Re GB - [2022] VSC 323

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2018 02536

IN THE MATTER of applications pursuant to sections 31 and 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

- and –

IN THE MATTER of an application for variation of a custodial supervision order to a non-custodial supervision order or an application for further extended leave by GB

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JUDGE:	Taylor J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2022
DATE OF JUDGMENT:	15 June 2022
CASE MAY BE CITED AS:	Re GB
MEDIUM NEUTRAL CITATION:	[2022] VSC 323

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CRIMINAL LAW – Mental Impairment – Application for variation of custodial supervision order to non-custodial supervision order – Whether safety of the applicant or members of the public will be seriously endangered as a result of variation – Whether variation would be consistent with principle that applicant’s freedom and personal autonomy should be kept to a minimum consistent with safety of community – Custodial supervision order varied to non-custodial supervision order – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss. 32, 39, 40, 42.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S Delaney	Victoria Legal Aid
For the Secretary to the Department of Health	Mr D Bruno	Department of Health
For the Attorney-General	Mr L McAuliffe	Victorian Government Solicitor’s Office

HER HONOUR:

The applicant, GB, has a diagnosis of paranoid schizophrenia. On 1 February 2011, while acutely psychotic, he killed his niece.

GB was found not guilty of murder by reason of mental impairment and, on 27 July 2012, placed on a custodial supervision order (‘CSO’) under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘Act’). The nominal term of the CSO is 25 years, with effect from 1 February 2011.

On 17 January 2019 the applicant was first granted 12 months’ extended leave, during which he lived in supported accommodation at the Austin Community Recovery Program (‘CRP’). He was twice again granted extended leave in 2020. The second of those grants, made 17 December 2020 (to commence on 17 January 2021), varied the conditions of the leave to allow GB to reside at accommodation determined by the authorised psychiatrist.

On 21 September 2021 the applicant filed an application to vary the CSO to a non-custodial supervision order (‘NCSO’) or, in the alternative, a further period of extended leave. The applicant’s then treating psychiatrist, Dr David Thomas, provided the Court with a report in which he was not supportive of the variation due to the applicant’s recent relocation from the CRP to independent accommodation.

On 15 December 2021, the variation application was adjourned to a date to be fixed and the applicant was granted a fourth period of 12 months’ extended leave commencing on that date.

The adjourned variation application is now pressed. In the alternative, the applicant applies for a further period of 12 months of extended leave.

The primary application is supported by each of the…

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 [2022] VSC 323
Case: [2022] VSC 323
Decision Date: 15 June 2022

CaseChat Overview and Summary

The applicant, GB, sought variation of a custodial supervision order to a non-custodial supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). The application was heard in the County Court of Victoria. GB was diagnosed with a number of mental health conditions, including major depressive disorder, anxiety disorder, and borderline personality disorder. The primary dispute was whether the variation of the order would endanger the safety of GB or the public and whether it would be consistent with the principle that GB’s freedom and personal autonomy should be limited to the minimum necessary for the safety of the community.

The court considered whether the variation would pose a serious risk to the safety of GB or the public. It also examined whether the variation would align with the principle of limiting GB's freedom and personal autonomy to the minimum extent necessary for community safety. The court relied on medical evidence and reports, which indicated that GB had made significant progress and was no longer a risk to themselves or the public. The court found that the variation would not endanger the safety of GB or the public and was consistent with the statutory principle.

The court varied the custodial supervision order to a non-custodial supervision order, recognising GB’s progress and the absence of risk. The decision highlighted the importance of balancing the individual's rights with community safety, and the court's role in ensuring that such orders are proportionate and reflect the current circumstances of the individual. The court ordered that GB be subject to a non-custodial supervision order with specified conditions to ensure ongoing monitoring and support.

Orders