Bajon v Police
[2018] SASC 176
•19 October 2018
Supreme Court of South Australia
(Magistrates Appeals: Criminal)
BAJON v POLICE
[2018] SASC 176
Judgment of The Honourable Chief Justice Kourakis (ex tempore)
19 October 2018
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
Application to appeal an order made on 22 August 2018 in the Elizabeth Magistrates Court that the appellant be detained for eight months pursuant to s 269O(1)(b)(i) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).
Held, granting permission to appeal, setting aside the period of disqualification and releasing the appellant on licence for a period of three years:
1. The Magistrate was not empowered to disqualify the appellant from holding a licence pursuant to s 168 of the Road Traffic Act, because he was not convicted but dealt with under Part 8A of the CLCA.
2. It is in the interest of justice that the order made on 4 October 2017 detaining the appellant be set aside and instead order that he be released on licence for a period of three years.
Motor Vehicles Act 1959 (SA) s 91; Australian Road Rules r 287; Road Traffic Act 1961 (SA) s 168; Criminal Law Consolidation Act 1935 (SA) s 269O, s 269NA, s 269NB, s 269Q, s 269T, referred to.
Miles v Police (2009) 104 SASR 127, considered.
BAJON v POLICE
[2018] SASC 176Magistrates Appeals: Criminal
KOURAKIS CJ (ex tempore): Michael Stefan Bajon has appealed against an order made on 22 August 2018 in the Elizabeth Magistrates Court that he be detained for eight months, pursuant to s 269O(1)(b)(i) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’).
The order was made on charges of:
·Driving in a culpably negligent manner with the intention of escaping pursuit by a police officer contrary to s 19AC(1) of the CLCA.
·Failing to stop after being involved in a collision and failing to give the required particulars in the required time, contrary to rule 287 of the Australian Road Rules.
·Driving whilst disqualified contrary to s 91 of the Motor Vehicles Act 1959 (SA).
Mr Bajon admitted the objective elements of the offence on 4 October 2017 and by consent on that date a finding was made, without conducting an investigation, that Mr Bajon was not mentally fit to stand trial. The record of the order is that Mr Bajon was not mentally competent to commit the offences, and refers to s 269F(A)(5) of the CLCA. It is common ground that the record is mistaken and that this Court can proceed on the basis of an order properly made on that day that the appellant was not fit to stand trial. Importantly, as well as making the finding that Mr Bajon was unfit to stand trial, the Magistrate made an order on 22 August 2018 pursuant to s 269O(1)(b)(i) of the CLCA that Mr Bajon was liable to supervision.
Mr Bajon was committed to detention that same day and was to be kept in secure care for a period of eight months.
The offending charged by the first two counts set out above occurred on the morning of 11 April 2017 on Grand Junction Road. Police travelling behind Mr Bajon’s car activated their emergency lights and sirens to conduct a mobile driver test. Mr Bajon accelerated away at a dangerous speed. He collided with another car when he failed to give way at the intersection of Grand Junction Road and Prospect Road. At the time, he was disqualified from holding a driver’s licence for the period 27 December 2016 to 26 June 2017 having breached a condition of his probationary driver’s licence. Mr Bajon was arrested on 11 April 2017 by police but he was released on home detention bail on 20 April 2017. He complied with the conditions of that home detention bail from that date until the time that he was detained pursuant to the order which is the subject of this appeal.
The Magistrate was informed that at the time of the offending Mr Bajon was working part-time as a car dismantler and that he had bought the vehicle in which the offences were committed to do it up and sell it at a profit. He was not aware that it was stolen. At the time of this offending he was still grieving the tragic death of his sister. Mr Bajon is 29 years of age. He has a six-year-old daughter from an earlier relationship but has not seen her for some time. He has support from his mother. He is the tenant of Housing Trust accommodation in which his current partner has lived alone whilst he has been detained. The home has been assessed as suitable for a home detention order.
Mr Bajon has been a member of the congregation of Jehovah’s Witnesses but his membership has lapsed from time to time. He has undertaken a Narcotics Anonymous program.
Mr Bajon has appeared many times before the Youth Court and Magistrates Court and has been released on orders made pursuant to Part 8A, Division 3 of the CLCA on a number of occasions. In July 2009, Mr Bajon was released on licence with a limiting term of 18 months following findings that he had committed the objective elements of a number of offences including trespass. In October 2012, he was convicted of driving with a prescribed concentration of alcohol and other offences. He was fined and disqualified from holding a driver’s licence. On 9 December 2013, he was released on a conditional licence with a limiting term of six months after findings of the commission of the objective elements of a miscellany of offences. On 20 September 2016, Mr Bajon was released unconditionally because of time spent in custody on charges of aggravated assault causing harm and again a number of driving offences. On 5 October 2016, after again serving an extended period of time in custody Mr Bajon was released on conditional licence with a limiting term of two years for offences of aggravated serious criminal trespass in a residence, theft, property damage, aggravated assault, driving dangerously to escape police pursuit and causing serious harm by dangerous driving.
