R v DAVID TZEEGANKOFF [2025] SASC 21

Applicant: R Counsel: MS T NELSON - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: DAVID TZEEGANKOFF Counsel: MS T JOHNSON - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 03/02/2025 File No/s: SCCRM-25-002097 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. R v TZEEGANKOFF [2025] SASC 21 Judgment of the Honourable Justice Stein 7 March 2025 CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE On 17 March 1994, the respondent was found not guilty of the offence of murder by reason of insanity and ordered to be detained until further order pursuant to s 292(2) of the Criminal Law Consolidation Act 1935 (SA) (as in force prior to 2 March 1996) (“the Act”). During the period of detention the respondent was subject to periods of release on licence including since May 2024 on terms including that the respondent comply in every respect with the treatment plan prepared and in force from time to time pursuant to s 293A(2) of the Act. The Director of Public Prosecutions applied for cancellation of the release on licence of the respondent pursuant to s 293A(15) of the Act on grounds including that the respondent had contravened the conditions of his licence relating to compliance with his treatment plan and that the respondent’s treating psychiatrist had formed the view the respondent was highly likely to contravene conditions of the existing order. Held (allowing the application and cancelling the release on licence): 1. The respondent has contravened, and is highly likely to contravene, conditions of the existing licence. It is appropriate in all the circumstances to cancel the respondent’s release on licence. Criminal Law Consolidation Act 1935 (SA) ss 293A(6), 293A(13)(b), 293A(15) (as in force prior to 2 March 1996), referred to. R v Hodson [2003] SASC 240, considered. -- 1 of 9 -- -- 2 of 9 -- R v TZEEGANKOFF [2025] SASC 21 Criminal: Application 1 STEIN J: The Director of Public Prosecutions has applied for the cancellation of the release on licence of Mr Tzeegankoff, which was imposed by the Court on 3 May 2024, and an order that the detention order of 17 March 1994 continue in effect. 2 The application is made on the grounds that Mr Tzeegankoff has contravened conditions of his release on licence, in particular, by failing to comply with his treatment plan such that Mr Tzeegankoff’s treating psychiatrist has formed the view that Mr Tzeegankoff is likely to contravene other conditions of his order. 3 For the reasons that follow I have determined to grant the orders sought. Background 4 On 17 March 1994, Mr Tzeegankoff was found not guilty of the offence of murder by reason of insanity and the Court ordered, pursuant to s 292(2) of the Criminal Law Consolidation Act 1935 (SA), as in force prior to 2 March 1996, (“the Act”) that the applicant be detained until further order of the Court. 5 In April 1998, Mr Tzeegankoff was released on licence by order of the Court on restricted conditions to enable him to travel periodically to Glenside Hospital. In July 1998, a variation allowed him to travel to and from Glenside Hospital and James Nash House. 6 In April 1999, Mr Tzeegankoff’s conditional release on licence was revoked by the Court and he was returned to detention at James Nash House. In December 1999, Mr Tzeegankoff was released on licence to reside at James Nash House with graduated transfer to Glenside Hospital. 7 In March 2000, further variations were made by the Court to allow Mr Tzeegankoff to reside at Glenside Hospital. In September 2002, Mr Tzeegankoff’s conditions of release on licence were further varied to allow accompanied day leave. Further variations in July 2003 had the effect of allowing Mr Tzeegankoff to have unaccompanied leave as determined appropriate by the Director, Forensic Mental Health Services. In October 2005, further variations allowed Mr Tzeegankoff to have overnight leave, subject to certain conditions. Subsequent variations were made in August 2007 and October 2008. In November 2009, Mr Tzeegankoff’s conditions of release on licence were further varied to permit him to reside at Oakden, subject to certain conditions. The location of his residence was changed by variation order in November 2011. 8 In March 2014, orders were made revoking Mr Tzeegankoff’s conditional release on licence and returning him to detention at James Nash House. Later in June 2014, Mr Tzeegankoff was again released on licence by order of the Court. -- 3 of 9 -- [2025] SASC 21 Stein J 2 9 In February 2017, the Court made orders suspending Mr Tzeegankoff’s conditional release on licence and returning him to detention at Yatala Labour Prison. Later in April 2017, Mr Tzeegankoff was released on licence with an additional condition concerning drug testing. 10 In April 2018, Mr Tzeegankoff’s conditional release was revoked and he was returned to detention at Yatala Labour Prison. He was again released in November 2018 with additional conditions. 11 In January 2022, Mr Tzeegankoff’s conditional licence was revoked and he was returned to detention. In July 2022, Mr Tzeegankoff’s licence was varied to allow accompanied and unaccompanied leave. 12 In May 2024, the conditions of the release on licence were further varied. 