IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
Case No. CR-21-02021

DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution	
		
v		
		
ALFRED RUTHERFORD (a pseudonym)	Accused	

---

JUDGE:	His Honour Judge Rozen	
WHERE HELD:	Melbourne	
DATE OF HEARING:	29 September; 20 October; 23 November 2022	
DATE OF RULING:	1 December 2022	
CASE MAY BE CITED AS:	DPP v RUTHERFORD (a pseudonym)	
MEDIUM NEUTRAL CITATION:	[2023] VCC 2327		

REASONS FOR JUDGEMENT
---

Subject:	CRIMINAL LAW – CMIA DISPOSITION
Catchwords: 	Not guilty because of mental impairment – Disposition in dispute – Non-custodial supervision order – Unconditional release not appropriate 
Legislation Cited:	Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic); Mental Health Act 2014 (Vic); Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:	NOM v DPP & Ors (2012) 38 VR 618; Fowler (a Pseudonym) v Secretary to the Department of Health [2014] VSCA 231; RJE v Secretary to the Department of Justice [2008] VSCA 256
Judgement:	Non-custodial supervision order imposed

---

APPEARANCES:
	Counsel	Solicitors	
For the DPP	Ms F. Holmes	Office of Public Prosecutions	
			
For the Accused	Mr G. Cooper	Victoria Legal Aid	

HIS HONOUR:

1	Alfred Rutherford, who is currently 45 years of age, has a history of mental illness dating back to 2013. He is charged that on 27 and 28 November 2020, he committed serious criminal offences in Swan Hill.  The alleged offences are aggravated burglary contrary to s 77 of the Crimes Act 1958 (Vic) (‘Crimes Act’), causing injury intentionally contrary to s 18 of the Crimes Act, and causing injury recklessly contrary to s 18 of the Crimes Act.  
2	At his arraignment on 27 July 2022, Mr Rutherford pleaded not guilty to the three charges. The court received a mental impairment summary of prosecution opening dated 25 July 2022, which sets out the relevant circumstances of the alleged offending.  The following is an extract from that document:
On 5 July 2020, Caroline Jane, Ms Jane, witnessed the accused having an episode in the common area of 96 High Street, Swan Hill.  Police and ambulance attended and the accused was taken to Swan Hill Hospital.  
On 27 November 2020, Ms Jane returned to her home at [omitted] Swan Hill.  The accused approached her unit, wanting to come inside.  She observed the accused, Mr Rutherford, was shirtless and appeared agitated.  Ms Jane declined the accused's invitation to his unit but did provide her phone number upon request.  
Ms Jane's phone repeatedly received phone calls from a number which she believed to be the accused.  Her anxiety worsened and she experienced heart palpitations, so she called an ambulance.  The ambulance arrived and Ms Jane asked to go to hospital.  When she was about to walk to the ambulance, the accused approached her.  He was persistent in offering to enter her unit to collect her personal belongings for hospital.  He also wanted to be advised when she was discharged from hospital and to provide her with a lift home.  When Ms Jane was in the ambulance, the accused knocked on the vehicle, at one point starting rocking the ambulance from side to side.
Later that day, after 11 pm, the accused entered [omitted] Swan Hill, where complainant Fiona Manners resided.  Ms Manners is a 52-year-old woman with Downs Syndrome.  The accused kick the door to the unit, breaking the lock mechanism and gained entry. Once inside, he encountered Ms Manners in the lounge room. The accused was naked. Ms Manners told the accused to leave. He struck Ms Manners to the head multiple times with a wine bottle. Ms Manners also described being kicked in the stomach.  During the attack, Ms Manners' glasses and Apple iPad were damaged.  Ms Manners kicked the accused twice and told him to get out. The accused left the unit.  That is Charge 1, aggravated burglary.  
Following the assault on Ms Manners, the accused rang Triple 0 at 11.53 pm. Police attended the address a short time later. The accused ran at police naked and holding a wine bottle above his head. He was tasered. Unable to be subdued, he punched Senior Constable Brown. He was restrained and transported to hospital under s 351 of the Mental Health Act 2014 (Vic) (‘Mental Health Act’). 
At approximately 1.41 am, Ms Manners called her carer, Ms Purton.  Ms Purton arrived to find Ms Manners vomiting in a bucket. Ms Manners identified the accused as a resident of Unit 2, that being Mr Rutherford. Ms Manners was taken to hospital where she remained for eight days whilst receiving treatment.
She suffered the following injuries, a right forehead laceration, a 2 centimetre haematoma on the left side of the head with abrasion, several loose teeth which were subsequently removed, bleeding from the mouth, concussion and post-concussion symptoms, amnesia, eye swelling, external bruising and abrasions, and fracture to the bone above the upper teeth and the cheek bone 
3	Mr Rutherford has been on strict bail conditions since 17 December 2021.  The special conditions of his bail include:
(a)	that he live with his mother, Angela Rutherford, in Ultima;
(b)	that he engage with the Swan Hill Community Mental Health Service and follow all recommendations for treatment;
(c)	that he not leave his mother's property unless accompanied by an adult family member or staff member from Mind Australia Swan Hill or Bendigo Community Mental Health Services; and
(d)	that he not enter Swan Hill unless required to attend a medical or mental health appointment.  
