R v BURFIELD - [2008] SASC 351

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Application)
R v BURFIELD
[2008] SASC 351
Reasons for Decision of The Honourable Justice Kelly
11 December 2008
CRIMINAL LAW - PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS - SOUTH AUSTRALIA
MENTAL HEALTH - CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS - GENERALLY
Application to vary supervision order - effect of R v Draoui (2008) 101 SASR 267 - amendment to conditions of licence.
Criminal Law Consolidation Act 1935 (SA) s 269P(1), s 269T and s 69U(1), referred to.
R v Draoui (2008) 101 SASR 267, applied.

R v BURFIELD
[2008] SASC 351
Criminal
KELLY J:

This is an application to vary a supervision order under the provisions of s 269P of the Criminal Law Consolidation Act 1935 (SA) (“the Act”).
Background
The applicant is subject to a supervision order under Part 8A of the Act by virtue of being found not guilty of the offence of attempted murder by reason of mental incompetence on 15 September 2005. The applicant was placed in detention pursuant to s 269O(b)(i) of the Act, and shortly thereafter a limiting term of eleven years was set.
On 27 September 2007 the applicant’s supervision order was varied and the applicant was released from detention on licence on conditions.
The applicant has applied to further vary the supervision order by amending orders 2(3) and 2(4). The Director of Public Prosecutions has requested that I also review order 3 in the course of this application in light of the recent Full Court decision in R v Draoui.[1] I will consider each issue in turn below.
[1] (2008) 101 SASR 267.
Application for variation
The applicant has requested that his supervision order be varied in the terms of the draft Order for Variation of Supervision Order provided to me by the applicant’s counsel. The Director of Public Prosecutions has agreed to the terms of the draft Order.
In accordance with s 269T of the Act I have been provided with the following reports for consideration:
·Report of Dr N P Nambiar dated 16 October 2008;
·Report of Dr Maria Tomasic dated 23 October 2008;
·Report of Dr Harry Hustig dated 20 October 2008;
·Annual report of Dr Gihan Abeywardena and Dr Narian Nambiar dated 5 August 2008 prepared in accordance with s 269Q; and
·Report of Anna D’Allessandro, Senior Social Worker, prepared in accordance with s 269R.
I am satisfied on the basis of these reports and the submissions before me that the proposed variations to orders 2(3) and 2(4) of the supervision order ought to be granted, subject to minor amendments directed by me at the hearing and contained within the finalised supervision order for acknowledgment by the applicant.
Order 3
I now turn to order 3 of the supervision order. Order 3 of the supervision order states:
3.This program of graduated release must be suspended and the applicant must be confined to the Grove Closed Unit or transferred to James Nash House at Oakden in the State of South Australia at the direction of the Director if:-
(a)     The applicant, in the opinion of the Director, shall have breached any condition or conditions of this Order; or
(b)     The Director is of the opinion that an action or pattern of behaviour of the applicant may give rise to a risk to (sic) a breach of any such condition; or
(c)     The Director is of the opinion that the applicant is in need of a level of security that cannot be provided at Glenside Campus; or
(d)     The Director is concerned that this program of release is not progressing satisfactorily;
Provided that:-
(e)     Such suspension and/or return to James Nash House shall be for a period of not more than 14 days without further order of this Court; and
…
Variations of this order have in the past often been included in supervision orders relating to persons released on licence pursuant to Part 8A of the Act. The critical feature of this order, and variations of this order, is that it permits the Director to confine a person released on licence in detention for a period of 14 days.
In a unanimous decision in R v Draoui,[2] the Full Court held that this type of order is invalid because “[a]ny restrictions upon a defendant’s liberty can only be imposed by the Court”.[3] Sulan J, with whom Doyle CJ, Duggan, Vanstone and Anderson JJ agreed, held that the Act does not contemplate the delegation of this power to the Director of Forensic Mental Health Services, or any other person.[4] As such, the imposition of an order enabling the Director to detain a person is beyond the power of any judge imposing, or varying, a supervision order under Part 8A.
[2] (2008) 101 SASR 267.
[3] R v Draoui (2008) 101 SASR 267, 277.
[4] Ibid 278.
Order 3 of the applicant’s supervision order is exactly the type of order deemed invalid by the Full Court in R v Draoui and must therefore be deleted.
Since the Full Court’s decision, the Director of Public Prosecutions has conducted enquires into the number of supervision orders containing the invalid order, and has notified the Director of the Forensic Mental Health Service that he is no longer entitled to detain persons to whom Part 8A applies at his discretion. The Director of Public Prosecutions suggests that this is an appropriate case to obtain further directions as to a suitable alternative order which complies with the decision in R v Draoui.