13 The current conditions of the release on licence include that Mr Tzeegankoff be under the care of the Director, Forensic Mental Health Service and obey directions in relation to psychiatric treatment and that Mr Tzeegankoff be psychiatrically reviewed on a regular basis; that Mr Tzeegankoff continue to receive his medication; that Mr Tzeegankoff comply in every respect with his treatment plan; that Mr Tzeegankoff continue to reside as an inpatient at James Nash House; that at the discretion of the Director, Forensic Mental Health Services, Mr Tzeegankoff be permitted periods of escorted leave; and that Mr Tzeegankoff not consume alcohol or drugs not medically prescribed. Medical reports 14 The Director’s application relies on the view of Mr Tzeegankoff’s treating psychiatrist, Dr Brereton. The Director relied upon two reports from Dr Brereton regarding Mr Tzeegankoff’s progress while subject to the current release on licence. Report of Dr Brereton dated 30 April 2024 15 In April 2024, Dr Brereton provided a report to the Court pursuant to s 269T of the presently enacted Criminal Law Consolidation Act 1935 (SA). Dr Brereton’s report catalogues a long history of attempts to manage Mr Tzeegankoff in the community under licence, revocations of the licence, and returns to detention, together with occasions of Mr Tzeegankoff breaching conditions without necessarily being returned to detention. 16 Dr Brereton’s report states that Mr Tzeegankoff’s licence was revoked in 1999 after he drank alcohol. Mr Tzeegankoff breached his licence in 2001 when testing positive for cannabis and spent a brief period in James Nash House before being discharged to Glenside Hospital. Attempts were made to transition Mr Tzeegankoff to the community in 2003, but he quickly returned to using alcohol and cannabis. -- 4 of 9 -- [2025] SASC 21 Stein J 3 17 After a long period in inpatient rehabilitation services, Mr Tzeegankoff was discharged in 2011. He was readmitted to James Nash House in 2014 after cannabis use and later discharged back to a residential facility with high levels of support. Mr Tzeegankoff’s order was revoked again in 2018 after positive urine tests and admitting to consuming cannabis and methamphetamine. Mr Tzeegankoff was later returned to the community. 18 In July 2021, Mr Tzeegankoff was seen in Flinders Medical Centre following concern he had been using methamphetamine for at least two months and had lost significant amounts of weight. Mr Tzeegankoff had been smoking and injecting methamphetamine and smoking cannabis. In September 2021, Mr Tzeegankoff presented to the Royal Adelaide Hospital emergency department in the context of cannabis and methamphetamine use. 19 In January 2022, Mr Tzeegankoff was re-admitted to James Nash House. He progressed quickly through the acute and sub-acute wards until placement on the long stay rehabilitation ward. Mr Tzeegankoff began rehabilitation and a gradual transition back into the community. The focus of rehabilitation was on Mr Tzeegankoff’s substance use disorder. 20 In March 2023, Mr Tzeegankoff began overnight leaves and was engaged with Narcotics Anonymous. The intention was to discharge Mr Tzeegankoff from James Nash House by around August 2023. On 10 July 2023, Mr Tzeegankoff left James Nash House for five days of overnight leave but on the first night used methamphetamine. He admitted this to his NDIS support worker. Attempts to contact Mr Tzeegankoff were not successful. After the initial text to the NDIS worker, Mr Tzeegankoff was reported to have asked the NDIS worker not to pass on the information that he had used methamphetamine. Mr Tzeegankoff’s explanation for the use of methamphetamine was that he was unable to sleep properly and had been waking at 2:00 am. Mr Tzeegankoff told staff he had been craving methamphetamine, was preoccupied with grief concerning his brother’s death, and that if he had received the right counselling he would not have resorted to drug use. 21 Dr Brereton stated that it became apparent that despite alcohol and drug counselling and attendance at Narcotics Anonymous, Mr Tzeegankoff had retained little he could put to practical use. In Dr Brereton’s view, Mr Tzeegankoff continued to externalise blame for drug use, blame doctors for not prescribing the correct medication, blame the treatment team for not offering him sufficient counselling, and blame lack of support in the community and the location of his house. In about August 2023, it was discovered that Mr Tzeegankoff had been giving away his prescribed nicotine replacement therapy to another patient for about 12 months. 22 Dr Brereton’s report states that ongoing attempts had been made to rehabilitate Mr Tzeegankoff, including by attendance at Narcotics Anonymous meetings and support to undertake the Matrix and SMART recovery programs -- 5 of 9 -- [2025] SASC 21 Stein J 4 with focus on relapse prevention strategies in relation to drug use. Mr Tzeegankoff has had intensive one on one psychology input. An experienced forensic psychologist has been working with Mr Tzeegankoff but Mr Tzeegankoff’s superficial engagement made it difficult to advance, including by reason of Mr Tzeegankoff’s lack of motivation. 