R v Steele (No 6) - [2016] SASC 124

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v STEELE (NO 6)
[2016] SASC 124
Reasons for Decision of The Honourable Justice Stanley
12 August 2016
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - REVIEW
This is an application for variation of a supervision order and release on licence pursuant to s 269P(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
On 21 May 2008 the applicant was found not guilty of murder on the grounds of mental incompetence pursuant to s 269FA(5)(b) of the CLCA. On 18 July 2008 a supervision order was made pursuant to s 269O(1)(b)(i) of the CLCA committing the applicant to detention. In 2012 the applicant was granted release on licence as part of a transitional program prepared by his treating psychiatrist.
The present application seeks variation to the applicant’s licence conditions, namely discharge from James Nash House to the step down facility at Ashton House, variation of the obligation to provide a treatment plan to the deceased’s family on a weekly basis, variation of the frequency of drug testing and variation of the geographical area that the applicant is precluded from entering.
Held (granting the application in part):
1. It is appropriate the applicant be discharged from James Nash House to the step down facility at Ashton House (at [18]).
2. It is appropriate there be a variation in the applicant’s drug testing from the current regime to testing once a week for three months, followed by testing once every two weeks for the next three months, followed by testing once a month. The implementation of this incremental variation to the drug testing regime will depend upon the applicant continuing to provide no positive results (at [20]).
3. It is not appropriate to vary the existing orders in relation to the requirement to provide to the deceased’s family a copy of the applicant’s current treatment plan (at [21]).
4. It is not necessary to consider the variation of the geographical area which the applicant is precluded from entering (at [22]).
Criminal Law Consolidation Act 1935 (SA) s 269FA(5)(b), s 269O(1)(b)(i), s 269P(1), s 269Q(2), s 269T, referred to.

R v STEELE (NO 6)
[2016] SASC 124
Application
STANLEY J:
Introduction

This is an application for variation of a supervision order and release on licence pursuant to s 269P(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
Background
On 21 May 2008 the applicant was found not guilty of murder on the grounds of mental incompetence pursuant to s 269FA(5)(b) of the CLCA. On 18 July 2008 a supervision order was made pursuant to s 269O(1)(b)(i) of the CLCA committing the applicant to detention. In 2012 the applicant was granted release on licence as part of a transitional program prepared by his treating psychiatrist. The first two stages of the transition plan permitted the applicant to engage in restricted, supervised daytime outings from James Nash House.
The applicant has applied for variation of the supervision order and conditions of licence on three separate occasions. In 2013 Gray J granted an application to progress the applicant to stages three and four of an amended transition plan which allowed the applicant to spend time at Ashton House, a forensic step down rehabilitation facility. In 2014 Gray J granted an application to progress the applicant to stages five and six of the transition plan, which provided for overnight stays at Ashton House. In 2016 Gray J granted a further application to vary the supervision order to allow the applicant to undertake unaccompanied leave from Ashton House.
The application
The present application seeks the following variations to the applicant’s licence conditions:
1.Discharge from James Nash House to the step down facility at Ashton House.
2.Variation of the obligation to provide a treatment plan to the deceased’s family on a weekly basis.
3.Variation in drug testing from twice weekly drug testing to drug testing at the discretion of the Department for Correctional Services and mental health services.
4.Variation of the geographical area that the applicant is precluded from entering.
Psychiatric reports
The Court received three psychiatric reports addressing the application, pursuant to s 269T(2)(a) of the CLCA.
The court received a psychiatric report from Dr William Brereton dated 22 July 2016 which was prepared following a mental state examination and a review of previous reports concerning the applicant. Dr Brereton states the applicant has been undertaking unaccompanied leave from James Nash House for the past five months. Dr Brereton states the applicant’s mood is generally good, his levels of anxiety are greatly improved and he is appropriately managing any anxiety that continues to manifest. He has recently attended a mental health conference and attends all groups available to him at Ashton House. He remains cooperative with all aspects of his treatment, rehabilitation and restrictions. The applicant has developed a good relationship with his son and is supportive of his adult daughter. As a result of significant weight loss the applicant’s medication has been reduced which has not affected adversely his mental state. The applicant receives a minimum of two urine drug screens per week. Those tests serve a dual purpose. They permit detection of any illicit drug use and monitoring of his adherence to the prescribed regime of therapeutic medication controlling his schizophrenia. All test results have been negative for illicit drug use.
