Re CJA
[2020] VSC 90
•4 March 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2011 04219
| IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and IN THE MATTER of an Application by CJA |
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JUDGE: | BEACH JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 March 2020 |
DATE OF JUDGMENT: | 4 March 2020 |
CASE MAY BE CITED AS: | Re CJA |
MEDIUM NEUTRAL CITATION: | [2020] VSC 90 |
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CRIMINAL LAW – Mental impairment – Custodial supervision order – Application for variation of custodial supervision order to non-custodial supervision order – Alternative application for extended leave – Principles to be applied – Requirement for court to apply principle that restriction on freedom and personal autonomy should be kept to the minimum consistent with the safety of the community – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, ss 31, 32, 39, 40 and 57.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J McLoughlin | Victoria Legal Aid |
| For the Attorney-General of Victoria | Ms J Buxton | Victorian Government Solicitor’s Office |
| For the Secretary to the Department of Health and Human Services | Mr D Bruno | Department of Health and Human Services |
| For the Director of Public Prosecutions | Ms L Wilkinson | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
In 1973, some 47 years ago, the applicant was arrested and charged with the murder of his father and his stepmother.[1] Shortly after his arrest, he was certified pursuant to the provisions of the Mental Health Act 1959. The applicant’s murder trial came on for hearing in 1976. He was found not guilty by reason of insanity. After the jury delivered its verdict, the trial judge, Lush J, ordered the applicant to be kept in strict custody until the Governor’s pleasure was known.[2]
[1]This proceeding is subject to a non-publication order under s 75 of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 suppressing any matter that might directly or indirectly enable identification of the applicant or his place of residence, victims of the index offences or their former place of residence, or identification of any member of the family of the applicant or the victims.
[2]See s 420 of the Crimes Act 1958.
On 18 April 1998, upon the commencement of sch 3 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’), the applicant was deemed to be the subject of a custodial supervision order under the Act.[3] The nominal term of the applicant’s custodial supervision order was 25 years.[4] The nominal term expired in 2001, some 19 years ago.[5]
[3]Schedule 3 was given effect by s 89 of the Act.
[4]See cl 2(2) of sch 3 and s 28 of the Act.
[5]See cl 2(4) of sch 3 of the Act.
The Act permits a person the subject of a custodial supervision order to apply for extended leave (being leave to be absent from that person’s place of custody for a period, not exceeding 12 months, and subject to conditions).[6] The applicant is currently on extended leave for a period that expires on 14 March 2020. Pursuant to ss 31 and 32 of the Act, the applicant now applies to vary his custodial supervision order to a non-custodial supervision order. In the alternative, he makes application for a further grant of extended leave pursuant to s 57 of the Act.
[6]See ss 35(4), 56 and 57 of the Act.
In compliance with the terms of the Act, major reviews of the applicant’s custodial supervision order were conducted by this Court in 2001, 2006, 2011 and 2017.[7] On 14 March 2017, the applicant was first granted extended leave for 12 months. Further periods of extended leave, of 12 months, were granted on 14 March 2018 and 12 March 2019. The circumstances giving rise to the applicant’s trial, his time in custody and his subsequent treatment and progress up to 12 March 2019 are set out in the judgments of the Court delivered at the times of the major reviews and applications for extended leave to which I have just referred.[8] Save to the extent they are referred to below, it is not necessary to rehearse those matters further in these reasons.
[7]The review in 2017 commenced within the relevant 5 year period in 2016, but was subsequently adjourned and not completed until 2017.
[8]See Re [CJA] [2001] VSC 147R (Kellam J); Re [CJA] [2006] VSC 371R (Kellam J); Re [CJA] [2011] VSC 462R (Beach J); Re [CJA] (Unreported, Supreme Court of Victoria, Beach JA, 14 March 2017); Re CJA [2018] VSC 112 (Beach JA); Re CJA [2019] VSC 149 (Beach JA).
