In re TLB [2007] VSC 439 (13 November 2007)

For the Secretary of the Department of Human Services

1 In 2001 the applicant stabbed a house mate in the neck with a hunting knife. In 2002 he was found not guilty of the offence of intentionally causing serious injury without lawful excuse by reason of mental impairment. A judge of this Court ordered that the applicant be placed on a non-custodial supervision order under s 26(2)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 subject to certain conditions. The non-custodial supervision order was varied later in 2002 to a custodial supervision order under s 26(2)(a).

2 Since 2002, the applicant has had two prolonged admissions to Thomas Embling Hospital, which is a forensic psychiatric hospital. The first was from 18 May 2002 until 11 November 2002. The second was from 2 April 2003 until 31 October 2006.

3 On that latter date, a judge of this Court granted the applicant extended leave pursuant to s 57 of the Act. Section 56 defines extended leave as leave to be absent from a place of custody for a period not exceeding 12 months, subject to specified conditions (if any). The extended leave order was subject to certain conditions and expired on 31 October 2007.

4 On 26 October 2007 I heard an application for the grant of extended leave for a further period of 12 months.

5 The applicant is almost 33 years of age. He lives in a de facto relationship. A son was born of that relationship on 29 March 2007. The child is thriving and the applicant is a responsible father. The couple and child live with the applicant's mother in stable accommodation in a Melbourne suburb.

6 If I refuse to grant the application for extended leave, the practical consequences will be these:

• The applicant will immediately go back into statutory custody. That will mean he will go into the Melbourne Assessment Prison pending the availability of a bed at Thomas Embling Hospital.

• The progress that the applicant is making towards medical and social recovery in the community will be interrupted.

• The applicant's son will be separated from his father.

7 The applicant and his treating forensic psychiatrist urge me to avoid these consequences by granting extended leave. The Attorney-General opposes the grant of that leave, essentially because the applicant has not fully observed the conditions of the leave that was granted in 2006.

8 The psychiatrist is Dr Russ Scott. His evidence was given in a report dated 27 September 2007 and also in oral evidence given at the hearing. I have also received evidence from Dr Anthony Cidoni by way of a report dated 23 October 2007 and Mr Steven Hallam, the applicant's case manager, by way of a report dated 5 October 2007. I have considered all of this evidence.

9 I was extremely impressed with Dr Scott's written and oral evidence. He told me the applicant's case is a difficult one. The applicant is a paranoid schizophrenic who, when delusional, caused very serious injuries to an innocent member of the community. He has had two significant periods of psychiatric hospital admission and his condition has been worsened by episodes of illicit drug use. He is liable to grandiosity and has limited insight into his condition. He can be somewhat resistant to guidance from his carers, especially Dr Scott.

10 On the other hand, Dr Scott said the applicant's condition is being controlled by medication, both with respect to his psychiatric condition and his drug use. He is now functioning reasonably well in the community. Indeed, it is admirable that the applicant is a responsible father and has a steady de facto relationship.

11 On Dr Scott's evidence, if the applicant maintains his medication, stays off drugs, continues to accept treatment and abides by his leave conditions, he presents as a low risk of endangerment to himself and others, even with his limited insight. I accept that evidence. It is significant that, in Dr Scott's view, the Thomas Embling Hospital has nothing more to offer the applicant from a medical point of view. He will make better progress through treatment in the community, provided he accepts the guidance of his carers and observes the conditions of his leave.

12 There is one significant consideration that tells against granting any further extended leave. It is the one relied on by the Attorney-General. On the evidence, the applicant has not, in certain respects, maintained contact with his carers. On occasions, it appears he has not provided blood samples legitimately requested. These are needed to ensure he is taking his medication. Incredibly, he concealed the birth of his son from his carers. However, Dr Scott has deposed that this kind of behaviour is, to a significant degree, symptomatic of the applicant's psychiatric condition and that, overall, he is making reasonable progress in the community.

13 I take a very dim view of the applicant's behaviour in these respects. I cannot make it any plainer than that. Counsel for the applicant has assured me the applicant now fully understands the need to observe the conditions of his extended leave in every respect. I am prepared to accept that assurance, this time.

14 Under s 57(2), this Court may grant an application for extended leave under s 57(1) if, on the evidence, the safety of the applicant or members of the public would not be seriously endangered by reason of extended leave being allowed. Under s 39, in determining an application for extended leave, the Court must apply the principle that restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community. Under s 40(1), the Court must have regard to all of the following matters:

(a) the nature of the person's mental impairment or other condition or disability; and

(b) the relationship between the impairment, condition or disability and the offending conduct; and

(c) whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and

(d) the need to protect people from such danger; and

(e) whether there are adequate resources available for the treatment and support of the person in the community; and

15 Under the terms of s 57(2), it is an absolute condition precedent to a grant of extended leave that I be satisfied, on the evidence, that the safety of the applicant and the public would not be seriously endangered by granting him extended leave. Having considered the evidence, I am so satisfied. Under s 39, I should ensure the restrictions on the applicant's personal freedom and autonomy are be kept to the minimum consistent with the safety of the community. This principle favours the grant of extended leave, on appropriate conditions.

