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…

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 [2014] SASC 81
Case: [2014] SASC 81
Decision Date: 25 June 2014

CaseChat Overview and Summary

In the case of R v Bowen, the applicant, who had been found mentally incompetent to commit murder and other serious offences, sought a variation to his supervision order to permit escorted day release from James Nash House, a secure mental health facility. The applicant's history revealed that he had been diagnosed with chronic paranoid schizophrenia and had been medicated with Clozapine since 2004, with his mental state stabilising since 2006. Reports from psychiatrists indicated that the applicant had made good progress within James Nash House and had become a model patient, but there were concerns about potential institutionalisation if he did not progress further. Dr Brereton, the treating psychiatrist, proposed a gradual rehabilitation process starting with escorted day leave, progressing to leaves with escorts from non-government organisations, and eventually unescorted leaves, all without overnight stays.

The legal issues before the court were whether the applicant's proposed supervised day release would be in the best interest of his rehabilitation and whether such a release would pose a significant risk to the community. The court considered the evidence from the psychiatrists, who argued that without the proposed supervised day release, the applicant was likely to become further institutionalised, which could negatively impact his long-term safety and successful release. However, the court was concerned about the risks associated with any form of release at that time. Ultimately, the court concluded that any release, even under strict terms and with geographical limitations, was not consistent with the safety of the community. The application for a variation of the supervision order was dismissed.

The court's decision hinged on a careful assessment of the applicant's psychiatric history, progress, and the potential risks associated with any form of release. Despite the recommendations from the treating psychiatrists, the court found that the safety of the community outweighed the benefits of the proposed supervised day release. The court's ruling emphasised the need for a cautious approach to rehabilitation and release for individuals with severe mental health conditions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.