The applicant’s application is supported by a detailed medical report from Dr James Belshaw.[9] Dr Belshaw is the applicant’s treating psychiatrist, and a person ‘having the supervision of [the applicant]’ within the meaning of the Act.[10] In summary, Dr Belshaw supports the application for a variation to a non-custodial supervision order, with a review in 12 months’ time. In the alternative, Dr Belshaw supports the applicant being granted a further period of 12 months extended leave.
[9]Prepared 13 February 2020.
[10]Cf s 40(2)(ab) of the Act.
As was required by s 38B of the Act, notice of the applicant’s application was given to the Director of Public Prosecutions, the Attorney-General and the Secretary to the Department of Health and Human Services. Section 38C of the Act then required the Director to give notice of the application to ‘each family member of the person’ and ‘each victim of the offence with which the person was charged’. At the commencement of the hearing of the application, the Director filed an affidavit, sworn by the solicitor in the Office of Public Prosecutions having the care of this proceeding on her behalf, demonstrating compliance with s 38C of the Act.
Family members of the applicant and the relevant victims of the offences with which he was charged are entitled to make a report to the Court upon receipt of notice of the application pursuant to s 38C. In the present case no report has been received by the Court from any such person.
Having been provided with the relevant material in relation to the applicant, the Attorney-General and the Secretary to the Department of Health and Human Services supported the applicant’s application for a variation of his custodial supervision order to a non-custodial supervision order, on the terms recommended by Dr Belshaw.
Relevant legislative provisions
The application to vary the custodial supervision order to a non-custodial supervision order is governed by s 32 of the Act. Section 32 provides:
(1)On an application under section 31 for variation of a custodial supervision order or on a review of a custodial supervision order directed under section 27(2) or on a further review of a custodial supervision order directed under subsection (5) or section 33(2), the court must, by order—
(a) confirm the order; or
(b) vary the place of custody; or
(c)subject to this section, vary the order to a non-custodial supervision order.
(2)The court must not vary a custodial supervision order to a non-custodial supervision order during the nominal term unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order.
(3) In the case of a forensic patient or forensic resident—
(a)the court must not vary a custodial supervision order to a non-custodial supervision order (whether during or after the nominal term) unless the forensic patient or forensic resident has completed a period of at least 12 months extended leave granted by the court under section 57; and
(b)in deciding an application to vary a custodial supervision order to a non-custodial supervision order, the court must take into account whether or not the forensic patient or forensic resident has complied with any conditions of their extended leave.
(4)If the court varies a custodial supervision order to a non-custodial supervision order before the end of the nominal term, that nominal term continues to run.
(5)The court may direct that the matter be brought back to the court for further review at the end of the period specified by the court.
(6) A direction may be given under subsection (5) more than once.
Three points may immediately be noted: first, s 32(2) has no application in this case, because the nominal term of the applicant’s custodial supervision order has already expired; secondly, the applicant has already satisfied the requirement in s 32(3)(a), having already completed a period of at least 12 months extended leave granted by the Court under s 57; and thirdly, there is no suggestion that the applicant has not complied with any of the conditions upon which his extended leave has previously been granted.[11]
[11]See s 32(3)(b) of the Act.
Section 57 of the Act permits a court to grant an application for extended leave ‘if satisfied on the evidence available that the safety of the forensic patient [in this case, the applicant] … or members of the public will not be seriously endangered as a result of the forensic patient … being allowed extended leave’.
The principles to be applied in deciding whether to vary a custodial supervision order or to grant a period of extended leave are contained in s 39(1) of the Act. That section requires the Court to apply the principle ‘that restrictions on a person’s freedom and personal autonomy should be kept to a minimum consistent with the safety of the community’.
Section 40(1) requires the Court, in deciding whether or not to vary a custodial supervision order, or to grant extended leave, to have regard to:
(a)the nature of the person's mental impairment or other condition or disability; and
(b)the relationship between the impairment, condition or disability and the offending conduct; and
(c)whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and
(d) the need to protect people from such danger; and
(e)whether there are adequate resources available for the treatment and support of the person in the community; and
(f) any other matters the court thinks relevant.
