R v Steele (No 7)
[2018] SASC 85
•25 June 2018
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 85Application
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 on licence as part of a transitional program with the long term objective of readying him for return to the community prepared by his treating psychiatrist, Dr Brereton. 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. On 15 May 2018 I allowed the present application in part to further facilitate the applicant’s reintegration into the community.
Background
The history of this matter can be traced in the judgments R v Steele and R v Steele (No 2) - R v Steele (No 6).[1] I have read and had regard to each of those judgments.
[1] [2012] SASC 55; [2012] SASC 162; [2013] SASC 191; [2014] SASC 205; [2016] SASC 6; [2016] SASC 124.
I do not stay to recant the circumstances in which the applicant killed Mr Crisante. They have been set out elsewhere. The killing was brutal, was unprovoked, and was committed for no logical reason. It was the sort of killing that strikes great fear in the community. That the applicant was in a psychotic state and very unwell provides some comfort for the community. It provides no comfort to Mr Crisante’s family. Their suffering, and in particular that of Mrs Crisante, continues to be great. Further, understandably, their fear of the applicant remains very real.
The applicant has progressed through six stages of a transition plan first developed by Dr Brereton in 2012. The plan, with its incremental stages, reflects a cautious approach to the re-introduction and re-integration of the applicant back into the community. It was developed in the light of the applicant’s positive engagement with the rehabilitation process, his acceptance of his offending, and his expression of remorse. This included his compliance in taking prescribed medication and compliance with the rules and regulations in James Nash House. The applicant also willingly participated in intensive individual and group psychological sessions. He has benefited from these. That benefit, according to his treating psychiatrist, may be attributed to him having put in significant effort. In short, he had done all that was asked of him as an inpatient at James Nash House.
Stages one and two of the transition plan involved structured, supervised and graded outings from James Nash House. It was the beginning of efforts to transition the applicant to the community with the support of multiple agencies. During stage one the applicant was to be accompanied by two James Nash House staff members on restricted day leave to expose him to different social settings and community based mental health programs. As the applicant progressed to stage two of the plan his level of supervision was to be reduced to one James Nash House staff member and one or two other appropriately qualified mental health workers.
Orders were made on 21 September 2012 facilitating stages one and two.[2] The orders made included:
[2] R v Steele (No 2) [2012] SASC 162.
(a) That the defendant be under the care and direction of the Clinical Director, Forensic Mental Health Service (“Director”), or a consultant psychiatrist nominated by him or her (“nominee”), and obey any directions given to him from time to time with regard to medical, psychological and psychiatric treatment and medication.
(b) That for the initial period of release on licence the defendant comply with stages one and two of the transition plan set out in the report and attachment of Dr Brereton dated 11 May 2012 [to be annexed].
(c) That at the end of stage two of the transition plan a report be prepared for the Court from Dr Brereton as to the success or otherwise of the transition plan to date. At that point further consideration can be given to the other stages of the plan.
(d) That at any point the transition plan up to stage two can be suspended by the Clinical Director or his nominee and the matter brought back to Court for further consideration.
…
(m) That an activity plan be prepared each week detailing the proposed leave arrangement. A copy of this plan is then to be emailed each week to the nominated South Australia Police liaison officer.
(n) That the defendant 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 every month.
(o) That the defendant not at any time enter, stop or remain in the area delineated [on Map 1 to be annexed hereto] and bordered by the following roads:
Prospect Rd, Main North Rd, Montague Rd, Walkley’s Rd (including Ingle Farm Shopping Centre precinct), Grand Junction Rd, Fosters Rd, Muller Rd, Hampstead Rd and Third Ave/Percy St,
other than for the purpose of visiting the Enfield Memorial Park. The defendant is allowed to traverse but not stop on Fosters Rd, Grand Junction Rd, Rellum Rd, Birdwood Rd and Muller Rd.
