R v Steele (No 4)
[2014] SASC 205
•24 December 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v STEELE (No 4)
[2014] SASC 205
Reasons for Decision of The Honourable Justice Gray
24 December 2014
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - REVIEW
Application to vary the terms of a licence pursuant to section 269P of the Criminal Law Consolidation Act 1935 (SA). Defendant and applicant found not guilty of the offence of murder on the basis that he was not mentally competent to commit the offence. The defendant has been diagnosed with, inter alia, schizophrenia and is subject to supervision under Part 8A of the Act. The defendant has been successfully following a treatment plan put in place by his treating psychiatrist and has applied to progress to the next stage of the treatment plan, which involves overnight stays at Ashton House.
Whether it is appropriate to amend the terms of the licence.
Held (allowing the application):
1. The defendant is responding well to treatment. The evidence overwhelmingly supports a change in the terms of his licence conditions to allow overnight stays at Ashton House.
2. The defendant remains a risk to the community. Accordingly, it is appropriate that he remain supervised while in public.
3. There are sufficient resources available to facilitate the next stage of the defendant’s treatment.
4. The defendant is aware of the seriousness of his offending and is capable of complying with, and intends to comply with, his licence conditions.
5. The victim's family's concerns underscore the need for the Court to make orders which address the protection of the community.
6. Having regard to the matters in section 269T of the Criminal Law Consolidation Act, it is appropriate to amend the terms of the defendant’s licence to facilitate overnight stays at Ashton House.
Criminal Law Consolidation Act 1935 (SA) s 269O, s 269P, s 269Q, s 269R, s 269T and s 269Z, referred to.
R v Steele [2012] SASC 55; R v Steele (No 2) [2012] SASC 162; R v Steele (No 3) [2013] SASC 191, considered.
R v STEELE (No 4)
[2014] SASC 205Criminal
GRAY J.
This is an application to vary the conditions of a licence pursuant to section 269P of the Criminal Law Consolidation Act 1935 (SA).
Background
The defendant and applicant, Matthew Robert Steele, was charged with the offence of murder. The defendant elected to be tried by judge alone. The defendant admitted the elements comprising the actus reus of the offence, including that, at approximately 11.00 am on 21 June 2006 at Clearview, he, without lawful excuse, attacked Umberto Crisante with a hammer and that Mr Crisante died as a result of the injuries suffered in the attack. The defendant pleaded not guilty on the basis that he was not mentally competent to commit the offence. Counsel appearing for the Director of Public Prosecutions at trial accepted that the psychiatric evidence fully justified a finding that the defendant was mentally incompetent to commit the offence.
In 2008, I recorded findings that the objective elements of the offence were proved beyond reasonable doubt and that the defendant was mentally incompetent to commit the offence. I made a supervision order pursuant to section 269O of the Criminal Law Consolidation Act and set a limiting term of life, pursuant to 269O(2) of the Act. My published reasons set out the circumstances surrounding the death of Mr Crisante, together with the relevant psychiatric evidence.[1]
[1] R v Steele [2012] SASC 55.
In 2011, the defendant applied for a variation to his supervision order to allow a release on licence. Mr Crisante’s family were heard on the application. With the agreement of counsel appearing for the Director, I authorised the defendant’s release on licence for the first two stages of a six stage transition plan prepared by the defendant’s treating psychiatrist, William Brereton, a consultant forensic psychiatrist at James Nash House. My published reasons set out the relevant psychiatric evidence concerning the defendant’s suitability for release on licence and the proposed transition plan.[2] In summary, the licence permitted the defendant to engage in restricted, supervised daytime outings from James Nash House. The police were to be kept informed of the defendant’s weekly activity plan.
[2] R v Steele(No 2) [2012] SASC 162.
In 2013, following the successful implementation of the first two stages of the transition plan, a modified plan was provided to the Court. With the consent of Mr Crisante’s family and counsel appearing for the Director, I granted the defendant’s application to progress to stages three and four of the amended transition plan. My published reasons set out in detail the psychiatric evidence on which I relied and the amended terms of the transition plan.[3] In summary, stages three and four of the amended transition plan provided for the defendant to spend some time at Ashton House, which is a secure facility designed to bridge the gap between inpatient services and supported community placements.
[3] R v Steele (No 3) [2013] SASC 191.