Additionally, s 40(2) provides that the Court cannot order a person to be released from custody, or significantly reduce the degree of supervision to which that person is subject, unless the Court:
(a)has obtained and considered the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on—
(i) the person's mental condition; and
(ii)the possible effect of the proposed order on the person's behaviour; and
(ab)in the case of a person who is subject to a supervision order, has obtained and considered the report of a person having the supervision of the person subject to the order; and
(b)has considered the report submitted to the court under section 41(1) or (3) (as the case may be); and
(c)is satisfied that the person's family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and
(d)has considered any report of the family members or victims made under section 42; and
(da)in the case of an application for extended leave—has considered the leave plan filed under section 57A; and
(e)has obtained and considered any other reports the court considers necessary.
It was common ground in the hearing before me that Dr Belshaw’s report satisfies the requirements under ss 40(2)(a) and (ab) of the Act.[12]
[12]For completeness, I should also say that Dr Belshaw’s report satisfies the requirements of s 41(3) of the Act: see the letter from Forensicare’s senior legal counsel, Emma Burchell, dated 19 February 2020, addressed to the Prothonotary.
The evidence of Dr Belshaw
Dr Belshaw has been the applicant’s treating psychiatrist since August 2017. In the 12 months before this application was filed, he interviewed the applicant on three occasions: 15 July 2019, 20 August 2019 and 4 February 2020. During this period, he supervised two Forensicare psychiatric registrars, Dr Chitta Abhyanayaka and Dr Donal Hanratty, who conducted the majority of the applicant’s monthly psychiatric reviews.[13]
[13]Dr Abhyanayaka’s interviews occurred on 26 March 2019, 16 April 2019, 14 May 2019 and 18 June 2019, while Dr Hanratty’s interviews took place on 19 September 2019, 24 October 2019, 10 December 2019 and 10 January 2020.
In the previous 12 months, Forensicare’s Community Treatment and Transition team (‘CTT’)[14] also completed two six monthly intensive case reviews (these being in depth assessments of a patient’s progress, risks and recovery goals) in relation to the applicant.[15]
[14]The team responsible for assisting patients to apply for extended leave and their subsequent management once extended leave is granted.
[15]These were completed on 24 July 2019 and 4 February 2020.
Dr Belshaw’s evidence was based upon his reviews, the ‘supervision of registrar assessments’, the intensive case reviews, the examination of the CTT case manager clinical records, 12 identified psychiatric reports dating from February 2019 back to April 2001 and the ‘ongoing’ Forensicare medical records. In addition, while no report was received from the applicant’s allocated CTT case manager, Ms Nicol Barnes, Dr Belshaw said that, in preparing his report, he liaised with Ms Barnes to ensure that ‘all pertinent case management details’ were included within his report.[16]
[16]No case management report was provided by Ms Barnes because of a change in her roles within Forensicare in December 2019.
The applicant is now aged 68. He was 21 at the time of the index offences. As to his physical health, he suffers from a number of cardiovascular issues, including obesity, high blood pressure, high cholesterol and a mild heart rhythm abnormality. He has a number of health care professionals, including a physiotherapist and a podiatrist. He has lived in a residential care facility (‘the residential care facility’) since first being granted extended leave.
Having set out, in his report, in some detail the applicant’s background and history, Dr Belshaw confirmed his previously expressed view that the applicant’s first 12 months of extended leave at the residential care facility ‘were successful’. Similarly, according to Dr Belshaw, the applicant’s continued residence at the residential care facility in 2019 was successful — the applicant having ‘remain[ed] free from any psychotic symptoms’.
That said, Dr Belshaw again referred[17] to what he described as the applicant’s significant anxiety in early 2019 ‘around future plans’, including the idea of applying for a non-custodial supervision order which would necessitate that he engage with the local Area Mental Health Service (‘AMHS’). So much was also the subject of comment by this Court when it granted the applicant a further 12 months extended leave on 12 March 2019.[18]
[17]There being such a reference in Dr Belshaw’s report of 7 February 2019.
[18]See Re CJA [2019] VSC 149, [9]–[11].