Proposed replacement order
The Director of Public Prosecutions has requested that I consider an alternative order 3 in the following terms:
3.AND IT IS NOTED that, in the event that the Director were to be concerned that the applicant has contravened, or is likely to contravene a condition of this licence, or is in need of a level of security that cannot be provided at Glenside Campus, the Director, or his nominee shall notify forthwith the Director of Public Prosecutions of that concern, and the Director of Public Prosecutions shall forthwith make application to this court – by telephone in a case or urgency – for review of the supervision order pursuant to Section 269U of the Act. (emphasis added)
Apart from the emphasised passage, the proposed order is directly in accordance with the language of s 269U which provides that:
(1) If a person who has been released on licence under this Division contravenes or is likely to contravene a condition of the licence, the court by which the supervision order was made may, on application by the Crown (which may be made, in a case of urgency, by telephone), review the supervision order.
The proposed order adds a further ground on which the Director of Public Prosecutions can apply for an urgent review of a supervision order by the Court under s 269U, namely if the Director of the Forensic Mental Health Service is concerned that the level of supervision of the applicant is inadequate.
In the particular circumstances of this case I am satisfied that there is a need to include a provision in the order that requires the Director of the Forensic Mental Health Service to notify the Director of Public Prosecutions as a matter of urgency if the Director of the Forensic Mental Health Unit becomes concerned that the level of security is not adequate. This need arises from the circumstances in which the original order was made, and the purposes Gray J had in mind when he ordered the release of the applicant on licence on conditions on 27 September 2007. I consider however that order 3 should be amended as follows:
3.     In the event that the Director, or the Director’s nominee, is of the opinion that:
(1)     the applicant has contravened, or is likely to contravene a condition of this order; or
(2)     the applicant is in need of a level of security that cannot be provided at Glenside Campus,
the Director, or the Director’s nominee, shall notify forthwith the Director of Public Prosecutions of that opinion.
3A.If the Director of Public Prosecutions is notified by the Director or the Director’s nominee in accordance with order 3 above, the Director of Public Prosecutions may forthwith make an application to this Court for a review of the supervision order which in cases of urgency may be made at short notice.
I consider that it would be appropriate in most cases if orders of this type (other than 3(2) which is particular to this case) were to be included where the Court is requested to review or vary a supervision order containing the same invalid clause which was struck down in R v Draoui.
Notice requirements
The Director of Public Prosecutions requested that I also consider the process by which the State should seek to notify persons released on licence whose supervision orders currently contravene the invalid condition. At the hearing I was provided with a letter from the Director of Public Prosecutions to the Parole Board of South Australia setting out the proposed process.
The Director of Public Prosecutions has undertaken to prepare a schedule of all licensees whose licence conditions contain the invalid clause. A copy of this schedule and my published reasons for decision in this matter will be forwarded to the presiding member of the Parole Board, requesting the presiding member to ensure that each licensee’s community corrections officer explain the decision to the licensee during the course of a regular contact visit. The presiding member will also be provided a document to be sent to each community corrections officer to complete after my reasons for decision are explained, which is then to be returned to the Director of Public Prosecutions for retention on the licensee’s file.
I agree that this is the most sensible and practical procedure to ensure that all relevant licensees and their community corrections officer are made aware of the change to licence conditions by virtue of the Full Court decision in R v Draoui.
Orders
For the reasons I have expressed, I make the following order pursuant to s 269P(1) of the Act:
1The applicant’s supervision order is to be varied in the terms of the Order for Variation of Supervision Order dated 11 December 2008.
I will now hear the parties as to the Director of Public Prosecutions’ suggestion that the Supreme Court Criminal Registry develop a written protocol for processing urgent applications under the Act.