On 24 April 2014, the Court received the annual report concerning the defendant pursuant to section 269Q(2) of the Criminal Law Consolidation Act. The report was prepared by Dr Brereton and Maree de Jong, a psychiatry registrar at James Nash House. In their report, Dr de Jong and Dr Brereton set out the defendant’s course of medication and provide an update to the Court on the defendant’s progress. Dr de Jong and Dr Brereton relevantly opine:
[The defendant] is motivated and engaged in his rehabilitation program, including group activities. He is polite and appropriate in his interactions with staff. [The defendant] has responded well to treatment on clozapine and his mental state has remained stable on his current medication with no evidence of mood disturbance or psychotic symptoms. There have been no concerns raised about his mental state or behaviour in recent times.
...
[The defendant] is in the process of making an application to the courts to proceed to the next phase of his transition plan which would involve a lower level of security and staff supervision. The long term plan for [the defendant] is to eventually spend longer periods of time at Ashton House and eventually to be discharged to Ashton House where he can then transition to suitable supported accommodation in the community.
The Application
On 19 June 2014, the defendant applied for his licence under section 269O(1)(b)(ii)(B) of the Criminal Law Consolidation Act be varied to accommodate the next stages of his transition plan, which provide as follows:
STAGE FIVE:
During stage 5, [the defendant] will commence spending time at [Ashton House] during the day. [The defendant] will be expected to participate in the programs offered through [Ashton House] 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 [Ashton House]. [Ashton House] 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 [Ashton House] 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 [Ashton House] 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 [Ashton House]. This will be graded so that, by the end of this 10 week period, he is at [Ashton House] for the majority of the time. With the aim of spending 6 nights in [Ashton House] 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 [Ashton House]. [Ashton House] 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 [Ashton House] and sign in/out as per their usual process. [The defendant] will be required to inform [Ashton House] 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)
It is to be noted that, in consultation with Dr Brereton, the defendant requested that stages five and six be implemented in reverse order.
In May 2014, I received an undated, handwritten letter. The letter disclosed that, on 25 March 2014, the defendant was seen at the Ingle Farm Shopping Centre. A copy of this letter was provided to counsel for the defendant, counsel for the Director and counsel for Mr Crisante’s family by the Court. Following the making of enquiries concerning the letter, it became apparent that the letter was not written by Mr Crisante’s immediate or extended family and that Mr Crisante’s family were unaware of the breach of the defendant’s licence conditions. It appears that the letter was authored by a disgruntled staff member within Ashton House.
The defendant’s licence conditions exclude him from attending at the Ingle Farm Shopping Centre. Investigations conducted by the Director’s office disclose that a clinical nurse at Ashton House, unaware of the stringency of the defendant’s licence conditions, decided to take the defendant to the Ingle Farm Shopping Centre on one of his leaves to provide him with “a change of scenery”. The breach was identified the following day. A meeting of staff at Ashton House was held with the aim of ensuring that similar breaches did not reoccur. Ashton House did not notify the Court or the Director’s office of the breach as it was considered to be an internal, operational breach. The nurse has been relieved of his duties at Ashton House. It was accepted that the defendant was not responsible for the breach.
When the Director’s office, through the Court, became aware of the breach, it requested that the defendant’s leaves be suspended until the matter could be brought back before the Court. This request was granted. The prosecutor with the carriage of the matter held several meetings with senior staff at Ashton House and stressed the need for the Director’s office to be made aware of any breach of the defendant’s licence conditions, regardless of the circumstances. Upon being satisfied that the matter had been appropriately addressed and that measures had been implemented to ensure strict compliance with the licence conditions of all patients at Ashton House, the defendant’s licence conditions were reinstated with the consent of the Director and Mr Crisante’s family.
Psychiatric Reports
The Court received three psychiatric reports addressing the defendant’s application pursuant to section 269T(2)(a) of the Criminal Law Consolidation Act.
In his report of 25 August 2014, Dr Brereton discloses that the defendant had taken supervised leave to community destinations in accordance with stage three of his transition plan for a period of six weeks. On 18 February 2014, the defendant commenced stage four of his program, which includes walking between James Nash House and Ashton House unaccompanied and spending time at Ashton House unaccompanied, but under observation by, and in contact with, staff. Supervised leaves into the community involve shopping, exercise and visiting the defendant’s brother’s grave.
