Re EV

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S ECI 2020 01939

IN THE MATTER of an application for variation of a custodial supervision order to a non-custodial supervision order pursuant to section 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) by EV

AND

IN THE MATTER of an application for further extended leave pursuant to section 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) by EV

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2023
DATE OF RULING:	18 July 2023
CASE MAY BE CITED AS:	Re EV
MEDIUM NEUTRAL CITATION:	[2023] VSC 498

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CRIMINAL LAW – Mental impairment – Application to vary a custodial supervision order to a non-custodial supervision order – Application unsuccessful – Alternative application for a grant of further extended leave – Recent history of relapse – Whether variation would seriously endanger the safety of the applicant or a member of the public – Custodial supervision order confirmed – Application for further extended leave granted – Conditions imposed in accordance with leave plan – Application for suppression order granted – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), ss 28, 31, 32, 39, 40, 57, 57A, 75.

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APPEARANCES:	Counsel	Solicitors
For the applicant	T Noonan	Victoria Legal Aid
For the Secretary to the Department of Health	S Pathan	Department of Health
For the Attorney-General of the State of Victoria	S Wallace	Victorian Government Solicitor’s Office

HIS HONOUR:

A. Introduction

By an application filed on 11 April 2023 pursuant to section 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (Vic) (“the Act”), the applicant (“EV”)[1] sought an order that his custodial supervision order be varied to a non‑custodial supervision order under section 32 of the Act. Alternatively, EV sought an order for a further grant of extended leave pursuant to section 57 of the Act.
[1]A pseudonym has been used to protect the identity of the applicant.
EV has been granted extended leave pursuant to section 57 of the Act previously on several occasions. Most recently, orders were made by Beale J on 14 July 2022 granting EV further extended leave for a period of 12 months commencing 24 July 2022. These orders allowed EV to be absent from his place of custody subject to certain conditions, namely:
(a)That [EV] be supervised by the authorised psychiatrist of the Victorian Institute of Forensic Medical Health ([“Forensicare”]) or his or her delegate.
(b)That [EV] reside at a location known and approved by the authorised psychiatrist of [Forensicare] or his or her delegate.
(c)That [EV] abide by the lawful directions of the authorised psychiatrist of [Forensicare] or his or her delegate.
(d)That [EV] comply with treatment and testing and attend appointments as directed by the authorised psychiatrist of [Forensicare] or his or her delegate.
(e)That [EV] abstain from the abuse of alcohol and from the use of illicit drugs.
(f)That [EV] not leave the State of Victoria without the written permission of the authorised psychiatrist of [Forensicare] or his or her delegate.
Orders were also made pursuant to section 75 of the Act limiting the publication of any report or any other document then before the court or any other information which might enable EV to be identified.
Similar grants of extended leave were previously made on 24 July 2020 and 19 July 2021, for a period of 12 months on each occasion. Thus, there have now been 3 periods of extended leave over approximately 36 months, the last of which is due to expire on 24 July 2023.
EV has complied with the conditions of his most recent grant of extended leave.[2] This is in contrast to some breaches that occurred in the preceding 12‑month period of extended leave.
[2]Crimes (Mental Impairment and Unfitness to be Tried) Act, s 32(3)(b).
For the reasons below, there will be no orders made to vary the existing custodial supervision order to a non‑custodial supervision order. However, orders will be made for a further grant of extended leave pursuant to section 57 of the Act.

B. Background

The factual background of this matter was conveniently summarised most recently by Beale J, as follows:[3]
On [REDACTED] 2014, [EV] entered [REDACTED]. Acting under a psychotic delusion that Mr [REDACTED], [EV] stabbed Mr [REDACTED] before fleeing the scene. Mr [REDACTED] was taken to hospital, however, he was unable to be revived and was declared deceased. At around the same time, [EV] handed himself in at the [REDACTED] police station where he was arrested.
[EV] was not formally diagnosed with schizophrenia until late 2014 after his remand in respect of the index offence.
Following a consent mental impairment hearing on 30 March 2015, Croucher J ordered that a verdict of not guilty by reason of mental impairment be recorded. [EV] was declared liable to supervision pursuant to Part 5 of [the Act].
On 21 July 2015, having received a certificate of available services, Croucher J imposed a custodial supervision order … committing [EV] to the custody of [Forensicare]. The [custodial supervision order] was made for the nominal term of 25 years, commencing on [REDACTED] 2014. Under the order, [EV] was admitted to Thomas Embling Hospital … He remained there receiving treatment for approximately five years.
[3]Re [REDACTED] [2022] VSC 432R, [4]-[7]. For a more extensive summary, see Re [REDACTED] [2020] VSC 445R, [16]-[25] (Taylor J).
In his reasons, Beale J also set out a summary of EV’s progress after being taken into custody in early 2014 following the index offence.[4]
[4]Ibid, [11]-[15] (Beale J).

