R v McConnell (NO. 2) - [2019] SADC 30

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v MCCONNELL (NO. 2)
[2019] SADC 30
Reasons for Decision of Her Honour Judge McIntyre
21 March 2019
CRIMINAL LAW
The defendant has been declared liable to supervision under part 8A of the Criminal Law Consolidation Act 1935 in respect of the offence of Cultivating a Large Commercial Quantity of a Controlled Plant For Sale, contrary to section 33B(1) of the Controlled Substances Act 1984. Consideration of release on licence, conditions of licence and limiting term.
Held: The defendant is to be released on licence under s269O of the Criminal Law Consolidation Act 1935 with a limiting term of 4 years.
Controlled Substances Act 1984 s33B(1); Criminal Law Consolidation Act 1935 Part 8A, s269F, s269Q, s269R, s269T, s269(O), referred to.
R v McConnell [2018] SADC 111, considered.

R v MCCONNELL (NO. 2)
[2019] SADC 30

Mathew Dylan McConnell was charged on information in this court with one count of Cultivating a Large Commercial Quantity of a Controlled Plant For Sale, contrary to section 33B(1) of the Controlled Substances Act 1984 (the offence). Mr McConnell has been declared liable to supervision in respect of that offence under part 8A of the Criminal Law Consolidation Act 1935 (“the Act”).
I have determined that it is appropriate that Mr McConnell remain in the community and be released on licence under s269O of the Act. I have further determined that a limiting term of 4 years is appropriate.
These are the reasons for my decision.
Background
An investigation into the defendant’s mental competence to commit the offence took place on 26 October 2018. I found, on the balance of probabilities, that Mr McConnell was suffering from a mental impairment, paranoid schizophrenia, at the time of the offending and in consequence of that impairment did not know that the conduct was wrong. Accordingly, Mr McConnell was at the time of the offence mentally incompetent to commit the offence. My reasons for decision were delivered on 9 November 2018.[1] On the same day counsel for the Director of Public Prosecutions tendered the declarations in relation to the offence. These were not contested by defence. Having considered the content of the declarations, I was satisfied that the objective elements of the offence had been proved beyond reasonable doubt. I recorded that finding under s.269F of the Act. I further recorded a finding that Mr McConnell was not guilty of the offence by reason of his mental incompetence at the time but that he was liable to supervision under Division 4 of the Act. I ordered reports under s.269Q, s.269R and s.269T of the Act.
[1] R v McConnell [2018] SADC 111
I was subsequently supplied with the following reports.
·Dr Ian Jennings, Consultant Forensic Psychiatrist two reports (under s.269Q and s.269T) dated 8 February 2019; and
·Mr Holden Ward, Court Report Writer/Social Worker, (under S269R and s269Z of the Act) dated 8 January 2019.
The statutory scheme
Section 269O of the Act provides that a court, in these circumstances may release the defendant unconditionally, make a supervision order committing the defendant to detention or release the defendant on a licence with conditions decided by the court and specified in the licence.
Section 269O(2) requires that if a 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 have been appropriate if the defendant had been convicted of the relevant offence.
The court must have regard to all matters that would usually be relevant to the fixing of a sentence except matters that are based upon or which arose out of the defendant’s mental impairment. The limiting term must be fixed by reference to the head sentence of imprisonment that would have been appropriate and not the non-parole period. Furthermore, the court is obliged to have regard to the matters specified in s.269T (1) of the Act.
The defendant’s personal circumstances and mental condition
Mr McConnell is 32 years of age. He was born in Adelaide. He has a younger brother. His parents separated when he was 13. He remained living with his mother until he was 15 years of age when he moved in with his father. Some years later he lived with a partner for a period of time. They had a son born in 2008. The relationship broke down and Mr McConnell returned to live with his father. He is currently living with his father. He has a good relationship with both of his parents and his brother. He has access to his son on alternate week ends.
Mr McConnell has worked in a variety of jobs most recently at a meatworks. He is currently unemployed and in receipt of a Centrelink benefit.
Mr McConnell has a long-standing history of paranoid schizophrenia. This history is well documented in the various reports tendered during the investigation into Mr McConnell’s mental competence, the evidence of Dr Jennings on that occasion and in the s.269Q, R and T reports referred to above.
Dr Jennings, in his most recent reports of 8 February 2019 indicates that Mr McConnell’s condition responds well to anti-psychotic medication. He relapses when he does not take that medication. This offending occurred in the context of a relapse. Following his arrest for this offence Mr McConnell was admitted to Glenside Hospital. He was discharged from Glenside once his symptoms stabilised. Given his residence in country South Australia Mr McConnell received community psychiatric follow-up for only 6 months. His condition remained stable during that time. He was then discharged to receive follow-up treatment from his general practitioner who continues to provide prescriptions for anti-psychotic medication. Dr Jennings expresses concern that the follow-up reviews with his general practitioner only occur on a 6-monthly basis. He recommends that these take place on an at least three-monthly basis in order to pick up any potential relapse into psychotic symptoms.