Dr Brereton’s report addresses in detail the unauthorised visit to the Ingle Farm Shopping Centre. Dr Brereton confirms that the defendant did not contribute at all to the decision to take him to the Ingle Farm Shopping Centre. An investigation of the incident found that there was no clinical risk and no increase to the risk of harm to others as a result of the defendant being taken to the Ingle Farm Shopping Centre. Dr Brereton further outlines the changes implemented at Ashton House to ensure better coordination and monitoring of day-to-day clinical activity, including adherence to licence conditions. Dr Brereton was present at the hearing of the application and addressed the Court on this matter. I am satisfied that Ashton House is treating the breach of the defendant’s licence conditions extremely seriously and has taken appropriate measures to ensure that no further breaches occur.
In his report, Dr Brereton sets out the activities in which the defendant has engaged since September 2013, including volleyball, cooking and woodwork. The defendant has participated in a number of counselling programs, including anxiety management programs, and has been fully cooperative with his occupational therapy program. The defendant has not taken up smoking again and has participated in drug and alcohol counselling programs. There is no suspicion that he has taken any illicit substances or consumed alcohol. On one of his supervised leaves, the defendant met the mother of one of his children, who had previously opposed him having contact with his son. The defendant was able to engage the woman in conversation and she introduced him to their son. He now has supervised weekly telephone contact with his son.
Dr Brereton notes that the defendant does experience anxiety if he is required to make complicated decisions or if he is faced with unforeseen circumstances, such as losing his wallet. However, the defendant is now able to use psychological techniques to manage this anxiety.
Dr Brereton summarised the defendant’s behaviour and attitude toward his rehabilitation as follows:
[The defendant’s] level of motivation and engagement with all aspects of his care and rehabilitation has been good. He has an excellent relationship with staff. He follows all direction. He is open and honest in his interactions and ready to discuss his thoughts and feelings. He fully accepts intrusive clinical supervision. He does not display anti-social attitudes. He has good insight into his illness and the need for treatment. He can reflect on his past social and behavioural problems such as violent relationships and drug use. He understands the consequences of such behaviour and articulates a desire to avoid such problems in the future and works on practical measures to avoid this. He continues to voice remorse and unusually high levels of empathy with regard to his index offence. Any concerns about [the defendant’s] progress have been minor: some episodes of anxiety and short lived periods of flat mood which have not been pathological in nature.
[The defendant’s] mental state has remained stable. He has remained compliant with medication.
Dr Brereton concluded as follows:
[The defendant] has continued to do well in all aspects of his treatment, rehabilitation and leave program. He responds well to the constraints upon him. I believe [the defendant’s] risk of harm to others is low and from a clinical perspective I believe he is suitable to progress to the next stages of his rehabilitation leave program.
...
I respectfully suggest that a leave program to Ashton House with the ultimate aim of discharge to Ashton House remains a safe and appropriate approach to [the defendant’s] care.
If the court is minded to grant a change in licence conditions to allow [the defendant] to progress, I ask the following be given consideration. [The defendant’s] original leave plan was drawn up some time ago when the plan was for him to be discharged to a Community Rehabilitation Centre rather than to Ashton House. As we have begun to operate Ashton House, and in light of the physical and procedural security measures overnight, it has become apparent that the move from day leaves to overnight leaves in Ashton House is a lesser step in terms of monitoring and supervision than the move from the accompanied leaves into the community to unaccompanied leaves into the community. In the longer term a large proportion of Mr Steele’s leaves would remain accompanied by staff even when he is allowed to go unaccompanied.
Hence, I respectfully recommend that [the] court consider granting Stages 5 and 6 of [the defendant’s] leave but that the order is reversed, i.e. [the defendant] should have a period of successful and increasing overnight leaves to Ashton House before he can move to any unaccompanied leaves into the community.
At the hearing of the application, Dr Brereton described the defendant as being “one of the most conscientious patients I have ever worked with”.
In his report of 25 September 2014, Craig Raeside, a forensic psychiatrist, described, inter alia, the defendant’s treatment program and course of medication. Dr Raeside concluded as follows:
In summary, [the defendant] remains free of active psychotic symptoms over the last year. Whilst concern has been expressed at times about whether [the] patient might be able to conceal this if it was present, I think this is highly unlikely in an environment in which there is regular and consistent supervision by experienced mental health staff. Further, there has been no evidence of any behavioural disturbance reflective of his underlying personality disorder. This is probably not surprising given the structure and consistency of current arrangements. Medication has also been consistent. [The defendant] has benefited from his greater activity out of James Nash House and, most recently, making contact with his younger son.