During the past 12 months, the applicant has been provided with information about the likely change to his care should his custodial supervision order be varied to a non-custodial supervision order. First, a variation to a non-custodial supervision order would necessitate the transition of the applicant’s treating team from Forensicare’s CTT team to St Vincent’s Aged Care Service, known as the Aged Psychiatry Assessment and Treatment Team (‘APATT’). Secondly, such a variation would result in the applicant being allocated to a non-custodial supervision order team, which would provide the ongoing supervision and liaison (albeit that there would be members of that team who are familiar with the applicant ‘from previous episodes of care’).
The prospect of a change in the applicant’s treatment regime has, from time to time been ‘of concern’ to the applicant. For example, Dr Belshaw described his July 2019 review of the applicant in the following terms:
During my July 2019 review he continued to speak of his concerns that he would not receive an adequate service from the local AMHS at the St Vincent’s Clarendon Street clinic, stating that the service was also not specific for older aged patients and that he had previously spoken to other patients of adult AMHSs who told him that they had very large caseloads and would not be able to offer him regular appointments. He also said that he was concerned of difficulties he may have in disclosing details of his offence to a new treating service.
In relation to the assessment of the applicant’s risk of future violence, Dr Belshaw said, in his report, that the applicant had ‘several historical risk factors for future violence’. Dr Belshaw analysed both the historical risk factors and the dynamic risk factors associated with a variation to a non-custodial supervision order and concluded that the applicant’s ‘overall risk for future violence remained low’. Specifically, Dr Belshaw said:
A potential scenario that would involve [the applicant] engaging in violence would include a cascade of events, including a lack of care service input leading to non-compliance with medication, a relapse to alcohol abuse, or potentially a significant physical health issue which impacted upon his sensorium; resulting in a reprisal of paranoid delusions or disorganised behaviour. I believe that [the applicant’s] current level of input via CTT, [the residential care facility], and associated services (such as the GP); or [the applicant’s] predicted level of input if varied to a NCSO[19] (via APATT, the NCSO team, [the residential care facility], and the GP) is sufficient to avert such a scenario.
[19]Non-custodial supervision order.
Finally, so far as his report was concerned, Dr Belshaw said:
At the time of writing this report, [the applicant’s] schizophrenia remained in sustained remission, secondary to antipsychotic medication and the enduring benefits of psychological input that he received in TEH.[20] The delusions regarding the victims of the index offences appear to persist but are well circumscribed and unobtrusive.
[20]Thomas Embling Hospital.
In addition to his written report, Dr Belshaw gave evidence on the hearing of the application. That evidence was primarily directed to two issues: first, anxiety that the applicant had demonstrated in 2018 when it was first suggested that he apply for a variation to a non-custodial supervision order; and secondly, the significance of the persistence of the applicant’s delusions regarding the victims of the index offences.
As to anxiety that had been experienced by the applicant when it was first suggested to him that he apply for a variation to a non-custodial supervision order, Dr Belshaw’s evidence was that this was no longer a problem. Unlike the earlier foreshadowed application, the present application was brought as a result of the applicant now wishing to transition from a custodial supervision order to a non-custodial supervision order. To that end, the applicant had taken steps to meet members of his new treating team and to familiarise himself with the places he would be required to go to receive that treatment. He was, today, actively engaged in a positive way with the present application.
Dr Belshaw’s evidence was that any transition or change to an individual’s treatment carries with it a risk of increased stress and an associated deterioration in mental health. The point Dr Belshaw sought to make in oral evidence was that such risk that might be applicable in the applicant’s case in relation to a transition from a custodial supervision order to a non-custodial supervision order has now already been met by the applicant meeting those who will be treating him in the future, and by him travelling to, and seeing, the locations in which he will receive such treatment. Additionally, the risk of increased stress caused by a transition has in this case been mitigated by the fact that some of those people who will be providing treatment for the applicant in the future are known to him, having provided treatment in the past.[21]
[21]For example, Dr Ria Zergiotis and Ms Nicole Barnes.
