R v Bowen - [2023] SASC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v BOWEN
[2023] SASC 123
Judgment of the Honourable Justice McIntyre
24 August 2023
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - GENERALLY
The applicant seeks a variation to his supervision order under Part 8A of the Criminal Law Consolidation Act 1935 (SA) to allow for overnight leave from his current facility to his home in the community, commencing with one night per week gradually increasing to five nights per week.
The respondent opposes this application due to concerns about the interface between Forensic Mental Health Services and NDIA, instead contending that overnight leave be limited to one night per week. The victims, appearing as interested parties oppose any variation.
Held:
1. Application granted – supervision order varied on proposed terms.
Criminal Law Consolidation Act 1935 (SA) s 269, referred to.
R v Bowen (2015) SASC FC, considered.

R v BOWEN
[2023] SASC 123
Criminal: Application
McIntyre J:

This is an application for variation of a supervision order under s 269P(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”).
Background
On 8 April 2002 the applicant, Jason Graham Bowen, was found not guilty of one count of murder and four counts of serious criminal trespass in a place of residence by reason of mental incompetence under s 269F (b) (3) of the Act. The applicant was declared liable to supervision under Part 8A of the Act and a supervision order was made under section 269C of the Act. The limiting term of the supervision order is the life of the applicant. The applicant was committed to detention.
On 1 November 2012 the applicant applied under s 269P of the Act for a variation of the supervision order and for release on license on conditions. On 25 June 2014 the application for variation of the supervision order and release on license was refused. On 13 August 2015 the Court of Criminal Appeal allowed the applicant’s appeal against the refusal of the variation of the supervision order and release on license.[1]
[1] R v Bowen (2015) SASC FC.
Since the appeal decision, there have been variations to the terms of the applicant’s supervision order to allow for release on license for the limited purpose of accompanied day leave from James Nash House and subsequently from Ashton House. The most recent order was made on 20 April 2020 varying the applicant’s supervision order to allow for accompanied and unaccompanied day leave from Ashton House.
Relevant legislative provisions
Division 4 of Part 8A of the Act provides a scheme for the disposition of people who have been found not guilty of an offence on the ground of mental incompetence. Section 269NI of the Act requires that the paramount consideration of the Court in determining applications under Division 4 of Part 8A of the Act is to protect the safety of the community. The section provides that the need to protect the safety of the community outweighs the principle that restrictions of a person’s freedom and personal autonomy should be kept to a minimum.
Section 269P (1) provides that at any time during the limiting term the Court may, on application, vary or revoke a supervision order. The matters to which the Court is to have regard in determining an application under s 269P (1) are set out in s 269T, which provides as follows:
(1)    In deciding proceedings under this Subdivision, the court should have regard to-
(a)the nature of the defendant’s mental impairment; and
(b)whether the defendant is, or would if released be, likely to endanger another person, or other persons generally: and
(c)whether there are adequate resources available for the treatment and support of the defendant in the community; and
(d)whether the defendant is likely to comply with the conditions of a licence; and
(e)other matters that the court thinks relevant.
(2)    the court cannot release a defendant under this Subdivision, or significantly reduce the degree of supervision to which a defendant is subject unless the court –
(a)has considered a report (an expert report) prepared by a psychiatrist or other appropriate expert who has personally examined the defendant, on
(i)The mental condition of the defendant; and
(ii)The possible effects of the proposed action on the behaviour of the defendant; and
(b)has considered the report most recently submitted to the court by the Minister under this Subdivision; and
(ba) is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person’s release; and
(c)has considered the report on the attitudes of victims and next of kin prepared under this Subdivision; and
(d)is satisfied that-
(i)the defendant’s next of kin; and
(ii)the victim (if any) of the defendant’s conduct; and
(iii)if a victim was killed as a result of the defendant’s conduct – the next of kin on the victim, have been given reasonable notice of the proceedings.
