Re J R
[2008] VSC 512
•19 September 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. of 1423 of 2002
IN THE MATTER OF an Application pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997:
| JR |
JUDGE: | CUMMINS J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 September 2008 |
DATE OF JUDGMENT: | 19 September 2008 |
CASE MAY BE CITED AS: | JR |
MEDIUM NEUTRAL CITATION: | [2008] VSC 512 |
---
---
APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms J. Carpenter | Office of Public Prosecutions |
| For the Applicant | Ms A Burt | Mental Health Legal Centre |
| For the Attorney-General | Ms E Gardner | Victorian Government Solicitor |
| For the Department of Human Services | Mr G Gilbert | Department of Human Services |
HIS HONOUR:
Before the Court is an application filed 22 July 2008 by J.H.R. for extended leave pursuant to s.57 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The applicant is now aged 26 years having been born on 18 April 1982.
The index offences occurred at Brighton on 14 October 2001 when the applicant was 19 years of age. He was charged with the murder of his father and causing serious injury intentionally to his mother being Counts 1 and 2 before Justice Flatman and a jury on 27 June 2002. The applicant was found not guilty by reason of mental impairment on both counts and the order of the court was that he be subject to a custodial supervision order under Part V of the Act with a nominal period of 25 years.
I have read the evidence at the criminal proceeding and in particular the report of Dr J. B. Barry Walsh of 27 February 2002 and the two reports of Dr E Lester Walton of 22 October 2001 and 18 June 2002. I note in particular paragraph 6 on page 3 of Dr Walton's report of 18 July 2002 as to the then unfavourable prognosis and I bear that in mind in relation to this application.
Since that time the course of treatment and care has progressed and on 22 September 2007, Justice Curtain granted the initial extended leave application under s.57. I have read the order of her Honour and I have also read Her Honour's reasons which were published at that time following a hearing on 21 September 2007.
Relevant to the present application coming up to the contemporary period is the report Exhibit A of Dr Shannon Reid of 22 August 2008, amplified by his evidence before me today. I have noted in particular in paragraph 6 of Dr Reid's report the non abuse of cannabis since the index offence, which I consider highly important. I have also noted Paragraph 37 and 38 of Dr Reid's report as to the low level of risk now involved, assuming compliance with the matter that I have just specified, contains. I have also read the report dated 9 September 2008 of Ms E Weisser, the senior clinician and case manager, Exhibit B before the court, and have noted in particular, in the third paragraph on p.1, that J.H.R. has coped with the stress of his course, and the middle paragraph on p.2, that the applicant remains abstinent from substance abuse, and the top paragraph on p.3, the assessment of low risk. Ms Weisser has been present in court and able to give evidence, and I address my thanks to her on that. I have also read the affidavit of Ms Wilkinson, a solicitor of 17 September 2008, complying with the terms of the Act as to notice to the relevant parties. There is no response from the parties pursuant to that notice.
The application, as has helpfully been reviewed by Mr Gilbert on behalf of the Department, is pursuant to s.57(1) of the Act. The primary criterion is set forth in s.57(2), that the Court be satisfied on the evidence available that safety of the patient and of members of the public will not be seriously endangered as a result of the leave being granted. The relevant criteria bearing upon that are to be found in s.40 of the Act, which are well known and which I shall not specify one by one. I have had regard to all the matters set forth in s.40, and the guiding principle articulated in s.39. Applying those criteria and that principle to the evidence before me, I am satisfied that the leave sought ought to be granted.
A Leave Plan is appended to Dr Reid's report under s.57A. I approve that Plan. I accordingly grant the application for the maximum period permissible under the Act, and I will sign the orders sought when they are provided to me.
0
0
0