Tanner v POLICE

[2005] SASC 239

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

TANNER v POLICE

Judgment of The Honourable Justice Besanko

30 June 2005

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

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS

Appeal against a supervision order made by a Magistrate under Part 8A of the Criminal Law Consolidation Act 1935 ("CLCA") - where the appellant was charged with nine counts of deceiving another while dishonestly benefiting herself - where the Magistrate found that the objective elements of the offences were established but that the appellant was mentally incompetent to commit the offences - where the Magistrate declared the appellant liable to supervision under Part 8A of the CLCA - where the Magistrate made a supervision order releasing the appellant on licence and fixed a limiting term of 18 months - where the Magistrate made the supervision order without having regard to a report of the Minister of Health as required by s 269Q of the CLCA - where the parties agreed that this Court should order a report under s 269Q and deal with the matter rather than remit it to the Magistrates Court - whether the Magistrate erred in not releasing the appellant unconditionally - whether the Magistrate erred in the conditions that he imposed - whether the limiting term of 18 months fixed by the Magistrate was excessive - appeal allowed, appellant released on licence, condition 3 varied, limiting term of 12 months fixed.

Criminal Law Consolidation Act 1935 s 139A, s 269F, s 269O, s 269Q, s 269R, s 269S, s 269T, s 269U and s 269Y; Magistrates Court Act 1991 s 42; Summary Procedure Act 1921 s 5, referred to.
Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; Question of Law Reserved (No.1 of 1997) (1997) 70 SASR 251, considered.

TANNER v POLICE
[2005] SASC 239

Magistrates Appeal

1. BESANKO J: This is an appeal by a defendant against a supervision order made by a Magistrate under Division 4 of Part 8A of the Criminal Law Consolidation Act 1935 (“CLCA”). The appeal is brought pursuant to s 269Y(2) of the CLCA and s 42 of the Magistrates Court Act 1991.

2. The supervision order was made by the Magistrate on 19^th January 2005, and is in the following terms:

   … the defendant be released upon licence upon the following conditions:

   1.     The defendant be under the care of the Director of Forensic Mental Health Services or the nominated consultant psychologist or psychiatrist and that the defendant undertake ongoing psychiatric or psychological follow-up and review on a monthly basis or as otherwise directed by the nominated psychologist or psychiatrist.

   2.     The defendant obey all directions given to her from time to time by her consultant psychiatrist or psychologist in regard to medical, psychiatric or psychological treatment and medication.

   3. The defendant comply in every respect to any treatment plan prepared and enforced from time to time pursuant to Section 269Q(1) and Section 269Q(2).

   4.     Not to use, possess or administer marijuana or other illicit substances.

   5.     The defendant is to submit herself to random urine analysis as required to test for the presence of marijuana or other illicit substances.

   6.     The defendant is to be under the supervision of a parole officer.

   7.     The defendant is to be returned to James Nash House at the direction of the Director of Forensic Mental Health Services or the nominee if

   (a)     she has breached any condition of this order or

   (b)the director or nominee is concerned that an action or pattern of behaviour is likely to lead to a breach of any such condition, provided that

   (1)such admissions should not be for more than 14 days without further order of this court and

   (2)the Director of Forensic Mental Health Services shall notify the Registrar of this court upon the admission of the defendant to James Nash House.

3. In making the order, the Magistrate noted that he had had regard to the reports of Dr J E Scott dated 13^th October 2004, Ms J Marshall dated 18^th January 2005, Dr B Asokan dated 12^th January 2005 and Dr R Balfour dated 29^th December 2004.  The Magistrate fixed a limiting term of 18 months. 

4. The defendant appeals to this Court against the supervision order made by the Magistrate.  She submits that the Magistrate erred in not making an order that she be released unconditionally.  In the alternative, she submits that the Magistrate erred in the conditions he imposed, and in particular, she submits that the Magistrate erred in imposing conditions 4, 5, 6 and 7.  The appellant also submits that the limiting term fixed by the Magistrate was excessive, and that a lesser term should have been fixed.

