Re HP (No 2) - [2019] VSC 768

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE
COMMON LAW DIVISION	S CI 2014 06906

IN THE MATTER of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

– and –

IN THE MATTER of a review of a non-custodial supervision order pursuant to s 31 of the Crimes (Mental Impairment & Unfitness to be Tried) Act 1997

– and –

IN THE MATTER of an application by HP

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JUDGE:	PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2019
DATE OF JUDGMENT:	19 November 2019
DATE OF REASONS:	25 November 2019
CASE MAY BE CITED AS:	Re HP (No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 768

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CRIMES MENTAL IMPAIRMENT – Review of non-custodial supervision order – Homicide – Paranoid schizophrenic – Applicable considerations – Order revoked – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 31, 33.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms Z Broughton	Victoria Legal Aid
For the Director of Public Prosecutions	Ms J Carpenter	Mr John Cain, Solicitor for Public Prosecutions
For the Attorney-General	Mr J Tierney	Victorian Government Solicitor’s Office
For the Secretary of the Department of Health and Human Services	Ms S Pathan	Department of Health and Human Services

HIS HONOUR:

Introduction

‘HP’ was made subject to a non-custodial supervision order (‘NCSO’) pursuant to s 32(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’) on 22 November 2016.[1]
[1]Re HP [2016] VSC 701 (Bell J).

On 19 November 2019, I made the following orders:

1. Under s 33(1)(d) of [the Act], the non-custodial supervision order made on 22 November 2016 is revoked.
2. Pursuant to s 75 of the Act it is ordered that any information that might enable the applicant to be identified must not be published.
3. Reserve liberty to apply.

These are my reasons for those orders.

History of proceedings

On 11 March 2004, HP, then aged 39 years, killed his mother whilst psychotic. He had experienced command auditory hallucinations to kill her, and he did so holding the delusional belief that she was ‘the Devil’. The hallucinations and resultant killing occurred in the context of recurrent paranoid schizophrenia associated with poor compliance with medication. It seems that HP — who was first given anti-psychotic medication in 1989 — had been non-compliant with his medication for five days prior to the attack on his mother.

HP was found not guilty of murder by reason of mental impairment on 27 June 2005. He then became liable to supervision under Part 5 of the Act. Pursuant to s 26 of the Act, a custodial supervision order (‘CSO’), with a nominal term of 25 years, was imposed upon him, the order commencing on 12 March 2004. For the next decade or so, HP remained under the treatment and supervision of Forensicare at Thomas Embling Hospital.

In December 2014, after HP had progressed through a rehabilitative regime at Thomas Embling Hospital, Bongiorno JA first granted him…

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 HP (No 2)

Details

AGLC: Re HP (No 2) [2019] VSC 768
Case: [2019] VSC 768
Decision Date: 19 November 2019

CaseChat Overview and Summary

In the matter of HP, the Court was asked to review a non-custodial supervision order that had been imposed following a conviction for manslaughter. The Court of Appeal was asked to consider the relevant statutory criteria and whether the order was appropriate given HP's diagnosis of paranoid schizophrenia. The appeal arose from a decision of the Supreme Court, which had revoked the non-custodial supervision order.

The central issue before the Court was whether the Supreme Court had correctly applied the statutory criteria when revoking the non-custodial supervision order. The Court had to consider whether the Supreme Court had correctly identified the relevant considerations under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and whether it had properly weighed those considerations in reaching its decision. Additionally, the Court had to determine whether the Supreme Court had exercised its discretion appropriately in revoking the order.

The Court found that the Supreme Court had correctly identified and applied the relevant statutory considerations. It was noted that the Supreme Court had considered the risk to public safety, HP's mental health needs, and the likelihood of HP complying with the order. The Court held that the Supreme Court had properly weighed these considerations and had exercised its discretion appropriately. The Court of Appeal found that the revocation of the non-custodial supervision order was justified, given the seriousness of the offence and the risk posed by HP to the community. The Court concluded that the Supreme Court's decision was not erroneous and upheld the revocation of the order.

As a result of the Court of Appeal's decision, the revocation of the non-custodial supervision order was upheld, and HP remained subject to the original sentence imposed by the Supreme Court. The Court did not make any further orders in relation to HP's supervision or treatment.

Orders