R v Ridings - [2008] SASC 366

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v RIDINGS
[2008] SASC 366
Judgment of The Honourable Justice White
22 December 2008
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY
MENTAL HEALTH - CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS
Following a finding that the applicant was mentally unfit to stand trial for the offence of murder, a supervision order was made under s 269O of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and he was committed to detention – Applicant has been detained at James Nash House and later at the Glenside Hospital – Applicant now applies, under s 269P of the CLCA, for a variation of his supervision order and a release on licence permitting him to make a gradual transition to residence in the community.
Three psychiatrists concluded that the applicant’s mental condition is now relatively stable and that, provided he continues to receive adequate treatment, will remain so – All three psychiatrists conclude that the release of the applicant into the community is appropriate.
Consideration of ss 269S and 269T of the CLCA – consideration of views of next of kin of applicant and of victim.
Held: While attitudes of the next of kin of the victim and of the applicant must be considered on an application for an order under s 269P, the overriding consideration for the court is the minimum restriction to be placed on the applicant’s freedom and personal autonomy which is consistent with the safety of the community – applicant’s threat to community now reduced – supervision order varied to permit a gradual transition to residence in the community.
Criminal Law Consolidation Act 1935 (SA) s 269O, s 269P, s 269S, s 269T, s 269Q; Criminal Law Consolidation Act 1935 - 1996 (SA) s 293, referred to.
Advertiser Newspapers Ltd & Anor v V & Anor (2000) 211 LSJS 100; R v Weiss (2001) 214 LSJS 357; R v Tzeegankoff (Unreported, Suprme Court of South Australia, Bleby J, 28 April 1998, Judgment No S6639), applied.

R v RIDINGS
[2008] SASC 366
Criminal

WHITE J: The applicant was charged with the offence of murder, alleged to have been committed on 3 September 2005. However, the question of his mental competence to stand trial was raised. Part way through the hearing concerning his mental competence, the Director of Public Prosecutions accepted, on the basis of the medical evidence which had been given and which was to be given, that the applicant was not fit to stand trial.
Subsequently, I made a finding that the applicant was mentally unfit to stand trial and recorded a finding that the objective elements of the offence of murder on 3 September 2005 had been established. I then declared the applicant liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA) (CLCA). After receiving further reports, including reports based on interviews with the next of kin of both the victim and the applicant, I made a supervision order under s 269O and committed the applicant to detention under Part 8A of the CLCA. In addition, under s 269O(2), I fixed the term of the applicant’s life as the limiting term.
On 11 August 2008, the applicant applied for a variation of the supervision order. He sought an order releasing him on licence on terms to be fixed by the Court but which would permit him to reside at his father’s residence, then at Echunga. After the application was filed, the applicant’s father moved to Macclesfield and it seemed that the Court would be asked to make an order permitting the applicant to live with his father at his new home. However, while the applicant’s treating psychiatrist, Dr Nambiar, considers that a staged transition of the applicant into the community is now appropriate, he considers that this would be best achieved by a gradual transition through a community rehabilitation centre. The applicant now seeks a release on licence which would permit him to move gradually into the community in the way proposed by Dr Nambiar.
Section 269P of the CLCA permits a court to vary or revoke a supervision order made under s 269O. An order committing a defendant to detention may be varied so as to permit the release of the defendant on licence on conditions decided by the court and specified in the licence.
In determining the application, the court must apply the principle that restrictions on the applicant’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community (s 269S). In addition to acting on that principle, the court must have regard to the matters specified in s 269T. That section, in subsections (1) and (2), provides:
(1)     In deciding proceedings under this Division, the court should have regard to—
(a)     the nature of the defendant's mental impairment; and
(b)     whether the defendant is, or would if released be, likely to endanger another person, or other persons generally; and
(c)     whether there are adequate resources available for the treatment and support of the defendant in the community; and
(d)     whether the defendant is likely to comply with the conditions of a licence; and
(e)     other matters that the court thinks relevant.
(2)The court cannot release a defendant under this Division, or significantly reduce the degree of supervision to which a defendant is subject unless the court—
(a)     has considered at least three reports (expert reports) each prepared by a different psychiatrist or other appropriate expert who has personally examined the defendant, on—
(i)the mental condition of the defendant; and
(ii)the possible effects of the proposed action on the behaviour of the defendant; and
(b)     has considered the report most recently submitted to the court by the Minister under this Division; and
(c)     has considered the report on the attitudes of victims and next of kin prepared under this Division; and
(d)     is satisfied that—
(i)the defendant's next of kin; and
(ii)the victim (if any) of the defendant's conduct; and
(iii)if a victim was killed as a result of the defendant's conduct—the next of kin of the victim,
have been given reasonable notice of the proceedings.
