R v Unwin

[2007] SASC 155

SUPREME COURT OF SOUTH AUSTRALIA

(Applications Under Various Acts or Rules: Application)

R v UNWIN

[2007] SASC 155

Reasons for Decision of The Honourable Justice Sulan

7 May 2007

CRIMINAL LAW - PROBATION, PAROLE, RELEASE ON LICENCE AND REMISSIONS - SOUTH AUSTRALIA - GENERALLY

Application to revoke supervision order - applicant previously declared liable to supervision and released on licence - ongoing psychiatric treatment condition of licence - psychiatric reports and next of kin unanimously support application - applicant poses no risk to the community - Held: Application granted - supervision order revoked - applicant released unconditionally.

Criminal Law Consolidation Act 1934 (SA) Part 8A - requirements for determining application to revoke supervision order.

Criminal Law Consolidation Act 1935 (SA) Part 8A, referred to.

R v UNWIN
[2007] SASC 155

Criminal

1. SULAN J: Nicole Rebecca Unwin was charged with the murder of her grandfather, Lesley Anzac Unwin, on 25 June 2002.  Her grandfather had subjected her to ongoing sexual abuse, commencing when she was a young child. It is unnecessary for these reasons to further particularise the circumstances leading to the death of Mr Unwin.

2. On 12 January 2004, the Court found her not guilty of murder by reason of mental incompetence. The objective elements of the offence were not in dispute, nor was there any disagreement that at the time Ms Unwin killed her grandfather she was mentally incompetent. Consequently, pursuant to s 269FB(3) of the Criminal Law Consolidation Act 1935 (“the Act”), Ms Unwin was declared liable to supervision under Part 8A of the Act. Pursuant to ss 269O(1)(b) and (2), the sentencing Judge set a minimum limiting term of life imprisonment and released the applicant on licence under condition that she be under the care and protection of the Clinical Director of Forensic Mental Health Service, or a consultant psychiatrist nominated by him or her, and obey any directions given to her from time to time with regard to medical and psychiatric treatment and medication. There were a number of conditions of the licence which required Ms Unwin to continue treatment and to be supervised.

3. Ms Unwin’s licence conditions were reviewed by me from time to time.  Throughout the time of the reviews, she was treated by Dr Helen Tingay, a psychiatrist.  As Ms Unwin’s treatment progressed, I received reports about her mental condition and I varied the conditions of her licence to permit her to reintegrate into the community.

4. On 1 February 2007, pursuant to s 269P(1) of the Act, Ms Unwin applied for an order that the supervision order be revoked and that she be unconditionally released. Section 269P(1) provides that the Court may vary or revoke a supervision order upon the application of the defendant. Section 269O(1)(a) provides that the Court may release a defendant unconditionally. Section 269S provides that in deciding whether to release a defendant, the Court must apply the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.

5. The Court is primarily concerned with public safety when considering whether it is appropriate to release a defendant unconditionally.

6. On 19 April 2007, I ordered Ms Unwin be released unconditionally.  I indicated I would give reasons in due course.  I now provide those reasons. 

7. In determining the application pursuant to s 269T(2)(a) of the Act, I considered three psychiatric reports from Drs Tingay, Nambiar and O’Brien.

8. Dr O’Brien had previous contact with Ms Unwin.   He had regard to previous reports and to his knowledge of Ms Unwin. He considered her mental state was quite stable.  He recommended her condition was such that she is now stable and it was a suitable time for her to be released unconditionally.  He considered she posed no risk to the community if released.

9. Dr Nambiar interviewed Ms Unwin having regard to all previous reports and the treatment she had undertaken.  He considered that she had gained considerable insight that it is in her best interests to have her supervision order revoked and be released unconditionally.  He was of the opinion that she would not pose a further risk to the community.

10. Dr Tingay, who has treated Ms Unwin, provided a lengthy report dealing with the background and the treatment Ms Unwin has undertaken since the licence conditions were first imposed.  She concluded that Ms Unwin no longer suffers any symptoms of depression or post-traumatic stress;  overcoming all such symptoms with psychotherapy, cognitive therapy and a degree of desensitisation to her abuse.    Dr Tingay considers Ms Unwin no longer suffers any mental disorders.  She supported the application that Ms Unwin be released unconditionally.

11. Pursuant to s 269R of the Act, the next of kin of the deceased were interviewed. Pursuant to s 269Z, counselling services were made available to the next of kin. The sons of the deceased, being the applicant’s father and her uncles, were interviewed. They each supported the application and expressed no concern about the safety of others if Ms Unwin were to be released. Ms Unwin’s mother supported the application. All the next of kind expressed confidence that Ms Unwin had recovered and would pose no risk in the future.

12. Ms Unwin is recently married to her long-term partner.  Her husband supports Ms Unwin’s application.

13. The Director of Public Prosecutions did not oppose the application.

14. Ms Unwin is currently employed and in a stable relationship.  I was satisfied that she poses no risk to the community.  I was satisfied that it is in her interests and the interests of the community that she be released unconditionally.

15. I released the applicant unconditionally.