Dr Jennings notes however that Mr McConnell appears to have good insight into his illness and an understanding that he needs to continue taking his anti-psychotic medication. Dr Jennings says that Mr McConnell has remained very stable with no ongoing symptoms in the two years since the offence. Dr Jennings further notes that Mr McConnell has good support from his parents with stable accommodation and regular contact with his 10-year-old son.
Dr Jennings recommends that Mr McConnell has support in seeking appropriate employment with an employment agency assisting those with mental disabilities.
The report prepared by Mr Ward refers to interviews with Mr McConnell’s parents. Both parents are supportive of Mr McConnell and consider it important that he remains compliant with his medication. Mr McConnell senior thought that Mr McConnell would benefit from support to re-engage in employment and to develop his social relationships. Mr McConnell’s mother expressed similar views. Both of his parents believe that his Glenside Hospital admission in March 2017 served as a positive deterrent and motivation to remain medication compliant.
Mr McConnell has limited antecedents. The only conviction relevant to the current offending is a conviction for cultivation of cannabis and possession of prescribed equipment for which he received a conviction in 2010.
I note that the Director of Public Prosecutions supports Mr McConnell remaining in the community and being released on licence subject to appropriate conditions for treatment.
In all of the circumstances I will order Mr McConnell’s release on licence subject to conditions.
The limiting term
It is necessary to fix a limiting term under s269O by reference to the head sentence that would have been appropriate if the defendant had been convicted of the offence for which the objective elements have been established. The maximum penalty for this offence is a fine of $500,000 or imprisonment for life or both.
The circumstances of the offending are set out in my previous decision. In short, Mr McConnell was found by police to be cultivating 100 cannabis plants in his back garden. The plants were, at the time they were located, immature. The method of cultivation was not sophisticated and Mr McConnell’s efforts to conceal and protect his plants were rudimentary at best. Discovery was almost inevitable. It is fortunate that the police detected the plants before other, malign, actors.
I have had regard to the matters set out in s.11 of the Sentencing Act 2017 excepting those impacted by Mr McConnell’s mental impairment. Mr McConnell has not spent any time in custody. General deterrence is a relevant consideration given the prevalence of illicit cultivation of cannabis in our community however given Mr McConnell’s mental impairment considerations of general and personal deterrence have less relevance than they otherwise would.
In all of the circumstances I consider that an appropriate limiting term is 4 years. I fix that term to commence today.
I will make a supervision order in the following terms:
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 the Director (“the nominee”), and obey any directions given to him 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 continue to receive his 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.
(d)That the defendant submit to random screening of his blood at the direction of the Director or the nominee, to ensure compliance with medication.
(e)That the defendant not possess, use or administer any narcotic or psychotropic drug unless medically prescribed by a legally qualified medical practitioner, and further that any drugs which are prescribed to the defendant by a legally qualified medical practitioner be possessed or administered by the defendant only at prescribed or recommended dosages.
(f)That the defendant not consume alcohol.
(g)That the defendant’s case be managed by the Forensic Community Mental Health 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.
(h)That the defendant attend for no less than three monthly psychiatric reviews by his General Practitioner, or as directed ;by the Forensic Community Health Team.
(i)That the defendant shall submit to breath and or urine testing as directed by his Community Corrections Officer, for the purpose of determining whether there is present in his body any alcohol, or illicit or non-prescribed drug.
(j)That the defendant resides initially at 41 Lipson Avenue, Kadina, and that he not thereafter change his residence without the permission of the Parole Board.
(k)That the defendant not depart, or attempt to depart, from the State of South Australia without the prior written permission of the Parole Board.
(l)That the defendant not possess a firearm, ammunition, or any part of a firearm.
(m)That the defendant submits to tests, including testing without notice, for gunshot residue.
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.
4.If 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.
5.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.