R v H, LB

[2012] SASC 199

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v H, LB

[2012] SASC 199

Judgment of The Honourable Justice Nyland

2 November 2012

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE

Defendant charged with three counts of attempted murder - defendant found mentally incompetent to commit those crimes - objective elements of each crime established - defendant declared liable to supervision - limiting term of 13 years and six months fixed to commence from today - defendant released on licence to reside at Teen Challenge rehabilitation facility.

Criminal Law Consolidation Act 1935 (SA) ss 269FB, 269O, 270A, 269T, referred to.

R v H, LB
[2012] SASC 199

1. NYLAND J:          The defendant was charged with three counts of attempted murder, the victims being her three children who at the relevant time were aged about 17, 11 and 3.  They were passengers in the defendant’s car which she drove into a tree at Ingle Farm.  Fortunately, neither the defendant nor any of the children suffered any significant injury in that collision. 

2. The defendant pleaded not guilty to all three charges.  I subsequently undertook an inquiry as to the defendant’s mental competence to commit the offences of attempted murder.  On 24 January 2012 I recorded a finding that the defendant was mentally incompetent to commit those crimes, but I found that the objective elements of each of the crimes of attempted murder had been established.[1] Pursuant to s 269FB(3) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”) I found the defendant not guilty of attempted murder, but I declared her liable to supervision. I then adjourned further consideration of the matter to obtain medical reports to assist in making final orders with respect to the defendant’s future disposition.

   [1]    See Ruling as to mental competence delivered on 24 January 2012.

3. Pursuant to s 269O(2) CLCA, upon the making of a Supervision Order, the Court is obliged to fix a limiting term. The limiting term is a term which is equivalent to the period of imprisonment that would have been appropriate if the defendant had been convicted of each of the offences with which she had been charged. Section 270A(3) CLCA prescribes that the penalty for the crime of attempted murder is life imprisonment or imprisonment for some lesser term.

4. In addition to fixing the limiting term, it is necessary to consider s 269O CLCA which requires me to consider whether I should make an order committing the defendant to detention or whether it is appropriate to release the defendant into the community by way of a licence on certain specified conditions.

5. Pursuant to the provisions of s 269T CLCA, following the making of the supervision order, I obtained a number of medical reports detailing the defendant’s problems and discussing proposals as to her future. Dr O’Brien provided a report dated 8 May 2012. Dr Raeside provided two reports dated 27 February 2012 and 27 April 2012 respectively. I also received a report dated 30 April 2012 from Dr Shepherd, who in the past was the defendant’s treating psychiatrist. Dr Furst treated the defendant during the period of her detention at James Nash House, and he provided two reports dated 11 June 2012 and 18 July 2012 respectively. I have also been assisted by the reports provided by Ms D’Alessandro concerning the attitudes of the victims and next of kin. In addition, I have had regard to the victim impact statements, one of which was read out in court at the hearing in June this year.

6. It is unnecessary to discuss the circumstances surrounding the charged offences in any detail, as they were set out in the ruling delivered on 24 January 2012.  Although the defendant’s subjective intention in acting as she did is not relevant to this part of the proceedings, I accept the submission of her counsel that the defendant acted impulsively, apparently out of some misguided belief that she would be protecting the children from pain by taking them to heaven.  However, the defendant’s actions have clearly had a significant impact on all of the children and, understandably, concern has been expressed through all of the victim statements about the need to ensure their ongoing protection and safety.

7. Having taken into account all of the circumstances, and bearing in mind that the defendant was detained in James Nash House on 10 May 2012, I fix a limiting term, which relates to all three offences, of thirteen years and six months.   That term will commence from today.

8. Having fixed the limiting term it is necessary to determine whether I should make an order for the defendant’s detention or whether she should be released on licence.  The resolution of this aspect of the matter has been the subject of considerable ongoing debate and medical assessments, which has caused some delay in the finalisation of this matter.  At the present time the defendant is residing in a place called Teen Challenge, which is a rehabilitation residential program located at Elizabeth.  On 2 August this year, prior to the defendant being released to Teen Challenge, Ms Louise Holly, the original founder of Teen Challenge and one of the current program managers, gave evidence about the supervision and the programs available at  that facility.  It was primarily as a result of her evidence that I decided to provide the defendant with the opportunity to take part in their programs while residing at Teen Challenge on home detention bail conditions.  Dr Furst also provided me with detailed information about the Teen Challenge program.  He thought that the defendant would benefit from the intensive long term programs which they offer, as opposed to simply being detained at James Nash House.  However, the defendant’s initial stay at Teen Challenge was on a probationary basis.  In order to finalise this matter, it has been necessary to obtain further reports. I subsequently received a report from Dr Furst dated 19 September 2012, another from Dr Raeside dated 2 October 2012 and a third from Dr O’Brien dated 8 October 2012.

