R v Bowen - [2015] SASCFC 111

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BOWEN
[2015] SASCFC 111
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Bampton)
13 August 2015
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - REVIEW
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - GENERALLY
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
Appellant was found not guilty of one count of murder and declared liable for supervision pursuant to Part 8A of the Criminal Law Consolidation Act 1935 (SA). Appellant was committed to detention and the limiting term set was life.
Application for variation of supervision order to permit escorted day leave was dismissed by a single Judge. Appellant appeals against the decision dismissing the application.
Victims’ next of kin sought leave to be represented on the appeal.
Held (Kourakis CJ, Peek and Bampton JJ agreeing):
1. The Judge did not determine the application before the court. The exercise of the Judge’s discretion miscarried because the Judge had regard to an irrelevant consideration, namely the possibility of future applications for more liberal release on licence.
2. There was no evidence to support a finding that nothing less than institutional detention could protect the public.
3. It was not a proper exercise of the Judge’s discretion in deciding the application to obstruct any future application by denying the appellant the prospect of demonstrating capacity for rehabilitation.
4. Refusal of application set aside.
5. It is not necessary to make any further orders because given the lapse of time the most appropriate course is for the appellant to make a fresh application supported by up to date material.
6. A prescribed person does not have a right of appearance on an appeal to set aside a supervision order, or variation thereto.
Criminal Law Consolidation Act 1935 (SA) Pt 8A, s 269; Mental Health Act 2009 (SA) s 57, referred to.
R v Steele (No 2) [2012] SASC 162, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Supervision order", "mental health supervision order", "day release", "variation to supervision order", "escorted release", "irrelevant consideration", "Part 8A"

R v BOWEN
[2015] SASCFC 111
Court of Criminal Appeal: Kourakis CJ, Peek and Bampton JJ
KOURAKIS CJ:
Background

This is an appeal against a decision of a single Judge of this Court, dismissing an application to vary a supervision order under Part 8A Division 4 Criminal Law Consolidation Act 1935 (SA) (the Act).
The Index Offence
On 8 April 2002, the appellant was found not guilty of one count of murder. The offence is referred in the material before the Judge as the index offence, a term which I will also use. The offences were referred in the material before the Judge as the index offence, a term which I will also use. He was declared liable to supervision, pursuant to Part 8A of the Act and committed to detention. The limiting term set was life. Mr Bowen has resided at James Nash House since that time.
The learned Judge set out the circumstances of the index offence:[1]
The victim, Mr Hurst, had advertised a Tikka .17 rifle for sale. Mr Bowen had decided to acquire a firearm because of fears he held for his safety from other quarters; fears which were based on delusions. Mr Bowen telephoned him about the advertisement. A little later that day Mr Bowen purchased army camouflage clothing from Aussie Disposals. Wearing that clothing Mr Bowen attended that evening at Mr Hurst’s home, spoke to him about the rifle and arranged to speak further on the following day. On the next day they met by arrangement at a service station and together drove to an area of scrub where Mr Hurst gave the rifle to Mr Bowen to enable him to test fire it. He did so. Shortly thereafter he shot Mr Hurst in the back of the head, intending to kill him. Mr Bowen told psychiatrists that he shot Mr Hurst in self-defence, fearing that Mr Hurst was about to kill him.
Mr Bowen then took the victim’s wallet, vehicle and the firearm and drove away. In the days following he was seen in the hills where he abandoned Mr Hurst’s vehicle and remained roaming about on foot. Between 21 and 24 November 2000 he broke into four homes, stealing clothing, goods, food and money. When he was finally arrested on 24 November he was interviewed and made admissions in relation to the shooting and the dishonesty charges.
[1] R v Bowen [2014] SASC 81 at [38]-[39].
On 1 November 2012, the appellant applied for a variation to the detention order, pursuant to s 269P(1) of the Act. The application itself sought an order “releasing the defendant from detention at James Nash House subject to such conditions of licence as the [Court] may consider appropriate”. During the course of the hearing the order sought was narrowed to an order permitting the appellant to have escorted day leave from James Nash House. On 25 June 2014, that application was refused.
The Appeal
Appeals against orders made pursuant to Part 8A of the Act may be brought pursuant to s 269Y of the Act which provides as follows:
269Y—Appeals
(1)An appeal lies to the appropriate appellate court against a declaration that a defendant is liable to supervision under this Part in the same way as an appeal against a conviction.
(2)An appeal lies to the appropriate appellate court against a supervision order in the same way as an appeal against sentence.
(3)An appeal lies with the permission of the court of trial or the appropriate appellate court against a key decision by the court of trial.
(4)A key decision is—
(a)     a decision that the defendant was, or was not, mentally competent to commit the offence charged against the defendant; or
(b)     a decision that the defendant is, or is not, mentally unfit to stand trial; or
(c)     a decision that the objective elements of an offence are established against the defendant.
(5)On an appeal, the appellate court may exercise one or more of the following powers:
(a)     confirm, set aside, vary or reverse a decision of the court of trial;
(b)     direct a retrial of the case or an issue arising in the case;
(c)     make any finding or exercise any power that could have been made or exercised by the court of trial;
(d)     make ancillary orders and directions.
It is not obvious to me that an order dismissing an application to vary a supervision order is an appellable order because it is not a declaration that a defendant is liable to supervision nor a supervision order nor is it a key decision as defined. However, no objection was taken to the appeal and, it being at least arguable that this Court has jurisdiction, I will proceed on that premise.
The appellant was granted permission to appeal against the Judge’s decision dismissing his application. The appellant contends that the Judge erred in refusing to exercise the discretion in s 269P of the Act, in that she took into consideration assumptions adverse to the appellant, made findings against the weight of evidence or where there was no evidence, and failed to give any or sufficient weight to certain evidence.