4	On 3 October of this year, at the request of Mr Rutherford and with the agreement of the prosecution, I varied Mr Rutherford’s bail by replacing the conditions at (c) and (d) above with the following condition:
(a)	that he not enter Swan Hill unless accompanied by an adult family member or a staff member from Mind Australia Swan Hill or Bendigo Community Mental Health Services.  
5	I will return to discuss the significance of these bail conditions later in these reasons.
Mental Health
6	At the initial hearing of this matter, counsel for both Mr Rutherford and the DPP submitted that based on expert medical evidence, the court should be satisfied that a defence of mental impairment is available to Mr Rutherford.  Section 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘C(MI) Act’) provides that:
If a person is charged with an indictable offence and, before the empanelment of a jury, the prosecution and the defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear the evidence and—
(a) if the trial judge is satisfied that the evidence establishes the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded; or
(b) if the trial judge is not so satisfied, must direct that the person be tried by a jury
7	The court received two reports in this regard, a report dated 7 March 2022 prepared by Dr James Belshaw, consultant forensic psychiatrist, Community Forensic Mental Health Services,  and a report dated 1 November 2021 prepared by Dr Prashant Pandurangi, forensic psychiatrist. 
8	Dr Belshaw, who had prepared his report at the request of the OPP, interviewed Mr Rutherford for approximately 130 minutes on 24 February 2022.  Dr Belshaw also reviewed a range of Mr Rutherford psychiatric treatment records.  Dr Belshaw concluded that Mr Rutherford has an established diagnosis of schizoaffective disorder. He noted that Mr Rutherford had suffered from a manic relapse in July 2020 in the context of approximately 12 months of non-compliance with his medication. 
9	Dr Belshaw’s ultimate conclusion is set out at paragraphs 97-100: 
97. According to my assessment there was sufficient evidence to conclude that on 27 November 2020 Mr Rutherford was suffering from another rapid and characteristic relapse of his SAD. Symptoms of this disorder appeared to last, despite treatment with antipsychotic medication in restrictive mental health and custodial settings, until at least 29 December 2020.
98. Based upon my assessment and examination of the collateral documentation I believe that there was a nexus between Mr Rutherford’s psychotic and manic symptoms at the material time and his behaviours at the time of the alleged offending. Primarily this was related to his disorganised, delusional beliefs and confirmatory auditory hallucinations that he needed to have sex with female neighbours and attack police to appease a personification of his psychotic experiences (‘god’) at which time he would be rewarded in some way, for example by being given special powers (to time travel) or become Jesus. Although indirectly contributory to his manic relapse, I did not find that alcohol consumption was a significant factor which influenced his behaviour at the material time.
99. In relation to the alleged offences of which Ms Fiona Manners was the victim, there was evidence that Mr Rutherford did know the nature and quality of his conduct at the material time. In relation to the alleged offences of which Constable David Brown was the victim, there was also evidence that Mr Rutherford knew the nature and quality of his conduct at the material time.
100. However I believe that due to the influence of active symptoms of his schizoaffective disorder he was not able to reason with a moderate degree of sense and composure as to the wrongfulness of his conduct in relation to Ms Fiona Manners and Constable David Brown
10	Dr Belshaw recommended that Mr Rutherford ‘should therefore have the defence of mental impairment, as set out in Section 20 of the [C(MI) Act] available to him’. 
11	Dr Prashant Pandurangi, Forensic Psychiatrist, prepared a report about Mr Rutherford for Mr Rutherford’s solicitors. In the report dated 1 November 2021, Dr Pandurangi explains that he interviewed Mr Rutherford by video link on 25 August 2021. Dr Pandurangi had access to the brief of evidence, records of Bendigo Health and Justice Health medical records. 
12	Dr Pandurangi concludes that ‘there is ample evidence, from his own account and collateral information, to suggest that Mr Rutherford was suffering from acute psychosis at the time of the alleged offending’.
13	Dr Pandurangi also concludes that, in his opinion, Mr Rutherford was ‘clearly acutely unwell’ at the time of the alleged offending:
In my opinion, at the time of the alleged incident, he was clearly acutely unwell. It is unlikely that he would have engaged in the conduct if he was not floridly psychotic and there are no other factors in his background which indicate a history of serious violence when he is not mentally unwell. In my view, his acute mental illness was both necessary and probably sufficient to explain the alleged offending
14	Dr Pandurangi’s ultimate conclusions are set out at paragraphs 64-66:
64) I have considered the availability of a mental impairment defence as set out in section 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. At the time of the alleged offending, Mr Rutherford suffered from a schizoaffective disorder which would be considered a mental impairment and would satisfy the concept of the disease of the mind, within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.
