R v Bowen - [2014] SASC 81

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BOWEN
[2014] SASC 81
Reasons for Decision of The Honourable Justice Vanstone
25 June 2014
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
On 8 April 2002 the applicant was found to have been mentally incompetent to commit murder and four counts of serious criminal trespass and was found to be liable to supervision - he was committed to detention pursuant to s 269O(1)(b)(i) of the Criminal Law Consolidation Act 1935 (SA) - the applicant, who is currently detained at James Nash House, applies for a variation of the supervision order so that he may be permitted to have escorted day release from James Nash House.
Held: application dismissed - the proposed day releases of the applicant pose an unacceptable risk to the safety of persons in the community at this time.
Criminal Law Consolidation Act 1935 (SA) s 269O, s 269P, s 269S, s 269T; Criminal Law (Sentencing) Act 1988 (SA) s 24(1b), referred to.
R v Wagner [2014] SASC 70, considered.

R v BOWEN
[2014] SASC 81
Criminal

VANSTONE J: On 8 April 2002 the applicant, Jason Graham Bowen, was found not guilty by reason of mental incompetence of murder and serious criminal trespass (four counts), that offending having occurred between 19 November 2000 and 24 November 2000. The victim of the murder was a Mr Hurst. The applicant was found to be liable to supervision and was committed to detention under Part 8A of the Criminal Law Consolidation Act 1935 (the Act). The limiting term set was life.
Since that time Mr Bowen has been a resident of James Nash House.
On 1 November 2012 Mr Bowen applied, pursuant to s 269P(1) of the Act, for the terms of his supervision order to be varied, so to allow for occasional day leave from James Nash House on certain conditions. Orders of a preliminary nature were made by another judge of the Court and in April 2013 the matter came before me. I propose to set out the history of this application in a roughly chronological manner.
History and background to this application
In accordance with s 269T(2) of the Act three reports, each prepared by a different psychiatrist, were furnished to the Court. These were available when the matter first came before me on 22 April 2013. On that occasion Mr Bowen appeared by audiovisual link, he apparently experiencing claustrophobia when travelling in a prison van.
The reports were provided by Dr Craig Raeside who, though now in private practice, was involved in Mr Bowen’s psychiatric treatment following his original admission to James Nash House; Dr William Brereton, who has been Mr Bowen’s treating psychiatrist since September 2008 and Dr Paul Furst, a consultant forensic psychiatrist. Both Dr Raeside and Dr Furst support the treatment plan prepared by Dr Brereton in relation to Mr Bowen.
I do not propose to descend to detail in relation to Mr Bowen’s psychiatric history and progress within James Nash House. Those matters are comprehensively described in the three reports to which I have referred, together with earlier reports to which the Court has had access. According to the reports, Mr Bowen suffers from chronic paranoid schizophrenia. He has been medicated with Clozapine since 2004 and his mental state has been stable since 2006. There have been no concerns with compliance with the medication regime since 2005, and even then, irregularities in relation to his therapeutic levels were not necessarily indicative of non-compliance.
Mr Bowen has made good progress within James Nash House. He has taken advantage of a number of courses which have been available to him and which he has successfully completed. He might be said to have been a model patient. It is said he has developed rigid patterns of behaviour and that there is a suggestion of his becoming institutionalised. Accordingly it was planned that rehabilitation in terms of ultimate release into the community would proceed extremely gradually. Dr Brereton expressed the opinion that Mr Bowen has reached the limit of his ability to progress within James Nash House and that it was necessary for him to progress to limited day leave in order to prepare him for eventual release from James Nash House.
Under Dr Brereton’s proposal it was not envisaged at this stage that there would be any overnight leave, or that any period away from James Nash House would be other than in company with a mental health staff member. Under the terms of the order under consideration, periods of leave would be during the day and under escort.
Dr Brereton expressed confidence about the mooted alterations to the terms of Mr Bowen’s supervision order. In his report of 15 January 2013 Dr Brereton explained how he saw Mr Bowen’s future progress in these terms:
To start, Mr Bowen’s leaves from James Nash House would only be with inpatient clinical staff but this would need to progress to leaves with escorts from NGOs and eventually unescorted leaves for clear rehabilitation purposes such as to attend courses. Mr Bowen would not be permitted any overnight leave. For reasons that are both clinical and to do with resources, Mr Bowen’s progress will be slow; I would view this as an open-ended stage of his rehabilitation. I am not currently able to estimate when Mr Bowen might be suitable for discharge from James Nash House.
