Corbo v The Queen - [2022] SASC 75

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

CORBO v THE QUEEN
[2022] SASC 75
Judgment of the Honourable Justice Stanley
22 July 2022
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
This is an application for variation of a supervision order and release on licence pursuant to s 269P(1) of the Criminal Law Consolidation Act 1935 (SA).
The applicant was declared liable to supervision after having been found not guilty on the grounds of mental incompetence in respect of three counts of murder, two counts of attempted murder, and one count of aggravated threatening life. A limiting term of life was fixed, and the applicant was committed to detention.
The applicant applies for a variation of the terms of the supervision order and release on licence to permit periods of accompanied day leave within the grounds of Glenside Hospital for a maximum of one hour at a time.
Held:
1. The application for variation of the supervision order and release on licence is allowed.
2. The applicant will be permitted periods of accompanied day leave for a maximum of one hour at a time, provided that he is accompanied at all times during such periods of leave by at least two members of staff from the forensic mental health service, and that he not leave the grounds of the Oakden Campus of James Nash House.
Criminal Law Consolidation Act 1935 (SA) ss 269NI, 269P, 269Q, 269R, 269T, referred to.
R v Wagner (No 2) [2018] SASC 109, considered.

CORBO v THE QUEEN
[2022] SASC 75
Criminal
STANLEY J:

This is an application for variation of a supervision order and release on licence pursuant to s 269P(1) of the Criminal Law Consolidation Act 1935 (SA) (the Act).
Background
On 17 May 2012, Donato Anthony Corbo (the applicant) was declared liable to supervision pursuant to Part 8A of the Act after having been found not guilty on the grounds of mental incompetence in respect of three counts of murder, two counts of attempted murder, and one count of aggravated threatening life. The conduct resulting in the charges occurred on 29 April 2011. A limiting term of life was fixed on 3 July 2012 and the applicant was committed to detention.
On 20 August 2021, the applicant applied for a variation of the supervision order pursuant to s 269P(1) of the Act. The applicant sought release on licence “for the limited purpose of accompanied leave into the community”.
On 20 May 2022, the applicant provided a draft of proposed conditions of release on licence which reflected a narrowing of the application and would permit periods of accompanied day leave for a maximum of one hour at a time. The proposed conditions of release on licence would not permit the applicant to leave the grounds of Glenside Hospital and would require that he be accompanied at all times during such periods of leave by at least two members of staff from the forensic mental health service.
Relevant Legislative Provisions
Division 4 of Part 8A of the Act provides a scheme for the disposition of persons who have been found not guilty of an offence on the grounds of mental incompetence and declared liable to supervision. Section 269NI of the Act requires that the paramount consideration of the Court in determining applications pursuant to Division 4 of Part 8A of the Act is to protect the safety of the community. The need to protect the safety of the community outweighs the principle that restrictions on a person’s freedom and personal autonomy should be kept to a minimum.
Section 269P(1) relevantly provides that at any time during the limiting term, the Court may, on the application of the defendant, vary or revoke a supervision order. The matters to which the Court is to have regard in determining such an application are set out in s 269T of the Act which provides:
269T—Matters to which court is to have regard
(1)     In deciding proceedings under this Subdivision, the court should have regard to—
(a)     the nature of the defendant's mental impairment; and
(b)     whether the defendant is, or would if released be, likely to endanger another person, or other persons generally; and
(c)     whether there are adequate resources available for the treatment and support of the defendant in the community; and
(d)     whether the defendant is likely to comply with the conditions of a licence; and
(e)     other matters that the court thinks relevant.