65) As noted earlier there is ample evidence, from his own account and the collateral information, to suggest that Mr Rutherford was suffering from acute psychosis at the time of the alleged offending. On balance, I believe that he would have been aware of the nature and quality of his conduct, although he could not explain the assault on Ms Manners.
66) His conduct at the time of the alleged incident, was completely driven by his underlying floridly psychotic mental state, which included grandiose and bizarre delusions and command auditory hallucinations from a supernatural entity. His judgement would have been impaired and in my view, he would have been unable to reason with a moderate degree of sense and composure, as perceived by reasonable people that his conduct, which constituted the alleged offending, was wrong. In other words, there is no indication that he would have acted in such a way if he was not mentally unwell or there is any other discernible motivation other than underlying psychotic thought processes which explains the alleged offending. So, I believe a mental impairment defence is open to Mr Rutherford, for his current charges. Ultimately, this is a matter for the Courts to determine, rather than the Expert Witness.
15	In light of their reports and findings, I found Mr Rutherford not guilty of the three offences because of mental impairment pursuant to s 20(4)(a) of the C(MI) Act.  I concluded on the balance of probabilities and based on my review of the two psychiatric reports, that at the time he engaged in the conduct giving rise to the charges, Mr Rutherford was suffering from a mental impairment that had the effect that he did not know the conduct was wrong, in that he could not reason with a moderate degree of sense and composure whether the conduct, as perceived by reasonable people, was wrong.  Having reached this conclusion, I am required to find Mr Rutherford not guilty because of mental impairment.
Disposition – In Dispute
16	I turn then to the matter that is in dispute and that is disposition of Mr Rutherford’s case. Section 23 of the C(MI) Act provides that in these circumstances, I must either declare that Mr Rutherford is liable to supervision or order, or that he be released unconditionally.  
17	If I declare that Mr Rutherford is liable to supervision, I must make a supervision order that applies to him under part 5 of the Act.  Such an order may either be a custodial supervision order or a non-custodial supervision order.  Supervision orders are made for an indefinite term.   When making a supervision order, a court may direct that the matter be brought back periodically for review. 
18	Part 6 of the Act outlines the matters that a court must consider in determining which of the various orders to make in a particular case.  Of particular significance in part 6 is s 39, which relevantly provides:
In deciding whether to make, vary, or revoke a supervision order, 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
19	The Court of Appeal has explained that s 39, which it has described as a variant on the ‘principle of parsimony’, ‘requires a value judgment informed by the competing considerations stated in the provision’.
20	The determination of whether to impose a supervision order on Mr Rutherford or alternatively, to release him unconditionally, involves a discretionary judgment.  
21	In exercising the discretion, I am required to have regard to the matters set out in s 40(1) of the Act.  My consideration of those factors informs the general application of the s 39 principle of parsimony.  The matters to which the court must have regard pursuant to s 40(1) of the C(MI) Act are:
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
f)	any other matters the court thinks relevant.
22	Section 40(2) of the Act provides that a court may not order a person to be released unconditionally unless it has obtained and considered the report of at least one medical practitioner or registered psychologist who has personally examined the person, on the person's mental condition and the possible effect of the proposed order on the person's behaviour.  
23	At the conclusion of the initial hearing of the matter, I requested that Forensicare provide the court with a report prepared under s 40(2).  And as I was considering imposing a supervision order on Mr Rutherford, I also requested a certificate of available services pursuant to s 47 of the C(MI) Act. 
24	In response to these requests, the court received a report dated 14 September 2022 prepared by Dr Ria Zergiotis, consultant forensic psychiatrist, Forensicare,  and a certificate of available services dated 16 September 2022.
The Report by Dr Zia Zergiotis 
25	Dr Zergiotis has been a fellow of the Australian and New Zealand College of Psychiatrists since 2004.  She holds a Masters of Psychological Medicine from Monash University and completed a certificate in forensic psychiatry in 2011.  Dr Zergiotis has been a consultant psychiatrist with Forensicare since 2004 and worked in the non-custodial supervision order (‘NCSO’) program at Forensicare between 2006 and 2012.  She has extensive experience in the field of forensic psychiatry, having also worked at Thomas Embling Hospital and in the prison system.
26	In preparing her report for the Court, Dr Zergiotis interviewed Mr Rutherford for approximately 60 minutes via video link on 9 August 2022.  Mr Alexander Carmichael, the non-custodial supervision order clinical coordinator and Dr Thomas Yeatman, psychiatry registrar, were also present for the assessment. Dr Zergiotis also had access to the previously discussed reports prepared by Dr Belshaw and Dr Pandurangi, as well as the summary of prosecution opening.
27	Dr Zergiotis reports that Mr Rutherford explained that he had been acutely unwell at the time of his alleged offending in November 2020.  He had said that he had been experiencing “auditory hallucinations”  of a single voice which he believed had originated through television or the media and “that a single entity had been guiding me”. Dr Zergiotis also reported that Mr Rutherford believed the incidents would have been “totally avoidable” had he remained fully complaint with his medication.  