(2a) The court may, if it considers it necessary for the purpose of assisting the court to decide proceedings under this Subdivision, require further additional expert reports to be provided to the court.
(3)    Notice need not be given under subsection (2)(d) to a person whose whereabouts have not, after reasonable injury, been ascertained.
The proposed variation
The applicant is now aged 53. He is currently residing at Ashton House, a forensic residential rehabilitation step down unit in Oakden, South Australia. He is unemployed and in receipt of the Disability Support Pension. Prior to this from 24 November 2000 until 20 June 2018 he was admitted to James Nash House, the state-wide forensic psychiatric hospital. His license conditions were varied on 19 June 2018 to allow him to be discharged from James Nash House to Ashton House. Since then, as outlined above, there have been several variations to enable the applicant to have accompanied and unaccompanied day leave from Ashton House. His present application is for the Court to allow him periods of overnight leave.
The applicant has an approved National Disability Insurance Scheme (“NDIS”) plan by reason of his mental health issues and his level of cognitive impairment. As part of that plan, the applicant has had a house allocated to him in the community and has been spending some time there during the day. Whenever he is in the house, he is accompanied by support workers from a non-government organisation funded by the NDIS. The proposal is for the applicant to begin with one overnight leave to his house each week and to gradually increase to no more than five nights per week. The specific conditions proposed are as follows:
4. The applicant must reside at Ashton House, 290 Fosters Road, Oakden in the state of South Australia and must not be discharged from Ashton House without further order of this Court.
5. The Applicant is permitted, at the discretion of the Director or his nominee, periods of unsupervised day and overnight leave away from Ashton House, for rehabilitation purposes approved by the Director or his nominee provided that the overnight leave does not exceed 5 nights per week and noting that the overnight leave will commence at 1 night per week and increase incrementally to 5 nights over a period of months.
Psychiatric reports
For the purposes of this application the Court was provided with three psychiatric reports prepared under s 269T (2)(a) of the Act. These are psychiatric reports of psychiatrist Dr Annan Lloyd dated 21 June 2023, Dr Megan Ferris dated 20 June 2023 and Dr William Brereton date 18 June 2023.
The reports confirm that the applicant has an established diagnosis of treatment resistant schizophrenia. He has been stable on clozapine, an antipsychotic medication, for many years. The applicant feels that clozapine has been an extremely effective medication for him with minimal side effects. There appear to be no issues with adherence to his medication regime. The applicant feels well because of the medication and wishes to continue with it.
Dr Lloyd
Dr Lloyd is a consultant psychiatrist at James Nash House. He was one of the applicant’s treating doctors from February 2022 to August 2022 under the supervision of the treating forensic psychiatrist Dr Brereton. In addition to that, Dr Lloyd indicates that he has interviewed the applicant on numerous occasions, had access to his case notes and electronic medical records. Dr Lloyd has also attended clinical reviews, case reviews and multi-disciplinary meetings regarding the applicant’s care.
Dr Lloyd interviewed the applicant for the purpose of this matter on 15 June 2023. He described the applicant as displaying good eye contact, being calm, polite and cooperative. He responded appropriately to questions asked with no disorganisation of thought or speech. He did not express any delusional beliefs and denied any thoughts of harming himself or others.
Dr Lloyd says that the applicant has been free of psychotic symptoms for many years and has not displayed any antisocial, agitated or aggressive behaviours following his discharge from James Nash House in 2018. The applicant demonstrates a good understanding of his diagnosis and the role of medication particularly clozapine in keeping him well. He adheres rigidly to his rehabilitation program and his license conditions. Dr Lloyd notes that although he is not psychotic the applicant does experience the cognitive and functional deficits associated with schizophrenia “warranting a high level of care and monitoring in the community”.[2] These deficits will not significantly improve in the future and the applicant is likely to require a high level of support throughout his life. Notwithstanding this, Dr Lloyd considers the applicant’s risk of harm to himself, and others remains low. Dr Lloyd states his opinion on the current application as follows:
Based on Mr Bowen’s current mental state, presentation throughout his time residing in Ashton House, utilisation of accompanied and unaccompanied leave into the community without incident, and current NDIS arrangement of passive overnight support, I am supportive of Mr Bowen’s application to the Court for overnight leave.[3]
[2] Dr Lloyd’s report dated 21 June 2023 paragraph 6.6.
