R v Johns - [2010] SADC 140

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v JOHNS
[2010] SADC 140
Reasons for Decision of His Honour Judge Muecke
16 November 2010
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
Applicant released on licence pursuant to s 269O of the Criminal Law Consolidation Act 1935 on 26 May 2006 - Limiting term of 6 years fixed - Application to vary the licence to allow applicant to live in his home state of Western Australia - Licence revoked and applicant released unconditionally.
Criminal Law Consolidation Act 1935 ss 269O, 269P, 269T, referred to.

R v JOHNS
[2010] SADC 140

This is an application by Stuart Anthony Johns (the applicant) to vary an order by which he was released on licence following being charged with offences he allegedly committed at Whyalla on 19 December 2002. The offences were of violence and were alleged to have been committed by the applicant on the partner of his brother Herzel and on her daughter. They were alleged to have been committed whilst the applicant was visiting South Australia from Western Australia for Christmas of 2002.
The Information against the applicant was laid by the DPP in the Port Augusta Circuit Court of this court. The applicant was charged with Assault Occasioning Actual Bodily Harm to S, a child under the age of 12 years (she was 9 years old), and with Causing Grievous Bodily Harm with Intent to do Grievous Bodily Harm to J, the mother of S. (He was further charged by Count 3 with Assault Occasioning Actual Bodily Harm to J but that was an alternative count to the other count involving J.)
It is necessary for me to refer to some of the circumstances surrounding the alleged offences because a judge of this court ultimately, on 30 May 2005, found the objective elements of the first two counts on the Information involving J and S established. On the same day that judge determined that the applicant was unfit to stand trial. Having made those two determinations the judge ordered that the applicant be liable to supervision and set the matter down for further reports and submissions. Another reason why it is important to set out some of the circumstances of the applicant’s offending on 19 December 2002 is because that offending involved one of his brothers, that brother’s de facto partner, and that woman’s young daughter. The circumstances also involved the applicant’s mother.
Before 19 December 2002 the applicant travelled to Whyalla from Western Australia for Christmas. It appears that on the night in question everyone had been drinking, including the applicant’s mother. The applicant and his mother got into an argument. As a result of that an altercation took place between the applicant and his brother Herzel. The applicant hit Herzel with a bottle and Herzel responded by punching the applicant to his face. As a result of that the applicant ended up locking himself in a bedroom. His brother Herzel left the house and ran off down the road. He apparently thought that he was about to be subjected to further violence from the applicant whom he thought had by then armed himself with a knife.
The applicant then left the bedroom and the house looking for his brother Herzel. J and S also left the house. The applicant could not find his brother. He armed himself with a piece of wood and proceeded to conduct a prolonged attack on J in the street. He also approached a group of children that were out the front of the house and asked which child was J’s daughter. When S, who was then only a young child, put her hand up, the applicant proceeded to beat her.
As a result of the applicant’s attack on J she sustained multiple skull fractures and haemorrhaging to her right eye. She lost all hearing in her right ear and has suffered a number of permanent disabilities. She has partial paralysis to the right side of her body and to the right side of her face. She spent 6 months in hospital and a further 6 months in rehabilitation in Perth. S also sustained a number of cuts and bruises as a result of the applicant’s attack on her. She spent a day and a night in hospital. Photographs that were before the court when submissions were ultimately made on 19 April 2006 show the injuries sustained by J and by S as the result of the applicant’s attack on them.
The attacks by the applicant on S and J outside the house at Whyalla were the subject of the two principal charges laid against him to which I have already referred.
By 30 May 2005 his Honour Judge Rice was seized of the charges against the applicant. Issues pursuant to Part 8A of the Criminal Law Consolidation Act 1935 (the Act) were raised before him. In particular, the applicant’s mental unfitness to stand trial was raised on his behalf. That was raised under Division 3 of Part 8A of the Act. That Division provides that a person’s mental fitness to stand trial is to be presumed unless it is established, on an investigation under that Division, that the person is mentally unfit to stand trial. It is provided that a person is mentally unfit to stand trial on a charge of an offence if the person’s mental processes are so disordered or impaired that the person is (a) unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or (b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or (c) unable to understand the nature of the proceedings, or to follow the evidence of the course of the proceedings.
On 30 May 2005 Judge Rice ordered an investigation into the applicant’s mental unfitness to stand trial. Counsel for the DPP indicated that whilst the Director was not prepared to concede that the applicant was mentally unfit to stand trial he did not intend to put any evidence to the contrary to Judge Rice.
Judge Rice determined that he would consider the applicant’s unfitness to stand trial before he considered the objective elements of the offences. His Honour considered a report of a speech pathologist, Heather Baron, dated 23 December 2003, a report of a psychologist, Richard Balfour, dated 1 February 2005, and a report of a clinical psychologist and neuropsychologist, Dr Michael Wood, dated 17 January 2005.
In the applicant’s case to rebut the statutory presumption that he was mentally fit to stand trial, the applicant’s counsel gave Judge Rice some background to the matter. She said that in January 2002 the applicant was assaulted by another brother Edward, whilst he was living in Kalgoorlie in Western Australia. He was attached by his brother Edward and hit over the head with a baseball bat. She said that as a result he suffered a depressed skull fracture, swelling and bleeding, and was in a coma for two and a half weeks. He had a cranialectomy performed in January 2002 and subsequently a cranioplasty (craniotomy) in March 2002. She said that as a result of those injuries the applicant was severely incapacitated in his ability for day-to-day life, particularly with his language and memory skills.
Ms Heather Baron expressed her opinion that, given the applicant’s degree of receptive and expressive dysphasia, the applicant would be unable to participate in the trial without unfairness or injustice. Ms Baron wrote that he would not be able to reliably understand the course of proceedings during a trial in court, he would not be able to reliably exercise his procedural rights during that process, nor reliably give instructions to his lawyer. She wrote that whilst ongoing improvements can be made for several years following brain injury, most improvement is made in the early stages of post injury. She wrote that the applicant would not be expected to recover to pre-injury status within the next 12 months.
Mr Richard Balfour obtained a history from the applicant as having come from a dysfunctional family background and of being a member of the “Stolen Generation” in Western Australia. Mr Balfour wrote that the applicant had sustained a severe traumatic brain injury with significant damage to the left hemisphere of his brain during 2002. His left temporal lobe sustained severe damage that had left him with aphasia (Neurological Communication Disorder). In Mr Balfour’s opinion the applicant clearly met the legal definition for having a mental impairment and he believed, on the balance of probabilities, that the applicant’s mental impairment was severe enough to make him unfit to stand trial. He wrote that the applicant’s aphasia would severely impair his ability to exercise his procedural rights in court, or to follow the gist of the proceedings in the court room. He wrote that the applicant’s acquired brain injury is permanent. He did not believe that he would become fit to stand trial within the next 12 months.