28	Mr Rutherford reported that his current medication regime was paliperidone 100 milligrams monthly, administered in a long acting depot formulation.  He denied any side effects. Mr Rutherford told Dr Zergiotis that his depot medication was a “lifetime thing”, and that he was ‘happy to stay engaged with the Swan Hill Community Health Service for the long run’. Dr Zergiotis considered that Mr Rutherford has ‘good insight into his offending and the importance of long-term treatment to ensure good mental health’.
29	Dr Zergiotis reports that Mr Rutherford’s major support is provided by his parents, with whom he lives.  Mr Rutherford told Dr Zergiotis that he was well engaged with the Swan Hill Community Mental Health Service and that his case manager attended his house every month to give his depot, and there was phone contact between home visits. Mr Rutherford is reviewed every three months by his psychiatrist, Dr Ravi Reddy.
30	Mr Carmichael spoke to Mr Rutherford' acting case manager as part of the assessment.  Mr Carmichael was informed that the treating service ‘would adopt an early intervention approach were Mr Rutherford to disengage from treatment in the future, and would consider applying the Mental Health Act, give the known risks in the case’.  
31	Dr Zergiotis was informed by the treating psychiatrist, Dr Reddy, of the following:
I had a phone discussion with Dr Reddy. Dr Reddy reported the following details:
•	Mr Rutherford’ mental state has remained stable since he was released from prison in December 2021, with no evidence of psychotic symptoms. He has been compliant with his paliperidone depot.
•	He is reviewed on a regular basis by his case manager, and Dr Reddy has reviewed him twice over the last few months and is scheduled to review him every three months or earlier if required. He was not aware of any difficulties with the team manager, Xavier, and Mr Rutherford.
•	There have been no risk issues identified, and the strict bail conditions have been assisting in monitoring Mr Rutherford in the community.
•	There was discussion regarding Mr Rutherford’ relapse signature in the past – when he has been non-compliant with medication, he usually relapses rapidly within a matter of days but has been able to mask acute symptoms and can present as guarded when he is acutely unwell.
•	He requires close monitoring by the treating team and will probably require a legal safeguard such as the MHA in the longer term to assist with adherence to treatment.
•	There would be a low threshold to place him on an Assessment Order under the MHA if he were to disengage from treatment and he is well known to the local area mental health service.
•	The relapse and admission to the inpatient in July 2022 was in the context of non-compliance with treatment, and his acute psychotic symptoms resolved quickly with aripiprazole depot, which had then been changed to oral aripiprazole at his request post discharge, when he became non-compliant again prior to the period of the index offence in November 2020. He had previously responded well to paliperidone in the past but had requested not to be prescribed this again due to reported side-effects
32	Dr Zergiotis explains that she used ‘structured clinical judgment’ to identify variables known empirically to be associated with risk of future violent offending.  While historical risk factors are relevant, they are ‘static’ and create the foundation of the risk assessment.  Clinical risk factors by contrast, according to Dr Zergiotis, are ‘dynamic and represent the patient's current presentation at the time of risk assessment’.
33	Dr Zergiotis assessed Mr Rutherford' risk of future violence as low, given the absence of clinical and risk management factors.  She described the ‘main scenario where Mr Rutherford may become acutely unwell again in future would be non-compliance with treatment, lapsing back into illicit substance use and/or sustain psychosocial stressors, and which has the potential to destabilise his mental state in the future and increase the risk of further offending in the community’.
34	Dr Zergiotis also gave oral evidence at a hearing on 29 September 2022 and confirmed that her ultimate recommendation that Mr Rutherford be unconditionally released was one that involved a lot of careful consideration.  She explained that all of the risk factors had been taken into account based on her interview with Mr Rutherford, reading the available material, and liaison with the treating team.   
35	Dr Zergiotis explained that there had been good engagement and good compliance with treatment:
In addition to all the psychological supports that are in place, family, his general practitioner, a very good strong NDIS plan that he's worked very proactively on, and his Mind worker, that he's engaged very well despite the bail restrictions, that have somewhat limited his community activities.  Really, it's as good as it gets if I can put it that way
36	The Court asked Dr Zergiotis whether she had a view about the appropriate duration of a short-term supervision order if the court was prepared to make one.  Dr Zergiotis referred to short-term non-custodial supervision orders of six to 12 months ‘for someone that's already low risk’. She explained that in the present case, such an order would play a ‘minimum role’ and would ‘very much be, at a distance, oversight’.   
37	I discuss Dr Zergiotis’s evidence further later in these reasons.
38	Returning to the Certificate dated 16 September 2022 provided under s 47 of the C(MI) Act, it states as follows:
Given the assessment of Mr Rutherford as outlined in the report of Dr Ria Zergiotis dated 14 September 2022, there are no appropriate treatments or services which can be provided by Forensicare for the supervision of Mr Rutherford
Views of Victims and Family Members
39	In a case such as the present one, the C(MI) Act makes provision for the court to be informed of the views of both victims of the person’s crimes and family members of the person. The court is required to consider any such reports.
