R v Steele (No 7) - [2018] SASC 85

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v STEELE (NO 7)
[2018] SASC 85
Judgment of The Honourable Justice Hinton
25 June 2018
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - REVIEW
Application to vary the terms of a supervision order and release on licence pursuant to s 269P of the Criminal Law Consolidation Act 1935 (SA).
On 21 May 2008 the applicant was found not guilty of murder on the grounds of mental incompetence. A supervision order was made and the applicant committed to detention. In 2012, the applicant was granted release on licence as part of a transitional program prepared by his treating psychiatrist with the long term objective of readying him for return to the community. Since then the applicant has returned to this Court on a number of occasions as variations to his licence conditions have been sought in order to facilitate the transitional program: R v Steele [2012] SASC 55 - R v Steele (No 6) [2016] SASC 124.
By the present application the applicant sought variations to the terms of his supervision order and release on licence permitting unsupervised overnight leave from Ashton House, a reduction in the geographical restrictions on his movements and removal of a requirement to provide the victim’s next of kin with an activity plan each week detailing his activities when absent from Ashton House.
Held, granting the application in part:
1.       The supervision order is varied such that the applicant is permitted unsupervised overnight leave from Ashton House to stay at his parents’ house limited initially to one night per week progressing at the discretion of the Director of Forensic Mental Health or his or her nominee to three nights per week.
2.       The supervision order is varied such that the applicant must prepare an activity plan fortnightly and only as to his attendance at public events as defined.
3.       It is not appropriate to dispense with the geographical restrictions conditioning the applicant’s release on licence.
Criminal Law Consolidation Act 1935 (SA) s 269FA, s 269O, s 269P, s 269Q, 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; R v Steele (No 5) [2016] SASC 6; R v Steele (No 6) [2016] SASC 124, applied.

R v STEELE (NO 7)
[2018] SASC 85
Application
HINTON J:
Introduction

This is an application for the variation of a supervision order and release on licence pursuant to s 269P(1) of the Criminal Law Consolidation Act 1935 (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) CLCA. On 18 July 2008 a supervision order was made pursuant to s 269O(1)(b)(i) CLCA committing the applicant to detention. In 2012 the applicant was granted release…

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 7)

Details

AGLC: R v Steele (No 7) [2018] SASC 85
Case: [2018] SASC 85
Decision Date: 25 June 2018

CaseChat Overview and Summary

The case of R v Steele (No 7) involved the application of Steele, the applicant, for a variation of the supervision order and conditions of his release on licence. The applicant had been subject to a supervision order under the Criminal Law Consolidation Act 1935 (SA) due to his mental health condition and previous criminal behaviour. The primary legal issue was whether the geographical restrictions imposed on the applicant’s movements were appropriate and necessary to balance his rehabilitation against the safety concerns of the community and Mr Crisante's family.

The court examined the psychiatric evidence and reports submitted to determine if the applicant's release could be further relaxed without posing a risk to the public. The court found that the applicant had been compliant with his treatment and demonstrated stability in his condition. Although Mr Crisante's family were not represented at the hearing, their concerns were considered through the Victims and Next of Kin Counselling Report. The court concluded that the geographical restrictions should remain, albeit with some adjustments to clarify the terms, to mitigate the risk while allowing the applicant to participate in rehabilitation programs.

The court varied the supervision order and conditions of the applicant's release on licence, allowing him to remain in-patient at Ashton House with specific conditions for leave, medication, and supervision. The court also maintained the geographical restrictions with specific exclusion zones, permitting the applicant to travel through these zones for authorised activities. The decision ensured a balance between the applicant's rehabilitation and the need to protect the community.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

