R v Santianes (Ruling No. 2)

[2015] VSC 571

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. S CR 2014 0204

THE QUEEN
v
SANTIANES	Accused

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 October 2015
DATE OF JUDGMENT:	14 October 2015
CASE MAY BE CITED AS:	R v Santianes (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 571

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CRIMINAL LAW – Murder – Verdict entered of not guilty by reason of mental impairment – Report received under s 41 of Crimes ( Mental Impairment  and Unfitness to be Tried) Act 1997 – Certificate of available services received under s 47 of the Act – Custodial supervision order imposed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M. Rochford QC	Office of Public Prosecutions
For the Accused	Mr J. Fitzgerald	Victoria Legal Aid

HIS HONOUR:

1. Benedicto Santianes was charged on indictment with the murder of Mr Peter Nielsen. Pursuant to s 21(4)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’), I directed, on 11 May 2015, that a verdict of not guilty by reason of mental impairment be recorded in respect of this charge. In my ruling on that matter I set out a summary of the factual circumstances of the relevant incident. There is no need to revisit those.

1. As part of the 11 May ruling, I declared that Mr Santianes was liable to supervision under Part V of the Act, and remanded him in custody to prison pending receipt of:

a)        A Certificate of Available Services signed by a delegate of the Department of Health; and

b)        A psychiatric report on the mental condition of the accused.

1. I have since received both documents. The Certificate of Available Services certifies that the facilities and resources necessary to treat Mr Santianes are available at Thomas Embling Hospital, Yarra Bend Road, Fairfield. The confidential psychiatric report was prepared by Dr Prashant Pandurangi, Consultant Psychiatrist, Victorian Institute of Forensic Mental Health.

1. I am assisted by Dr Pandurangi’s report which states, inter alia, that Mr Santianes has continued to suffer psychotic symptoms and hold delusional beliefs similar to those evident around the time of, and eventually leading to, the index offence. This is despite Mr Santianes’ now being on an appropriate dose of antipsychotic medication. Dr Pandurangi characterises Mr Santianes’ insight into his mental illness and the need for long term medications as ‘poor’. He further opines the following:

He (Santianes) would require a comprehensive assessment of his risks, including that of interpersonal violence and self harm, prior to any placement in the community. In my opinion this could only be carried out in a secure therapeutic environment setting, such as Thomas Embling Hospital.

1. Concluding his ‘Opinion and Recommendations’, Dr Pandurangi continues:

He (Santianes) will also require a long-term graduated rehabilitation program towards his vocational, educational, and recreational needs.  In my opinion, such comprehensive rehabilitation needs can only be effectively met by way of a Custodial Supervision Order (CSO).  I do not believe that the above could be achieved, in the community, by way of a Non Custodial Supervision Order (NCSO).

1. It is my view that the only appropriate order to be made is the imposition of a Custodial Supervision Order.

1. Pursuant to s 26(2)(a)(i) of the Act, I propose to order that Benedicto Santianes be liable to a Custodial Supervision Order in an appropriate place, namely Thomas Embling Hospital. I should fix a nominal period for this order of 25 years from 13 August 2014 and I should do so pursuant to s 28 of the Act. I will commit Mr Santianes to the custody of the Victorian Institute of Forensic Mental Health.

1. I make the following orders:

1. Pursuant to ss 26(1) and (2)(a)(i) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)(“the Act”):

a)   a custodial supervision order is made in respect of Benedicto Santianes; and

b)     Mr Santianes is committed to the custody of the Victorian Institute of Forensic Mental Health.

2. Pursuant to s 28 of the Act, the nominal term of the custodial supervision order is 25 years, commencing 13 August 2014.

3. A Major Review pursuant to s 35(1) of the Act is to be conducted at least every five (5) years until the end of the nominal term of this order.