40	I am satisfied that Mr Rutherford’s family members and Ms Manners have been given reasonable notice of this hearing as required by the C(MI) Act. 
41	The court may not order Mr Rutherford to be released unconditionally unless it ‘has considered any report of the family members or victims made under section 42’. Section 42 of the C(MI) Act relevantly provides:
 (1)     	For the purpose of—
(a) assisting counselling and treatment processes for all people affected by an offence; and
(b)  assisting the court in determining any conditions it may impose on an order made in respect of a person under this Act or in determining whether or not to grant a person extended leave- 
a family member of the person or a victim of the offence may make a report to the court.
(2)	A report by a family member or victim is to contain the views of the family member or victim on the conduct of the person and the impact of that conduct on the family member or victim.
42	The report envisaged by the section does not appear to be relevant to the question of whether a person should be unconditionally released.  Nonetheless, s 40(2)(d)of the Act requires a court to consider such a report before it can unconditionally release a person, and I have done so.
43	Two reports under s 42 were provided to the court.  The first was completed by Ms Jane Manners, a family member of Fiona Manners, one of the victims of Mr Rutherford's offending.  Ms Jane Manners describes the effect of Mr Rutherford' conduct on Fiona Manners as very damaging.  Fiona Manners suffered injuries to her face and required new glasses which were broken in the attack. She also needed dental treatment as her teeth were knocked out. Jane Manners states that it took Fiona many months to regain her confidence.  
44	In the section of the report dealing with the impact of the offending concludes as follows, 'As Fiona has Down Syndrome, she already faces enough life challenges without adding this. It has hugely impacted Fiona and her family'.
45	Section 3 of the report is headed 'Your views regarding the supervision order'.  The pro forma informs the person completing the report that the court 'will consider how the person feels about the current conditions of the supervision order and about possible changes to the supervision order'.  Ms Manners has completed this section of the form.  
46	It is apparent that this part of the form is not relevant to a case such as the present, where there is no extant supervision order.  Further, this part of the report form appears to deal with a subject matter that is not consonant with s 42(2) of the Act.  It does not report the views of the victim on the conduct of the person and the impact of that conduct on the victim.  I therefore rule that section 3 of the report of Jane Manners is inadmissible under s 45. 
47	The second report that was provided to the court was a report completed on 18 September 2022 by Mr Rutherford's mother, Mrs Angela Rutherford, and his father, Mr Reginald Rutherford.  Mr and Mrs Rutherford report that Alfred continues to live with them as he is required to do under his bail conditions, and they expressed the view that Alfred's current arrangements for his treatment are adequate.  
48	Mr Rutherford's parents expressed the concern that if his conditions were to change, their son may become unwell. They informed the Court that the family will continue to provide the support Alfred needs. Finally, they state that the family will contact the mental health team 'if we become aware Alfred was becoming unwell or non-complaint with his medication, or other conditions that have been set down'.  
49	They expressed the view that Alfred will maintain good health and will be able to live more independently in the community with the appropriate services that are in place at present.   
50	At the hearing of this matter on 20 October 2022, the Court asked Mrs Rutherford to clarify what she and Mr Rutherford meant about Alfred's conditions changing.  In response, Mrs Rutherford said, 'The bail conditions and his treatment plan, that's what I mean by that'.   When she was asked to expand on what conditions she was referring to, Mrs Rutherford responded, 'The medical side of it and his mental health team, being reviewed by them often and the doctors, if that were to change, I would be concerned'. She also stated that it is the oversight of Alfred by the mental health team that keeps Alfred well.
Submissions of the Parties Concerning Disposition
51	I turn to the submissions of the parties concerning disposition.  Mr Cooper, on behalf of Mr Rutherford, filed detailed written submissions in support of his contention that the appropriate order is an unconditional discharge. On Mr Rutherford' behalf, it was submitted that ‘having regard to the evidence of Dr Zergiotis, a supervision order would not advance the safety of the community any further than the present regime of treatment and support’.  
52	The following five factors were cited in support of this submission:
(a)	that Dr Zergiotis considers current supports are appropriate to support Mr Rutherford and to mitigate risk; 
(b)	Mr Rutherford is assessed as a low risk of future violence; 
(c)	Mr Rutherford' condition is in full remission; 
(d)	Mr Rutherford has no violent prior convictions; and, 
(e)	such a disposition is consistent with 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.
53	In oral submissions, Mr Cooper submitted that the evidence very strongly supports an unconditional discharge.  
54	Ms Holmes, on behalf of the prosecution, submitted that the evidence of Mrs Rutherford should be seen as a ‘flag of concern’ that if the current treatment regime is not mandated to a degree, ‘there is a real potential for Alfred to become unwell rapidly, and become a danger to himself and others’.   