(p) That the defendant not at any time stop or remain in the areas delineated [on Maps 2 and 3 to be annexed hereto] and bordered by the following roads:
Map 2: Lower North East Rd, Gorge Rd, Maryvale Rd and Montacute Rd,
Map 3: Fullarton Rd, Kensington Rd, Glynburn Rd and Payneham Rd,
other than for the purpose of attending educational, recreational or therapeutic programs as directed by his supervisors or for passing through continuously on public or private transportation.
I understand that the activity plan contemplated by order (m) was included as a means of providing Mr Crisante’s family with some comfort as to the whereabouts of the applicant when in the community. Orders (n)-(p) were included so that the applicant’s movements in areas likely to be frequented by members of Mr Crisante’s family were limited and known. The progress report contemplated by order (c) reflected the Court’s concern to oversee the applicant’s transition to unsupervised leave in the community as contemplated by stages five and six of the transition plan. The Judge was not satisfied that the interests of public safety would be adequately addressed if the applicant was permitted unsupervised leave from James Nash House at that time.[3]
[3] R v Steele (No 2) [2012] SASC 162, [14].
The applicant subsequently moved through stages one and two of the transition plan to the satisfaction of his treating psychiatrist. During stage one the applicant was said to have progressed well. Although he had experienced some stressors outside the program, he demonstrated an ability to cope. All urine drug screenings were negative. Upon commencing stage two of the program the applicant successfully attended a Drug and Alcohol Group for approximately seven weeks. Further, his behaviour during supervised outings was described in positive terms. Although he reported some anxiety in certain situations, he dealt with this appropriately, applying the behavioural management techniques that he had practiced with his psychologist. Throughout the program the applicant was cooperative. He exhibited good social skills with staff at James Nash House, as well as the wider community. Significantly, his mental state remained stable throughout. This contributed to his psychologists agreeing to support the applicant in progressing to the next stages of the program.
Stages three and four of the transition plan involved the applicant spending more time at Ashton House, a forensic step down rehabilitation facility a short distance from, and outside the secure perimeter of, James Nash House. Rather than being locked in a secure ward, those residing and attending at Ashton House enjoy greater independence whilst supervised by a number of clinical staff on site 24 hours a day. Stage three involved the transfer of supervision of the applicant from James Nash House to Ashton House. Stage four then reduced the level of supervision required for the applicant while present at Ashton House and permitted him to leave James Nash House to attend at Ashton House unaccompanied. It remained the case that the applicant was not permitted to leave Ashton House unsupervised. At this stage whilst the applicant would frequent Ashton House he remained resident at James Nash House.
Although Mr Crisante’s family did not oppose the applicant’s transition to stages three and four, they expressed their concern about further reduction in the supervision of the applicant to unescorted leave as contemplated by stages five and six of the plan. Of particular concern to the family was the opportunity and temptation for the applicant to abuse illicit substances while in the community where the applicant was no longer protected from the vicissitudes of life as in the therapeutic environment. Mr Crisante’s family requested conditions be imposed on the applicant’s licence requiring him to submit to random tests for illicit drugs and alcohol.[4] This Court made an order permitting stages three and four of his transition plan to commence. That order kept in place the geographical restrictions on the applicant’s movement in the community as set out at [6] above, imposed a non-contact clause and required drug testing at a minimum of once per week.
[4] R v Steele (No 3) [2013] SASC 191, [19]-[20].
The applicant moved successfully through six weeks of stage three and on to stage four. He was said to be motivated and engaged with his care and rehabilitation. His mental state remained stable and he was reported to have an open and honest relationship with his treating team, good insight into his illness and to be receptive of supervision. Only minor episodes of anxiety were reported.
During stage four this Court received an undated, handwritten letter that appeared to be authored by a disgruntled staff member within Ashton House. It asserted that the applicant had breached the geographical restrictions in his supervision order by attending at Ingle Farm Shopping Centre during his supervised day leave. The applicant’s licence was suspended on application of the Clinical Director of Forensic Mental Health pending investigation of the incident. It was subsequently accepted that the applicant was not responsible for the breach, rather it was an internal, operational breach by staff at Ashton House, unaware of the stringency of the applicant’s supervision order. The applicant’s licence conditions were reinstated with the consent of Mr Crisante’s family.