Although the Court has rightly expressed concern about a breach of condition due to staff actions and some lack of communication with the DPP, this would appear to be an operational measure that has been addressed and is not specifically related to [the defendant]. Accordingly, I would be supportive of the application for [the defendant] to move to stage 5, with the updated recommendation that this involve overnight stays at Ashton House, but not unaccompanied leave into the community until reaching stage 6.
In his report of 3 October 2014, Narain Nambiar, a forensic psychiatrist, described, inter alia, the defendant’s treatment program and course of medication. Dr Nambiar described the defendant in the following terms:
[The defendant] presents as a casually dressed young man with a shaven head and a neatly groomed beard and moustache. Throughout the interview he was calm, pleasant and co-operative. There was no evidence of any overt anxiety and his mood was reactive. His conversation was normal in rate, tone and flow without any evidence of thought disorder and he was not experiencing any psychotic phenomenology.
He was alert and orientated, had good concentration and memory and was well aware of the circumstances relating to his application.
...
All accounts from staff confirm that [the defendant] is a very well engaged patient who is very reliable and punctual and aware of his licence restrictions. There has been no evidence of any major psycho-pathology prevalent although he does continue to experience anxiety in some situations e.g. heights and some anticipatory anxiety whenever he has to pass urine for a urine drug screen given the fact that this is observed at all times. Nonetheless he is working to overcome his levels of anxiety with the help of a psychologist.
...
[The defendant] continues to report that on a very frequent basis he is reminded of his offence and feels guilty claiming that he is not happy with the way things are as a result of his actions. He feels bad having contributed to other people’s grief through his offence and feels strong empathy for the family of the victim but is also aware that whatever he does now, he can never make things right.
Dr Nambiar provided the following opinion of Dr Brereton’s suggested change in the defendant’s plan:
... This makes sense as following this order of process (Stage 6 and then Stage 5) [the defendant] would first become a permanent resident at Ashton House who would then be the treating team with sole responsibility for him. Then in conjunction with NEAMI, a new timetable can be devised taking into account what he is required to do at Ashton House. Once he is a resident at Ashton House he can commence some unaccompanied leave and his mental state can be reviewed before and after he returns in a more consistent fashion.
Dr Nambiar concluded as follows:
[The defendant] has a diagnosis of chronic Schizophrenia, anti-social personality and substance abuse. In my opinion all of those factors have been addressed in his current management and he is currently free of any psychotic symptoms and as a result is now displaying very good insight and judgment. He has engaged extremely well with his treating team and appears to be very motivated to make change and to improve his functioning through his own volition and with the support of staff. Despite the underlying personality disorder it would appear that over time as [the defendant] continues to interact with staff and patients who are also motivated to be rehabilitated, that he is developing more pro-social skills and a pro-social attitude and he is beginning to focus on the more desirable qualities in him that will lead to a more productive and responsible life into the future.
The longer that [the defendant] remains free of any psychotic symptoms and free of the destabilising effects that amphetamine’s and other illicit substances can have, the better his prognosis will be. This in turn minimises the risk to the community.
In my view [the defendant] has been adequately prepared and is well engaged with the treating team and has demonstrated a level of reliability that will be consistent with a success of progressing to Stage 5 and 6 of the transition plan in reversed order as proposed by Dr Brereton. I agree that the next phase of his transition should be focussed on increasing his time to Ashton House beginning with increasing day leaves followed by overnight leaves before unaccompanied transitioning into the community is contemplated.
Victim and Next of Kin Counselling Report
On 9 October 2014, the Court received a report from the Forensic Mental Health Service pursuant to sections 269R and 269Z of the Criminal Law Consolidation Act. The report was prepared by Lina Kontopoulos, a social worker who interviewed members of Mr Crisante’s family and the defendant’s next of kin.
In her report, Ms Kontopoulos summarised the views of Mr Crisante’s family as follows:
[MC] stated that she does not agree with the progression to stage 5 and 6 of the transition plan. [MC] stated that she is in constant fear she will see the defendant when she is in the community undertaking her daily routine. [MC] stated that if the defendant were to be allowed to commence stage 5 she would have increased stress and her sleep patterns would be disturbed. She also thinks her daily routines would be changed for fear the defendant could go to her place of residence while the defendant is unescorted in the community. In summary [MC] stated “I am angry, I can’t help it”.