Later Dr Brereton spoke of the element of risk involved:
I believe the proposed treatment plan can be implemented without causing a deterioration in the behaviour of the defendant and without placing the community at any significant risk. Mr Bowen would remain closely monitored and if his mental state were to deteriorate it would be quickly identified and any leave program suspended.
Dr Raeside was involved with Mr Bowen’s assessment and treatment on several occasions close to the time of the offence. After a lapse of over eleven years he saw him in December 2012 for the purpose of compiling his report dated 7 January 2013. Dr Raeside summarised Mr Bowen’s condition under the heading “Prognosis” in these terms:
Schizophrenia is a normally relapsing and remitting psychotic disorder. In Mr Bowen’s case he has shown a long period of stability of over ten years, albeit with regular antipsychotic medication and the stability and routine of an inpatient psychiatric hospitalisation.
There is clearly a risk of acute psychotic relapse if Mr Bowen becomes noncompliant with medication or is subjected to significant stress or illicit drugs.
He summarised his attitude to the plan as follows:
In summary, Mr Bowen has been an inpatient for 13 years, during which time his psychosis has been under good control, apart from a brief period nine years ago (without any untoward consequences) requiring a change in the type of antipsychotic medication. He has not displayed aggression or violence whilst mentally stable. The management plan is to begin a slow and cautious transition to allow him greater freedom, initially with supervised leave whilst he remains at James Nash House and potentially be transferred to the purpose built step-down unit.
From a psychiatric perspective I have no particular concerns about the application for graduated release on license. Obviously a slow multi-step transition, with ongoing review of Mr Bowen’s mental state along the way is required. Before any unsupervised leave I would suggest further review by the Court of progress that has occurred.
Dr Furst works as an inpatient psychiatrist at James Nash House. He had not seen Mr Bowen before his interview with him on 3 January 2013 for the purpose of furnishing his report of 16 January 2013. He reviewed much written material about Mr Bowen. Of interest was his report of a tendency observed by a forensic psychologist:
Reports prepared by Mr John Bell, Senior Forensic Psychologist, James Nash House, for the Multidisciplinary Care Plans indicate that Mr Bowen has a tendency to minimise negative aspects of his history and present himself in a favourable light. This method of presentation is known as “impression management” and is considered a relatively normal aspect of human behaviour rather than deception or manipulation.
He also set out references to Mr Bowen’s offending history.
Mr Bowen reported that he first came into conflict with the law in 1993 when he had been charged for unlawful wounding and lost his firearms licence. He reported that he also was charged with a weapons offence sometime between 1998 and 2000 when the police had caught him with possession of a firearm without a licence. He denied ever having any other charges.
I note from the report of Dr Branson that Mr Bowen had a history of some driving offences in the army and had allegedly lied about these.
At the time I received Dr Furst’s report this was the only material relating to Mr Bowen’s criminal record available to me.
In terms of the plan for day release Dr Furst’s opinions included the following:
Overall, Mr Bowen has a very good prognosis and this is particularly related to the absence of an Antisocial Personality Disorder, and in fact the presence of obsessional traits would suggest that he is more likely than most people to adhere to a prescribed regimen of medication and designated conditions by which he must abide. Mr Bowen’s experience and acceptance of his army life would also suggest that any routines and conditions specified under licence will be followed by him in an appropriate manner. This would also be consistent with Mr Bowen’s conduct in the ward over the last few years in which he has been a model patient. The significant difference between Mr Bowen’s current presentation and his history after he left the Army is consistent with not only a remission of his schizophrenia, but also the cessation of illicit drug use.
