The Queen v Kerry Doolan & The Queen v Christopher Leo
 NTSC 46
PARTIES: The Queen
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING
FILE NOS: 20822131 and 20722217
FORWARDED TO COUNSEL: 3 July 2012
HEARING DATES: 29 March 2012
JUDGMENT OF: BLOKLAND J
Criminal Code – Supervised Persons and reporting under Part IIA of the Criminal Code (NT)
Adult Guardianship Act
Criminal Code (NT) s 43A(c), s 43A(d), s 43T, s 43X, s 43Z, s 43ZA, s 43ZK, s 43ZH,
Mental Health and Related Services Act
Parole of Prisoners Act
The Queen v Doolan  NTSC 60; The Queen v Leo  NTSC 61
Office of the Director
of Public Prosecutions: Mr Roberts
Supervised Persons: Mr Grace QC, Ms Collins
CEO for the Department
of Health &
CEO for the Department
of Justice: Mr McDonald
Prosecution: Office of the Director of Public Prosecutions
Supervised Persons: Central Australian Aboriginal Legal Aid Service
CEO for the Department
of Health &
CEO for the Department
of Justice: Department of Justice
Judgment category classification: C
Judgment ID Number: BLO 1208
Number of pages: 21
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
The Queen v Kerry Doolan & The Queen v Christopher Leo
 NTSC 46
CORAM: BLOKLAND J
(Delivered 3 July 2012)
 On 29 March 2012, a review was conducted of custodial supervision orders previously imposed on Mr Kerry Doolan and Mr Christopher Leo, (the supervised persons). The review was conducted pursuant to section 43ZH of the Criminal Code (NT). At the conclusion of the review, at the request of Senior Counsel for the supervised persons, (and not opposed by Mr McDonald for the CEOs), I ordered further reports to be filed within three months, (by 29 June 2012). The matter was listed for mention on 5 July 2012 to consider the reports and update the Court and the parties on the circumstances of the supervised persons and any matters bearing on the question of the Orders under review.
 Under s 43ZH of the Criminal Code, after considering a report by an appropriate person under s 43ZK of the Criminal Code, the Court may conduct a review to determine whether a person may be released from the supervision order. The Court must vary the order to a non-custodial supervision 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. If the Court is satisfied the safety of the supervised person or the public will be seriously at risk if the person is released on a non-custodial order, the Court can confirm the order, or vary the conditions of the order, including the place where the supervised person is detained.
 These are brief reasons for the order of the reports at a time prior to the usual timetable of a 12 monthly report and review. The parties were also granted liberty to apply on reasonable notice for a hearing. I will also briefly summarise the history of proceedings as it appears to me from reviewing relevant Court orders. The history also has a bearing on the need for expedited reports.
 It was convenient to hear the review of both supervised persons together, as their circumstances raise a number of common issues. There is no commonality between them in terms of the original allegations that brought them before the Court. The original charges are not related to each other. They are both however held in Alice Springs Correctional Centre under the custodial supervision orders.
 At the conclusion of the hearing it appeared further reports would be useful to determine whether management plans for either or both of the supervised persons could be implemented in the near future. A review of the circumstances of both supervised persons and any progress made on the implementation of proposals to enable them to be moved from custody to a community setting allowing some security, (yet less restrictive than their current custody), was and remains crucial given Mr Doolan has been subject to a custodial order since 2009 and Mr Leo since 2008.
 I respectfully request the parties refer to previous reasons given in these matters by Martin (BR) CJ and referred to in argument during the hearing before me. With respect I share the concern expressed in His Honour’s reasons at that time about the inappropriateness of correctional centres to provide the therapeutic environment needed for both supervised persons. His Honour’s observations with respect to the time spent in custody are, three years later, more pressing.
Preliminary Issue – Representation of the Chief Executive Officers
 A preliminary matter was raised by Senior Counsel for the supervised persons to the effect that the CEO of Justice and the CEO of Health should not be granted leave to fully participate in the proceedings as strictly, neither are parties. Rather, it was argued, the proper contradictor was the Director of Public Prosecutions.
