The Queen v Ebatarintja - [2010] NTSC 6

The Queen v Ebatarintja [2010] NTSC 06
PARTIES:THE QUEEN

v
EBATARINTJA, Roland

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:20202017
DELIVERED:  Thursday 11 March 2010
HEARING DATES:  9 and 11 February 2010
JUDGMENT OF:  MARTIN (BR) CJ
CATCHWORDS:

CRIMINAL LAW – MENTAL IMPAIRMENT – SUPERVISION ORDERS
Custodial and Non-Custodial Supervision Orders – whether court possesses power to authorise persons other than Correctional Services officers or police officers to enforce custody in premises outside of a prison or approved treatment facility – whether the court can make a non-custodial order which includes terms that the supervised person shall reside at secure premises and not leave those premises without permission of supervising persons.
Adult Guardianship Act (NT), s 23; Criminal Code (NT), ss 43A, 43I, 43X, 43Z, 43ZA, 43ZC, 43ZF, 43ZG, 43ZH, 43ZJ, 43ZK, s 43ZM, 43ZN, 43ZQ; Criminal Code Amendment (Mental Impairment and Unfitness to be Tried) Act; Mental Health and Related Services Act (NT); Prisons (Correctional Services) ACT (NT).
Channon v R (1978) 33 FLR 433; Re Bolton; ex parte Bean (1987) 162 CLR 514; R v RJO [1998] VSC 85; R v Percy [1998] 104 A Crim R 29; cf R v Draoui (2008) 101 SASR 267, cited.
REPRESENTATION:
Counsel:
Plaintiff:R Coates
Defendant:S O’Connell
Solicitors:
Plaintiff:Office of the Director of Public Prosecutions
Defendant:North Australian Aboriginal Justice Agency
Judgment category classification:      A
Judgment ID Number:  Mar1003
Number of pages:  25

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Ebatarintja [2010] NTSC 06

No. 20202017
BETWEEN:

THE QUEEN

Plaintiff

AND:

ROLAND EBATARINTJA

Defendant

CORAM: MARTIN (BR) CJ
REASONS FOR JUDGMENT
(Delivered 11 March 2010)
Introduction