55	Ms Holmes submitted that a short to medium non-custodial supervision order would be a step down from the onerous bail conditions which have been the absolute key to Alfred's compliance. Ms Holmes submitted that the concerns expressed by Mrs Rutherford were a critical aspect of the Court's determination as Mrs Rutherford seems to be the one who is exposed to Alfred the most and has the most insight into where it will go from here one way or another. Ms Holmes submitted that the court need only look at the report from Jane Manners to see how violent the assault on her sister was.
56	Ms Holmes submitted that the appropriate order is for a non-custodial supervision order of limited duration to enable the court to review Alfred's progress once the strict bail conditions are removed.
Consideration  
57	A court may only make a supervision order under the Act, whether custodial or non-custodial, where it is ‘necessary for balancing the safety of the community with the person's freedom and autonomy’.  As noted earlier, there are five mandatory considerations identified in s 40 of the Act.  
Section 40(1)(a) and (b) – the nature of the mental impairment and its relationship to the offending conduct  
58	Dr Belshaw concluded that Alfred suffers from schizoaffective disorder.  He has suffered from symptoms of this disorder since 2011 when he was 33 years old.  
Dr Belshaw considers the evidence is more compelling of clear and repeated manic episodes commencing in 2013.  Alfred had as many as 10 hospital admission between 2013 and 2020 for his mental health.  These placements were in secure extended care units and community care units.
59	In 2020, Alfred suffered from two manic relapses. The first was in July in the context of approximately 12 months of non-compliance with oral paliperidone, an antipsychotic. The second was in November 2020, shortly before and during the index offending. This led to Alfred undergoing compulsory admission to the Bendigo Hospital mental health in-patient unit under the Mental Health Act from 28 November to 22 December 2020. Alfred was recommenced on oral paliperidone tablets and received his first long acting injection form of the medication on 9 December 2020, to which he has responded well. This regime continued until August 2021, when Alfred requested a switch to oral medication.  However, he remains on the long form injectable medication.  
60	In relation to s 40(1)(b), Dr Belshaw concluded that there was a nexus ‘between Mr Rutherford' psychotic and manic symptoms at the material time and his behaviours at the time of the offending’.  He explained that this was primarily related to Alfred's ‘disorganised delusional beliefs and confirmatory auditory hallucinations that he needed to have sex with female neighbours and attack police to appease a personification of his psychotic experiences, God, at the time he would be rewarded in some way, for example, by being given special powers to time travel or become Jesus’. 
61	Dr Pandurangi similarly concluded there was ‘ample evidence to suggest that Mr Rutherford was suffering from acute psychosis at the time of the offending’.  And further, the acute mental illness was both necessary and probably sufficient to explain the alleged offending.
62	The central issue in this case concerns the application of s 40(1)(c) of the C(MI) Act.  The paragraph requires the court to have regard to whether Alfred is or would, if released, be ‘likely to endanger themselves and other person or other people because of his mental impairment’.  Endangerment is about the risk of harm.  The section requires the court to make an assessment of that risk.  Such an assessment much focus on the chance of harm materialising and not on the extent of the harm that may be caused if the risk materialises.
63	The critical consideration is the likelihood of the risk materialising and not the gravity of the harm in the event the risk eventuates.  The relevant risk here is the risk of Alfred having a manic episode and harming himself or someone else.  I consider that it is significant that Dr Pandurangi explains that Alfred's mental state tends to ‘rapidly deteriorate over the period of days during stressful periods on a background of sporadic non-compliance with medications’.  
64	The reference to ‘stressful periods’, in Dr Pandurangi's report, is important.  Mr Rutherford explained to Dr Pandurangi that the triggering stressor that precipitated his July 2020 episode was ‘managing a team in an online gaming community’.  I conclude that it may not take much to trigger a future episode, at least until more time has passed in which Mr Rutherford can demonstrate that he can remain complaint in the absence of his very strict bail requirements.
65	Dr Pandurangi notes that the placements in secure extended care units and community care units ‘indicates the persistent nature of the symptoms Alfred experiences and the level of psychosocial deterioration caused by the enduring mental illness’.  It is this enduring feature of the illness that causes me concern about future risk.
66	Turning to the evidence of Dr Zergiotis, I do not doubt that she has examined the questions she was asked to consider with great care. I accept that she is highly qualified and very experienced in assessing risk in cases such as the present.  
67	However, I note that in reaching her opinion that an unconditional charge is appropriate in this case, Dr Zergiotis understandably placed considerable weight on the views of Mr Rutherford's treating psychiatrist, Dr Reddy. It is significant that Dr Reddy informed Dr Zergiotis that although there had been no risk issues identified, ‘the strict bail conditions have been assisting in monitoring Mr Rutherford in the community’.
68	As noted earlier, one of these ‘strict bail conditions’ has been that Mr Rutherford ‘is to engage with the Swan Hill Community Mental Health Service and follow all recommendations for treatment’. Mr Rutherford has complied strictly with this condition, and the evidence before me is that this has been central to his compliance and thus his stable mental health.  Other conditions have severely restricted Mr Rutherford's freedom of movement.  He is well aware that if he breaches these conditions, his bail may be revoked.  Bail is thus a very strong incentive for Alfred to remain compliant.  