   The circumstances surrounding the objective elements of the offences

5. The appellant was charged with nine offences under s 139A of the CLCA.  That section makes it an offence for a person to deceive another while dishonestly benefiting herself.  The nine offences were alleged to have occurred between 31^st July 2003 and 4^th November 2003, and to have involved sums ranging from about $180 to $300.  The total sum involved was about $2,180.00.  The offences were summary offences (s 5 of the Summary Procedure Act 1921).

6. The circumstances surrounding the offending were that the appellant was the secretary and treasurer of the Riverland Independent Netball Association.  The association was comprised of eight netball clubs within the Riverland area.  One of the functions of the secretary and treasurer was to collect funds owing by the eight netball clubs within the association to pay outstanding accounts.  Another function of the secretary and treasurer was to keep financial records of any transactions involving money being paid in or paid out.  There was an association chequebook and it was necessary for cheques to be signed by the president of the association (Ms Joanne Gregory) and the appellant.  At the request of the appellant, Ms Gregory signed several blank cheques for the purpose of paying accounts owing.  On nine separate occasions between 31^st July 2003 and 4^th November 2003 the appellant cashed cheques of the Riverland Independent Netball Association at the Barmera Branch of Bank SA, and used the money, totalling about $2,180.00 for her own purposes.

   The course of the proceedings before the Magistrate

7. The appellant alleged that she was mentally incompetent at the time of the alleged offences.  She produced a report from Dr J Scott dated 13^th October 2004.  Dr Scott is a registered psychologist.  Dr Scott refers to an earlier report she had prepared, although this was not put before the Magistrate.  Dr Scott refers to a shoulder injury the appellant had suffered and to the fact that she experienced depression.  At the time of the alleged offending the appellant was addicted to prescribed medication and was drinking excessively.  Dr Scott expressed the view that at the time of the offending the appellant did not know the nature and quality of the conduct constituting the offences and was unable to control the conduct.

8. The respondent agreed with the assertion that the appellant was mentally incompetent to commit the offences.  On 11^th November 2004 the Magistrate considered the report of Dr Scott. With the agreement of the prosecution and the defence, he dispensed with any further investigation into the appellant’s mental competency to commit the offences (see s 269F(3)) and he made a finding that the appellant was mentally incompetent to commit the offences. He found that the objective elements of the offence were established and that the appellant was not guilty of the offences. He declared that the appellant was liable to a supervision order under Part 8A of the CLCA.  On 11^th November 2004 the Magistrate made an order under s 269T(2) that three reports be prepared as to the mental condition of the appellant and the possible effects of the proposed action on the behaviour of the appellant. He directed that the report provided by the Minister under s 269Q may stand as one of the three reports required under s 269T(2). The Magistrate made an order that the Minister of Health provide the report required by s 269Q. The Magistrate noted the obligation on the Crown to provide the report containing the views of the next of kin and the victims (s 269R). The Magistrate also directed that the report of Dr Scott could stand as one of the three expert reports referred to in s 269T.

9. At the time of the orders he made on 11^th November 2004 the Magistrate had the report of Dr Scott, and he also had a report from Ms Amanda Barnett, the acting senior clinical adviser of the Magistrates Court Diversion Program.  The report of Ms Barnett is dated 18^th August 2004 and contains an assessment of the appellant with a view to her participation in the Magistrates Court Diversion Program.

10. The two expert reports were received as a result of the orders made by the Magistrate on 11^th November 2005.  The first is a report of Dr Bagvati Asokan dated 12^th January 2005.  Dr Asokan is a psychiatrist.  Dr Asokan said that the history he took and the examination he conducted indicated that the appellant suffered from a depressive illness in the context of a shoulder injury and substance abuse.  He thought the appellant’s general functioning had improved substantially.

