R v Steele (No 2)

[2012] SASC 162

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v STEELE (No 2)

[2012] SASC 162

Judgment of The Honourable Justice Gray

20 September 2012

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

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - REVIEW

On 21 May 2008, the defendant was found mentally incompetent to commit the offence of murder pursuant to section 269FA(5)(b) of the Criminal Law Consolidation Act 1935 (SA) and committed to detention pursuant to an order made under section 269O(1)(b)(i) of the Criminal Law Consolidation Act 1935 (SA) - the defendant applied for release on licence.

Held: The defendant released on licence under strict conditions - the defendant's progress to be reviewed by the Court before any relaxation of the strict conditions.

Criminal Law Consolidation Act 1935 (SA) 269FA(5)(b), 269O(1)(b)(i), 269P, Pt 8A, referred to.

R v STEELE (No 2)
[2012] SASC 162

Criminal

GRAY J.

1. This is an application for release on licence.

2. On 21 May 2008, I recorded my finding that Matthew Robert Steele, the defendant and applicant, was mentally incompetent to commit the offence of murder, the subject of the information, pursuant to section 269FA(5)(b) of the Criminal Law Consolidation Act 1935 (SA).

3. On 18 July 2008, following the receipt of further materials, including a victim and next of kin counselling report,[1] victim impact statements, an antecedent report of the defendant and a further psychiatric report,[2] I made an order pursuant to section 269O(1)(b)(i) committing the defendant to detention under Part 8A of the Criminal Law Consolidation Act.  I fixed a limiting term of life imprisonment.

   [1] Section 269R(1) of the Criminal Law Consolidation Act 1935 (SA) provides:

   For the purpose of assisting the court to determine proceedings under this Division, the Crown must provide the court with a report setting out, so far as reasonably ascertainable, the views of—

   (a)  the next of kin of the defendant; and

   (b)  the victim (if any) of the defendant's conduct; and

   (c)  if a victim was killed as a result of the defendant's conduct—the next of kin of the victim

   [2] Prepared pursuant to section 269Q of the Criminal Law Consolidation Act 1935 (SA).

4. In the course of my published reasons for the making of the above findings and orders, I set out the circumstances surrounding the death of Umberto Crisante together with the evidence on which I relied in making an order of mental incompetence.

5. The Court has received annual reports concerning the defendant’s psychiatric condition together with reports from three psychiatrists with respect to the application for the defendant to be released on licence.  Additionally, each of the psychiatrists gave oral evidence on the hearing of the application.  All supported the defendant’s release on licence.  However, all recognised that any release should involve a gradual relaxation from strict custody.  Further, all acknowledged that it is in the interests of the defendant to commence his rehabilitation in the community, with close and careful monitoring in the initial stages.

6. In his report dated 14 December 2011, psychiatrist Craig Raeside observed the following in relation to the defendant’s suitability for release:

   It is apparent from my interview with [the defendant], as well as reference to the clinical notes, that he has been free of any active psychotic symptoms for over three years.  His anxiety symptoms have been longstanding and have improved significantly with regular psychological treatment.  He has benefited from some of the rehabilitation aspects of his current incarceration at James Nash House.

   From a clinical perspective, I do not believe [the defendant] requires ongoing inpatient psychiatric treatment.  Also, from a clinical perspective in terms of his own benefit, he is now ready to begin the transition into the community, under close supervision of course. Elpida would be an appropriate community setting where he could experience a transition into the community, continue to receive rehabilitation efforts, in order to increase his social skills, and make further progress.  The main concern, of course, would be an environment in which he would be subject to the risk of resuming illicit substance abuse which, if it were to occur, would be a serious mater and require immediate breach of his licence.  Obviously he would need ongoing assertive psychiatric treatment with regular appointments, as well as ongoing psychological support as he would likely experience some increase in anxiety in such a social setting.

7. Narain Nambiar, consultant forensic psychiatrist, provided a psychiatric report dated 5 January 2012.  In that report, Dr Nambiar opined:

   [The defendant] has an established diagnosis of Schizophrenia.  His illness is now in relative remission and he has undergone considerable rehabilitation with a fairly prolonged period of stability of mental state.