Dr Brereton recommends discharge to Ashton House on the basis that the applicant would remain closely monitored at Ashton House, receiving ongoing treatment and psychosocial rehabilitation. This position is supported by the applicant’s mental health supervisors. Dr Brereton recommends ceasing the provision of the applicant’s leave arrangements to the victim’s family. In his opinion, the provision of an accurate plan would be arduous given the flexibility which will be afforded to the applicant upon discharge to Ashton House. Dr Brereton also expresses concern about the release of information pertaining to the applicant’s whereabouts. Dr Brereton recommends the level of drug testing of the applicant should be reduced from weekly drug tests, to a more routine regime of drug testing at the discretion of the Department for Correctional Services and mental health services. Dr Brereton recommends reducing the stringency of the applicant’s geographical restrictions which remain complex and difficult to understand for the applicant and staff at Ashton House.
The Court received a psychiatric report from Dr Owen Haeney dated 28 June 2016 which was also prepared following a mental state examination and a review of previous reports concerning the applicant. Dr Haeney states that the applicant is undertaking behavioural management of anxiety and has developed strategies to manage anxiety provoking situations. He expresses remorse in terms of the impact of his offending on the victim, the victim’s family and his own family. Dr Haeney states the applicant is planning to obtain work in labouring. The applicant recognises the need to continue to take his medication and abstain from taking illicit substances. He is able to identify warning signs of relapse and displays insight into the importance of notifying mental health professionals of those warning signs. Dr Haeney is of the opinion that the applicant’s paranoid schizophrenia has been well controlled since commencing clozapine. The applicant is fully committed to his transition plan, which has been in place for several years. Dr Haeney is of the view that the transition to discharge to Ashton House would not result in any significant risk to the applicant or others.
The court received a psychiatric report from Dr Jules Begg dated 17 June 2016 which was also prepared following a mental state examination and a review of previous reports concerning the applicant. Dr Begg is of the opinion that there has been a mitigation of the applicant’s anxiety symptoms as a result of undertaking behaviour therapy. Any anxiety which the applicant is experiencing will not contribute to the risk of schizophrenic deterioration. Dr Begg states that the applicant has good personal insight and expresses remorse in relation to the offence. Dr Begg is of the opinion that the applicant does not pose a risk to the community, although he acknowledges a small risk of schizophrenic relapse. Dr Begg is supportive of the applicant’s continued release into the community.
Victim and Next of Kin Counselling Report
The Court received a report of a forensic social worker, dated 12 July 2016. The social worker states that the victim’s parents and next of kin oppose the application. Due to the risk of re-traumatising them the views of the victim’s wife and daughter expressed in a previous report dated 19 October 2015 were used for the preparation of the July 2016 report. In the report of October 2015 the victim’s wife expresses concern that she will have contact with the applicant as she frequents a number of areas near Ashton House. She feels the applicant is “asking too much”. She expects her grief will persist irrespective of any proposed psychological treatment. A similar concern is harboured by the victim’s daughter, who states that the proposed variations “scare” her. She is concerned about the psychological effect on her mother and of seeing the applicant in the community. She raises concerns about the applicant being unaccompanied in the community when he still experiences anxiety and questions how his whereabouts would be “tracked”. She is opposed to any changes to the activity plan being sent to her. Both parties strongly oppose any review of the geographical restrictions.
The applicant’s parents provided a written statement to the social worker. They state they are proud of the remorse their son now expresses and the progress of his rehabilitation. They are supportive of his discharge to Ashton House which would permit him the opportunity to lead a more “normal life”. The applicant’s parents intend to remain involved in their son’s life and to continue to offer encouragement and support.
