R v Cawte (No 2) - [2018] SASC 187

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v CAWTE (No 2)
[2018] SASC 187
Reasons for Decision of The Honourable Justice Nicholson
13 December 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
On 9 August 2018, the defendant was found not guilty of the murder of his twin brother Jake Cawte on the grounds of mental incompetence. He was declared liable to supervision and a limiting term of life was set.
Following the receipt of further reports as required by Part 8A of the Criminal Law Consolidation Act 1935 (SA), counsel for the defendant provided a proposed supervision order with conditions of licence to the Court. Counsel for the Director of Public Prosecutions and counsel for the defendant made submissions on the proposed conditions.
Held:
1. On the basis of the evidence before the Court, the defendant is to reside in James Nash House but be permitted periods of accompanied leave into the community, subject to certain conditions of licence in the terms provided by counsel for the defendant. Orders made accordingly.
Criminal Law Consolidation Act 1935 (SA) s 269O, s 269Q, s 269R, s 269S, s 269T, Pt 8A; Criminal Law Consolidation (Mental Impairment) Amendment Act 2017 (SA), referred to.

R v CAWTE (No 2)
[2018] SASC 187
Criminal
NICHOLSON J.

Mr Lucas Cawte is a 26 year old man who, on 9 August 2018, was found by me to be not guilty of the murder of his twin brother by reason of mental incompetence to commit the offence. On that day, I made a declaration that Mr Cawte was liable to supervision in accordance with the provisions of Part 8A of the Criminal Law Consolidation Act 1935 (SA) (the Act) with a limiting term of life.[1] Mr Cawte has been detained and undergoing treatment for his psychotic condition in the secure forensic psychiatric institution, James Nash House, since 6 March 2017.
[1] R v Cawte [2018] SASC 182.
Upon making the declaration earlier referred to, I ordered that various expert reports, and a victim and next of kin report, as required under Part 8A of the Act, be obtained and provided to the Court. I adjourned the matter for further consideration.
On 6 December 2018, on the basis of the reports that had by then become available, and after hearing from counsel for the Director of Public Prosecutions and counsel for the defendant, I made a supervision order pursuant to which Mr Cawte’s detention in James Nash House was to continue but that he was to be permitted to undertake supervised periods of accompanied leave into the community subject to certain conditions of licence. The substantive conditions of licence that I imposed are as follows.
1.That pursuant to Section 269O(1)(b)(ii) of the Act the applicant be released on licence on the following conditions:-
a)    That the applicant be under the supervision of a Community Corrections Officer appointed by the Parole Board and that he comply with all lawful directions given to him by his supervising officer with respect to non-medical matters.
b)    That the applicant be under the care of the Clinical Director (‘the Director’) of the South Australian Forensic Mental Health Service (‘FMHS’) or a consultant psychiatrist nominated by him, and obey all directions given to him from time to time with regard to medical and psychiatric treatment and medication; and further that he be psychiatrically reviewed on a regular basis as directed by the Director or his nominee.
c)    That the applicant continue to receive his medication current at the date of this order as required by the Director or his nominee and further that no alteration or reduction of such medication occur without the approval of the Director or his nominee.
d)    That the applicant comply in every respect with the treatment plan prepared and in force from time to time pursuant to Section 269Q(2) of the Act.
e)    That the applicant reside at James Nash House but be permitted, at the discretion of the Director or nominee, periods of day leave away from James Nash House approved by the Director or nominee, provided that the applicant is escorted at all times during such periods of leave by at least one staff member employed by FMHS.
f)     That the applicant not use, possess or administer any narcotic or psychotropic drug, or any drug other than those referred to in paragraph 2(c), and further that the applicant only use prescribed medication at prescribed or recommended dosages.
g)    That the applicant not consume alcohol.
h)    That the applicant submit himself for breath or urine analysis for the purpose of determining whether there is present in his body any alcohol or drug whenever required to do so by the Director or his nominee, or as directed by his Community Corrections Officer.
i)     That the applicant submit to random screening of his blood at the direction of the Director or the nominee, to ensure compliance with medication.
j)     That the applicant not depart or attempt to depart from the State of South Australia.
k)    That the applicant not possess a firearm, ammunition or any part of a firearm.
l)     That the applicant submit to tests, including testing without notice, for gunshot residue.
2.That the Director or his nominee shall notify the Court if, in the opinion of either, the program of day leave is unsuccessful and upon that notification being made, the program of day leave shall be suspended until further order of the Court.
3.In the event that the Director or his nominee, is of the opinion that the applicant has contravened, or is likely to contravene a condition of this order, the Director, or his nominee, shall forthwith notify the Director of Public Prosecutions of that opinion.
4.If the Director of Public Prosecutions is notified by the Director or his nominee in accordance with order 3 hereof, the Director of Public Prosecutions may make an application to this Court for a review of the supervision order which in cases of urgency may be made at short notice.
5.That the applicant and the Director of Public Prosecutions (on behalf of the Crown) and the Parole Board shall be at liberty to apply at any time and from time to time, at 48 hours notice to the other party, to vary or revoke this order or to seek any other order in substitution therefore.
6.That this order shall take effect on the 6th day of December 2018.
I indicated I would provide, within a short period of time, reasons for the making of this order. These are those reasons.
Relevant legislative provisions
Part 8A of the Act provides for a scheme for the detention or release on licence of defendants who suffer from mental impairment such that, as a consequence, they have been acquitted of a criminal offence. Part 8A has been recently amended[2] in a number of substantive and procedural respects which amendments commenced operation on various dates during and after September 2017. No relevant transitional provision has come to my attention. Accordingly, to the extent that the amendments effect a substantive change in the law, they do not apply with respect to the unlawful killing committed by Mr Cawte on 3 March 2017.[3] However, to the extent that they effect only procedural changes, they do.
[2] Criminal Law Consolidation (Mental Impairment) Amendment Act 2017 (No 19 of 2017).
[3] Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515.