Dr Michael Wood wrote that the applicant had reported to him that he had suffered a very severe head injury as a result of a blow to the back of his head with a baseball bat in 2002. The applicant also stated that he had received further blows to his head from his brothers, one of which was apparently carried out with a machete. Dr Wood wrote that there was an indication that the assault with the machete occurred in Western Australia. The applicant had reported that he then took anticonvulsant medication because of seizures that have developed as a consequence of his head injury. He reported that his memory is significantly impaired as a result of the head injury and he had not been able to return to his former employment. He also stated that he was in receipt of a pension as a result of the brain injury. He acknowledged that he is now especially vulnerable to the effects of alcohol.
Dr Wood wrote that there is clear evidence that there is a severe deficit in the applicant’s ability to process verbal information to the extent that he is functioning at a handicapped to borderline level on tasks. That result was consistent with the effects of a significant left hemisphere lesion. The applicant’s severe impairment of memory for verbal information is also consistent with such a lesion. He wrote that the applicant’s ability to comprehend verbal information is severally compromised and his memory for verbal information is severely impaired. Both those deficits are entirely consistent with the location of the brain damage.
Dr Wood wrote that the applicant had stated to him that he was provoked in his actions at Whyalla on 19 December 2002, although Dr Wood notes that the applicant stated to him that he had no memory of them occurring.
Dr Wood concluded that the applicant’s injury had reduced significantly his ability to understand, retain, interpret and respond to information presented to him. He wrote that that opinion was in accord with those expressed by Mr Balfour and also by Ms Baron. He wrote that his opinion was that there is considerable doubt that the applicant is capable of responding rationally to the charges and allegations made against him. He wrote that it is very doubtful that the applicant would be able to understand the nature of the court proceedings or follow the evidence in the course of the proceedings because of the impaired comprehension and severely impaired memory. The applicant’s brain injury is so severe, and the neuropsychological deficits are sufficiently severe, to raise considerable doubts about his ability to give instructions to his lawyer. Dr Wood did not believe that the applicant would be capable of processing and responding to questions put to him during the court process.
Based on those reports Judge Rice determined that the applicant was mentally unfit to stand trial and recorded a finding to that effect.
Following that the applicant’s counsel indicated that the applicant conceded that the objective elements of the offences were made out on the papers. After considering the circumstances of the alleged offending Judge Rice found that the objective elements of both Counts 1 and 2 were made out. He recorded a finding to that effect and recorded that the applicant was liable to supervision.
His Honour did not revoke the applicant’s bail. He proceeded to put into effect what was required in order to hear submissions as to the disposition of the applicant pursuant to Division 4 of Part 8A of the Act. That involved the obtaining of a number of further medical and other reports, including a report relating to the victims and the applicant’s next of kin.
It was not until 19 April 2006 that the matter was ready for Judge Rice to hear submissions as to the applicant’s disposition.
Mr Richard Balfour saw the applicant again on 16 June 2005 using a televideo conferencing facility link. The applicant told Mr Balfour that his mother was not talking to him at that time and he had not spoken to her since 2002. The applicant told Mr Balfour that he had no contact with his two brothers because they had seriously assaulted him the past. I infer that those two brothers are Edward and Herzel. Mr Balfour was told that the applicant still communicated with his four sisters, one of which resided in Whyalla.
The applicant told Mr Balfour that he originally came to South Australia to visit his mother in Whyalla when the incident on 19 December 2002 occurred. He said he had remained stranded in South Australia “due to current legal demands”. His mother had returned to Western Australia. He felt very lonely and homesick and said he wanted to reside in a suburb in Perth where his three children live. He told Mr Balfour that the stress of his being separated from his family while he waits in South Australia had resulted in the demise of his relationship with his wife. They had decided mutually to terminate their relationship. He said he was very depressed about that. He knows that their separation is now permanent. They are now divorced. His said that his children were then aged 19, 18 and 14 years. The last time he saw them was during 2002. He is distressed that they never initiate contact with him.
The applicant told Mr Balfour that he did not want to live in South Australia, but wanted to return to Western Australia to resume his former life style and to be close to his children. He wants both of his sons to live with him. He told Mr Balfour that if he were not allowed to return to Western Australia he would commit suicide and he would be returned home in a coffin. He told Mr Balfour that he was willing to abide by any conditions that are set as part of his licence. He is hopeful, however, that he will be allowed to transfer to Western Australian Corrections so there will be no further delays in him returning to his family. Relevantly, he told Mr Balfour that the victim of his current offending was his youngest brother’s de facto. He did not believe that he represents an on-going threat to her. He said that he is happy to stay away from her and her family.
Mr Balfour reported, by report dated 23 June 2005, that the applicant had developed a depressive illness in response to the lengthy delays and being stranded in South Australia with limited supports here. He wrote that he has refrained from acting on suicidal impulses relating to his missing out on being with his children because he does not want his children to be fatherless. He remembers what it was like as a child when his father committed suicide by hanging.
Mr Balfour wrote that the applicant’s offending was “highly situational and has occurred in the context of him being a member of a highly volatile and dysfunctional family where violence is commonplace”. Mr Balfour suspected that intoxication may have been a contributing factor. He wrote that, furthermore, there may be neurological contributions such as an altered state of consciousness caused by an epileptic seizure. He wrote that he believed that the applicant had the potential to become aggressive when intoxicated with alcohol and/or drugs. He wrote that individuals who have an acquired brain injury frequently become intoxicated at a lower threshold of drug and alcohol consumption than individuals without a brain injury. He wrote that he believed that the applicant’s propensity to become violent could be adequately managed by his complying with a condition to abstain from all alcohol and drug usage, and by participating in a supervised, structured rehabilitation programme. He wrote that the applicant does not appear to harbour any feelings of malice or revenge towards the victims and their family. He appears happy to comply with a condition to avoid them. He wrote that the applicant does not present as an immediate risk or threat to the victims or their family. He wrote that he did not believe that the applicant was likely to randomly assault general members of the community while sober.
Mr Balfour later wrote another report to Judge Rice. This was dated 23 March 2006. Mr Balfour was asked to write anything further he wished in view of some documentation regarding the applicant’s past offending history which described some violent incidents.