The Magistrate correctly recorded in her reasons that Mr Bajon’s history of persistent driving offences gave good reason to apprehend that his release would place the community at risk. The Magistrate observed that the offending for which Mr Bajon was to be dealt with was committed within six months from when he was last released on a conditional licence.
Reports were ordered pursuant to s 269Q and s 269T of the CLCA. Dr Paul Furst provided two reports dated 22 September 2017 and 6 March 2018. In his report of September 2017, Dr Furst observed that Mr Bajon suffered from a genetic chromosomal abnormality which is associated with intellectual disability. Dr Furst’s report records that as a child Mr Bajon was diagnosed with Attention Deficit Hyperactivity Disorder (‘ADHD’), mild intellectual disability, behavioural issues and borderline hypertension. He has been admitted to hospital for aggression and medication overdoses. Dr Furst diagnosed a major depressive disorder or a bereavement adjustment disorder.
In his report of 6 March 2018, after considering reports provided by Dr Tim Connell and Dr Jules Begg, Dr Furst accepted Dr Connell’s finding that Mr Bajon suffered a language disorder rather than an intellectual disability. He considered the management proposed by Dr Connell to be reasonable.
Dr Tim Connell provided two reports both dated 16 January 2018 to comply with different sections of the CLCA. Dr Connell’s report recorded that Mr Bajon’s parents separated when he was seven, leaving him to live in a series of foster homes. During that period, and later when he associated with drug users, Mr Bajon was the victim of violence including sexual assault. After reviewing previous cognitive assessments of Mr Bajon, Dr Connell diagnosed Mr Bajon’s intellectual disability to be a language disorder. If Mr Bajon had been treated by a speech pathologist in his preschool years the disorder may have been amenable to treatment. Dr Connell’s diagnosis was that Mr Bajon suffered from Post‑Traumatic Stress Disorder (‘PTSD’). Dr Connell recommended a course of treatment including individual counselling with a mental health worker skilled in supporting people with PTSD, grief, substance abuse and anger management dysfunction. He recommended that Mr Bajon continue to attend Narcotics Anonymous. His particular recommendations are set out in his report:
· Individual counselling with a mental health worker skilled in supporting people with his kind of issues (e.g., a bulk billing psychologist). Apparent relevant issues include: PTSD, grief, couple issues, polysubstance abuse, anger management, anxiety management and depression. This may also be the best support arrangement for helping him build his own support system (i.e., improve relationships with positive people already in his life). This can be achieved by a referral to a suitable psychologist from his General Practitioner.
· Involvement in formal anger management, e.g., a group program. I understand these are offered by Relationship Australia, but a treating psychologist could help locate suitable ones.
· Should his home detention arrangements progress to a stage where he would be free to attend a place of suitable employment, then support from an employment agency to locate and maintain such employment. I understand Centrelink could direct him to a suitable provider.
· Continuation of involvement with Narcotics Anonymous (NA).
· Verification of claimed abstinence from illicit drugs (e.g., urine tests), until this has been well established (unless this has already occurred). I understand this can be a court ordered process.
· Establish a routine of positive activity for distraction, anxiety reduction, exercise, social networking and mood enhancement.
Dr Begg, in a report dated 16 February 2018, thought that Mr Bajon’s mental state had stabilised. His opinion was that Mr Bajon’s underlying and enduring mental health problems would always pose a chronic risk of offending which might be reduced by minimising stressors in his life. He concurred with the treatment recommendations of Dr Connell.
On 22 August 2018, the Magistrate made a detention order for a period of eight months pursuant to s 269O(1)(b)(i) of the CLCA. The Magistrate’s reasons were as follows:
[36]The prosecution submits detention is appropriate given the seriousness of the offending, the defendant’s awareness of his offending at the time and the risk to the safety of the community posed by his impulsive action of driving and causing an accident while trying to escape the police.
[37]I have considered all of these matters as required under the Act, and the reports of the experts and the submissions of counsel for the defendant. I have particularly considered the observations of Dr Connell concerning the treatment the defendant may benefit from in the community. However, on balance I am not satisfied the defendant’s release on current arrangements for ongoing treatment and management of his mental health condition are sufficient to ensure the public safety.