C. Expert reports

From the time of his last application for further extended leave, EV has been under the treatment of a consultant forensic psychiatrist, Dr James Belshaw (“Belshaw”). Belshaw has been EV’s psychiatrist since March 2022, as part of the Community Treatment and Transition Program at Forensicare. Since the last grant of further extended leave was made, Belshaw has interviewed EV on 14 occasions, approximately once per month. He prepared a report dated 20 June 2023, together with a leave plan filed pursuant to section 57A of the Act (“the Leave Plan”), for the purposes of the present applications. Belshaw also prepared a report for the application for further extended leave heard on 14 July 2022, which was summarised in the reasons of Beale J,[5] in which he expressed support for EV’s then application.
[5]Ibid, [23]-[33].
During the most recent period of further extended leave, EV has also been regularly reviewed by his case managers at Forensicare and has attended 2 appointments with psychiatry registrars. In addition, members of the Community Treatment and Transition Program team have conducted 2 in‑depth collaborative assessments of EV’s clinical progress and risks over the past year, the most recent assessment being in February 2023.
EV’s current case manager in the Community Treatment and Transition Program, Daniel Kinston (“Kinston”), commenced working with EV on 13 October 2022. Kinston is a senior social worker employed by Forensicare. He prepared a report dated 20 June 2023 in support of EV’s present application for variation of his custodial supervision order to a non‑custodial supervision order. That report provided details of EV’s employment and other occupational activities. These activities included EV seeking to establish his own information technology business and obtaining temporary employment as an information technology subcontractor for [REDACTED] for 110 hours of paid work from 6 April 2023. However, Kinston’s report noted that other than working for family members, EV has not been able to source any clients for his fledgling business. As a result, he has resumed working at his brother’s café where he was working at the time of his last application for further extended leave.
Kinston’s report referred to EV’s social, family and personal support systems. EV reported having attended “dance parties” monthly and keeping in touch with approximately 6 people as a result. Kinston noted that EV has family support principally from his brother, for whom he works part‑time. It was noted that EV also has contact with his mother and sister, but has not had contact with his father since last Christmas because of an argument. Kinston recorded that EV finds his father a most negative influence and has no intention of resuming contact with him.
Family support has been curtailed somewhat by EV’s stated preference for contact between Forensicare and his family only to occur in the case of an emergency. Consistent with this, EV has formulated a relapse prevention plan, but did not want a copy of this to be shared with his family. Attempts to contact family members to enquire about their preferred level of involvement in EV’s treatment have not been responded to. However, Kinston’s report noted that members of EV’s family had previously made contact with Forensicare in early 2022 to express concerns about EV. Kinston’s report observed that family members “would have the contact details of the [Community Treatment and Transition Program] and Forensicare if they needed to communicate any concerns”.
Kinston’s report also noted that EV engages in a number of activities to improve his physical fitness and general health. These include using exercise equipment at his residence, as well as practising yoga and meditation at home. For a short while EV was attending [REDACTED] on Saturday mornings for yoga, exercise and meditation classes, but these sessions ceased after a few months, sometime around late April or early May 2023.
EV has resided in rented premises since July 2021, and Kinston’s report recorded that EV has successfully maintained his rental agreement and paid rent despite having periods of reduced employment and income over the last 12 months. Home visits from members of the Community Treatment and Transition Program team have found the premises to be well‑kept, and no concerns were raised. However, Kinston’s report noted that as at June 2023, EV did not wish to renew his lease and was instead residing in the property on a month‑to‑month basis.
According to Kinston’s report, EV lost his driver’s licence in October 2022. This was the result of an accrual of demerit points for running red lights and speeding. Most of these infringements occurred in February 2022, which coincided with a psychotic relapse experienced by EV.[6]