[3] At paragraph 6.7.
Dr Lloyd further says that the proposed variation can be implemented without causing a deterioration in the applicant’s mental state or behaviour and without placing the community at significant risk.
Concerns have been raised as to the possible inability of the NDIS to ensure a minimum base level of support for the applicant in perpetuity. Dr Lloyd comments as follows:
In relation to the current application before the Court, I do not believe the concerns raised regarding the NDIS will impact Mr Bowen’s mental condition, treatment or risk as he will still reside at Ashton House and be under their direct clinical care. However, I do believe these issues will become highly relevant at the point of an application for discharge from Ashton House, and this will likely require significant consideration.
Dr Ferris
Dr Ferris was the treating registrar for the applicant in James Nash House in 2006. She had not had any further contact with him since that time, but she was able to review his notes and to interview him for the purpose of her report. The details of that interview are set out in her report. Dr Ferris agrees with the diagnosis of chronic paranoic schizophrenia. This condition appears to have been present for well over 20 years; however it is currently in remission. The last time the applicant experienced psychotic symptoms was well over 15 years ago. Dr Ferris considers that the applicant’s schizophrenia is now extremely well controlled due to his ongoing compliance with clozapine.
The applicant had been diagnosed with anxiety in the past, including a specific diagnosis of claustrophobia, but he appeared to have made significant improvements with ongoing psychological treatment as an impatient and during his time in Ashton House.
Dr Ferris concluded her opinion as to the applicant’s mental condition as follows:
Overall, Mr Bowen presented as extremely stable in mental state with long term remission of his chronic paranoid schizophrenia through regular compliance with clozapine medication and close engagement with his mental health clinicians. He displayed extremely good insight into the long-term nature of his illnesses and need for ongoing compliance, close monitoring, and liaison for transitions out of Ashton House into his own housing with NDIS support. There was no evidence of any psychotic symptoms, mood disturbance or underlying anxiety issues. Judgement was excellent and rapport was well established.
Dr Ferris reviewed the proposed variation and stated her opinion as follows:
I am in full support of Mr Bowen having further transitional leave for overnight leave in a closely observed environment with 24/7 NDIS support in his own home. I feel confident that this slow transition will be closely monitored and facilitated, to ensure a low risk of deterioration in mental state or risk of recidivism.[4]
[4] Dr Ferris’ report dated 20 June 2023 paragraph 8.2.
Dr Brereton
Dr Brereton is the applicant’s long-term treating psychiatrist. He provided a detailed report date 18 June 2023 based on his contact with the applicant and an interview for the purpose of the report on 16 June 2023. In that interview the applicant set out the plans that he had for transitioning to life in the community. Dr Brereton indicated his mental state examination of the applicant as follows:
Mr Bowen presents as he has consistently for many years now. He was polite and friendly, and appeared eager to please. His mood was euthymic (neither elated nor depressed). His speech was unremarkable. Mr Bowen tends to give a concrete account of circumstances and events, meaning an in depth or sophisticated exploration of subjects can be difficult. There were no psychotic symptoms evident.[5]
[5] Dr Brereton’s report dated 18 June 2023 paragraph 3.1.
Dr Brereton outlined the applicant’s progress in Ashton House and provided details of the applicant’s NDIS funding package including the acquisition of a house as a placement for the applicant. From late February 2023, the applicant has spent time at the house during the day. He adapted well after initial hesitation forming new relationships with his NDIS support workers.
