R v Scalzi - [2014] SASC 133

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v SCALZI
[2014] SASC 133
Reasons for Decision of The Honourable Justice Sulan
10 September 2014
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
Respondent found not guilty of aggravated criminal trespass in a place of residence and two counts of attempted murder by reason of lack of mental competence and ordered to be liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA). In 2006 the respondent was ordered to serve a limiting term of ten years and released on licence with conditions. Respondent has breached conditions of licence on several occasions. He was returned to custody on 13 June 2014 for using illicit substances.
Held:
1 The consequence of the limiting term is that on 4 October 2016 the respondent will be released unconditionally into the community.
2 Every attempt should be made to ensure that when the respondent is unconditionally released he is able to cope with the exigencies of daily life and does not revert to the consumption of illicit drugs.
3 Respondent to be released on licence with enhanced monitoring and drug testing.
Criminal Law Consolidation Act 1935 (SA) Part 8A, s 269O, referred to.

R v SCALZI
[2014] SASC 133
Criminal: Application

SULAN J: On 26 April 2006, Joshua John Scalzi was found not guilty of one count of aggravated serious criminal trespass in place of residence, and two counts of attempted murder by reason of mental incompetence and was declared to be liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA) (‘the Act’).
A person who is declared to be liable to supervision may be released unconditionally, be ordered to remain in detention or may be released on licence under conditions provided under the Act and other conditions decided by the Court.
On 4 October 2006, Nyland J fixed a limiting term of ten years, pursuant to s 269O of the Act. She made a supervision order releasing Mr Scalzi on licence, subject to conditions. At the time, Mr Scalzi was suffering from schizophrenia. His condition was exacerbated by his use of illicit drugs. Mr Scalzi has responded to treatment for his psychiatric condition, which is in remission. However, from time to time he has relapsed into use of illicit drugs.
The conditions imposed by Nyland J on 4 October 2006 included a requirement that Mr Scalzi comply with a treatment plan prepared by his psychiatrist, or an appropriate expert, having regard to Mr Scalzi’s then mental condition. Mr Scalzi also agreed to a number of stringent conditions, including requirements to submit himself to breath or urine analysis at intervals of not less than three days, and that he be under the supervision of a community corrections officer assigned by the Parole Board. He was also required to reside at a nominated residence, and he was to receive medication as required by his consultant psychiatrist.
On 11 January 2007, the Court varied the order and committed Mr Scalzi to detention. On 29 May 2007, he was again granted a release on licence on condition that he reside at James Nash House, with limited permission to leave. On 31 August 2007, the residential condition was varied to permit Mr Scalzi to leave the facility for periods of up to a maximum of five days.
On 21 January 2008, the conditions were further varied to permit Mr Scalzi to undertake study at an educational institution. There were further variations to Mr Scalzi’s licence conditions to permit him to attend specific activities under supervision.
On 23 March 2012, the Director of Public Prosecutions applied for a review of the licence conditions to include increased drug testing of Mr Scalzi. Mr Scalzi had relapsed into ingesting illicit drugs. He was required to submit himself for alcohol and drug testing at least once per fortnight, as directed by a community corrections officer appointed by the Parole Board.
On 30 August 2012, the conditions of licence were varied, including that Mr Scalzi was permitted to reside at 25 Howard Grove, Ridleyton, and was to be supervised by a community corrections officer and be under the care of the Clinical Director of Mental Health Services at James Nash House.
On 27 November 2013, the conditions were again varied requiring Mr Scalzi to be subject to electronic monitoring home detention conditions, and to submit himself to random checks as determined by the community corrections officer or home detention staff. Mr Scalzi continued to reside at the Ridleyton address. He was required to comply with the treatment plan and continue to receive medication as directed.
On 11 June 2014, Dr Nambiar, a consultant forensic psychiatrist reported to the Director of Public Prosecutions that Mr Scalzi had been suspected of being in possession of and using prohibited drugs, particular crystal methylamphetamine. Dr Nambiar reported that, given Mr Scalzi’s past history and patterns of behaviour, and the fact that he was avoiding an appointment, Dr Nambiar concluded that Mr Scalzi was abusing illicit substances.
On 12 June 2014, the Director applied for review of Mr Scalzi’s supervision order, Mr Scalzi having been returned to custody.
On 13 June 2014, Stanley J concluded that there was evidence that Mr Scalzi had been using amphetamines and, considering Mr Scalzi’s past history, directed that Mr Scalzi be returned to immediate detention to enable Dr Nambiar to provide a report in relation to future licence conditions. The matter was adjourned for the provision of that further report.
On 25 July 2014, Dr Nambiar reported that he had interviewed Mr Scalzi who confirmed to him that, for a period of approximately four or possibly six weeks prior to his return to detention, Mr Scalzi had been using amphetamines and cannabis on a regular basis.
Over the six months prior to 25 July 2014, Mr Scalzi had produced a number of dilute urine samples which raised the suspicion of those involved in his care and supervision that he may have been using illicit substances.
On 12 June 2014, a positive reading for both amphetamines and cannabis was obtained.
Dr Nambiar reported that Mr Scalzi appears to have complied with the regime under which he was required to take medication, and that the medication that he was taking reduced the risk of a major relapse by Mr Scalzi into drug abuse.
