R v Colella (No 2)
[2016] SASC 35
•11 March 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v COLELLA (No 2)
[2016] SASC 35
Reasons for Decision of The Honourable Justice Nicholson
11 March 2016
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 22 December 2015, the defendant was found not guilty, on the grounds of mental incompetence, of the murder of her husband, Antonio Colella. She was declared liable to supervision and subjected to a limiting term of life.
Following the receipt of further reports as required under Part 8A of the Criminal Law Consolidation Act 1935 (SA), the Director of Public Prosecutions with the consent of the defendant provided a proposed supervision order with conditions of licence to the Court.
Held:
On the basis of the evidence before the Court the defendant is to be released subject to the conditions of licence as jointly proposed by the parties. Orders made accordingly.
Criminal Law Consolidation Act 1935 (SA) s 269O, s 269S, s 269T, referred to.
R v COLELLA (No 2)
[2016] SASC 35Criminal
NICHOLSON J.
Ms Lucia Colella is a 76 year old woman who, on 22 December 2015, was found by me to be not guilty of the murder of her husband by reason of mental incompetence to commit the offence. On that day, I made a declaration that the defendant was liable to supervision in accordance with the provisions of Part 8A of the Criminal Law Consolidation Act 1935 (SA) with a limiting term of life.[1]
[1] R v Colella [2016] SASC 31.
At the time I made the declaration just referred to, the defendant was on home detention bail. She remained on home detention bail pending my decision as to whether or not she was to be detained in a secure forensic psychiatric facility or released into the community on licence. I ordered that the various requisite expert and victim and next of kin reports be obtained and provided to the Court and adjourned the matter for further consideration.
On 8 March 2016, 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 and with their consent, I made a supervision order pursuant to which the defendant was to be released subject to certain conditions of licence. The substantive conditions of licence that I imposed are as follows.
2.That the defendant be released on licence subject to the following conditions:-
(a) That the defendant be under the care and direction of the Clinical Director, Forensic Mental Health Service (“The Director”), or a consultant psychiatrist nominated by him or her (“the nominee”), and obey all directions given to her from time to time with regard to medical and psychiatric treatment and medication.
(b) That the defendant be under the supervision of a Community Corrections Officer assigned by the Parole Board of South Australia and comply with the lawful directions of that officer or the Board with respect to non-medical matters.
(c) That the defendant continue to receive her medication current at the date of this order, and further that any alteration or reduction in such medication not occur without the approval of the Director or the nominee.
(d) That the defendant submit to random screening of her blood at the direction of the Director or the nominee, to ensure compliance with medication.
(e) That the defendant not use, possess or administer any narcotic or psychotropic drug unless medically prescribed by a legally qualified medical practitioner, and further that any drugs which are prescribed to the defendant by a legally qualified medical practitioner be possessed or administered by the defendant only at prescribed or recommended dosages.
(f) That the defendant not consume alcohol.
(g) That the defendant’s case be managed by the Forensic Community Mental Health Team and that the defendant comply with all the lawful directions of that team, particularly with respect to attendances at all appointments nominated by that team.
(h) That, at the discretion of the Director or nominee and at such time when the Director or nominee sees fit, the defendant’s case management be transferred to a local Community Mental Health Team and that the defendant comply with all directions from that team.
(i) That the defendant reside initially at ... and that she not thereafter change her residence without the permission of the Parole Board.
(j) That the defendant not depart or attempt to depart from the State of South Australia without the prior written permission of the Parole Board.
(k) That the defendant not possess a firearm, ammunition or any part of a firearm.
(l) That the defendant submit to tests, including testing without notice, for gunshot residue.
3.In the event that the Director, or the Director’s nominee, or the Presiding Member of the Parole Board, or the Presiding Member’s nominee is of the opinion that the defendant has contravened, or is likely to contravene a condition of this order, that person who becomes so aware, shall immediately notify the Director of Public Prosecutions of that opinion.
3AIf the Director of Public Prosecutions is notified by the Director or the Director’s nominee, or the Presiding Member of the Parole Board, or the Presiding Member’s nominee in accordance with order 3 above, 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.
4.That the defendant, 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, as they may be advised, at short notice to the other to vary or revoke this order or seek any other order in substitution thereof.
I indicated I would provide, within a short period of time, reasons for the making of the order. These are those reasons.
Section 269O of the Criminal Law Consolidation Act 1935 (SA) is 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 provides 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 as follows.
269T—Matters to which court is to have regard
(1)In deciding proceedings under this Division, 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 Division, or significantly reduce the degree of supervision to which a defendant is subject unless the court—
(a) has considered at least three reports (expert reports) each prepared by a different 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 Division; and
(c) has considered the report on the attitudes of victims and next of kin prepared under this Division; 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)However, the court may act on the basis of one or two expert reports if—
(a) the supervision order arose from proceedings based on a charge of a summary (rather than an indictable) offence; and
(b) satisfied that, in the circumstances of the case, the report or reports adequately cover the matters on which the court needs expert advice.
(3) Notice need not be given under subsection (2)(d) to a person whose whereabouts have not, after reasonable inquiry, been ascertained.
At the time of making the supervision order I had before me the requisite reports, namely: one by the treating psychiatrist, Dr Geoffrey Seidel, dated 3 February 2016 and provided pursuant to section 269Q;[2] reports by Dr Geoffrey Seidel, dated 3 February 2016, by Dr William Brereton, dated 15 February 2016, and by Dr Hoa Nguyen, dated 22 February 2016 and provided in accordance with section 269T;[3] and a report by Ms Kate Bonney, a social worker at the Northern Adelaide Local Health Network, dated 10 February 2016, dealing with the attitude of the victims and next of kin and provided pursuant to section 269R.[4]
[2] See section 269T(2)(b) of the Criminal Law Consolidation Act 1935 (SA).
[3] See section 269T(2)(a) of the Criminal Law Consolidation Act 1935 (SA).
[4] See section 269T(2)(d) of the Criminal Law Consolidation Act 1935 (SA).
Each of the psychiatrists agreed that the primary psychiatric diagnosis for the defendant was one of major depressive disorder with psychotic features, 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 the defendant’s psychotic condition is presently under control as a result of treatment and that she appears to pose little risk to either herself or others in the community. There would be a risk of relapse and a potential risk to the defendant or others were the defendant 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 very low.
I am satisfied that there is an appropriate treatment plan in place together with strategies aimed at achieving proper compliance by the defendant with her treatment plan, including maintaining her antipsychotic medication. I am satisfied that proper arrangements are in place to accommodate the defendant and to monitor her 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 she killed her husband, are also next of kin; they are the children of the defendant and her deceased husband. The three adult children all live in reasonable proximity to and are extremely supportive of their mother. They are aware of the warning signs that might presage a possible psychotic episode and are aware of the importance of regular and close monitoring of their mother’s condition. They are strongly supportive of the release of the defendant on suitable licence conditions.
As I have indicated, the defendant has responded well to her treatment regime and has not displayed any concerning symptoms from the time she underwent treatment some 20 months ago. The expert evidence available is consistently to the effect that it would be appropriate for the defendant to be released into the community under strict licence conditions and under supervision.
I have paid particular 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 releasing the defendant on licence in accordance with the conditions earlier set out.
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