availability of services and whether the court was required to specify a person having the supervision of the individual subject to the order.

The Court of Appeal determined that the statutory provisions did not necessitate a certification of service availability before a non-custodial supervision order could be made. The court found that the absence of such a certification did not preclude the making of a non-custodial supervision order, as the relevant statutory language permitted the court to exercise its discretion in this matter. Furthermore, the Court of Appeal held that while the Act required the court to specify a person having the supervision of the individual, the court was not obligated to identify that person at the time of making the order, provided that the court was satisfied that appropriate arrangements would be made for supervision. Consequently, the Court of Appeal allowed the appeal, substituted a non-custodial supervision order for the custodial order, and nominated the Director of Public Prosecutions as the supervisor.

Orders