Re GB - [2023] VSC 343

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CI 2018 02536

IN THE MATTER of an application pursuant to s 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 for revocation of a non-custodial supervision order by GB
and
IN THE MATTER of a review of a non-custodial supervision order pursuant to s 32 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

---

JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 June 2023
DATE OF JUDGMENT:	21 June 2023
CASE MAY BE CITED AS:	Re GB
MEDIUM NEUTRAL CITATION:	[2023] VSC 343

---

CRIMINAL LAW – Mental Impairment – Review of non-custodial supervision order – Application for revocation of non-custodial supervision order – Whether revocation would seriously endanger the applicant or members of the public – Whether adequate resources available in the community – Principle of parsimony – Where Applicant living in the community and supported by treating team – Application supported by the Secretary to the Department of Health – Application supported by psychiatric evidence – Application opposed by the Attorney-General – Application to revoke non-custodial supervision order granted – Suppression order variation sought encompassing reporting prior to 2018 – NOM v Director of Public Prosecutions (2012) 38 VR 618 – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 22, 29, 31, 38C, 40, 42, 75.

---

APPEARANCES:	Counsel	Solicitors
For GB/Reviewee	Ms S Delaney, solicitor	Victoria Legal Aid
For the Secretary to the Department of Health	Ms M Wilson (8 June 2023) Ms V Velauthapillai, solicitor (21 June 2023)	Department of Health
For the Attorney-General	Ms J Poole (8 June 2023) Ms M Black, solicitor (21 June 2023)	Victorian Government Solicitor’s Office
For the Director of Public Prosecutions	Ms J Carpenter (8 June 2023)	Office of Public Prosecutions

HER HONOUR:

Introduction

On 1 February 2011, GB, who suffers from paranoid schizophrenia, killed his niece whilst suffering from paranoid delusions. He was later found not guilty of her murder by reason of mental impairment and made subject to a custodial supervision order (‘CSO’), under the terms of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). The CSO had a nominal term of 25 years, commencing from 1 February 2011.

Pursuant to the CSO, GB resided at Thomas Embling Hospital (‘TEH’) full-time while progressing through the treatment and rehabilitative regime there. GB was granted extended leave pursuant to s 57 of the Act on four separate occasions between 17 January 2019 and 15 December 2021. On 15 June 2022, Taylor J (as her Honour then was) made orders varying GB’s CSO to a non-custodial supervision order (‘NSCO’). Her Honour also directed a review of the NCSO to occur within 12 months’ time, under s 32(5) of the Act.

On 8 May 2023, GB filed an application with this Court for revocation of his NCSO, pursuant to s 31 of the Act. That application was heard…

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 GB

Details

AGLC: Re GB [2023] VSC 343
Case: [2023] VSC 343
Decision Date: 21 June 2023

CaseChat Overview and Summary

In the matter of Re GB, the applicant, who had previously been subject to a non-custodial supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), sought the revocation of that order. The application was made in the Supreme Court of Victoria. The primary issue before the court was whether the revocation of the non-custodial supervision order would seriously endanger the applicant or members of the public, given the applicant's mental impairment. Additionally, the court had to determine whether adequate resources were available in the community to support the applicant if the order were revoked.

The court considered the principle of parsimony, which favours the least restrictive option consistent with the protection of the public. The applicant was living in the community and receiving support from their treating team, which was a key factor in the court's decision. The application was supported by the Secretary to the Department of Health and was backed by psychiatric evidence. The Attorney-General opposed the application, but the court found that the applicant's continued support in the community and the availability of resources made the revocation of the order appropriate.

Ultimately, the court granted the application to revoke the non-custodial supervision order, finding that it would not seriously endanger the applicant or the public. The court also varied the suppression order to include reporting prior to 2018, to ensure that the applicant's privacy was protected while still allowing for necessary disclosure. The decision was based on the applicant's current living situation, the support they receive, and the availability of community resources, all of which contributed to the court's conclusion that the revocation of the order was in the best interest of the applicant and the public.

Orders