I would allow the appeal and set aside the order refusing the application on the ground that the Judge wrongly weighed against Mr Bowen’s application the consideration that he may at some point in the future apply for more extensive release on licence. However, I would make no orders as to the application of the appellant. The most appropriate course is to allow a fresh application to be made. My reasons follow.
Right of Appearance of Victims’ Next of Kin
The victim’s next of kin were given an opportunity to be heard in the proceedings before the learned Judge, and sought leave to be represented on this appeal. Counsel for the next of kin submitted that an appeal from a decision on an application pursuant to s 269P of the Act is an extension of that application, and that the next of kin have an appropriate and proper interest in being heard on it. Counsel for the respondent made submissions opposing that application.
On proceedings brought under Division 4, the Crown is obliged by s 269R of the Act to provide the Court with a report setting out the views of the next of kin of the defendant and the victims, or the victims’ next of kin (the prescribed persons). The Crown need not provide that report if the question before the Court is whether a defendant who has been released on licence should be detained or subjected to a more rigorous form of supervision. Section 269T(2) of the Act requires the Court to have regard to the report provided and pursuant to s 269R of the Act and provides that the Court must be satisfied that the prescribed persons have had reasonable notice of the proceeding before releasing a defendant on licence or reducing the stringency of his or her conditional release.
I doubt that s 269R and s 269T of the Act confer on prescribed persons a right of appearance on an application for release on licence or for amelioration of licence conditions. It does not do so expressly. It is significant s 269R of the Act provides that a single report on the views of quite diversely defined prescribed persons is to be provided by the Crown. The Act does not confer on prescribed persons a right to file individual statements, or a right to control the way in which their views are represented in the s 269R report. The indirect way in which the attitudes of prescribed persons is put before the Court through the agency of the Crown is not a promising basis for the implication of a right of appearance.
In R v Steele (No 2)[2] Gray J held that the right conferred by s 269P of the Act on “interested persons” to apply to vary a supervision order gave prescribed persons a right of appearance. I respectfully disagree. The right to apply is given to persons interested in operation of the supervision order. For example, neighbours or other people at risk may apply to vary a supervision order allowing the conditional release of a defendant on licence. Be that as it may, such right of appearance as victims may have pursuant to s 269P of the Act does not make a prescribed person a party to the proceedings. In my view, a prescribed person has no right to be heard on whether or not a supervision order, or variation thereto, should be set aside on appeal. The question of appellable error is a legal one which does not depend directly on the attitudes of a prescribed person to the licence conditions.
[2] [2012] SASC 162.
In this case the prescribed persons appeared through the same counsel and held a common position. That may not always be the case. It is difficult to see why each prescribed person should have a separate right to appear on an appeal and to put submissions as to whether or not a legal error has been made in the exercise of a Judge’s discretion on a s 269P application.
For these reasons, on the hearing of the appeal, the Court refused the application of the next of kin of the victim to make submissions on the question whether the learned Judge’s order should be set aside.
On the other hand, the Court indicated that it would notify the next of kin in the event that the order was set aside and provide them with an opportunity to make submissions on the merits of the application given that they were accorded that opportunity by the Judge.
The Evidence on the Application
Expert evidence
A Court cannot significantly reduce the appellant’s degree of supervision without first considering three reports prepared by different psychiatrists or other appropriate experts.[3] For this purpose, the learned Judge had before her reports from Drs Brereton, Raeside, and Furst. During the course of the proceedings, the learned Judge also asked to be furnished with a report from Dr Kutlaca. All four psychiatrists also gave oral evidence.
[3] Criminal Law Consolidation Act 1935 (SA) s 269T(2)(a).
Dr Brereton has been the appellant’s treating psychiatrist since September 2008. In his report dated 15 January 2013 he observed that the appellant’s mental state has been stable since August 2006 and there have been no concerns about compliance with his prescribed antipsychotic medication. However, the appellant has displayed inflexible patterns of thought and behaviour, indicating that he relies heavily on the routine in James Nash House and has difficulty adapting to change, which can lead to anxiety. This pattern of behaviour was demonstrated by the appellant’s reluctance to apply for a variation to his supervision order, which was encouraged by his treating team. Despite positive participation in a number of programs available at James Nash House, Dr Brereton reported that the appellant also:
has a tendency to portray himself in an unrealistically favourable light and minimises his experience of psychotic symptoms ... I do not believe it would be fair to interpret this as Mr Bowen maliciously trying to mislead staff or manipulate the system. Rather it arises out of an eagerness to please, a limited capacity for self-reflection, and it reflects his concrete literal style of thinking that can be unrealistically optimistic ... This style of thinking has somewhat hampered his ability to benefit from psycho-education insofar as it has limited his insight into possible triggers for illness, early warning signs and the degree of his functional impairment.
Dr Brereton’s view was that the appellant had progressed as far as he could within James Nash House, and now requires community-based rehabilitation to improve his living skills and ability to cope psychologically. It was his view that variations to the appellant’s supervision order allowing him to leave James Nash House for rehabilitation would be beneficial and would not cause deterioration in the appellant’s behaviour.
Dr Brereton noted that leaves from James Nash House follow a structured programme, in which:
progress is reviewed weekly at multi-disciplinary team meetings and no patient is allowed out on leave unless staff are satisfied in these meetings, and on the day, that the patient is stable in mental state and the risks are low. Any concerns whatsoever, result in a patient’s leave programme being suspended until the multi-disciplinary team, including treating psychiatrist, has reviewed their case.
Dr Brereton drew some comfort in reaching his view that the appellant only appeared to be aggressive or violent when acutely psychotic, and that the appellant communicated openly with James Nash House staff, followed directions, and continued to spend the vast majority of his time supervised at James Nash House. In light of these factors, Dr Brereton was confident that the appellant’s risk to the community was low. He also emphasised that the appellant would progress gradually through stages of supervision, which would be dependent on his reaction to each step.
