Re SC - [2020] VSC 58

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2016 04091

IN THE MATTER of a review of a non-custodial supervision order pursuant to s 33(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)

and

IN THE MATTER of SC

---

JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October 2019
DATE OF JUDGMENT:	19 February 2020
CASE MAY BE CITED AS:	Re SC
MEDIUM NEUTRAL CITATION:	[2020] VSC 58

---

CRIMES MENTAL IMPAIRMENT – Review of non-custodial supervision order – Reviewee sought revocation of non-custodial supervision order – Non-custodial supervision order confirmed upon the same conditions – Further review ordered to occur within 12 months – Crimes (Mental Impairment Unfitness to be Tried) Act 1997 (Vic) ss 31, 32, 33, 38C, 39, 40 and 41.

---

APPEARANCES:	Counsel	Solicitors
For the Reviewee	Ms S Dhanji	Victorian Legal Aid
For the Secretary to the Department of Health and Human Services	Ms S Varney	The Department of Health and Human Services
For the Attorney General of Victoria	Ms M Pekevska	Victorian Government Solicitors Office
For the Director of Public Prosecutions	Ms S Borg	The Office of Public Prosecutions

HIS HONOUR:

Introduction

This is a review of a non-custodial supervision order (‘NCSO’) pursuant to s 33(1) of the Crimes (Mental Impairment Unfitness to be Tried) Act 1997 (Vic) (‘the Act’). The person who is the subject of the order, SC, seeks a revocation of that order pursuant to s 33(1)(d) of the Act.

SC was found not guilty of two charges of attempted murder by reason of mental impairment in 2010. In 2011, Robson J placed SC on a custodial supervision order (‘CSO’) for a nominal term of 25 years which was to commence from 13 December 2010. In 2017, Lasry J granted SC extended leave for a period of 12 months. Further extended leave was granted for the same period in 2018. On 1 November 2018, the Court varied SC’s CSO to a NCSO and directed that the matter be brought back for further review in 12 months. That review fell due before me on 31 October 2019.

Each of the Secretary to the Department of Health and Human Services (‘the Secretary’) and SC’s treating team submitted that the NCSO should be revoked. The Attorney-General (‘the Attorney’) opposes the revocation but supports the confirmation of the NCSO. The Director of Public Prosecutions (‘the Director’) filed an affidavit deposing that the family members and victims had been notified of the review hearing. The Director was not required to and did not make submissions as to the substantive issues and took no position in the review.

For the reasons that follow, I am persuaded that the NCSO should be confirmed.

Legislative framework

The present review of a NCSO is governed by s 33 of the Act, which provides as follows (emphasis added):

(1) On an application under section 31 for variation or revocation of a non-custodial supervision order or on…

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 SC

Details

AGLC: Re SC [2020] VSC 58
Case: [2020] VSC 58
Decision Date: 19 February 2020

CaseChat Overview and Summary

Re SC involved a review of a non-custodial supervision order under the Crimes (Mental Impairment Unfitness to be Tried) Act 1997 (Vic). The reviewee, SC, sought the revocation of the order imposed upon him. The matter was heard in the County Court of Victoria. SC argued that the conditions of his order were too restrictive and that he should be released from the order altogether.

The court was tasked with determining whether SC's non-custodial supervision order should be revoked or if it should be continued under the same or amended conditions. The primary issue was whether SC had met the criteria for revocation or modification of the order under the relevant sections of the Act. The court considered SC's mental health history, his compliance with the order, and the risk he posed to the community.

After considering the evidence and submissions, the court found that SC had not demonstrated a sufficient change in circumstances to warrant revocation of the order. The court noted that SC's mental health issues and the risk he posed to the community were still present. However, the court did order a further review of the order within 12 months to reassess SC's mental health and the appropriateness of the order. The court confirmed the non-custodial supervision order under the same conditions as previously imposed, with a directive for a further review in the future.

No further orders were made in the judgment aside from the requirement for a future review.

Orders