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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Steele (No 6)

Details

AGLC: R v Steele (No 6) [2016] SASC 124
Case: [2016] SASC 124
Decision Date: 12 August 2016

CaseChat Overview and Summary

The case of R v Steele (No 6) involved the application for variation of a supervision order and release on licence, as per s 269P(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The applicant, previously found not guilty of murder on the grounds of mental incompetence, sought changes to his supervision order and licence conditions. These changes included transitioning from James Nash House to Ashton House, a forensic step-down rehabilitation facility, and varying drug testing and treatment plan provisions.

The legal issues before the court revolved around whether the proposed variations to the supervision order and licence conditions were appropriate, considering the applicant's ongoing mental health treatment, rehabilitation progress, and the risk he posed to the community. The court needed to assess if the changes would facilitate the applicant's reintegration into the community without posing a danger to others.

The court's reasoning was based on the psychiatric evidence presented, which indicated that the applicant's mental health was stable and that he was cooperative with his treatment and rehabilitation. The court was satisfied that the risk he posed was low and that adequate support was available for his continued rehabilitation. The court allowed variations to the supervision order, including discharging the applicant from James Nash House to Ashton House and adjusting the drug testing regime gradually. However, the court declined to vary the requirement for the applicant to provide a treatment plan to the deceased's family, considering it necessary for preventing contact and providing reassurance to the family.

In summary, the court allowed in part the application to vary the supervision order and conditions of the applicant's licence, with specific modifications to his living arrangements and drug testing regime, but not to the treatment plan provision.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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