Re CJA

[2019] VSC 149

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 for Extended Leave by CJA

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 March 2019
DATE OF JUDGMENT:	12 March 2019
CASE MAY BE CITED AS:	Re CJA
MEDIUM NEUTRAL CITATION:	[2019] VSC 149

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CRIMINAL LAW – Mental impairment – Custodial supervision order – 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 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 K Grinberg	Victorian Government Solicitor’s Office
For the Secretary to the Department of Health and Human Services	Ms S J Varney	Department of Health and Human Services

HIS HONOUR:

1. The applicant is the subject of a custodial supervision order under the provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’), having been found not guilty of murder by reason of insanity in 1976.

1. On 14 March 2017, pursuant to s 35(4) of the Act, the applicant was granted extended leave for a period of 12 months.[1]  On 14 March 2018, the applicant was granted a further period of 12 months extended leave.[2]

   [1]‘Extended leave’ is defined in s 56 of the Act to mean ‘leave for a forensic patient or forensic resident to be absent from [his or her] place of custody … for a period not exceeding 12 months … subject to the conditions (if any) … specified by the Court’.

   [2]Re CJA [2018] VSC 112 (‘2018 Reasons’).

1. The applicant now seeks another period of 12 months extended leave pursuant to s 57 of the Act. That application (like the ones made in 2017 and 2018) falls to be considered by reference to the principles and matters set out in ss 39, 40 and 57(2) of the Act.[3] 

   [3]As to which, see 2018 Reasons [6].

1. 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 requires the DPP to give notice of certain applications under the Act to ‘each family member of the person’ and ‘each victim of the offence with which the person was charged’. Notice is, however, not required to be given by the DPP of an application for extended leave unless the granting of the application ‘would significantly reduce the degree of supervision to which the person is subject’.[4]

   [4]Section 38C(2)(d).

1. The DPP has not given notice of the present application to any of the persons identified in s 38C. She has not done so because the terms upon which the applicant seeks a further period of extended leave are the same as the terms upon which extended leave was granted in 2017. Specifically, if the application for a further period of extended leave is granted, the new grant would not significantly reduce the degree of supervision to which the applicant is subject. Thus the DPP has taken no part in the present application.

1. Section 40(4) of the Act prohibits a court from making a further grant of extended leave unless the Court has obtained and considered:

(a)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 further grant on the person’s behaviour;  and

(b)the leave plan filed under s 57A.

1. In the present case, s 40(4) has been complied with by the provision of a detailed medical report from Dr James Belshaw, a consultant psychiatrist working within Forensicare’s Community Treatment and Transition Team. Dr Belshaw’s report provides an update on the applicant’s psychiatric history and progress over the last 12 months. It is sufficient to say for present purposes that Dr Belshaw’s report, and a report written by the applicant’s community treatment and transition program mental health case manager, Nicole Barnes, support and well justify a further grant of extended leave to the applicant on the same conditions upon which the two previous grants of extended leave were made.[5]  Indeed, no party to this application sought to submit otherwise.

   [5]As to those conditions, see 2018 Reasons [20].

1. Over the last 12 months, the applicant has continued to make good progress.  One might forecast that, absent any presently unforeseen events, the applicant might remain the subject of his present arrangements indefinitely.  That is, the applicant is obviously well suited to his present accommodation, treatment and supervision regime.

1. The only matter of any concern (and not one that impacts negatively on the current application) relates to an increase in the applicant’s anxiety levels and risk factors brought about late last year when it was contemplated that an application might be made to vary the applicant’s custodial supervision order to a non-custodial supervision order.[6]  The prospect of referrals being made that might lead to a transition to a non-custodial supervision order caused the applicant significant anxiety.  As Dr Belshaw put it:

These anxieties culminated in a presentation on 27 October 2018 whereby [the applicant] appeared distressed and demonstrated an increase in ‘rocking’ in his chair and rubbing his thigh (these are [the applicant’s] characteristic motoric markers of anxiety).

[6]As to the principles to be applied in such an application, see Hammond (a pseudonym) v Secretary, Department of Health and Human Services [2018] VSCA 356.

1. Because of the anxiety levels displayed by the applicant, the plan to commence the process of transitioning the applicant from a custodial supervision order to a non-custodial supervision order were, at the applicant’s request, postponed.  The applicant then responded, in the words of Dr Belshaw, ‘positively and rapidly’.

1. The material filed in support of the present application appears to suggest that consideration may again be given in the short to medium term to attempting to transition the applicant from his custodial supervision order to a non-custodial supervision order.  As the material currently stands, and without prejudging any application that may or may not be made, the applicant’s history discloses the existence of risks to the applicant (and perhaps more widely) that may increase should such a course be taken.  This is plainly undesirable.  For present purposes, however, it is sufficient for me to say that one wonders why a course that the applicant is not comfortable with (and which might increase his anxiety levels with an increase in risk) would currently be in contemplation.

1. All of that said, for the reasons given above, there will be an order, under s 57 of the Act, commencing on 15 March 2019, granting the applicant extended leave and allowing him to be absent from his place of custody, up to and including 14 March 2020, subject to the following conditions:

(a)   the applicant be supervised by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health (VIFMH) or his or her delegate or nominee;

(b)   the applicant reside at a location known to, and approved by, the authorised psychiatrist of the VIFMH or his or her delegate or nominee;

(c)    the applicant abide by the lawful directions of the authorised psychiatrist of the VIFMH or his or her delegate or nominee;

(d)  the applicant comply with treatment and testing, and attend appointments, as directed by the authorised psychiatrist of the VIFMH or his or her delegate or nominee;

(e)   the applicant abstain from the abuse of alcohol and from the use of illicit drugs;  and

(f)     the applicant not leave the state of Victoria without the written permission of the authorised psychiatrist of the VIFMH or his or her delegate or nominee.  This includes overseas travel, which must be approved by the authorised psychiatrist of the VIFMH or his or her delegate or nominee.

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