Dr Nambiar is of the opinion that Mr Scalzi lacked insight into the seriousness of his behaviour. Since his return into detention, Mr Scalzi had been transferred to the Yatala Labour Prison, as there were no beds available for him at James Nash House. Mr Scalzi’s mental state was stable. He has remained at Yatala. Mr Scalzi has not been returned to a mental health facility, as no beds or other accommodation has become available.
Dr Nambiar opined that Mr Scalzi had been a disappointment over the period of his licence conditions, and that he had been re-admitted over the past eight years to either James Nash House or a psychiatric facility on seven occasions. He observed that Mr Scalzi continues to contravene his licence conditions and undertake risky behaviours that could easily lead to a relapse of his illness or place him at risk, either to himself or to others in the community.
Dr Nambiar was of the view that the best option in respect of Mr Scalzi was to return him to the community on licence conditions, including home detention conditions. He considered that Mr Scalzi’s level of supervision could be increased, and that he be required to attend for urine drug screens on a frequent basis every week with his community corrections officer. He required further drug and alcohol counselling.
On 25 August 2014, Dr Nambiar reported that Mr Scalzi is mentally stable, even though he had been using methylamphetamine and cannabis for some weeks prior to his return to detention. Dr Nambiar observed that there was no recurrence of symptoms of his illness. Dr Nambiar was of the opinion that increased testing for illicit substances was one method of deterring Mr Scalzi’s substance use and that a combination of regular counselling and frequent testing would minimise the risk of Mr Scalzi returning to abuse drugs.
Counsel for the Director informed me that there were insufficient resources to provide escorted leave for Mr Scalzi and, in the circumstances, that could only be provided if he were housed at Ashton House. An assessment needed to be made and a further psychiatric report provided as to the suitability of housing Mr Scalzi at Ashton House.
Counsel who appeared for Mr Scalzi submitted that Mr Scalzi now accepts that what he considered at the time to be a flirtation with illicit drugs was, in fact, a serious breach of his licence conditions. He had now been incarcerated at Yatala Labour Prison since 13 June 2014, and any lengthy period he spent in custody would put at risk his Ridleyton accommodation which is still available to him. Mr Scalzi accepted that a strict regime of supervision and drug and alcohol testing was necessary, and he was prepared to commit to such a regime and comply with the conditions of his licence in the future.
The consequence of setting the limiting term for ten years is that, on 4 October 2016, Mr Scalzi will be released unconditionally into the community. It follows that it is desirable that any conditions attached to Mr Scalzi’s licence be such as to recognise that, in approximately two years’ time, he will be released into the community without any form of supervision, or without any conditions being attached to his release.
The legislation operates so that the Court is unable to make orders beyond the limiting term, even if it is desirable for the protection of the community that a person, because of his or her mental condition, be subject to some form of supervision. The setting of a limiting term is referable to the seriousness of the offence alleged against a person who is found not guilty by way of mental impairment. It is not referable to that person’s mental state at the time, or the time within which it might take to adequately treat the person’s mental impairment so as to minimise future risk to the community.
I have had regard to the reports of Dr Nambiar and other treating psychiatrists, and to the submissions of counsel. Mr Scalzi has had an unfortunate history of breaching licence conditions. The issue to be resolved is whether, in all the circumstances, I should require for Mr Scalzi to remain in detention at Yatala Prison and Ashton House, if that be deemed to be a suitable place for him.
The alternative is to release Mr Scalzi on strict licence conditions to enable him to re-integrate into the community. The simple fact is that, under the legislation as currently enacted, Mr Scalzi will be released unconditionally into the community on 4 October 2016. There is no legislative provision which permits for licence conditions to be extended, or for there to be supervision or compulsorily assistance provided to assist him to integrate into the community. His release at that time will be unconditional.
Given that to be the position, it is my view that every attempt should be made to ensure that when Mr Scalzi is unconditionally released, he is able to cope and not revert to reliance upon the consumption of illicit drugs. It is desirable that Mr Scalzi attempt to obtain employment and live as normal a life as possible prior to his unconditional release.
It is desirable for the protection of the community that Mr Scalzi be able to cope with the exigencies of life when he is finally released from any licence conditions.
Having regard to the need for the protection of the community and having regard to Mr Scalzi’s current situation, I have determined to release Mr Scalzi on licence. The conditions of his licence are to include that he is to be subject to GPS monitoring and subject to enhanced drug testing at least three times per week.
I am informed that the GPS monitoring system is available and is suitable in respect of Mr Scalzi and the premises in which he intends to reside. A GPS monitoring system can monitor Mr Scalzi’s movements on a 24-hour cycle, and his whereabouts can be ascertained at any time.
I am satisfied that Mr Scalzi understands the seriousness of his situation and the seriousness of the breaches which resulted in him being returned to custody. I am also satisfied that his mental state is stable and that he is aware that any return to drug use will result in him being returned to custody. He has expressed his intention to not use illicit drugs, and to have his life returned to normality.
I therefore vary the licence conditions accordingly and direct that Mr Scalzi be released under the amended licence conditions.
I annex to these reasons the conditions pursuant to which Mr Scalzi is to be released.
IN THE SUPREME COURT OF SOUTH AUSTRALIA
CRIMINAL JURISDICTION
No. SCCRM - 14 - 137
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
and
JOSHUA JOHN SCALZI
Respondent