…
In my opinion, the treatment plan for Mr Bowen to undergo a graduated level of leave from accompanied to eventually unaccompanied leave out of James Nash House is the most appropriate measure at this point in his rehabilitation. I believe that Mr Bowen is a very good candidate for periods of leave out of James Nash House. I believe he will utilise these periods of leave appropriately and is extremely unlikely to contravene any conditions of licence. I believe that the risk of Mr Bowen reoffending is extremely low as his index offence was precipitated by a florid psychotic state some 12 years ago, from which he is now in remission with the prescription of Clozapine and abstinence from illicit drugs.
Hearing – 22 April 2013
On the first occasion that the matter was before me I heard read victim impact statements of a daughter and son of the deceased. I also had the benefit of a report setting out the attitudes of the next of kin of the deceased and they were represented before me by Mr A J Kerin. Understandably, Mr Hurst’s family were distressed and to some extent alarmed at the prospect of Mr Bowen’s release, even on a limited basis. It is a most unfortunate feature of this matter that most family members live within relatively close proximity to James Nash House and a number of the destinations to which it is likely Mr Bowen would be taken on day leave. That factor caused me to build into a draft order which I compiled as a working document, a number of embargos in terms of areas where Mr Bowen might attend were permission sought to be granted to him. I appreciated that that this would cause some inconvenience to forensic mental health staff, but in my view those limitations were necessary in order to protect against unexpected – and no doubt disturbing – meetings at places such as shopping centres and public areas frequented by family members.
Through Mr Kerin and the report I mentioned, the next of kin expressed the wish that Mr Bowen not be given permission to leave James Nash House in the manner sought in this application. Having regard to their loss that attitude was well understandable. However, they also recognised that if Mr Bowen’s psychiatric condition remained stable then it was likely that at some point he would be released into the community. They appreciated that the regime of gradual exposure to the community would be far preferable to a sudden change in his environment and levels of support. Accordingly, Mr Hurst’s family in my view, showed great maturity in their response to the plan and in finding, as a fallback position, some common ground.
On this first occasion Ms Waldron, for Mr Bowen, indicated that she had compiled draft minutes of order, but that it would be helpful to discuss them further with Mr Kerin and counsel for the Director of Public Prosecutions (the DPP). The matter was adjourned to accommodate that. In fact, draft minutes were forwarded by Ms Waldron to the Court on 21 April 2013.
Hearing – 29 April 2013
On the second occasion when the matter came before me, counsel for the DPP advised that all counsel were agreed that a reference to the Restorative Justice program was appropriate. It was envisaged that the process would occur prior to further orders being made. At this time the proposal was rather amorphous and I adjourned the application so that various aspects of it could be explored.
Hearing – 12 June 2013
By the time of the next hearing a report from the Centre for Restorative Justice dated 6 June 2013 had been received by all parties. It was clear that Mr Hurst’s family did not wish to pursue the proposal.
On this occasion there was considerable discussion about the terms of any order which might be made, in particular locations and areas which Mr Hurst’s family wished to be unavailable to Mr Bowen during any day leave. Mr Kerin provided his own draft minutes of order. He also sought a requirement that prior to any day release the family be notified of the areas where Mr Bowen might be taken. I should emphasise that throughout, the family have opposed release on any terms.
On this occasion Ms Waldron expressed concern that by severely limiting the places to which Mr Bowen might be permitted to go if on day leave, difficulties might be presented to the staff of James Nash House.
The matter was adjourned for further consideration to 9 July 2013. In the interim I prepared and distributed to the parties updated draft minutes, by way of a working document.
Hearing – 9 July 2013
On 9 July 2013 Ms Waldron forwarded an email message addressed to her from Dr Brereton, advising that the geographical restrictions under consideration presented significant hurdles to the treating team at James Nash House in terms of both Mr Bowen’s rehabilitation and resources. There was further extensive discussion about the geographical restrictions to be embodied in the draft order. The matter was adjourned to a date to be fixed.
Notwithstanding that the DPP’s representative did not oppose the making of the order sought by Mr Bowen, I had reservations about the matter. I decided to ascertain more about Mr Bowen’s background, including earlier offending, and to have the psychiatrists give evidence before me.
During July to September 2013 there was correspondence between the Court and the parties, including my request of the DPP that an antecedent report relating to Mr Bowen be provided. That was received.