In Dr Brereton’s opinion the appellant does not have an Antisocial Personality Disorder, and he has not seen any evidence of such while the appellant has been residing in James Nash House. While Clozapine may have the effect of reducing some symptoms of Antisocial Personality Disorder, he would not expect it to eradicate all traces of an Antisocial Personality Disorder.
Dr Brereton was confident that the appellant had not been masking his symptoms while at James Nash House and contrasted the appellant’s ability to mask his psychotic symptoms in a brief interview, to observation almost 24 hours a day in a mental health institution for a period of fourteen years, although he admitted that the appellant is able to manipulate his presentation if he chooses.
During the course of his oral evidence, Dr Brereton referred to the recent opening of Ashton House and explained that while it was not presently proposed that Mr Bowen be removed from James Nash, it would be part of Dr Brereton’s long-term treatment plan for the appellant.
Dr Raeside was involved in the appellant’s psychiatric treatment when he was admitted to James Nash House. In his report dated 7 January 2013, Dr Raeside expressed the view that the appellant has a risk of acute psychotic relapse if the appellant becomes non-compliant with his medication, or is subjected to significant stress or illicit drugs. He also noted that the appellant’s mental state had been stable over a long period of time with regular antipsychotic medication and, the stability and the routine of impatient psychiatric hospitalisation.
Dr Raeside had no particular concerns about the appellant’s graduated release on licence, noting that in Mr Bowen’s case the greatest risk of his acting dangerously is if he becomes psychotically unwell. Therefore, if his psychosis is controlled his risk of causing harm is low. That risk cannot be eliminated due to the appellant’s past aggressive behaviour, but it can be minimised provided that he is free of psychosis, and he has appropriate support should he become stressed. Dr Raeside acknowledged that generally the best predictor of future violence is past violence, and the appellant would therefore be more likely to pose a risk to the community than others who had not previously exhibited violent behaviour.
Dr Raeside took the view that the appellant’s progress would involve slow transitions with multiple stages and reviews of the appellant’s mental state. Regarding that treatment, Dr Raeside gave the following oral evidence:
My understanding of what the treatment regime offers is first of all supervision, that is there are people who have regular contact with him, depending on what level of condition there is, the initial plan is that someone would accompany him anywhere. But there may be times in which he is not immediately supervised with someone next to him. But that allows frequent contact several times a day in which if there was a change in his mental state that would be picked up early by frequent regular contact and observation. Secondly, the supervision entailed would likely prevent him from accessing illicit drugs, or engaging in other behaviour that might decompensate his mental state. And thirdly, it also provides support that if he was experiencing anxiety or stress, or any concerning features, he has somebody he could talk to, or go to, to seek assistance at an early stage rather than too far down the track.
Dr Raeside agreed with Dr Brereton’s view that while the appellant may be capable of masking his psychosis for the period of a brief interview, but it would be “virtually impossible in a setting like James Nash House to do that for even a week let alone for several years.” He did acknowledge, however, that the appellant’s ability to mask his symptoms of psychosis means there is a risk that if the appellant becomes unwell in the future, it may not be picked up, although staff would be aware of this possibility.
Dr Raeside supported Dr Brereton’s treatment proposal, and considered that it appropriately balanced supervision and security, as well as beginning a process of gradual rehabilitation.
Dr Furst is a consultant psychiatrist at James Nash House. He interviewed the appellant and in his report dated 16 January 2013 considered that the appellant was a good candidate for periods of leave outside James Nash House. He considered that the appellant was highly unlikely to contravene any licence conditions and had an extremely low risk of reoffending. It was Dr Furst’s view that if the appellant was not granted a licence for periods of leave from James Nash House, he was likely to become more institutionalised, and potentially hopeless about reintegration into the community. Ongoing detention without hope or provision for leave would be counter-therapeutic to the appellant in his opinion. Dr Furst noted that the appellant appeared to have good insight into his mental illness, the effect of illicit substances, the need for medication, and a fairly good understanding of the effect of his mental illness on himself and those around him. The absence of an Antisocial Personality Disorder and the presence of some obsessional traits made the appellant, in Dr Furst’s opinion, more likely than most people to adhere to licence conditions and medication regimes. Dr Furst understood that there would be:
a very slow period of transition from his current status as a completely detained patient to initial periods of short time out of James Nash House under direct supervision of staff, and that over the course of many months he may eventually progress from short periods of highly supervised leave through to longer periods of supervised leave and then eventually very brief periods of unaccompanied leave. It is not proposed that he be granted overnight leave or discharge from James Nash House without further review by the court.

He considered that the “purpose of such a plan would be to gradually deinstitutionalise [the appellant] and desensitise him to any anxiety he may feel about a different environment.” Dr Furst’s opinion was that such a plan was “the most appropriate measure at this point in his rehabilitation.”
Dr Kutlaca is a general and forensic psychiatrist, who interviewed the appellant in 1994, for the purpose of sentencing for earlier offending. The learned Judge requested a further report from Dr Kutlaca so she could better understand the appellant’s background, including his earlier offending.
In 1994, Dr Kutlaca diagnosed the appellant with morbid jealousy, also known as pathological jealousy or acute paranoid disorder. This is now known as a ‘delusional disorder’, and was influenced by aspects of the appellant’s personality style and amphetamines. He did not consider that the appellant was suffering from schizophrenia in 1994.