11. The second report is from Dr R Balfour dated 29^th December 2004. Dr Balfour addressed the issues in s 269T(1)(a)-(d) inclusive. He said:

    The nature of the defendant’s mental impairment

    I accept that the court has determined Ms Tanner was mentally incompetent at the time of the offences, but I am surprised about the outcome.  She said that during the course of her offending she was consuming sixteen, thirty milligram Mersyndol tablets a day, mixed with copious amounts of alcohol, and antidepressant medication.  I would have thought that the financial stress caused by her alcohol and prescription drug abuse would have been a significant contributing factor to her offending.  Furthermore, there is the possibility of a gambling addiction to gaming machines.

    I believe that Ms Tanner’s past mental health problems included PTSD, major depressive illness, and alcohol and prescription medication abuse.  However, she appears to have made significant progress in overcoming most of her mental health problems because she has participated in extensive mental health rehabilitation.  Her mental health at present is quite good.

    I believe that it is also possible Ms Tanner may have also been addicted to gaming machines at the time of the alleged offences.  However, this is difficult to ascertain at present due to her poor recollection of events.  She does not appear to suffer from pathological gambling at present.

    I believe that Ms Tanner’s PTSD and major depressive illnesses would have satisfied the legal definition of a mental impairment (ie s 269A).  Her alcohol and prescription drug abuse would not satisfy the legal definition of a mental impairment.

    Ms Tanner appears to have overcome her alcohol and prescription drug abuse as a result of undergoing two periods of medically supervised detoxification.  The first time was at the Adelaide Clinic from the 03/02/02 until the 21/12/03.  The second time was during March, 2004, when she was admitted to Barmera Hospital by her general practitioner for ten days.

    Whether the defendant is, or would if released be, likely to endanger another person, or other persons generally.

    I do not believe that Ms Tanner presents as a significant risk to the general community or is likely to endanger another person.  She does not have a history of violent behaviour or an antisocial personality disorder.

    Whether there are adequate resources available for the treatment and support of the defendant in the community.

    There are adequate resources to deal with Ms Tanner’s mental health problems.  I have already documented them earlier in this report.  She has an extensive rehabilitation support network consisting of a clinical psychologist, psychiatrist, drug and alcohol counsellor, general practitioner, rehabilitation casemanager, and community corrections officer.

    I believe that Ms Tanner would most probably benefit from being referred to a Rape Crisis Centre for support.

    Whether the defendant is likely to comply with the conditions of the license.

    I believe that Ms Tanner is likely to be compliant with any set licence conditions.  She appears to have been cooperative and motivated to participate in rehabilitation.

12. The Magistrate also received a report from Ms J Marshall dated 18^th January 2005 which set out the views of the victim and the next of kin.

13. For a reason which was not explained by the evidence but probably was an administrative oversight, a report pursuant to s 269Q was not submitted to the Court by the Minister.

14. On 19^th January 2005 the Magistrate made the supervision order to which I have previously referred and in doing so he had regard to the reports of Dr Scott, Ms Marshall, Dr Asokan and Dr Balfour respectively.

15. Sections 269Q and 269T relevantly provide:

    269Q.  (1) If a defendant is declared to be liable to supervision under this Part, the Minister must, within 30 days after the date of the declaration, prepare and submit to the court by which the declaration was made a report, prepared by a psychiatrist or other appropriate expert, on the mental condition of the defendant containing –

    (a)     a diagnosis and prognosis of the condition; and

    (b)     a suggested treatment plan for managing the defendant’s condition.

    …

    269T.  (2)  The court cannot release a defendant under this Division, or significantly reduce the degree of supervision to which a defendant is subject unless the court –

    (a)     has considered at least three reports (expert reports) each prepared by a different 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 Division; and

    (c)     has considered the report on the attitudes of victims and next of kin prepared under this Division; 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.