The applicant then applied to progress to stages five and six of the plan. Those stages provided for unaccompanied leave from, and then overnight stays in, Ashton House. Dr Brereton recommended that the stages be reversed in order opining that moving from day leaves to overnight leaves to Ashton House was actually a lesser step in terms of monitoring and supervision than the move from accompanied leave into the community to unaccompanied leave in the community.[5] Drs Raeside, Nambiar and Brereton were all of the view that the applicant exhibited no active psychotic symptoms, displayed insight into his offending and was conscientious in his rehabilitation and adherence to his licence conditions. The Court noted that the psychiatric evidence “overwhelmingly” supported a change in the applicant’s licence conditions and was satisfied that appropriate safeguards had been put in place at Ashton House to minimise the risk of any further breaches of his licence conditions.
[5] Report of Dr Brereton dated 25 August 2014; R v Steele (No 4) [2014] SASC 205.
Mr Crisante’s family reiterated their concerns about the applicant’s transition to stages five and six and their constant fear of seeing the applicant in the community. While prepared to authorise overnight stays in Ashton House the Judge was not prepared to authorise unsupervised leave from Ashton House. The Judge said:[6]
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.
[6] R v Steele (No 4) [2014] SASC 205 [31].
The orders made required the applicant’s continued compliance with stages three and four of the transition plan, including supervision by staff at Ashton House. The frequency of overnight stays in Ashton House was to be as authorised by the Clinical Director, Forensic Mental Health. The geographical restrictions and requirement to provide an activity plan to prevent contact with the victim’s family were maintained.
By February 2015 the applicant was spending five nights per week at Ashton House adapting well and remaining fully cooperative with his treatment and rehabilitation.[7] He had reacquired the skills of independent living, including cooking and budgeting and organising himself. Reflecting on the applicant’s transition to date, Drs Nguyen and Begg were supportive of further variation to the applicant’s licence conditions to authorise unaccompanied leaves into the community which would provide positive reinforcement for his commitment to his rehabilitation.
[7] R v Steele (No 5) [2016] SASC 6, [15].
In August 2015 the applicant applied to amend the terms of his licence to implement an updated management plan prepared by Dr Brereton facilitating the transition to unaccompanied leave from Ashton House. As part of the plan it was recommended that the frequency and duration of such leave gradually increase over time and that the geographical restrictions on the applicant’s movements be relaxed to further facilitate his rehabilitation. Although Mrs Crisante and her daughter reiterated their fear of seeing the applicant in the community, they did not oppose the defendant being allowed unaccompanied leave from Ashton House.
The variation was granted. Bearing in mind the seriousness of the applicant’s condition and diagnosis, and the need to carefully manage the applicant’s rehabilitation, the Court was not prepared to authorise the applicant’s discharge from James Nash House at that time. Recognising the fear expressed by Mr Crisante’s family at seeing the applicant in their local areas the Judge said:
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. 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.
The applicant transitioned successfully to unaccompanied leaves into the community. He continued to engage in all group sessions and group work available to him at Ashton House. In 2016 this Court varied the applicant’s supervision order to allow him to be discharged from James Nash House as “the next logical step in the process of reintegrating the applicant into the community as a productive and functioning citizen.” The supervision order was further varied to require a gradual and progressive reduction in drug testing over a period of seven months in accordance with the recommendations of the applicant’s treating psychiatrist. Despite Dr Brereton noting that provision of an accurate activity plan was arduous given the flexibility afforded to the applicant, this Court was not prepared to vary the condition. The Judge said:[8]
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….
[8] [2016] SASC 124, [21].
As part of each application to this Court the applicant has enjoyed the support of his parents who have noted the improvements in his outlook on life and his increased hope for the future as the conditions on his supervision order have been relaxed. The applicant has continued to express remorse for his offending, a commitment to his rehabilitation, and insight into the distress that the victim’s family continue to experience.