 Both Chief Executive Officers in this instance should have a right to participate in the proceedings. In respect of the CEO (Health), s 43A(c) Criminal Code provides the CEO (Health) is an ‘appropriate person’ for a number of purposes under the Criminal Code as both supervised persons are under an Adult Guardianship Act order. In respect of the CEO (Justice), under s 43A(d), as both persons are in the custody of a prison, the CEO is similarly an ‘appropriate person’. The CEO (Justice) has administrative responsibility for the Parole of Prisoners Act. Both CEOs have a proper interest in the subject matter justifying leave to participate fully in the proceedings.
 In my view these proceedings are distinguishable from proceedings conducted to determine whether a person is fit to plead, is mentally impaired or when an indicative sentence is being determined. All previous case management orders including obtaining reports in these matters have been made by consent referrable to both Chief Executive Officers. The Director of Public Prosecutions has also been represented throughout but no orders in terms of filing reports have been made in respect of the Director.
History of Mr Doolan’s Court Proceedings
 On 21 May 2009 Mr Doolan was found unfit to stand trial under section 43T of the Criminal Code. After a special hearing Mr Doolan was found not guilty (by reason of mental impairment) of charges of unlawful assault, with circumstances of aggravation, the circumstance of aggravation being that the victim was threatened with offensive weapon, namely a shard of glass; and not guilty (by reason of mental impairment) of unlawfully damaging property, where the circumstance of aggravation was that the loss caused by the damage was greater than $5, 000.
 The Court declared under section 43X of the Criminal Code that Mr Doolan was liable to supervision. It followed that a supervision order was required under section 43Z of the Code.
 Martin (BR) CJ conducted a hearing on 28 and 29 October 2009 to determine the nature of the supervision order and on 19 November 2009 a custodial order was made under section 43ZA of the Act. That order provided a review was to take place on 15 June 2010 and a report under section 43ZK was to be filed.
 The custodial order was varied on 18 June 2010 and 6 August 2010, directing reports under section 43ZK be filed and served before 7 June 2011 for a review under section 43ZH.
 The relevant documentation was filed and served on behalf of both Chief Executive Officers. This included a report together with a management plan for Mr Doolan by Mr Daryl Murdock.
 The section 43ZK review set down for 7 June 2011 was adjourned to allow further evidence to be submitted. The matter was eventually relisted to the most recent hearing date of 29 March 2012.
 Further evidence was filed including a psychologist report and addendums of Ms Catherine Leigh-Smith, (19 December 2011) (5 March 2012), (13 March 2012); Report of Mr Murdock (5 June 2011); and an addendum report from Ms Annie Rily and Mr Daryl Murdock, (8 March 2012).
 Mr Doolan has remained on the custodial supervision order to date.
Mr Doolan’s Circumstances
 Mr Doolan is 22 years old. He identifies as Eastern Arrente. Mr Doolan has an intellectual disability that significantly bears on his social functioning. He has also been diagnosed with a low grade psychotic disorder. Dr Larry Cashion has previously diagnosed Mr Doolan with having Autism Spectrum Disorder however Dr Kevin Smith (psychiatrist) has questioned this diagnosis, prefers a diagnosis of Organic Personality Disorder with impulsive and explosive behaviours.
 Mr Doolan was removed from his mother’s care at an early age and placed in the care of an Aunt in Santa Teresa. In late 2004 his Aunt advised relevant authorities that she could no longer care for him due to a number of difficult behavioural episodes. During the subsequent years he stayed with various family members and briefly with Anglicare.
 A guardianship order was made in 2005 and Mr Doolan remains subject to the Adult Guardianship Act.
 After October 2007 he lived in foster care and accessed periods of respite in supported accommodation. In June 2008, in the lead up to the offences that resulted in him coming before the Court, Mr Doolan resided in short term rental accommodation with one on one support workers attending to his needs.
 Various reports before the Court show that from the age of 11 years Mr Doolan has been known to the Aged and Disability Services and Mental Health Services due to his high support needs as a result of significant cognitive impairment and the difficulties at times associated with managing what has been described as his impulsive and explosive behaviour.
