R v Burfield - [2007] SASC 350

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v BURFIELD
[2007] SASC 350
Judgment of The Honourable Justice Gray
27 September 2007
CRIMINAL LAW - PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS - SOUTH AUSTRALIA - REMISSIONS
MENTAL HEALTH - CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS - GENERALLY
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
Applicant found not guilty of offence of attempted murder by reason of mental incompetence - custodial supervision order with 11 year limiting term imposed - applicant detained in closed ward at Glenside Campus - application to vary supervision order for limited release on licence - section 269P of the Criminal Law Consolidation Act 1935 (SA) provides for variation or revocation of supervision order at any time during limiting term - applicant sought limited release from closed ward to attend rehabilitation programs at open, supervised ward at Glenside Campus - section 269S of the Criminal Law Consolidation Act provides that court must apply the principle that restrictions on applicant's freedom and personal autonomy should be kept to a minimum consistent with safety of community - expert reports from three psychiatrists and report from victim and next of kin provided to Court pursuant to section 269T(2) of the Criminal Law Consolidation Act - evidence from psychiatrists that variation of supervision order a positive and necessary step for applicant's long-term rehabilitation and reintegration - evidence from psychiatrists that there are sufficient resources for proposed release plan - evidence from psychiatrists that proposed release plan would provide sufficient safeguards for victim and community - report from victim expressed concern for her personal safety and did not support application - report from next of kin supported application - consideration of proposed release plan - whether the applicant is, or would if released be, likely to endanger the victim or the community - whether there are adequate resources available for the treatment and support of the applicant - whether the applicant is likely to comply with the conditions of a licence - whether the applicant is likely to abscond.
Held: application allowed - original supervision order revoked - substituted supervision order imposed by consent - applicant granted limited release on licence subject to strict monitoring conditions - substituted supervision order a positive and necessary step for applicant's long-term rehabilitation and reintegration - risk posed toward victim and community lessened by strict conditions in substituted supervision order - substituted supervision order balances benefits to applicant with interests of victim and community.
Criminal Law Consolidation Act 1935 (SA) s 269P(1), s 269O(1)(b), s 269S and s 269T, referred to.
R v Burfield [2005] SASC 438; R v Burfield (No 2) [2005] SASC 439; R v Burfield (No 3) [2006] SASC 97, considered.

R v BURFIELD
[2007] SASC 350
Criminal
GRAY J.

This is an application to vary a supervision order pursuant to section 269P of the Criminal Law…

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 Burfield

Details

AGLC: R v Burfield [2007] SASC 350
Case: [2007] SASC 350
Decision Date: 27 September 2007

CaseChat Overview and Summary

In this case, the applicant, Mark Andrew Burfield, applied to the Supreme Court of South Australia to vary his supervision order and be granted limited release on licence. The application followed his earlier finding of not guilty by reason of mental incompetence for the offence of attempted murder. The court was tasked with determining whether to allow Mr Burfield limited release from a closed ward to attend rehabilitation programs in an open, supervised ward, balancing his rehabilitation needs with the safety of the community and the victim. The legal issues revolved around the statutory provisions under the Criminal Law Consolidation Act 1935 (SA) that allow for the variation of supervision orders and the criteria to be considered in such decisions, particularly under sections 269P and 269S. The court considered expert psychiatric evidence, a report from the victim, and a report from the next of kin to assess the likelihood of Mr Burfield endangering the community or the victim, the adequacy of resources for his treatment, and his likelihood of complying with the conditions of a licence or absconding.

The court found that the variation of the supervision order was a positive and necessary step towards Mr Burfield's long-term rehabilitation and reintegration, supported by expert evidence. The psychiatrists confirmed that there were sufficient resources for the proposed release plan and that the plan would provide adequate safeguards for the victim and the community. Despite the victim's concerns and lack of support for the application, the court balanced these concerns against the benefits of the rehabilitation programs and the strict monitoring conditions that would accompany Mr Burfield's limited release. The court concluded that the substituted supervision order would effectively balance the applicant's needs for rehabilitation with the safety of the victim and the community.

The application was allowed, and the original supervision order was revoked, with a new supervision order imposed by consent. Mr Burfield was granted limited release on licence subject to strict monitoring conditions, enabling him to attend rehabilitation programs in an open ward while continuing to reside in a closed unit. This decision recognised the importance of rehabilitation for mentally incompetent offenders while ensuring the safety of the community and the victim.

Orders

Orders of the court

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Background

Background to the litigation

This is an application to vary a supervision order pursuant to section 269P of the Criminal Law Consolidation Act 1935 (SA).Background On 15 September 2005, the applicant, Mark Andrew Burfield, was found not guilty of the offence of attempted murder by reason of mental incompetence.[1] Mr Burfield was subsequently declared to be liable to a supervision order pursuant to section 269O(1)(b) of the Criminal Law Consolidation Act.[2] On 7 April 2006, I fixed a limiting term of 11 years for the supervision order.[3] My reasons for the above decisions provide the background to the present application.[1] See R v Burfield [2005] SASC 438.[2] This order was the subject of my reasons in R v Burfield (No 2) [2005] SASC 439.[3] The fixing of the limiting term was the subject of my reasons in R v Burfield (No 3) [2006] SASC 97. On 24 July 2006, Mr Burfield applied to vary the supervision order and be released on licence. This application was subsequently amended on 27 February 2007. The amended application requested the Court to consider a variation of the supervision order to allow Mr Burfield limited and periodic release from strict detention at a closed unit at James Nash House. This was to enable Mr Burfield to attend rehabilitation activities within an open but supervised ward at Glenside Campus. The application would permit Mr Burfield to continue residing at the James Nash House unit, known as Grove Closed Forensic Rehabilitation Unit, located on the Glenside Campus, and allow him to attend an open ward, the North Glen ward, at Glenside for periods of up a maximum of three hours on no more than two days a week to attend education and socialisation programs.The Legislative Scheme Part 8A of the Criminal Law Consolidation Act sets out the procedure to be followed where a person has been determined to be mentally incompetent. During the limiting term, a court may vary or revoke a supervision order. Section 269P provides:(1)At any time during the limiting term, the court may, on the application of the Crown, the defendant, Parole Board, the Public Advocate or another person with a proper interest in the matter, vary or revoke a supervision order and, if the order is revoked, make, in substitution for the order, any other order that the court might have made under this Division in the first instance.(2)If the court refuses an application by or on behalf of a defendant for variation or revocation of a supervision order, a later application for variation or revocation of the order cannot be made by or on behalf of the defendant for six months or such greater or lesser period as the court may direct on refusing the application. In determining whether to release a person, or release a person on licence, a court must apply the principle in section 269S:In deciding whether to release a defendant under this Division, or the conditions of a licence, the court must apply the principle that restrictions on the defendant's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

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Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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