Mr Balfour wrote that he questioned the applicant about an allegation that he had had an argument with his mother in early 2002 and that he (the applicant) was acting in a menacing manner with a knife while threatening suicide, and that his brother Edward protected their mother by striking him with a baseball bat to the head. The applicant said to Mr Balfour that his mother had lied to the authorities to prevent his brother from being imprisoned. He strongly disputed the contents of the witness statements. He told Mr Balfour that he believes that Edward assaulted him because he was jealous regarding the applicant’s contact with his brother Edward’s former girlfriend.
Mr Balfour wrote that the new information that had been provided to him had not caused him significantly to change the clinical opinions and recommendations expressed by him in his report dated 23 June 2005.
Dr Michael Wood reviewed the applicant on 17 August 2005. He reported by letter dated 19 August 2005. The applicant told him that the last occasion on which he consumed alcohol was on the night of the incident in Whyalla. The applicant told him that he then understood fully that following a severe brain injury he is much more vulnerable to the effects of alcohol and therefore has refrained from consuming it. He commented to Dr Wood that he still did not understand why he carried out the violent actions he did in Whyalla. He told Dr Wood that he had never assaulted anybody prior to the incident in question, and had never been assaulted other than by his two brothers.
The applicant told Dr Wood that he understood that his brother Herzel was then currently in Perth in prison, but would return to Kalgoorlie in the near future after his release. The applicant said that brother was arrested and charged with assault on him and had been serving a prison sentence. He said that he (the applicant) had returned to Perth to see detectives and Herzel had attacked him with a machete whilst he was asleep in a nephew’s room. He had been admitted to hospital and undergone surgery.
The applicant told Dr Wood that his brother Edward (the one who struck him with a baseball bat early in 2002) lived somewhere in a suburb of Perth, but the applicant was unaware of the precise locality. The applicant said that as far as he is concerned there is no difficulty about his relationship with his brother Edward.
Dr Wood wrote that at the time of the incident in Whyalla in December 2002 the applicant was still in the recovery phase from a severe brain injury which he suffered on 22 January 2002. He wrote that it is well recognised that persons who have suffered severe brain injury are significantly more vulnerable to the effects of alcohol. He wrote that whilst he did not intend that as a justification for the applicant’s actions in Whyalla in December 2002, it did provide a basis for considering the likelihood of him repeating the same behaviour and consequently becoming a risk to the community.

Dr Wood wrote that his opinion was that provided the applicant did not ever consume alcohol again, there is very little chance of him losing control of his behaviour. The history attested to that conclusion. He wrote that there were resources available in the Adelaide metropolitan area for the treatment and support of the applicant in the community. He understood that Perth had a particularly well established brain injury rehabilitation programme. He thought it would be inappropriate for the applicant to return to Kalgoorlie. He agreed with the suggested management plan for the applicant that had been outlined by Mr Balfour.
It seems that in the same way as Mr Balfour was provided with some further information after he wrote a report, so was Dr Wood. Dr Wood wrote another report, this one dated 27 February 2006.
Dr Wood wrote that the applicant’s offender history indicated by police records was in conflict with the applicant’s statement to him at the initial interview that he had not been in conflict with the law previously. Dr Wood referred to a Victim and Next of Kin Counselling Report dated 14 September 2005 as providing an account of statements made by victims of the assault that occurred in 2002 at Whyalla. He referred to the applicant’s mother as having stated that there was considerable conflict between the applicant and his brother Herzel. She expressed concern about the applicant’s safety if he returned to Western Australia. That concern was because of Herzel.
Dr Wood referred also to the statement from the applicant’s mother that refers to a difficult relationship between the applicant and her son Edward. She provided an account of the altercation between the applicant and herself on the day of the Whyalla incident in which it would appear that the applicant was upset about what had happened to him earlier in his life at the Marybank Mission.
Dr Wood referred to a later incident to the one in Whyalla in December 2002 where it appears that the applicant was struck on the head with a heavy knife (machete) by his brother Herzel.
Dr Wood wrote that after reading the documents that had been sent to him he had considerable concern about the applicant’s safety with regard to possible actions of his brother Herzel should be return to Western Australia. He also had some concern about the safety of other family members living in that state, given the applicant’s own propensity to violence and the difficulty that he has in controlling his behaviour, especially under the influence of alcohol.
Dr Chris Branson, a forensic psychiatrist, also wrote two reports to his Honour Judge Rice. Dr Branson saw the applicant on 17 August 2005. The applicant told him that he had no specific memory of the offences for which he was charged that occurred in Whyalla in December 2002. The applicant told him that he was “not himself” at the time as he had only relatively recently suffered a major head injury as a result of a serious assault at the hands of his elder brother Edward. The applicant said that he had had a seizure at the time of the incident in Whyalla in December 2002. The applicant told Dr Branson that he did not drink alcohol at all and had no intention of doing so in the future. He anticipated no difficulties in the future in abstaining from alcohol. He did not anticipate any difficulties in abstaining from any illicit drugs in the future.
Dr Branson concluded that he generally agreed with the management plan as set out by Mr Balfour. He thought it was critical that the condition of the applicant’s licence should include the necessity to comply with prescribed medication and to abstain from alcohol and other drugs. Dr Branson believed that the most important aspect of arrangements for the applicant, and his future welfare, “will have to do with attempting to ensure that the conditions of any such licence can immediately be transferred to the Western Australian jurisdiction”. He thought that this was “essentially a bureaucratic problem”. He expressed grave concern for the applicant’s future welfare, especially with regard to depression and suicidal ideation, if he were required to remain in South Australia.
In his supplementary report, dated 3 April 2006, Dr Branson referred to documents that had been provided to him since his earlier report revealing a history of episodes of significant violence between the applicant and both his brothers. He thought that the documents appear to reveal a culture of alcohol intoxication and violence, including “payback” violence, within the family. He wrote that there appears to have been a long history of conflict especially between the applicant and his brother Edward, and more recently a history of antipathy to the applicant from his younger brother Herzel.
Dr Branson wrote that whilst those matters did not bear directly on the issue of the applicant’s psychiatric condition, it was nevertheless clear that there should be no question of any contact occurring between the applicant and either of his brothers or their immediate families, because of the potential for further violence to occur. Dr Branson pointed out that the potential for violence seems to be at least as great on the part of Edward or Herzel, as it does on the applicant’s part. Dr Branson thought that there should be conditions prohibiting contact between the applicant and “the relevant family members”. He wrote that whilst there is clearly more chance of such contact occurring if the applicant returns to Perth, it did not seem to him that that outweighed the need for the applicant to be reunited with his children in particular.