[6]This is discussed further below: see par 21.
At the time Kinston’s report was prepared, EV did not have a regular general practitioner and had not registered with a local clinic. He was referred to the [REDACTED] Mental Health Service for his mental health treatment in the event that his current application for variation of his custodial supervision order to a non‑custodial supervision order was successful. Prior to the hearing of this application, a case conference between this service and EV’s treating team at Forensicare was held, and EV met with members of the [REDACTED] Mental Health Service on a separate occasion.
Kinston reported that EV had attended all of his Community Treatment and Transition Program appointments as required and engaged well with his treating team. Kinston’s report recorded that EV has demonstrated transparency in his dealings with his treating team, initiating discussions regarding his treatment and following directions in relation to medication.
Kinston’s report concluded by noting that the Community Treatment and Transition Program team were supportive of EV’s application for variation of his custodial supervision order to a non‑custodial supervision order.
Turning now to Belshaw’s report, an extensive account of EV’s mental health, medical and other relevant histories was set out, followed by a summary of EV’s progress from July 2020 to July 2022. It is unnecessary to recount this in detail.
Nevertheless, as referred to above,[7] it should be noted that Belshaw’s report recorded a decline in EV’s mental state between late 2021 and May 2022, largely resulting from a reduction and cessation of medication in August 2021, which in turn brought on a “psychotic relapse” of EV’s schizophrenia. In addition to driving infringements,[8] and concerns from EV’s family members,[9] EV was noted to have displayed uncharacteristically oppositional behaviour during this period, and reported suicidal ideation and a significant increase in his consumption of alcohol.
[7]See par 16 above.
[8]Ibid.
[9]See par 13 above.
Further, Belshaw’s report noted that EV failed to demonstrate any insight into this relapse, and was only willing to accept new prescription medication for the purposes of assisting with disrupted sleep, rather than managing his relapse. During reviews conducted by Belshaw between March 2022 and May 2022, EV reported that since moving to independent accommodation in July 2021, “active communication” of his auditory hallucinations had started again, resulting in EV experiencing perplexity and deterioration in his functioning. However, EV maintained that these symptoms were not the result of a psychotic relapse, but instead “a form of spiritual awakening”.
During July and August 2022, Belshaw considered that EV continued to demonstrate some residual symptoms of his mental disorder, exemplified by a number of matters. These included his opposition to Forensicare contacting his family; his repeated reiteration of a grievance relating to his previous case manager contacting his family in early 2022; his refusal to accept his treating team’s conclusion that he had experienced a relapse of psychosis due largely to the cessation of medication; and his continued insistence that medication had only been prescribed for the benefit of aiding with sleep, as opposed to its anti‑psychotic properties.
Belshaw reported that EV’s mental health had continued to stabilise from October 2022 onwards. However, the emergence of several interpersonal issues led to some of his treating team hypothesising that EV may have relapsed again between December 2022 and January 2023. That said, further reviews indicated that these issues did not appear to be due to relapse, and could instead be attributed to EV’s personality traits, communication style and inherent cognitive biases.
However, the matter does not rest there. As stated above,[10] EV had an argument with his father on Christmas Day of 2022, which resulted in the cessation of their relationship. EV told Belshaw of this argument in January 2023, denying that it resulted in any significant aggression and stating that it instead caused EV to reflect on his father’s influence in his life and make the decision to cut ties.
[10]See par 12 above.
In January 2023, EV was served a meal by a friend who worked in a restaurant. In later recounting the event to Belshaw, EV reported that he had been served “freezer burner meat and tumours and tendons” and questioned whether his friend respected him and whether he had been served this food on purpose. EV told Belshaw that he had demanded a refund via text message and left a negative online review of the restaurant. He also terminated the friendship.