The applicant presents with several impairments which account for his slow progress. Neuropsychological cognitive testing has shown that he has difficulty with auditory processing, verbal comprehension, abstract thinking, processing speed and cognitive flexibility. These aspects of his presentation have improved but remain problematic. His scope for problem solving is narrow. Dr Brereton concludes his opinion saying:
Mr Bowen’s case is complex, and he has progressed slowly through forensic rehabilitation. Despite ongoing impairments, he has made considerable efforts with rehabilitation and has improved. He is currently a low risk of harm to others. He has accommodation in the community, which includes 24-hour support. The application is for him to begin a program of overnight leave to his accommodation, with which he is already familiar.[6]
[6] At paragraph 7.1.
Dr Brereton raises some concerns with what he describes as “a mismatch between the approach of Forensic Mental Health Services and the NDIS with regards to assessing support needs.” He states his concern as follows:
Mr Bowen’s support needs will be subject to regular reassessment and the levels of support available to him in the community may be reduced in the future. Given the NDIA’s lack of regard to issues of risk, there is the possibility Mr Bowen’s levels of support might be reduced to a level that would be unacceptable to the Court or to forensic services. This issue is not an immediate problem as his current funding is sufficient and unlikely to be changed during his period of overnight leaves from Ashton House. In any case, he would still have Ashton House as a fallback position if his circumstances were considered unsafe. However, it will be a consideration at the point of discharge from Ashton House. I would rather raise the matter now for discussion and consideration by the Court, than leave it until the application for Mr Bowen’s final discharge to reside fulltime into the community.[7]
[7] At paragraph 6.7.
Dr Brereton concludes his report by saying as follows:
If the Court grants Mr Bowen overnight leave into the community, I believe he will remain stable in mental state and cooperate fully with his medication, management plan and all supports. I believe he would be a low risk of harm to others.[8]
[8] At paragraph 7.6.
Victim and next of kin counselling reports
The Court has also received and considered two reports prepared by Anna D’Alessandro, a forensic social worker, under s 269R (1) of the Act. Those reports are dated 22 June 2023 and 9 July 2023.
There is no next of kin nominated for the purpose for the report, however three victims were interviewed by Ms D’Alessandro. All three strongly oppose the application. The victims have been provided with the medical reports and have voiced significant concerns about the contents. They are concerned about their safety and the safety of the community. They have raised several specific issues on that topic. I will not detail their concerns, but I have read and considered them. They are valid and reasonable concerns arising from the fact of the applicant’s offending, his diagnosis, and the medical evidence.
The victims are particularly concerned about the location of the applicant’s residence, given that it is close to various exclusion zones set out in the current orders. Further they are concerned about what I will loosely call the demographics of the area and the possibility of the applicant falling in with criminal elements and gaining access to illicit drugs. The victims are also concerned that the NDIS cannot commit to provide the long-term care that the applicant has been assessed as requiring.
The report writer concludes her report saying:
The expert update provided to the Court has exacerbated the trauma the victims have been struggling to manage since the offending occurred over 20 years ago. It is important to note that although the victims would oppose any application for transition to the community on principle, they would however accept such application if there was a more defined, robust, and established long term management plan with sufficient monitoring and support in place to minimise any potential risks.
Other material
The National Disability Insurance Agency (“NDIA”) provided a report at the request of the Court dated 22 June 2023. This encloses a copy of the applicant’s NDIS plan.
The applicant currently has a NDIS plan with a review date of 14 February 2024. A reassessment of his plan is due to take place in December 2023. It is the current intention of the NDIA to approve a 24-month plan with the same supports as the current plan unless information is provided that demonstrates a change in the applicant’s disability related support needs. It is further noted that a plan reassessment can be requested at any time.

The supported, independent living portion of the program entitles the applicant to support 24 hours per day for seven days per week. The NDIA further indicate that the applicant has received support from the justice liaison officer team who provides a connection between the NDIA and staff in the forensic justice setting.
