R v Cryan - [2004] SADC 99

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CRYAN
Judgment of His Honour Judge Muecke
21 July 2004
CRIMINAL LAW
Investigation into mental competence to commit an offence - the appropriate procedure and steps for an investigation into the defendant's mental competence to commit the offence considered - decided that the objective elements were established beyond reasonable doubt - decided that at the time of the conduct alleged to give rise to the offence the defendant was suffering a mental impairment and, in consequence of that mental impairment, she did not know that the conduct was wrong - defendant declared to be mentally incompetent to commit the offence and declared to be liable to supervision - limiting term of three years fixed - supervision order made releasing defendant on licence on conditions decided by the court and specified in the licence.
Criminal Law Consolidation Act 1936 Part 8A, referred to.

R v CRYAN
[2004] SADC 99

In March 2003 the defendant was renting premises owned by the South Australian Housing Trust at 20 Finbar Crescent, Christies Downs. At about 6pm on 8 March 2003 residents in the neighbourhood of that address smelt smoke and saw fire coming from that house. On investigation it was found that three separate fires had been lit in the lounge room, the main bedroom, and a child’s bedroom of the house.
The defendant was charged with arson. It was alleged that she, on 8 March 2003 at Christies Beach, knowing that she had no lawful authority to do so, intentionally or with reckless indifference damaged the house at Finbar Crescent by fire. It was ultimately alleged on Information that the damage caused to the property by fire was approximately $20,000.
On 15 March 2004 the defendant pleaded not guilty to the charge of arson. She raised a defence of mental incompetence.
The procedure for an investigation by the court into a defendant’s mental competence to commit an offence is contained within PART 8A – MENTAL IMPAIRMENT of the Criminal Law Consolidation Act 1935. I now set out what I consider to be an appropriate (and in most cases the preferred) procedure and steps for such an investigation or trial (both words are used in various parts of Part 8A). (The sections referred to are those within Part 8A):
1Arraignment.
2Is a defence of mental incompetence raised (s269E(1)).
3Election for trial by judge alone as to both mental competence and whether the elements of the offence have been established (s269B(1)).
4The court considers whether to proceed first with the objective elements or with mental competence (s269E(2)).
5The court decides to proceed first with the trial of the objective elements (s269G).
6The court hears evidence and representations by prosecution and defence relevant to the question whether the court should find that the objective elements of the offence are established (s269G.A(1)).
7The court considers whether it is satisfied that the objective elements of the offence are established beyond reasonable doubt (s269G.A(2)).
On this issue the court must exclude from consideration any question of whether the defendant’s conduct is defensible (s269G.A(3)).
8If it is so satisfied, the court records a finding that the objective elements of the offence are established beyond reasonable doubt (s269G.A(2)).
9The court then hears evidence and representations put to it by the prosecution and defence on the question of the defendant’s mental competence to commit the offence (s269G.B(1)(a)).
10The court must then decide whether it has been established, on the balance of probabilities, that the defendant was at the time of the alleged offence mentally incompetent to commit it.
This involves being satisfied that the defendant was, at the time of the conduct alleged to give rise to the offence, suffering from a mental impairment and, in consequence of that mental impairment, either did not know the nature or quality of the conduct, or did not know that the conduct was wrong, or was unable to control the conduct (s269C).
11If satisfied that such has been established the court declares that the defendant was mentally incompetent to commit the offence, finds her not guilty of the offence, and declares her to be liable to supervision under Part 8A of the Criminal Law Consolidation Act (s269G.B(3)(a)).
12If the court declares the defendant to be liable to supervision, the Minister must, within 30 days after the date of the declaration prepare and submit to the court a report (s269Q) and the crown must provide the court with a report setting out, so far as reasonably ascertainable, the views of certain people (s269R). The court must have regard to certain matters and certain experts reports (s269T) and must be satisfied that certain people have been given reasonable notice of the proceedings (s269T(2)(d)).
13The court may then release the defendant unconditionally or make a supervision order committing her to detention under Part 8A or releasing her on licence on conditions decided by the court and specified in the licence (s269O) (applying 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 (s269S)).
14If the court makes a supervision order it must fix 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. The 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 (s269O(2)).
On 15 March 2004 I decided to proceed first with the trial of the objective elements of the offence. Having heard evidence and representations I found that the objective elements of the offence were established beyond reasonable doubt. I recorded a finding to that effect. I then heard evidence and representations on the question of whether the defendant was mentally competent to commit the offence. Having considered reports from Dr Nambier, Dr Raeside, and Dr O’Brien I decided that it had been established, on the balance of probabilities, that she was, at the time of the alleged offence, mentally incompetent to commit it. I decided that because I was satisfied that she was, at the time of the conduct alleged to give rise to the offence, suffering from a mental impairment and, in consequence of that mental impairment, she did not know that the conduct was wrong.