Judge Rice was provided with a Victim and Next of Kin Counselling Report dated 14 September 2005. In that report J, the adult victim of the incident in December 2002 at Whyalla, informed that she was suffering from several permanent disabilities as a result of what the applicant did to her in Whyalla. She spoke of her physical disabilities and her mental and emotional problems. She advised that seven months after the incident the applicant returned to Western Australia. She said that her partner Herzel, the applicant’s brother, learned that the applicant was staying at his sister’s house and attacked him there. She said that Herzel had never come to terms with what the applicant did to her and her daughter S, and Herzel continues to feel responsible for it. She said that Herzel had received an 18 month prison term for his assault on his brother, the applicant, which she felt was unjust. She said that her daughter “had to suffer again because she lost her father”. In addition Herzel was unable to provide financially. Herzel had been released from prison but they remained separated and were “trying to work things out”. She stated that the applicant should “pay for what he’s done and as far as (she’s) concerned he hasn’t”. She did not believe that justice had been done because the applicant had not served any term of imprisonment. She said that she does not want the applicant to return to Western Australia, as he would be attending the same rehabilitation facilities as herself. She was also concerned about the potential for further conflict with her partner, and the anxiety it would cause herself and her daughter to know that he was in the state.
In the same report the applicant’s mother reported erratic communication with the applicant. She reported that he last telephoned her about six months before. She said that there was still a lot of ill feeling between her son Herzel and the applicant. She said that Herzel “doesn’t talk to her because she has things to do with (the applicant)”. She said that she is presently “trying to bridge the gap” between her sons, and although she is very supportive of the applicant and would like him to return to Western Australia, she is afraid that there will be further reprisals from her son Herzel. She reported that the applicant was very fond of his children and worries that he cannot be in Western Australia to help support them.
The final document to which I refer that was before Judge Rice in April and May 2006 was a letter from the Parole Board of South Australia. That letter referred to there having been some suggestion that the court may be considering releasing the applicant on licence to return to Western Australia to serve his limiting term in that state. The letter referred to the fact that under the Act the Parole Board has primary responsibility for supervising the applicant if he is released on licence. Supervisory responsibilities in terms of treating or monitoring his mental health are exercised by the Minister through the Forensic Mental Health Service.
The Parole Board wrote that the reality was that it has no jurisdiction in Western Australia even if Community Corrections in Western Australia were prepared to supervise the applicant. There are no reciprocal arrangements between South Australia and Western Australia that would allow for the applicant’s supervision and the Parole Board of South Australia has no power to direct Western Australian Community Corrections. If the applicant were to leave South Australia, the Parole Board would be placed in a position where it could not discharge its statutory responsibility. The Board confirmed that it would oppose the applicant’s transfer to Western Australia on licence.
On 26 May 2006 his Honour Judge Rice released the applicant on conditions decided by him and specified in the licence. Judge Rice fixed a limiting term under Division 4 of Part 8A of the Act. As he was required to do he fixed a limiting term by reference to the sentence that would have been imposed if the applicant had been found guilty of the relevant offences and without taking account of the applicant’s mental impairment. Judge Rice fixed a limiting term of 6 years.
When considering the limiting term Judge Rice said:
There can be no doubt that these are very serious offences, particularly the grievous bodily harm caused to J. You beat her quite savagely and left her with substantial permanent disabilities. It was not a single blow, but a series of them, as she tried to get away from you.
There is no doubt that the aspect of general deterrence must be a substantial factor. No‑one in the community should be subject to that degree of violence, whether alcohol is involved or not. All people are entitled to the full protection of the law.
Something also needs to be said about personal deterrence and your prior Court appearances, all of which were in Western Australia. You are now aged 38 years. As a juvenile most of your offences were offences involving dishonesty and the equivalent of our “illegal use”. However, in 1987, there was an assault occasioning actual bodily harm, in 1990, three counts of common assault and in 2002 an unlawful wounding. Although most of your offending involved dishonesty, there are enough offences of violence prior to this to be of cause for concern, even though you no longer drink alcohol or use illegal drugs.
Judge Rice referred to the fact that the applicant wished to return to Western Australia, which was where he came from and where his family lives. Judge Rice said this:
That brings me to one of the major problems in this case, namely, that if you are to be released on licence you would not be able to return to Western Australia during the limiting term, because there are no reciprocal arrangements between that State and South Australia at the present. The other problem about you returning to Western Australia is that there is a real risk that any mixing with your brothers may result in serious violence to you or them. To a lesser extent the same will apply to other members of your family. They do not want you returning there.
The history of family violence is of real concern. I accept that you no longer drink alcohol, but others drinking is a recipe for disaster if you are part of the mix. The safety of the community is one of the major considerations for me. Normally, I would have regard to the treatment that is available to you and assess how such treatment would reduce any risk to the community occasioned by your mental impairment. However, your mental impairment is virtually fixed and irreversible so that treatment in the conventional sense is not an option.
The view I have taken is that you should be released on licence. In reaching that decision I have taken into account the risk that you will not comply with some of the conditions of your licence, particularly that you may go back to alcohol and illegal drugs. I do not rate that risk as high, because you have stayed away from them for quite some time. I realise only too well that you are experiencing great difficulty because you have not been able to return to Western Australia to see your children. As I have mentioned, there are no reciprocal arrangements with Western Australia such that they could ensure compliance with the conditions while you are over there. That is one of the reasons why you cannot return to Western Australia at the moment and it will be a condition of your licence that you remain in South Australia. The other reason is that you and other members of your family would be at real risk of serious violence.
His Honour Judge Rice released the applicant on various strict conditions. One of those conditions was that he not return to Western Australia, or more accurately, that he is to remain in the state of South Australia.
By a letter dated 31 March 2008 written by Dr Ken O’Brien of the South Australian Forensic Mental Health Service to this court, Dr O’Brien reported that the applicant, from a psychiatric perspective, was stable. His main concern was his inability to return to Western Australia, or indeed to have a brief visit to that state, to see family members including his three children. At times that made him feel very despondent, if not depressed. He thought there was some risk of a deterioration in his mental health and possible self harm, if that matter was not addressed. Dr O’Brien stated that he was aware of the unique circumstances surrounding an individual subject to the provisions of Part 8A of the Act which provisions are restricted to South Australia and cannot be “transported” across state boundaries. It was his opinion that “it is now an opportune time to explore the feasibility of (the applicant) temporarily making a visit to see his family in Western Australia”. He wrote that such a visit could be short (perhaps no longer than two weeks), with, if possible, voluntary contact with and supervision by a Western Australian Community Corrections Officer.