The NDIA also indicate that participation in the NDIS is voluntary and that a participant cannot be compelled by the NDIA to engage.
The parties’ submissions
The Director of Public Prosecutions
The Director of Public Prosecutions noted that the applicant is already in the community. He has accompanied leave and attends his residence from Thursday through to Sunday during the day. He has a NDIS plan and significant NDIS funding to provide living support in the community. The Director, however, submits that, because of concerns about the interface between Forensic Mental Health Services and NDIA, it is appropriate that the Court maintain oversight of the applicant’s release on leave. The Director contended that the overnight leave ought to be limited to one night per week and the application be adjourned to December, the time at which the applicant’s NDIS plan is to be reviewed. It is said, whilst the forensic psychiatrists are of the opinion that the applicant’s risk to the community is low it is also clear his capacity to function in the community is limited if he does not have the current level of support from the NDIS.
Interested parties
Submissions were made on behalf of the victims. Their primary position, as outlined in the s.269 reports referred to above, is that they oppose any variation. However, they accept that the purpose of the legislation is to see the applicant move forward with his life and not to stay institutionalised. Accordingly, whilst the primary position is that the victims would prefer the applicant not to have any overnight leave, if such leave is to be granted, their preference would be to adopt the position advanced by the Director rather than to allow Forensic Mental Health to increase the number of nights without reference to the Court. The victims are of the view that the variation in its current form this poses too significant a risk to the community.
The victims also raise a concern that there will likely be another person living in the house and the effect of this upon the applicant’s mental health. The victims reiterated their concerns about the location of the house by reason of the demographics of the area. Specifically, it is contended that it is in a suburb where there is illegal activity and ready availability of drugs. The victims are also concerned there might be unaccompanied night-time travel. The victims also raise the uncertainty of the NDIS funding and the issues raised by Dr Brereton.
The applicant
On behalf of the applicant, it is said that the offending occurred 23 years ago and that the applicant has, since that time, been a model detainee and now licensee. There has been no suggestion of him breaking rules or breaching his license conditions. He has been taking accompanied and unaccompanied leave for a period of three years. He has been attending the residence on day leave since February with no issues.
The applicant suffers social difficulties arising from his impaired cognitive functioning which is why he has the NDIS support. Many licensees do not have support workers in their home 24 hours a day which is what is proposed in this case. In relation to the concerns raised about the NDIS not continuing the plan, the applicant refers to the letter from the NDIS stating that it is intended to approve a 24-month plan with the same support unless there is a change in the applicant’s disability related support needs. The applicant’s need for social support revolves around his cognitive functioning which is not likely to change. Whilst it is not possible to be dogmatic about the future, all indicators are that this plan will continue. Further, whilst NDIA does not have to consult Forensic Mental Health it is contended that Forensic Mental Health will be aware of any change in plan. Funding would not stop without warning.
Whilst accepting that the victims have concerns as to the risk posed by the applicant, it is submitted that the doctors are better able to assess that risk and all of them say he is at low risk. It is said there is no basis on which the Court could reject the psychiatrist’s opinion based on 23 years of the applicant’s detention.
As is currently the case, if the applicant wishes to leave the house, he must ring Ashton House and tell them where he is going and how long he will be. When he returns home, he must ring Ashton House and tell them that he is back home again. His compliance is monitored in the sense that Ashton House is advised of all outings.
Before every day or overnight leave, there is a process where a risk assessment is carried out before the applicant leaves and on his return to Ashton House. If it is an overnight leave the applicant will be tested for drugs and alcohol on return to Ashton House. The identified concerns about access to drugs and the possibility of reoffending are speculative. No doubt there are drugs available in the area in which he is to live, it is said that is probably the case in every suburb in Adelaide. It is however said that in over 23 years, the applicant has shown no desire to use illicit drugs including on periods when he has been on unaccompanied day leave. He is regularly drug tested and there has been no suggestion whatsoever of illicit drug use. If there is any suggestion of non-compliance with any of the licence conditions, leaves are immediately ceased by Forensic Mental Health.