…
Section 269T(2)(a) requires the court to consider the reports prepared by at least three different psychiatrists or other appropriate experts. Accordingly, I directed that three psychiatrists nominated by the Director of Forensic Mental Health Services examine the applicant and provide reports to the Court on his mental condition and on the possible effects of a variation in the terms of his supervision order which would permit him to reside at his father’s home. Subsequently three psychiatrists, Drs Raeside, Brereton and Nambiar, provided reports. Each of those reports indicates that the applicant, who is now forty years old, suffers from chronic paranoid schizophrenia. That condition is now treated appropriately with psychotropic medication and other psychotherapy. The applicant’s mental state is now relatively stable and, providing that he continues to take the medication he is prescribed and is subject to appropriate supervision, is likely to remain so in the future.
When the applicant was arrested on 3 September 2005, he was detained initially at the Adelaide Remand Centre and later at the Yatala Labour Prison. However, when his psychiatric condition was recognised he was transferred to James Nash House where he remained until the end of 2007. At that time he was transferred to the Grove Closed, a secure psychiatric ward at the Glenside Hospital. At that hospital, the applicant has engaged in some day release within the hospital grounds with a nurse and occupational therapists but has not yet had any off ground visits (apart from when necessary to attend medical appointments).
Dr Raeside originally assessed the applicant in relation to the question of his mental competence to stand trial. He has been able to follow the applicant’s progress since 2006. Dr Raeside considers that the applicant had improved considerably by the time of his interview on 12 September 2008. He reported that the applicant “did not display any psychotic features such as perceptual disturbances, delusional ideas or psychotic thought disorder” and concluded:
… I would support Mr Ridings being released into the community to live with his father, based on psychiatric grounds. His psychiatric disorder is now well controlled and I consider him to be a low risk to the community or himself while he continues to be adequately treated. Obviously ongoing assertive community psychiatric follow up would be required. I could find no evidence to suggest that Mr Ridings would be non‑compliant with such treatment.
Dr Brereton interviewed the applicant on 17 September 2008. As I understand it, that interview was his first interaction with the applicant. He took a full psychiatric history. Dr Brereton also reviewed the applicant’s case notes and discussed his progress with ward staff. He noted that the applicant has been “entirely settled” for many months and was fully cooperative with his treatment. Dr Brereton reported that the applicant appeared to have a good insight into his illness, its nature and the need for ongoing medication and mental health input. Dr Brereton considered that since being treated with the medication Clozapine, the applicant’s psychotic symptoms have been virtually eradicated. He also considered that the applicant did not have any antisocial traits to his personality. Dr Brereton considered it appropriate for the applicant to be discharged from hospital into the community to live with his father. He suggested however that the applicant should continue to receive mental health support from a forensic community team and, as appropriate, from local community mental health teams. Dr Brereton concluded:
Mr Ridings’ risk of re-offending is directly related to his mental health. He is currently stable in mental state, virtually free of psychotic symptoms, and the proposed actions are unlikely to destabilize his mental state. His medication is effective, he engages well with his treating team and he has a good supportive relationship with his father with whom he proposes to live. There is no reason to believe he would default from follow-up and should there be any deterioration in his mental state there are measures in place to identify this at an early stage.
Dr Nambiar has been the applicant’s supervising psychiatrist for the past 18 months. He considers a gradual transition into the community to be appropriate. In his report to the Court of 10 December 2008, Dr Nambiar said:
Mr Ridings presents extremely well at the present time and appears to be in complete remission with regard to symptoms of schizophrenia. He is alert and orientated, well groomed, neatly dressed, always appropriate in his behaviour and interactions with others and is able to quite adequately occupy his time within a confined environment.
Later Dr Nambiar said:
The recent risk assessment of Mr Ridings identifies that he has a past history of very few, if any, risks factors prior to the offence occurring. Indeed it is our opinion that Mr Ridings offence occurred primarily in the context of schizophrenia, lack of treatment and the use of illicit substances. With those factors eliminated with his current management, Mr Ridings has a number of premorbid strengths that convey to him a very good prognosis in the future. These include a supportive family, and intact personality with a lack of antisocial features, an ability to maintain concentration and occupy his time productively and several goals that are realistic and achievable.