69	By definition, unconditional release will remove all of the limits that are in place that require Mr Rutherford to be compliant with his medication. Short of an order under the Mental Health Act, requiring him to submit to treatment, Mr Rutherford will be free to refuse treatment and his medication. He has on previous occasions expressed frustration with his antipsychotic medication. The risk is therefore not hypothetical.
70	As Ms Holmes submits, the person with by far the greatest exposure to Mr Rutherford on a day to day basis, is his mother, Mrs Angela Rutherford.  As noted earlier in these reasons, Mrs Rutherford has provided the Court with two emails setting out her involvement in supporting Mr Rutherford. She has also attended all the hearings in this court under the C(MI) Act and answered questions asked of her by the Court. Mrs Rutherford is ‘very concerned’ that if Alfred's conditions change, he may become unwell.  She further notes that in her experience, Alfred becomes unwell quickly and could potentially ‘become a danger to himself and others’.  This accords with the evidence of Dr Pandurangi and the evidence of the speed with which Mr Rutherford's health deteriorated in the lead up to the index offending.  
71	While I accept that Alfred is currently in full remission and motivated to remain well, the very violent attack on Fiona Manners, a 52-year-old woman with Down Syndrome, occurred just two years ago. Alfred was naked when he struck Ms Manners on the head several times with a bottle, and as noted her injuries were such that she needed hospital treatment.  
72	Importantly, this offending occurred only 11 days after Alfred was reviewed by a social worker from his mental health treating team.  On that occasion, the notes record that Alfred had ‘nil acute psychotic features’, his ‘thought stream and form were clear, logical, and goal directed’, and he requested a psychiatric review to consider ‘weaning off’ his antipsychotic medication, as he believed it hurts his body and ‘dulls everything’. The Bendigo health records recorded that Alfred hard reported full compliance with is oral medication in the months prior. 
73	The risk the Court is concerned with is the risk that Alfred could endanger both himself and others quite soon after becoming non-compliant with his medication.  While this may be unlikely while he is living with his parents and receiving regular visits from his treating team, an unconditional release will mean that Mr Rutherford will not have to live with his parents and will not even have to live in Swan Hill. Mr Rutherford lived and worked in Western Australia between 2003 and 2013. 

The Mental Health Act 2014 (Vic)
74	I turn to consider the Mental Health Act 2014 (Vic). In his submissions, Mr Cooper referred to the ability of Mr Rutherford's treating team to act under the Mental Health Act and subject Mr Rutherford to involuntary treatment as a way to control risk.  Dr Zergiotis placed some reliance on the indication that the treating service ‘would adopt an early intervention approach, where Mr Rutherford disengaged from treatment in the future, and would consider applying the Mental Health Act, given the known risks in this case’.
75	The Court of Appeal explained on the case of NOM that the entire regime provided for by the Mental Health Act is a relevant consideration in assessing risk in cases such as the present. The two acts, although different in intent and scope, ‘operate concurrently’.  However, one important difference between the two acts is that a person under a non-custodial supervision order made under the C(MI) Act is subject to the ultimate supervision of the court.  
76	In the case of Fowler, the Court of Appeal was not prepared to lift a non-custodial supervision order under the Act even though the person subject to the order was simultaneously subject to an order made under the Mental Health Act.  As the court noted, 'In the absence of the non-custodial supervision order, the person could refuse to take her medication and thus pose a danger to herself'.
77	Applying these principles to the present case, I take into account that it will be open to Alfred's treating practitioner to make an assessment order in relation to Alfred pursuant to s 29 of the Mental Health Act.  Such an order can be made if relevantly, Alfred ‘appears to need immediate treatment to prevent serious harm to the person or to another person’, and ‘there is no less restrictive means reasonably available to enable a person to be assessed’. Where an assessment order is made in relation to a person, the person may be compulsorily treated.  
78	However, despite the suggestion made to Dr Zergiotis that ‘an early intervention approach’ will be adopted in relation to Alfred, the Mental Health Act cannot be applied in this way, in my view.  In other words, the statutory criteria in s 29 of the Mental Health Act are either met or they are not, and if they are not then compulsory treatment cannot be required.  
79	An ‘early intervention approach’ taken in the absence of clear evidence of the need for immediate treatment to prevent serious harm would be unlawful under s 29 of the Mental Health Act and inconsistent with the principle of mental health set out in s 11(1)(a) of that Act.  
80	While the possible implementation of the Mental Health Act is a relevant factor in respect of the s40(1)(c) evaluation, it is of limited effectiveness for these reasons when compared to a NCSO.   
Should the Court depart from the view of Dr Zergiotis? 
81	Counsel for Mr Rutherford submitted that because the evidence of Dr Zergiotis is unchallenged, the court should be slow to depart from her risk assessment.  That was the assessment of an expert witness by the Court of Appeal in the case of RJE v Secretary to the Department of Justice, upon which Mr Cooper relied.  There, the court was concerned with a court's role under s 11 of the Serious Sex Offenders Monitoring Act 2005 (Vic).  Importantly, however, under that Act the expert's report was ‘the only matter which the court is obliged to take into account’.