   Despite a past history of antisocial behaviour and polysubstance abuse it would appear that over the last few years there has been a marked shift in his attitude, partially related to emotional maturity but also given the opportunity to be rehabilitated in a structured environment which is supportive, substance free and whilst remaining on regular medication.

   Considerable work has been undertaken in order to progress [the defendant’s] rehabilitation and the transition proposed by his treating team would appear to be timely, appropriate and well constructed.

   I am in full support of [the defendant] taking the next step in his rehabilitation and that should the Court grant [the defendant] Licence conditions that transition can start at the discretion of his treating Psychiatrist and would span a minimum of a six month period with the goal for [the defendant] to eventually reside full time at the Elpida Community Rehabilitation Centre.

8. William Brereton, who is and has been the defendant’s treating psychiatrist since September 2008, provided to the Court a psychiatric report dated 18 January 2012.  In oral evidence, Dr Brereton made the following observations:

   At the time of writing the report I had suggested to [the defendant] that he approach his legal representation and apply to the court for a variation in his conditions of supervision.  The reason I suggested that to [the defendant] is that he had been mentally stable, well in terms of his psychotic symptoms, at the time for about three and a half years, now it has been about four years.  He had engaged extremely well with the rehabilitation process and has been addressing his offending expressing appropriate remorse, being entirely compliant with medication, compliant with rules and regulations in James Nash House, engaging very well with rehabilitation such as occupational therapy.  Particularly of note, he has engaged with fairly intense psychological sessions and he has benefited and you don’t tend to benefit from psychology unless you put a lot of work into it itself.  He was also attending groups, group work such as the victim empathy group and also more recently he has done a drug and alcohol group.  In those groups he has been a willing, useful participant.  So insofar as [the defendant] has done all that we have asked of him as an inpatient with James Nash House, I reached a conclusion his risk was sufficiently low that we could move on to the next stage of his rehabilitation which would have to be more community focused.

   …

   I am of the opinion that it is reasonable at this present time to consider [the defendant] for a community placement, subject to a period of transitional leave so we can test out his response to what is a very different environment to the inpatient environment at James Nash House.  At this stage I wouldn’t support him moving directly into completely independent accommodation but I think a supported environment like a community rehabilitation centre is appropriate.  As I say, subject to a successful period of transition.

9. Dr Brereton advanced a detailed six stage transition plan.  Stages one and two involve restricted day leave from James Nash House, the secure mental health facility where the defendant is currently detained, accompanied by James Nash House staff who are to maintain line of sight contact with the defendant at all times.  Stages three to six in the transition plan involve a progressive relaxation in ongoing restrictions.  Stages one to six are described in the following terms:

   STAGE ONE:

   During stage 1, the focus will be community re-integration.  [The defendant] would be offered structured, supervised and graded outings into the community.  This would include walks, drives in a government car, visits to the local supermarket, increasing exposure to different social settings and visits to community based mental health programs.

Duration

Minimum 8 weeks

Level of supervision

2 staff from James Nash House.

[The defendant] will remain in line of sight at all times.

Agencies involved

·    Community Corrections (fortnightly)

·    Inpatient Team JNH

STAGE TWO:

During stage 2, the process of community re-integration would continue with the added involvement of Neami (a non government organisation) who will provide psychosocial support.

Duration

Minimum 8 weeks with at least 1 outing per week

Level of supervision

1 staff from James Nash House & 1-2 Neami workers.

[The defendant] will remain in line of sight at all times

Agencies involved

·    Community Corrections (fortnightly)

·    Neami

·    Inpatient Team JNH

STAGE THREE:

During stage 3, the process of community re-integration would continue with the support of Neami who will provide psychosocial support and supervision to [the defendant].  JNH staff would no longer provide direct supervision but would continue to liaise and plan all leave for [the defendant].  [The defendant] would commence visits to Elpida and a 1:1 drug and alcohol program in the community; the latter would most likely be provided by OARS.

Duration

Minimum 6 weeks

Level of supervision

2 Neami workers

[The defendant] will remain in line of sight at all times.