Next, in February 2023, EV reported to Belshaw that he had had a disagreement with his brother. This disagreement was said to be in relation to both the operation of his brother’s café and also EV’s decision to cease contact with his father.
Belshaw noted that these 3 events were putatively thought to be emblematic of EV’s relapse profile, namely interpersonal conflict and paranoid interpretations of benign events. However, he noted that in contrast to late 2021 and early 2022, there were no associated symptoms elicited during this time, such as oppositionality, increased substance use or a decline in functioning.
It was noted that EV had not demonstrated any motivation to engage in psychotherapy in a community setting to date. Also, aside from his “cordial” relationship with his mother and sister, and his now repaired relationship with his brother, Belshaw’s report noted that EV had no close peer support network.
With regard to the lack of family involvement with EV’s treatment at Forensicare, Belshaw stated that family involvement was the “gold standard” and that no ongoing proactive communication between EV’s treating team and his family meant there was no collateral available from them regarding EV’s stability and recovery.
On 8 June 2023, Belshaw asked a series of questions of EV about his current view of past events, including the index offending. It is unnecessary to recount the individual questions and responses. Significantly, EV gave answers which indicated he still held a belief that the victim had poisoned him with contaminated substances hidden within illicit drugs EV had purchased from him, albeit now recognising that such substances might have not been directed just to him.
Also, when asked how he would respond in the future if he believed he was being poisoned or attacked in some way, EV stated (by reference to the alleged poor food served by his friend at the restaurant)[11] that he was now able to see things from the points of view of other people, identify that such behaviours were likely due to other factors and ultimately conclude that these events were not targeted at him or intended, but were more benign. EV stated that he would communicate any concerns, beliefs or thoughts of this nature in the future to his treating team.
[11]See par 26 above.
In providing a risk assessment, Belshaw referred to several historical risk factors which were considered to be static and unmodifiable. These included a history of problems with violence, antisocial behaviour, relationships, employment, substance abuse, symptoms of a major mental disorder and treatment or supervision response. These factors resulted in EV’s baseline risk of violence being assessed as high.
In contrast, Belshaw identified no recent issues relating to the dynamic clinical risk factors for violence insofar as treatment or supervision response, symptoms of a major mental disorder and violent ideation or intent were concerned. The only recent issues identified in this regard related to EV’s insight and cognitive instability.
Further, in relation to risk management factors, Belshaw expressed the view that EV should have no future problems with professional services and plans, no accommodation instability and no pending problems with treatment or supervision. Belshaw noted that although EV’s personal supports did not appear to offer significant psychological support, EV had demonstrated a more adaptive way of coping with stress in the preceding 12 months. In conclusion, it was stated that EV’s current risk of violence was low.
Belshaw suggested that a positive outcome from EV’s relapse in 2022 was his newfound candour in discussing his innermost experiences and idiosyncratic views of the universe with his treating team. It appeared that this had fostered an enhanced ability to engage EV in discussions about his mental health symptoms and improve his level of engagement with mental health services. This improvement, in Belshaw’s view, was highlighted during the period from December 2022 to March 2023 when EV disclosed the interpersonal issues he was experiencing, thereby enabling his treating team to more effectively monitor EV’s mental state and support him.
Belshaw concluded his report by expressing support for EV’s application for variation of his custodial supervision order to a non‑custodial supervision order. However, in doing so he acknowledged that EV did not appear to have a well‑integrated understanding of mental health issues and his own illness. Rather, in Belshaw’s assessment, it appeared EV’s motivations for engaging with his treating team and complying with his treatment and management plans were contrition and a sense of contentment and stability which EV wished to sustain, as opposed to full insight into his mental disorder.

A victim and family member report made by [REDACTED] was also tendered. It was read by me and was the subject of submissions. I have taken these into account.