16. I raised with the parties the fact that there was no report submitted to the Court by the Minister and the question of the effect of that omission.  I am inclined to think that the particular requirement that the Magistrate consider the report most recently submitted to the court by the Minister is mandatory in the sense that breach of the provision renders the relevant decision invalid (Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355) but as there are other grounds upon which I would interfere with the Magistrate’s order there is no need for me to finally decide the point. Neither party objected to me dealing with the matter rather than remitting the matter to the Magistrates Court and in my opinion it is convenient for me to do so. A report under s 269Q has now been received. It is a report of Dr Balfour dated 10^th May 2005.  In addition, the respondent put before me evidence that on 9^th May 2005 the appellant, upon a plea of guilty, was convicted of behaving in a disorderly manner in a public place.  The offence occurred at about 2.40 am on 23^rd January 2005 and the appellant had consumed alcohol.  The quantity of alcohol which she had consumed was in dispute but I do not need to resolve that dispute.

    The orders which should be made

17. None of the orders preceding the declaration that the appellant is liable to supervision are in issue on the appeal. There are two decisions to be made. They are the decisions referred to in s 269O of the CLCA which is in the following terms:

    269O. (1)     The court by which a defendant is declared to be liable to supervision under this Part may –

    (a)     release the defendant unconditionally; or

    (b)     make an order (a “supervision order”) –

    (i)    committing the defendant to detention under this Part; or

    (ii)releasing the defendant on licence on conditions decided by the court and specified in the licence.

    (2)     If a court makes a supervision order, the court must fix a term (a “limiting term”) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court’s opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established.¹

    (3)     At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.

    ¹ The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant’s mental impairment.

18. The matters that I must have regard to are those set out in s 269T(1) which provides:

    269T.  (1) In deciding proceedings under this Division, 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.

19. I must also observe the provisions of s 269S which is in the following terms:

    269S  In deciding whether to release a defendant under this Division, or the conditions of a licence, 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.

20. I consider first the fixing of a limiting term. The term must be equivalent to the period of imprisonment or supervision or the aggregate period of imprisonment and supervision that would, in my opinion, have been appropriate if the appellant had been convicted of the offences of which the objective elements have been established. The note to s 269O(2) indicates that in fixing the limiting term I should do so by reference to the sentence that would have been imposed if the appellant had been found guilty of the relevant offences and without taking account of the appellant’s mental impairment.

21. In my opinion, the appropriate limiting term is a period of 12 months.  I consider that the period fixed by the Magistrate of 18 months is manifestly excessive.  The offences are no doubt serious, but I must also take into account the total amount involved and the fact that the appellant repaid the monies within a short period after the alleged offences.

22. The appellant’s counsel submitted that had I been sentencing the appellant it would have been appropriate to suspend the sentence of imprisonment and that it followed from that that I should release the appellant unconditionally pursuant to s 269O(1). The appellant’s counsel referred to Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251. I do not think that the reasons for judgment of Duggan J (at 265-266) support that proposition and I reject the submission irrespective of whether I think that it would have been appropriate to suspend the sentence. In deciding whether to release the defendant unconditionally I must have regard to the matters set out in ss 269S and 269T, and a number of those matters are not matters which would be considered in determining if, hypothetically and without taking into account the appellant’s mental impairment, I would have suspended a sentence of imprisonment.

1. In my opinion this is not a case in which an order for unconditional release is appropriate. 

2. In his report dated 10^th May 2005, Dr Balfour addresses the diagnosis and prognosis of the appellant’s condition and a suggested treatment plan for managing the appellant’s condition.  He states:

   (a) Diagnosis and prognosis of the condition

   I believe that at the time of the alleged offences Ms Tanner would have met the diagnostic criteria for the following mental health problems.

   1.     Post-Traumatic Stress Disorder

   2.     Major Depressive Disorder

   3.     Alcoholism

   4.     Prescription drug abuse (ie Mersyndol and antidepressant medication)

   5.     Potentially, a pathological gambling disorder.

   When I last assessed Ms Tanner on the 29/11/04 I considered her prognosis to be good.  She appeared to have overcome most of her mental health problems as a result of participating in a supervised and comprehensive rehabilitation programme.  Nevertheless, I believe that her prognosis could quickly deteriorate in the future if she were to experience a relapse of her alcoholism or prescription drug abuse.

