The identity of the man, now in his mid-30s, cannot be disclosed due to court suppressions as he remains a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
Today in the Court of Appeal his lawyer Tony Ellis argued the man’s continued compulsory care was “lengthy and unlawful”, and he was appealing against an earlier decision by the High Court five years ago to decline a judicial review of the Act.
The Act enables provision of compulsory care for people who have an intellectual disability and have been convicted of an offence.
The man had applied for a judicial review as well as a declaration of inconsistency and public law compensations at the July 2017 hearing.
Ellis compared the man’s care order to preventive detention, one of the country’s most punitive sentences for offenders who pose a significant risk to the public.
Preventive detention is an indefinite sentence allowing an offender to be kept in prison until deemed safe to release.
Ellis said his client, referred to only as J, has had his life taken away from him and argued that the decision to uphold the order was “arbitrary” and “discriminatory”.
He believes J could live with his mother safely, and his “violent fantasies” are only that – fantasies.
But Court of Appeal Justice Patricia Courtney said the evidence showed these ideas were “not just harmless fantasies” and J had problems distinguishing fantasy from reality.
There was evidence J had hidden glass and knives, lunged at people’s feet and had cut the neck of a fellow student in 2000.
“[These fantasies are] not as benign as your submissions might suggest,” Justice Sarah Katz added.
Ellis pointed out the offending his client was originally deemed unfit to stand trial for, a charge of willful damage and being unlawfully in a person’s yard, carried a maximum of three months’ imprisonment.
According to Ellis, J has instead spent 18 years “detained” in a way that is “cruel, degrading, not just, and disproportionately severe”.
Reports from health professionals said J has violent fantasies, engages in violent behaviour and doesn’t understand that behaviour could cause harm to others, according to the 2017 decision of Justice Helen Cull in the High Court.
“J’s recorded violent fantasies include a belief he was James Bond and that he was on ‘missions’. These ‘missions’ included J breaking into a school building in 2004 to cut a teacher’s head off,” the earlier decision read.
Pictures drawn by J, as well as descriptions he has made of cutting off people’s feet or cutting their necks open concerned health professionals, as well as the lack of appreciating consequences, Justice Cull wrote.
His offending in 2004, described by the summary of facts, involved him going to a neighbouring property with a “large axe”, breaking two windows of a garage, as well as the windscreen of a car.
Justice Cull said in her 2017 decision there had been no miscarriage of justice in J’s case, and ruled it was not in the interest of justice to reopen the case or grant leave to appeal years after the order was imposed.
She said J was “not illegally detained as a care recipient” and the secure compulsory care that he is under is lawful.
“I find that the CPMIP and IDCCR Acts have not limited J’s rights unjustifiably and J’s treatment under those Acts has been undertaken lawfully,” Justice Cull said in the decision.
The appeal continues tomorrow.