(2) The court cannot release a defendant under this Subdivision, or significantly reduce the degree of supervision to which a defendant is subject unless the court—
(a)     has considered a report (an expert report) prepared by a psychiatrist or other appropriate expert who has personally examined the defendant, on—
(i)      the mental condition of the defendant; and
(ii) the possible effects of the proposed action on the behaviour of the defendant; and
(b)     has considered the report most recently submitted to the court by the Minister under this Subdivision; and
(ba) is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release; and
(c)     has considered the report on the attitudes of victims and next of kin prepared under this Subdivision; and
(d)     is satisfied that—
(i)      the defendant's next of kin; and
(ii)     the victim (if any) of the defendant's conduct; and
(iii) if a victim was killed as a result of the defendant's conduct—the next of kin of the victim,
have been given reasonable notice of the proceedings.
(2a) The court may, if it considers it necessary for the purpose of assisting the court to decide proceedings under this Subdivision, require further additional expert reports to be provided to the court.
(3)     Notice need not be given under subsection (2)(d) to a person whose whereabouts have not, after reasonable inquiry, been ascertained.
Psychiatric Reports
For the purposes of this application, the Court was furnished with three psychiatric reports prepared pursuant to s 269T(2)(a) of the Act and the most recent annual psychiatric report prepared pursuant to s 269Q(2) of the Act.
Psychiatric reports were prepared by Dr William Brereton, Dr Jacqueline Condon and Dr Catherine Crouch. While each of these psychiatrists have engaged with the applicant during his time as an inpatient, Dr Brereton has been his treating psychiatrist for most of that period. It is convenient to set out the applicant’s background as contained within the reports before turning to the opinions expressed in relation to the current application.
The applicant is a 50-year-old male with diagnoses of schizophrenia and an intellectual disability. He has been an inpatient in the forensic mental health service since 3 May 2011. His schizophrenia is well managed with no relapses of illness since he commenced clozapine treatment. He is compliant with treatment, medication and staff directions, and there have been no episodes of aggression or violence since he was first admitted. He is behaviourally settled and has not exhibited any symptoms of psychosis for many years. His intellectual disability is a static condition that cannot be treated. The applicant’s level of intellectual reasoning and verbal comprehension is very impoverished. The combination of his poverty of thought, poor memory and difficulty expressing himself severely limits his ability to engage in, and respond to, therapy and rehabilitation.
There is broad agreement amongst the experts that the applicant’s prognosis is poor. While there has been no evidence of active positive symptoms of schizophrenia since very early in his admission, he suffers from significant and persistent negative symptoms of schizophrenia. He has severely impaired functioning and assessing his mental state is very difficult because he volunteers very little information. Over time, the applicant has become increasingly isolated and has demonstrated signs of institutionalism which is characterised by loss of skills, dependence on hospital routines, and a loss of knowledge of the outside world.
Dr Brereton is supportive of the narrowed application and expressed the opinion that it would be reasonable to allow the applicant to have leave on the grounds of Glenside Hospital while accompanied by two members of staff from the forensic mental health service. He stated that if the applicant was to have limited leave from the hospital itself, he would remain cooperative, follow staff directions, and be of a low risk of absconding or causing harm to others. With respect to the possible benefits of such leave, Dr Brereton said:
A programme of leave could be beneficial in the following ways: improve his physical health by increasing exercise; improve his motivation and engagement more broadly with rehabilitation; improve his cognition by presenting him with some novel experiences and greater structure to his time; and improve rapport with staff (typically patients are more inclined to conversation while out on leave).
Dr Condon expressed the opinion that the applicant’s prognosis is poor if his rehabilitation cannot be further enhanced with transition into the community. She stated that the purpose of accompanied leave would be to facilitate the redevelopment of social and communication skills, increase sensory stimulation to counter the effects of institutionalisation, occupational deprivation and environmental restrictions, and generally enhance his rehabilitation.
Dr Crouch expressed the opinion that the applicant’s rehabilitation will likely be a slow and prolonged process. She noted that there was evidence that his rehabilitation has largely stagnated and there are ongoing concerns that he will become further institutionalised. Allowing the applicant to have controlled and supervised leave from the ward would assist in minimising, where possible, the impacts of becoming further institutionalised.
