R v Quinlivan - [2011] SASC 235

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v QUINLIVAN
[2011] SASC 235
Reasons for Decision of The Honourable Justice Sulan
22 December 2011
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED - DETERMINATION OF ISSUES
MENTAL HEALTH - CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS
Defendant charged with two counts of aggravated acts endangering life contrary to s 29(1) of the Criminal Law Consolidation Act 1935 (SA) ("the Act") and three counts of aggravated acts creating risk of serious harm contrary to s 29(2) of the Act - five co-accused previously sentenced in relation to the same offending - defendant declared mentally unfit to stand trial pursuant to s 269M(5) of the Act - objective facts of offending proved beyond reasonable doubt - whether the defendant be released on licence - if so, what limiting term should be set.
Held: It is appropriate that the defendant be released on licence - limiting term set of nine years - there is no reason to distinguish between the defendant and the co-accused who received sentences of imprisonment - the defendant's involvement was of the same order as the three co-accused who previously received sentences of nine years' imprisonment.
Criminal Law Consolidation Act 1935 (SA) s 29(1), s 29(2), s 269M(5), s 269Q, s 269R, s 269T, s 269O(1)(b)(ii), s 269O(2), referred to.

R v QUINLIVAN
[2011] SASC 235

SULAN J: Trudy Louise Quinlivan was charged with two counts of acts endangering life contrary to s 29(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”), and three counts of acts creating risk of serious harm contrary to s 29(2) of the Act. In each case, the alleged offence was aggravated. For the offence contrary to s 29(1), the maximum penalty is 18 years’ imprisonment. For the offence contrary to s 29(2), the maximum penalty is 12 years’ imprisonment.
On 17 June 2011, Duggan J, having considered reports of two psychiatrists, Dr Branson and Dr Tomasic, and of a neuropsychologist, Mr Reid, concluded that, pursuant to s 269M(5) of the Act, the defendant was mentally unfit to stand trial. On that day, Duggan J found the objective facts to be proved beyond reasonable doubt.
The objective facts were as follows. Between 28 February 2008 and 23 June 2008, the defendant was living at Parafield Gardens with Luke Andrew Armistead, Tania Maria Staker, Robert Armistead, Michael Benjamin Quinlivan and a woman, whom I shall refer to as AB. Also living at the house were 21 children. Five of the children were children of AB. Two of the children were victims of the two offences of aggravated acts of endangering life, and three of the children were victims of the three offences of aggravated acts of creating risk of serious harm. The children were aged between four and seven years at the time of the offences.
Luke Armistead is the father of the children. He and AB separated in 2004 when Luke Armistead began a relationship with Tania Staker, who is the sister of Michael Quinlivan. AB commenced a relationship with Michael Quinlivan. The defendant was in a relationship with Robert Armistead at the time of the offences.
The other 16 children living at the house were children of various adults, including Tania Staker.
In late 2005, Tania Staker and Luke Armistead came to South Australia with a number of children. They had come from Geelong, Victoria. Later, other adults joined them. The adults embarked upon a common purpose of treating the children of AB in a particularly cruel way by subjecting them to a daily routine of punishment. The children were deprived of food. They were required to stand against a wall for lengthy periods. They were kept in inhumane conditions. Their condition deteriorated to a point where one of the children lapsed into unconsciousness with a life-threatening condition, and was taken to hospital. At that stage, authorities investigated and discovered the extent of the ill-treatment of the other children. The children were badly malnourished, and both physically and psychologically harmed.
On 11 February 2011, Duggan J determined that Tania Staker played a more significant role in the offences than the other occupants of the house, as she resented and hated AB and her children. Luke Armistead, Robert Armistead and Michael Quinlivan played a subsidiary role, but participated in the maltreatment of the children.
Counsel for the defendant accepts that her participation was similar to that of Luke and Robert Armistead and Michael Quinlivan. Duggan J sentenced Luke Armistead, Robert Armistead and Michael Quinlivan to nine years’ imprisonment. Tania Staker was sentenced to ten years’ imprisonment.
After the defendant was found unfit to stand trial, reports were ordered pursuant to s 269Q and s 269R of the Act. Section 269Q requires a psychiatric or other appropriate expert’s report on the mental condition of the defendant, which contains a diagnosis and prognosis of the defendant’s condition and the suggested treatment planned for managing that condition. Section 269R requires the provision to the Court of a report setting out the views of the next of kin of the defendant, and the victim or victims of the defendant’s conduct.
A report pursuant to s 269Q was provided by Dr Tomasic on 26 July 2011, in which she concluded that the defendant has an intellectual disability which is permanent. The defendant requires appropriate support, monitoring and treatment. Dr Tomasic recommended that the defendant be monitored by her Community Corrections Officer, that she regularly visit her general practitioner, and that she be assessed by Disability SA to determine her needs for support and involvement in programs that will be useful to assist her to cope with her life.
A report pursuant to s 269R setting out the views of Families SA, under whose care the victims have been placed, was received. A further report from the mother of the defendant, with whom the defendant resides, has also been received. Families SA and the defendant’s mother expressed some concerns about the defendant. Those concerns have been addressed in the licence conditions which I propose to impose. The defendant has been on bail since her arrest.
Section 269T of the Act requires the Court, before releasing a defendant on licence, to have considered at least three expert reports prepared by different psychiatrists or other appropriate experts who have personally examined the defendant and reported on the defendant’s mental condition and the possible effects of the proposed action on her behaviour. Reports were received from Drs Branson, Tomasic and Brereton, which I have considered. Each psychiatrist agrees that the defendant suffers from a permanent intellectual disability. They all agree that the defendant requires supervision and support. Each agrees that the defendant should be released on licence on a treatment plan.
I consider it is appropriate that the defendant be released on licence. In determining the conditions of her licence, I have had regard to the reports to which I have referred, and I have had regard to the requirements of s 269T of the Act. I am satisfied that the requirements of s 269T have been satisfied.
Section 269O(2) requires me to set a limiting term if a supervision order is to be made. The limiting term must be the equivalent period of imprisonment 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.
There is no dispute that the defendant’s involvement with the maltreatment of the children was of the same order as her then partner, Robert Armistead, Luke Armistead and Michael Quinlivan, all of whom have received sentences of nine years’ imprisonment. The defendant’s counsel does not submit that a limiting term of less than nine years should be ordered. I consider that there is no reason to distinguish between the defendant and the others who were dealt with at an earlier hearing and who received sentences of imprisonment. I therefore set a limiting term of nine years, to commence on 22 December 2011.
The conditions of the supervision order, which I require the defendant to acknowledge, are:
1.That the defendant be subject to a supervision order pursuant to s 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 or medical practitioner nominated by the Director (“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, particularly with respect to attending courses on parenting skills, work skills and literacy and appointments with Families SA and Disability SA.
(c) The defendant is to report to the Office of the Department for Correctional Services at Elizabeth within two working days of signing this order.
(d)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 prescribed or recommended dosages.
(e)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.
(f)That the defendant reside initially at 23 Tregenza Court Parafield Gardens, South Australia, and that she not thereafter change her residence without the written permission of the Parole Board or her Community Corrections Officer.
(g)That the defendant not depart or attempt to depart from the State of South Australia without the prior written permission of the Parole Board.
(h)That the defendant not contact or approach, directly or indirectly, the children of AB.
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 forthwith 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 forthwith make an application to this Court for a review of the supervision order which in cases of urgency may be made at short notice.