The current application
The present application seeks the following variations to the applicant’s licence conditions:
1.Reduction in the geographical restrictions on the applicant’s movements;
2. Authorisation of unsupervised overnight leave from Ashton House;
3.Leave to travel interstate in the company of his parents to visit relatives for Christmas celebrations;
4.Removal of the requirement to provide an activity plan to the victim’s next of kin.
I have received the following materials in relation to the application:
·Psychiatric report of Dr W Brereton, dated 19 April 2018.
·Psychiatric report of Dr O Haeney, dated 1 May 2018.
·Psychiatric report of Dr C Raeside, dated 8 December 2017.
·Annual Psychiatric Report of Dr O Burgess, dated 26 April 2018.
·Affidavit of Timothy Bruce Clarke affirmed 21 September 2017 annexing the annual report of Dr A Gupta dated 19 June 2017.
·Victim and Next of Kin Counselling Report, dated 7 May 2018.
·Draft Minutes of Order for Variation of Supervision Order;
·Example of the applicant’s weekly Activity Plan.
Psychiatric Reports
Dr Brereton’s report was prepared after a mental state examination and following review of his previous reports and the previous reports of Drs Begg and Haeney. Dr Brereton reported that the applicant’s progress remained good. He no longer reported experiencing anxiety when interacting with other people or spending time in the community.
Dr Brereton reported that the applicant had recently been exposed to a number of psychosocial stressors that had understandably caused the applicant varying degrees of sadness and anxiety but his responses had been appropriate and his rehabilitation had not regressed as a result. In October 2017 the applicant’s father was diagnosed with cancer and around the same time he lost his employment at a blind manufacturer after colleagues learned of his offending. The applicant reported dealing with his sadness and anxiety about his father’s health by keeping himself occupied. He reported being pleased that he had been able to help his father by driving him to hospital appointments. Although he was disappointed to lose his job, he had found more flexibility and enjoyment volunteering in an Op-shop twice a week. He aims to build up his hours and perform well enough to secure a positive reference.
Dr Brereton also reported that while the applicant had worked to build up and sustain a relationship with his 13 year old son, before interview his son had communicated that he would like to stop having contact with his father. The applicant reported feeling hurt and sad. He maintains some intermittent contact with his adult daughter in Western Australia. He is devoting more time to helping his parents.
Dr Brereton states that the applicant has continued to regularly return negative drug tests. While one swab in June 2016 was positive for cannabis, his treating team were confident after further testing that the result was a false positive.
In January 2018 there were some concerns about the applicant’s openness with his treating team. The applicant notified Ashton House staff that he suspected four individuals with whom he had been socialising were using methamphetamines. He explained that his delay in notifying staff was because his realisation that his friends were using drugs only dawned on him gradually. He had since voluntarily cut off all contact with those individuals. To allow the applicant time to demonstrate his stability and commitment to rehabilitation Dr Brereton requested that the hearing of the present application be adjourned so that the applicant could work on specific goals such as fitness and prioritising his family. That was done. Dr Brereton reported that the applicant performed well in meeting those goals.
Dr Brereton supports the variation of the applicant’s supervision order to allow overnight leave from Ashton House with the aim of preparing the applicant for independent living in the community. Dr Brereton recommended that a gradual transition to the applicant residing independently occur, starting at one overnight leave per week in his own accommodation and increasing at a rate of no more than one additional night per week each month until the applicant is spending five nights per week in the community. Dr Brereton noted that at Ashton House the applicant still benefits from some home support in his unit and will require assistance in setting up and managing his own household when discharged. The applicant is successfully managing his finances with the consequence that in November 2017 a partial administration order in respect of his finances was revoked.
Dr Brereton reported that he was confident that the applicant would behave appropriately if granted leave to travel interstate with relatives for Christmas periods. However he noted that it would not significantly advance the applicant from a clinical/rehabilitation perspective and so in his role as the applicant’s treating psychiatrist did not feel he needed to advocate for the change.
