How to vary a custodial supervision order: clarifying the legal test

In a recent decision in Hammond (a Pseudonym) v Secretary to Department of Health and Human Services, the Court of Appeal took the opportunity to clarify when a court can vary a Custodial Supervision Order (CSO), a type of supervision order that can be made where a person is found unfit to stand trial or not guilty due to mental impairment. The decision gives further useful guidance about the relevant test and criteria for determining when such orders may be varied.

Key takeaways

• When deciding whether to vary a CSO to an Non-Custodial Supervision Order (NCSO), the test is whether doing so would 'seriously endanger' the applicant or members of the public if released from the CSO. Courts must address this question directly, ensuring that restrictions on the person's freedom are kept to a minimum consistent with community safety.
• If an appeal is unsuccessful, the Attorney-General can avoid an order to pay costs by showing exceptional circumstances, such as responding to a novel question of law.

What does the Act say?

Courts have the power to vary or confirm a CSO under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Act). The court has three options under the Act:

• to confirm the order;
• to vary the place where the person is held in custody; or
• to vary the order to an NCSO.

Section 32(2) of the Act is of particular note: a court must not vary a CSO to an NCSO unless satisfied that the person's release will not 'seriously endanger' them or members of the public. In reaching its decision, the court must take into account a number of considerations, such as the nature of the person's impairment and the need to protect the public from any danger. Courts must also apply the general principle that restrictions to a person's autonomy should be kept to the minimum consistent with the community's safety.

Mr Hammond's case

In 2010, Danyl Hammond (a pseudonym) killed his partner while experiencing psychosis and was placed on a CSO. In 2018, Mr Hammond applied to vary his CSO to an NCSO while he was on a period of extended leave from custody. Justice Champion decided not to vary the CSO and concluded that there was no 'substantial reason' to depart from another judge's previous extended leave grant. Further, Mr Hammond's circumstances had not changed sufficiently, and it was necessary to monitor his progress in the community for a longer period. Mr Hammond appealed that decision, arguing that the judge had failed to apply the correct test in deciding whether to vary the CSO.

The Court's decision

The main issue before the Court of Appeal was the proper test that judges should use when deciding whether to vary a CSO. The Court found in favour of Mr Hammond, affirming that the central task is to determine whether varying an order to an NCSO will 'seriously endanger' the person or the public.

The majority stated that the court must assess the probability of harm, as explained in NOM v Director of Public Prosecutions. In answering this question, the court should take into account the mandatory considerations (including whether the person is likely to endanger themselves or others) and should keep restrictions to a person's freedom to a minimum consistent with community safety.

The Court also shed light on some of the questions that should not determine the outcome of an application. For example:

• that a person is on an extended leave order does not preclude them from successfully arguing that a CSO should be varied; and
• it is not necessary for a person to show a positive change in their circumstances. (The majority of the Court reasoned that such an approach is inconsistent with the Act's requirement for an independent assessment of the risk of 'serious endangerment'.)

No costs order

The Court of Appeal decided not to order the Attorney-General to pay the costs of the proceeding on the following grounds:

• the Attorney-General served the public interest by answering a novel legal question and assisted the Court by putting a clear position with substance;
• Mr Hammond did not personally incur any expenses (he was funded by Legal Aid) and had no grounds to expect to receive costs;
• the proceeding had the hallmarks of a criminal appeal where costs are not usually awarded against the State; and
• awarding costs against the Attorney-General amounts to transferring funds 'from one emanation of the State to another'.

To find out more contact:

Liam McAuliffe
Principal Solicitor
Victorian Government Solicitor's Office

This blog was produced with the assistance of Tyrone Connell, winter clerk, July 2019.