In his report dated 30 January 2014, Dr Kutlaca considered that the appellant had developed a schizophrenic illness at some time after the 1994 interview, likely related to use of marijuana. The appellant himself told Dr Kutlaca that he believed it commenced in 1998 when he first heard voices. He supported the appellant’s application for limited day release, writing:
Further rehabilitation in the form of structured and supervised activity beyond James Nash House is the basis for the Proposed Treatment Plan outlined by Dr Brereton. It is consistent with that for individuals suffering schizophrenia. His plan appeared to accord with the opinions of Drs Raeside and Furst.
Accordingly, the proposal that Mr Bowen resides at and remains proximate to James Nash House for the next stages of his further rehabilitation – the application to alter the terms of his licence – is reasonable. I generally agree with Dr Raeside that The Court may require reviews including for reasons to do with any further progress.
Schizophrenia is an illness that may persist indefinitely. Mr Bowen’s further treatment programs require structure and maintenance on a relatively permanent basis. He is at risk for relapse if he should become under- or non-compliant with clozapine and/or recommence marijuana or amphetamines (or other psychotomimetic substances); regular serum clozapine and illicit substance testing is indicated, as may be electronic monitoring. There may be a place for other depot neuroleptics including for compliance reasons. I recommend trials of new neuroleptics as such become available and of other psychotropic medications as indicated.
In conclusion, I support the proposal to lessen the terms of Mr Bowen’s licence to give him additional freedoms in association with that licence for the reasons given.
In sum, the reports indicate that the appellant suffers from chronic paranoid schizophrenia, and with medication his mental state has been stable since 2006. They indicate that the appellant has made progress in James Nash House, but also that there was a suggestion of his becoming institutionalised. All four psychiatrists, in their reports and upon giving oral evidence, supported the appellant’s application.
The learned Judge was also required to consider reports setting out the views of the appellant’s and victims’ next of kin.[4]
[4] Criminal Law Consolidation Act 1935 (SA) s 269R(1).
The learned Judge had before her victim impact statements from a daughter and son of the deceased, as well as a report detailing the attitudes of the victim’s next of kin. The report indicated that the victim’s family completely oppose the application and asked that, if the application were granted, the defendant be restricted from attending certain areas. These requests and locations were further refined at subsequent hearings before the learned Judge, in which the victim’s family were represented. At no time did the victim’s next of kin support the application.
A primary concern held by the victim’s next of kin was that on 16 November 2000, three days before the index offence, Dr Raeside had interviewed the appellant and did not detect that the appellant was acutely psychotic.
Dr Raeside had previously diagnosed the appellant with bipolar affective disorder prior to sentencing for offending between August and October 1999, and had been seeing the appellant occasionally since September 2000. It is Dr Raeside’s view that, at the interview days prior to the index offence, the appellant had deliberately presented well and Dr Raeside therefore did not detect any psychosis. With the advantage of hindsight, Dr Raeside considers that the appellant must have been masking underlying psychotic symptoms, and was able to do so due to the combination of the nature of his psychosis, and the fact that Dr Raeside only saw the appellant briefly in a community setting. When interviewed in February 2002, the appellant acknowledged to Dr Branson, a forensic psychiatrist, that when he spoke to Dr Raeside before the index offence he did not consider that he was mentally unwell, did not trust Dr Raeside, and therefore “he was certainly was not going to reveal information to him that he felt might be passed on to the police.”
This apparent ability to mask his symptoms, and the possibility that he may still be masking signs of psychosis is of significant concern to the victim’s next of kin.
The victim’s next of kin also pointed to the appellant’s prior violent offending involving firearms, and that although the psychiatrists indicated that the risk of the appellant reoffending was low, that possibility could not be excluded.
The Appellant’s Offending
The learned Judge also requested an antecedent report on the appellant. It revealed a significant history of criminal offending, including:
1Carrying an offensive weapon on 11 December 1992, for which the appellant received no conviction;
2Wounding with intent to do grievous bodily harm and possessing an unregistered firearm on 17 December 1993, being the offending for which Dr Kutlaca interviewed the appellant. The appellant received a sentence of 4 years imprisonment with a non-parole period of 18 months for this offending;
3Indecent behaviour on 20 August 1995, for which the appellant was placed on an 18 month good behaviour bond;
4Offences of larceny committed on 27 May 1996, 19 October 1998, 21 December 1998, and 22 February 1999;
5Estreatment of bail, found proved on 26 October 1999;
6Two counts of larceny and one count of break and enter building and commit offence on 19 September 1999, for which the appellant received a sentence of 16 months imprisonment with a non parole period of 10 months;
7One count each of larceny and break and enter building and commit offence committed on 23 August 1999;
8Offences of larceny committed on 22 August 1999, 30 August 1999, 7 July 1999, 10 August 1999 and 18 October 1999; and
9One count of carry an offensive weapon committed on 18 October 1999.
The materials before the Judge reveal that the offences of wounding with intent to do grievous bodily harm and possessing an unregistered firearm in 1993 were committed in the following circumstances. The appellant was engaged to marry a woman, whom he began to suspect was having an affair with another man. On 17 December 1993, the appellant argued with his fiancée, and at about 2 am left the house with an unregistered automatic pistol and drove to the home of the man with whom he believed his fiancée was having an affair. The appellant waited for that man to return home. When he arrived the appellant fired two shots, one of which struck the man in the leg. He left the scene, abandoned his vehicle, and returned to his fiancée’s home. He later surrendered to police.
The appellant had served in the army, and was honourably discharged in December 1992. While still serving in the army in about 1990, according to the appellant’s recollections, the appellant had been in his room in barracks with a fellow soldier who had a target pistol. The appellant was handling the pistol, which was said to have accidentally gone off without the appellant pulling the trigger. The projectile from the gun struck the other soldier in the leg. The appellant was subsequently charged with an offence, the particulars of which are unknown. During the preparation for trial the pistol was tested and on two out of three occasions the gun discharged without the trigger being pressed. On that evidence the charge was subsequently dismissed after no case to answer was found.