D. Legal principles

The Act provides that on any application for variation of a custodial supervision order under section 31, the court must either confirm the order, vary the place of custody or, subject to section 32, vary the order to a non‑custodial supervision order.[12] The court must not vary a custodial supervision order to a non‑custodial supervision order during the nominal term[13] unless satisfied on the evidence available that the safety of the person the subject of 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.[14] On such an application, the court must also be satisfied that the applicant has completed a period of at least 12 months of extended leave, and must take into account whether the applicant has complied with any conditions of their extended leave.[15]
[12]Crimes (Mental Impairment and Unfitness to be Tried) Act, s 32(1).
[13]Ibid, s 28(1).
[14]Ibid, s 32(2).
[15]Ibid, s 32(3).
If the court refuses an application for variation of a custodial supervision order under section 31, then a later application cannot be made by the applicant for 3 years or such lesser period as the court directs.[16] Further, the court may direct that the matter be brought back for further review at the end of a period specified by the court.[17]
[16]Ibid, s 31(2).
[17]Ibid, s 32(5).
For the granting of extended leave, section 57 of the Act provides that an application may be made to the court that made the custodial supervision order to which an applicant is subject[18] and the court may grant the application if satisfied that the evidence available demonstrates that the safety of the applicant or members of the public will not be seriously endangered as a result of the applicant being granted extended leave.[19] A plan for extended leave must be prepared by an authorised psychiatrist and filed with the court.[20] An application for extended leave may be made and granted more than once.[21]
[18]Ibid, s 57(1).
[19]Ibid, s 57(2).
[20]Ibid, s 57A.
[21]Ibid, s 57(3).
In deciding whether, amongst other things, to make, vary or revoke a custodial supervision order or to grant a person extended leave, the court must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.[22] Further, in so deciding, the court must have regard to the matters set out in section 40(1) of the Act, namely:
(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.
[22]Ibid, s 39(1).
Furthermore, the court cannot order a person be released unconditionally or otherwise release a person from custody or significantly reduce the degree of supervision to which a person is subject unless the matters set out in section 40(2) are met.[23] These include the court obtaining and considering: the report of at least 1 registered medical practitioner or registered psychologist who has personally examined the applicant on the applicant’s mental condition and the possible effect of the proposed order on the applicant’s behaviour; the report submitted under section 41(1) or (3); any report of the family members or victims; and (in the case of an application for extended leave) the leave plan filed under section 57A.
[23]There was no issue that insofar as those matters did not involve consideration of the court, the matters had been satisfied.
Similarly, the court is precluded from granting further extended leave to a person already on extended leave unless it has obtained and considered the report of at least 1 registered medical practitioner or registered psychologist who has personally examined the applicant on the applicant’s mental condition and the possible effect of the proposed further grant on the applicant’s behaviour, together with the leave plan filed under section 57A.[24]
[24]Crimes (Mental Impairment and Unfitness to be Tried) Act, s 40(4).
In dealing with an application to vary a custodial supervision order to a non‑custodial supervision order, the task of the court in determining whether the safety of the applicant or members of the public will be seriously endangered as a result of the release of the applicant has been described as follows:[25]
When a court is dealing with an application to vary a custodial supervision order, however, the effect of s 32(2) is that, once all of the factors in s 40(1) have been weighed in the balance,[26] a court is prevented from ordering a variation unless satisfied on the available evidence 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.
The provisions of s 32 — in particular, s 32(2) — which are concerned solely with the variation of custodial supervision orders, may be contrasted with those of s 33, which are concerned with the variation or revocation of non‑custodial supervision orders. Importantly, s 33 contains no equivalent of s 32(2). The significance of that fact was canvassed in NOM,[27] a case concerned with a failure to revoke a non‑custodial supervision order under s 33. Having discussed s 40(1)(c) — and the meaning of the phrase “likely to endanger themselves or others” — the Court observed:[28]
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. 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. 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. 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.
As we have said, in a case such as this concerned with an application for variation of a custodial supervision order, the court has two alternatives: first, confirm the order; or, secondly, vary it to a non‑custodial supervision order. With respect to the second alternative — whether to vary the order — there is one critical issue that must be determined: is the court 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?
In determining that critical issue, the court must to take into account the cumulative considerations set out in s 40(1), including 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 the need to protect people from such danger. If, after having regard to the evidence bearing on those cumulative requirements, the court cannot be satisfied 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, variation of the order must be refused.
(Original emphasis.)
[25]Hammond v Secretary to the Department of Health and Human Services [2018] VSCA 356, [41]-[44] (Priest and T Forrest JJA).
[26]Macaulay AJA contra: [77]-[78].
[27]This is a reference to NOM v Director of Public Prosecutions (2012) 38 VR 618.
[28]Ibid, 637-638 [60] (Redlich and Harper JJA and Curtain AJA) (citations omitted).