23 Mr Tzeegankoff has contended his difficulties have been due to the limitations of his previous psychologist. Dr Brereton reported that in interview, Mr Tzeegankoff complained of his previous psychologist failing to talk to him much about substance use. 24 Dr Brereton reported that while Mr Tzeegankoff’s mental state had remained stable, his response to rehabilitation, the most important aspect being psychology sessions and relapse prevention, had been poor. Although Mr Tzeegankoff did inform his NDIS support worker after using methamphetamine (which occurred at the first opportunity when he had five days of overnight leave), Mr Tzeegankoff then tried to persuade the worker not to inform Forensic Services and made no attempt to contact his various supports before he used methamphetamine when he was experiencing cravings. Dr Brereton stated that Mr Tzeegankoff had displayed a prominent tendency to externalise responsibility and his account of past occasions of drug use had been inconsistent. The programs aimed at assisting Mr Tzeegankoff with relapse prevention had been of little to no practical benefit. Mr Tzeegankoff’s limited motivation and external locus of control had resulted in very little progress. Dr Brereton considered Mr Tzeegankoff’s appreciation of his risk of harm to others and his empathy regarding the consequences of the risk was poor. Accordingly, Mr Tzeegankoff’s ability to self-manage his risk was minimal. 25 In April 2024, Dr Brereton was of the view that Mr Tzeegankoff remained a high risk of quickly reverting to drug use in the community and Dr Brereton did not consider Mr Tzeegankoff could safely be discharged. Dr Brereton supported Mr Tzeegankoff having limited access to accompanied leave to help motivate him to engage with the team. Dr Brereton assessed Mr Tzeegankoff’s prognosis as poor but wrote that Mr Tzeegankoff would continue to be offered rehabilitation and psychology assistance in James Nash House. Report of Dr Brereton dated 17 December 2024 26 In December 2024, Dr Brereton wrote to the Director of Public Prosecutions to inform the Director that Mr Tzeegankoff’s community leave program from James Nash House had been suspended. Dr Brereton wrote to seek a review of Mr Tzeegankoff’s licence with a view to having it revoked. 27 After setting out aspects of Mr Tzeegankoff’s history, which were also covered in the April 2024 report, Dr Brereton stated that Mr Tzeegankoff commenced supported leave into the community on 6 June 2024 to attend Narcotics Anonymous meetings in the community. On 17 October 2024, Mr Tzeegankoff was taken to a community Narcotics Anonymous member meeting by a new member of staff where he told the staff member he was permitted -- 6 of 9 -- [2025] SASC 21 Stein J 5 to smoke cigarettes during breaks. Despite the staff member questioning this and asking him not to smoke until clarification had been obtained, Mr Tzeegankoff insisted he was entitled to smoke and obtained a cigarette as soon as they arrived at the meeting. Mr Tzeegankoff was aware that he was not permitted to smoke on escorted leave. Mr Tzeegankoff’s supported community leave was then suspended. 28 Dr Brereton found Mr Tzeegankoff’s response to the incident disappointing, evasive and dishonest. While Mr Tzeegankoff stated he should have known better and acknowledged it represented poor judgment, Dr Brereton said Mr Tzeegankoff continued to externalise responsibility and did not meaningfully accept culpability. 29 After that incident, Dr Brereton raised Mr Tzeegankoff’s progress and rehabilitation with all disciplines in the team dealing with Mr Tzeegankoff. While Mr Tzeegankoff attends Narcotics Anonymous meetings most days online and other groups on the ward willingly, Dr Brereton considers there is no evidence he benefits from the interventions. Mr Tzeegankoff is said to have continued to blame others or provide rehearsed, glib responses when questioned about his substance use. The previous drug and alcohol worker on the ward questioned Mr Tzeegankoff’s willingness to make meaningful changes about his substance use and questioned the authenticity of Mr Tzeegankoff’s engagement with abstaining strategies. Mr Tzeegankoff has worked for a long period with a senior forensic psychologist and made no discernible progress. A psychologist who Mr Tzeegankoff had seen more recently reported Mr Tzeegankoff had provided a disingenuous account of smoking on leave and of his progress more broadly. 30 Dr Brereton considers Mr Tzeegankoff’s prognosis poor and his engagement with rehabilitation as superficial. Dr Brereton described Mr Tzeegankoff as having an extremely pronounced tendency to externalise blame and fundamentally very little motivation to avoid substance use. This derives from problems relating to his personality rather than mental illness. Dr Brereton’s opinion is that Mr Tzeegankoff remains at a very high risk of substance abuse were he to access the community and that Mr Tzeegankoff had demonstrated he would take every opportunity to use illicit substances. Dr Brereton could not support Mr Tzeegankoff having leave into the community and considers there is no realistic prospect of discharge. While there is always hope for progress, Mr Tzeegankoff’s history means that significant time and progress will be required before further community leave will be appropriate. Dr Brereton considered this should be reviewed by the Court before community leaves are resumed. In the