Mr Roland Ebatarintja (“the supervised person”) is a deaf and mute Aboriginal man who was born on 2 March 1978. He was the subject of a non-custodial supervision order with which he has failed to comply and the court is required to determine the nature and content of orders for his future supervision.
Special arrangements have been made to enable the supervised person to reside in secure residential premises totally removed from a correctional institution. However, questions have arisen as to the powers of the Court if the supervised person is committed to custody in a place other than a prison or whether he can be required to reside in residential premises pursuant to a non-custodial order.
First, if the Court commits the supervised person to custody in premises other than a prison, does the Court possess the power to authorise persons other than correctional services officers or police officers to enforce the custody? I answer this question in the negative.
Secondly, if no such power exists, does the Court possess the power to make a non-custodial order which directs that he reside in premises other than a prison and not leave without permission, but in circumstances where those supervising the supervised person do not possess any authority or power to enforce the restraint of liberty? I give a positive answer to this question.
Background
On 21 February 1995 the supervised person was charged with murder alleged to have been committed at Alice Springs on 16 February 1995. He was found unfit to plead under provisions of the Criminal Code which were subsequently repealed. The supervised person was later released from custody.
On 29 November 2000 a full guardianship order was made under the Adult Guardianship Act appointing the Public Guardian and a family member as co-guardians of the supervised person. That order continues to be in force pursuant to s 23 of the Adult Guardianship Act.
On 8 February 2002 the supervised person committed offences of assault in circumstances of aggravation. Pursuant to Pt IIA of the Criminal Code, (“the Code”), which replaced the repealed provisions, on 8 March 2004 the supervised person was found unfit to stand trial. A special hearing was conducted and a jury found that the supervised person had committed a number of offences with which he had been charged. The Court declared pursuant to s 43X(3) of the Code that the supervised person was liable to supervision under Div 5. On 3 June 2004 the Court made a non-custodial supervision order and fixed a term of five years, being the equivalent to the period of imprisonment that would have been the appropriate sentence if the supervised person had been found guilty of the offences charged.
From 3 June 2004 until 17 May 2007 the supervised person resided in supervised accommodation in Alice Springs. On a number of occasions during that period he failed to comply with the terms of the supervision order. On 18 May 2007 the supervised person was relocated to Darwin and took up residence in supervised accommodation managed by Carpentaria Disability Services.
Between December 2008 and January 2009 the supervised person failed to comply with the supervision order and the Court varied the non-custodial supervision order to a custodial supervision order. This change resulted in the supervised person being committed to custody in the Darwin Correctional Centre. On 19 March 2009 the Court again varied the order to a non-custodial supervision order and the supervised person was released into supervised accommodation managed by Carpentaria Disability Services.
In accordance with the provisions of the Code, the Court undertook a review of the supervision order following which, on 19 June 2009, the Court ordered that the supervised person continue to be the subject of a non-custodial supervision order.
The supervised person again failed to comply with the terms of the order. As a consequence of non-compliance, the supervised person was committed to custody in the Darwin Correctional Centre. Further non-custodial supervision orders were made on 8 July and 12 October 2009.
The supervised person subsequently absconded from his supervised accommodation and, contrary to the terms of the supervision order, consumed alcohol. These failures to comply led to the current review of the non-custodial supervision order and the supervised person has remained in custody at the Darwin Correctional Centre during the course of that review. Notwithstanding that the supervised person has been held in custody, the non-custodial supervision order was continued until I varied it on 9 February to a custodial supervision order.
On 2 December 2009 the Court was informed that Carpentaria Disability Services had declined to continue the care and supervision of the supervised person and the supervised accommodation had been withdrawn. The Department of Health and Families (“the Department”) advised the Court that it would assume responsibility for the care of the supervised person. The Department undertook to arrange suitable and secure residential accommodation and to recruit and train staff for the purpose of supervising the supervised person in such accommodation. In substance, the Department proposes that the supervised person be committed to custody at residential type premises outside a prison and that enforcement of both custody and a behaviour management plan be carried out by private security personnel retained by the Department for that purpose.
Questions to be determined
It is common ground that the supervised person requires close supervision 24 hours a day in a secure setting, but that custody in a prison is not in the best interests of the welfare of the supervised person. The preferred option is to commit the supervised person to custody in residential premises totally removed from any correctional institution, but premises which are secure and controlled by persons who can enforce the order of custody, if necessary through the use of reasonable force. In addition, the plan prepared for the management of the supervised person (“the management plan”) envisages forcible placement of the supervised person in an isolation room if his conduct should deteriorate to the point where he is a danger to himself or others.