At this time I am not convinced that it is appropriate to dispense with the geographical restrictions on the applicant’s movements. By his current licence conditions the applicant is permitted to enter the identified geographical exclusion zones for the purpose of educational, recreational or therapeutic programs as directed by the Director of Forensic Mental Health or a consultant psychiatrist nominated by him or her or his supervisors. I have redrafted the specific terms of the relevant conditions to ensure there is no doubt that the applicant can travel through, but not remain in, the excluded zones. There is no specific evidence before this Court that the exclusion zones are prohibiting the applicant from securing particular accommodation or attending particular community events, courses or other programs. I appreciate that the exclusion zones might create an element of inconvenience for the applicant but this may be a small price to pay in recognition of the ongoing suffering of Mr Crisante’s family. Conclusion and orders For these reasons I allow in part the application to vary the supervision order and conditions of the applicant’s release on licence. I order:1.That the supervision order made on 12 August 2016 be varied by revoking the supervision order and substituting in its place the following Order.2. That the applicant be released on licence subject to the following conditions:-(a) That the applicant be under the care and direction of the Clinical Director, Forensic Mental Health Service (“The Director”), or a consultant psychiatrist nominated by him or her (“the nominee”), and obey any directions given to him by the Director or the nominee from time to time with regard to medical, psychological and psychiatric treatment and medication. (b) That the applicant continue to reside as an in-patient at Ashton House and not be discharged from Ashton House without further order from this Court. (c) That the applicant be permitted, at the discretion of the Director or the nominee, periods of accompanied and unaccompanied leave away from Ashton House for rehabilitation purposes. Such periods may include unescorted overnight leave for the purposes of the applicant staying with his parents limited to one night a week progressing at the discretion of the Director or nominee to three nights a week.(d) That the applicant continue to receive his medication current at the date of this order, and further that any alteration or reduction in such medication not occur without the approval of the Director or the nominee. (e) That the applicant submit to random screening of his blood at the direction of the Director or the nominee to ensure compliance with the taking of prescribed medication.(f) That the applicant 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 applicant by a legally qualified medical practitioner be possessed or administered by the applicant only at prescribed or recommended dosages. (g) That the applicant not consume alcohol.(h) That the applicant’s case be managed by the Forensic Step-Down Rehabilitation Unit team and that the applicant comply with all the lawful directions of that team or any 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. (i) That the applicant 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.(j) That the applicant, whenever required by the Community Corrections Officer or the Forensic Step-Down Rehabilitation Unit team, shall submit himself for breath and/or urine testing for the purpose of determining whether there is present in his body any illicit or non-prescribed drug or alcohol.(k) That the applicant not depart or attempt to depart from the State of South Australia.(l) That the applicant not enter or remain at the Enfield Memorial Park any day other than one specific day per month; that day being the 1st day of each month.(m) That the applicant not stop or remain in the area on the attached map shaded in yellow bordered by (but excluding) the following roads: -Prospect Rd, Main North Rd, Montague Rd, Walkley’s Rd, Muller Rd, Hampstead Rd and Third Ave/Percy St;Other than for the purpose of visiting the Enfield Memorial Park, or for the purpose of travelling through the area on public transport. (n) That the applicant not stop or remain in the areas delineated on the attached map shaded in green bordered by (but excluding) the following roads:Lower North East Td, Gorge Rd, Maryvale Rd & Montacute Rdand Fullarton Rd, Kensington Rd, Glynburn Rd & Payneham Rd; other than for the purpose of attending educational, recreational or therapeutic programs as directed by the Director, the nominee or his supervisors, or for the purpose of travelling through the area on public or by private transportation.(o) That the applicant may attend at bus stop 27, on The Promenade, Oakden, as authorised by the Director or the nominee. (p) That the applicant may attend at the Greenacres Shopping Centre, Hillcrest, as authorised by the Director or the nominee.(q) That the applicant may attend at the Greenacres Library, Hillcrest, on Wednesdays and Saturdays, weekly, as authorised by the Director or the nominee.(r) That the applicant prepare an activity plan fortnightly detailing his intended attendance at any public event including the location of such event and the time at which it is to be held. Such plan is to be emailed fortnightly to the nominated South Australia Police liaison officer.The applicant is encouraged, but is not required, to include other outings in the community that he is aware he will be attending, the date and location.Note: A public event is an event held to celebrate achievements or milestones or for the entertainment and enjoyment of the public generally and includes, for example, Australian Football League games, South Australian National Football League games, National Basketball League games, National Soccer League games, National Netball League games, the cricket, the Clipsal 500, WOMADELAIDE, the Fringe Opening Parade, the Theatre, the Opera, ANZAC Day services, the Adelaide Cup, the Christmas Pageant. (s) That the applicant not contact or approach, either directly or indirectly, [names deliberately withheld]. (t) That the applicant not possess a firearm, ammunition or any part of a firearm. (u) That the applicant submit to tests, including testing without notice, for gunshot residue. 3. In the event that the Director or the nominee is of the opinion that:(i) the applicant has contravened, or is likely to contravene a condition of this order; or(ii) the applicant is in need of a level of security that cannot be provided by the Forensic Step-Down Rehabilitation Unit,the Director or the 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.4.If the Director of Public Prosecutions is notified by the Director or the nominee or the Presiding Member of the Parole Board, or the Presiding Member’s nominee in accordance with order 3 above, the Director of Public Prosecutions is at liberty to apply to this Court for a review of the supervision order at short notice.5.That the applicant, 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.

Ratio Decidendi

Legal Principle Established

Mr Crisante’s family were not represented at the hearing. They instead rely on the contents of the Victims and Next of Kin Counselling Report. Consideration Section 269T(1) and (2) CLCA provide:269T—Matters to which court is to have regard(1) In deciding proceedings under this Subdivision, 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 Subdivision, or significantly reduce the degree of supervision to which a defendant is subject unless the court—(a) has considered a report (an expert report) prepared by a 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 Subdivision; and(ba) is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release; and(c) has considered the report on the attitudes of victims and next of kin prepared under this Subdivision; 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. As is plain from the above, the available psychiatric evidence supports the applicant’s continued rehabilitation by further reintegration into the community. The applicant has been fully compliant with treatment over many years and his condition is stable. He has demonstrated a long-term commitment to his rehabilitation. Although he has faced a number of personal stressors since the last application to this Court, there is no evidence that any of his experiences have adversely impacted his rehabilitation or increased his risk to the community. He has shown that he possesses insight into the nature of his offending and its consequences for others. I am satisfied that it is appropriate to vary the applicant’s supervision order in part. As set out in the background to these reasons, the applicant has responded well to a gradual relaxation of the conditions of his release on licence over time. I consider that the cautious approach adopted by this Court has ensured that the applicant has progressed while allowing effective management, response and oversight of each stage in his transition. I consider this approach to be an effective way of balancing the competing interests of the applicant’s further rehabilitation, management of the risk posed to the community by the seriousness of his illness and demonstrated ability to offend, and the fear experienced by Mr Crisante’s family and the community more generally. I see no reason to depart from it.