SUPERVISION ORDER

WHEREAS on the 26th of April 2006, in the Supreme Court of South Australia sitting at Adelaide, JOSHUA JOHN SCALZI (‘the respondent’) was found not guilty of Aggravated Serious Trespass in a Place of Residence and 2 counts of Attempted Murder by reason of lack of mental competence pursuant to Section 269FB of the Criminal Law Consolidation Act, 1935, (‘The Act’) and the Honourable Justice Nyland ordered pursuant to the Act that the respondent be liable to supervision under Part 8A;
AND WHEREAS on the 4th day of October 2006 the respondent was ordered to serve a limiting term of 10 years and was released on licence with conditions;
AND WHEREAS on the 11th day of January 2007 the Court amended the order so that it ceased to provide for release on licence and instead committed the respondent to detention for the remainder of the limiting term or until the supervision order is further varied by the Court;
AND WHEREAS on the 29th day of May 2007 the supervision order was further varied and the respondent granted a release on licence upon conditions that he reside at James Nash House with limited permission to leave the institution;
AND WHEREAS on the 31st day of August 2007 the Court amended paragraph 3(b) of the licence granted on the 29th day of May 2007 to allow leave to be granted for periods of up to a maximum of 5 days a week;
AND WHEREAS on the 21st day of January 2008 the Court amended paragraph 3 of the licence to add sub paragraph (c) to grant leave to the respondent under the supervision of and in the company of a worker from “Life Without Barriers” for the entire duration of the period of leave, with the exception of times at which Mr Scalzi is attending Thebarton Senior College for the purposes of education, during which time a worker from “Life Without Barriers” must remain within close proximity but not necessarily within the classroom: and add sub paragraph (d) the worker from “Life Without Barriers” must be approved by the Director or the nominated psychiatrist;
AND WHEREAS on the 25th day of January 2008 the Court amended paragraph 3(c) of the order to permit the respondent to attend at Regency TAFE escorted by a worker from “Life Without Barriers”;
AND WHEREAS on the 11th day of March 2008 the respondent was released on licence to reside at 37 Neville Road, Thebarton, subject to conditions;
AND WHEREAS on the 13th day of June 2008 the supervision order was further varied;
AND WHEREAS on the 11th day of February 2009 the supervision order was further varied to remove the Home Detention conditions but to include instead a curfew for a period of time;
AND WHEREAS on the 11th day of February 2010 the supervision order was further varied, including the removal of the curfew condition,
AND WHEREAS on the 23rd day of March 2012 the Director of Public Prosecutions applied for a review of the licence pursuant to Section 269U of the Act; and on that day condition 2(16) of the supervision order was amended to include increased testing;
AND WHEREAS on the 9th day of May 2012 conditions 2(5) and 2(16) were varied;
AND WHEREAS on the 7th day of August 2012 condition 2(16) was further varied;
AND WHEREAS on the 30th day of August 2012, following a Restorative Justice Conference which was held on the 22nd day of August 2012 and having regard to the report of Ms Debbie Laycock dated the 23rd day of August 2012, the Honourable Justice Nyland made Orders further varying the supervision order;
AND WHEREAS on the 17th day of January 2013 following a review of the supervision order the respondent was released back on licence on the same terms and conditions;
AND WHEREAS on the 27th day of November 2013 following a review of the supervision order the respondent was released back on licence subject to Home Detention electronic monitoring;
AND WHEREAS upon this application for review of the supervision order pursuant to Section 269U of the Act, filed in this Court on the 12th day of June 2014, the Court has had regard to the reports of Dr Nambiar dated the 25th day of July 2014 and the 25th day of August 2014 and a report from the Department for Correctional Services received on the 8th day of September 2014;
AND UPON the undertaking of counsel for the respondent to fully explain to the respondent the terms of this order,
NOW I, John Robert Sulan, a Justice of the Supreme Court, pursuant to Section 269U(2)(c) of the Act DO ORDER:
1.That the supervision order made by the Honourable Justice David on the 27th day of November 2013 be varied,
2.That there be substituted in its place, a supervision order releasing the respondent back on licence subject to the following conditions:-
(1)That the respondent be under the care of the Clinical Director of Forensic Mental Health Service at James Nash House (the “Director”) or a consultant psychiatrist nominated by the Director (provided such nominated psychiatrist be a treating psychiatrist and not a “trainee” psychiatrist) and that he obey all directions given to him from time to time with regard to medical and psychiatric treatment and medication and further that he be psychiatrically reviewed on a regular basis as directed by the Director.

