R v Stein [2012] VSC 487

2 The status of the jury finding pursuant to s 18(3)(a) constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence for which the finding relates. It follows that John Stein does not fall to be sentenced for the crime of culpable driving because he is a person whose disposition is to be determined under the Act. Such disposition is governed by s 26 of the Act.

3 A person may be made subject either to a Custodial Supervision Order in these terms:

(2) A supervision order may -

(a) commit the person to custody (custodial supervision order) -

(i) subject to subsection (3), in an appropriate place; or

(ii) subject to subsection (4), in a prison; or

(b) release the person on conditions decided by the court and specified in the order (non-custodial supervision order).

"The court must not make a supervision order committing a person to custody in an appropriate place or (b) providing for a person to receive services in an appropriate place or from a disability service provider, the Secretary of the Department of Human Services, or the Secretary of the Department of Health, unless it has received a certificate under s 47 stating that the facilities or service necessary for the order are available".

"The court must not a supervision order committing a person to custody in a prison unless it is satisfied there are no practicable alternatives in the circumstances".

5 I have received a certificate pursuant to s 47 over the signature of the Executive Director of Disability Services of the Department of Human Services making it clear, without going through it in terms, that there is no place within the meaning of s 26(2)(a) at which a custodial supervision order could be made. It would follow that if a custodial order were to be made, it would be confining Mr Stein to custody.

6 The way in which these matters are to be approached is set out in detail in the Act, in particular the following provisions are relevant. Section 39, under the heading "Principle to be Applied", the Act says this:

"In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave, or to revoke a grant of extended leave under this Act, the court must apply the principle that restrictions on a person's freedom and personal autonomy should be kept to a minimum consistent with the safety of the community".

7 I am then obliged, pursuant to s 40, to have regard to a number of 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 be 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 a person in the community, and any other matters that the court thinks relevant.

"The court cannot order a person to be released unconditionally or otherwise release a person from custody under Part 3, 4 or 5 or significantly reduce the degree of supervision to which a person is subject unless it

(a) has obtained and considered the report of at least one registered medical practitioner or registered psychologist who has personally examined the person on -

(i) the person's mental condition;

(ii) the proposed effect of the proposed order".

(b) Has considered the reports submitted to the court under s 41(1) or (3) (as the case may be); and

(c) is satisfied that the person's family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and

(d) has considered any reports of the family members or victims made under s 42".

10 Reports of family members have been received by this Court and the victims have had opportunity to read their material to me, some of whom have chosen to do so. The fact that their grief is absolutely profound is understandable. The fact that they find this part of the system as frustrating and difficult is equally understandable.

11 In relation to this offence, that is the offence of culpable driving, it has always seemed to me that the matter that moves victims most of all is that the death of their loved one is entirely unnecessary and ought to have been avoidable, and we cannot say anything more than that. And it seems to me absolutely so, and the hurt is much greater because of it.

12 There is a difference about the extent to which the material, the reports received pursuant to this Act, operate from those which would ordinarily be received in the sentencing process under the Sentencing Act, because I am constrained pursuant to this Act to come to a conclusion that personal autonomy should be kept to a minimum consistent with the safety of the community.

13 I have received a report pursuant to s 41 of the Act and there is nothing in that report, which incidentally recommends a non-custodial supervision order, from which I could conclude that Mr Stein is a danger to the community in such a way as to require his detention in custody if that custody is to be in a prison. Had facilities been available in a place other than a prison at which a program might have been carried out, I might well have viewed the position differently, but that is simply not the position.

14 I am ultimately constrained to view the order that I make only if there is no practicable alternative in the circumstances. I am satisfied that the making of a non-custodial supervision order with appropriate conditions is a satisfactory resolution in the circumstances. It should be noted that Mr Stein has the support of both his brother and his son, but support in a way which now understands what needs to be done in a way which may not previously have been properly understood.

15 That leads me to the proposition for those at the Bar table as to what conditions ought to be imposed. The report that I have received, although setting out in general terms what would be done, does it somewhat differently from other reports that are received by the Court. It does not set out a series of conditions, and I will give the parties an opportunity and I will ask about how much time might be needed for this to look at conditions. It goes without saying that conditions about owning, possessing or driving a motor vehicle will need to be composed. Conditions as to residence will need to be imposed. Conditions as to appropriate counselling and treatment will need to be imposed. But what the wording of those conditions ought to be is something that I would be assisted by, by the parties, in relation to that.

16 But I make it clear that I have reached the decision that the form of supervision order to be imposed in the present circumstances will be a non-custodial supervision order. For those that are interested in it, that becomes subject to the satisfactory obeying of the conditions and if the conditions are not satisfactorily obeyed the matter comes back to the Court. There are a series of alternatives up to and including the cancellation of a non-custodial order and the replacing with a custodial order.