E. Submissions

Three sets of submissions were filed before the hearing of EV’s application.[29] The Secretary to the Department of Health (“the Secretary”) made submissions in support of the variation of EV’s custodial supervision order to a non‑custodial supervision order. The Attorney‑General for the state of Victoria (“the Attorney‑General”) then filed submissions opposing a variation order being made, and instead submitting that EV’s alternative application for a further period of extended leave should be granted. These were followed by submissions made on behalf of EV, broadly adopting the submissions of the Secretary. The applicant also sought orders pursuant to section 31(2) of the Act permitting him to make a further application for variation of his custodial supervision order to a non‑custodial supervision order in 12 months, in the event that his application was unsuccessful.
[29]In addition, the Director of Public Prosecutions filed written submissions and an affidavit to demonstrate that the requirements of ss 38C and 38E of the Act had been complied with.
In opposing EV’s application for variation to a non‑custodial supervision order, the Attorney‑General acknowledged that EV’s mental state had stabilised in the past 6 to 12 months and that he had been assessed by Belshaw as posing a low risk of future violence. However, it was submitted that having regard to the considerations referred to in sections 32, 39 and 40 of the Act, the evidence identified a number of risk factors in EV’s current circumstances that supported the confirmation of EV’s custodial supervision order at the present time.
The Attorney‑General referred to the fact that EV suffered a significant relapse of schizophrenia from July 2021, which included deterioration in his functioning and suicidal ideation. While acknowledging that EV had since been compliant with his regimen of anti‑psychotic medication, reference was made to EV’s decision not to renew his lease for a further 12 months and to reside at his current address on a month‑to‑month basis.[30]
[30]See par 15 above.
It was submitted on behalf of the Attorney‑General that this gave rise to the potential that EV would be required to change accommodation at short notice and would again encounter accommodation instability, being an established stressor and 1 of the factors that gave rise to the issues EV experienced in July 2021. It was submitted that the confirmation of EV’s custodial supervision order was appropriate to ensure EV was provided the highest level of support and supervision whilst he navigated any potential accommodation changes.
The Attorney‑General also referred to EV’s lack of insight into his psychotic relapse. In this regard, reliance was placed on EV only accepting medication on the basis that it would assist with disrupted sleep, rather than as a result of any insight into his relapse.[31] In particular, the Attorney‑General referred to comments made in Belshaw’s report to the effect that during recovery from his psychotic relapse in late 2022, EV had reframed his initial recovery journey as a façade and stated that he had only presented a guise of insight in order to progress through the forensic system. The Attorney‑General submitted that such comments demonstrated EV’s limited level of insight into his mental illness and the purpose of his treatment.
[31]See pars 20-23 above.
Further, the 3 recent incidents of interpersonal conflict identified in Belshaw’s report were highlighted,[32] together with the fact that as recently as June 2023, EV had discussed the index offending in terms which showed only partial insight into the offending, his perception of the victim and the role his mental illness played in that offending.[33]
[32]See pars 25-28 above.
[33]See par 31 above.
Furthermore, the Attorney‑General submitted that the evidence disclosed that EV had a limited support network, and that the index offending had occurred in the context of EV having an absence of social linkages. EV’s somewhat chequered relationships with various family members were referred to, together with his unwillingness to involve his family in his ongoing treatment and prevention plans. In these circumstances, it was submitted it was unclear whether or not EV would have a sufficient level of support as he continued his mental health treatment. The attitude of EV to his family’s involvement and the family’s withdrawal from EV’s care team were also referred to as matters that gave rise to significant concerns.
Moreover, the Attorney‑General submitted the evidence demonstrated a longstanding behaviour of EV of concealing symptoms from those involved in his care, including with respect to his most recent relapse. It was submitted that, in the absence of a strong support system, there was a potential for any deterioration in EV’s mental state to go undetected and untreated.
Finally, in supporting EV’s alternative application for further extended leave, the Attorney‑General submitted that a further 6 month period of extended leave would allow EV to become more familiar with his carers in the local mental health service before any transition was made in circumstances where there had only been 1 such opportunity to date.[34]
[34]See par 17 above.
In contrast to the Attorney‑General’s position, both the Secretary and EV essentially adopted the position set out in Belshaw’s assessment and his opinion that variation of EV’s custodial supervision order to a non‑custodial supervision order was appropriate. In addition, reliance was placed upon EV’s accommodation being stable, with evidence provided during the hearing of a 12‑month lease having very recently been entered into with EV’s existing landlord. Further, the Secretary’s written submissions methodically explained why it could be said that each of the formal requirements of the Act had been met.

