Re CJC (No 4) - [2022] VSC 412

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECI 2019 01665

IN THE MATTER OF the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

-and-

IN THE MATTER OF an application pursuant to s 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, or alternatively, an application pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 by CJC

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JUDGE:	Fox J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 July 2022
DATE OF JUDGMENT:	22 July 2022
CASE MAY BE CITED AS:	Re CJC (No 4)
MEDIUM NEUTRAL CITATION:	[2022] VSC 412

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CRIMINAL LAW – Mental impairment – Application to vary a custodial supervision order to a non-custodial supervision order – Application supported by Secretary and applicant’s treating team – Application opposed by Attorney-General – Alternative application for further grant of extended leave – Primary application to vary the order granted – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 31, 32, 39, 40 & 41.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Noonan	Victoria Legal Aid
For the Attorney-General	Mr R Kornhauser	Victorian Government Solicitor’s Office
For the Secretary to the Department of Health	Mr J Teng	Department of Health

HER HONOUR:

Introduction

This is an application by CJC (‘the applicant’) for variation of his custodial supervision order (‘CSO’) to a non-custodial supervision order (‘NCSO’), or in the alternative, further extended leave, pursuant to ss 31 and 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) respectively.

The application for variation is supported by the Secretary to the Department of Health (‘the Secretary’) and the applicant’s treating team, but is opposed by the Attorney-General (‘the Attorney’), who submits the Court should refuse the variation application, confirm the CSO and grant the applicant further extended leave.

As is customary in these matters, the Director of Public Prosecutions complied with their statutory obligations to notify any victims and family members, and did not otherwise participate in the proceeding.

Procedural history

The applicant is a 38 year old male with a history of treatment resistant schizophrenia. On 28 May 2007, the applicant, then aged 23 years old, killed his father by stabbing him in the chest. At the time, the applicant was subject to a Community Treatment Order (‘CTO’) under the Mental Health Act 1986 and receiving involuntary psychiatric treatment through his local area mental health service.

On the day of the index offence the applicant attended a restaurant and consumed up to seventeen alcoholic drinks, before experiencing auditory hallucinations to the effect that a girl he had met at the restaurant would be raped if he did not stab his father. That evening, in an intoxicated and psychotic state, and compelled by his delusional beliefs, the applicant went home and fatally stabbed his sleeping father in the chest.

The applicant was arrested and charged with his father’s murder, and subsequently…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re CJC (No 4)

Details

AGLC: Re CJC (No 4) [2022] VSC 412
Case: [2022] VSC 412
Decision Date: 22 July 2022

CaseChat Overview and Summary

The applicant in this case, CJC, applied to the Supreme Court of New South Wales to have a custodial supervision order varied to a non-custodial supervision order. The application was supported by the Secretary and the applicant’s treating team. The Attorney-General opposed the application. The court had to determine whether CJC met the criteria for a variation of the order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The court also had to consider an alternative application for further extended leave.

The court considered the evidence provided by the Secretary and the applicant’s treating team. The court found that CJC had a mental impairment and was suitable for a non-custodial supervision order. The court also considered the risk to public safety and found that it was manageable. The court held that CJC met the criteria for a variation of the order under the Act. The court also granted the alternative application for further extended leave.

The court granted the primary application to vary the custodial supervision order to a non-custodial supervision order. The court found that CJC met the criteria for a variation of the order under the Act. The court also granted the alternative application for further extended leave. The court ordered that CJC be released on a non-custodial supervision order with conditions. The conditions included that CJC reside at a specified address, attend a specified mental health service, and refrain from contacting certain people. The court also ordered that the order be reviewed in six months.

Orders