R v Steele [No 8]
[2019] SASC 34
•12 March 2019
Supreme Court of South Australia
(Criminal: Application)
R v STEELE [NO 8]
[2019] SASC 34
Judgment of The Honourable Justice Hinton (ex tempore)
12 March 2019
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - REVIEW
Application for the variation of a supervision order and release on licence.
The applicant sought orders that permitted unaccompanied overnight leave in independent but assisted accommodation commencing one night per week and progressing to five nights per week. The applicant’s treating psychiatrist and forensic mental health team were supportive of the application as the next step in a long-term transition plan. The prosecution was not opposed but the victim’s next of kin were.
Held, granting the application, the applicant is permitted, at the discretion of the Director or his nominee, periods of accompanied and unaccompanied leave away from Ashton House for rehabilitation purposes, as approved by the Director or the nominee. Such periods of leave may include unaccompanied overnight leave to his supported accommodation up to two nights per week for the first two months, increasing, at the discretion of the Director or the nominee, to no more than three nights per week for the following month, four nights per week the month thereafter, and up to five nights per week from the sixth month from the date of these reasons.
Criminal Law Consolidation Act 1935 (SA) ss 269, 269R, 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; R v Steele (No 7) [2018] SASC 85, considered.
R v STEELE [NO 8]
[2019] SASC 34Criminal:
HINTON J (ex tempore):
This is an application for the variation of a supervision order and release on licence pursuant to s 269P of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
The history of this matter can be traced in the judgments of R v Steele[1] and R v Steele (No 2)[2] through to R v Steele (No 7).[3] These brief reasons should be read against the background of my reasons in R v Steele (No 7).
[1] [2012] SASC 55.
[2] [2012] SASC 162.
[3] [2018] SASC 85.
On 15 May 2018 I varied Mr Steele’s licence conditions permitting him unsupervised overnight leave from Ashton House limited to one night per week progressing at the discretion of the Director of Forensic Mental Health or his nominee to three nights per week. At that time any such overnight leave was to be spent by Mr Steele at his parents’ home and only at his parents’ home. I was concerned to ensure that on unaccompanied overnight leave in the community Mr Steele had the support of his parents and the community had the assurance that came with his parents being present.
On 12 October 2018 I varied Mr Steele’s licence conditions permitting him unsupervised overnight leave from Ashton House for up to five nights per week. I was motivated to grant this variation by the fact that since May 2018 all had gone well and because Mr Steele’s father was gravely ill. Again, the overnight leave was limited to Mr Steele spending any night away from Ashton House at his parents’ home.
Mr Steele now applies for his licence conditions to be varied once again. He seeks orders permitting him unaccompanied overnight leave from Ashton House for one night per week progressing at the discretion of the Director of Forensic Mental Health to five nights per week where he will stay at his own residence.
This application is made in accordance with the management plan that has been prepared for Mr Steele by Dr Brereton and the treating professionals at the Forensic Mental Health Service. In his report Dr Brereton recorded:
Mr Steele has a unit available in … [suburb] ... It is HASP housing provided by a housing service (Unity) in partnership with Life Without Barriers. The HASP program essentially means Mr Steele’s residence includes funding for NGO-provided psychosocial support. Mr Steele reduced his leaves to his parents’ house to two nights per week towards the end of December 2018. Should he be granted permission to stay overnight in his own accommodation the plan would be for him to start two nights per week in his accommodation (not consecutively) and slowly increase the number of nights he spends there at the rate of approximately one additional night per week each month. During this time Mr Steele will cease to have regular overnight leaves to his parents’ home so that he can establish himself in his own residence, adjust to spending time alone and not have to divide his time between too many overnight locations. He could still have ad hoc leaves to his parents’ house, particularly if it were necessary due to his father’s health.
Once spending time in his own unit, Mr Steele will be visited by staff from Ashton House and will begin to meet with staff from the Forensic Community Mental Health Team. His NGO will spend more time with him. As Mr Steele spends increasing amounts of time in his residence, the Ashton team will link him in with the services who will be providing his long-term community follow-up. He will require a care coordinator from the Eastern Community Mental Health Team. He will start to attend their community Clozapine clinic and he will latterly require psychiatric outpatient appointments with a community clinician. The team have discussed an application to SACAT but decided Mr Steele does not meet the criteria for, and does not require, a Community Treatment Order, Administration Order or Guardianship Order.