As to the persistence of the applicant’s delusions regarding the victims of the index offences, Dr Belshaw said that these were ‘well circumscribed’. Dr Belshaw said that this was a technical term:
related to a mental state examination, which essentially means that a delusion or thought is very contained and does not show any signs of extension into the current reality or extension or change with regards to the past series of events.
Dr Belshaw gave evidence that it was highly unlikely that the applicant’s ‘well-circumscribed’ delusion in relation to the victims of the index offence might be one that he could form in respect of other people. As Dr Belshaw put it:
We do have evidence that, for approximately 30 years, there has been no change or extension to that thought. The other piece of information that I believe is relevant is that a continuing delusion, or for a delusion to continue to be upheld, is not always indicative of an ongoing psychotic process. It can be indicative merely of an individual’s underlying shame or embarrassment about an incident that occurred, such that it is easier to uphold a pre-existing delusion than accept a new reality.
Ultimately, Dr Belshaw supported the applicant’s application for a variation of his custodial supervision order to a non-custodial supervision order, with a review in 12 months because the applicant ‘may experience this as a significant change to his care’. In conformity with his recommendations, Dr Belshaw proposed the following conditions which he said should be made either in respect of a non-custodial supervision order or as conditions of a further period of 12 months’ extended leave:
1.That the Applicant be supervised by the authorised psychiatrist of the VIFMH (Victorian Institute of Forensic Mental Health) or their delegate.
2.That the Applicant resides at a location known and approved by the authorised psychiatrist of the VIFMH or their delegate or nominee.
3.That the Applicant abides by the lawful directions of the authorised psychiatrist of the VIFMH or their delegate or their nominee.
4.That the Applicant complies with treatment, testing and attends appointments as directed by the authorised psychiatrist of the VIFMH or their delegate or their nominee.
5.That the Applicant abstains from the abuse of alcohol and from the use of illicit drugs.
6.That the Applicant not leave the State of Victoria without the written permission of the authorised psychiatrist or their delegate of the VIFMH. This includes overseas travel, which must be approved by the authorised psychiatrist or their delegate at VIFMH.
Analysis
The real issue in this case is whether the applicant’s custodial supervision order should be varied to a non-custodial supervision order. On the material tendered in this application, there would be no basis for this Court not to at least grant a further period of 12 months’ extended leave (the applicant’s alternative application).
In NOM v Director of Public Prosecutions,[22] the Court of Appeal observed that s 39 of the Act requires a value judgment informed by the competing considerations stated in the provision, and s 40(1) requires an evaluation of the person’s mental condition and progress and an assessment of risk against the discrete but interrelated criteria set out therein. As the Court observed, these assessments call for value judgments in respect of which there is room for reasonable differences of opinion.[23]
[22](2012) 38 VR 618 (‘NOM’).
[23]Ibid 633 [47].
In Hammond (a pseudonym) v Secretary to the Department of Health and Human Services,[24] the Court of Appeal analysed the operation of, and interrelationship between, ss 32, 39 and 40 of the Act. Hammond was a case where the person the subject of the custodial supervision order had applied for a variation during the nominal term of the order. The fact that the application was made during the nominal term brought into play the operation of s 32(2). That is not so in the present case, however, as the present application is made after the expiration of the nominal term.
[24][2018] VSCA 356 (‘Hammond’).