Agencies involved

·    Community Corrections (fortnightly)

·    Neami

·    Elpida

·    Inpatient Team JNH

·    1:1 OARS for Drug and Alcohol relapse prevention on a weekly basis

STAGE FOUR:

During stage 4, [the defendant] will have a structured program but move to the unaccompanied phase of supervision.  He will commence spending time at Elpida during the day but he will not be permitted off-site without staff.  [The defendant] will be expected to participate in rehabilitation at Elpida and this may include linking in with community programs.

Duration

Minimum 6 weeks

Level of supervision

Unaccompanied, with close supervision.  [The defendant] will use public transport and/or taxis to get to/from Elpida.  Elpida staff will make a phone call to staff on Clare ward to confirm arrival.  Once there, [the defendant] will be required to remain on site unless accompanied by staff.

[The defendant] will be sighted every hour whilst at Elpida and this will be documented in a log book.

Agencies involved

·    Community Corrections (weekly) with random drug and alcohol testing (urine and breath) both through corrections and at JNH - not less than once per week.

·    Neami

·    Inpatient Team JNH

·    1:1 OARS for Drug and Alcohol relapse prevention on a weekly basis

·    Forensic Community Mental Health Service

STAGE FIVE:

During stage 5, [the defendant] will commence spending time at Elpida during the day.  [The defendant] will be expected to participate in the programs offered through Elpida and in the community, and commence structuring his own time and attending appointments independently.  [The defendant] will not be permitted off site for periods greater than 3 hours without staff.

Duration

Minimum 8 weeks

Level of supervision

Unaccompanied, with reduced supervision.  [The defendant] will use public transport and/or taxis to get to/from Elpida.  Elpida staff will make a phone call to staff on Clare ward to confirm arrival.  Once there, [the defendant] will be required to follow the rules of Elpida and sign in/out as per their process.  [The defendant] will not be allowed off site for periods greater than 3 hours unless accompanied by staff, and must inform Elpida staff of his destination and estimated time of return.

Agencies involved

·    Community Corrections (weekly) with random drug and alcohol testing (urine and breath) both through Corrections and at JNH - not less than once per week.

·    Neami

·    Inpatient Team JNH

·    1:1 OARS for Drug and Alcohol relapse prevention on a weekly basis

·    Forensic Community Mental Health Service (including psychology)

STAGE SIX:

During the final stage of transition, [the defendant] will commence overnight stays at Elpida.  This will be graded so that, by the end of this 10 week period, he is at Elpida for the majority of the time.  With the aim of spending 6 nights in Elpida and 1 night back in James Nash House for observation.  Depending on the Court’s decision, [the defendant] may continue to be an inpatient of JNH during this stage until his final discharge from JNH is approved by the courts.

Duration

Minimum 8 weeks

Level of supervision

Unaccompanied, with long term levels of supervision.  [The defendant] will use public transport and/or taxis to get to/from Elpida.  Elpida staff will make a phone call to staff on Clare ward to confirm arrival.  Once there, [the defendant] will be required to follow the rules of Elpida and sign in/out as per their usual process.  [The defendant] will be required to inform Elpida staff of his destination and planned time of return if he leaves unaccompanied.  He will be subject to a curfew; initially 5:30pm but increasing to 7:30pm.

Agencies involved

·    Community Corrections (weekly) with random drug and alcohol testing (urine and breath) both through Corrections and at JNH - not less than once per week.

·    Neami

·    Inpatient Team JNH

·    1:1 OARS for Drug and Alcohol relapse prevention on a weekly basis

·    Forensic Community Mental Health Service (including psychology)

NOTES:

-Elpida has staff present 24hrs, with one qualified nurse at all times.  It is a community placement however and does not have locks.  [The defendant] will be expected to engage with staff at Elpida to plan his rehabilitation needs (e.g. shopping, budgeting, social training, time management and attending appointments); off site groups and activities will be part of the program over time.

-[The defendant’s] drug and alcohol use will be monitored.  Initially through escorts and then by observation of his presentation to staff, mental state assessments and testing.

-It is important to note that the above time frames are all minimum times.  If the team have any concerns about [the defendant’s] progress a stage can be increased, or the transition can go back a stage, or the transition can be abandoned altogether.  The treating team have asked the court for flexibility to increase [the defendant’s] transition if necessary.