I declared the defendant to be mentally incompetent to commit the offence, I found her not guilty of the offence, but I declared her to be liable to supervision under Part 8A of the Criminal Law Consolidation Act.
On 30 June 2004 I heard submissions as to what orders I should make under Division 4 of Part 8A.
I have considered reports from Dr Champion (dated 27 April 2004), Dr Nambier (dated 7 May 2004), Dr O’Brien (dated 11 May 2004), and Mr Paul Sweeney, a senior social worker at James Nash House (dated 29 June 2004). Reports from the three psychiatrists just mentioned variously addressed the defendant’s mental condition, her psychiatric diagnosis, her prognosis, the possible effects of treatment in the community under licence, and her disposition and treatment plan generally. The report from Mr Sweeney deals with the attitudes of the victim of the arson offence and of the defendant’s next of kin. I am satisfied that the victim and the next of kin had been given reasonable notice of the proceedings before me on 30 June 2004.
Under Part 8A of the Criminal Law Consolidation Act I may release the defendant unconditionally, make a supervision order committing her to detention under Part 8A, or release her on licence on conditions decided by me and specified in the licence. In deciding whether to release the defendant unconditionally or in deciding the conditions of any licence I must apply the principle that restrictions on her freedom and person autonomy should be kept to the minimum consistent with the safety of the community.
Dr Champion saw the defendant on 14 April 2004. She told him that in the five years prior to March 2003 she was using amphetamines three or four times a week, and sometimes daily. She told him that she had reduced her amphetamine use to perhaps once a month since the fire in March 2003.
Dr Champion wrote that the most likely diagnosis was of an amphetamine-induced psychosis, rather than an underlying schizophrenic illness. He referred to the defendant’s symptoms having subsided being coincident with her reduced amphetamine use to the point where her symptoms are now infrequent and no longer are of a delusional intensity.
Dr Champion recommended the following:
(1)That the defendant seek support and counselling to assist her to abstain from amphetamine use altogether.
(2)That she attend the Drug and Alcohol Services at Beach Road, Christies Beach and that she undergo random urine testing.
(3)That she have monthly psychiatric review, at least at first. That could occur at the Mental Health Services at Noarlunga, the Forensic Mental Health Services at James Nash House, or with a private psychiatrist.
(4)That she take oral anti-psychotic medication for at least twelve months.
Dr O’Brien saw the defendant on 28 April 2004. She told him that she had used some amphetamines intravenously since he saw her on 9 February 2004, but “not very much”.
Dr O’Brien expressed the opinion that the defendant suffers either from paranoid schizophrenia or a drug induced (ampetamine-induced) psychosis. Dr O’Brien wrote that regrettably, despite warnings, she still occasionally uses amphetamines. He wrote that she either does not understand the deleterious effect the drug has on her health, or that she is prepared to continue with such risk-taking, albeit with a much reduced frequency of use.
Dr O’Brien wrote that the defendant could be managed in the community with intermittent psychiatric review preferably by the Forensic Mental Health Service. He strongly encouraged a consultation with her general practitioner which she had not done, contrary to his advice. He thought that she does not require hospitalisation at this stage and that hopefully her pathology is related to drug abuse. If so, and she can consistently reduce or eliminate that abuse, that will militate against a recurrence of her symptomatology. If there is any suggestion that her psychosis has returned, or is likely to do so, it would be imperative that she is commenced on anti-psychotic medication.
Dr O’Brien concluded that at this time the defendant can be safely and adequately managed in the community with appropriate mental health and statutory supervision and management. In that respect he supported the recommendations of Dr Nambier.
The defendant saw Dr Nambier on 5 May 2004. She told him that she had stopped using illicit substances and that she had only had one small dose of amphetamine intravenously over the past five or six months. She told him that she still has auditory hallucinations from time to time.
Dr Nambier wrote that the most likely diagnosis is schizophrenia. He said, however, that an amphetamine-induced psychosis is just as likely an explanation for the defendant’s behaviour. He wrote that she still remain at risk of further psychotic episodes due to a vulnerability for amphetamine induced psychosis or, alternatively, a milder form of schizophrenia with only minor residual symptoms with propensity to experience acute paranoid psychosis with continuous amphetamine use.