Further, the applicant will have more oversight than the average person released on license because of the staff funded by NDIS being at the house. The chances of his mental health deteriorating with nobody observing this are, it is submitted, negligible. There will be regular checks of his medication. There has been no suggestion over the last 23 years that the applicant has not taken his medication or has expressed a desire to stop taking it.
In relation to the suggestion of allowing only one night leave until December, it is said that what is proposed is a structured program starting at one night and working up to five nights per week. It will be closely supervised by Forensic Mental Health. Further, although the NDIS plan is due to be reviewed in December that may not necessarily be the case.
Whilst the safety of the community is the paramount consideration, the focus of Part 8A is also on rehabilitation in addition to punishment. It is said there is no justification given the contents of the three expert opinions to keep the applicant in a more restrictive setting any longer than he has been. It is said that the applicant is a very different person to the person he was 23 years ago; at that time he was undiagnosed, untreated and unmedicated. He has now been in the system for 23 years. He is diagnosed with a mental illness, he has been medicated, he is stable, and he is supervised.
Conclusion
The psychiatrists are all supportive of the application and have assessed the applicant as being at low risk to the community. Applications under s 269P(1) are not determined by psychiatric opinion alone. However, the unanimous opinion of three forensic psychiatrists who have had the opportunity of observing the applicant over a long period of time carries significant weight.
The unanimous opinion of the forensic psychiatrists is supported by the applicant’s performance whilst in detention in James Nash House and subsequently at Ashton House. There has been no suggestion of the applicant breaching his license conditions. He has been taking accompanied and unaccompanied leave for three years and has been attending his residence on day leave since February of this year.
The concern expressed about the removal of NDIS funding is a valid concern, however this involves speculation about the future. The information presently before the Court is that the applicant has appropriate NDIS funding and that it is the intention of the NDIA to continue that funding for at least another 24 months. Further, Dr Brereton raised the issues with the NDIS in the context that this was not an immediate problem. He noted that the current funding was sufficient and unlikely to be changed during the period of overnight leave from Ashton House and that in any event the applicant would still have Ashton House as a “fall-back position”. Dr Brereton and Dr Lloyd say that the continuation of NDIS funding will be a significant consideration at the point of discharge from Ashton House. I agree that this is the case. In those circumstances I reject the position advanced by the Director and, at least in part supported by the victims. The only rationale for limiting the applicant’s overnight release is the indication that the NDIS plan may be reviewed in December and the possibility that the plan may change. As I have said this is speculative. It does not offer a sound basis to reject the application. Further, granting of the application does not remove this matter from oversight by the Court. Applications can be made if there is a breach of conditions or a change of circumstances requiring a variation.
It is my view that the proposed variation to the applicant’s condition to permit a structured approach to overnight leave represents a limited risk to the community. The applicant’s compliance will be monitored by Ashton House. He will have the additional support available under his current NDIS plan. He will be clinically monitored by Forensic Mental Health. The risk factors that have been identified, drug use, reoffending and escalation of mental health issues are, in my view, adequately safeguarded by the terms of the license and the proposed variation. The applicant has demonstrated his capacity for rehabilitation following the variations to his license. In all the circumstances, I will grant the application for variation. I will hear the parties on the need for any consequential amendments.
As a final note, Dr Brereton also raises concerns as to communication between NDIA and Forensic Mental Health; specifically, the provision of notice should the NDIA propose to make any changes to the applicant’s plan. Whilst it is not possible for the Court to order that this occur, I would strongly urge the NDIA to provide advance notice of any proposed changes to the applicant’s funding or support to enable sufficient time for Forensic Mental Health and the Court to review the proposed changes. If there is a substantial change then it may be necessary for application to be made for a variation of the supervision order or even a revocation of the license if risks are not being adequately managed.