F. Consideration

Essentially, the application for variation of EV’s custodial supervision order to a non‑custodial supervision order is to be determined by considering whether the court can be satisfied on the evidence available that the safety of EV or members of the public would not be seriously endangered as a result of the release of EV on a non‑custodial supervision order.[35]
[35]Crimes (Mental Impairment and Unfitness to be Tried) Act, s 32(2).
On the evidence before me, I cannot be so satisfied; and accordingly, I am required to refuse the application. Without being exhaustive, the evidence before me demonstrates that there has not been a period of stability or consistency in EV’s behaviour and treatment leading up to this application of any length of duration which would satisfy me that a variation as sought would not result in the safety of EV or members of the public being seriously endangered if he were to be released at this time.
While I accept Belshaw’s opinions, in and of themselves they are only 1 matter to take into account, albeit a very significant matter. During the hearing Belshaw expressed the view that if a further 6 months of extended leave were granted, then it was unlikely that there would be any change to his assessment of EV’s level of risk as low, as it was likely that the underlying factors would remain unchanged.
Be that as it may, the last 6 months or so have seen: (1) a complete breakdown in EV’s relationship with his father; (2) a significant falling out between EV and his brother (who was his key family support), before amends were made; (3) a “cordial” relationship between EV and his mother and sister; (4) the other incidents referred to in Belshaw’s report occurring in January and February 2023;[36] and (5) the recent confirmation that EV still lacks proper insight into his offending, his perception of the victim, and the role of his mental illness in his offending.
[36]See pars 25-28 above.
Further, these matters must be considered in circumstances where EV’s family members do not wish to be part of his care team (and EV has expressed a similar desire), and he has very limited social or other support outside professional assistance.
Furthermore, the evidence indicated that if a non‑custodial supervision order were made and he were to remain stable, EV’s level of treatment and supervision at the local mental health service would likely be reduced within 2 to 3 months due to resourcing issues. If this were to occur, EV would lose the level of support that he has been receiving for the last 3 years at a time when he has experienced only a very limited period of stability.
Thus, the evidence does not demonstrate a period of stability or consistency which is proximate to the timing of these applications or of such a duration that I could be satisfied that a variation of EV’s custodial supervision order to a non‑custodial supervision order would not result in the safety of EV or members of the public being seriously endangered upon his release. Accordingly, I am bound pursuant to section 32(2) to refuse the application for variation made under section 31, and instead confirm EV’s custodial supervision order.
As for the alternate application for a further grant of extended leave under section 57, there was no dispute between those who appeared before me that this ought to be granted subject to the conditions proposed in the Leave Plan. Having taken into account the matters required under the Act, I have reached the same conclusion. Belshaw’s evidence was that a further 6 month period would be appropriate for a grant of extended leave; there were no submissions to the contrary. In light of the forthcoming summer holiday period, I will order a 7 month period of further extended leave.
Finally, it is appropriate that the regime of suppression orders made pursuant to section 75(1) of the Act continues, at least for the period of this further 7 months of extended leave. As was touched upon by Belshaw in his previous report, the absence of a suppression order and the concomitant risk of EV’s medico‑legal information becoming widely known could be a stressor which gives rise to known risks of relapse and future violence. The absence of such an order might also adversely affect EV’s recovery goals, including his stated desire to continue to find paid employment and live independently in the community with appropriate social links.[37] Belshaw gave evidence in line with his previous position, and confirmed that the factors he identified then remain relevant and operative.
[37]Re [REDACTED] [2022] VSC 432R, [34] (Beale J).

G. Conclusion

Accordingly, for the reasons stated, orders will be made confirming EV’s custodial supervision order and granting EV a further period of extended leave of 7 months subject to the conditions proposed in the Leave Plan.

In addition, EV will be permitted to make a further application for variation of his custodial supervision order to a non‑custodial supervision order to be made returnable on 13 February 2024.

[2023] VSC 498

18 July 2023