   (b) A suggested treatment plan for managing the defendant’s condition

   I believe that Ms Tanner would require the assistance of a supervised, structured rehabilitation programme.  She has been fortunate to have already accessed such a programme that includes:

   1.     Psychological treatment by Ms Jill Scott, clinical psychologist.

   2.     Psychiatric treatment by Dr David Kelly at the Adelaide Clinic.

   3.     Rehabilitation coordination by Ms Trudy Weelan.

   4.     Counselling from the Women’s Outreach Service.

   5.     Drug and alcohol counselling from Ms Jill Eustice.

   6.     Ongoing support and treatment from her General Practitioner, Dr Grant Baker.

   I believe the aforementioned rehabilitation programme is more than adequate to treat Ms Tanner’s mental health needs.  The only additional recommendation I have is that she be referred to Break Even for assessment to determine if she requires ongoing treatment for a pathological gambling disorder.  I still believe she would be an appropriate referral to the Rape Crisis Centre.

   When I last assessed Ms Tanner, I considered her mental health to be good.  I did not believe that she suffered from an active mental health problem that required treatment.

   Ms Tanner will be able to readily access her rehabilitation support network if she should experience a relapse of her mental health problems and/or alcoholism and prescription drug abuse.

3. Of particular significance in what I have set out above is Dr Balfour’s opinion that the appellant’s prognosis could quickly deteriorate in the future if she were to experience a relapse of her alcoholism or prescription drug abuse, and his opinion that the appellant required the assistance of a supervised, structured rehabilitation programme.

4. The respondent did not submit that release on licence was not appropriate and I turn to the question of the appropriate conditions of a licence.

5. In my opinion, conditions 1, 2 and 3 of the conditions imposed by the Magistrate are appropriate.  Assuming I decided that release on licence was appropriate, the appellant did not argue to the contrary.  There may be a need for clarification of condition 3 to ensure the treatment plan is properly identified, and I will hear further submissions from the parties on that point.

6. The appellant submitted that there was no need for conditions 4 and 5.  Those conditions refer to the use of marijuana and other illicit substances and the evidence was that the appellant had abused alcohol and prescribed drugs.  I acknowledge that point but on balance, I think that those conditions should be included.  The offending took place on nine separate occasions over a period of time and it appears that the Magistrate accepted the opinion of Dr Scott that at the time of the offending the appellant did not know the nature and quality of the conduct and was unable to control the conduct.  It seems that alcohol and prescription drug abuse were significant factors in the appellant’s condition.  As I have said, Dr Balfour says that the appellant’s prognosis could quickly deteriorate in the future if she were to experience a relapse of her alcoholism or prescription drug abuse. Furthermore, I note that in his report dated 29^th December 2004, Dr Balfour states:

   Ms Tanner has a very limited history of drug and alcohol abuse problems.  She said that she was 26 years old when she first tried cannabis.  She has only been a sporadic user of cannabis.  She has not experimented with any other types of illegal drugs.  She has only abused alcohol and benzodiazepines.

7. It is true that the appellant has only been a sporadic user of cannabis, but I think that there is a sufficient risk of substance abuse to warrant conditions 4 and 5.

8. As far as condition 6 is concerned, I think it does no more than reflect the statutory position (s 260V(3) CLCA) and I reject the appellant’s challenge to it.

9. The appellant submitted that condition 7 was unnecessary. She submitted that there was adequate power to deal with a situation where she contravened or was likely to contravene a condition of the licence in s 269U of the CLCA.  I think that there is a sufficient risk of the appellant’s condition quickly deteriorating, as Dr Balfour put it, to warrant condition 7.

   Conclusion

10. In the result, I will impose a limiting term of 12 months.  I will make an order that the appellant be released on licence on the same conditions as were imposed by the Magistrate.  I will hear from the parties as to whether there is a need for clarification of condition 3. 

11. After hearing further submissions from the parties I consider it appropriate that condition 3 be in the following terms: 

    “3. Subject to any direction to the contrary by the Director of Forensic Mental Health Services, the defendant is to comply with the treatment plan being the rehabilitation plan identified in points 1-6 on page 2 of Dr R Balfour’s report dated 10th May 2005."