R v Deering

[2009] SASC 53

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v DEERING

[2009] SASC 53

Reasons for Decision of The Honourable Justice Kelly

25 February 2009

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY

MENTAL HEALTH - CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS - GENERALLY

Application by DPP that order for detention not be discharged - respondent convicted in 1986 of four counts of rape and declared incapable of controlling his sexual instincts - released to Glenside Hospital on licence - two psychiatric reports support the application that the order for detention not be discharged - respondent not fit to be released - unlikely to successfully integrate back into the community - lack of remorse - lack of insight into his psychiatric condition - order made under s 24(11) of Criminal Law (Sentencing) Act that the order for detention of respondent will not be discharged for a period of three years.

Criminal Law (Sentencing) Act 1988 s 24(11), referred to.
Director of Public Prosecutions v Deering (2000) 206 LSJS 482, considered.

R v DEERING
[2009] SASC 53

Kelly J

Reasons for Decision

1. This application by the Director of Public Prosecutions is made under the provisions of Section 24(11) of the Criminal Law (Sentencing) Act 1988 (“the Act”).

2. S 24(11) states:

   24—Release on licence

   (11)Where a person has been subject to a licence under this section for a continuous period of three years, the order for his or her detention under this Division will, unless the Supreme Court, on application by the Director of Public Prosecutions, orders otherwise, be taken to have been discharged on the expiration of that period.

3. The application by the Director is that the order of detention in relation to Mr Deering under Part 2 Division 3 of the Act not be discharged. The application refers to the detention of Mr Deering by virtue of the most recent order made in this Court by Anderson J on 20 March 2006. However, this matter has a very long history. In September 1986 Mr Deering was convicted of four counts of rape and later that year in December 1986 he was declared incapable of controlling his sexual instincts. Thereafter he was detained in an institution until 1998 when he applied to have the order for indeterminate detention discharged. The history of the matter to that time and the relevant changes to the legislation governing Mr Deering’s detention are set out in a very thorough judgment of Wicks J in Director of Public Prosecutions v Deering (2000) 206 LSJS 482.

4. Since then the Director of Public Prosecutions has, on two occasions, applied to this Court for further orders that the detention of Mr Deering not be discharged.  The first such application was made in January 2003 as a result of which Martin J on 24 January 2003 refused to discharge the order.  The second was made in March 2006 as a result of which Anderson J on 20 March 2006, also refused to discharge the order. 

5. The complete history of Mr Deering’s detention and the events which have occurred up to the time of the application in March 2006 have been dealt with in those respective judgments and I shall not repeat them here. 

6. Unless otherwise ordered Mr Deering’s licence would have automatically lapsed on 24 January 2009.  Therefore, on 21 January 2009 I made an interim order on application of the Director of Public Prosecutions that Mr Deering’s licence would not expire until the determination of the matter.

7. For the purpose of determining this application I have had the benefit of a number of reports including a report from Mrs Nelson QC the Presiding Member of the Parole Board dated 12 December 2008, a report from Dr Harry Hustig, Director of Rehabilitation Services at Glenside dated 24 November 2008 and a report from Dr Craig Raeside, Consultant Psychiatrist dated 5 December 2008.  Both psychiatrists have a long history of dealings with Mr Deering and I am indebted to both of them for their thorough and helpful reports. 

8. This is indeed a sad case, however on the basis of the material before me, I am in no doubt about my decision. 

9. Both Dr Raeside and Dr Hustig support the application of the Director of Public Prosecutions that the order for detention not be discharged at this stage. 

10. In Dr Raeside’s opinion Mr Deering’s condition remains essentially unchanged.  Both Dr Raeside and Dr Hustig have expressed the view that Mr Deering is unlikely to successfully integrate back into the community, that he has little insight into his psychiatric condition, has never expressed remorse about his actions, continues to display some inappropriate behaviour at different times and remains a relatively high risk if released into the community. 

11. One of the most unfortunate aspects of this matter is that the position that Mr Deering now finds himself is unlikely to change given the state of resources available to the Community Mental Health Services in South Australia.  As Dr Hustig noted:

    It is unfortunate that the Community Mental Health Services have not progressed significantly since 2005 and I would not recommend Mr Deering’s release to the Community given the current lack of resources to supervise his psychiatric condition and I believe that it would be of detriment to his quality of life should he be placed in the community without sufficient safeguards and supports.

12. As Anderson J noted in 2006, one of the ironies of this situation is that the institutionalisation of this man by virtue of his indeterminate detention, has become in part, a reason for his inability to progress towards rehabilitation.  However, there is not, and has not been, any viable alternative apparently within the current framework of the mental health services offered in this state to assist Mr Deering to progress into some sort of secure accommodation that is perhaps not as restrictive as the current environment.  The need to investigate the possibility of an alternative but secure environment for Mr Deering will become urgent at some stage over the next three years if, as foreshadowed in submissions before me, secure accommodation at Glenside will no longer be available to persons such as Mr Deering. 

13. It would be a tragic state of affairs if the only factor which was to lead to any change in Mr Deering’s current circumstances, would be the progression of Parkinson’s Disease with which he has now been diagnosed. 

14. Nevertheless, in the light of all of the material currently before me and taking into account the submissions of counsel for the Director, I consider that it is appropriate that this application be granted.  The level of risk to the community would be too high if I do not make the order.

15. Therefore I make the formal order that under the provisions of s 24(11) of the Criminal Law (Sentencing) Act 1988 the order for detention of Mr Peter Charles Deering under Part 2 Division 3 of the Act, not be discharged for a period of three years commencing from today 25 February 2009.