9. In the course of her discussion with the various medical practitioners the defendant indicated a desire to be released into independent living in the community.  However, I am satisfied from the reports that it is too early for that to occur.  The doctors noted the defendant’s complaints about the difficulties she was experiencing at Teen Challenge and, whilst they had some sympathy for her situation, the consensus of opinion was that the defendant’s continuing participation in the Teen Challenge program provided the best opportunity for her rehabilitation.  Although there was a concern that the defendant may have difficulty in completing the proposed 12-month program, the doctors considered that the Teen Challenge program  would provide the defendant with the necessary drug rehabilitation she required and would also focus on problems which related to the defendant’s underlying personality and decision-making.  Successful completion of that program will augur well for the defendant’s release back into the general community.  I have therefore decided that instead of committing the defendant to detention, it is appropriate to make an order for the defendant’s release on licence but only on the condition that the defendant remain at Teen Challenge for the time being as well abiding by other necessary terms and conditions, the focus of which will be on the care and protection of the children.  Having heard detailed submissions from counsel for the prosecution and the defence about appropriate conditions to include in the order for release, I make the following order:

   1.That the defendant be subject to a supervision order pursuant to Section 269O(1)(b)(ii) of the Act.

   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 any 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 reside at Teen Challenge, 7 Wishford Road, Elizabeth, South Australia and comply with all the rules and conditions set down for her participation and residence by the Teen Challenge Program Manager, or Co-ordinator Education and Counselling.

   (d)That the defendant not leave the address referred to in paragraph (c) unless:

   i. to avert the risk of injury or death to herself or others, or

   ii.       to obtain urgent essential medical treatment, or

   iii. with the prior approval of her Community Corrections Officer, and

   iv. any such absence to be in the company of a member of staff of Teen Challenge, unless to avert the risk of serious injury or death to herself or others..  

   (e)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.

   (f)That the defendant submit to random screening of her blood at the direction of the Director or the nominee, to ensure compliance with medication.

   (g)That the defendant not use, possess or administer any narcotic or psychotropic drug which is not medically prescribed by a legally qualified medical practitioner, and further that any drugs which are prescribed to the defendant by a medically qualified practitioner be possessed or administered by the defendant only at the prescribed or recommended dosages.

   (h)That the defendant comply in every respect with the treatment plan prepared and in force from time to time pursuant to Section 269Q(2) of the Act.

   (i)That the defendant not consume alcohol.

   (j)That the defendant’s case be managed by the Forensic Community 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.

   (k)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.

   (l)That the defendant shall submit herself for breath and or urine testing as directed by her Community Corrections Officer, for the purpose of determining whether there is present in her body any illicit or non-prescribed drug or alcohol, with no more than twenty one (21) days to pass between testing.

   (m)That the defendant not depart or attempt to depart from the State of South Australia without the prior written permission of the Parole Board.

   (n)That the defendant be of good behaviour and commit no violation of the law.

   (o)That the defendant not occupy the driver’s seat of any vehicle, or attempt to put any vehicle into motion.

   (p)That the defendant not engage in prostitution.

   (q)That the defendant is not to contact or communicate either directly or indirectly (including via telephone, email, letter or by any other electronic means, including social media) with DR or attend within 100 metres of his work place or place of residence at (SUPPRESSED).

   (q.i)That the defendant is not to contact or communicate either directly or indirectly (including via telephone, email, letter or by any other electronic means, including social media) LR and MR or attend within 100 metres of their place of residence at (SUPPRESSED)

   (q.ii)That the defendant is not to contact or communicate either directly or indirectly (including via telephone, email, letter or by any other electronic means, including social media) KM and DM or attend within 100 metres of their place of residence at (SUPPRESSED).

   (q.iii)That the defendant is not to contact or communicate either directly or indirectly (including via telephone, email, letter or by any other electronic means, including social media) JR or attend within 100 metres of her place of residence at (SUPPRESSED).

   (q.iv)That the defendant is not to attend at any day care centre or school  where OH is enrolled.

   (q.v)That the defendant not attend at any school function, of a school that OH is enrolled, that is held at a location outside of the school grounds.

   (q.vi)That the defendant not be in the company of OH unless an adult is present at all times. That adult is not to be a person undertaking the Teen Challenge programme.

   (r)That any contact the defendant may make with HA whether via telephone, email, social media or by letter is not harassing, threatening or intimidating.

   (r.i)That the defendant not be in the company of J unless an adult is present at all times. That adult is not to be a person undertaking the Teen Challenge programme.

   (r.ii)That the defendant is not to telephone, text, email or use social media to contact J, without the prior approval of HA.

   (r.iii)That the defendant not attend at any school in which J is enrolled.

   (r.iv)That the defendant not attend at any school function, of a school that J is enrolled, that is held at a location outside of the school grounds. This condition is subject to condition r.v.

   (r.v)That J be able to nominate if he would like more or less contact with the defendant..

   (s)That JH be able to nominate the amount of contact he wishes to have with the defendant.

   (s.i)That JH not be the adult for the purposes of supervising contact between the defendant and J and/or O.

   (t)If the defendant is discharged or removed from Teen Challenge then she is to contact her community corrections officer immediately.

   (u)That the defendant obey any orders that have been, or maybe made by the Family Court of Australia in relation to the custody of J and/or O.

   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.