A report from an army officer tendered in the wounding with intent proceedings did not refer to the above incident. It did state that in 1998, the appellant faced charges of failing to obey lawful general orders, riding a motorcycle without a licence and riding a motorcycle in a negligent manner. He was also charged with prejudicial behaviour in stating a falsehood.
The Judge’s Reasons
Having before her all the materials required by Part 8A of the Act, her Honour turned to consider, pursuant to s 269T(1) the matters to which the Court must have regard. The learned Judge correctly observed that the safety of the community is a critical consideration. After recognising that the variation to the appellant’s supervision sought was minimal, that all four psychiatrists considered that the risks of varying the appellant’s supervision order were low, and that the prosecution did not oppose the application, her Honour nonetheless refused the appellant’s application.
In doing so, her Honour explained:[5]
[5] R v Bowen [2014] SASC 81 at [67]-[68], [70]-[75].
As will have been apparent, the variation to Mr Bowen’s supervision order which is proposed involves only a modest change to Mr Bowen’s circumstances. The day release which is proposed would probably not take place more often than every few days. Mr Bowen will be escorted, although not under guard. There would not be any overnight absences from James Nash House. If, in time, it is considered that more latitude should be afforded to Mr Bowen, then it is acknowledged by the clinical staff at James Nash House that the matter will need to come back to Court. Seen in this light it might be thought that there could be little objection to the Court giving its imprimatur to the proposal. However, if the Court now grants the variation sought – and assuming that the experiment proceeds satisfactorily – then it is inevitable that further relaxations will be recommended. In due course, no doubt a variation allowing Mr Bowen to reside at the newly established Ashton House would be sought. Residents at Ashton House are not obliged to remain on the premises at all times and are not escorted when they leave. It is a “half-way” house. The purpose of placing persons there is to prepare them for release into the community. Although the immediate application is the one which must be considered, it would be wrong to take a piecemeal approach and to decline to be aware of the ultimate ends of this process.
It is true that all four psychiatrists consider the risks of allowing this modest variation to the terms of Mr Bowen’s detention are low, albeit with certain provisos. Moreover, counsel for the DPP does not oppose the application. Perhaps the view might be taken that this effectively denies the Court any discretion as to whether or not the order sought should be made. I do not accept that view. Had the Parliament chosen to have the terms of supervision of persons such as Mr Bowen determined by psychiatrists, then it could have said so. It did not. I do not see the Court’s role as providing some sort of rubber stamp on decisions made by mental health professionals. If the Court retains authority in these applications and some discretion as to whether applications should be granted, then that must mean the Court, in an appropriate case, is entitled to refuse or defer applications even when the views of mental health professionals and of the DPP may provide support for release.
...
As Dr Raeside said, the best predictor of violent behaviour in the future is an individual’s violent behaviour in the past. Mr Bowen has been responsible for the shooting of three men, one of them fatally. He has demonstrated an affinity with firearms, a preparedness to arm himself in response to his paranoid feelings and a disregard for the law and for the property and rights of others. I cannot accept that his paranoid schizophrenia accounts for the 1993 shooting. I accept Dr Kutlaca’s opinion that some sort of psychological disorder, such as a delusional disorder, was at work in relation to that matter. That disorder has not been treated. Indeed, its manifestations will have been masked over the ensuing years both by the medication prescribed to Mr Bowen and also by his state of institutionalisation.
I make it plain in saying that he has shot three men, that I make no judgment about his state of mind when he was responsible for the shooting of the first of those men. It is enough to say that he plainly pointed a loaded weapon at a fellow soldier and the firearm discharged. The very aiming of that weapon in that condition is a matter of grave concern given subsequent events.
I can readily accept the view that since Mr Bowen has been taking Clozapine his schizophrenia is well controlled. However, that is in a strictly controlled environment. Were he in time to be permitted to go into the community without an escort, then he will be exposed to the availability of cannabis and other drugs. These are significant risks to him, as the psychiatrists have acknowledged. Mr Bowen has also demonstrated that he is capable of deceiving psychiatrists and operating in such a way as to hide his delusional thoughts. That characteristic heightens the risks of which I speak.
In my view consideration of public safety dictates that a process which will ultimately lead to exposure to those risk factors should not be undertaken, at least at this time.
It may be asked, if not now, then when? Naturally, that is not a question that I can answer. In the exercise of the judgment reposed in this Court by the Parliament I consider that the risk of Mr Bowen endangering the lives of persons in the community if this proposal goes ahead is unacceptable. I have real concern that the community will not be adequately protected by any form of release at this time.
I acknowledge the evidence of the psychiatrists that if a proposal such as the current one does not proceed, then it is likely that Mr Bowen will become further institutionalised. That in turn may have an impact on the safety of his release in the longer term. I accept those contentions, but they cannot in these particular circumstances take precedence.
My underlining
I have underlined the particular sentences in the Judge’s reasons which are impugned by the grounds of appeal.
The Grounds of Appeal
The appellant’s first ground is that the learned Judge wrongly took into account, adversely to the appellant, the fact that the present application was a precursor to further applications for variation.[6] The appellant submits that the possibility of future applications for different orders was an irrelevant consideration because those applications would be judicially determined on their merits which might result in the transfer to Ashton House and eventually to release into the community on licence.
[6] R v Bowen [2014] SASC 81 at [67], [72].
The respondent submitted that it was open to the Judge to conclude on the evidence that there would be future applications, as James Nash House staff had acknowledged that it would be necessary for the appellant to return to court to apply for further relaxation of supervision conditions.[7]
[7] R v Bowen [2014] SASC 81 at [67].