82	Here, by contrast, the expert report obtained under s 40 is one of a number of matters that must be considered.  Other important matters are the reports of family members of the person and victims of the offence and ‘any other reports the court considers necessary’.
83	While a high degree of deference to the expert's view is still required, I consider that a broader range of matters are to be considered under the C(MI) Act than was the case under the Act that was the focus of the Court of Appeal's concern in RJE.  
84	In any event, while I am not prepared to release Mr Rutherford unconditionally at this time, I have taken into account the opinion of Dr Zergiotis that the non-custodial supervision order should operate in the background and do no more than is needed to ensure that the existing treatment regime is effective once the bail conditions are removed.  And the court will review the order in 12 months' time.  
85	My intention is for the non-custodial supervision order to act as what Ms Holmes described as a step down from the onerous bail conditions whilst still compelling Mr Rutherford to receive the treatment he clearly needs.  In this way, I am giving effect to the principle enshrined in s 39 of imposing minimal restrictions on Mr Rutherford's freedom consistent with the safety of the community.  
Section 40(1)(e) – whether adequate resources are available for treatment and support in the community 
86	As noted earlier in these reasons, the court requested a certificate of available services from the Secretary of the Department of Health and Human Services (‘the Secretary’) pursuant to s 47 of the C(MI) Act.
87	The first such certificate stated that in light of the report of Dr Zergiotis, there were no appropriate treatments or services which can be provided by Forensicare.  Having determined that I was considering making a non-custodial supervision order in respect to Mr Rutherford, and after receiving further submissions from him and from the DPP, on 4 November 2022, I required the Secretary to provide the Court with a further certificate pursuant to s 47(5).  
88	On 22 November 2022, I received a further certificate of available services under cover of a letter of that date from Ms Emma Burchell, senior legal counsel, Forensicare. The attached certificate signed by Mr Danny Sullivan, authorised psychiatrist, Victorian Institute of Forensic Mental Health, and Margaret Grigg, Chief Executive Officer, VIFMH and delegate for the Secretary, relevantly provides that:
Should the court decide to place Mr Rutherford on a non-custodial supervision order, they will receive treatment through their local treating psychiatrist at the Swan Hill Community Mental Health Service.  Their progress and mental health will be monitored through a delegate of the authorised psychiatrist of Forensicare at CFMHS as required by reference to clinical need and risk acuity.  Quarterly reports will also be obtained from their treating service.  Their progress and mental health will be reported to the court annually through the reports prepared by Forensicare.  The facilities and resources necessary to provide treatment and services are available
89	Ms Burchell's letter enclosed a document setting out six conditions that she explained ‘are typical of other non-custodial supervision orders supervised by Forensicare’.   Unlike community corrections order made pursuant to part 3A of the Sentencing Act 1991 (Vic), non-custodial supervision orders contain no mandatory conditions. 
90	I received submissions from Mr Rutherford in relation the proposed conditions.   Mr Cooper, on behalf of Mr Rutherford, maintained that Mr Rutherford should be unconditionally released.  In the alternative, he submitted that if an order was to be made, he did not object to the first five conditions stipulated.  However, he submitted that proposed condition 6, which is that Mr Rutherford ‘not leave the State of Victoria without the written permission of the authorised psychiatrist, or their delegate’, was unnecessary to manage risk, and contrary to s 39 of the C(MI) Act.
91	Mr Rutherford submitted that as he lives near the New South Wales border, such a condition impacts on his freedom and personal autonomy ‘much more so than other subject to supervision elsewhere in the State’. Having regards to s 39 of the Act, I accept this submission and will not impose proposed condition 6. As Mr Rutherford's counsel notes in this submission, Mr Rutherford will be unable to reside interstate without approval under the other five conditions.  Further, he has been compliant with all his bail conditions and has no history of absconding.  If the absence of such condition causes a concern during the life of the order, an application to vary the order by adding such a condition can be made to the court. 
Conclusion and Order  
92	In light of the above, I declare that Mr Rutherford is liable to supervision order under part 5 of the C(MI) Act. Mr Rutherford is released on the conditions specified in the non-custodial supervision order which I make today.  The nominal term of the order is 12 years and six months.  Pursuant to s 27 of the C(MI) Act, I direct that the matter be brought back before the court for review on 1 December 2023.
93	The conditions of the order are as follows:
(a)	that Alfred Rutherford be under the supervision of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or their delegate;
(b)	that Alfred Rutherford resides in a location known and approved by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or their delegate;
(c)	that Alfred Rutherford abides by the lawful directions of the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or their delegate;
(d)	that Alfred Rutherford complies with treatment, testing, and attends appointments as directed by the authorised psychiatrist of the Victorian Institute of Forensic Mental Health or their delegate; and
(e)	that Alfred Rutherford abstains from the abuse of alcohol and the use of illicit drugs.