Mr Steele’s treating psychiatrist, Dr Brereton, and the Forensic Mental Health team are supportive of the application. Dr Brereton reports:
Mr Steele has continued to progress well since April 2018. His mental state has remained stable with no re-emergence of psychotic symptoms despite the psychosocial stressors he has faced, particularly that of his father’s illness. Mr Steele has continued to engage well with staff. He is compliant with medication and all other aspects of his management plan. He communicates well with staff. He participates well in his rehabilitation without needing encouragement from staff, e.g. he always contributes positively to the groups he attends. While he still requires some support in his rehabilitation, this is readily accepted. Mr Steele interacts pleasantly and appropriately with staff, peers and members of the public. Mr Steele has consistently and carefully abided by the conditions of his licence and the supervision requirements of Ashton House.
Mr Steele functions reasonably well on a day-to-day basis but will need some support with this as he moves to more independent living. He has maintained his volunteer work in an op shop without difficulty. He has a busy schedule. By and large he remains reasonably well organised although he does receive some support from staff. As documented above, Mr Steele encountered some difficulties in his block of units towards the end of 2018. There was some overt alcohol use on the site and a fellow forensic patient disclosed personal information about him to others. There was an individual who recognised Mr Steele from some years ago and made some intrusive unwanted contact with him. However, Mr Steele has been aware of the need to avoid potential negative influences. He has maintained appropriate boundaries, been selective in his friendships, and these issues are not currently problematic. Mr Steele managed the situation appropriately when he was having difficulties; he discussed it with staff and was supported to meet with the housing service provider to report his concerns so action could be taken if necessary. During this meeting, Mr Steele filled in the paperwork to apply for a transfer to alternative accommodation, however this is a precautionary measure only and unlikely to eventuate because: the environment appears to have settled; Mr Steele is comfortable with the prospect of living there; there are no current alternatives, and little prospect of a better alternative arising in the short to medium-term.
Mr Steele has been working well with his NGO support workers. They report a good rapport and good cooperation. Attempts to assist Mr Steele find paid employment continue, but it is difficult given limited opportunities.
Staff observed Mr Steele experience a period of flat mood and increased anxiety in mid to late December 2018 and there has been a re-emergence of his compulsive checking behaviour. Mr Steele has coped well with his father’s illness. He often seeks assurance from staff to help manage his anxiety, and assistance to problem-solve, but overall Mr Steele is becoming appropriately more independent and assertive. He has been working productively with the Ashton House psychologist covering a number of areas including: management of anxiety; feelings of guilt; managing memory deficits; assertiveness, and developing personal values and strengths. They have also worked on how Mr Steele will manage a quieter, more isolated environment, after years of living in institutions.
I have had regard to the attitudes of the members of Mr Crisante’s family. I have taken the views of Ms Crisante and Mrs Schirmer into account.
The scheme created by Part 8A of the CLCA is not punitive. Parliament has decided that we do not punish the sick; rather, we offer them treatment in the hope that they will recover and be able to return to the community. I appreciate that this provides no comfort for Ms Crisante and Mrs Schirmer. Nonetheless, Mr Steele has made a steady recovery. I understand he has done everything asked of him by his treating doctors and the other professionals with whom he has been involved. He has been free of psychotic symptoms for some years now.
There has been reference in the reports to two past breaches of conditions. Each of these have been dealt with in my reasons in the matter of R v Steele (No 7). In particular, the breach of the geographical limitations is addressed at paragraph [12] and occurred through no fault of Mr Steele’s and the concerns in January 2018 regarding Mr Steele’s openness with his treating team about individuals with whom he was socialising and their drug use is dealt with at paragraph [27]. That too was addressed by the mental health professionals and Dr Brereton reported that Mr Steele thereafter performed well in meeting the goals that he was set.
In the s 269R report it states:
Ms Crisante does not support the current application. She is of the opinion that the defendant is progressing too quickly in his transition, only recently being approved overnight leave to his parents’ home. She would prefer that the next stage occur at a much slower rate. “I’m still not happy; it’s too fast. What will stop him from hurting someone else; there will be nobody to stop him. I get punished for what he did and he gets more free time. My husband died 12 years ago and the family has gone through hell”.
Ms Crisante continues to be angry that the defendant has only been in secure care for 12 years and that she and her family have had to deal with tremendous hardship during this time. She holds the opinion that if the defendant is mentally well, as suggested in the medical reports “then he should go to prison and serve time”.
Ms Crisante remains fearful that the defendant will hurt another family as hers has been. She is of the opinion the community is not safe and is unable to stop thinking about the risks to the community if the defendant is not closely supervised. Should the proposed variation be granted Ms Crisante stated that she would feel safer knowing that the defendant was tested randomly for any non-prescribed drug.