Mr Bowen’s prior convictions
The antecedent report revealed that Mr Bowen had a significant history of criminal offending of which I was hitherto unaware. It is unnecessary to mention all the offending. However, of significance were the following matters.
By way of preamble I note that Mr Bowen was discharged from the Australian Army in December 1992.
In March 1993 Mr Bowen was dealt with, but not convicted for an offence of carrying an offensive weapon, which had occurred in December 1992. Importantly, on 10 March 1994 Mr Bowen was sentenced in this Court for wounding with intent to do grievous bodily harm and possessing an unregistered firearm. (No doubt this was the offence to which Dr Furst had adverted, although wrongly describing it as unlawful wounding, a much less serious offence.) Those offences had occurred on 17 December 1993. He was sentenced to four years imprisonment with a non-parole period of 18 months. I obtained the file in relation to this offence. It contained psychiatric material as well as statements.
From the papers it appears that at the time of the offending Mr Bowen was engaged to be married to a woman whom I shall call “J”. Mr Bowen began to suspect that J was having an affair with a man (“S”) whom she knew from her workplace. On the day before the wounding they argued heatedly over this matter. At about 2 o’clock in the morning Mr Bowen left the house, taking with him an unregistered .32 automatic pistol and a balaclava. He drove to the home of S. (It is unclear how he obtained the address.) Apparently Mr Bowen knew that S commenced work in the early hours of the morning. Mr Bowen waited in S’s carport until S emerged, whereupon he discharged two shots, one of which hit S in the leg. S did not see his assailant.
Mr Bowen then left the scene and drove into the hills. He pushed his vehicle down a dirt track, out of sight, and abandoned it. He then walked back to the house he shared with J and from there to J’s mother’s house. J’s mother drove him to the Legal Services Commission and he surrendered to police.
When police searched Mr Bowen’s home they found a Webley & Scott .32 semi-automatic pistol with silencer. This was the weapon which had fired the round that hit S. They also found a Ruger .357 Magnum.
Prior to sentence and on 7 February 1994 Mr Bowen was seen by psychiatrist, Dr David Kutlaca. I shall return to say more about Dr Kutlaca’s views, but in essence the diagnosis he made was of morbid jealousy, also known as pathological jealousy or acute paranoid disorder. Paranoid disorder is these days referred to as “delusional disorder”.
Mr Bowen was sentenced for these offences on 10 March 1994, that sentence being backdated to 17 December 1993. The judge was told that the relationship with J was ongoing and that her family strongly supported him. That was a matter which the judge said weighed heavily with him. He considered that Mr Bowen’s prospects of rehabilitation were good. It seems that soon after sentence that relationship ended. A court appearance for traffic offences apparently committed after release indicates that Mr Bowen was already on parole by 16 January 1995.
On 22 July 1996 Mr Bowen was placed on a bond, having been convicted for indecent behaviour committed on 20 August 1995.
In late 1998 and early 1999 Mr Bowen committed three offences of larceny, for which he was dealt in June 1999.
Between August and November 1999 Mr Bowen committed eight offences of larceny, as well as two counts of building breaking and larceny, and carrying an offensive weapon. He was sentenced on 21 February 2000 to 16 months imprisonment. Prior to sentence he was seen by Dr Raeside who diagnosed bipolar affective disorder. Dr Raeside said that this was commonly called “bipolar disorder” and was what used to be called manic depressive illness, marked by mood swings. (t/s 84)
Mr Bowen was released on parole in September 2000 and continued to see Dr Raeside occasionally.
Dr Raeside saw Mr Bowen on 19 October 2000 and on 16 November 2000. On both of those occasions Dr Raeside expressed the view that Mr Bowen was free of mood disorder or depressive symptoms.
The offences giving rise to the supervision order
On 19 November 2000 Mr Bowen shot the victim, Mr Hurst, in the back of the head, killing him. The facts of that incident are recorded in the judgment in this Court of Justice Lander who dealt with Mr Bowen. It was accepted by the DPP that Mr Bowen should be found not guilty of murder on the basis of mental incompetence.

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.