-All agencies are aware that, in the event of any concerns, leaves will be terminated and [the defendant] returned to James Nash House at any stage of transition.  This includes any suspicion of drug use.  Staff at James Nash House (Clare ward and Dr Brereton) and the Forensic Community Mental Health Service (FCMHS) will be contacted immediately if this occurs.  Out of hours, staff at James Nash House (including an on-call consultant psychiatrist) and the FCMHS are still available.  If an emergency occurs out of hours [the defendant] will need to be reviewed in the Royal Adelaide ED before being returned to James Nash House.  If [the defendant] refused to cooperate with attempts to have him reviewed in ED or returned to James Nash House, the police will be called for assistance.  The FCMHS will discuss this case with the Police when they attend the relevant Local Liaison Group.

-This plan has been has been [sic] circulated to JNH, FCMHS, Elpida, and Neami.

1. On the hearing of the application, the defendant first submitted that the Court should authorise the entire transition plan.  However, as the hearing proceeded, the defendant indicated that he was content to limit his application at this time for a licence to be granted permitting stages one and two to proceed.  The Director of Public Prosecutions accepted that in the circumstances it was appropriate to grant a licence for the release of the defendant that was limited to stages one and two of the transition plan. 

2. In response to the proposition that the Court allow the defendant to be released on stages one and two, but review his progress after stage two, Dr Brereton observed:

   It might slow [the transition process] down a bit but then the whole point of this transition, as I said, is that I’d like it to be flexible and that if we want to extend it we can extend it.  …

   …

   … I don’t expect things to go drastically wrong at those stages because of the degree of supervision.  The reason I would like it to be possible to expand those stages is because I want to see how [the defendant] progresses and it may be that he finds that he is much more anxious in a community setting that even he realised, that he needs to do a lot of work with psychologists to get past that stage, at which stage we would expand the stages.

3. Pursuant to my directions, the family of the deceased were heard on the application. They were represented by counsel. They opposed any release on licence, but accepted that if the Court was disposed to order release, it should go no further than to permit stages one and two to be implemented. I considered that the family of the deceased were interested parties to the application. Their entitlement to be heard would appear to be recognised. Section 269P(1) of the Criminal Law Consolidation Act relevantly provides:

   Variation or revocation of supervision order

   At any time during the limiting term, the court may, on the application of the Crown, the defendant, Parole Board, the Public Advocate or another person with a proper interest in the matter, vary or revoke a supervision order and, if the order is revoked, make, in substitution for the order, any other order that the court might have made under this Division in the first instance.

4. Counsel for the family of the deceased indicated that if any form of licence was to be granted, it should be on terms geographically limited so as to avoid any risk of contact between the defendant and the members of the family of the deceased.  The Director accepted this submission.  The defendant contended that such limitations were unnecessary.  This contention caused me some concern as it appeared to evidence a lack of understanding of the family of the deceased’s suffering resulting from the defendant’s conduct.

5. I am not prepared at this time to approve release on licence on terms that accord with stages three to six of the transition plan.  These stages would result in there being no supervision of the defendant by James Nash House staff when the defendant is away from James Nash House.  I am not satisfied, on the present state of the evidence, that the interests of public safety would be adequately addressed.  If there is a wish for the defendant to proceed beyond stage two of the transition plan, further approval of the Court will be necessary.

1. I have reached the conclusion that the defendant should be released on licence on the following terms:

   -That the supervision order made on 18 July 2008 committing the defendant to detention be revoked pursuant to section 269P(1) of the Act, and that there be substituted in its place a supervision order pursuant to section 269O(1)(b)(ii) of the Act releasing the defendant on licence.

   -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 (‘Director’), or a consultant psychiatrist nominated by him or her (‘nominee’), and obey any directions given to him from time to time with regard to medical, psychological and psychiatric treatment and medication.

   (b)That for the initial period of release on licence the defendant comply with stages one and two of the transition plan set out in the report and attachment of Dr Brereton dated 11 May 2012 [to be annexed].

   (c)That at the end of stage two of the transition plan a report be prepared for the Court from Dr Brereton as to the success or otherwise of the transition plan to date.  At that point further consideration can be given to the other stages of the plan.

   (d)That at any point the transition plan up to stage two can be suspended by the Clinical Director or his nominee and the matter brought back to Court for further consideration.