In her statement Mrs Schirmer says:
I feel that as time goes on our voices are getting weaker and weaker and yet the anxiety never diminishes. In a nutshell the applicant is asking for 5 nights unsupervised at either his parents house or his supported accommodation by the next 6 months. Firstly, what is this supported accommodation? I feel like we are being totally kept out of the loop. Where will this supported accommodation be? What area is his parents house? How will he be supported? What measures are being put into place so that the restrictions are still kept in place? What is to stop him from entering restricted areas? What steps are being put into place to ensure there is no regression? What is being done to ensure the community’s safety? How are we to feel safe with the total unknown?
So within 6 months the applicant will spend 5 nights unsupervised and all I can feel is scared. Scared for my mum, scared for my family and scared for the community.
I note that the Forensic Court Service has since provided written answers to Mrs Schirmer’s questions.
Mrs Schirmer goes on to say:
My faith in “the system” has diminished as time goes on. There have been breaches in the geographic restrictions that we only found out by chance. We were totally forgotten in terms of giving a statement for the last court appearance.
Do I agree with this application? No I don’t and I think that the law is unfair in Australia that once a person has been deemed fit they are released into the community.
Mrs Schirmer recommends that this State look at adopting the American approach to dealing with those who commit crimes whilst mentally impaired.
I take into account the views expressed by Ms Crisante and her daughter. Many of the questions asked by Mrs Schirmer are answered in the reports provided to this Court by Dr Brereton and the other treating professionals. I note that last year when Mr Steele first sought unaccompanied overnight leave Mrs Schirmer declined to provide a statement but indicated that her attitude had not changed since October 2015. Her view and her mother’s view was taken into account in my reasons published in R v Steele (No 7).
It is true that perhaps late last year neither Ms Crisante nor her daughter were consulted when I varied my order. That was because of the urgency of the situation. In that regard, Mr Steele’s father was particularly unwell and remains very unwell.
I repeat, ours is not a punitive regime; ours is one that is dependent upon treatment and ultimately if the person found not guilty by reason of mental impairment succeeds in recovering their health they are to be returned to the community.
I have had regard to the content of s 269T and the factors set out in sub-ss (1)(a)-(d). I am satisfied on the balance of probabilities that if I vary the terms of the supervision order and release on licence as sought by Mr Steele the safety of the community and any individual is adequately protected by the terms of the order I propose to make.
Relying primarily on the report of Dr Brereton I have decided to grant the application; however, at a slightly slower rate. Mr Steele will be allowed two nights unaccompanied overnight leave from today for a period of two months, thereafter progressing to three nights in the third month and four in the fourth month. After six months the Director of Forensic Mental Health may if satisfied with Mr Steele’s progress, increase the period of his overnight unaccompanied leave to five nights. The licence conditions will continue to vest a discretion in the Director to allow additional nights on compassionate grounds.
For these reasons, I allow the application and make the following order.
1.That the supervision order made on 15 May 2018 as varied on 12 October 2018, 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, as approved by the Director or the nominee. Such periods of leave may include unaccompanied overnight leave to his supported accommodation located at … [address] … initially up to 2 nights per week for the first two months from the date of this order, increasing, at the discretion of the Director or the nominee, to no more than 3 nights per week for the following month, 4 nights per week the month thereafter, and up to 5 nights per week after the sixth month from the date of this order has passed.
(d) That the applicant be permitted, at the discretion of the Director or the nominee, additional unaccompanied overnight leave for the purposes of the applicant staying with his parents or a parent on compassionate grounds.
(e) 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.
(f) 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.
(g) 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.
(h) That the applicant not consume alcohol.
(i) That the applicant’s case be managed by 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.
(j) 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.
(k) 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.
(l) That the applicant not depart or attempt to depart from the State of South Australia.
(m) 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.
(n) 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.
(o) 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 Rd, 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.
(p) That the applicant may attend at bus stop 27, on The Promenade, Oakden, as authorised by the Director or the nominee.
(q) That the applicant may attend at the Greenacres Shopping Centre, Hillcrest, as authorised by the Director or the nominee.
(r) That the applicant may attend at the Greenacres Library, Hillcrest, on Wednesdays and Saturdays, weekly, as authorised by the Clinical Director or his nominee.
(s) 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 Australian 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 Leagues 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.
(t) That the applicant not contact or approach, either directly or indirectly, [names deliberately withheld].
(u) That the applicant not possess a firearm, ammunition or any part of a firearm.
(v) 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.
(A copy of the map referred to in orders 2(n) and (o) has not been appended to this judgment.)
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