R v Steele (No 5) - [2016] SASC 6

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v STEELE (No 5)
[2016] SASC 6
Reasons for Decision of The Honourable Justice Gray
8 February 2016
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). Applicant found not guilty of the offence of murder on the basis that he was not mentally competent to commit the offence. The applicant has been diagnosed with schizophrenia and is subject to supervision under Part 8A of the Act. The applicant has been successfully following a transition plan put in place by his treating psychiatrist and has applied to progress to the next stage of the transition plan, which involves unaccompanied leave from Ashton House.
Held (granting the application in part):
1.      The applicant’s rehabilitation is progressing well.
2.      The applicant now poses a low risk to the community.
3.      The applicant should be able to cope with a managed program of graduated unaccompanied leave and the implementation of such a program should have a positive impact on his behaviour.
4.      The applicant’s outings should remain subject to some geographical restrictions to avoid inadvertent contact with the victim’s family.
5.      Given the seriousness of the applicant’s conduct and diagnosis, he should not be discharged from James Nash House without a further order of from this Court.
6.      It remains appropriate for the police and victim’s family to be informed of the applicant’s activity plan.
7.      It is otherwise appropriate for the applicant to progress to the next stage of his transition plan.
Criminal Law Consolidation Act 1935 (SA) s 269O, s 269P and s 269T, referred to.
R v Steele [2012] SASC 55; R v Steele (No 2) [2012] SASC 162; R v Steele (No 3) [2013] SASC 191; R v Steele (No 4) [2014] SASC 205, considered.

R v STEELE (No 5)
[2016] SASC 6
Criminal
GRAY J.

This is an application to vary a supervision order and conditions of a release on licence pursuant to section 269P of the Criminal Law Consolidation Act 1935 (SA).
On 17 December 2015, subject to a number of qualifications discussed below, I made an order varying the supervision order and conditions of licence in respect of the defendant and applicant, Matthew Robert Steele, to allow him to progress to the next stages of his transition plan. My reasons follow.
Background
In 2006, the defendant attacked and killed Umberto Crisante with a hammer. The defendant pleaded not guilty to the offence of murder on the basis that he was not mentally competent to commit the offence. Following his detention in James Nash House, a secure mental health facility, the defendant was diagnosed with schizophrenia. On 21 May 2008, I recorded findings that the objective elements of the offence were proved beyond reasonable doubt but that the defendant was not guilty on the grounds of mental incompetence. On 18 July 2008, I made a supervision order committing the defendant to detention, pursuant to section 269O(1)(b)(i) 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 attack, together with the relevant psychiatric evidence.[1]
[1] R v Steele [2012] SASC 55.
The present application follows a number of previous applications by the defendant to vary his supervision order and the conditions of his licence. Those applications may be summarised as follows.
In 2012, with the agreement of counsel appearing for the Director of Public Prosecutions, 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.[2] The victim’s family were heard on the application and the Court received psychiatric evidence concerning the defendant’s suitability for release on licence. In summary, the first two stages of the transition plan permitted the defendant to engage in restricted, supervised daytime outings from James Nash House.
[2] R v Steele (No 2) [2012] SASC 162.
In 2013, following the successful implementation of the first two stages of the transition plan and with the agreement of counsel appearing for the Director, I granted the defendant’s application to progress to stages three and four of an amended transition plan which, in summary, allowed the defendant to spend some time at Ashton House, a Forensic Step-Down Rehabilitation Unit.[3] The victim’s family were heard on the application and the Court received psychiatric evidence concerning the appropriateness of the defendant progressing to the next stages of his transition plan.
[3] R v Steele (No 3) [2013] SASC 191.
In 2014, the defendant applied to progress to stages five and six of the plan, which respectively provided for unaccompanied leave from, and then overnight stays in, Ashton House. The victim’s family were heard on the application and the Court received psychiatric evidence concerning the defendant’s ability to cope with the proposed changes. With the agreement of counsel appearing for the Director, I amended the defendant’s licence conditions to allow overnight stays at Ashton House.[4] I was not prepared to allow the defendant to take unaccompanied leave from Ashton House until he had demonstrated that he could successfully manage overnight stays there.
[4] R v Steele (No 4) [2014] SASC 205.
The Application
On 10 August 2015, the defendant filed an application to amend the terms of his licence in order to implement a management plan proposed by Dr Brereton in a report dated 1 May 2015. In his report, Dr Brereton recommended that the defendant be permitted to undertake unaccompanied leaves into the community from Ashton House. The frequency and duration of these leaves would be managed by staff at Ashton House, gradually increasing over time as the defendant demonstrates that he is able to manage being in public unaccompanied.