Dr Raeside saw Mr Bowen in the hours following his arrest. He arranged for Mr Bowen to be detained under the Mental Health Act 2009 (SA) to enable admission to James Nash House. Dr Raeside’s statement records that he “found him to be psychotic, exhibiting a range of paranoid delusional ideas, psychotic thought disorder, pressured speech, and lack of appreciation for his circumstances as a result of his psychotic disorder”.
Hearing – 11 October 2013
At the next hearing I indicated to counsel that I had given the matter further consideration. I said that I would be assisted by having Dr Kutlaca see Mr Bowen again. I also indicated that I proposed to have the three doctors who had furnished reports under s 269T give evidence before me. I also asked counsel for the DPP to follow up a couple of factual matters arising from some of the older material I had read. The matter was adjourned to a date to be fixed having regard to the availability of the doctors to give evidence. I directed that Mr Bowen be present in court at that time.
Hearing – 13 February 2014
The evidence of Drs Brereton, Raeside, Furst and Kutlaca was arranged to be taken on 13 February. By this time Dr Kutlaca had furnished his report of 30 January 2014 which all parties had.
It was determined that Mr Mead SC, who now appeared for Mr Bowen, would lead some evidence from the expert witnesses, who would then be cross-examined by counsel for the DPP and Mr Kerin. That is what occurred. A great deal of very useful and helpful information was elicited to give me a clear picture of what was being advocated by Dr Brereton. In the evidence of the witnesses there was, appropriately, a good deal of concentration on the issue of the level of risk which would be associated with Dr Brereton’s treatment plan. I shall mention the opinions of each psychiatrist on that issue.
Dr Brereton elaborated on the proposed treatment plan. He indicated that in September 2013 the Forensic Step Down Rehabilitation Unit, known as Ashton House, had opened. He said it was located next door to James Nash House and that it was envisaged that, in time, and assuming everything went well, Mr Bowen could find himself in Ashton House as a part of Dr Brereton’s “longer term plan”. He said that it provided a highly supervised and structured environment with staff present day and night.
In terms of risk of endangering the public by implementation of the current plan, Dr Brereton expressed the view that the level of risk was dependent on Mr Bowen’s mental state. He said that there was no reason to believe that Mr Bowen suffered from an underlying antisocial personality disorder. He went on:
So there’s no reason to believe from his history that he has a tendency towards aggression or violence unless he is acutely unwell and acute by that I mean acutely psychotic in the context of a schizophrenic illness. (t/s 15)
Dr Brereton referred to the direct relationship between Mr Bowen and staff within James Nash House and the fact that Mr Bowen’s engagement with staff had been open and honest for a number of years. He also referred to the demonstrated willingness to follow staff directions. Dr Brereton said that having regard to those facts he was confident that “Mr Bowen’s risk is contained”. Mr Bowen’s mental state would continue to be closely monitored, he having daily contact with nursing staff. He said that were there to be any early deterioration in Mr Bowen’s mental state then the day leaves would cease. With those safeguards in place he said he believed Mr Bowen’s risk to the community was “low”.
Dr Brereton said that in forming those views he had taken into account several instances of violence by Mr Bowen including the 1994 shooting. In relation to that incident he said this:
My opinion, based on the information I have read, is that in 1994 it was highly likely that Mr Bowen was in the prodromal phase of a schizophrenic illness. By prodromal there is a period of time when a person’s behaviour and thinking can become odd but not so odd that it is possible to say “here are clear psychiatric symptoms”. I note that Dr Kutlaca thought at the time that he had ideas that were verging on the delusional about the fidelity of his spouse. Then my opinion would be that’s part of his longitudinal schizophrenic illness. I have taken that into account. It is part and parcel of the risk assessment that we are making.
Dr Brereton confirmed that he did not believe that there was any underlying antisocial personality disorder. He described such a disorder as “an ingrained and persistent pattern of maladaptive behaviour that is evident in adolescence and continues through into adulthood”. (t/s 18) Dr Brereton went on to say that in the last 14 years in James Nash House no evidence of an antisocial personality disorder had been seen.