I take the view that section 269O of the Act, as in force at the relevant time, was substantive. It was in the following terms.
269O—Supervision
(1)The court by which a defendant is declared to be liable to supervision under this Part may—
(a)     release the defendant unconditionally; or
(b)     make an order (a supervision order)—
(i)committing the defendant to detention under this Part; or
(ii)releasing the defendant on licence on the following conditions:
(A)the conditions imposed by subsection (1a);
(B)any other conditions decided by the court and specified in the licence (including a condition that the defendant be monitored by use of an electronic device approved under section 4 of the Correctional Services Act 1982).
(1a)Subject to this Act, every licence under subsection (1)(b)(ii) is subject to the following conditions:
(a)     a condition prohibiting the defendant from possessing a firearm or ammunition (both within the meaning of the Firearms Act 1977) or any part of a firearm;
(b)     a condition requiring the defendant to submit to such tests (including testing without notice) for gunshot residue as may be reasonably required by a person or body specified by the court.
(1b)A court may only vary or revoke the conditions imposed by subsection (1a) if the defendant satisfies the court, by evidence given on oath, that—
(a)     there are cogent reasons to do so; and
(b)     the possession of a firearm, ammunition or part of a firearm by the defendant does not represent an undue risk to the safety of the public.
(2)If a court makes a supervision order, the court must fix a term (a limiting term) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court's opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established ¹.
(3)At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.
Note—
1The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant's mental impairment.
Section 269S of the Act (also substantive) provided that, in deciding whether to release a defendant and when deciding upon the conditions of any licence, the Court “must apply the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community”.
Section 269T of the Act provides for the process to be undertaken when, inter alia, considering whether or not to release a defendant on licence. In my view, it is procedural and the current form of the provision applies. Section 269T in its current form is in these terms.
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.
The imposition of conditions of licence
At the time of making the order for conditions of licence including permission for supervised periods in the community, I had before me the following reports: one by the treating psychiatrist, Dr Pei Lim, dated 5 November 2018, pursuant to section 269Q; reports by Dr Pei Lim, dated 5 November 2018, and by Dr Craig Raeside, dated 9 November 2018, each provided in accordance with section 269T; and a report by Ms Anna D’Alessandro, Manager of the Forensic Court Service, Forensic Mental Health Service, dated 13 November 2018, dealing with the attitude of the victims and next of kin and provided pursuant to section 269R.
The parties jointly submitted that two expert psychiatric reports were desirable in this matter, notwithstanding the power under (new) section 269T to order and rely on only one. I accepted that submission.
I also had before me two victim impact statements, one by Mr Cawte’s mother and one by Mr Cawte’s father, both of which were read aloud to the Court. Both statements were in measured, compelling and helpful terms. This has been an unmitigated tragedy for the family. Mr Cawte’s parents bear no ill will towards him. They love him dearly and wish only for him to continue with his treatment and return to a normal life in the community. They rightly are concerned that unnecessary restrictions on Mr Cawte’s liberty and unnecessary delays in allowing an ordered reintegration into the community will risk institutionalisation and depression.
Each of the psychiatrists agreed that the primary psychiatric diagnosis for Mr Cawte was one of schizophrenia, currently in remission with treatment. Each of the psychiatrists agreed with the course of treatment, monitoring and supervision proposed in accordance with the recommendations and requirements of the treating psychiatrist and the treating medical health team. Each agreed that Mr Cawte’s psychotic condition is presently under control as a result of treatment and that he presently appears to pose a low risk to himself and to others in the community. There would be a risk of relapse and a potential risk to Mr Cawte or to others were he to cease undergoing the recommended antipsychotic treatment. However, provided there is compliance with treatment and adequate monitoring, the risk of any relapse is regarded as low.
I am satisfied that there is an appropriate treatment plan in place together with strategies aimed at achieving proper compliance by Mr Cawte with his treatment plan, including maintaining his antipsychotic medication. Mr Cawte is to continue to be detained, monitored and treated in James Nash House. He has responded extremely well to treatment. He has demonstrated very significant remorse for his actions; the death of his brother has caused and continues to cause him great distress. Mr Cawte is a highly intelligent and capable person. He has demonstrated very substantial insight into his mental illness and is convinced of the necessity to remain compliant with his treatment regime.
At this stage, the only proposed variation to the present regime of full time detention is one such as would permit Mr Cawte to undertake periods of supervised leave from James Nash House so as to commence the early stages of reintegration into the community. The leave presently envisaged does not involve overnight leave. I am satisfied that proper arrangements are in place to accommodate the type of supervised leave in contemplation and to monitor Mr Cawte’s condition and progress.
Important in this respect will be the role of family members. The victims of the conduct engaged in by the defendant when he killed his brother are also next of kin. The parents of Mr Cawte and his deceased brother remain devoted to and supportive of their son. They strongly support the proposal to allow Mr Cawte periods of supervised leave on suitable licence conditions.
As I have indicated, Mr Cawte has responded extremely well to his treatment regime. He has not displayed concerning symptoms from the time he commenced treatment some 20 or so months ago. The expert evidence available is consistently to the effect that it would be appropriate for Mr Cawte to commence reintegration into the community by enjoying accompanied leave in the community under strict licence conditions and under supervision.
I am satisfied that the requirements of section 269T have been met. It should go without saying that punishment is not a relevant consideration where a person has been found not guilty of a criminal offence by reason of mental incompetence. However, I have had regard to the balancing exercise required by section 269S. In the circumstances, I accepted the opinions and recommendations of the professionals who have reported on this matter and I made orders placing the defendant on licence in accordance with the conditions earlier set out.