It is accepted that the Court has the power to fix a custodial supervision order under which a supervised person is committed to custody in an “appropriate place” other than a prison.[1] However, in issue is whether the court possesses the power to authorise persons other than Correctional Services officers or police officers to enforce the custody, if necessary using reasonable force.
If the court does not possess the power to authorise enforcement of custody by persons other than Correctional Services officers or police officers, a question arises as to the nature of the order that can or should be made. Can the court make a non-custodial order which includes terms that the supervised person shall reside at the secure premises and not leave those premises without permission of supervising persons in circumstances where supervising persons do not possess any authority to enforce the order? Even if the court possesses such power, given that the supervising persons are unable to enforce such an order and would be unable to prevent the supervised person from leaving the secure premises, the serious question remains as to whether it would be appropriate for a court to make such an order. In this regard, the supervised person’s repeated non-compliance with such orders and the risk that he poses to himself and the public when at large and unsupervised are of particular significance.
Statutory Scheme
The current statutory scheme for dealing with persons suffering from mental impairment was introduced into the Code by the Criminal Code Amendment (Mental Impairment and Unfitness to be Tried) Act 2002 which came into operation on 15 June 2002. The new scheme contains numerous provisions governing determination of questions of fitness to stand trial and mental impairment and the consequences of findings that a person is not fit to stand trial or was suffering from a mental impairment at the time the offence was committed.
If a person accused of a crime is found unfit to stand trial or not guilty by reason of mental impairment, the court must either declare that the person is liable to supervision under Div 5 of Pt IIA of the Code or order that the person be released unconditionally.[2] If the court declares that a person is liable to supervision, the court is required to make a supervision order under Div 5.[3]
Section 43ZA of the Code provides for only two categories of supervision orders, namely, “custodial” and “non-custodial”, and specifies conditions to be met before supervision orders are made:
“43ZA.       Nature of supervision orders
(1)     A supervision order may, subject to the conditions the court considers appropriate and specifies in the order:
(a)if it is a custodial supervision order – commit the accused person to custody:
(i)     subject to subsection (2) – in a prison; or
(ii)subject to subsection (3) – in any other appropriate place; or
(b)if it is a non-custodial supervision order – release the accused person.
(2)     The court must not make a custodial supervision order committing the accused person to custody in a prison unless it is satisfied that there is no practicable alternative given the circumstances of the person.
(3)     The court must not make a supervision order:
(a)committing the accused person to custody in an appropriate place; or
(b)providing for the accused person to receive treatment or other services in, at or from an appropriate place,
unless the court has received a certificate from the chief executive officer of the Department of Health and Community Services stating that facilities or services are available in that place for the custody, care or treatment of the person.”
Section 43A defines “custodial” and “non-custodial” supervision orders as meaning the particular order referred to in s 43ZA(1)(a) and (b). No further definition is provided.
In determining whether to make a declaration that a person is liable to supervision, and in determining the nature and content of supervision orders, the court is directed by s 43ZM to apply the principle “that restrictions on a supervised person’s freedom and personal autonomy are to be kept to the minimum that is consistent with maintaining and protecting the safety of the community”. Section 43ZN requires the court to take into account a number of matters including factors directed to the safety of the community:
“(a)Whether the supervised person concerned is likely to, or would if released be likely to, endanger himself or herself or another person because of his or her mental impairment, condition or disability;
(b)The need to protect people from danger;
…”
Subject to reviews and variations, a supervision order is for an indefinite term.[4]
As I have said, when a supervision order is made the court must fix a term for the operation of the order that is equivalent to the period of imprisonment that would have been an appropriate sentence to impose if the supervised person had been found guilty of the offence charged. Section 43ZG(5) provides that at least three months, but not more than six months, before the expiry of that term the court must conduct a review to determine whether to release the supervised person from the supervision order. On completion of the review, the court “must” release the supervised person unconditionally “unless the court considers that the safety of the supervised person or the public will or is likely to be seriously at risk if the supervised person is released …”. If the court determines that the supervised person should not be released unconditionally, the court is directed to confirm the supervision order or vary it.[5] Provision is also made for periodic review of supervision orders. Section 43ZH directs that on completion of a review of a custodial supervision order the court “must” vary the order to a non-custodial order “unless satisfied on the evidence available that the safety of the supervised person or the public will be seriously at risk if the person is released on a non-custodial supervision order …”. In respect of a review of a non-custodial supervision order, there is no similar direction in respect of releasing a person unconditionally.