 Previous reports note Mr Doolan making threats to self harm, engaging in actual self harm, animal cruelty, property damage and aggressive and threatening behaviour towards others. Ms Leigh-Smith’s report noted that Mr Doolan:
Fully met criteria for seven risk factors and partially met criteria on ten risk factors thus results on the HCR – 20 indicate that without the provision of appropriate support he is at high risk of future violence. He is assessed as being at moderate risk of future violence given appropriate levels of support are put into place and maintained.
 The extent and nature of the risk factors outlined by Ms Leigh-Smith indicate they are as a result of the effects of Mr Doolan’s intellectual disability upon his perceptions, understanding and behaviour. His behaviour has been described as stemming from his limited appreciation of social norms and values that determine socially acceptable behaviour; his lack of insight into how his behaviour impacts upon others; a lack of effective coping skills for dealing with negative emotional states; and poor impulse control.
 Ms Leigh-Smith observed that effective risk management for Mr Doolan would involve management of his environment to reduce his exposure to destabilising factors. Thus if Mr Doolan were to reside in a community based setting these factors require monitoring and management to ensure minimisation of harmful risks.
 As already noted, Mr Doolan has remained in custody. There was however, significant evidence before the Court of programmes and planning in respect of him. The Progress Against the previous Management Plan was noted in Mr Murdock’s June 2011 report. The activities across various subjects Mr Doolan had been engaged in up until that report amounted to 134 activities within the high support unit (HSU) Block; 68 activities external to HSU Block and 14 day release programmes activities. The updated plan included an intention to effect a gradual and successful transition. It would seem the material before the Court points to Mr Doolan being ready at some stage soon to transition to a community based facility with appropriate safeguards in place, or to be placed at the almost completed Secure Care Facilities on an interim basis.
 Ms Leigh Smith said Mr Doolan was more amenable to treatment than Mr Leo, provided the support given and the environment was appropriate. Ms Leigh Smith adhered to a previous opinion given by her that his risk of future violence could be well managed if he were to be placed in an environment sensitive to his needs. She said this had been achieved in the correctional setting and should be able to be achieved in a community based setting with the appropriate skills, support and persons well versed with best practice in forensic disability. Her view was there may be some adjustment difficulties but Mr Doolan would be capable of transition to a community based placement. Her opinion was Mr Doolan did not require the high level of security anticipated in the proposed new secure care facility. In relation to Mr Doolan, Ms Leigh-Smith adhered to her addendum report stating:
There is recognition that people with impaired cognitive functioning who engage in aggressive and violent behaviour can be managed within a community based setting when that setting is specifically and physically tailored to their needs; evidence based behaviour support plans are implemented and staff are skilled and trained in responding to episodes of extreme behaviour.
 She agreed that Mr Doolan had progressed well in some areas of his behaviour. She agreed that a specialist therapeutic facility with a lock down area would be the most appropriate way to manage Mr Doolan when he became agitated. She said that type of facility was best practice in disability support. She agreed best practice involves incremental change. She agreed the facility being proposed by the Department could be used to step persons down from a custodial situation.
 Mr Murdock told the Court that the day release program for Mr Doolan could be extended. He told the Court it should have been implemented earlier, however complications as a result of court decisions on the ability to authorise custodial or coercive practices had a bearing on this. He said previously plans in relation to Mr Doolan had been “sketchy” in terms of resources but in the last 12 months the plan had been going well. In relation to Mr Doolan he said there was some risk of incidents of concern, however any incident of aggression would mean that he goes back a stage in the plan and commences again. He said in respect of both supervised persons the plan was to be reviewed comprehensively in the next couple of months. Mr Murdock said he was aware of the CEO’s wishes for Mr Doolan to be transitioned through the Secure Care Facility.
 In relation to both Mr Leo and Mr Doolan, Mr Murdock substantially agreed with Ms Leigh-Smith’s observations. In his view a secure facility could be either a secure care facility such as the one being built or secure care supported accommodation in the community. He agreed the review of Mr Doolan and the progress made thus far was far from ideal. He thought there were good outcomes for Mr Doolan in terms of the day release program in 2011. He said his understanding of what was to occur with Mr Doolan was that he would spend mornings at a secure care facility. He said he understood that as soon as a Certificate of Occupancy for the new facility was available that this could occur. He thought it would be ideal for Mr Doolan to be in a secure group home arrangement. He was unsure on whether there was such a facility available that had the lockdown area. Mr Murdock confirmed he had been a strong advocate for the principle that gaol is the wrong place for both persons.