Dr Brereton suggested that the defendant would reside at Ashton House five nights per week, with a view to eventually being discharged from James Nash House at the discretion of the Director of Forensic Mental Health. He requested that the Court relax the geographical restrictions on the defendant’s leaves. Those restrictions had been put in place to prevent the defendant from coming into contact with the victim’s family. Dr Brereton explained that relaxing the restrictions would enable a more gradual progression of the defendant’s leave program, including allowing him to attend supermarkets near Ashton House. Dr Brereton expressed concern that Ashton House was required to provide details of the defendant’s leave program to the victim’s family given previous incidences of threats being made to other patients by members of the public.
Dr Brereton expected that the defendant would have a lengthy period of rehabilitation at Ashton House before consideration would be given to him residing in the community.
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, Dr Brereton states that the defendant has been attending mindfulness, cognitive skills and nutrition group sessions. He has also completed a drug and alcohol counselling course and a fatherhood course. He has received positive feedback on his participation in these courses. He is reacquiring the skills of independent living, including cooking and budgeting, and is conscientious when organising himself. He experiences significantly less anxiety when on leave than he did previously, has no difficulty taking public transport and is not concerned by the prospect of unaccompanied leaves.
The defendant maintains close relationships with his parents and daughter, who has turned to him for support when experiencing relationship difficulties. His relationship with his son is developing well.
The defendant recognises the need for him to continue to take his medication and abstain from taking illicit substances. The defendant rejected an offer of cannabis without hesitation while on supervised leave and continues to return negative drug test results.
The defendant commenced overnight stays at Ashton House in November 2014. By February 2015, he was spending five nights per week at Ashton House. He has adapted well to the overnight stays and there have been no concerns about his progress – he remains fully cooperative in all aspects of his treatment and rehabilitation. His mental state remains stable and no psychotic symptoms have re-emerged.
Dr Brereton expressed the following opinions with respect to the defendant:
Mr Steele has continued to make excellent progress with his rehabilitation. His risk of harm remains low and, in my opinion, it is appropriate for him to progress further.
The Mental Condition of the Defendant
Mr Steele’s mental state remains stable with no psychotic symptoms. He has occasional short-lived episodes of flat mood and anxiety, but he manages these well and they do not affect his risk. He is insightful and fully co-operative with treatment, rehabilitation and all restrictions.
The Possible Effects of the Proposed Action on the Behaviour of the Defendant
Mr Steele has had a substantial period of transition from James Nash House to Ashton House and the wider community. There have been no concerns about his risk during this time. I believe the effects of the proposed action (see part 4) will be that Mr Steele will continue to progress well, remain co-operative with his treatment and restrictions, and that his risk of harm to others will remain low.
The Court received a psychiatric report dated 21 October 2015 from Jules Begg. Following a mental state examination and a review of previous reports concerning the defendant, Dr Begg provided the following opinion:
... [The defendant] developed a psychosis. As a consequence of the psychosis he committed murder. He has now recovered from the psychosis. He has a moderate depression, the severity is moderate on the basis of reduced capacity to laugh and enjoy life. The affect was not significantly depressed.
Mr Steele has responded very well to treatment and is starting to engage in the work preparatory to living independently in the community. I believe that he is now suitable to live full-time at Ashton House and to begin having unescorted leave. This is in preparation for a long term goal of living independently in the community. Thus far he has coped with the stresses of the transition program and changes in his personal life without any deterioration in his mental health. I am therefore confident that his mental health will remain stable whilst he continues in the transition program. I therefore support the application.
The Court received a psychiatric report of Hoa Nguyen dated 22 October 2015, which was also prepared following a mental state examination and a review of previous reports concerning the defendant. Dr Nguyen noted that the defendant was planning to enrol in a TAFE course in construction with a view to eventually returning to work in the construction industry. In his spare time, the defendant watches sport, goes for walks, exercises at the gym, cooks and reads the bible. He continues to suffer some anxiety when in crowds and has some concerns about his daughter’s relationship with her partner. However, he denied experiencing any other symptoms suggestive of disordered thinking. The defendant was able to identify the risks associated with taking unaccompanied leave from Ashton House and considered that he would be able to cope.