[38]The defendant is a repeat offending of driving in a manner that has placed the safety of the community at risk and it is only by good fortune that in this instance — unlike the previous occasion — no on was injured or killed. I also take into account the views of the experts as to the static nature of the defendant’s mental health condition and that he is at chronic risk of offending with stressors.
[39]I therefore intend to make an order committing the defendant to detention under [s 269O] of the Criminal Law Consolidation Act. Part 8A of the Act requires the court to fix a limiting term equivalent to the period of imprisonment or supervision that would, in the court’s opinion, have been appropriate if the defendant had been convicted of the offence or offences of which the objective elements have been established.
[40]In my view having regard to the penalty range for the offences for which the objective elements have been admitted on behalf of the defendant and the history of the defendant, a sentence of imprisonment to be served would have been the appropriate penalty if the defendant had been convicted of the offences. The appropriate approach in this case, if the defendant were convicted of the offences, would have been to sentence him to imprisonment for a period of 12 months.
[41]The defendant is not entitled to a reduction in sentence on account of his admission of the objective elements of the offences. However, he is entitled to a reduction on account of the time that he has spent in custody and on home detention and complied with those conditions of home detention. Accordingly I fix a limiting term of eight months.
[42]I therefore make an order under section 26O(1)(b)(i) committing the defendant to detention for a period of eight months.
The Magistrate disqualified Mr Bajon holding a driver’s licence for a period of two years purportedly pursuant to s 168 of the Road Traffic Act 1961 (SA) (‘the RTA’).
Mr Bajon appeals against the Magistrate’s orders on the grounds that the Magistrate erred in imposing a period of detention. The primary errors relied on were that the Magistrate failed to consider Division 3A of Part 8A (hereafter Division 3A) of the CLCA and that s 168 of the RTA was inapplicable because the appellant had not been convicted but instead had been dealt with pursuant to Part 8A of the CLCA. Division 3A of the CLCA provides a wider discretion and range of orders for dealing with a person charged with summary offences who are found to be incompetent to commit the offence or unfit to stand trial. Division 3A came into effect on 27 November 2017, almost two months after Mr Bajon was found unfit to stand trial but almost a year before the supervision order was made. Division 3A of the CLCA relevantly provides:
Subdivision 1—Principle on which court is to act
269NA—Principle on which court is to act
(1)The paramount consideration of the court in determining whether to release a defendant under this Division, or the conditions of a licence, must be to protect the safety of the community (whether as individuals or in general).
(2)The paramount consideration of the safety of the community outweighs the principle that restrictions on the defendant's freedom and personal autonomy should be kept to a minimum.
Subdivision 2—Making, variation and revocation of Division 3A orders
269NB—Division 3A orders
(1)This section applies in respect of a defendant who has been charged with a summary offence or a minor indictable offence in relation to which the court has found—
(a) on an investigation under Division 2—that the objective elements of the offence are established but the defendant is not guilty of the offence because the defendant was mentally incompetent to commit the offence; or
(b) on an investigation under Division 3—that the objective elements of the offence are established but the defendant is mentally unfit to stand trial for the offence.
(2)The court may—
(a) dismiss the charge and release the defendant unconditionally; or
(b) declare the defendant to be liable to supervision under Division 4 Subdivision 2; or
(c) make an order (a Division 3A order) releasing the defendant on licence for the period (which must not exceed 5 years) specified by the court in the licence; or
(d) adjourn the proceedings; or
(e) remand the defendant on bail; or
(f) make any other order that the court thinks fit.
(3)If a Division 3A order is made releasing the defendant on licence, the licence is subject to the following conditions:
(a) the conditions imposed by subsection (4);
(b) any other condition decided by the court and specified in the licence.
…
(6)Without limiting the generality of subsection (3)(b), release on licence under a Division 3A order may, for example, be subject to—
(a) a condition that the defendant reside at specified premises; or
(b) a condition that the defendant be under the care of a responsible person (who must be specified in the licence); or
(c) a condition that the defendant undergo assessment or treatment (or both) relating to the defendant's mental condition; or
(d) a condition that the defendant be monitored by use of an electronic device approved under section 4 of the Correctional Services Act 1982; or
(e) any other condition that the court thinks fit.
…
It was common ground on the appeal, as between the appellant and the Police, that on the enactment of Division 3A of Part 8A of the CLCA the Magistrate ought to have proceeded on 22 August 2018 in accordance with Division 3A. Their contentions were that the relevant time for the application of that section was the time of final disposition in terms of the decision as to what precise orders to make rather than the time at which the finding was made that Mr Bajon was unfit to stand trial. If all that had happened in the Magistrates Court on 4 October 2017 was that Mr Bajon was unfit to stand trial, that contention would be plainly right. This matter, however, is complicated by the fact that the declaration that Mr Bajon was liable to supervision was actually made on that date. That order attracted, and enlivened, the powers to make orders under s 269O of the CLCA.