The most recent annual psychiatric report was prepared by Dr Oliver Burgess. The history and observations recorded by Dr Burgess are consistent with what is addressed in the three psychiatric reports detailed above. Dr Burgess also expressed the opinion that the applicant’s rehabilitation may benefit from brief periods of escorted leave.
Victim and Next of Kin Counselling Report
The Court also received and has considered a report prepared by Anna D’Alessandro, a forensic social worker, pursuant to s 269R(1) of the Act. While it can be briefly stated that the applicant’s father, Giuseppe Corbo, is supportive of the application, the opinions of the victims and their next of kin as canvassed in the report require more substantial elaboration. Ms D’Alessandro spoke with Luc Mombers’ family, Joshua Grove, Brett Gibbons and unsuccessfully attempted to contact Travis Emms.
Frederika Mombers, Marcel Mombers and Alicia Stackleroth, the wife, son and daughter of deceased victim Luc Mombers, continue to suffer significant trauma and are opposed to the application. Their foremost concern is the prospect of encountering the applicant in the community. They also expressed a fear that the applicant could overpower those who accompany him during his periods of release and then pose a danger to them and others.
Joshua Grove is also opposed to the application which he views as a reward for “good behaviour” while detained. He highlighted the ongoing effort made by him and his family to manage and overcome the significant trauma caused by the offending. He stated that he feels powerless and insignificant in the context of the current application which he views as disrespectful to the victims. He requested that if the application is to be granted, the applicant be prohibited from entering the Adelaide central business district.
Brett Gibbons stated that he has “no distress” about the application and has nothing to put to the Court. Nonetheless, he asked that any conditions of release on licence prohibit the applicant from approaching or contacting him or his family.
Respondent’s Submissions
It is convenient to set out the respondent’s attitude with respect to the application before turning to the submissions of the applicant. The respondent is opposed to both the original application and the narrower revised position. Counsel for the respondent submitted that the Court ought to take a cautious approach to the application out of concern that the safety of the community will not be adequately protected by any form of release at this time. While conceding that the respondent’s position begs the question, ‘if not now, then when?’, it was submitted that this is not a question which the Court is required to consider.
The respondent expressed concern that the applicant is not ready for periods of leave because he does not appear to have engaged sufficiently with those providing treatment and because there appears to be a theme throughout the psychiatric reports about the difficulty in obtaining information from him. It was submitted that there appears to be an “information vacuum” with respect to the applicant’s understanding of his conduct, his illness, and how the two intersect. It is the respondent’s position that the psychiatric reports convey that the application reflects a mere hope that periods of leave may improve engagement and have some positive consequences for the applicant.
The respondent further submitted that Glenside Hospital is not a suitable location for limited release because it is in close proximity to a high-density residential area. The respondent’s position is that if the application is to be granted, the applicant should be confined to release only within the grounds of Oakden Campus of James Nash House which would provide a more secure and private walking area.
Applicant’s Submissions
The applicant characterised the narrower position as set out in the proposed conditions of release on licence as a “very cautious approach”. The applicant submitted that ‘if not now, then when?’ is a relevant question because each of the psychiatric experts support the current application. Counsel for the applicant said that to dismiss the application would be tantamount to ‘throwing away the key’ in circumstances where each of the psychiatric experts state that the applicant is a low risk, is unlikely to abscond, and is likely to follow staff directions. Limited release is necessary in circumstances where the applicant has become institutionalised and has experienced a decline in his cognitive functioning.
The application is made on the basis that it is hoped that accompanied leave will provide the applicant with an opportunity to engage with staff in a different environment which will lead to an improvement in his ongoing engagement and rehabilitation. While it was accepted that there is an “information vacuum”, this should not weigh against allowing the application because it is the result of the applicant’s limited cognitive function. The applicant submitted that any lack of participation in rehabilitation is not due to a lack of interest but rather the result of his intellectual impairment.
