R v Steinberg

[2011] VSC 72

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0153 of 2010

THE QUEEN

v

CHRISTINE STEINBERG

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February 2011
DATE OF JUDGMENT:	24 February 2011
CASE MAY BE CITED AS:	R v Steinberg
MEDIUM NEUTRAL CITATION:	[2011] VSC 72

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CRIMINAL LAW – accused charged with attempted murder – defence of mental impairment made out under s 20(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – accused liable for supervision under Part 5 of the Act – accused remanded in custody under s 19 of the Act pending decision on nominal term of supervision order – report to be filed under s 41(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – whether hearing should be adjourned to allow the accused to seek a further psychiatric report – adjournment granted

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S Borg	Office of Public Prosecutions
For the Accused	Mr DL Brustman SC	George Defteros Lawyers

HIS HONOUR:

1. On 13 December 2010 I directed that a verdict of not guilty because of mental impairment be recorded on each of the two counts of attempted murder which had been laid against Mrs Steinberg. I did so as I found that the defence of mental impairment had been made out. I declared that Mrs Steinberg was liable for supervision under Part 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

1. The Court was provided with a certificate pursuant to s 47 of the Act which stated that there were facilities and resources necessary to provide assessment services for Mrs Steinberg.  I ordered that under s 19 of the Act Mrs Steinberg be remanded in custody to the Victorian Institute of Forensic Mental Health.  I ordered that under s 41(2) of the Act, the time for filing of the report provided under s 41(1) of the Act be extended to within 60 days of 13 December 2010.  I ordered that the further hearing of the matter be adjourned to 10.30 am on Thursday 24 February 2011.

1. Section 26(1) of the Act provides that if a court declares that a person is liable to supervision under this part, the court must make a supervision order in respect of that person.

1. Under s 26(2) of the Act the supervision order may commit a person to custody, subject to certain conditions, under a custodial supervision order, or release the person on conditions decided by the court and specified in the order.  I have received the report required under s 41(1) of the Act prepared by Dr Nina Zimmerman.  I have carefully read her report.  She gives cogent reasons for her conclusion that a custodial order is the most appropriate outcome for Mrs Steinberg to enable a focus on therapy, with the ability to commence the process of community transition as soon as it is felt to be appropriate to do so.

1. Under s 39 of the Act, under the heading “Principles on which court is to act”, it is provided that in deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave, or to revoke a grant of extended leave under this Act, the court must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum, consistent with the safety of the community.

1. Under s 40, it is provided under the heading of “Matters to which the court is to have regard” as follows:

In deciding whether or not to make, vary or revoke an order under Part 3, 4 or 5 in relation to a person, to grant extended leave to a person or to revoke a grant of extended leave, the court must have regard to -

(a) the nature of the person’s mental impairment or other condition or disability;  and

(b) the relationship between the impairment, condition or disability and the offending conduct;  and

(c) whether the person is, or would if released be, likely to endanger themselves, another person or other people generally because of his or her mental impairment;  and

(d) the need to protect people from such danger;  and

(e) whether there are adequate resources available for the treatment and support of the person in the community;  and

(f) any other matters the court thinks relevant.

1. Mr Brustman SC, who appears for Mrs Steinberg, has sought an adjournment of the hearing for two months.  He says that his instructions are that his client disputes several of the factual matters referred to in Dr Zimmerman’s report and also states that she has received very little psychological and psychiatric treatment during her time in custody.  Those assertions are supported by the affidavit of Sophie Klopper, her solicitor sworn 23 February 2011.

1. Mr Brustman says that his client wishes to be assessed by Dr Sullivan who previously assessed her and gave evidence at her trial.  Mr Brustman says that such an examination and report will assist his client to form a view as to what position should be taken on the Crown’s application for an order under s 40(2) seeking a custodial supervision order.

1. The Crown has objected to the adjournment.  Ms Borg of counsel for the Crown contends that she has not heard of another case where any registered medical practitioner or registered psychologist, other than the registered medical practitioner or registered psychologist referred to in s 41(1), prepared a report and had that report tendered in evidence on the hearing under s 40(2).

1. In my view, the court has no discretion in this matter.  It must have regard to the matters set out in s 40 and if a person wishes to lead evidence on those matters, then it would be a denial of justice to prevent the person from doing so.  In my view, a hearing for an order under s 40(2) is similar to any hearing where the court is asked to make decisions affecting the liberty of a person.

1. I am not ignoring the rights of the public and others who have been affected or suffered because of what has happened in this case.  They can also be heard and should be heard.  But the issue before me is should this matter be adjourned so that Mrs Steinberg and her advisors can form a view about the approach they should take to the Crown’s application under s 40(2).

1. I have heard no submissions put forward by the Crown that they would be in any way prejudiced or disadvantaged or anyone would be put to any inconvenience because of the adjournment other than, of course, the costs of the day.

1. In those circumstances and for those reasons I grant the application and adjourn the further hearing of this matter for two months, until 19 April 2011.  I direct that Mrs Steinberg be made available for examination by Dr Sullivan in a reasonable manner, and for Dr Sullivan to prepare a report for her and her legal advisers.  I further direct that Mrs Steinberg give notice to the Crown of any material she intends to rely upon, including any report by Dr Sullivan, and notice of any application she intends to make on the further hearing of this matter by 41.5 p.m. on Friday, 15 April.  I confirm that the order I made on 14 December 2010 in relation to the remanding in custody of Mrs Steinberg continues.

1. I reserve liberty to apply for either party.