Re GB
[2020] VSC 4
•15 January 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2018 02536
| IN THE MATTER of an application pursuant to s 57(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
| - and - |
| IN THE MATTER of an application for extended leave by “GB” |
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JUDGE: | WEINBERG JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 January 2020 |
DATE OF JUDGMENT: | 15 January 2020 |
CASE MAY BE CITED AS: | Re GB; An application under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 |
MEDIUM NEUTRAL CITATION: | [2020] VSC 4 |
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CRIMINAL LAW – Mental impairment – Application for extended leave pursuant to s 57 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – Whether granting the applicant further extended leave with conditions would seriously endanger the safety of the applicant or members of the public – No evidence to indicate applicant an increased risk since previous application – Low likelihood of seriously endangering the safety of himself or members of the public – Further extended leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Bevan | Victoria Legal Aid |
| For the Secretary of the Department of Health and Human Services | Ms S J Varney | Department of Health and Human Services |
| For the Attorney-General | Ms J P Kretzenbacher | Victorian Government Solicitor’s Office |
HIS HONOUR:
This is an application by ‘GB’ for a grant of further extended leave, pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘MI Act’). I have concluded that the applicant should be granted further extended leave, subject to conditions, for a period of 12 months. These are my reasons.
By way of background, GB had previously been found not guilty of murder by reason of mental impairment. He suffered from, and continues to suffer from, schizophrenia. The details of the index offence are adequately summarised in the reasons of Macaulay J delivered on 17 January 2019.[1] It is unnecessary, for the purposes of this application, to repeat them here.
[1]Re GB [2019] VSC 4 (‘Reasons’).
On 27 July 2012, GB was placed on a custodial supervision order, with a nominal term of 25 years’ supervision being fixed (ordered to commence from 1 February 2011).
On 26 July 2018, GB made an application for extended leave. That application was heard by Macaulay J and extended leave, subject to conditions, was granted for a period of 12 months. Those conditions included orders that GB be under the supervision of the Authorised Psychiatrist of the Victorian Institute of Forensic Mental Health or their delegate; that GB abide by the lawful directions of the Authorised Psychiatrist, or their delegate; that GB comply with treatment, testing and the appointment schedule directed by the Authorised Psychiatrist, or their delegate; and that GB abstain from the abuse of alcohol and the use of illicit drugs.
During the past 12 months, GB has been residing in the community in supported accommodation at the Austin Community Recovery Programme facility. I was informed that if further extended leave were to be granted, it was proposed that he would continue to reside at that facility, with a view to transition to either other supported accommodation, or independent accommodation with appropriate supports, within the next 12 months.
The relevant legal principles
This application is governed by s 57 of the MI Act. That section relevantly provides:
…
(2)The court may grant an application under subsection (1) if satisfied on the evidence available that the safety of the forensic patient or forensic resident or members of the public will not be seriously endangered as a result of the forensic patient or forensic resident being allowed extended leave.
Note
Sections 39 and 40 set out certain other principles and matters that the court must apply and have regard to in considering applications for extended leave.
(3)An application for extended leave can be made and granted more than once.[2]
…
[2]Emphasis added.
Sections 39 and 40 of the MI Act set out further matters to which the Court must have regard in considering this application. Those provisions relevantly provide:
39Principle to be applied
(1)In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, 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.
…
40Matters to which the court is to have regard
(1)In deciding whether or not to make, vary or revoke an order under Part 3, 4, 5 or 5A in relation to a person, to grant extended leave to a person or to revoke a grant of extended leave, the court must have regard to—
(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.
…
(4)The court cannot make a further grant of extended leave for a person who is on extended leave at the time of the application unless the court has obtained and considered—
(a)the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on—
(i)the person’s mental condition; and
(ii)the possible effect of the proposed further grant on the person’s behaviour; and
(b)the leave plan filed under section 57A.[3]
[3]Emphasis added.
As indicated above, Macaulay J was satisfied that GB and members of the public would not be seriously endangered if extended leave were granted. His Honour provided detailed, clear and cogent reasons for his decision.[4] He dealt carefully and extensively with the relevant legal principles. I agree that GB’s likelihood of seriously endangering himself or members of the public is, on the evidence before me, low.
[4]Reasons, [8]–[25], [87]–[98].
In his application, GB did not seek a variation of his previous leave conditions. Importantly, his application was not opposed by the Secretary of the Department of Health and Human Services, the Attorney-General, or the Director of Public Prosecutions. Therefore, the real question for me to consider was whether anything had occurred during GB’s 12 month period of extended leave that would affect the conclusion that GB was not likely to seriously endanger himself or members of the public.
GB’s progress on extended leave
By way of context, it is relevant to note that at the time of the index offence, GB was suffering from persecutory beliefs, namely, that he was in danger of being attacked by various bodies, including the mafia, motorcycle gangs, and the police. Since that time, GB has developed insight into the delusional nature of his beliefs, and has become compliant with his medication schedule.
In a report prepared on 22 November 2019, Dr Shannon Reid, GB’s treating psychiatrist, outlined the positive progress that GB had made during extended leave. Dr Reid noted that features of psychosis have not been apparent during GB’s time on extended leave. He stated that ‘[GB] has not appeared subject to unmanageable anger or agitation … [t]here have been also no occasions of known conflict with any person.’ Further, Dr Reid observed that there was no evidence that GB had breached any of the conditions of Macaulay J’s order granting extended leave.
Dr Reid concluded that ‘the risk of harm associated with [GB] is low. The risk of self-harm also appears to be low.’ Further, Dr Reid stated that ‘[t]hese estimates also apply to situations where [GB] is in other accommodation settings with adequate supports.’ Finally, Dr Reid concluded that ‘[t]he Community Treatment and Transition team of Forensicare is in support of [GB]’s application for renewal [of] Extended leave.’
As a postscript to his report, Dr Reid proposed that, if GB were to be granted further extended leave pursuant to this application, he be subject to the same conditions as were imposed by Macaulay J when he granted extended leave last year.[5]
[5]See [4] above.
Conclusion
I am satisfied that GB’s level of risk has not increased since this matter was last before this Court. He appears to have made positive progress during his period of extended leave in reintegrating back into the community. Therefore, I am satisfied, pursuant to s 57(2) of the MI Act, that the safety of GB and members of the public will not be seriously endangered as a result of granting him further extended leave on appropriate conditions.
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