As the plurality in Hammond observed,[25] the provisions of s 32, which are concerned solely with the variation of custodial supervision orders, were to be contrasted with those of s 33 which deal with the variation or revocation of non-custodial supervision orders. As their Honours also noted, s 33 contains no equivalent of s 32(2). The significance of that fact was canvassed in NOM as follows:
In contradistinction, the requirement for demonstrating ‘serious endangerment’ is evident in numerous other provisions of the Act relating to variations, confirmations or revocations of other custodial and non-custodial arrangements.[26] Some of these provisions require advertence to the ‘serious endangerment’ the applicant poses to the community in addition to the
factors set out in s 40.[27] However, unlike these provisions, s 33, the section that grants the power to revoke a non-custodial supervision order, does not specify any factors other than those in ss 39 and 40 for the purposes of exercising the discretion. Given the express reference to the likelihood of endangering the applicant or others, the consideration of ‘serious endangerment’ to the applicant or the community is not a necessary consideration for the purposes of revoking a non-custodial supervision order under s 33.[28] This factor, among others, may be relevant to a decision under s 33, by virtue of s 40(1)(f), but it is not incumbent on a Court to advert to factors not adumbrated in s 40(1)(a)–(e), including the gravity or seriousness of harm to oneself or others that may result from non-compliance. The necessary and relevant consideration for the purposes of ss 33 and 40(1)(c), is whether or not the person is, or would if released be, likely to endanger him or herself, another person, or other people generally, because of his or her mental impairment.[29]
[25]Priest and T Forrest JJA.
[26]Examples include: ss 30(1()(b) (Emergency power of apprehension), 32(2) (Variation of custodial supervision order), 35(3(a)(i) (Major reviews), 50(3)(b) (Special leaves of absence), 54(2)(b) (Granting on-ground or off-ground leave), 55(1) (Suspension of special leave), 57(2) (Granting of extended leave), 58(1), (4)(b) (Suspension or revocation of extended leave), 73F(5) (Review of persons transferred to Victoria), sch 3 cl 4(2) (Revocation of supervision order for existing detainees).
[27] See Note to s 57(2). The application of criteria in s 40 to some of these provisions was due to an amendment to the Act, (Forensic Health Legislation (Amendment) Act 2002 s 19(1); and Explanatory Memorandum to Forensic Health Legislation (Amendment) Bill, 9), notwithstanding that the issue of ‘serious endangerment’ already constituted a relevant consideration.
[28]See Pearce and Geddes Statutory Interpretation (2006, 6th ed.) [4.28]–[4.29] and the cases cited therein, including Tasmania v Commonwealth and Victoria (1904) 1 CLR 329 and Eastman v Commissioner for Superannuation (1987) 74 ALR 221.
[29]NOM (2012) 38 VR 618, 637–8 [60] (citations in original).
Section 32(2) having no application in the present case, the applicant’s application for a variation of his custodial supervision order falls to be determined in conformity with the approach identified in NOM – that is, by reference to ss 39 and 40, to which I have already referred.
Whether or not the applicant’s custodial supervision order is varied to a non-custodial supervision order, the evidence is that the applicant will continue to reside in the residential care facility and continue to have access to all of the services that facility provides. Indeed, apart from changes in the identity of those who will provide or supervise his psychiatric treatment, there will be little, and probably no, change in the applicant’s life, freedom or personal autonomy.[30]
[30]Although, for completeness, I should note Dr Belshaw’s evidence that one potential change that might be relevant to the applicant (and in particular his desire not to be readmitted to an acute unit at Thomas Embling, because of his fear about levels of pharmacology and violence he says he has witnessed there) is that ‘there are more protections and buffers in place to prevent a readmission to Thomas Embling Hospital on a non-custodial supervision order versus extended leave’.
However, to rely on that proposition in any way as a basis for refusing to vary the custodial supervision order to a non-custodial supervision order would, on the authority of NOM, be erroneous. While NOM was concerned with the possible revocation of a non-custodial supervision order, on the issue of whether there might be a significant practical effect in revoking a non-custodial supervision order, the Court said:
We accept the appellant’s submission that the finding that the nature and degree of the restrictions on the appellant’s freedom and autonomy would have no ‘significant practical effect’ does not provide a basis for refusing to revoke the supervision order. There was evidence, accepted by his Honour, that discharge from the existing order would have a therapeutic impact. Such evidence was not however required. Supervision is a restriction on liberty and autonomy and it can be justified only where it is found to be necessary. The fact that the nature or degree of legal restrictions on a particular individual’s liberty may be regarded as inane, facile or practically ineffectual, cannot justify preservation of the status quo where the restriction is not the minimum necessary to accord with the safety of the community. If it was not necessary to impose any restriction on the appellant to ensure the safety of the community, the statutory regime, informed by the principle of parsimony did not allow for the consideration of the degree of inconvenience to the appellant to justify non revocation of the order.[31]
[31]NOM (2012) 38 VR 618, 642 [71].
