R v Deering - [2006] SASC 77

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v DEERING
Reasons for Decision of The Honourable Justice Anderson
20 March 2006
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
CRIMINAL LAW - MENTAL IMPAIRMENT PROVISIONS - ORDER FOR DETENTION - APPLICATION FOR EXTENSION
Application for an order that order for detention not be discharged - respondent suffering from paranoid schizophrenia - respondent convicted of rape - released to Glenside Hospital on licence - order about to expire - application to cross-examine psychiatrists allowed - opinion of two psychiatrists in cross-examination and in supporting affidavits, respondent is not fit to be released - lack of understanding of illness - lack of remorse - likelihood that the respondent will discontinue his medication if released - order made that the order for detention of respondent not be discharged.
Criminal Law (Sentencing) Act 1988 s 24(11); Criminal Law Consolidation Act 1935 s 77A, referred to.

R v DEERING
[2006] SASC 77
Criminal

ANDERSON J This is an application made pursuant to s 24(11) of the Criminal Law (Sentencing) Act 1988 by the Director of Public Prosecutions for an order by the court that an earlier order for detention of the respondent not be discharged Section 24(1) states:
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.
On 10 September 1986 Mr Deering was convicted of four counts of rape involving one victim. On 16 December 1986 he was declared incapable of controlling his sexual instincts, and, pursuant to the relevant legislation at the time, s 77A of the Criminal Law Consolidation Act 1935, an order was made that the respondent be detained in an institution at Her Majesty’s pleasure.
In 1998, the respondent applied to have the order for indeterminate detention discharged. Wicks J refused this application and he ordered, that pursuant to s 24(11) of the Criminal Law (Sentencing) Act 1988 that the order for detention not be discharged.
Again in January 2003 Martin J made an order that the detention order not be discharged. At that time he had before him a letter from the Parole Board, a letter from Mr Deering’s Community Corrections Officer, a letter from the Case Management Consultant, a letter from the Adelaide Community Correctional Centre and two letters from Mr Deering’s treating psychiatrists, Mr P Norrie and Dr C Litvinenko, and a also transcript from an interview between the Parole Board and Mr Deering.
On 18 January 2006 I made an order that the order for detention of the respondent not be discharged for a period ending 24 April 2006. Generally, under s 24(11) of the Act, the licence will not expire for a period of three years. However, I was informed in the course of this last application that Mr Deering wished to cross-examine the two psychiatrists whose affidavits were relied upon by the Director in his application. The doctors were not available at this time due to other commitments. I therefore ordered a limited extension of the licence to allow Mr Deering’s counsel the opportunity to cross-examine Dr Raeside and Dr Hustig without having to wait three years for the licence to expire.
In support of the most recent application dated 15 February 2006, the Director tendered an affidavit containing a number of reports, including reports from Dr Craig Raeside and Dr Harry Hustig. Mr Deering’s solicitor issued a subpoena to Glenside Hospital to produce to the Court “the complete clinical file, pertaining to his admission to Glenside”. These records were before me for this present application. I was asked to peruse the whole of the records and I have done that.
On 1 March 2006 I heard this application. Both doctors were cross-examination by Mr Longson who appeared as counsel for Mr Deering.
In his report dated 19 December 2005, Dr Raeside summarised his views as follows at p 6 of his report:
(Mr Deering) continues to have chronic psychotic symptoms including psychotic thought disorder, auditory hallucinations until at least recently, and probably underlying paranoid delusional ideas. He has not demonstrated any remorse or apparent consideration for the offences or the victim in the mater. There is evidence that he has continued to act in an inappropriate sexual manner at times. He has shown differences in the way in which he responds to female staff compared to male staff.
Overall, I believe that Mr Deering continues to represent a significant risk to the community. He has demonstrated serious sexual offending whilst in the community and despite many years as an inpatient with optimal antipsychotic and anti-hormonal treatment continues to demonstrate inappropriate sexual behaviour and lack of insight. I believe the combination of Mr Deering’s chronic psychotic illness and his ongoing risk of violent sexual behaviour makes him unsuitable to be released into the community unless under very strict supervision, which I would not be confident at this stage would be available.
Dr Hustig, in his report dated 23 December 2005, expressed similar concerns. In particular, he stated that:
There has been an ongoing concern that (Mr Deering) still engages in appropriate sexual rumination…
I do not believe that it is appropriate for Mr Deering to be discharged from his current conditions of licence, nor do I believe that the community psychiatric or forensic mental health services have developed to such an extend that he could be adequately monitored in the community.
In cross-examination, both doctors gave informed and incisive opinions of Mr Deering’s rehabilitation process, his prospects of living successfully in the community, the extent and seriousness of his psychotic illness and the mental health facilities that exist and that may be suitable for Mr Deering if he is released. Both doctors reaffirmed in cross-examination the opinion they expressed in their reports and elaborated on why they held the views that they did.
Dr Raeside emphasised the factors leading to his conclusion that Mr Deering should not be discharged from his current licence conditions. In particular, he highlighted Mr Deering’s “lack of insight” into what occurred when he committed the rapes, his “lack of remorse” and a “longer string of aggressive behaviour during the 10 years before the rapes, associated with his poor mental health.” He also drew my attention to the fact that the nature of Mr Deering’s illness is such that it is unlikely to have “burnt out.” If Mr Deering was to be released, his lack of understanding of his illness would be likely to lead to him discontinuing his medication and it is likely that he would become psychotic again if not immediately, then eventually. This could occur without any outward warning and “if he becomes more psychotic then his risk of aggression, not necessarily sexual aggression, increases significantly.”
Dr Hustig, Director of Rehabilitation Services, also confirmed his opinion, as expressed in his report, that “it is not appropriate for Mr Deering to be discharged from his current conditions of licence.” In cross-examination Dr Hustig stated that:
… attempts to rehabilitate Mr Deering had not been successful beyond a base grade level. The problem we have is that we Mr Deering’s level of engagement, we are stuck at just really monitoring his behaviour and reinforcing a regime that leads him not to engaging in any inappropriate behaviours.
Finally, Dr Hustig confirmed that his opinion had not changed in relation to Mr Deering and that “it is appropriate for Mr Deering to be discharged from his current conditions of licence and nor do I believe that the community, psychiatric or forensic mental health services have developed to such an extent that he could be adequately monitored in the community.”
From the reports provided to me, my perusal of the subpoenaed documents and also the cross-examination of the authors of those reports, there is no doubt that Mr Deering’s case is a very sad one. As a result of the nature of his illness, the limited resources available to the treating psychiatrists and the state of the mental health system itself, Mr Deering has been deprived of his liberty for a period much longer than would have been the case had he been sentenced to a term of imprisonment for the rapes.
The fact is that it is the insidious nature of his illness which prevents Mr Deering from taking the next step towards rehabilitation and the chance to live again in the community. He can’t take that essential step because his illness has not allowed it and without that step he has to remain institutionalised as he has been for many years. The irony is that the institutionalisation has in part been a cause of his inability to progress, but for the reasons expressed by the experts, there is no viable alternative within the present system of mental health in this State.
However, on the evidence before me, I have no doubt in my mind that Mr Deering should not be released from his licence conditions and accordingly, I order that pursuant to s 24(11) of the Criminal Law (Sentencing) Act1988, the order for detention of the respondent, Peter Charles Deering, under Division 3 Part 2 of the Criminal Law (Sentencing) Act 1988 not be discharged for a period of three years commencing 24 January 2006.