Re G R W

[2008] VSC 511

IN THE SUPREME COURT OF VICTORIA Not Restricted

COMMON LAW DIVISION

No. 1541 of 1995

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

GRW

Ruling No.1

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF RULING:	10 October 2008
CASE MAY BE CITED AS:	GRW (Ruling No.1)
MEDIUM NEUTRAL CITATION:	[2008] VSC 511

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Crimes Mental Impairment – non-custodial supervision order – criteria – s.31 Crimes (Mental Impairment and Unfitness to be Tried)Act 1997 – order made.

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APPEARANCES:	Counsel	Solicitors
For the Director	Ms. J Carpenter	Office of Public Prosecutions
For the Applicant	Ms K. Blair	Mental Health Legal Centre
For the Attorney- General	Ms. J. Greenham	Victorian Government Solicitor’s office
For the Department of Human Services	Mr. N. Harrington	Department of Human Services

Ruling No.1

HIS HONOUR:

1. This is an application filed 11 August 2008 pursuant to s.31 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 for the imposition upon the applicant of a non-custodial supervision order. Alternatively, by application filed the same day pursuant to s.57 of the Act, is an application for an extension of extended leave, granted by Forrest J on 9 November 2007. I will address my reasons to the application under s.31 for a non custodial supervision order. I apply the principle stated in the Act in s.39 and have considered the matters set forth in s.40(1) in particular under para.(c) thereof in considering this matter.

1. The applicant GRW is now 58 years of age, having been born on 2 July 1950.  In this Court on 4 December 1995 he was found not guilty of murder on the ground of insanity, as then was the law, in relation to the killing of his mother on 21 May 1995.  GRW has and has suffered for many years from a schizophrenic illness.

1. He has come before the Court on a number of occasions pursuant to the finding of not guilty on the ground of insanity in December 1995.  I have returned and looked at the index offence and the data underlying it and the various judgments in the court, including of myself on 12 November 2004, Harper J on 3 November 2006 and Forrest J on 9 November 2007.

1. I have been most assisted by the evidence of Dr Andrew Carroll, psychiatrist and of his latter report of 8 September 2008 and also of his earlier report of 29 January 2008.  Likewise I have been most assisted by the evidence of Ms Shelley Smith, psychiatric nurse and of her report of 23 July 2008.  Likewise the evidence of Mr Patrick O'Connor, registered psychiatric nurse and adopted by him, although he is not the author, the report of Ms Karen Ritchley, 8 September 2008.  Those materials have all been marked as exhibits.

1. In support of the application, I have heard the evidence of Dr Lester Walton, psychiatrist and have received his report of 6 October 2008 as Exhibit 1 and I have been assisted by that as well.

1. Ms Greenham for the Attorney has made submissions in opposition to the grant of a non-custodial supervision order and has submitted that the appropriate and

1. responsible course is a further extended leave order under s.51 rather than the change of legal status to a non-custodial supervision order under s.31.

1. Ms Greenham's submissions have been most thoughtful and most helpful.  However in the end, I am not persuaded by them.  She is right in submitting that the evidence establishes that the applicant has an imperfect understanding of the connection between illness and offending; although on the other hand, the evidence does establish that he does have some understanding of it.  She is also right that there was an incident of stress in June 2008 although, as she readily acknowledged, that was reported by the applicant which has its own benefit and was of a limited matter.  Ms Greenham in particular relies upon the opinions expressed, although not formally before the Court, of Dr Russ Scott of 27 September 2007 and Ms Alex Antonopolous, being his case manager, of October 2007.  I agree with Ms Greenham that the Court in the exercise of its plenary evidentiary function in matters such as this, ought not apply a narrow evidentiary focus and I receive those opinions as if they were before me in the interests of safety and of prudence, as Ms Greenham has submitted.  Prudentially I bear that material in mind, of itself and also as a measure of the evidence as to the contemporary situation.  Those two reports were as to the position a year ago.

1. Event so, it is apparent from the overwhelming preponderance of current evidence before me that in terms of expert opinion, on the critical matter of s.32(2) – being the question of whether the Court is satisfied on the evidence that the safety of the applicant and of the public will not be seriously endangered as a result of a release upon a non-custodial supervision order - the evidence leads to satisfaction being clearly established.  Dr Carroll said that in his professional view there was a very low risk.  Ms Smith said there was a low risk.  Mr Patrick O'Connor said there was a very low risk and Dr Walton said likewise.

1. Dr Walton, in his report, which is Exhibit 1, recommended the developmental status to a non-custodial supervision order.  Dr Carroll did not specifically make a recommendation, which one can understand with the treating psychiatrist, but his evidence, in my view, all points that way.

1. In my view, it is a significant step to move from an extended leave status to a non-custodial supervision order.  That has two consequences:  one is that it should be taken carefully and prudently;  the other is that if it is justified on the evidence, it is a valid step in the pathway of therapy and rehabilitation.

1. I apply the principle under s.39 of the Act and I take into account the matters under s.40(1) of the Act as relevantly applicable to this case. I am satisfied that the criteria under the Act have been met and I consider, in the circumstances, that the Order sought, being the primary Order sought namely a non-custodial supervision order under s.31, ought be made.

1. There is, however, one thing that needs to be understood, and clearly understood by GRW, and that is that he is required at all times to comply with the medical provision of dosage of medication, and he must do that. If he fails to do that, he will rapidly find that he will lose his status and progress that the Court and the doctors have sought to assist him with.

1. For those reasons I grant the Order sought in the primary application, which is the s.31 non-custodial supervision Order.

1. I have had regard to the prudent conditions that are proposed by Dr Carroll, which he has acknowledged are both comprehensive and strict and, in my view, are appropriate.  Accordingly, I will grant the application with those conditions.

ADDENDUM: Pursuant to s.32(5) Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 I direct that the matter be brought back before the Court for review in not less than two years from the date of this Order.