R v Crispe (No 3)

[2014] NSWDC 207

District Court

New South Wales

Medium Neutral Citation:	R v Crispe (No 3) [2014] NSWDC 207
Hearing dates:	28 July 2014 - 29 July 2014
Decision date:	29 July 2014
Before:	Cogswell SC DCJ
Decision:	It seems to me that is appropriate for me to release Ms Crispe subject to certain conditions, which have been agreed between Mr Thompson and Mr Schaudin, in order for her to obtain up to date information about her condition, which will enable me to make a final determination under s 39 of the Mental Health (Forensic Provisions) Act.
Catchwords:	CRIMINAL LAW - application for final conditional release refused - insufficient information to satisfy test - application for adjournment and interim conditional release granted - mental health - further information required prior to final determination - nature and circumstances of offender - reassuring history of non violent and rehabilitative behaviour - compliance with community treatment order - conditional release order
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990 (NSW), s39
Category:	Procedural and other rulings
Parties:	The Crown Tricia Oi Foong Crispe, offender
Representation:	Mr P Thompson, Crown Mr S Schaudin, Offender
File Number(s):	2012/00270941

Judgment

1. Mr Schaudin, on behalf of his client, has made an application for me to make an order adjourning these proceedings until his client is reassessed by Dr Furst. I should add that that was his secondary position. His primary position was for me to release his client conditionally at this stage.

1. I am empowered to make such orders under s 39(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW). Section 39(2) of that Act makes a very important qualification to any order I make. It provides -

"The Court is not to make an order under this section for the release of a person from custody unless it 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."

1. It seems to me, whether I make a final order for Ms Crispe's release or an order for adjournment of the proceedings, that provision binds me to not make any release order unless I am so satisfied. I am not inclined to grant Mr Schaudin's primary application, because I do not have, in my opinion, sufficient information to be satisfied on a longer term basis that the safety of Ms Crispe or any member of the public will not be seriously endangered by her release.

I turn then to Mr Schaudin's second position, namely that the case be adjourned. Both Mr Schaudin and Mr Thompson have made submissions about matters which would satisfy me on the balance of probabilities, inaccordance with s39(2) for the period of an adjournment, which might be some six to eight weeks. They point to the following factors. First, there has been no report of any misbehaviour by Tricia Crispe since the acts in question in this case. She has been admitted to psychiatric care, but there has been no behaviour which puts anybody at risk, including herself. Secondly, exhibit B demonstrates that Tricia Crispe has no criminal convictions. Thirdly, exhibit 2 is a very helpful report from the Venerable Hsiu Nong, vice-abbot of the Lingyen Mountain Temple, Australia, dated 15 May 2014. The author, although not purporting to be qualified as a psychologist or psychiatrist, has had an extended opportunity to view Ms Crispe's behaviour in her daily attendance at the temple, which is near her home.The author expressed the view that she "is now in a much healthier state of mind than when she first came to the temple in 2013". The author acknowledged "the severity of the trauma she experienced" and that it had "not completely left her". She still avoids social contact beyond her home and the temple. They will continue to support her at the temple, which she attends daily from 7.30 in the morning till five at night. That is a reassuring history of non violent and rehabilitative behaviour, supported by the opinion of the author of the report. Fourthly, Ms Crispe was the subject of a community treatment order, which was part of an agreement which she undertook as a condition of bail on 3 December 2012. The Auburn Community Mental Health, which Mr Thompson was in contact with this morning, reported that her progress was such that she was released from the community treatment order in May this year. Fifthly, there is an apprehended violence order in place (of a provisional nature, I understand)which protects Phillip Crispe. Finally, Mr Schaudin accepts that a condition of her release can be that she comply with recommendations of the qualified psychiatrist, Dr Furst, in consultation with her legal practitioners.

1. It seems to me that it is appropriate for me to release Ms Crispe subject to certain conditions, which have been agreed between Mr Thompson and Mr Schaudin, in order for her to obtain up to date information about her condition, which will enable me to make a final determination under s 39 of the Mental Health (Forensic Provisions) Act. It does not seem to me that I grant her bail, but that I make a conditional release order under s 39.

1. I make an order releasing Ms Crispe. The order is subject to the following conditions -

(1)   That she complies with any apprehended violence order, provisional or otherwise, in place.

(2)   That she continues to live at [home address].

(3)   That for the period of the adjournment, she not approach or attempt to approach or contact Phillip Crispe or either of her children.

(4)   That she keep an appointment made for her with Dr Richard Furst and in consultation with her legal practitioners, comply with such recommendations that Dr Furst makes, especially concerning counselling or medication, as her legal practitioners regard as reasonable.

(5)   That Tricia Crispe attend before me in the District Court at Sydney on Thursday 9 October 2014 at 10am.

1. I direct a transcript of these proceedings, including the judgments I have delivered, including yesterday's proceedings, to be taken out and made available to me for revision on or before Friday 3 October 2014.

1. I direct the Registrar of this Court to notify the Minister for Health and the Mental Health Review Tribunal of the terms of my orders and that the Registrar provide the Mental Health Review Tribunal with a copy of my reasons for judgment and orders and copies of the exhibits tendered in the proceedings.

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Decision last updated: 08 December 2014