16 I must now have regard to the matters specified in the several paragraphs of s 40(1). As applied in the applicant's case, they all suggest he should be granted extended leave.

17 As to paragraph (a), the applicant's mental impairment is of a kind that can be treated in the community, as has been so for the past twelve months. As to paragraph (b), the impairment was responsible for the offending. But if it is properly treated and the applicant is properly supported, and he accepts that treatment and support, there should be no further offending. As to paragraphs (c) and (d), you have already seen I am satisfied the applicant, if released, is not likely to harm himself or others. The conditions I intend to impose should be sufficient to protect people from the small risks involved in extending the grant of leave. As to paragraph (e), there are adequate resources for the treatment and support of the applicant in the community. Indeed, as Dr Scott made clear, it is the best place for that to occur.

18 Section 40(1)(f) states I must have regard to any other matters the Court thinks relevant. I think I should take into account the best interests of the applicant's infant son, which are not to be separated from his father. The relevance of that consideration arises both from the terms of the Act generally and from a relevant international human right.

19 The terms of the Act recognise the interests of children of persons subject to orders in various ways. Under the definition of "family member" in s 3(1), the applicant's child is a member of his family. The child is therefore entitled to receive notice of, and participate in, various proceedings under the Act relating to the applicant. One example[1] is a proceeding under s 35 involving a major review of a supervision order. The purpose of such a review is to determine whether the person subject to the order is able to be released from it.[2] Another example[3] is a proceeding under s 57 involving extended leave if, granting the application would significantly reduce the person's degree of supervision. These provisions, and the others like them, reflect an underlying policy - the interests of a child of a person, and their other family members, might be affected by decisions made under the Act and should be taken into account. The same consideration should be taken into account as a relevant matter under s 40(1)(f) when it comes to determining an application for extended leave. The consideration could cut either way, for the affect might be positive or negative. I note there is no evidence that the applicant is a danger to his son; indeed, quite the opposite.

20 Australia is a party to the Convention on the Rights of the Child. Under art 9(1), children should not be separated from their parents against their will unless, amongst other things, it is necessary for the best interests of the child. While the Convention has not been incorporated into Australian law, international human rights, such as those recognised in the Convention in respect of the applicant's son, can be a relevant consideration in the exercise of judicial and statutory powers and discretions.[4] That is the case here. I think that, under s 40(1)(f), art 9(1) of the Convention is relevant to exercise of the power to grant extended leave, for art 9(1) deals with the subject of the separation of children from their parents, and the exercise of the power to grant extended leave, in a case like the present, might lead to, or prevent, that separation being brought about. This is an additional basis on which the best interests of the applicant's son should be taken into account. Again, this consideration could cut either way. But as the applicant is a caring and responsible father, and no danger to his son, the child's best interests are that he not be so separated.

21 Finally, I need to return to the issue of compliance with the extended leave conditions. It is a very important part of my decision to extend leave that the applicant abide by those conditions. I would not grant extended leave without such conditions. The purpose of the conditions is to protect the applicant and the public from the possibility of further harm by reason of the applicant's mental impairment. If the applicant does not abide by the conditions, it will undermine the very basis on which I am granting extended leave. Therefore, I expect the applicant to comply with the conditions and make it clear that there may be serious consequences if he does not.

22 Accordingly, the application for extended leave will be granted on conditions. These will be the orders:

(1) Pursuant to s 57 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the applicant will be granted extended leave to take effect on 31 October 2007 on the following conditions:

• (a) that the applicant be under the supervision of the Victorian Institute of Forensic Mental Health
• (b) that the applicant obey the lawful directions of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or his or her delegate
• (c) that the applicant abstain from any use of illicit drugs
• (d) that the applicant abstain from any consumption of alcohol that is greater than three standard units of alcohol within any 24 hour period
• (e) that the applicant not leave the State of Victoria without the written permission of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or his or her delegate
• (f) that the applicant attend for blood and urine tests as directed by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or his or her delegate
• (g) that the applicant reside at an address to be specified in the formal order, or at any other address approved by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or his or her delegate

(2) I direct that the reports tendered in evidence as Exhibits 1, 2 and 3, which will be specified in the formal order, and the transcript of this proceeding be placed in a sealed envelope and remain on the court file to be opened only by order of a judge.

(3) Pursuant to s 75 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, until further order, no person shall publish or broadcast or cause to be published or broadcast by means of radio, television or any other means, any matter that might directly or indirectly enable identification of:

• (a) the applicant in this proceeding or his place of residence
• (b) the victim of the offence or his place of residence or former place of residence
• (c) members of the family of the applicant or of the victim
• (d) the place of residence of any members of the family of the applicant or of the family of the victim.

[4] Tomasevic v Travaglini [2007] VSC 337, [60]-[65].