As to the geographical restrictions on the applicant’s licence, and the requirement to complete an activity plan, Dr Brereton noted that the applicant’s treating team would benefit from a longer-term indication as to whether those conditions will remain in place after discharge from Ashton House. He is of the view that the applicant’s risk can be managed by redrafting the geographical conditions such that they authorise the applicant to travel through the specified restricted areas but do not permit him to stop. He further supports removal of the requirement to complete an activity plan to align with the increased patient autonomy and flexibility provided to patients in Ashton House as they transition to independent living. Dr Brereton states that flexibility reduces risk by allowing individuals to be responsible for their own organisation, including diarising, and completing tasks in the community without planning days in advance. Dr Brereton was of the view that the applicant’s risk of harm to others would remain low if the proposed variations were granted.
Dr Haeney interviewed the applicant in January and May 2018 and discussed the applicant’s treatment with Dr Brereton and his treating team at Ashton House for the purpose of preparing his report. He noted that between March and August 2017 he undertook 22 psychotherapy sessions with the applicant for a duration of one hour each. Like Dr Brereton he supports the present application for variation of the applicant’s licence conditions. Dr Haeney’s report of the applicant’s personal circumstances and current mental health is not materially different to the report provided by Dr Brereton. He echoes that it would be difficult for the applicant to abide by a strict planner where all activities are organised and shared in advance if he is to live independently in the community. Dr Haeney noted that a relaxation of this condition before the applicant is discharged from Ashton House would allow the applicant to acclimatise to the change while still enjoying access to the support, supervision and monitoring of Ashton House staff.
Dr Raeside interviewed the applicant in December 2017 for the purpose of preparing his report. His report is consistent with the conclusions of Drs Brereton and Haeney noting the applicant’s long term clinical stability. He supported the present application and indicated that the applicant’s prognosis is good should be continue to be compliant with treatment and abstinent from drugs and alcohol.
The Annual Reports
The Court received an annual report for 2018 not materially different to the reports provided by the forensic psychologists. In that report Dr Burgess, a psychiatry Registrar at James Nash House, noted the applicant’s prognosis was unchanged and his commitment to rehabilitation good. He reported that if a variation in the applicant’s licence was granted to allow overnight leave from Ashton House, accommodation could be sought in the community through a Housing and Accommodation Support Partnership program.
I have also read the 2017 annual report prepared by Dr Gupta, a medical officer at James Nash House, which, as mentioned, was annexed to Mr Clarke’s affidavit in support of the application. I note that the report is materially consistent with the 2018 annual report and further corroborates the reports of the forensic psychiatrists.
Victim and Next of Kin Counselling Report
I have already made reference to the suffering of Mr Cristante’s family. For the purpose of this application the Court received an updated Victim and Next of Kin Counselling report prepared by a forensic social worker, Ms L Kontopoulos. Mrs Crisante was interviewed on 9 April 2018 for the purpose of preparing the report.
She stated that she feels anxious whenever she is informed of an application for a variation to the applicant’s supervision order. She opposed any condition on the applicant’s release on licence authorising unsupervised overnight leave from Ashton House and any change to the geographical restrictions on the applicant’s movements in the community. She reiterated that a variation in the terms sought would increase her fear of seeing the applicant. She repeated that she would no longer feel safe in the community. She is concerned that while unsupervised at his parents’ home, the applicant will be able to leave and do as he likes. She requested that the applicant be required to submit to more regular drug screens. Mrs Crisante did not wish to comment on the applicant’s request to travel interstate but did state “as long as he’s not around me”. She does not presently receive the applicant’s activity plan but noted that her daughter had been reassured by the receipt of it.
Mr Crisante’s daughter declined to be interviewed for the purpose of preparing the report but indicated that her views of the application had not changed since the previous report dated 19 October 2015. At that time she stated that the proposed variations scared her. She strongly opposed any changes to the geographical restrictions on the applicant’s movements because both she and her mother regularly frequented the areas surrounding Ashton House and experienced high levels of anxiety at the prospect of the applicant also being present. She stated that the receipt of the applicant’s activity plan provided a measure of comfort and security. Mr Crisante’s daughter gave an example of when the activity plan indicated that the applicant would be attending the same football match as her family at Adelaide Oval.
