R v Balfour

[2002] VSC 92

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1486 of 2001

THE QUEEN

v.

TRENT LUKE BALFOUR

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JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 MARCH 2002
DATE OF SENTENCE:	4 MARCH 2002
CASE MAY BE CITED AS:	R. v. BALFOUR
MEDIUM NEUTRAL CITATION:	[2002] VSC 92

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CATCHWORDS:      Criminal Law – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Intentionally cause serious injury – Not guilty because of mental impairment – Release on non-custodial supervision order – Conditions imposed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms. S. Pullen	Office of Public Prosecutions
For the Accused	Mr. D. Drake	Victoria Legal Aid

HIS HONOUR:

1. Having regard to the evidence of Dr Carroll and the views expressed in his report, I am minded to release Trent Balfour on a non-custodial supervision order on the conditions set out in the earlier report of Dr Carroll, namely the report dated 11 January 2002.  Now Ms Pullen, do I have to fix a nominal term?

1. MS PULLEN: Yes, Your Honour, and in relation to that, s.28 of the Act, "The court must set a nominal term of a supervision ... (reads) ... with the following table." This is a s.16 offence, it's therefore defined within the Sentencing Act as a serious offence and the maximum is 20 years, so therefore the nominal term is 20 years. I, however, refer Your Honour to s.27(2), so that first of all the nominal term is 20 years, but in the case of a non-custodial supervision order the court may direct when making the order that the matter be brought back to the court for review at the end of the period specified by the court. It's a 'may,' it isn't a 'must' but it is a matter for Your Honour if you wanted to, other than allowing just the normal course of events and applications to be made. If Your Honour wished to do that you may set a nominal term - sorry, not a nominal term, my mistake - a period of time for review.

1. HIS HONOUR:  Yes.  That has no effect, I take it, on the original nominal term.

1. MS PULLEN:  That's so, Your Honour, it's a nominal term of 20 years but you may, as I say, s.27(2).

1. MR DRAKE:  If I could assist Your Honour, whilst my learned friend was speaking I took the option of asking my instructor to speak to Dr Carroll and he indicated one or two years would be a relevant period of time, rather than the 20 years for him to be reviewed.

1. HIS HONOUR:  Yes, that's so, but these matters tend to take their own course.

1. MR DRAKE:  They develop their own direction and course, I understand that, and a nominal term doesn't take that into account necessarily.

1. HIS HONOUR:  No.

1. MR DRAKE:  Given that the sub-section, s.27(2), does speak of a period, that the court may specify a period, that seems to suit - - -

1. HIS HONOUR:  Yes.  I don't want to bring Mr Balfour back unnecessarily.  Perhaps I could hear from Dr Carroll again as to whether he thinks that's appropriate.

   
   

   Dr Carroll, perhaps you could just stand up there rather than come back into the box.  I have got the option of making an order that the matter be brought back to court for review at the end of a specified term.  I'm not conscious of having made such an order in the past but do       you see some benefit in that?

1. DR CARROLL (from body of court):  (Indistinct.)

1. HIS HONOUR: Thank you. Pursuant to the terms of s.28 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 I set a nominal term for the supervision order of 20 years. Pursuant to s.27 of that Act I direct that the matter be brought back to the court for review at the end of a period of two years from today's date.

1. Now, are there any other orders I need to make?

1. MS PULLEN:  No, Your Honour.  Not at this point of time.

1. MR DRAKE:  No, Your Honour.

1. HIS HONOUR:  And is it sufficient I pronounce them from here or does something have to be drawn up for signature?  Perhaps you could look into that.

1. MS PULLEN:  Yes, I will.  Certainly if they could be pronounced by Your Honour and I'll just have to - I'll have a quick word to Dr Carroll in a moment, if that's - - -

1. HIS HONOUR:  Yes, well, I'll leave that with you.

1. MS PULLEN:  Thank you, Your Honour.

1. HIS HONOUR:  I've indicated what the conditions are, the term of the order and the time of the review.  And if there's any formalities if you'd inform me I'll attend to them.

1. MS PULLEN:  Thank you.

1. MR DRAKE:  Thank you, Your Honour.

1. HIS HONOUR:  Well, Mr Balfour, you're getting a chance to stay in the community and the ball's in your court.  You've got to comply with the various directions, which are only in place for your own benefit, so that hopefully you can put all this behind you and live a happy and productive life in the community.  In any event I'm giving you that chance.  You've heard what happens if anything goes wrong; the order can be revoked.  And at that point it may become a custodial supervision order.  I'm sure Mr Drake has explained that to you.

1. PRISONER:  Yes, sir.

1. MS PULLEN:  The only matter, Your Honour, I might ask whether or not there should be some time that he first report to Forensicare or to the authorised psychiatrist; within 24 hours, 48 hours, or something like that.  I can't hear that, I'm afraid.

1. HIS HONOUR:  Apparently he has an appointment on Wednesday.

1. MS PULLEN:  There you go.  Thank you very much, Your Honour.

1. HIS HONOUR:  All right.  I suppose we can formalise it by directing that he report on Wednesday 6 March to the authorised psychiatrist.

1. MS PULLEN:  Thank you, Your Honour.  Thank you.

1. MR DRAKE:  Thank you, Your Honour.

1. MS PULLEN:  If Your Honour pleases.

1. HIS HONOUR:  Thank you for your assistance.  We'll adjourn.

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