   (e)That the defendant continue to receive his medication current at the date of this order, and further that any alteration to 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 his 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 prescribed or recommended dosages.

   (h)That the defendant not consume alcohol.

   (i)That the defendant’s case be managed by the Inpatient Team at James Nash House and that the defendant comply with all the lawful directions of that team or a person authorised by that team to give such directions, particularly with respect to attendances at all appointments nominated by that team or the said authorised person.

   (j)That the defendant be under the supervision of a Community Corrections Officer employed by the Department for Correctional Services and assigned by the Parole Board of South Australia and that he obey the lawful directions of that officer or the Board with respect to non-medical matters.

   (k)That the defendant shall submit himself to breath and/or urine testing as directed by his Community Corrections Officer, or the Inpatient Team James Nash House for the purpose of determining whether there is present in his body any illicit or non-prescribed drug or alcohol.  Such breath tests to be administered at random and such urine tests to be administered at a minimum of once a week.

   (l)That the defendant not depart or attempt to depart from the State of South Australia.

   (m)That an activity plan be prepared each week detailing the proposed leave arrangement.  A copy of this plan is then to be emailed each week to the nominated South Australia Police liaison officer.

   (n)That the defendant not enter or remain at the Enfield Memorial Park any day other than one specific day per month – that day to be specified.

   (o)That the defendant not at any time enter, stop or remain in the area delineated [on Map 1 to be annexed hereto] and bordered by the following roads:

   Prospect Rd, Main North Rd, Montague Rd, Walkley’s Rd (including Ingle Farm Shopping Centre precinct), Grand Junction Rd, Fosters Rd, Muller Rd, Hampstead Rd and Third Ave/Percy St,

   other than for the purpose of visiting the Enfield Memorial Park.  The defendant is allowed to traverse but not stop on Fosters Rd, Grand Junction Rd, Rellum Rd, Birdwood Rd and Muller Rd. 

   (p)That the defendant not at any time stop or remain in the areas delineated [on Maps 2 and 3 to be annexed hereto] and bordered by the following roads:

   Map 2: Lower North East Rd, Gorge Rd, Maryvale Rd and Montacute Rd,
   Map 3: Fullarton Rd, Kensington Rd, Glynburn Rd and Payneham Rd,

   other than for the purpose of attending educational, recreational or therapeutic programs as directed by his supervisors or for passing through continuously on public or private transportation.

   -In the event that the Director, or the Director’s nominee, is of the opinion that:

   (i)     the defendant has contravened, or is likely to contravene a condition of this order; or

   (ii)    the defendant is in need of a level of security that cannot be provided by the employees of Neami or at the Elpida Facility,

   the Director, or the Director’s nominee, or the Presiding Member of the Parole Board or the Presiding Member’s nominee shall forthwith notify the Director of Public Prosecutions of that opinion.   

   -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 Members nominee in accordance with the 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.

   -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.

2. These reasons disclose by the incorporation of the entire transition plan the strict limitations on the defendant’s release.  Stages one and two involve restricted daytime outings from James Nash House.  During stage one, the defendant is to be accompanied by two James Nash House staff members.  During stage two, he is to be accompanied by one James Nash House staff member and one or two other appropriately qualified mental health workers.  Further, the proposed order requires a copy of each week’s activity plan to be emailed to the nominated South Australia Police liaison officer and a member of the victim’s family. 

3. It is critical that those charged with supervising the defendant during stages one and two ensure that there is strict compliance; that is, compliance to the letter of the order.  In these circumstances any risk to the public can be fairly described as remote. 

4. I do not propose in these reasons to further canvass the psychiatric evidence.  In substance, the psychiatrists agreed that the defendant is in a stable condition and fit to start the proposed rehabilitation program.  However, all agreed that stages three to six potentially posed some risk to public safety.  All accepted that the assessment of the risk to public safety and the balancing of that risk with the defendant’s personal interests remains a matter for this Court.  All agreed that it is appropriate for there to be psychiatric review and further consideration by the Court before there be any authorisation to embark on stages three to six. 

   Conclusion

5. I order that the defendant be released on licence on the terms and with the limitations referenced to earlier in these reasons.  The parties are to submit final minutes of order for approval.