Similarly, preservation of the status quo (in this case the continuation of a custodial supervision order) cannot be justified, whatever the lack of any practical effect on the applicant might be, if the continuance of the order is more than the minimum necessary to accord with the safety of the community.
Dr Belshaw, who has been the applicant’s treating psychiatrist since August 2017, and who is very familiar with the applicant’s history and progress, is supportive of the application to vary the custodial supervision order to a non-custodial supervision order. His support is not, however, totally unqualified. He recommends that if the application is successful then, in addition to the conditions he proposes the variation be granted on, there should also be a review of the non-custodial supervision order in 12 months. That recommendation is based upon Dr Belshaw’s opinion that the applicant ‘may experience this as a significant change to his care’.
Dr Belshaw’s written report identified two specific matters that needed to be addressed by this Court: first, the applicant’s expressed and demonstrated levels of anxiety when the matter of a variation was first raised with him; and secondly, the persistence of his delusions regarding the victims of the index offences, as described by Dr Belshaw in his most recent report. As I have already observed, however, Dr Belshaw addressed these matters in his oral evidence. His evidence explained why neither of these matters are a bar to the granting of the variation sought by the applicant.
Specifically, I was particularly impressed by the careful and measured responses given by Dr Belshaw in which he explained why the first matter (while being a matter of historical significance) was no longer relevant, and why the second matter was not of the concern it may have appeared to be to a lay person. Moreover, it is to be noted that at the conclusion of Dr Belshaw’s evidence, counsel for both the Attorney-General and the Secretary to the Department of Health and Human Services stated again that it was their clients’ positions that the variation order sought by the applicant should be granted.
Following his acquittal by reason of ‘insanity’ (now termed ‘mental impairment’), the applicant has been in custody and/or the subject of a custodial supervision order for in excess of 43 years. As I have already observed, he is some 19 years beyond the expiration of the nominal term of his custodial supervision order. I accept the detailed and carefully expressed evidence given by Dr Belshaw in support of the applicant’s application to vary his custodial supervision order to a non-custodial supervision order.
More particularly, having regard to the matters referred to in s 40 of the Act, and applying the principle that restrictions on freedom and personal autonomy should be kept to the minimum consistent with the safety of the community, I am satisfied that it is now appropriate to vary the applicant’s order to a non-custodial supervision order on the conditions proposed by Dr Belshaw, and with a review by the Court in 12 months’ time.[32] The risk that the applicant would, if his variation application is granted, likely endanger himself or another person because of his mental condition, is now low. Specifically, that risk is not of sufficient magnitude to keep the applicant on a custodial supervision order. This is because to do so would be to restrict the applicant’s freedom and personal autonomy to a greater extent than the minimum consistent with the safety of the community, contrary to the application of the governing principle set out in s 39(1) of the Act.
[32]See s 32(5) of the Act.
Conclusion
The application for a variation of the applicant’s custodial supervision order to a non-custodial supervision order will be granted on the following conditions:
(1)The applicant be supervised by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (‘VIFMH’) or his or her delegate or nominee.
(2)The applicant reside at a location known and approved by the authorised psychiatrist of the VIFMH or his or her delegate or nominee.
(3)The applicant abide by the lawful directions of the authorised psychiatrist of the VIFMH or his or her delegate or nominee.
(4)The applicant comply with treatment, testing and attends appointments as directed by the authorised psychiatrist of the VIFMH or his or her delegate or nominee.
(5)The applicant abstain from the abuse of alcohol and from the use of illicit drugs.
(6)The applicant not leave the State of Victoria without the written permission of the authorised psychiatrist of the VIFMH or his or her delegate. This includes overseas travel, which must be approved by the authorised psychiatrist of the VIFMH or his or her delegate or nominee.
There will also be an order that the matter be brought back to the Court for further review in 12 months.
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