As to the imposition of conditions attaching to custodial or non-custodial orders, s 43ZA(1) provides that a supervision order, custodial or non-custodial, may include such conditions as the court “considers appropriate”. On a major review conducted at least three months, but not more than six months before the expiry of the term fixed, the court is empowered to vary the conditions of a supervision order, including varying a custodial order to a non-custodial order and varying the place of custody where the supervised person is detained. Specific provision is made for the imposition of conditions “that the court considers appropriate”.[6] The same provision is made upon a periodic review of supervision orders.[7]
It is apparent from this brief overview of the relevant provisions that underlying the legislative scheme is an intention that the restraint on the liberty and personal autonomy of a supervised person “are to be kept to the minimum that is consistent with maintaining and protecting the safety of the community” and the safety of the supervised person. In addition, s 43ZA(2) directs that the court “must not” make a custodial supervision order committing the supervised person to custody in a prison “unless it is satisfied that there is no practicable alternative given the circumstances of the [supervised] person”.[8]
Further, although the court is empowered to commit a supervised person to custody in an “appropriate place” other than a prison, the court is directed not to do so unless the court has received a certificate from the Chief Executive Officer of the Department “stating that facilities or services are available in that place for the custody, care or treatment of the person”.[9] Hence, the legislature has signalled a concern that the most senior officer of the Department must be satisfied that the alternative to prison is an appropriate facility within which to restrain the supervised person’s liberty. In addition the Court is directed not to make a supervision order for the treatment of a supervised person at an “appropriate place” other than a prison unless the court has received the same type of certificate from the Chief Executive Officer of the Department.[10]
Discussion
Given the plain direction that if, having regard to the “circumstances” of the supervised person, there is a “practicable alternative” to custody in a prison, that alternative of custody in another “appropriate place” must be ordered, what did the Legislature have in mind as possible alternative places for custody? “Appropriate place” is not defined. A “prison” is defined as meaning a prison or police prison within the meaning of the Prisons (Correctional Services) Act.[11] Section 10 of that Act provides that the Minister may declare any place to be a prison. At the time the current scheme was enacted, provision existed for the involuntary admission and detention in “approved treatment facilities” of persons suffering from a mental illness.[12] The Director of Public Prosecutions (“the Director”) emphasised that in respect of custody in a declared prison or under the Mental Health and Related Services Act, comprehensive systems of “checks and balances” exist to ensure that the rights of prisoners are protected.
In my view the Legislature had in mind at least the possibility of custody in an approved treatment facility as custody in another “appropriate place”. This is demonstrated by a consideration of the processes undertaken on review of a supervision order. The court is required to receive and consider reports from an “appropriate person”.[13] Section 43A defines “appropriate person” to include the Chief Executive Officer of the Department where a supervised person is in custody in “an approved treatment facility” within the meaning of the Mental Health and Related Services Act.
The definition of “appropriate person” also includes the Chief Executive Officer of the Department where the supervised person is in custody in a “prescribed facility”.[14] The Legislature contemplates, therefore, that a supervised person might be in custody in a “prescribed facility”, but there is no definition of “prescribed facility”.
Section 43ZQ empowers the Administrator to make regulations prescribing matters required or permitted by Part IIA to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the legislative scheme contained in Part IIA. No facilities have been prescribed, but it is not difficult to conclude that the Legislature had in mind that facilities for the detention and treatment of persons such as the supervised person might be built in the future in order to alleviate the current problem of a lack of appropriate facilities.
Counsel for the Department submitted that a legislative scheme which not only authorises custody in a place other than a prison, but specifically directs that custody be in such a place unless there is no practical alternative, is a scheme which necessarily contemplates the enforcement of custody in the place other than a prison. In those circumstances, so the submission proceeded, the scheme contemplates enforcement by the Department, or more correctly the Chief Executive Officer of the Department, because it is the Chief Executive Officer of the Department that is required to provide the certificate stating that a place is available for the custody of the supervised person before the court may commit the person to custody in such a place. While regard must be had to the principle that the law “is very jealous of any infringement of personal liberty … and a statute or statutory instrument which purports to impair a right to personal liberty is interpreted, if possible, so as to respect that right …”,[15] the legislative scheme under consideration leaves no room for any other reasonable construction than that the Chief Executive Officer of the Department possesses the necessary power to enforce the court order of custody in an “appropriate place”. It is a necessary incident of the order committing the person to custody in such a place.