I asked Dr Brereton whether the fact that Mr Bowen was being treated with Clozapine might mask any extant personality disorder and he acknowledged that it could have some small effect, but that he would not expect it to completely eradicate all traces of the disorder. (t/s 20)
Dr Brereton expressed the view that Mr Bowen’s schizophrenia was probably developing even before 1994. He said that he had never understood why Mr Bowen had left the army quite abruptly even though he had been doing well. Dr Brereton wondered whether that was the beginning of “subtle changes of behaviour” which would lead to his clear schizophrenic illness. Dr Brereton made the point that effective rehabilitation is the best way of managing long-term risk. (t/s 33)
While Dr Brereton acknowledged that Mr Bowen had the ability to disguise symptoms of his illness – and that he had done so when interviewed by Dr Raeside in 2000 – he pointed out that at James Nash House Mr Bowen was subject to 24 hour observation by clinical staff and so staff were not just reliant on his own account of his state of mind. (t/s 39)
Dr Brereton said that he had described the risk of relapse in the sense of presenting a danger to the public as being “low”, advisedly. He said that when he had at one stage reduced the dose of Clozapine he saw what might have been very early signs of relapse and so he restored the dose. He acknowledged that family support to Mr Bowen was limited to the point of being non-existent. He agreed that changes to Mr Bowen’s routine, such as allowing him day leave, travelling on buses or the like presented the biggest risk factors. (t/s 50)
Dr Furst held the view that it was unlikely that Mr Bowen would endanger other people were the treatment plan put in place.
Dr Raeside was asked about the risk of a “psychotic relapse”. He suggested there were two aspects worthy of consideration. There was the risk of a relapse by virtue of Mr Bowen’s schizophrenia. But more importantly there was the question of providing a context in which any such relapse would be quickly identified and addressed. He went on to say that the greatest risk of Mr Bowen acting dangerously arose if he were psychotically unwell. If the psychosis were under control then, he considered, the risk of dangerous behaviour would be low. He said it would not be eliminated because Mr Bowen’s past behaviour had demonstrated his potential for aggression. In the early stages of Dr Brereton’s treatment plan there would be someone accompanying Mr Bowen on day releases. That person would be able to observe him and would notice any change in his mental state. That person would also prevent Mr Bowen from accessing illicit drugs (which would heighten risk) and would be someone who could support Mr Bowen were he experiencing anxiety or stress.
I asked Dr Raeside whether, if there were an underlying personality disorder, that would be a matter of concern. He agreed it would. He said that he did not think there was an antisocial personality disorder, although it was fair to say there were some antisocial personality traits. (t/s 85) One of the reasons that Dr Raeside could not rule out such a disorder was that the only account of what had happened in Mr Bowen’s past life had come from Mr Bowen himself.
Dr Raeside was asked about his interview with Mr Bowen three days before Mr Hurst was shot. Dr Raeside said that he considered that on that occasion Mr Bowen made a deliberate effort to present well so that there would be no interference in what was going on in his life at that time. (t/s 69) (That is borne out by a statement Mr Bowen made to Dr C Branson in February 2002, to the effect that he had no reason to trust Dr Raeside and that he was certainly not going to reveal information to him that he felt might be passed on to the police.) Dr Raeside agreed that he did not then think that Mr Bowen was acutely psychotic, that is, he was not seen to be experiencing a relapse; but Dr Raeside said he was obviously wrong. He was asked what would have impeded a correct diagnosis at that time and he replied that he had been seeing Mr Bowen as part of the forensic outpatient follow-up service. The interviews were usually 15 to 20 minutes and there were limited opportunities to do more than ask the patient to report any symptoms or to observe if they were showing outward signs of psychosis. Dr Raeside said in hindsight that Mr Bowen must have been masking underlying psychotic symptoms, which persons with paranoid schizophrenia and organised thinking were able to choose to do. (t/s 67) Dr Raeside said that given the nature of Mr Bowen’s illness was such that signs of it were not readily observable, there was a danger that people who did not know him well might not be able to pick up an early deterioration. Dr Raeside said that he considered Mr Bowen had achieved a reasonable insight into the nature of his condition and the treatment that was required for it.
Dr Raeside acknowledged that the best predictor of future violence was past violence. That factor was a constant. It could not be eliminated. The fact that there had been at least two episodes in which Mr Bowen shot someone increased the risk of similar behaviour in the future. (t/s 35) Plainly the risk was higher than for someone who had not demonstrated those earlier behaviours. Dr Raeside agreed that it was important that Mr Bowen have no alcohol or cannabis; cannabis, because it could in its own right produce psychotic symptoms, and alcohol, because of its disinhibiting effects. He said the two of them together were a “potent mix” which would likely lead to “significant trouble”.
