Re JWH (No 2) - [2017] VSC 144

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2015 01599

IN THE MATTER of an application for variation of a custodial supervision order to a non-custodial supervision order pursuant to s 31 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)
and
IN THE MATTER of an application for further extended leave pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)
and
IN THE MATTER OF an application by JWH

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 March 2017
DATE OF JUDGMENT:	31 March 2017
CASE MAY BE CITED AS:	Re JWH (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 144

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CRIMINAL LAW – Crimes mental impairment – Application for variation of custodial supervision order to non-custodial order – Application granted

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APPEARANCES:	Counsel	Solicitors
For the applicant	Mr J Fitzgerald	Victoria Legal Aid
For the Secretary of the Department of Health and Human Services	Mr M McLay	Department of Health and Human Services
For the Attorney-General	Ms A Haban-Beer	Victoria Government Solicitor
For the Director of Public Prosecutions	Ms J Carpenter	Solicitor for Public Prosecutions

HER HONOUR:

Introduction

By notice dated 25 January 2017, JWH applied under s 31(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (“the Act”) for an order varying his custodial supervision order (“CSO”) to a non-custodial supervision order (“NCSO”). In the alternative, he applied for a further grant of extended leave under s 57 of the Act.

The index offence occurred on 4 March 2009, when the applicant was 19 years old. While impaired by schizophrenia, the applicant killed his mother, acting under a psychotic delusion that she was trying to kill him and his family.

On 21 September 2009, Coghlan J found the applicant not guilty of murder by reason of mental impairment. The applicant was placed on a CSO for a nominal term of 25 years, commencing 4 March 2009.

Following the commission of the index offence, the applicant was initially remanded in custody. He was subsequently admitted to Thomas Embling Hospital (“TEH”). He remained at TEH, until he was granted extended leave by Croucher J on 1 April 2015.

The circumstances surrounding the index offence, and the applicant’s progression through the treatment and rehabilitation regime at TEH, were discussed in detail in Croucher J’s reasons,[1] particularly at paragraphs [8] to [21], and [41] to [46].
[1]Re HWJ [2015] VSC 170 (“the Croucher J reasons”).

On 31 March 2016, Jane Dixon J ordered that further extended leave be granted until 30 March 2017.

Both sets of extended leave were granted on the following conditions:

(a) The applicant be under the supervision of the authorised psychiatrist of [Forensicare] (“the authorised psychiatrist”), or their nominee.

(b) He reside at a specified address, or another address notified to and approved by the authorised psychiatrist or their nominee.

(c) He comply with the lawful directions 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 JWH (No 2)

Details

AGLC: Re JWH (No 2) [2017] VSC 144
Case: [2017] VSC 144
Decision Date: 31 March 2017

CaseChat Overview and Summary

The case of Re JWH (No 2) involved a person with a mental impairment, referred to as JWH, who had previously been subject to a custodial supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1990. The application before the court was to vary the custodial supervision order to a non-custodial order, allowing JWH to be placed in a community-based setting rather than continuing in a custodial facility. The case was heard in the Supreme Court of Queensland.

The primary legal issue for the court was to determine whether JWH's circumstances had changed to the extent that a non-custodial order would be appropriate. The court needed to consider the criteria set out in the Act for the imposition of such orders, including the risk to public safety, the needs of the offender, and the availability of suitable community-based support. The court also had to weigh the principle of proportionality against the need to protect the public.

The court found that JWH's circumstances had indeed changed, and that a non-custodial order was appropriate. The court noted that JWH had shown significant improvement in their mental health and behaviour while in custody, and that a community-based setting with appropriate support could maintain these gains. The court was satisfied that the risk to public safety would be adequately managed through the conditions of the non-custodial order and the availability of support services. The court also considered the principle of proportionality, finding that a non-custodial order was a more suitable and humane response to JWH's needs.

The court granted the application, varying the custodial supervision order to a non-custodial order. The final orders included conditions to ensure that JWH would receive the necessary support and supervision in the community, and provisions for regular review of the order to ensure its continued appropriateness.

Orders