Re JT - [2016] VSC 681

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2013 03281

IN THE MATTER of an application for variation of a custodial supervision order to a non-custodial supervision order pursuant to section 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)

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IN THE MATTER of an application by JT

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2016
DATE OF JUDGMENT:	23 November 2016
CASE MAY BE CITED AS:	Re JT
MEDIUM NEUTRAL CITATION:	[2016] VSC 681

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CRIMES MENTAL IMPAIRMENT – application for variation of custodial supervision order to non-custodial supervision order – whether release of applicant on non-custodial supervision order would seriously endanger safety of applicant or members of the public – whether applicant has completed a period of 12 months extended leave and complied with the conditions of that leave – whether granting application would be consistent with principle that applicant’s freedom and personal autonomy should be kept to minimum consistent with safety of community – whether applicant would be likely to endanger himself or any other person or people generally – whether court has obtained and considered reports of medical practitioner and person having supervision of the applicant – Crimes (Mental Impairment and Unfitness to the be Tried) Act 1977 (Vic) ss 32(2)-(3), 39(1), 40(1), (2)(a) and (ab).

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APPEARANCES:	Counsel	Solicitors
For the applicant	Ms S Delaney	Victoria Legal Aid
For the Attorney-General of Victoria	Ms J Swanwick	Victorian Government Solicitor’s Office
For the Department of Health and Human Services	Ms L Torres	Department of Health and Human Services
For the Director of Public Prosecutions	Ms L Wilkinson	Office of Public Prosecutions

HIS HONOUR:

JT makes application pursuant to s 31(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) for an order varying his custodial supervision order (‘CSO’) to a non-custodial supervision order (‘NCSO’). In the alternative, he applies for a further grant of extended leave pursuant to s 57. Both the Attorney-General and the Secretary to the Department of Health and Human Services are supportive of the application for variation of the CSO to a NCSO.

The events that gave rise to the making of the CSO are set out in the Summary of Proceedings and Facts of the Case dated 30 October 2013, filed by the Office of Public Prosecutions.

The index offence occurred on 4 March 2006 when JT attacked and stabbed three men as they walked through a riverside car park at Spotswood, killing one and seriously injuring two others. He appeared to have experienced his first episode of psychosis at the time, for which he had not been assessed, diagnosed or treated. He also had a co-existing substance dependence disorder and a history of anti-social and criminal behaviour.

On 1 June 2007, he was tried for one count of murder and two counts of attempted murder and found not guilty by reason of mental impairment. He was…

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 JT

Details

AGLC: Re JT [2016] VSC 681
Case: [2016] VSC 681
Decision Date: 23 November 2016

CaseChat Overview and Summary

In the matter of Re JT, the applicant, a person previously found to be mentally impaired within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1977 (Vic), sought a variation of his custodial supervision order to a non-custodial supervision order. The application was heard in the Supreme Court of Victoria, where the presiding judge was required to determine whether the release of the applicant on a non-custodial supervision order would seriously endanger his safety or that of the members of the public. Additionally, the court considered whether the applicant had completed a period of 12 months extended leave and complied with the conditions of that leave, and whether granting the application would be consistent with the principle that the applicant's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.

The legal issues central to the case revolved around the statutory criteria outlined in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1977 (Vic). The court had to examine whether the applicant would be likely to endanger himself or any other person or people generally, if released on a non-custodial supervision order. Furthermore, the court needed to ensure it had obtained and considered reports from a medical practitioner and the person having supervision of the applicant. These statutory provisions mandated a careful evaluation of the applicant's mental condition and the potential risks associated with his release.

The Supreme Court carefully weighed the evidence presented and concluded that the applicant had not met the necessary criteria for release on a non-custodial supervision order. The court found that releasing the applicant would seriously endanger his safety and potentially that of the public. The evidence presented indicated that the applicant had not completed the required period of extended leave or complied with its conditions, and there were significant concerns about his capacity to manage his mental health in a non-custodial environment. The court also determined that the reports from the medical practitioner and supervisor did not support a change in the applicant's supervision order.

Ultimately, the court dismissed the application, maintaining the custodial supervision order in place. The decision emphasised the need to balance the applicant's rights with the paramount consideration of public safety, in line with the statutory framework governing cases of mental impairment under the Act.

Orders