Morgan v The Queen - [2013] SADC 169

District Court of South Australia
(Criminal: Application)
MORGAN v THE QUEEN
[2013] SADC 169
Judgment of Her Honour Judge Davey (ex tempore)
11 December 2013
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
The applicant sought release on licence pursuant to s269P(1) of the Criminal Law Consolidation Act, 1935.
The Court ordered release on licence subject to conditions.
Criminal Law Consolidation Act 1935 ss 269O, 269P, 269Q, 269S and 269T, referred to.

MORGAN v THE QUEEN
[2013] SADC 169

Dylan Yves Morgan has applied for a variation of the supervision order made by the Supreme Court on 19 August 2011. The order was made by the Supreme Court (Court of Criminal Appeal) because there was an error in respect of the hearing at first instance and an appeal to the Court of Criminal Appeal set aside the original orders made.
The Court of Criminal Appeal found that the objective elements of the offence of attempting to endanger life were established. Mr Morgan was declared liable to supervision pursuant to part 8A of the Criminal Law Consolidation Act 1935 (CLCA). The court made a supervision order committing him to detention and fixed a limiting term pursuant to s 269O(2) of the CLCA.
The objective elements of the offence of attempting to endanger life are that on 7 June 2010 Mr Morgan attended at the Caltex Service Station Hutt Street, Adelaide while smoking a cigarette. Mr Morgan held a cigarette lighter to a petrol pump hose and attempted to dispense petrol from the pump. Because the pump had not been authorised for use he was, fortunately, unable to dispense much petrol. He then lit a residual amount of petrol that was in the hose and decamped from the service station. A member of the public and the console operator were inside the service station during the incident. Fortunately, the console operator was able to extinguish the flames.
Mr Morgan has a mental illness which is described in detail in a number of psychiatric reports. The short description is that he suffers from chronic schizophrenia.
The Court of Criminal Appeal fixed a limiting term of five years which was reduced, having regard to the time Mr Morgan had spent in custody. Accordingly, the court made a supervision order committing Mr Morgan to detention for a period of three years and 10 months from 19 August 2011.
The present application is made pursuant to s 269P of the CLCA. On 5 June 2013 the application was made for Mr Morgan’s release on licence pursuant to s 269P(1) of the CLCA. Since the detention order was made Mr Morgan has been continuously detained at James Nash House, either at Oakden or at Glenside. The application by Mr Morgan was varied on 26 June 2013, such that the application is now for release on licence to the Inpatient Rehabilitation Services at the Glenside campus and, thereafter, into the community at the discretion of the Director of Inpatient Rehabilitation Services Glenside Hospital.
I ordered the preparation of three psychiatric reports pursuant to s 269T(2)(a) of the CLCA. I have received and considered those reports. I have also received a number of updated additional reports from Dr Nambiar with respect to this matter. I have also had the benefit of excellent and practical submissions from both counsel on the numerous occasions when the matter has come before me.
The most recent report from Dr Nambiar is comprised in the annual psychiatric report that is required pursuant to s 269Q(2) of the CLCA. That report of Dr Nambiar is dated 31 October 2013. I also received a report setting out the views of the victims and the applicant’s next of kin. As to that report, there is no objection as to the application.
As I have mentioned, this matter has come before me on a number of occasions, principally because there were difficulties with respect to the availability of appropriate accommodation and also because of issues as to the terms of the licence ordered. The opinions of all three psychiatrists are to the effect that Mr Morgan has now stabilised and that providing he remains compliant with his medication it is appropriate that he be released to a less stringent regime and be able to avail himself of the greater rehabilitation opportunities available in the Inpatient Rehabilitation Services at Glenside campus.
As to this matter I note that there is no opposition to the orders sought on behalf of Mr Morgan. There has been extensive consultation between the DPP and the applicant’s solicitors and there has been additional material provided by Dr Nambiar which has assisted in the final determination of the orders. I also note that there is a Community Treatment Order which has been made with respect to Mr Morgan which will enable the compulsory administration of medication to him.
Pursuant to the limiting term Mr Morgan is due for release on 19 May 2015. His condition has stabilised, although he continues to suffer a serious psychiatric illness. In light of all of the materials before me I agree that it is appropriate that Mr Morgan be able to access the additional services proposed in order that he may safely return to the community at the time of his release. I have had regard to s 269S of the CLCA, namely that when deciding to release the applicant I have applied the principle that restriction on his freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
I note that the Community Treatment Order expires on 5 November 2014. I know that there is a backlog with respect to the preparation and delivery of the annual reports that are required pursuant to Part 8A of the CLCA. I think that it is important that future annual reports in respect of Mr Morgan be received by the DPP and the court prior to the expiration of the Community Treatment Order. In the ordinary course the annual reports are required by the anniversary of the date of the orders, being 19 August of each year. Thus, I request and urge compliance with the legislation that that annual report is to hand in a timely fashion to ensure proper observation of the conditions and monitoring of Mr Morgan’s psychiatric condition and welfare.
I make the supervision order including a release on licence in the terms that I will endorse this day. I will make the order in terms discussed with counsel. (Copy of order annexed to these reasons.)
Finally, I note that there is provision in Part 8A of the CLCA for an application to be made to the court for variation of the orders for release on licence should there be noncompliance and that such application may be made urgently and at short notice, the circumstances of which are set out in the legislation. I have considered those statutory provisions and note that there is adequate opportunity for there to be an immediate response to any future problems with respect to Mr Morgan’s compliance, particularly with respect to the administration of medication or the use of illicit drugs.