Dr O’Brien wrote to Port Augusta Community Corrections by letter dated 18 June 2008 referring to a submission by an officer there to the Parole Board about obtaining greater flexibility with respect to the applicant’s licence conditions.
Dr O’Brien wrote, in his annual report to the court, in similar terms in a letter dated 7 July 2008.
With a letter dated 3 October 2008 the Director of Public Prosecutions made an application for variation of the supervision order of the applicant. The Director sought that his supervision order be varied to permit him to leave the State of South Australia for the purpose of visiting family members in Western Australia. The Director sought further the preparation of three psychiatric reports. That the Director made such an application was unusual. That application was first heard by this court in Adelaide on 27 October 2008. The applicant could not attend due to ill health but was represented at the arraignment on 27 October 2008. The judge who heard the matter ordered reports.
The Parole Board of South Australia reported by letter dated 12 November 2008. The Board repeated that it is charged with the statutory responsibility of supervising anyone who has a licence pursuant to Part 8A of the Act. It stated that if the applicant was granted permission to live in Western Australia it would be placed in a situation where the court has varied the licence in such a way that the Parole Board is unable to discharge its statutory responsibility. The Presiding Member of the Board indicated that she realised that was an unsatisfactory situation and that recommendations had recently been made to government to try to achieve some reciprocity between states such as exists in the parole legislation. Until that happened the difficulty remained.
The Presiding Member reported that the applicant had reported consistently. She reported that to his credit he had not absconded from South Australia notwithstanding that he has a very strong yearning to be in his home community in Western Australia. She set out some matters relating to the applicant’s brain injury and she referred to his being part of the “Stolen Generation”, his dysfunctional upbringing, and sexual and physical abuse he claims to have occurred at a mission at which he was earlier housed.
The Presiding Member wrote that if the applicant were to apply to the Parole Board for permission to go to Western Australia for a short period of time, e.g. 2 – 3 weeks, she had no reason to believe that the Board would not approve a temporary departure. If he were to travel to an area where supervision was available from Community Corrections in Western Australia temporary supervision could be arranged. She informed the court that, on 14 April 2008, the Parole Board had resolved to support a variation to the applicant’s licence to read “That you do not leave the State of South Australia without the prior written permission of the Parole Board”. She accepted that it was entirely a matter for the court whether or not his licence was varied.
In December 2008 and January 2009 the court received two psychiatric reports and a Victim and Next of Kin Counselling Report.
Mr Richard Balfour referred to the applicant as having moved from OARS hostel accommodation to share accommodation in a Housing Trust home with his only friend. That friend appears to have been a positive influence upon the applicant’s life. The applicant had had employment in a meat works for 2 to 3 months but had reluctantly resigned because he could not tolerate working in a cold room due to having a metal skull plate. The applicant had reported that he was upset that his relationship with his children’s mother had ended but he had coped. He had been compliant regarding his reporting conditions. He does not consume alcohol or illegal drugs. He has not had any angry outbursts or aggressive incidents and he has not come into further legal conflict. He has been both reliable and responsible whilst being supervised on licence.
Mr Balfour reported that one of the reasons for the applicant’s excellent progress whilst on licence was that “his mother and brothers, who are a destabilising influence in his life, are unlikely to have any contact with him”.
Mr Balfour reported that the applicant’s plan to visit his children appears to be feasible and realistic. He believed that there was a realistic threat the applicant would attempt suicide by hanging if the court refused his request to visit his family.
Dr William Brereton, Consultant Forensic Psychiatrist, reported on 10 December 2008. The applicant apparently told Dr Brereton that he bears no ill-will towards his brothers. He reported that he had made his peace with Edward five years ago but they had no on-going relationship. He reported that he also had no contact with Herzel. He reported that he does not know where his brothers or his mother live and has no interest in re-establishing contact with them.
Dr Brereton reported that he agreed with Dr O’Brien that there was a real risk of the applicant developing a depressive illness if he was not able to see his family for a further five years. Dr Brereton wrote that he thought the risks associated with allowing the applicant to return to Western Australia (i.e. that he might re-offend and harm others) are minimal and there are clear benefits to this course of action, in that it would help prevent any deterioration in the applicant’s mental health. Dr Brereton supported conditions of the applicant’s licence whereby he should be required to report to a Community Corrections Officer, be that in Western Australia or by telephone to an officer in South Australia. Dr Berreton suggested that, subject to a successful visit to Western Australia (should this be deemed appropriate), consideration might also be given to a framework to allow the applicant further, although not necessarily frequent, such visits.

In the Victim and Next of Kin Counselling Report dated 23 December 2008 that was prepared for the court, J was interviewed on 18 December 2008 by telephone. She informed that she was supportive of the application before the court. She explained that she was not fearful for her safety should the court grant the applicant permission to travel to Perth. She further stated that she was understanding of the applicant’s desire to visit his three children and grandchildren, and she acknowledged that it would be very beneficial for him to do so.
The applicant’s mother was also interviewed. That was by telephone on 19 December 2008. The report states: “Ms Johns informed me that both she and the extended family are supportive of the application before the court explaining that it would be beneficial for the applicant to spend time with his three children and meet his grandchildren”. The report does not indicate to whom Ms Johns was referring when she spoke of “the extended family”. The report also stated that the applicant’s three children were supportive of the application before the court that would enable the applicant to travel to Perth should permission be granted to him to do so.
On 30 January 2009 his Honour Judge Barrett heard the Director’s application to vary the applicant’s licence conditions. Counsel on behalf of the DPP submitted that the variation that the Director was seeking was that condition number 3 of the applicant’s licence which then read: “That you are to remain in the State of South Australia” be amended to read: “That you do not leave the State of South Australia without the prior written permission of the Parole Board and that you comply with all Department of Community Corrections procedures for interstate travel”. The Director’s application was not opposed on behalf of the applicant.
Judge Barrett varied the applicant’s licence conditions in the way sought by the Director.