History of Mr Leo’s Court Proceedings
 On 31 March 2008 the Court found Mr Leo to be unfit to stand trial on charges of aggravated assault, the circumstance of aggravation being that the victim suffered harm and that she was a female and Mr Leo is a male.
 The Court ruled that Mr Leo was liable to supervision under section 43X of the Criminal Code, which subsequently meant that a supervision order was made pursuant to section 43Z of the Act. On 22 December 2008 Martin (BR) CJ made a custodial supervision order which was later confirmed and a review of the order was ordered to take place 15 June 2010 after the filing of a section 43ZK report.
 The order was varied on 18 June 2010 and confirmed on 6 August 2010. On 6 August 2010 reports were ordered to be filed and served on or before the next review listed 7 June 2011.
 The relevant documentation was filed and served on behalf of the Chief Executive Officers of the Departments of Justice and Health. A report together with a management plan for Mr Leo was written by Mr Daryl Murdock.
 On 7 June 2011 the matter was adjourned to gather further evidence, relisted for hearing on 7 September 2011 and subsequently for the hearing on 29 March 2012. The custodial supervision order remains to date in respect of Mr Leo.
 The past reviews of Mr Leo have been conducted on the basis that there is a firm intention to place him in the secure care facility upon that facility’s completion. In Mr Leo’s 2007 review Martin (BR) CJ said,
Construction of a secure care facility independent of a correctional centre is planned to commence in July 2010 and it is hoped that it will be in practical operation nine months later. Such a facility would be a suitable residential facility for Mr Leo.
 It was noted by Martin (BR) CJ that Mr Leo, “like a number of other offenders who have been declared liable to supervision by reason of their mental state, Mr Leo faces the prospect of remaining in gaol far longer than the offence would otherwise merit”.
 Martin (BR) CJ further noted the unfortunate situation Mr Leo is faced with because despite the best efforts of correctional staff and the Northern Territory Health Department, a prison setting is an inappropriate place for Mr Leo because he cannot receive the necessary treatment and support he requires that may be available to him if an appropriate facility, like the forthcoming secure care facility is made available, to accommodate him and others in his situation.
Mr Leo’s Circumstances
 Mr Leo is 30 years old from Ernabella. He was raised by his mother in Alice Springs with his four siblings. His mother now lives in Darwin.
 Mr Leo had no regular residential address. He has resided predominantly on an itinerant basis in the Alice Springs area for the much of his life. He has previously spent time living with his sister and other family members throughout Alice Springs.
 Like Mr Doolan he is currently subject to the Adult Guardianship Act.
 Mr Leo has a history of alcohol abuse, chronic liver disease, pancreatitis, epilepsy, and brain injuries resulting from an acquired head injury and alcohol abuse.
 Mr Leo has been regularly admitted to hospital, generally for poor control of seizures due to not complying with medical treatment.
 Mr Leo has significant impairments in processing information; maintaining attention; memory maintenance; and language skills. These are related to his brain injury and pre-existing cognitive difficulties due to alcohol abuse and withdrawal.
 Previously it has been identified that Mr Leo shows signs of “global cognitive impairment”, thus does not have the ability to live independently. He requires support in all areas of daily living. He has previously been non compliant with treatment for his conditions.
 Various reports indicate Mr Leo has an identifiable detachment from accepting responsibility for his behaviour and that this has been reflected in his behaviour inside the Alice Springs Correctional Centre. Since the periodic review report, dated 6 June 2011, Mr Leo has demonstrated a general reduction in the frequencies and severity of behavioural incidents of concern. There have still been 20 low level incidents of threatening behaviour and property damage and three high level significant incidents including the reported assault of an inmate. At times he has been placed in maximum security.
