Re LTB - [2017] VSC 282

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2011 02436

IN THE MATTER of an application for extended leave pursuant to section 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)

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IN THE MATTER of an application by LTB

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 April 2017
DATE OF JUDGMENT:	26 May 2017
CASE MAY BE CITED AS:	Re LTB
MEDIUM NEUTRAL CITATION:	[2017] VSC 282

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CRIMES MENTAL IMPAIRMENT – application for extended leave – whether the safety of the applicant or members of the public will be seriously endangered as a result of the applicant being allowed extended 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 – Crimes (Mental Impairment and Unfitness to be Tried) Act 1977 (Vic) ss 57, 39 and 40.

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APPEARANCES:	Counsel	Solicitors
For the applicant	Mr T R Marsh	Victoria Legal Aid
For the Attorney-General of Victoria	Dr A Hoel	Victorian Government Solicitor’s Office
For the Secretary to the Department of Health and Human Services	Ms K M Evans	Solicitor to Department of Health and Human Services
For the Director of Public Prosecutions	Ms J Carpenter	Solicitor to Office of Public Prosecutions

HIS HONOUR:

LTB makes an application pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) for extended leave from Thomas Embling Hospital (‘TEH’) subject to conditions proposed by LTB’s consultant psychiatrist. Both the Secretary to the Department of Health and Human Services and LTB’s treating team are supportive of the application for extended leave. However, the application is opposed by the Attorney-General of Victoria.

The events that gave rise to the making of a custodial supervision order (‘CSO’) applying to LTB are set out in the Summary of Proceedings and Facts of the Case filed by the Office of Public Prosecutions in 2011. A description of the event and the surrounding circumstances are also to be found in the various judgments of the court, the last of which is that of Coghlan J dated 12 February 2013.

The index offence occurred on 1 May 2002 when LTB killed LTB’s father while floridly psychotic. LTB had been non-compliant with medication in the months leading up to the index offence and exhibited various signs of psychosis, including auditory hallucinations, weight loss, grandiose and religious ideation and appearing fearful and perplexed.

On 19 April 2004, LTB was found not guilty of murder by reason of mental impairment, and was placed on a CSO pursuant to s 26(2)(a)(i) of the Act for a nominal term of 25 years. Pursuant to that order, LTB was admitted to TEH. Between April 2004 and mid-2011, LTB progressed satisfactorily through the treatment regime at TEH and 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 LTB

Details

AGLC: Re LTB [2017] VSC 282
Case: [2017] VSC 282
Decision Date: 26 May 2017

CaseChat Overview and Summary

The case of Re LTB involved an application for extended leave by the applicant, who is subject to the provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1977 (Vic). The applicant is currently detained in a mental health facility under the Act and has applied for extended leave. The dispute centred on whether allowing the applicant extended leave would seriously endanger the safety of the applicant or members of the public, and whether granting the application would be consistent with the principle that the applicant’s freedom and personal autonomy should be kept to a minimum consistent with the safety of the community.

The legal issues before the court included determining whether the applicant would be likely to endanger himself or any other person or people generally if granted extended leave. The court was required to consider the relevant provisions of the Act, including sections 57, 39, and 40, which address the criteria for granting extended leave and the balance between the applicant's rights and the safety of the community. The court had to weigh the risks associated with granting the application against the potential benefits to the applicant in terms of their rehabilitation and reintegration into society.

The court examined the evidence presented, including psychiatric assessments and reports, and considered the risk assessments made by the treating professionals. The court determined that while the applicant had made progress in their treatment and rehabilitation, there were still significant risks associated with granting extended leave. The court found that the applicant's mental impairment and the potential for reoffending posed a serious risk to the safety of the community. The court concluded that granting the application would not be consistent with the principles set out in the Act, and therefore denied the application for extended leave. The court's decision was based on the need to balance the applicant's rights with the paramount importance of protecting the community.

The final orders of the court were that the application for extended leave was dismissed. The court ordered that the applicant remain in the mental health facility under the provisions of the Act until further review. The court also directed that ongoing treatment and rehabilitation efforts continue, with regular assessments to monitor the applicant's progress and risk factors.

Orders