On 16 March 2009 the court received an annual report under the Act on the applicant. That report was by letter dated 11 March 2009, signed by Dr Ken O’Brien. In his report Dr O’Brien referred to the very recent variation to the applicant’s conditions and stated that the outcome was certainly pleasing for the applicant. Dr O’Brien reported that he had recently seen the applicant on 2 March 2009. The applicant was aware of the Parole Board approval and was gratified about that. It was hoped that he would be able to be in Western Australia between 18 March and 18 April that year, 2009. Although he had originally intended to drive to Western Australia he is now considering taking the train to Perth. Dr O’Brien referred to arrangements he had made to see the applicant again in June 2009.
This brings me back to the application that was filed in this court on 6 April 2010 on behalf of the applicant. That application seeks an order that the applicant’s order for release on licence be varied “to enable the applicant to return to his family and live permanently in the State of Western Australia”. The grounds for the application include that since 26 May 2006, when the applicant was released on license by Judge Rice, he has not re-offended and has complied with all directions from his supervising authority. The grounds stated that the applicant is able to obtain full-time work in Western Australia which he cannot secure unless he can show an employer that he resides there full-time. It was stated that the applicant does not have family support in South Australia and he seeks his licence to be varied to be with his family in Western Australia. It was stated that the applicant has been back to Western Australia on several occasions since his licence was varied on 30 January 2009 and has always returned to South Australia and has never breached this condition.
The Application filed on 6 April 2010 was first listed in an arraignment list in Port Augusta on Monday 3 May 2010. It came on before me. On 7 May 2010 I asked for reports from the appropriate authorities. I was informed by the applicant’s counsel that the applicant occasionally goes back to Perth to visit his family and there is some temporary supervision when that occurs. I listed the matter again for Wednesday 26 May 2010. Not all reports were received by that day. I fixed submissions for 6 July 2010.
I received a report dated 20 May 2010 prepared by the applicant’s Community Corrections Officer. He summed up his report by stating that during the six years the applicant has been supervised by the Department for Correctional Services (he was on bail between 19 December 2002 and 26 May 2006) his behaviour has been exemplary, he has engaged well in supervision and his mental health has remained stable. Based on those facts, the risk of the applicant re-offending is considered to be low, and the officer fully supported his application that his licence be ended to allow him to move to Western Australia to reunite with his family. The officer had earlier in his report referred to the fact that the applicant had travelled to Western Australia on two occasions, in April 2009 and September 2009, during which he maintained contact as directed and reported regularly. On both occasions the officer contacted the applicant’s mother after the visit. She told him that she and the family were pleased to have the applicant there. There were no problems whilst he was there and they would like him to move permanently to Western Australia which is his home state. He reported that the applicant’s mother had contact him frequently after the second visit stating she is willing to make all the required arrangements to have him there.
I received a letter from the Parole Board of South Australia dated 2 June 2010. In her letter the Presiding Member set out in some detail the history of the applicant’s matter. She wrote that the applicant’s relationship with his current case manager has been long-standing and is one of a supportive nature. In the Parole Board’s view, the maintenance of that relationship was important to the applicant. She wrote that the proposal that the applicant move to Western Australia could be traumatic for him. He seems to have a plan of reconciliation which can be difficult and not meet expectations. He is intending to go to an environment where he has limited support, or where the support at least is significantly less than he has enjoyed to date. The fact that the applicant wants to go to Western Australia permanently does not necessarily mean that it is in his best interests. He has had short periods, approved by the Parole Board, in Western Australia and they have been without incident, but living there permanently is a different scenario.
The Presiding Member wrote that the Board understood that the applicant feels separated from his land and his family. He had not, as at February 2009, had any personal contact with his children for the six years preceding and had not met his grandchildren.
The Presiding Member wrote that, significantly, the legislation requires the Parole Board to supervise the applicant, save and except in respect of his mental health. If he moves permanently to Western Australia it would be impossible for the Parole Board to discharge its statutory function. The requirement of supervision is mandatory upon the Board. She concluded her letter by noting that there is a history of family violence and that when the matter was before Judge Rice in 2006, he noted that returning to Western Australia and mixing with his brothers may result in serious violence to him or to them.
In a report to me dated 25 May 2010 Dr N P Nambiar of the Forensic Mental Health Services reported that the applicant had stated to him a sense of loss and entrapment in South Australia as a result of his licence conditions. Dr Nambiar wrote that it was hard to gauge how successful a permanent move to Western Australia would be on the basis of two brief visits there, although the absence of any adverse incidents during those visits was a promising sign. He wrote that if the applicant’s request was declined, then he thought it likely the applicant would continue to comply with his conditions of licence, although his levels of frustration would continue to build as would his propensity for depression and the temptation to abscond interstate. Dr Nambiar supported the applicant’s request to move permanently to Western Australia to reside with his family. However, he wrote that he would be seeking more information about what supports would be available for him in Western Australia, including how the statutory requirements can be met or be transferred interstate. He wrote that the issue of medical follow-up would also need to be arranged with a local medical practitioner, with access to a psychiatrist, should a consult be required. He wrote that the issue of annual reports would also need to be considered, in as much as how they would be organised interstate and any arrangements with regard to breaching of licence conditions.
Dr Nambiar concludes his report by writing this:
Alternatively, in light of (the applicant’s) extremely good history of compliance and lack of any current psychiatric illness that would require on-going treatment, it may be more pragmatic at this juncture to consider an unconditional release (or revocation of his Supervision Order).
By letter dated 4 June 2010 Dr Ken O’Brien wrote to me. He wrote that he most recently reviewed the applicant on 4 May 2010.
Dr O’Brien wrote that the applicant’s medical and psychiatric state had been quite stable for an extended period of time and he did not have any concerns about him in that regard. He wrote that, to the best of his knowledge, friction with family members had eased. In fact, he was told that the applicant had a chance encounter with his brother Herzel in Port Augusta some time ago and no animosity was displayed.
Dr O’Brien expressed the view that there is no medical/psychiatric reason for the applicant to remain in South Australia. He was confident that the applicant would consult a general practitioner in Western Australia and have that practitioner refer him to a consultant psychiatrist. Dr O’Brien is reassured that the applicant is a “changed” man. He is older and more mature. He has ceased his alcohol and drug abuse and he is understandably most anxious to again become a part of his intimate family circle. His behaviour and co-operation in South Australia has been exemplary and that, in his view, is an excellent prognostic indicator. He noted that Drs Nambiar and Brereton, who know the applicant less well than he, hold similar opinions.
Because it appeared to Dr O’Brien that to vary the applicant’s current licence conditions such as to enable him to domicile permanently in Western Australia would not legally be possible, he addressed the possibility that the applicant’s current order might be entirely revoked. He wrote that he is supportive of such revocation, as indeed are his two psychiatric colleagues. He wrote that the applicant would understandably be bitterly disappointed if the court did not support revocation of his order. However, if the court did not, then he hoped that very frequent and extended periods of leave in Western Australia could continue to be provided to the applicant until his limiting term ends in 2012.