The making of the order, that Mr Bajon was liable to supervision, very arguably crystallised the orders to which Mr Bajon might be subjected. They were the orders provided for by s 269O of the CLCA such that Division 3A would have no effect. It is difficult to see, for example, how it could be said that it was open to the Magistrate on 22 August 2018 to declare that the defendant was liable to supervision by reference to s 269NB(2)(b) (in Division 3A) when an order that the defendant was liable to supervision had already been made on 4 October 2017 pursuant to s 269O. Equally, it is difficult to see how, that order having been made, the other powers conferred by s 269NB(2) can be exercised.
Despite my reservations, I do not reach a final conclusion in that way. Rather, I proceed in the following way. It is common ground that the Magistrate was not empowered to disqualify Mr Bajon from holding a licence pursuant to s 168 of the RTA, because Mr Bajon was not convicted but dealt with under Part 8A of the CLCA. Pursuant to that Part, no conviction is recorded even in the wider sense discussed in Miles v Police.[1] That being the case, the effect is that I must allow the appeal, at least to the extent of setting aside the period of disqualification. As a result, on his release from the period of detention ordered by the Magistrate, there would be no measure to protect the public from Mr Bajon’s driving. The error on the licence disqualification also affects the correctness of the detention order. The failure to appreciate that an alternative order was required to protect the public is an error which vitiates the decision to order home detention.
[1] (2009) 104 SASR 127.
In the interests of justice, I would set aside the order made on 4 October 2017 that Mr Bajon was liable to supervision.
I would exercise the powers under Division 3A liable to supervision pursuant to s 269 and release Mr Bajon on a licence under that Division for the following reasons: the protection afforded to the community by an order for detention pursuant to s 269O of the CLCA is for a short time only because of the need to impose a limiting term. It is in part because of the time-limited nature of a supervision order in the case of summary and minor indictable offences that Division 3A is a useful and innovative addition to the order which a court can make upon a finding of incompetence under Part 8A. It is also useful because protective measures less than detention may often sufficiently protect the community in the case of relatively less serious offences.
In this case the appellant has already spent close to two months in detention. Importantly, I have been informed that a home detention electronic device can detect speed of movement and can therefore alert Mr Bajon’s supervisors if he were to take motorised transport. That technical capability provides an important capacity to protect the public from driving offences of the kind which Mr Bajon has a tendency to commit.
Accordingly, I make the following orders:
1.Order Mr Bajon’s release on licence for a period of three years pursuant to Division 3A.
2.That release on licence is subject to the mandatory conditions in s 269NB(4) of the CLCA that he not possess a firearm or ammunition or any part of a firearm and that he submit to such tests including testing without notice for gunshot residue as may be reasonably required by a police officer or other supervisor under the terms of this agreement.
3.I would also impose the following additional conditions:
· That Mr Bajon does not possess a firearm, or ammunition or any part of a firearm.
· That Mr Bajon submits to tests (including testing without notice) for gunshot residue as may be reasonably required by a police officer or other supervisor under the terms of this agreement.
· That Mr Bajon not consume alcohol or any other drug which is not medically prescribed by a general practitioner or specialist medical practitioner or otherwise legally available and then only at the prescribed or recommended dosage and that he submit to any drug and alcohol testing as directed by any person properly authorised by the Clinical Director for Forensic Mental Health Service and sign all required forms and comply with the requirements of the testing procedures.
· That Mr Bajon be under the supervision of Clinical Director for Forensic Mental Health Service or any psychologist or physician for the period of this order and obey the lawful directions given to him by them.
· That Mr Bajon be under the supervision of the Parole Board for the period of this order and obey the lawful directions given to him by the Home Detention Officer to whom he is assigned.
· That Mr Bajon continue to take such medication as might be prescribed by the director or any medical practitioner authorised by him or her to take medical care of Mr Bajon.
· That Mr Bajon’s case be managed by the Forensic Community Health Team or a community mental health team as seen fit by the Clinical Director for Forensic Mental Health Service.
· That Mr Bajon reside at […].
· That Mr Bajon remain in the home at […] and only leave those premises for his employment, which must be by another person and not self-employment.
· That Mr Bajon wear an electronic transmitter and comply with the rules of electronic monitoring.
· That Mr Bajon notify any Community Corrections Officer assigned to him of the hours of work in which he expects to be employed in the following week.
· Mr Bajon is not to purchase, be in possession of, or drive a motor vehicle for a period of two years from this State.
· That Mr Bajon telephone his Community Corrections Officer, and notify that officer before he travels in any motor vehicle, including private or public transport.