He wrote that if the defendant does have schizophrenia then there is a risk that she will continue to experience psychotic episodes whether or not she uses illicit drugs. Confirmation of that diagnosis will only be borne out in time, but the prognosis of such a condition would be improved considerably should she be commenced on regular anti-psychotic medication. Alternatively, should she remain symptom free and only experience a return to symptoms when using amphetamines, then a drug induced psychosis is more likely and the obvious remedy would be complete abstinence from illicit substances.
Dr Nambier considered that the defendant’s prognosis is relatively good provided she remain off illicit substances and, at the very least, she maintain regular contact with her general practitioner with referral to psychiatrists should she experience further psychosis. Dr Nambier noted that the defendant had not seen her general practitioner or taken medication despite his recommendations to that effect.
Dr Nambier wrote that the defendant appears to be coping relatively well at present and, with the absence of any acute symptoms, there is no need for her to be hospitalised and she can continue to reside in the community. He recommended that she should undergo a drug and alcohol counselling course which could be co-ordinated through the Department of Community Corrections as part of licence conditions. Dr Nambier considered that the defendant would benefit from regular review from Forensic Mental Health Services in the form of psychiatric assessment in order to monitor her mental health. This would allow for early intervention should she experience a relapse of her symptoms and prompt initiation of anti-psychotic treatment. If time establishes that she has schizophrenia her care could be transferred to a regional mental health team closer to where she lives. Dr Nambier recommended abstinence from illicit substances.
From Mr Sweeney’s report it appears that the defendant is still a tenant of the South Australian Housing Trust. The trust has expressed concern with the degree of monitoring to which she will be subjected should she be released on licence conditions by the court. The view was expressed that she should be required to see her community corrections officer at least twice a week and that she should be tested to ensure that she is not consuming illicit drugs. That will ensure that she poses no danger to the community or to the property of the Housing Trust.
The defendant’s parents are hopeful that this matter will be a turning point for her so that she stays away from the drug scene and gets on with her life. They strongly believe that their daughter requires drug and alcohol counselling to help her take control of her addiction. This matter has had a significant impact on them and their relationships with their other children. They say that the defendant is slowly seeing the seriousness of her actions. They are standing by her and propose to continue to do so.
It was submitted on the defendant’s behalf that her current presentation does not present a risk to the community and, in those circumstances, it would be appropriate to release her unconditionally.
I consider that, on the material before me, it would be inappropriate for me to release the defendant unconditionally. She has not abstained from amphetamine use, although she appears to have reduced that use considerably. In addition, she appears to have taken no steps to consult with her general practitioner or to seek medication for her likely diagnoses.
The material before me establishes that there is as much likelihood that the defendant committed the offence in March 2003 as a result of an amphetamine induced psychosis than as a result of the other explanation, being that she suffers from schizophrenia. Either way I consider that supervision of and treatment for the defendant are imperative. I have no doubt that, on the material before me, the appropriate course for me in this case is to make a supervision order. I decline to release her unconditionally.
I now consider what limiting term I should fix.
The maximum penalty for this offence is five years imprisonment. Approximately $20,000 worth of damage was caused to the Housing Trust house the defendant was renting. If she had caused more than $30,000 worth of damage the maximum penalty would have been life imprisonment.
Viewed objectively the offence was a serious offence of its type. Significant damage was caused to property of the defendant’s landlord. I consider that an appropriate limiting term, had she been convicted of the offence of which I have found the objective elements established and without taking account of her mental impairment, is three years.
I now must consider whether I should order that the defendant be detained for that period or whether I should release her on licence on conditions decided by me and specified in the licence.
On the material before me I consider that it would be appropriate to release her on licence on certain conditions which I will specify in the licence.
I have included conditions 7 to 9 in the order I shall make only because counsel for the defendant indicated that orders similar to the paragraphs were considered by him to be appropriate. Without that concession it would have been necessary for me to consider whether they are inconsistent with the provisions of s269U of Part 8A of the Criminal Law Consolidation Act. It is arguable that that section provides a code by which persons who are released on licence and who contravene, or are considered likely to contravene a condition of, a licence are to be dealt with. The section provides for the court to review the supervision order and to do so after allowing the crown and the person subject to the order a reasonable opportunity to be heard on an application for review. Such an application for review may be made, in a case of emergency, by telephone. Sub-section (3) of s269U provides that where an application for review of a supervision order is made the court may issue a warrant to have the person subject to the order arrested and brought before the court and may, if appropriate, make orders for detention of that person until the application is determined. Conditions 7 to 9 of my order allow, in effect, for the Clinical Director of the Forensic Mental Health Services or his nominee to order the defendant’s “detention” at James Nash House for a period of not more than 14 days. That does not involve the court at all.