In a report dated 21 June 2010 Dr William Brereton reported to me. Dr Brereton wrote that he believed that if the applicant were allowed to return to reside in Western Australia the risks of him re-offending and the risks of him harming himself or others are low. He did not believe more time under supervision will have any benefit in terms of the future behaviour of the applicant, although he indicated that he was aware that that is not the only factor the court will be taking into consideration. He concluded by mentioning that, as he had said in his previous report, there is the possibility that the applicant’s mood will deteriorate if he is prevented from residing in Western Australia for a further two years.
I received a Victim and Next of Kin Counselling Report dated 5 July 2010. J reported that she did not wish to say anything other than she had not expected the applicant to return to Western Australia on a permanent basis until his limiting term expired in 2012 when S, her daughter, turned 18 years of age. S reported that she had not seen the applicant since 19 December 2002. She noted that the applicant’s family had been “nice to me”. S said she intended to move out of home once she turned 18 years. She said that she would feel much safer once she has moved to an undisclosed location.
The applicant’s mother reported that she supported the applicant “all the way”. She reported that the applicant had visited her regularly and she felt she had seen a significant improvement in his mental state and functioning. Although she would not have allowed the applicant to reside with her or visit as at December 2002, she was now prepared to allow him to reside with her permanently. She reported that she had spoken to her other sons, the applicant’s brothers, and they were in support of the applicant’s permanent return to Western Australia. She stated that her health was poor and that the applicant’s presence at her home would be of great help to her.
The applicant’s daughter stated that she supported the applicant’s application. She said that the applicant had four grandchildren and it was important he have contact with them. One of the applicant’s sons said he did not have much contact with the applicant but did see him when he visited Western Australia. The other son of the applicant was not able to be contacted.
On 6 July 2010 I heard submissions on the application
It was common ground that if I granted the applicant’s application in the terms sought that would have the practical effect that the applicant could not be supervised by the Parole Board as required by law. I therefore consider the applicant’s application on the basis that it is an application for his licence to be revoked pursuant to s 269P of the Act.
Section 269P of the Act provides that the court may, on the application of various people which include the applicant, vary or revoke a supervision order at any time during the limiting term. If revoked, the court is authorised to make, in substitution for the supervision order, any other order that the court might have made under Division 4 of Part 8A of the Act in the first instance.
The applicant’s limiting term commenced on 26 May 2006 and will, unless the supervision order is revoked, expire six years after that date, that is, 25 May 2012. That is about eighteen months away.
Section 269T of the Act provides that in deciding this application I should have regard to the nature of the applicant’s mental impairment; and whether the applicant is likely to endanger another person, or other persons generally; and whether there are adequate resources available for the treatment and support of the applicant in the community; and other matters that I think relevant.
Before determining this application I must be provided with certain medical and other reports, including a report setting out the views of the applicant’s next of kin and the victims of his conduct on 19 December 2002. I cannot release the applicant unconditionally unless I have considered at least three psychiatric reports, the writers of which have personally examined the applicant and have reported on his mental condition and the possible effects of releasing him unconditionally on his behaviour. One of the probable effects of revoking the applicant’s supervision order and releasing him unconditionally is that he will leave South Australia and return to Western Australia to live.
One view of s 269P(1) of the Act is that I may, in my discretion, revoke the applicant’s supervision order and, if I do, I must make, in substitution for the supervision order, an order that might have been made in the first instance. Another view of that subsection is that I have a discretion to revoke the applicant’s supervision order and, if I do, a discretion to make an order in substitution for it that might have been made in the first instance. The proper construction between those two alternatives will depend on whether the words “the court may” qualify both an order to revoke and any order in substitution therefor.
The proper construction was not the subject of argument before me. I do not consider, however, that it needs to be resolved for the purpose of this application. I consider, however, that the better view, having regard to the scheme of Part 8A, and in particular Division 4, of the Act, is that the power of the court to revoke a supervision order is discretionary but, if such a discretion is exercised, the court should make an order in substitution that it might have made under Division 4 of Part 8A of the Act in the first instance. I consider that that is the preferred view because s 269O in particular sets out what a court may do in respect of a person who is declared to be liable to supervision under Part 8A of the Act.
There appears no dispute between the psychiatrists who have recently examined the applicant and reported on him that there is little more that needs to be done by them for him by way of treatment. They seem to be of a common view that the applicant lacks any current psychiatric illness that would require on-going treatment. Their common view appears also to be that the applicant’s medical and psychiatric state has been stable for an extended period and there are no concerns about him in that regard. There was no medical/psychiatric reason for the applicant to remain in South Australia. Confidence was expressed that the applicant would consult a general practitioner in Western Australia if he was allowed to return to live there, and have that practitioner refer him to a consultant psychiatrist.
Dr O’Brien is reassured that the applicant is a “changed man”. He is older and more mature. He has ceased his alcohol and drug abuse and he is understandably most anxious to again become a part of his intimate family circle. His behaviour and co-operation in South Australia has been exemplary and that, in Dr O’Brien’s view, is an excellent prognostic indicator. Dr O’Brien noted that Drs Nambiar and Brereton held similar opinions.
The Presiding Member of the Parole Board wrote, on 2 June 2010, a carefully considered and helpful letter setting out in some detail the history of the applicant’s matter. Importantly, she wrote that the applicant’s relationship with his current case manager has been long-standing and is one of a supportive nature. She indicated that the Parole Board’s view was that the maintenance of that relationship was important to the applicant. If the applicant’s supervision order was to be revoked he would lose his relationship with his current case manager.
That case manager reported on 20 May 2010 that the applicant’s behaviour has been exemplary during the six years he has been supervised by the Department for Correctional Services. He indicated that it was six years because the applicant was on supervised bail from the date of his offending on 19 December 2002 and the date of the supervision order imposed on him on 26 May 2006. The case officer wrote that the applicant has engaged well in supervision and his mental health has remained stable. On those facts, the risk of his re-offending is considered by the case manager to be low. His case officer fully supports the applicant’s application that his licence be ended to allow him to move to Western Australia to reunite with his family. He wrote that on the two occasions that the applicant travelled to Western Australia he reported regularly and the applicant’s mother reported to the case manager that she and the family were pleased to have the applicant there, and there were no problems whilst he was there. The applicant’s mother had contacted the case worker frequently since, stating she is willing to make all required arrangements to have the applicant live with her.