Dr Nambiar considers that it would be appropriate for the applicant to participate in a staged transition from his present institutionalised care into the community. He proposes that this be done through a community rehabilitation centre. Dr Nambiar contemplates that the applicant would initially commence on day leave at the centre progressing to overnight leave and eventually to full-time residence in the centre. While in the centre he would be supported by mental health staff. Dr Nambiar proposes that the applicant would be gradually reintroduced into the community and, if this transition progresses as expected, would then progress to live with his father over a period of six to twelve months. Dr Nambiar and his team have already had some discussions with the proposed community rehabilitation centre and it is able to accept a placement of the applicant.
In summary, the psychiatric evidence uniformly supports the view that the applicant’s condition is now such that a release on licence into the community would be appropriate.
The Court is also required to have regard to a report on the attitudes of the applicant’s own next of kin and of the next of kin of his victim. I received two reports from a senior social worker employed by the Forensic Mental Health Service as to the attitudes of the next of kin.
The applicant’s parents, who are separated, are both supportive of his application. As noted, the initial proposal was that the applicant should move to live with his father. His mother, who lives not far away, is also in a position to provide some day‑to‑day supervision of the applicant and is very willing to do so. I note that each of the applicant’s parents have provided support to him since he has been detained in custody and in relation to his various court appearances.
The victim’s mother and siblings continue to experience intense grief in consequence of the death of their son and brother. They find it difficult to accept that it would be appropriate for the applicant to be released into the community so soon after the assault which resulted in the victim’s death. They are each opposed to the present application and consider that the applicant should spend more time in detention before release is contemplated.
Those attitudes and feelings are quite understandable, but I do not consider that they should govern the outcome of the application. As pointed out earlier, the statutory scheme contained in part 8A of the CLCA requires the Court to apply the principle that restrictions on the applicant’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community. The principle contained in s 269S has been described as the cornerstone to the operation of the statutory scheme.[1] The effect of 629S is that the court should have regard, as a fundamental matter, to the safety of the community but otherwise should ensure that restrictions on the defendant’s freedom and personal autonomy are kept to the minimum consistent with that safety. Continuing a person in custody for the purposes of retribution or punishment is not an appropriate consideration when determining an application for the variation of a supervision order. The remarks of Bleby J in R v Tzeegankoff[2] in relation to the regime which formerly applied under s 293 of the CLCA are apposite:
It follows that there has never been and cannot be any suggestion of punishment being due to the applicant, or any suggestion that he must remain in secure custody for that reason. The only justification for a person being detained after a finding of not guilty on the ground of insanity is for the protection of himself and of the community – to ensure that the disease of the mind from which he suffers cannot adversely affect others.
….
It must also be clearly understood that a person who has been subject to a detention order under the Criminal Law Consolidation Act is entitled to… enjoy a regime that is the least restrictive of his freedom and personal autonomy as is consistent with the safety of the community. That relaxation is not dependent upon his having served an appropriate period of “punishment”. That is just not a relevant consideration.[3]
[1]    Advertiser Newspapers Ltd & Anor v V & Anor [2000] SASC 366 at [24] – [27]; (2000) 211 LSJS 100 at 106; R v Weiss [2001] SASC 202 at [44]; (2001) 214 LSJS 357 at 365-66.
[2]    (Unreported, Supreme Court of South Australia, Bleby J, 28 April 1998, Judgement No. S6639)
[3]    Ibid at 10. See also R v Weiss [2001] SASC 202 at [43]; (2001) 214 LSJS 357 at 365.
It follows that while I consider the attitudes and feelings of the victim’s next of kin to be quite understandable, they cannot be a dominant consideration in my determination.
I add that I have also had regard to the annual report provided to the Court under s 269Q. As it happens, that report was prepared by Dr Nambiar and indicates the progress which the applicant has made.
On the basis of the psychiatric reports which I have earlier summarised, I do not consider that it would be appropriate to conclude that the applicant would, if released, be likely to endanger other persons. I am satisfied that there are adequate resources available to him for his continued support and supervision whilst completing his transition into the community. There is no reason to suppose that the applicant will not be compliant with the conditions of his release on licence.
In all the circumstances, I am satisfied that the application should be allowed so as to permit a gradual transition of the applicant into the community rehabilitation centre.
However, having regard to the safety of the community, I do consider that it would be appropriate for the Court to review the position again before authorising the applicant to live full-time with his father. Each counsel took a similar view. Accordingly, the conditions which I impose will allow the applicant’s staged transition to full time living at the community rehabilitation centre, and some overnight leave from that centre to his father’s home, but not full time residence in his father’s home. The applicant will be at liberty to seek a further variation in these conditions in due course. I will make orders to give effect to these conclusions.