light of Mr Tzeegankoff’s failure to comply with his treatment plan and given Dr Brereton considers Mr Tzeegankoff highly likely to contravene conditions of his existing order, Dr Brereton requested that Mr Tzeegankoff’s current licence be revoked and he revert to being committed to detention. -- 7 of 9 -- [2025] SASC 21 Stein J 6 Submissions 31 Mr Tzeegankoff opposed the order on the basis that if he reverted to being committed to detention he will be returned to prison and his access to rehabilitation programs will be reduced and he will not be able to continue with Narcotics Anonymous. Mr Tzeegankoff was aware he was not allowed to smoke but submitted that the smoking of a cigarette was not use of an illicit substance. He emphasised that the incident of taking methamphetamine in July 2023 was reported by Mr Tzeegankoff to his NDIS support worker. Mr Tzeegankoff submitted I ought decline the application and to allow him to remain in James Nash House in light of the lesser availability of rehabilitation in custody. 32 Counsel for the Director submitted that the main concern was not relapse of itself but the lack of practical use in the rehabilitation efforts in which Mr Tzeegankoff had been engaged and the externalisation of blame. Counsel submitted that Mr Tzeegankoff had been given numerous opportunities to rehabilitate and any future decisions for his release on licence ought to be made by the Court. Consideration 33 The Act, as in force prior to 2 March 1996, provided that where any person charged with an indictable offence was insane and could not be tried on the information, the Court must order the person be detained in a secure psychiatric institution until further order. 34 Section 293A(6) provided that a person would not be released from detention unless the Court making the detention order discharged the order in which case the Court was to release the person on licence subject to such conditions the Court thought fit. 35 Section 293A(15) provided that the Court which released a person on licence may, on application by the Crown, cancel the release if satisfied the person had contravened or was likely to contravene a condition of the licence. 36 While s 293A of the Act was repealed by the Criminal Law Consolidation (Mental Impairment) Amendment Act 1995 (SA), it continues to apply to applications relating to a trial prior to 2 March 1996, the date after which some substituted provisions took effect. Those against whom orders were made under s 293 must continue to be dealt with under those provisions.1 Mr Tzeegankoff falls within that class. 37 Section 293A(15) enables the Court, on application by the Crown, to cancel the release on licence if satisfied that the person has contravened or is likely to contravene a condition of the licence. Section 293A(15) does not contain any express factors the Court must consider in determining whether or not to cancel the release. This is in contrast with the specific factors the Court must consider in 1 R v Hodson [2003] SASC 240. -- 8 of 9 -- [2025] SASC 21 Stein J 7 s 293A(13)(b) (addressing an application for the release of a person on licence or for variation of the conditions of licence). Thus, the decision of the Court under s 293A(15) is a discretionary one which is not fettered or circumscribed. 38 Mr Tzeegankoff did not dispute any of the matters in Dr Brereton’s report or seek to obtain any other report. The contest between the parties is between on the one hand, Dr Brereton’s opinion that he considers Mr Tzeegankoff highly likely to contravene conditions of his existing order and that Mr Tzeegankoff’s engagement and prognosis is poor, against the reduced access Mr Tzeegankoff will have to rehabilitation in detention. 39 It was not in dispute that Mr Tzeegankoff has breached the conditions of his licence. I accept that Mr Tzeegankoff’s breach in smoking does not constitute consumption of an illegal drug. Nevertheless, it is indicative of Mr Tzeegankoff’s attitude to the conditions in the light of Dr Brereton’s view of the risk of Mr Tzeegankoff breaching conditions in the event of release. 40 Generally speaking, I accept a reduction in the availability of rehabilitation programs such as Narcotics Anonymous is not preferable for someone in need of access to rehabilitation programs. However, against that I must weigh Dr Brereton’s unchallenged opinion that Mr Tzeegankoff’s engagement with rehabilitation has been superficial. I am satisfied that Mr Tzeegankoff has contravened the conditions of his release on licence, and I accept Dr Brereton’s opinion that Mr Tzeegankoff is highly likely to contravene conditions of the licence were the licence to continue. I have determined I should accept Dr Brereton’s view that before Mr Tzeegankoff resumes community leave, his position should be reviewed by the Court when considered against the whole of the background of Mr Tzeegankoff’s history including the rehabilitation opportunities offered to him. Accordingly, I consider it appropriate in all of the circumstances to exercise my discretion to cancel Mr Tzeegankoff’s release on licence. Orders 41 Mr Tzeegankoff’s release on licence pursuant to the order of this Court dated 3 May 2024 is cancelled and Mr Tzeegankoff’s detention order of 17 March 1994 continue in effect. -- 9 of 9 --