 The material before the Court indicates Mr Leo has spent more than 50 percent of his time in custody in the high support unit which enables him to engage in regular activities with the support of prison staff.
 In addition to the filed material, Ms Leigh Smith told the Court she had observed Mr Leo over two days in October 2011 and liaised with other professionals engaged with Mr Leo including Mr Murdock. Ms Leigh-Smith was well acquainted with Mr Leo’s difficult medical and behavioural issues. She said that over time there had been a decrease in Mr Leo’s capacity to cope with the custody environment; that long term cognitive deterioration was inevitable; there was no real hope for improvement of his mental health; his insight had decreased over time; he wants to return to his community; and that he does not have insight into supports that may be available nor into his capacity to self monitor or self regulate.
 Ms Leigh-Smith told the Court Mr Leo lacks the capacity to tolerate the normal stresses of life. The epilepsy and related seizure activity has been identified as associated with this lack of capacity. For Mr Leo to be catered for within a community based setting there would need to be a well resourced, well designed facility with well qualified staff available. The least restrictive means in her view would provide the most effective support. Ms Leigh-Smith adhered to conclusions from her earlier report:
My concern is that Mr Leo’s capacity to move through the treatment model towards a less restrictive environment is likely to be problematic due to the complexities of his cognitive and neurological impairments, and have an impact upon his capacity for self monitoring and self regulation.
Whilst the long term goal identified by A and DP is for Mr Leo to reside in a community based setting, ongoing detention in a custodial setting is not the basis of best practice for forensic disability and is not required to manage this effectively. Maintaining Mr Leo in a custodial setting appears to be based upon resource issues rather than what is in Mr Leo’s best interest”.
 Ms Leigh-Smith supports the transition of Mr Leo from custody to a community based centre. Her view is Mr Leo’s condition has not improved in the five years he has been in custody but rather has deteriorated. She assumes deterioration in his mental health as likely to be reactive to his environment.
 Ms Leigh-Smith agreed alcohol can be a trigger for Mr Leo’s behaviours; she agreed Mr Leo could benefit from a goal orientated therapeutic service in a facility other that Alice Springs Correctional Centre. She agreed the facilities she would envisage would require lock down areas to avoid harm to staff or others.
 Mr Murdock told the Court he expected there needed to be more work with Mr Leo to have him motivated to engage with more group activities and a non disability focus group including family members both within the correctional setting and outside so that he could move through to more day release programs. He reported that Mr Leo sometimes opts out. He is less involved with therapeutic activities. He recommended the day release program be continued with Mr Leo, but with more focus on engaging with family members or a family mentor.
 He agreed that between 2008 and 2011 not a lot occurred in terms of programs for Mr Leo. He said this was due to resources and staffing. He said there was a lack of follow through on previous plans. He said the high support unit at Alice Springs Correctional Centre housed around 14 other inmates. He said the courtyard area that Mr Leo and Mr Doolan go into at times was about the size of the Alice Springs Courtroom. He was aware both supervised persons are in a high security facility adjacent to persons who have been convicted of crimes.
 He agreed Mr Leo’s lack of involvement in programs may be related to depression, noting there had been a spike in his aggression. He accepted Mr Leo experiences feelings of isolation. He said Mr Leo craves company of family. His understanding was Mr Leo had not been taken into Alice Springs or into the community as part of the day release program. He said this was because he had not completed the initial stages of his program and because of the issues of risk management. He said the plans have been reviewed over the last four years; they have taken a long time to develop. He thought overall there were some good behavioural outcomes for Mr Leo and he was no longer the same degree of risk as previously. He agreed that instances of his aggressive behaviour could be caused by his circumstances at different times, however he said the majority of incidents had been pre and post seizure responses. Mr Murdock maintained his view that without a secure and dry environment Mr Leo was not suitable to be transitioned into the community. He also adhered to his view that the prison is far from an ideal placement.