While the applicant’s position was that he should be permitted limited release within the grounds of Glenside Hospital because that location provides the most suitable housing in light of his needs, it was accepted that limited release within the grounds of the Oakden Campus of James Nash House can be accommodated if the Court considers Glenside Hospital to be inappropriate.
Consideration
In R v Wagner (No 2), Hinton J explained the effect of the statutory regime in Part 8A of the Act as follows:[1]
Ms Wagner was found not guilty of the murder of her mother on the grounds that she was mentally incompetent. The consequence of that conclusion is that she is not a convicted murderer and is not to be punished as a convicted murderer. In fact she is not to be punished at all. Rather the regime provided for in Part 8A of the CLCA focuses upon her detention in custody for the purposes of treatment, and, all going well, does so with a view to her being released into the community. Detention initially, but ultimately, effective treatment, is the means by which the community protects itself from any possible future risk that Ms Wagner poses. For some, particularly victims, it is difficult to accept that the mentally incompetent offender is not punished for the crime with which they were charged. And it is hard to standby silently as the mentally incompetent offender recovers their health and with it progressively their liberty without the offender, seemingly, suffering any consequence for their actions. But as a community it has been determined through the Parliament that we do not punish those whose offending is the product of mental illness. That is not to ignore the victim. The attitude of the victim to any significant variation of a suppression order must be taken into account.
[1] [2018] SASC 109 at [69].
The licence conditions sought by the applicant are very restrictive and amount to a minor change to the circumstances of his detention. He has now been detained for more than a decade. While he has limited insight into his illness as a result of his intellectual impairment, he has complied with his treatment regime. He has become institutionalised and is at risk of this becoming so entrenched that the prospects for his rehabilitation will be negligible if steps are not taken to promote and enhance that statutory object.
Avoiding the risk of the applicant endangering another person in the future depends on his continued compliance with his treatment regime and the level of supervision to which he is subject. The history of his detention and the psychiatric evidence satisfy me that, subject to one matter, the change that he seeks to the circumstances of his detention will mean that he continues to remain a low risk of harm to others. That is the uncontradicted evidence of the psychiatrists in their reports.
The exception that I have referred to concerns the location at which the applicant will be permitted to undertake periods of accompanied leave. The applicant seeks licence conditions which would permit him to walk around the grounds of Glenside Hospital accompanied by two members of staff from the forensic mental health service. While opposing the application in its entirety, the respondent submits that if the Court is disposed to allow the application, Glenside Hospital does not provide an adequate buffer so as to satisfy the paramount consideration as prescribed by s 269NI of the Act, namely, protecting the safety of the community. In those circumstances the respondent submits that periods of accompanied leave should only occur within the grounds of the Oakden Campus of James Nash House. In my view it is appropriate, having regard to the requirements of s 269T of the Act, that the proposed conditions of the applicant’s release on licence be modified accordingly.
In the circumstances I am satisfied that adequate resources are available to accommodate release on licence with conditions which would limit the applicant to the grounds of the Oakden Campus of James Nash House. Further, I am satisfied that he will comply with the terms of the variation and will not exploit the changed circumstances by attempting to abscond.
In arriving at this conclusion, I have had regard to the attitudes expressed by Frederika Mombers, Marcel Mombers, Alicia Stackleroth, Joshua Grove and Brett Gibbons. The licence conditions that I intend to impose do not, in my view, create an appreciable risk that the victims and next of kin will encounter the applicant in the community. That could only occur if he was to abscond. The risk of that occurring is slight. Even if it did occur, it is highly probable that the applicant would encounter any of the victims or their next of kin. In the circumstances it is unnecessary to impose any of the additional licence conditions proposed in Ms D’Alessandro’s report.
Conclusion

I would allow the application for variation of the supervision order and release on licence. I would order that the applicant’s conditions of release on licence permit periods of accompanied day leave for a maximum of one hour at a time, provided that the applicant is accompanied at all times during such periods of leave by at least two members of staff from the forensic mental health service, and that he not leave the grounds of the Oakden Campus of James Nash House.