The Department also submitted that while not strictly necessary, the court possesses the power to authorise the Chief Executive Officer of the Department or other persons to enforce the order. A specific order should be made to that effect in order to avoid any doubt about who may enforce the order and to provide “comfort” in that regard to the Chief Executive Officer of the Department and those retained by the Chief Executive Officer to enforce the order.
On the other hand, the Director submitted that the scheme and s 43ZA in particular, contemplates that the “appropriate place” will already be the subject of an established custodial regime at the time the court commits the supervised person to custody in that place. This follows, so it was said, from the fact that the court must receive a certificate stating that facilities are available in the appropriate place for the custody of the supervised person.
In addition, the Director submitted that authorising the Chief Executive Officer of the Department, or private security persons retained by the Chief Executive Officer, “to forcibly imprison a person is such a significant extraordinary legal measure that in the absence of a specific head of power, such a power should not be inferred”. The Director relied upon the judgment of Brennan J, with whom Deane and Toohey JJ agreed, in Channon v R.[16] The Court was concerned with an order by a sentencing Judge that while in prison the prisoner receive psychiatric treatment. Brennan J said:[17]
“In such a case, the direction as to psychiatric treatment will be a frequent, if not necessary, part of a sentence. If there were statutory provisions governing the making of hospital orders or the giving of directions as to psychiatric treatment, no doubt the statute would specify both the occasion for, and the conditions of, exercising the particular statutory power. But where there is no statutory power which might authorize the application of force to a prisoner without his consent during his incarceration, I know of no jurisdiction impliedly vested in a court to direct the application of force in order to effect some psychiatric treatment. The compulsory administration of drugs or the compulsory application of electro-convulsive therapy are not treatments which may be ordered by a court in the absence of special statutory powers. Much less may a court devoid of those powers purport to authorize the application of force at the discretion of prison authorities. The literature of criminology abounds with warnings from psychiatrists and others as to the dangers of compelling prisoners to submit to therapies designed to reform their patterns of behaviour. Prisoners are not subject to the application of more force than the force necessary to effect their incarceration and the force (if any) otherwise authorized by the prison statute or regulations. The direction which a court sentencing an offender with the object of psychiatric rehabilitation should ordinarily give is that treatment be made available to the prisoner, not that it be administered to him. I find it necessary, for the reasons stated, respectfully to dissent from an observation recently made by the Full Court of Victoria in Reg v Carlstrom [1977] VR 366, if that observation were intended to be of general application. The court said: “We would repeat and endorse his Honour’s direction that the medical authorities at Pentridge subject the applicant to such treatment as in their discretion they think appropriate” ([1977] VR at p 368). On grounds of both power and propriety, I am led to depart from the direction in similar terms given by the learned trial Judge in this case.”
The Director contended that the remarks of Brennan J “illuminate the approach that should be taken when interpreting provisions which are said to found the power to severely curtail a person’s liberty”. As I have said, the Director referred to the existing schemes under the Prisons (Correctional Services) Act and the Mental Health and Related Services Act for the detention of persons in custody which include checks and balances to ensure that a prisoner’s rights are protected.
Reliance was also placed by the Director upon the consequences of the Department’s submission that the Chief Executive Officer, or persons retained by the Chief Executive Officer, can enforce an order of custody. In substance, this would empower security personnel not only to enforce custody and restrain the liberty of a person in order to prevent a breach of the order, but also to apprehend a person who was in breach of the order. The Director suggested that such a consequence is contrary to the scheme which provides in s 43ZF for an emergency power of apprehension to be exercised by a member of the police force. The power may be exercised if such member suspects on reasonable grounds that the supervised person is failing or has failed to comply with a supervision order, or the safety of the supervised person is at risk unless that person is apprehended, or the safety of the public is at risk if the person is not apprehended.[18]
In reply, the Department submitted that although it would be appropriate to seek a specific head of power to curtail the liberty of the person in the street, the situation under consideration is well beyond the person in the street. The supervised person is subject to a statutory scheme of restraint which includes an express power to commit the person to custody in a prison or other appropriate place and to impose conditions related to that custody. The issue under consideration is enforcement of an order of custody in a place other than a prison and it is part and parcel of a custodial order that a power exists to enforce the order. The existence of such a power is not extraordinary. To restrict “an appropriate place” to a place with an existing custodial regime is to undermine the operation of s 43ZA because s 43ZA specifically contemplates custody in a place other than a prison and directs that the court commit to custody in such a place unless there is no practicable alternative given the circumstances of the supervised person. Further, there is an obvious reason for this. Prison should be the last resort and there is a need to cater for people such as the supervised person where custody is needed, but a prison is inappropriate and the Mental Health legislation does not apply.
Custodial Order – Conclusion
While there is force in the contentions advanced by the Department, in my opinion the Legislature has not evinced an intention that the liberty of a supervised person might be restrained in premises of the type under consideration by the Chief Executive Officer of the Department, the Department’s employees or others retained by the Chief Executive Officer for that purpose. Even within a custodial regime, it is a serious step to infer a power of restraint of liberty in persons not specifically identified by the Legislature as authorised to exercise such a power. The Legislature is expected to speak plainly when identifying persons who may restrain liberty and to specify the conditions under which the power to restrain may be exercised. The statutory scheme under consideration does not plainly evince an intention that the Court possesses the power to authorise restraint at the hands of the Chief Executive Officer of the Department or persons employed for that purpose at a residential premises separate from both a prison and an approved treatment facility within the meaning of the Mental Health and Related Services Act.
If the power for which the Department contended was to be inferred, it would be remarkable due to the absence of any legislative identification of the purposes for which the power of restraint may be exercised or of the conditions to be observed before the power is exercised. Nothing appears in the legislation identifying the type or qualifications of persons who can be authorised to exercise the power. Notwithstanding the role of the Court in approving arrangements and fixing conditions, in substance the Legislature would be conferring upon the Chief Executive Officer of a Department not normally concerned with housing prisoners, a discretion to select persons to exercise a power of restraint, if necessary through the use of force. No guidance for selection appears in the legislation and there would be no legislative criteria of suitability to be met.
My view is reinforced by a consideration of the statutory scheme for apprehending supervised persons who fail to comply with the conditions of supervision orders. As I have said, s 43ZF contains an emergency power of apprehension, but that power may only be exercised by a member of the police force. I am unable to discern any legislative intention that such a power might also be exercised by persons retained by the Department for the purposes of supervising and restraining the liberty of a supervised person.[19]