[TS] stated that until the recent incident where the defendant was taken to a restricted zone she was comfortable with how the transition was going. [TS] stated that this incident has caused her and her family extra stress and anxiety and they no longer “trust” the system. [TS] stated that since this incident her sleep patterns have been disturbed and she wakes up every morning at 2am thinking about what happened if she ever saw the defendant or if her mother did, she also has had an increase in her medication for anxiety since this incident. [TS] stated the last transition stage(s) occurred over a 33 week period which comforted her as she thinks time is important. [TS] agrees with the progression of the transition plan to stage 6 (overnight stays at Ashton House), however is not agreeable to stage 5 (unescorted leaves). [TS] stated “caution is the way to go”.
Ms Kontopoulos summarised the views of the defendant’s next of kin as follows:
[The defendant’s next of kin] stated they are in total agreement of the next stage of transition which includes overnight stays at Ashton House and unescorted leave. [They] state that they have seen the defendant progress with rehabilitation and seen major improvements in his outlook in life. The transition so far has given them hope that the defendant can move forward in the future. [They] stated that the defendant is achieving his rehabilitation goals which are assisting him in coping with his anxieties and mental health. [The defendant’s mother] stated that she has lost one son, and this offence was like losing another son “but we have the defendant back and can see the positives”. [The defendant’s mother] stated she “truly believes the defendant has the potential to have a change and to help others in the community.”
Consideration
In deciding a proceeding of this nature I am required to have regard to the matters in section 269T of the Criminal Law Consolidation Act, which provides as follows:
Matters to which court is to have regard
(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.
...
The psychiatric evidence overwhelmingly supports a change to the defendant’s licence conditions in the terms discussed earlier in these reasons to facilitate his rehabilitation. Though the defendant’s condition is serious, the evidence suggests that the defendant is making good progress with his rehabilitation and treatment.
Having regard to the seriousness of the defendant’s offending and psychiatric condition, I remain of the view that, despite his progress, he poses a risk to the community and should remain under supervision.
Having regard to the evidence of Dr Brereton and the investigations conducted by the Director’s office following the breach of the defendant’s licence conditions, I am satisfied that there are sufficient resources available to progress the defendant’s rehabilitation and that Ashton House has put in place appropriate safeguards to minimise the risk of a breach of the defendant’s licence conditions, and address any such breach. I note in this respect that I have personally viewed the facility in connection with one of the defendant’s previous applications to vary his licence conditions.
I am satisfied that the defendant is appropriately remorseful for, and aware of the consequences of, his criminal conduct and the need to continue to receive treatment. The defendant is aware of the distress that Mr Crisante’s family continue to experience. I am further satisfied that the defendant is aware of the importance of complying with his licence conditions, is capable of complying with his licence conditions, including the proposed change to allow overnight stays at Ashton House, and intends to comply with his licence conditions.
Mr Crisante’s family were represented at the hearing of the application and, by their counsel, had the opportunity to cross-examine Dr Brereton. I have had regard to Ms Kontopoulos’ report and am cognisant of Mr Crisante’s family’s anxiety over any change to the defendant’s licence conditions which may result in him spending more time in the community. Their concern underscores the need for the Court to make orders which appropriately address the protection of the community. It is to be recalled that the defendant’s next of kin were also interviewed in connection with this application.
Having regard to the foregoing, I am prepared to authorise overnight stays at Ashton House. I consider that the defendant has prospects for rehabilitation and do not preclude the possibility of further amending his licence conditions to facilitate his rehabilitation. However, at the present time, I am not prepared to grant unsupervised leaves contemplated by stage five of the defendant’s plan. In my view, it is not appropriate to authorise unsupervised leaves until I am satisfied that the defendant can manage overnight stays at Ashton House and can continue to comply with his licence conditions. In light of the seriousness of the defendant’s offending and ongoing medical condition, the Court must approach any relaxation of the defendant’s licence conditions with caution.
Conclusion
I amend the defendant’s licence conditions to allow overnight stays at Ashton House. The frequency of these overnight stays is to be determined by the Clinical Director of the Forensic Mental Health Service, or a consultant psychiatrist nominated by him or her.
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