Report submitted by the Minister
Pursuant to s269Q(2) CLCA the Minister must prepare and submit an annual report containing a statement of the treatment of a person the subject of supervision and any changes in their prognosis. The court received a report from Dr Cassie Smith dated 7 April 2016 which was prepared based on interactions with the applicant and attendance at multidisciplinary care plan meetings since February 2015. Dr Smith states that the applicant is fully compliant with his medication regime and monitoring requirements. The applicant’s mood is stable and there is no evidence of mood disturbance or psychotic symptoms. He is working with a psychologist to address chronic anxiety symptoms. In Dr Smith’s opinion the applicant has good personal insight and appreciates the need for continued treatment. The applicant is working with staff at Ashton House to ensure compliance with his treatment plan, after an accidental breach in March 2016. She states the applicant’s risk to others is low and that it is clinically appropriate that the applicant continue his rehabilitation at Ashton House on a full time basis.
Section 269T
Section 269T of the CLCA 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.
…
Submissions
The Director does not oppose the applicant’s discharge to Ashton House from James Nash House.
In relation to the variation of the obligation to provide a treatment plan to the deceased’s family, the Director submits that the applicant and the victim’s next of kin reside in the same area and that provision of the plan is necessary to prevent contact with the applicant. There has been no contact to date between the victim’s family and the applicant and provision of the plan will not place the applicant at risk. Counsel for the applicant expressed concern about the information entering the public domain but submitted that the applicant was content to submit to the provision of his treatment plan to the victim’s family as he is at pains to be respectful throughout the process of rehabilitation.
In relation to the variation of drug testing, the Director submits that drug testing should be minimised incrementally, such that the applicant is tested once a week for three months, once fortnightly for three months and then once a month, subject to positive testing.
A variation of the geographical area that the applicant is precluded from entering was not pressed by counsel for the applicant.
Consideration
The psychiatric evidence supports the therapeutic process of the applicant’s continued integration into the community. He remains fully cooperative with all aspects of his treatment and his rehabilitation continues to progress well. I am satisfied that the risk he now poses to the community is low and there are adequate resources available to support his ongoing rehabilitation. I am satisfied that it is appropriate he be discharged from James Nash House to the step down facility at Ashton House. It is clear that this is the next logical step in the process of reintegrating the applicant into the community as a productive and functioning citizen. That objective must always be subject to the court’s satisfaction that any further steps in the program of reintegration into the community can be undertaken without the likelihood that it would result in danger to another person or other persons generally. On the evidence I am satisfied that is so.
That leaves the question of variation to the orders previously made in relation to drug testing of the applicant and the provision of a treatment plan to the deceased’s family.
I am satisfied that it is appropriate there be a variation in drug testing from the current regime of twice weekly. I accept the submission by the Director that the reduction in drug testing should occur gradually so that there can be some reassurance that the process of reintegration is proceeding smoothly. Accordingly I would order that the applicant’s current regime be varied to provide for testing once a week for three months, followed by testing once every two weeks for the next three months, followed by testing once a month. The implementation of this incremental variation to the drug testing regime will depend upon the applicant continuing to provide no positive results. This will ensure that the community is appropriately protected in the management of his rehabilitation.
I am not prepared to vary the existing orders in relation to the requirement to provide to the deceased’s family a copy of the applicant’s current treatment plan. Whatever the administrative difficulties this may present, I consider the continued provision of these plans is necessary for two purposes. First, to prevent contact between the applicant and the deceased’s family and, second, to provide them with some reassurance that their interests are being considered and protected throughout the process of the applicant’s reintegration into the community. Further, there is no evidence that the provisions of a treatment plan to the deceased’s family will pose a risk to the physical safety of the applicant. The desire for the continued provision of treatment plans is prophylactic.
As the applicant no longer presses a variation of the geographical area which he is precluded from entering, it is not necessary to consider this matter further on this occasion.
Conclusion
For these reasons I allow in part the application to vary the supervision order and conditions of the applicant’s licence.