Dr David Kutlaca is a general and forensic psychiatrist of many years standing who works on his own account. He saw Mr Bowen at the instance of Mr Bowen’s solicitors on 7 February 1994 at the Adelaide Remand Centre. That was some three weeks after the shooting of S. At that stage Mr Bowen stood charged with attempted murder, rather than wounding with intent.
Dr Kutlaca took a family history. Mr Bowen indicated that he was adopted and had a non-biological brother. He was not close to his adoptive parents who were older people, both ultimately invalid pensioners. His mother did not enjoy good health and was an alcoholic. Mr Bowen was not close to his brother, who was very much more outgoing. He had attended about four primary schools and suffered from bullying. He felt himself an outsider. Upon leaving school Mr Bowen had joined the army and had risen to the rank of corporal. He had been honourably discharged. (I shall return to say something more about an event prior to his discharge.) Dr Kutlaca referred to Mr Bowen’s abuse of amphetamines. He expressed the opinion Mr Bowen required psychiatric intervention:
… ideally insight oriented psychotherapy during the course of the year following his release from custody.
In his 2014 report Dr Kutlaca related that Mr Bowen considered his current illness had commenced in 1998. Mr Bowen acknowledged that his taking of marijuana prior to the fatal shooting had a bad effect on him. Dr Kutlaca expressed the following views:
Reconsidering the developmental and adult data outlined in the writer’s previous report, there again appeared to be support for a relatively isolated personality style likely also with issues of trust. A consideration of personality maturation cannot be given with confidence on the basis of the recent period he has spent in custody.
I diagnosed pathological jealousy/an acute paranoid disorder (Delusional Disorder in DSM-IV-5) when I assessed Mr Bowen in 1994. I opined that his psychopathology was influenced by aspects of his personality style and amphetamines. I did not consider he was suffering from schizophrenia and remain of that opinion having reviewed him. He subsequently developed a schizophrenic illness, with marijuana a likely contributing and/or precipitating factor. It is noteworthy, however, that the incidents of 17 December 1993 and 20 November 2000 involved shooting. The DSM-5 (pp92-93) indicates for Delusional Disorder that ‘Although the diagnosis is generally stable, a proportion of individuals go on to develop schizophrenia’. There did not appear to be any other relevant diagnosis.
It was noted by several experts that there was insufficient support for an antisocial personality disorder. I agree but would note the history of illicit substance use; also an incident in 1999 that Mr Bowen stated involved the theft of a television. The references in reports involving his unlawful possession of a firearm in 2000 appeared more related to other aspects of his premorbid personality style/primary psychopathology than an antisocial personality disorder.
Dr Kutlaca said that Mr Bowen was at risk for relapse if he should become “under or non-compliant with Clozapine and/or recommence [use of] marijuana or amphetamines (or other psychotomimetic substances)”. Dr Kutlaca supported the proposal to allow for limited day release.
In evidence Dr Kutlaca agreed with the other psychiatrists that the risk of endangering members of the community was low, with the provisos that Mr Bowen continue to be compliant with his medication regime and to abstain from taking illicit substances. (t/s 91)
Dr Kutlaca stood by his diagnosis of delusional disorder expressed in his 1994 report. He did not agree that, with the benefit of hindsight, what he had observed was the prodromal stage of paranoid schizophrenia. As indicated, he noted that a proportion of individuals who suffer from delusional disorder go on to develop schizophrenia. He drew support for his views from Mr Bowen’s own history which was that his schizophrenia dated from 1998.
In answer to me, Dr Kutlaca said that assuming his original diagnosis were correct, then treatment for the schizophrenia would not have “touched” the earlier delusional disorder. The fact of Mr Bowen’s incarceration in the last 13 years or so meant that the delusional disorder may have remained masked and untreated. He said:
I think there are aspects of his personality style, his functioning, his relatively isolated nature, issues of trust, they probably will remain, and there is the mantle, if you like, or the cover of schizophrenia, which is under reasonable control from all accounts.
