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…

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.

Continue reading R v Bowen

Details

AGLC: R v Bowen [2015] SASCFC 111
Case: [2015] SASCFC 111
Decision Date: 13 August 2015

CaseChat Overview and Summary

The appeal concerned an application by the appellant, Mr. Bowen, for a variation of his supervision order to allow for limited release on licence. The application had been refused by the primary judge. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Peek J, and Bampton J.

The central legal issue before the Full Court was whether the primary judge erred in refusing Mr. Bowen's application for a variation of his supervision order. This required the Court to consider the expert evidence presented, particularly reports from four psychiatrists, regarding Mr. Bowen's mental state, progress, and suitability for community-based rehabilitation. The Court also had to determine the appropriate course of action given the passage of time since the original application.

The Full Court reasoned that the appellant had made out the grounds of appeal. The Court considered the expert evidence, including reports from Dr. Brereton, who had been the appellant's treating psychiatrist since 2008. Dr. Brereton's evidence indicated that Mr. Bowen's mental state had been stable, but he exhibited inflexible thinking patterns and a limited capacity for self-reflection, which had hampered his ability to benefit from psycho-education. Despite these challenges, Dr. Brereton believed Mr. Bowen had progressed as far as possible within James Nash House and required community-based rehabilitation. The Court noted the structured nature of supervised leaves from James Nash House, with weekly reviews by a multidisciplinary team to ensure patient stability and low risk before any leave was permitted.

The Full Court allowed the appeal and set aside the order refusing the application. Given the significant lapse of time, the Court determined that the most appropriate course was for Mr. Bowen to make a fresh application for limited release on licence, supported by up-to-date material, which would then be considered in light of the Court's reasons.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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