The respondent put that in any event this matter was not taken into account against the appellant. The respondent contended that the Judge limited herself to the consideration of the current application to notify that the variation sought was minor. In that context the respondent submitted that it is not an error to consider the particular application made as the first stage of a process which might be further advanced by future applications.
By ground 2 the appellant argued that the Judge’s finding that the risk of the appellant endangering others if the application was granted was unacceptable,[8] was against the weight of evidence. Counsel for the appellant submitted that it was the view of all four psychiatrists, who were aware of the appellant’s mental state and history of offending, that the:
1proposed conditions would not allow the appellant to obtain a firearm;
2appellant is compliant with his treatment and has insight into his illness;
3appellant’s previous firearms conviction occurred when the appellant was in the prodromal phase of schizophrenia; and
4proposed variation to the appellant’s supervision was minor.
[8] R v Bowen [2014] SASC 81 at [74].
Counsel for the appellant also pointed to s 269S of the Act and the requirement that restrictions to the defendant’s freedom and personal autonomy be kept to the minimum level consistent with the protection of the community, the appellant’s compliance with his treatment, as well as the fact that the appellant had been encouraged by doctors at James Nash House to make the present application to reduce the chances of intractable institutionalisation. While counsel for the appellant acknowledged that it was a matter for the Court, it was submitted that all the evidence went in favour of the application.
It was the respondent’s position that the psychiatrists’ views regarding the appellant’s risks of reoffending were, although important, only one matter to be taken into account. The respondent pointed to the other matters to which the Court should have regard under s 269T(1) of the Act, and contended that given the appellant’s past history and Dr Raeside’s view that the “best predictor of violent behaviour in the future is an individual’s violent behaviour in the past”, the learned Judge had acted appropriately by being cautious when considering the likelihood of the appellant endangering another person.
The appellant’s third ground is related to the second. The appellant contends that the Judge did not give any or adequate weight to the stringency of the proposed conditions of the varied supervision order, and the Judge’s conclusion of “real concern that the community will not be adequately protected by any form of release at this time”[9] was unreasonable having regard to all the evidence of supervision and monitoring required on day release.
[9] R v Bowen [2014] SASC 81 at [74].
It was further argued that inadequate weight was given to possible harm to the appellant if the application was rejected, as the appellant was becoming institutionalised and eventually it would not be possible for the appellant to leave James Nash House. This was said to be at odds with the policy of s 269S of the Act.
The respondent submitted that the conditions of release were not so stringent that it was not open to the Judge to find that any form of release was unreasonable. The respondent pointed to the inability of staff accompanying the appellant to restrain him, and thereby protect the community should the appellant abscond. It was also submitted that the learned Judge had had regard to the ongoing supervision the appellant would receive at James Nash House and on leave,[10] the potential of the appellant becoming institutionalised,[11] and therefore appropriately weighed all relevant considerations.
[10] R v Bowen [2014] SASC 81 at [45], [52].
[11] R v Bowen [2014] SASC 81 at [75].
Finally, the appellant argued that the Judge erred in reaching the conclusion that the appellant’s manifestations of a delusional disorder had been masked by medication, and his institutionalisation.[12] It was said that this conclusion was reached in circumstances where psychiatrists did not consider that the appellant suffered from a personality disorder, and then regarded as a risk factor the Judge’s assessment of the appellant’s likelihood of endangering others. It was further submitted that in any event, if the appellant did have a delusional disorder underlying his paranoid schizophrenia, it had been under the supervision and treatment of psychiatrists at James Nash House. Further, even if such a disorder existed, the medication which had been regulating the appellant’s behaviour at James Nash House would continue if the application were granted.
[12] R v Bowen [2014] SASC 81 at [70].

The respondent contends that the learned Judge properly placed significant weight on the opinion of Dr Kutlaca on this point as he was the only psychiatrist who had examined the appellant in 1994, and his opinion was that the appellant suffered from a delusional disorder, and not paranoid schizophrenia. Although the experts were not in agreement as to when the appellant’s schizophrenic illness commenced, they were in agreement that there was insufficient support for a diagnosis of an Antisocial Personality Disorder. Dr Kutlaca’s evidence was that the treatment the appellant received for paranoid schizophrenia would not have treated the delusional disorder and, given the appellant’s controlled environment since 2002, there would be no way of determining whether the delusional disorder he diagnosed in 1994 had altered. It was argued that it was therefore open to the learned Judge to find that the appellant’s delusional disorder “has not been treated. Indeed, it’s manifestations will have been masked over the ensuing years both by the medication prescribed to Mr Bowen and also by his state of institutionalisation.”[13]
[13] R v Bowen [2014] SASC 81 at [70].
Detention and Conditional Release – Division 4 of the Act
It is convenient to outline the regime for the detention of and supervision of persons pursuant to Division 4 of Part 8A of the Act. Section 269O of the Act provides that the Court by which a defendant is declared liable to supervision may either release the defendant unconditionally or make a supervision order. A supervision order is on committing the defendant to detention or releasing the defendant on a conditional licence.
Section 269P of the Act empowers the Court to vary or revoke a supervision order and, if revoked, make in substitution for that order any other order that the Court might make at any time during the limiting term set by the Court. If a court refuses an application by or on behalf of a defendant for a variation or revocation of a supervision order, the defendant may not make another application for six months or such lesser period as the Court may direct on refusing the application.
Section 269S of the Act provides that in deciding whether to release a defendant, or in deciding on the conditions of a licence, the Court must apply the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Section 269T(1) of the Act provides that in considering questions under the Division, the Court should have regard to:
(a)the defendant’s mental impairment;
(b)whether the defendant is or would if released be likely to endanger others;
(c)whether there are adequate resources available for the treatment and support of the defendant in the community;
(d)whether the defendant is likely to comply with the conditions of a licence;
(e)other matters that the Court thinks relevant.
