When a court considers an application to vary a custodial supervision order to a non-custodial supervision order under s 32 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), the serious endangerment test in s 32(2) requires a distinct determination separate from the discretionary considerations in ss 39 and 40(1). A prior grant of extended leave by another judge is not determinative of a variation application, no change in circumstances is required, and no onus of proof rests on the applicant. The s 39(1) principle of minimum restriction on freedom must be actively applied and its influence on the decision articulated. The majority and Macaulay AJA differed on whether s 32(2) is answered after the s 40(1) factors are weighed (majority) or as a separate gateway before the discretion is exercised (Macaulay AJA).
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