Hearing – 27 February 2013
On this occasion material was put to me from the bar table, both by Mr Press, who now appeared for the DPP, and also by Mr Mead, regarding an incident which occurred not long before Mr Bowen was honourably discharged from the army. According to Mr Mead’s instructions Mr Bowen was in his room at the barracks with a fellow soldier, that soldier being a member of a gun club, and in possession of what Mr Bowen had described as a target pistol. It was handed to Mr Bowen. The pistol was said to have gone off, without Mr Bowen pulling the trigger. The projectile struck the other soldier in the leg. Mr Mead told me that Mr Bowen was charged in the criminal courts in Queensland with an offence which he could not describe. However, in the course of preparing the matter for trial the weapon was tested and it was found that, on two out of three occasions, the gun discharged without the trigger being pressed. As a result, the charge was dismissed after a finding of no case to answer. That was said to be “in about 1990”. A statement of an army staff officer, dated 6 July 2001, which was tendered in the wounding with intent proceedings made no reference to this incident. It was there stated that in 1988 Mr Bowen had faced two charges of failing to obey lawful general orders, riding a motor cycle without a licence and riding a motor cycle in a negligent manner, and he was also charged with prejudicial behaviour in stating a falsehood. It was confirmed that he was, on 14 December 1992, discharged from the army at his own request.
Having been given that information counsel on all sides proceeded to make submissions as to the disposition of the application. I record now that I found those submissions very helpful.
Discussion
I now set out the criteria to which the court must have regard in determining this application.
269T—Matters to which court is to have regard
(1) In deciding proceedings under this Division, 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.
When the psychiatrists gave evidence before me counsel specifically had them address these criteria. I mention for completeness that s 269T(2) deals with the need to consider at least three expert reports, which reports I have already outlined. It also requires consideration of the most recently submitted report under the Minister’s obligation to ensure a yearly report is provided. That report was dated 7 August 2012 and was furnished by Dr C Butler and Dr Brereton. It recorded that Mr Bowen “has been stable in his mental state for the past 12 months”. It recorded that Mr Bowen was institutionalised but “becoming more motivated to approach discharge”.
This subsection also contains the requirement to consider the report on the attitudes of victims and next of kin.
I note in passing that although the Court is obliged to have regard to whether the defendant would be likely to endanger another person or persons if released, that factor is not given pre-eminence. In R v Wagner [2014] SASC 70 Kelly J noted that while a court which is considering an application for release on licence of a recidivous sexual offender is to have regard to the community’s safety as the “paramount consideration” (s 24(1b) of the Criminal Law (Sentencing) Act 1988 (SA)) the Parliament has not emphasised public safety in the same way in the current context. Rather, her Honour said at [11], referring to s 269S, that the emphasis in the Part 8A scheme was on:
rehabilitation of the applicant and the fundamental consideration for the Court in determining the application is that interference with the applicant’s freedom and personal autonomy is to be kept at a minimum consistent only with the safety of the community.
Nonetheless, in this case I consider that the safety of the community is a critical consideration.

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.
The path this matter has taken is in many respects torturous. It is of concern that material about Mr Bowen’s background only came to the Court’s notice through the Court’s own initiative. Until the time when Mr Press appeared on the matter on 27 February 2014, the role taken by the DPP was passive to the point of non-existent. I acknowledge that the role of the DPP in these applications is, in a sense, quite unusual, but in my view consideration needs to be given by the Director himself as to the nature of that role. Anyway, that is very much a side wind. The fact is that I have considered this application very carefully over an extended period because I have had and continue to have real misgivings about the nature of the proposal.
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.
Conclusion
I have found the determination of this application extremely difficult. Initially I expected that the point would be reached where I would agree that a variation to the supervision order involving strict terms and a number of geographical limitations would be appropriate. Nevertheless, the more I read of Mr Bowen’s history and the greater consideration I gave to the matter, the more heightened were my reservations.
For these reasons I have reached the conclusion that any form of release at this point is not consistent with the safety of the community.
I am not prepared to make any variation to Mr Bowen’s supervision order.
The application is dismissed.