Issues Arising From The Evidence Given on 29 March 2012
 I had the benefit of hearing evidence from Mr Steven Pennington; Ms Catherine Leigh-Smith and Mr Daryl Murdock. Some of the evidence has been summarized above. Ms Leigh-Smith’s evidence was helpful in identifying best practice in difficult cases. She identified lack of resources as an issue. Mr Daryl Murdock, who has a lengthy history working in behaviour management and with the provision of disability services, gave a significant amount of detailed evidence further to his reports before the Court. I was impressed with Mr Murdock’s commitment to improving the situation for both supervised persons and his willingness to consider different propositions about their circumstances and future plans for them.
 Broadly, the evidence points to a need to transition both supervised persons to appropriate community care; there is an ongoing need for security and a high level of care; Mr Doolan is more amenable to that process at this time; alternatively, both persons need to be assessed as soon as possible for the Secure Care Facility.
 At the time of the hearing Mr Pennington had recently been appointed as the Acting Senior Manager for Central Australia, Aged and Disability. Mr Pennington explained a number of issues in relation to difficulties appointing staff to the forensic disability team that provides services to those with contact in the criminal justice system.
 Tendered through Mr Pennington is the document “Secure Care Services for Adults” setting out the development of Secure Care Facilities for persons at high risk. In particular, it sets out plans for group homes (8 beds each), one in Darwin and one in Alice Springs. The document also speaks of proposed relevant legislation in relation to security of persons in community care. I cannot have any significant regard to that proposal at this stage. The Court must deal with the circumstances, including legislative arrangements, as they are.
 Mr Pennington has not had any direct contact with Mr Doolan or Mr Leo. He qualified the document “Secure Care Services for Adults” as containing aspects of a plan but not an individualised plan; he agreed it contains expectations in relation to development of the service. As the document refers to the Mental Health and Related Services Act, Mr Pennington was asked whether the stabilisation and assessment services would apply to either Mr Leo or Mr Doolan. Mr Pennington said not to his knowledge. He believed there would be eight beds for mental health clients and eight beds for aged and disability clients. He agreed the category of secured care group homes may apply to Mr Leo and Mr Doolan. He agreed his understanding was there was high demand for places in the proposed facility. He could not answer whether the capacity of the proposed facility would cover demand.
 Counsel for the Chief Executive Officers confirmed the secure care facility is near completion however was yet to obtain its occupancy certificate. He submitted Mr Doolan and Mr Leo could potentially be accommodated in the secure care facility upon it becoming operational. Although there had been delays earlier, it was submitted the fact that the new facility is almost completed represents substantial progress.
 Mr Grace QC pointed out that similar submissions have been made in the past about the new facility. Given that, it was submitted that three monthly reviews ought to be conducted to monitor both Mr Doolan’s and Mr Leo’s progress towards a non-custodial community based supervision order. It was submitted this would also facilitate a place for each of them in the secure care facility once it is available.
 As noted by Martin (BR) CJ both persons have spent more time in custody, and at times in a high security unit of the prison, than their crimes would ordinarily merit. Each at times becomes significantly frustrated and desperate. It is of significant concern that during some periods Mr Leo may have deteriorated, thus making it more difficult for him to pass through the planned stages to alternative arrangements. Mr Murdock, who closely monitors each of the supervised persons, emphasizes the prison environment is not appropriate. Plans need to be implemented to see that the goal of alternative appropriate arrangements, consistent also with the requirements of the Criminal Code can be achieved as soon as possible, respecting the need for incremental change.
 Given the evidence indicated there would be a review over the months following the hearing, I agreed further reports should be before the Court at around the conclusion of three months.
 These reasons, incorporating a brief summary of the process thus far will be forwarded to counsel for all parties, prior to the mention on 5 July 2012.
 The Queen v Doolan  NTSC 60; The Queen v Leo  NTSC 61.
 After considering a report submitted by an appropriate person under section 43ZK, if the court considers it is appropriate, the court may conduct a review to determine whether the supervised person the subject of the report may be released from the supervision order.
 Report of Ms Catherine Leigh-Smith, dated 19 December 2011.
 16 March 2012, P6.
 5 March 2011.
 On 19 November 2009 by Martin CJ.
 Report by Dr Kathryn Hoskin dated 23 December 2010.
 Submissions on behalf of the CEO Department of Health and Families, dated 3 November 2009.
 19 March 2012.