The applicant’s parents provided a statement reiterating their commitment and willingness to support to the applicant.
Submissions
Counsel for the Director of Public Prosecutions did not oppose the application noting the recommendations of the applicant’s treating psychiatrists. At the hearing of the application Counsel for the applicant did not pursue the request for leave to travel interstate. It was explained that that part of the application envisaged a variation being granted prior to Christmas 2017. Counsel indicated that should the applicant be considering travelling interstate for Christmas 2018 a new application for a variation of the supervision order would be made.
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.
I consider that the applicant should continue to be permitted, at the discretion of the Director of Forensic Mental Health or a consultant psychiatrist nominated by him, periods of accompanied and unaccompanied leave away from Ashton House for rehabilitation purposes. The next logical step is for these periods to include unescorted overnight leave. I consider that this leave should be authorised on a gradual basis, initially once per week to stay at his parents’ house. The frequency of that leave can then progress as approved by the Director of Forensic Mental Health or his or her nominee to a maximum of three nights per week.
This graduated approach accords with the management plan recommended by Dr Brereton. Graduated overnight leave commencing with overnight stays at his parents’ house will encourage the applicant’s progress by allowing him to call on the support provided by his family as he transitions away from that provided by Ashton House. It will also enable community supports to be put in place while the support provided by staff at Ashton House can still be relied upon if required. In my view permitting the applicant to progress to three nights of overnight leave in the community per week will enable appropriate management and assessment of the applicant’s transition to ensure he is appropriately supported in the community. All going well the further transition to overnight leave at his own accommodation can be considered in the not too distant future. I appreciate that the applicant’s doctors wanted to move in this direction more quickly. It seems to me, however, that the Court’s more cautious approach is preferred. Overnight stays with his parents will see the applicant subject to less supervision than in Ashton House, but more than if he were on his own in his own accommodation.
I note that Mrs Crisante is of the view that increased drug screening is necessary if the applicant is permitted unsupervised overnight leave from Ashton House. At this stage I decline to vary the frequency with which the applicant is screened for illicit drugs. There is no evidence that the variation is necessary having regard to the applicant’s risk. The applicant has abstained from illicit drugs for many years. Even more encouragingly he has demonstrated an ability to cease friendships with anti-social peers so as to avoid any adverse impact on his rehabilitation.
I turn to the activity plan presently prepared by the applicant. I have had regard to an example activity planner provided by the applicant. I appreciate that the preparation of such plan necessarily imposes a level of structure to the applicant’s movements that is not truly reflective of a less structured life common to us all and to which the applicant is in the process of transitioning. I appreciate the tension between requiring the applicant to prepare such planner and preparing for, ultimately, independent living in the community. However, understandably, Mr Crisante’s family remains fearful. Equally understandably the thought of seeing the applicant in the community occasions them great stress and anxiety. I consider that it is incumbent upon the applicant to continue to do what he can to relieve that stress, anxiety and fear. As the applicant progresses in his rehabilitation, and as he has progressed, Mr Crisante’s family have had to adjust to the prospect that eventually the applicant will, his treatment continuing to go well, be free in the community. That will not be easy for them. I consider that it is appropriate that the applicant continue to provide an activity plan. He should do so fortnightly. In it he should record all public events he intends to attend. I define a public event as:
…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.
I welcome his inclusion of any additional information for the benefit of Mr Crisante’s family but do not require it as a condition of his release on licence. To my mind public events as defined are planned in advance and so to include them in a planner should not greatly detract from the applicant’s progression toward a less structured ordinary life in the community. They are also, bearing in mind the geographical restrictions on his movements, the likely occasions when Mr Crisante’s family members may come across the applicant unexpectedly. The planner, as I require, and the geographical constraints that will be maintained in the order should go some way to alleviating the stress and anxiety caused to the family.
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 Rd
and
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.
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