The Presiding Member of the Parole Board sounded a note of caution. She wrote that the proposal for the applicant to move to Western Australia could be traumatic for him. His plan of reconciliation could be difficult and not meet expectations. He will be going to an environment where he loses the support, or where the support is significantly less than, he has enjoyed in South Australia. The fact that the applicant wishes to go to Western Australia permanently does not mean that it is in his best interests. Whilst visiting for short periods have gone without incident, living there permanently is a different scenario. She concluded her letter by noting that there is a history of family violence and that when the matter was before Judge Rice in 2006, he noted that returning to Western Australia and mixing with his brothers may result in serious violence to him or to them.
By a report dated 5 July 2010 I was informed that the applicant’s mother supported her son “all the way”. She had felt a significant improvement in his mental state and functioning since he visited her in Western Australia. Although she would previously not have allowed him to reside with her or visit her she was now prepared to allow him to reside with her permanently. She stated that her health was poor and that the applicant’s presence at her home would be of great help to her. She reported that she had spoken to her two other sons, the applicant’s brothers, and they were in support of his permanent return to Western Australia. The applicant’s daughter supported the applicant’s application and said that it was important that the applicant had contact with his four grandchildren.
The applicant’s victim J was recently reported to have stated that she did not wish to say anything about the applicant’s application other than she had not expected him to return to Western Australia on a permanent basis until his limiting term had expired in 2012 when S, her daughter, turned 18 years of age. S reported that she had not seen the applicant since 19 December 2002 and she noted that the applicant’s family had been “nice to me”. She stated she intended to move out of home once she turned 18 years of age and would feel much safer when she had moved to an undisclosed location.
I have referred earlier in these reasons to some of Judge Rice’s remarks when he released the applicant on licence on 26 May 2006. He said, when considering the limiting term, that the aspect of general deterrence must be a substantial factor. He said that personal deterrence was also important as the applicant had offences of violence prior to the offending he committed on 19 December 2002, even though he no longer drank alcohol or used illegal drugs.
In respect of the applicant’s then stated wish to return to Western Australia Judge Rice stated that that was one of the major problems before him, in that if the applicant was released on licence he would not be able to return to Western Australia during the limiting term. He stated that another problem with the applicant returning to Western Australia is that there was a real risk that any mixing with his brothers may result in serious violence to him or to them. That also may apply to other members of the applicant’s family. Members of the family did not want him returning to Western Australia where the history of family violence was of real concern.
When sentencing submissions were made before me I raised with counsel whether an application to revoke a supervision order which was made upon an applicant being declared liable to supervision under Part 8A of the Act following a finding that he was unfit to stand trial might be treated differently, or at least might raise different considerations, from an application to revoke a supervision order where a person is declared liable to supervision under Part 8A of the Act following a declaration that such a person was mentally incompetent to commit the offence or offences with which that person is charged. I raised with them that the matters the court may consider relevant and important where a person who was declared to mentally incompetent to commit an offence has undergone psychiatric treatment such that that person was no longer mentally impaired and mentally incompetent to commit a criminal offence, might be different from those that might arise where a person who was not mentally incompetent to commit an offence or offences when it or they were committed later became mentally unfit to stand trial. In the first case, where a person is declared to be mentally incompetent to commit the offence or offences, the court must find that person not guilty of the offence or offences. In the second case, where a court decides that a person is mentally unfit to stand trial, the court must record a finding to that effect and then proceed with the trial in the normal way, as to whether the objective elements of the offence or offences are established. In this second case the court does not find a person not guilty, or guilty, of the offence or offences.
I did not hear considered and detailed submissions on these matters, including the issue as to whether, if different considerations do apply, what different considerations should be had regard to, or be given different and what weight.
I consider that I can decide this application without finally determining any of the matters to which I have just referred.
I have ultimately reached the conclusion that I should revoke the applicant’s supervision order (pursuant to s 269P of the Act) and release him unconditionally (pursuant to s 269O of the Act).
I give significant weight to the Parole Board’s comments and to the caution, even disquiet, expressed by the Board.
I consider that the views expressed by the applicant’s mother are important, particularly having regard to the fact that she has previously not supported his return to Western Australia. Her view that she has seen a significant improvement in the applicant’s mental state and functioning such that she is now willing to have him reside with her permanently is an important factor. Equally, or perhaps more importantly, she reported that the applicant’s brothers supported his permanent return to Western Australia. It is nearly ten years since there was physical violence between the applicant and either of his two brothers. True it is that one of the applicant’s brothers went to prison in Western Australia as a result of an act of violence by him on the applicant. One can never be sure that the memories of that have completely dissipated, forgotten, or forgiven and it is relevant that it was the partner of that brother whom the applicant violently assaulted at Whyalla in December 2002.
Although J’s attitude to the application could be said to have softened from attitudes previously expressed by her, she has not softened to the point where she has expressed support for his return to Western Australia. It has softened to the extent that she does not now wish to say anything other than she did not expect him to return to Western Australia on a permanent basis until 2012, when her daughter S turned 18 years of age. In a similar way, S does not positively support this application. I infer, by her indication that she will feel safer once she has moved to an undisclosed location, that she would prefer the applicant not to return to Western Australia at the moment.
Whatever I do the applicant will be at liberty to return to Western Australia in about the middle of 2012. He has been absent from his state of birth, his home and his children since December 2002, nearly eight years ago.
I acknowledge that when Judge Rice fixed a limiting term of six years on 26 May 2006 he fixed that term, as he was required to do, by reference to the sentence of imprisonment that would have been imposed if the applicant had been found guilty of the offences for which he was charged, and without taking account of the applicant’s mental impairment. The fact that had the applicant been sentenced to a term of imprisonment for six years a non-parole period of something less than that term would have been fixed, is not something I take into account here because the same considerations that apply here may apply in those circumstances if it is difficult for the Parole Board to supervise the applicant as a parolee in Western Australia. As I did not hear submissions from the parties as to this matter I do not take it into account.
I am ultimately satisfied that the considerations favourable to a revocation of the applicant’s supervision order outweigh the reservations against doing so. The fact that the applicant’s brothers support his return to Western Australia, and his victims’ recent comments, are important factors in my decision.
Accordingly, I will order that the supervision order in relation to the applicant made on 26 May 2006, as varied on 30 January 2009, be revoked.
I will further order that the applicant be released unconditionally.