Section 269T(2) of the Act provides that the Court cannot release a defendant on a licence, or significantly reduce the stringency of supervision to which a defendant is subject, unless the Court has considered at least three expert reports on the defendant’s mental condition and the possible effects of the proposed licence on the defendant. The Court must also consider the report on the attitudes of victims and next of kin provided pursuant to s 269R of the Act.
Section 269U(1) of the Act provides if a person who has been released on licence contravenes or is likely to contravene a condition, the Court by which the supervision order was made may, on the application by the Crown (which may be made in a case of urgency by telephone), review the supervision order. The Court may on that application confirm the supervision order, amend it so that it ceases to provide for release on licence and provides instead for detention or, amend the order by varying the conditions of that licence. On the application of the Crown, the Court may issue a warrant to have the person brought before the Court and make orders for the interim detention of that person.
Section 269V of the Act defines the nature of the detention to which a defendant is subject when the Court so orders:
269V—Custody, supervision and care
(1)If a defendant is committed to detention under this Part, the defendant is in the custody of the Minister and the Minister may give directions for the custody, supervision and care of the defendant the Minister considers appropriate.
(2)The Minister may—
(a)     place the defendant under the custody, supervision and care of another; and
(b)     if there is no practicable alternative—direct that a defendant be kept in custody in a prison.
(3)Supervisory responsibilities arising from conditions on which a person is released on licence are to be divided between the Parole Board and the Minister in the following way:
(a)     the supervisory responsibilities are to be exercised by the Minister insofar as they relate to treating or monitoring the mental condition of the person; and
(b)     the supervisory responsibilities are in all other respects to be exercised by the Parole Board.
…
Discussion
I commence by making the threshold observation that it is not obvious to me that an application pursuant to s 269P(1) of the Act “releasing” the defendant from detention was necessary in order to authorise the proposed day release.
It is not apparent to me that the day release of a person detained under the Division is a release on licence. I italicise “day release” because it may, depending on the circumstances, amount to no more than detention outside of the confines of an institution. A defendant may still be detained even when permitted to move outside of the institution in which he or she ordinarily resides. Whether or not the day release involves a release from detention is a question of fact and degree. A person may be detained even though he or she is neither confined by built structures, nor physically held or handcuffed. I would hold that a person is detained for the purposes of Division 4 when he or she is subject to the direction of an accompanying person who is empowered to restrict his or her movement and has a capacity to immediately and effectively exercise that power. If necessary and therapeutically appropriate the level of security may be enhanced by using an electronic GPS bracelet.
Section 269ZB CLCA provides for the arrest and return to custody of persons who escape detention or breach licence conditions:
(1)     If a person who is committed to detention under this Part—
(a)     escapes from the detention; or
(b)     is absent, without proper authority, from the place of detention,
the person may be arrested without warrant, and returned to the place of detention, by a member of the police force or an authorised person.
(2)A Judge or other proper officer of a court by which a person is released on licence under this Part may, if satisfied that there are proper grounds to suspect that the person may have contravened or failed to comply with a condition of the licence, issue a warrant to have the person arrested and brought before the court.
An authorised person is defined to mean a person so authorised by the Minister. If a person on day release remains in detention a person so authorised or a police officer may without more arrest and return him or her to custody. On the other hand, if a person on day release is considered to be on licence the more cumbersome procedures in s 269ZB(2) or s 269U of the Act must be engaged. Alternatively he or she may be detained by a police officer, but not an authorised person, pursuant to s 57 of the Mental Health Act 2009 (SA) and in particular s 57(4) of that Act. Section 57 of the Act relevantly provides:
57—Powers of police officers relating to persons who have or appear to have mental illness
(1)     This section applies to a person if—
(a)     a police officer believes on reasonable grounds that the person is a patient in respect of whom a patient transport request has been issued under section 55(1); or
(b)     a police officer believes on reasonable grounds that the person is a patient at large; or
(c)     it appears to a police officer that—
(i)     the person has a mental illness; and
(ii)the person has caused, or there is a significant risk of the person causing, harm to himself or herself or others or property; and
(iii)     the person requires medical examination.
…
(3)A police officer is not required to exercise any medical expertise in order to form an opinion about a person under subsection (1)(c) and may form such an opinion based on the officer's observations of the person's behaviour or appearance or reports about the person's behaviour, appearance or history (which may include reports about matters occurring outside the State).
(4)A police officer may, subject to this section, exercise the following powers in relation to a person to whom this section applies:
(a)     the police officer may take the person into his or her care and control;
(b)     the police officer may transport the person from place to place;
(c)     the police officer may restrain the person and otherwise use force in relation to the person as reasonably required in the circumstances;
(d)     the police officer may enter and remain in a place where the officer reasonably suspects the person may be found;
(e)     the police officer may use reasonable force to break into a place when that is reasonably required in order to take the person into his or her care and control;
(f)    the police officer may search the person's clothing or possessions and take possession of anything in the person's possession that the person may use to cause harm to himself or herself or others or property.
…
The provisions to which I have referred demonstrate that by a combination of s 269V and s 269ZB(1) of the Act the Minister could authorise day release of the kind proposed for Mr Bowen consistently with his continued detention. There is no relevant distinction from the perspective of a subject’s detention status between closely supervised day release of the kind proposed for Mr Bowen and allowing a defendant to move out of an institution, accompanied by police or authorised persons on medical and other similar appointments.
