Re an application by H A

[2008] VSC 151

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 1496 of 2000

NOTE:The name and address of the forensic patient and any information which may identify him or the victims have been suppressed from publication by Order of the Court

IN THE MATTER of an Application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

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IN THE MATTER of an Application for Grant of Extended Leave by “HA”

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 MAY 2008
DATE OF JUDGMENT:	2 MAY 2008
CASE MAY BE CITED AS:	IN THE MATTER OF “HA”
MEDIUM NEUTRAL CITATION:	[2008] VSC 151

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Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Mental impairment – Application for extended leave – Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms I. Bolger	Victoria Legal Aid
For the Director of Public Prosecutions	Mr W. McNeill	Solicitor for Public Prosecutions
For the Department of Human Services	Mr G. Gilbert	DHS Legal Services
For the Attorney-General of Victoria	Ms E. Gardner	Victorian Government Solicitor

HIS HONOUR:

1. On 11 May last year, Justice Osborn granted an application by the present applicant for extended leave pursuant to s.57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. His Honour granted the application subject to conditions which were specified in orders that were made by His Honour on that day, 11 May 2007.

1. Section 56 of the Act prescribes that extended leave is leave for a forensic patient or forensic resident to be absent from the place of custody for a period not exceeding 12 months.  The section also provides that the leave is to be subject to the conditions, if any, which are specified by the court. 

1. The period of 12 months, which was the period specified by His Honour on 11 May 2007, will of course, expire in a few days’ time. The applicant, accordingly, brings a further application for extended leave pursuant to s.57(2), which provides that the application may be granted if the court is satisfied, on the evidence available, that the safety of the applicant or members of the public, will not be seriously endangered as a result of the applicant being allowed extended leave.

1. Sub-section 3 of the same section provides that an application for extended leave can be made and granted more than once.  I have had the benefit, this morning, of the evidence of Dr John Shannon Reid, a consultant psychiatrist with the Victorian Institute of Forensic Mental Health and Mr Max Gomez, who is the applicant's case manager through the Goulburn Valley Area Mental Health Service.  Each of those two witnesses has given evidence which is supportive of the application. 

1. In addition, I take into consideration the fact that the Attorney General has been represented this morning and does not oppose the application for a further period of extended leave of 12 months. 

1. In his judgment of 11 May last year, Justice Osborn set out the relevant background to the application which was then before the court.  I do not propose to repeat all that appears in the judgment which His Honour gave on that occasion.  But I should note the following essential facts.  First, the index offence occurred on  6 August 1999 and resulted in the death of the applicant's mother and serious injuries being occasioned to his sister and his brother-in-law. 

1. His brother-in-law has, in accordance with the provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, submitted a report to the court, which I have read and which I have taken into account. That document is in the form of a statutory declaration and is dated 29 April 2004. It is on the court file in a confidential folder.

1. I further note that on 2 April 2001, the applicant was found not guilty by reason of mental impairment and a custodial supervision order was made in respect of him on 15 January 2002. 

1. Since the orders made by Justice Osborn on 11 May 2007, the applicant's health has remained stable and he has given no cause to any of those who are professionally associated with him, to believe that a continuation or a renewal of the extended leave should not be granted.  Indeed, the position I think can be summarised by reference to paragraph 28 of the report of Dr Reid of 11 April 2008, where Dr Reid says that overall examination of the applicant’s history, with respect to his future risk, reveals few factors of major concern, aside from those leading him to his current custodial and supervision order. 

1. In paragraph 40, Dr Reid states that the applicant has thus far complied fully with all monitoring requirements requested by the Forensic Community Mental Health Service.  He has attended all appointments in a timely manner and has been cooperative at interview to the best of the applicant's ability.

1. Dr Reid concludes that with regard to the applicant's current situation, there are no major concerning factors relating to his insight and attitude.  He is participating well with his treatment program and has responded well clinically.  There is little evidence that, at this stage, any activity that might once have caused some concern, in relation to gambling, is a present concern. 

1. Overall, Dr Reid's assessment is that the applicant's risk of harm continues to be low, both to himself and to others. 

1. In those circumstances and having regard as I have said to Mr Gomez's report, it seems to me that the situation as outlined by Justice Osborn in his judgment of May last year continues to obtain, and indeed the applicant's situation appears to me to have improved in relation to any risk that he might pose.  In those circumstances there can be in my opinion no objection to the application being granted, and I propose accordingly to grant it subject to appropriate conditions.  Those conditions seem to me to have been sufficiently set out at the conclusion of Dr Reid's report, save for one minor amendment which I have already discussed with counsel, concerning the question of the address at which the applicant should reside.

1. For the reasons which I have endeavoured to set out I will grant the application in the terms of the orders commencing on 11 May 2008 which I am about to make.  

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