For these reasons, in my opinion the Court does not possess the power to authorise the restraint of the liberty of the supervised person in a place other than a prison or an approved treatment facility within the meaning of the Mental Health and Related Services Act by the Chief Executive Officer of the Department or any person retained for that purpose by the Chief Executive Officer. It follows that in my view the Chief Executive Officer does not possess that power of restraint in such premises.
Non-Custodial Order
The second question concerns the power to attach residential conditions to a non-custodial order. Can such an order include conditions that the supervised person is required to reside at particular premises and is not to leave those premises without the permission of those supervising him? While such an order would not carry with it any authority or power on the part of those supervising the supervised person to enforce the order, the question arises as to whether such conditions are inconsistent with a non-custodial order because they are tantamount to the imposition of a custodial order.
As I have said, in respect of a person found not guilty by reason of impairment or found unfit to stand trial, the legislative scheme contemplates either an unconditional release or a supervision order. Only two types of supervision orders exist. A “custodial” supervision order which requires committal of the supervised person to custody in a prison or any other appropriate place, or a “non-custodial” supervision order which requires the “release” of the supervised person. In this way the legislative scheme has drawn a sharp distinction between a custodial supervision order, which requires committal of the supervised person to “custody”, and a non-custodial supervision order which requires “release” from custody.
The Department submitted that a supervision order which contains conditions that the supervised person reside at a particular place and not leave without permission “in fact and law” is an order placing the supervised person in custody because that person would not be permitted to leave without permission. Such an order would be inconsistent with the terms of s 43ZA(1)(b) which requires that if a non-custodial supervision order is imposed, the court must “release” the supervised person. The Department contended that this consequence would necessarily follow notwithstanding that those in charge could not enforce the requirement of residence if the supervised person chose to breach the order and leave the premises without permission.
The Director submitted that a condition requiring the supervised person to reside at particular premises and not leave without permission does not involve “custody” for the purposes of s 43ZA in circumstances where those in charge do not possess authority to prevent the supervised person from leaving without permission. By way of comparison, such conditions are commonly imposed as conditions of release on bail and release from prison on suspended sentences. Such conditions do not amount to an order committing the person to custody. The person is released from custody and such conditions are conditions of release not orders of custody.
The Department relied upon the decision of Eames J in RJO[20] and Percy.[21]
In RJO, Eames J was conducting a review of a custodial supervision order in respect of a person who, in 1973, had been found not guilty of murder on the ground of insanity and who had been ordered to be detained at the Governor’s pleasure. The person had been in custody for nearly 27 years. Eames J rejected a suggestion that a non-custodial supervision order could be made with a condition that obliged the person to reside at secure premises:[22]
“The proposition that the Reviewee might be placed on a non-custodial supervision order but one subject to conditions that obliged him to reside at Ellery Unit, was advanced by counsel for the Reviewee in support of the third alternative proposal which he submitted to me. In my view, such an order would not be able to be made since, in the guise of it being a non-custodial order, the reality would be that the Reviewee was detained in custody. Whilst the Act is not expansive in its definitions of “custodial supervision orders” and “non-custodial supervision orders” (as those terms are defined in s.26 and s.3 of the Act) it would be entirely inconsistent with the concept stated in s.35(3)(a) that there be a “release” of the person on a nun-custodial supervision order, if that would involve the compulsory detention of that person.” (my emphasis)
In the passage cited, Eames J was concerned with a condition requiring the person to reside at “Ellery Unit” which was a medium level security ward at the Rosanna Forensic Mental Health Centre (in Mont Park Hospital). It is apparent from the reasons that the proposal involved enforced custody at the Ellery Unit. In those circumstances, I agree with the views of Eames J. However, the proposal with which I am concerned is quite different because it does not involve enforcement of the residential condition.
In Percy,[23] it was proposed that a non-custodial order be made requiring the person to reside in a low security ward and not leave without the approval of the clinical director or the court. Eames J was again of the view that, in fact, the terms and conditions to be imposed would place the person in custody. Again, however, it appears to have been contemplated that those in charge would enforce the residential condition. His Honour noted that patients could not simply walk out of the ward as the exits were locked. In his Honour’s view, if there was a denial of “the right to elect to depart”, the person would be in custody.
Again, the situation under consideration in Percy is quite different from a non-custodial order containing a condition of residence which cannot be enforced by those supervising the supervised person. In the circumstances contemplated, if the supervised person indicated a desire to leave the premises, those in charge would be obliged to unlock the premises and let the person leave.
In my opinion, given the absence of any power to enforce a direction to remain at premises and an obligation not to impede physically the departure of a supervised person from the premises, an order directing that the supervised person reside at particular premises and not leave without permission is not, either in its terms or in substance, a custodial supervision order. It is a non-custodial supervision order pursuant to which the supervised person is released from custody. The requirement to reside at particular premises and not leave without permission is a condition attaching to the release, but for the purposes of s 43ZA(1)(b) the supervised person is released from custody. It is a condition in the same way as similar conditions are regularly fixed in respect of releases on bail and on suspended sentences. Whether such an order should be made is a different issue upon which I will hear further submissions.
Parens Patriae
A further matter raised by counsel for the supervised person concerned the application of the parens patriae jurisdiction. In substance counsel suggested that having made an order requiring that the supervised person reside in the particular premises and not leave without permission, exercising this jurisdiction the court could authorise the Chief Executive Officer of the Department or persons retained by the Chief Executive Officer to enforce the residential condition, if necessary through the use of reasonable force without the consent of the supervised person.
In my view the application of the parens patriae jurisdiction in the manner suggested would be inconsistent with the statutory scheme pursuant to which the supervised person is subjected to supervision. It would undermine the scheme. Even if, strictly speaking, the Court possesses the powers of the parens patriae jurisdiction, in the particular circumstances I would not exercise them.
Legislative intervention
In reaching these decisions, I am acutely aware of the attraction of the arrangements proposed by the Department. In view of the particular circumstances of the supervised person, I am mindful of the practical problems likely to be created by these rulings. However, the Court must apply the law given to it and, if my rulings create difficulties, it is within the power of the Legislature to alleviate those difficulties. If the Legislature sees fit to provide the powers for which the Department contended, it will be a matter for the Legislature what conditions should be attached to the grant of such powers.