Dr Brereton and Dr O’Brien (the former Director of Forensic Mental Health Service) provided a report to this Court on the hearing of the appeal regarding the use of GPS tracking, or a Corrections Officer or Group 4 security guard escorting the appellant on leave. It was their view that GPS tagging, or accompaniment by guards would be “stigmatising, punitive and counter-therapeutic”, defeat the purpose of rehabilitation, and could cause additional stress. They noted that GPS tagging was used, interstate but controversially and was used for higher risk patients who are allowed day release earlier than allowed in South Australia. A number of logistical and resourcing issues regarding the facilities at James Nash House were also identified. I accept that issues such as these are important and that security measures such as these should not be engaged unnecessarily when they would defeat or undermine a therapeutic program. It is not obvious to me why an absolute rule for or against their use is necessary. Much will depend on the circumstances of the particular case. Importantly it would allow, where appropriate, defendants to be taken outside of an institutional setting whilst still being detained. It provides the option of a preparatory step before and short of a release on licence.
I do not accept the respondent’s submission that undertaking some limited day release as a precursor to more extensive release on licence, whilst keeping a defendant in detention, disregards or undermines the regime under s 269T of the Act. To the contrary, the dichotomy created by s 269O between committing a person declared liable to supervision to “detention” or “releasing” that person suggests to me that it is not apt to describe occasional day release of a defendant, accompanied by health professionals, as a release on licence.
Be that as it may, the application by Mr Bowen for release on licence must be dealt with on the supposition that it is proposed that the persons who accompany Mr Bowen on day release will either not be authorised to arrest and return him to custody if he disobeys their directions or will not have the capacity to act immediately and directly to affect that purpose or both.
Pursuant to s 269S of the Act, the primary question which arises on Mr Bowen’s application is whether detaining him within the four walls of James Nash House is the minimum restriction which is necessary for the safety of the community, given the high degree of restriction on his freedom and personal autonomy which that regime imposes. I do not read the Judge’s reasons to include a finding that the magnitude of the risk in escorted day release is sufficient to deny Mr Bowen’s application. So much is reasonably clear from the Judge’s observation that “there could be little objection to the Court giving its imprimatur to the proposal”.
I acknowledge that towards the end of the reasons the Judge refers to a “real concern that the community will not be adequately protected by any form of release at this time”. That observation is not expressed as a finding for the purposes of s 269S of the Act that the minimum restriction on the defendant’s freedom and personal autonomy consistent with the safety of the community is his continued detention without any day release. Whatsoever the Judge’s reasons between the initial observation that there could be “little objection” to the proposal and the lastmentioned expression of concern reveals that the Judge was not concerned about the proposal for limited escorted day release but with the risks of any more extensive release which might be allowed in the future. So much is clear from the Judge’s observation that it was necessary “to be aware of the ultimate ends of this process”. The Judge’s concern about Mr Bowen reverting to drug use if he were “permitted to go into the community without an escort” and the final observation “that a process which will ultimately lead to exposure to those risk factors should not be undertaken, at least at this time” make it quite clear that the Judge did not find that there was no unacceptable risk to the community in the proposal for escorted day release from James Nash House.
I would hold that on that reasoning the Judge failed to determine the application before the Court and that the exercise of the Judge’s discretion on that application miscarried because the Judge had regard to an irrelevant consideration, namely the possibility of future applications for more liberal release on licence.
The Judge’s reasons do not identify an unacceptable risk in day release alone. Nor does the evidence allow for any such finding. All of the psychiatrists who gave evidence were of the view, from a clinical psychiatric perspective, that the risk was acceptable and manageable. From a purely practical point of view too it is plain to me that the risk to the public from escorted day release is insignificant. The escorts could immediately raise the alarm by use of mobile telephone if Mr Bowen failed to comply with their directions. If called police would be empowered pursuant to s 57 of the Mental Health Act 2009 (SA) to detain Mr Bowen. An urgent application, if necessary, could also be made to a Judge for a warrant. Of course the escorts could continue to follow Mr Bowen until such time as he was arrested.
The Judge correctly made the observation that applications of this kind are not to be determined by psychiatric opinion alone but by the Court. Nonetheless, the unanimous opinion of four experienced psychiatrists is entitled to much weight. In this case there was no evidence to support a finding that nothing less than institutional detention could protect the public because the evidence did not disclose any material risk in escorted day release.
I turn to the second limb of the error I have identified. The possibility that the applicant Mr Bowen might be granted more extensive release on licence in the future was an irrelevant consideration because more extensive release on licence could only be allowed if a Judge of this Court on a further application pursuant to Division 4 were to determine that it was proper to so order. If on that further application the material satisfied the Judge that more extensive release on licence would not pose an unacceptable risk to the public then Mr Bowen’s application would be granted, in accordance with the provisions of the Act. The possibility of a further, more extensive, release on licence in accordance with the Act is not a valid reason to refuse the only application actually before the Court for limited escorted day release. If on a future application for more extensive release on licence there was an unacceptable risk to the public then the application would not be granted. On that premise too the prospect of a future application is irrelevant to the consideration of the limited application before the Judge. True it is that Mr Bowen’s compliance with the conditions of day release, if granted by the Judge, might be used as material in support of a future application but that is as it should be. It was not a proper exercise of the discretion in deciding the limited application before the Judge to obstruct any future application by denying Mr Bowen the prospect of showing his capacity for rehabilitation and thereby enhancing his prospects for future release.
It follows then that the appellant has made out the first three grounds of appeal. In the circumstances it is unnecessary to deal with the fourth.
Conclusion
The refusal of the application by the Judge must be set aside. It is not necessary to make any further order because given the lapse of time in this matter the most appropriate course is for Mr Bowen to make a fresh application for limited release on licence supported by up to date material. That application will, of course, be considered in the light of these reasons.
PEEK J: I would allow the appeal and set aside the order refusing the application for the reasons given by the Chief Justice.
BAMPTON J: I would allow the appeal and set aside the order refusing the application for the reasons given by the Chief Justice.