Dr Nguyen set out her opinion concerning the defendant as follows:
Examining the Mental Condition of the Defendant
Mr Steele presents in remission of his Schizophrenia. He continues to experience episodic anxiety to predictable cues. His level of insight is good and he has had a good response to all forms of psychiatric management that he is receiving. It appears that he has continued to make good progress with respect to his psychosocial rehabilitation, particularly in respect to his transition to Ashton House and escorted leaves. He appears to be very well engaged with the rehabilitation process and has expressed feasible and responsible future goals.
Examining the Possible Effects of the Proposed Action on the Behaviour of the Defendant
With respect to the proposed variation to his licence as I have discussed above, I am broadly supportive of the proposals. I believe that Mr Steele will be able to meaningfully engage with his treating team and make further progress into his rehabilitation. This will also lead to further reductions in his long-term risk that he poses to the community, which is currently low at this stage. It is also important to continue to support Mr Steele’s progress in rehabilitation, so that he continues to receive positive reinforcements for his positive changes and in order to increase his sense of independence. This will have the added benefit of more accurately assessing his longitudinal risk and inform a tailored risk management plan.
Victim and Next of Kin Counselling Report
The Court received a report of Julianne Sunic, a forensic social worker, dated 19 October 2015. In her report, Ms Sunic records the victim’s wife’s concerns about the risk the defendant might pose if allowed on unaccompanied leave. The victim’s wife frequents a number of areas near Ashton House where it is envisaged the defendant would be allowed to travel unaccompanied. She remains unable to forgive the defendant and feels that he is “asking too much”. She considers that she no longer requires psychological treatment as her grief will never abate.
Ms Sunic’s report sets out similar concerns on the part of the victim’s daughter, who said that the proposed variations “scare” her and she “does not care about [the defendant’s] rehabilitation”. She is concerned that the defendant would be unaccompanied in the community when he continues to experience anxiety. She requested that the defendant’s activity plan continue to be emailed to her and the police as this allows her and her family to feel safe and avoid any chance of seeing the defendant.
The victim’s son declined to be interviewed for the purpose of preparing Ms Sunic’s report.
The defendant’s parents provided a written statement to Ms Sunic. In their statement, the defendant’s parents state that they are happy with his progress and continue to give him their full support. They support the defendant progressing to the next stage of his rehabilitation.
At the hearing, counsel for the victim’s family submitted that, after having the opportunity to further consider the matter, the family did not oppose the defendant being allowed unaccompanied leave from Ashton House and a degree of relaxation of his geographical restrictions. However, they were concerned that some of the existing geographical restrictions, for example on the shopping centre and library they frequent, remain in place.
Consideration
Section 269T of the Criminal Law Consolidation Act provides:
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 discloses that the defendant’s condition is serious. However, his rehabilitation is progressing well. He has been described as a model patient and is fully cooperative with all aspects of his treatment. The risk he now poses to the community is low and there are adequate resources available to support his ongoing rehabilitation. The evidence establishes that the defendant should be able to cope with a managed program of graduated unaccompanied leave. The implementation of such a program should have a positive impact on the defendant’s behaviour.
The defendant’s parents and the victim’s family were given notice of the hearing and, as noted above, assisted with the preparation of a report. The victim’s family were represented at the hearing and had the opportunity to cross-examine Dr Brereton and make submissions to the Court, as did counsel for the Director. As events transpired, Dr Brereton was not required to give evidence.
I am satisfied that the defendant continues to be appropriately remorseful for his actions and aware of the need for ongoing rehabilitation. His attitude toward his rehabilitation is encouraging. It is important that the defendant be supported in his rehabilitation with a view to his eventual reintegration into the community as a functional member of society. However, given the seriousness of the defendant’s conduct and diagnosis, I am mindful of the need to carefully manage his rehabilitation to ensure that the community is appropriately protected. As a consequence, I was not prepared to allow the defendant to be discharged from James Nash House without a further order from this Court. I do not consider it appropriate that, at this time, the defendant be permitted to attend the shopping centre frequented by the victim’s family – there is another nearby shopping centre which he can visit instead. Further, I consider it appropriate that the defendant is limited to attending the local library on two set days per week to avoid any inadvertent contact between the defendant and the victim’s family. I also consider that the victim’s family and police should continue to be informed of the defendant’s activity plan. However, the plan need not detail the time of the activity. The date and location of that activity will be sufficient. Otherwise, in my view, it is appropriate for the defendant to commence unaccompanied leaves from Ashton House in accordance with stages five and six of his transition plan. The defendant will continue to spend up to five nights per week at Ashton House.
Conclusion
For the foregoing reasons, I allowed in part the defendant’s application to vary his supervision order and conditions of his licence.