-------------------------------------

[1] Criminal Code 1983 (NT) s 43ZA.

[2] Criminal Code 1983 (NT) s 43I, s 43X.

[3] Criminal Code 1983 (NT) s 43Z.

[4] Criminal Code 1983 (NT) s 43ZC.

[5] Criminal Code 1983 (NT) 43ZG(7).

[6] Criminal Code 1983 (NT) s 43ZG(7)(c),(d).

[7] Criminal Code 1983 (NT) s 43ZH(2) and (3).

[8] Criminal Code 1983 (NT) s 43ZA(2).

[9] Criminal Code 1983 (NT) s 43ZA(3).

[10] Criminal Code 1983 (NT) s 43ZA(3)(b).

[11] Criminal Code 1983 (NT) s 43A(a).

[12] Mental Health and Related Services Act.

[13] Criminal Code 1983 (NT) ss 43ZH, 43ZJ and 43ZK.

[14] Criminal Code 1983 (NT) s 43A(b).

[15] Re Bolton; ex parte Bean (1987) 162 CLR 514 at 523.

[16] (1978) 33 FLR 433.

[17] Channon v R (1978) 33 FLR 433 at 440.

[18] Criminal Code 1983 (NT) s 43ZF(1).

[19] cf R v Draoui (2008) 101 SASR 267.

[20] [1998] VSC 85.

[21] (1998) 104 A Crim R 29.

[22] RJO at [30].

[23] [1998] 104 A Crim R 29.