Conditions 7 to 9 of my order are not in the precise terms sought by counsel for the DPP. As indicated I have included those paragraphs because of the submission made to me by the defendant’s counsel. I did not hear full argument on whether these paragraphs properly can be ordered and it has not been necessary for me to decide this issue.
I have had prepared and signed an order for the defendant’s release on licence. It is in the following terms:
ORDER FOR RELEASE ON LICENCE
21 JULY 2004
WHEREAS the defendant pleaded not guilty to the offence of arson AND WHEREAS on 15 March 2004 in the District Court of South Australia sitting at Adelaide, pursuant to Part 8A of the Criminal Law Consolidation Act 1935, the Court found that the objective elements of the said offence were established beyond reasonable doubt, the Court decided that it had been established on the balance of probabilities that the defendant was mentally incompetent to commit the said offence and found the defendant not guilty of the said offence AND WHEREAS on 15 March 2004 the defendant was declared liable to supervision under Part 8A of the said Act AND WHEREAS the Court has had submitted to it a report pursuant to the provisions of section 269Q(1) of the said Act AND WHEREAS the Court has considered reports prepared pursuant to the provisions of section 269Q, section 269R and section 269T of the said Act AND WHEREAS the Court is satisfied of the matters contained in section 269T(2)(d) of the said Act.
I, GEOFFREY LOUIS MUECKE, a Judge of the District Court of South Australia, DO HEREBY MAKE, pursuant to section 269O of the said Act, a supervision order releasing the defendant on licence upon the following conditions:-
1.That upon the defendant’s discharge into the community she be hereby referred to the Clinical Director, Forensic Mental Health Services (“the Director”) and that she be under the care and supervision of the Director.
2.(a)    That she obey any directions given to her from time to time by the Director or by a consultant psychiatrist nominated by the Director (“the nominee”). The name of the nominee, if any, shall be nominated by the Director and a copy of the written nomination shall be given to the defendant, and be sent to the nominee, the Registrar of this Court, the Director of Public Prosecutions for the State of South Australia and the Director of the Legal Services Commission of South Australia.
(b)That any directions given to the defendant from time to time under condition 2(a) hereof be in regard to her medical and psychiatric treatment and medication.
(c)That the defendant be psychiatrically reviewed on a regular basis at times directed by the Director or the nominee and further that the defendant comply in every respect with any treatment plan (including the taking of medication) prepared by the Director or the nominee.
3.That the defendant not use, possess, administer or consume illicit substances or drugs other than those prescribed from time to time by the Director or the nominee and then only at prescribed or recommended dosages.
4.That the defendant submit herself for urine analysis as and when required and directed by the Director or the nominee or the supervising officer assigned to her pursuant to paragraph 5 hereof.
5.That during the period of her release on licence the defendant be under the supervision of a probation officer from the Department of Correctional Services (“supervising officer”), and for that purpose she report to the office of the Direction of Correctional Services at 181 Flinders Street, Adelaide within 2 working days of the date of this order and that she report not less than once a month to her supervising officer in a manner determined by her supervising officer.
6.That the defendant obey any lawful direction of her supervising officer and that she undertake alcohol, drug and other counselling as may be directed by her supervising officer.
7.That the defendant be detained at James Nash House or other approved treatment centre at the discretion of the Director or the nominee if:-
(a)     The Director or the nominee is satisfied that the defendant has breached any of the conditions numbered 2, 3 or 4 of this order, or
(b)    The Director or the nominee is concerned that any action or pattern of behaviour on the defendant’s part is likely to lead to a breach of any of the conditions numbered 2, 3 or 4 of this order.
PROVIDED THAT the defendant shall not be detained at James Nash House unless the Director or the nominee is of the opinion that she requires a level of security that cannot be provided at some other approved treatment centre.
8.If the defendant is detained at James Nash House or other approved treatment centre pursuant to condition 7 hereof, such detention or detainment shall not be for a continuous period that exceeds 14 days and shall not be for a number of periods that total more than 28 days without application to this Court pursuant to section 269U of the said Act.
9.Where the defendant is detained at James Nash House or other approved treatment centre pursuant to condition 7 hereof, the Director shall forthwith upon each detention notify the Attorney‑General, the Registrar of this Court and the Director of the Legal Services Commission of South Australia.
10.That without limiting the effect of section 269P of the said Act any applicant and the Director of Public Prosecutions (on behalf of the Crown) shall be at liberty to apply at any time and from time to time as they may be advised, with notice to others, to vary or revoke this order or to seek any other order in substitution therefor.
AND pursuant to the provisions of section 269O(2) of the said Act the Court fixes a limiting term of three years, which period shall commence on the day this order is signed and dated.