(2)That the respondent reside at 25 Howard Grove, Ridleyton, South Australia.
(3)That the respondent not change his address unless authorised to do so by a Community Corrections Officer assigned to him by the Parole Board.
(4)That the respondent be subject to Global Positioning System (GPS) monitoring by the Home Detention Unit of the Department for Correctional Services at the premises of 25 Howard Grove, Ridleyton, South Australia, and be subject to various random checks as determined by the Community Correctional Officer and/or the Home Detention staff and that the respondent hereby authorise the Department for Correctional Services (and its Officers) to reveal that he is subject to Home Detention to any person it feels reasonably necessary for the purpose of confirming employment and/or compliance with the conditions of this Licence.
(5)That the respondent be under the supervision of a Community Corrections Officer assigned by the Parole Board, and obey all lawful directions of that officer which shall include such directions as to attending counselling for gambling and for any other programs which the officer deems necessary.
(6)That the respondent not consume alcohol.
(7)That the respondent not attend licensed premises where gaming facilities are available unless at the express direction of his gambling counsellor for therapeutic purposes.

(8)That the respondent be permitted to attend specific activities or remunerated work or study as approved by the Director or the nominated psychiatrist in consultation with the Community Corrections Officer and or Home Detention Corrections Officer.
(9)That the respondent not use, possess or administer any narcotic or psychotropic drug or any drug which is not medically prescribed for his use by a legally qualified medical practitioner, and further that any drugs which are prescribed for the respondent by a medically qualified practitioner be possessed or administered by the respondent only at prescribed or recommended dosages.
(10)That the respondent, whenever required by the Community Corrections Officer appointed by the Parole Board to do so, shall submit himself for breath or urine analysis for the purposes of determining whether there is present in his body any alcohol or drug and such testing shall be at least three times per week.
(11)That the respondent’s case be managed by the Forensic Community Team and that the respondent comply with all the lawful directions of that team, particularly with respect to attendances at all appointments nominated by the team or random breath analysis for the detection of alcohol.
(12)That the respondent continue to receive his medication current at the date of this order as required by the Director or the nominated psychiatrist and, further, that no alteration or reduction in such medication occur without the approval of the Director or the nominated psychiatrist.

(13)If the respondent does receive his medication by oral form he is then to have that medication delivered in a dosette on a weekly basis and his blood levels will be checked every four weeks to establish that the therapeutic levels are correct.
(14)That the respondent complies in every respect with the treatment plan prepared and in force from time to time pursuant to Section 269Q(1) and (2) of the Act.

(15)That the Director or his/her nominee upon becoming aware of any breach of the said conditions by the respondent is to inform the Director of Public Prosecutions (on behalf of the Crown) forthwith.
(16)That the respondent be of good behaviour.
(17)That the respondent attend any and all programmes for drug and alcohol counselling as directed by the Director or his nominee.
(18)That the respondent not possess a firearm, ammunition or any part of a firearm.
(19) That the respondent submit to tests, including testing without notice, for gunshot residue, as required by SAPOL.

3.That without limiting the effect of Section 269P of the Act, the respondent and the Director of Public Prosecutions (on behalf of the Crown) 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.
4.This order shall take effect on the 10th day of September 2014.

GIVEN under my hand at Adelaide, this 10th day of September 2014.
………………………………
Justice Sulan, Supreme Court
I, JOSHUA JOHN SCALZI have had the conditions of my release on licence explained to me and fully understand these conditions
…………………………..…..
Joshua John SCALZI
………………………………
Witnessed by
DATE ………………………