Nadebaum v Police (No 2)

[2020] SASC 23

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

NADEBAUM v POLICE (NO 2)

[2020] SASC 23

Judgment of The Honourable Justice Lovell

17 February 2020

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - NATURE AND CIRCUMSTANCES OF OFFENDER - MENTAL DISORDER

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

The appellant was sentenced in the Magistrates Court to a term of imprisonment for a number of offences committed between 2015 and 2018. The appellant is a person of borderline intelligence and has a psychiatric disability. She appealed against her sentence on the basis that it was manifestly excessive due to errors made by the Magistrate. The appeal was allowed.

The appellant is resentenced to a term of imprisonment of 15 months. The non-parole period is fixed at 8 months. The term of imprisonment is suspended upon the appellant entering into a bond to be of good behaviour for a period of 18 months with certain conditions.

Sentencing Act 2017 (SA) s 3, s 4, s 10, s 26, s 96; Criminal Law Consolidation Act 1935 (SA) s 269C; Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Nadebaum v Police [2019] SASC 102; R v McNamara (2009) 105 SASR 38; Greig v Police [1999] SASC 392, considered.

NADEBAUM v POLICE (NO 2)
[2020] SASC 23

LOVELL J.

Overview

1. Jenna Nadebaum, the appellant, was sentenced in the Magistrates Court to a term of imprisonment of one year, five months and 15 days with a non-parole period of 10 months for various offences committed between 2015 and 2018. The appellant appealed the sentence on the ground that the Magistrate erred by failing to apply the principle of diminished responsibility and by failing to give sufficient weight to the principle of rehabilitation. The appellant submitted that this error resulted in a sentence which was manifestly excessive. I allowed the appeal and heard submissions on resentence. This judgment is the resentencing of the appellant.

   The Offending

2. I refer to the circumstances of the offending as set out in my judgment allowing the appeal.[1]

   Section 269C of the Criminal Law Consolidation Act 1935 (SA)

   [1]    Nadebaum v Police [2019] SASC 102 at [10] - [21].

3. The appeal raised the issue of whether the appellant was mentally competent to commit some of the offences to which she had pleaded guilty.

4. As set out in the appeal judgment, the appellant committed the relevant offending between April 2015 and August 2018.

5. In her report of 20 January 2018, Dr Lim considered that the appellant was not “completely unable” to control her conduct pursuant to s 269C(1)(c) of the Criminal Law Consolidation Act 1935 (SA) and therefore did not support a “mental impairment defence”. The appellant disputed Dr Lim’s opinion and Dr Jennings, who was then the appellant’s treating psychiatrist, prepared a report. In his report of 16 November 2018, Dr Jennings similarly concluded that a mental impairment defence could not be maintained. Against this background, the appellant pleaded guilty to all offences.

6. Both psychiatrists considered the question of whether the appellant was mentally incompetent when committing the offending on the test in the Criminal Law Consolidation Act 1935 (SA) as it was amended on 23 October 2017. The amendment could only apply prospectively.

7. The appellant sought leave to withdraw her pleas of guilty to the offences committed prior to 23 October 2017. I determined that I would hear the parties further on the approach to be adopted to this issue.

8. Following judgment delivery, the appellant was interviewed by Dr Brereton on 19 September 2019. Dr Brereton was asked to comment on the appellant’s mental competence to commit the offences prior to the change in legislation. In his report of 24 October 2019, Dr Brereton concluded:

   … I do not believe Ms Nadebaum has ever had a complete inability to control her actions, and therefore I do not believe she would have a mental incompetence defence available to her. She would have known the nature and quality of her actions, and have been able to reason about their wrongfulness. I also observe that some of the offending does not appear to be related to an explosive loss of temper (not cooperating with police) and some was clearly not related (theft of televisions, approaching someone unprovoked in February 2018).

   In light of this conclusion, the appellant conceded that there was no mental impairment defence and that conviction should remain on all counts.

   Personal Circumstances

9. The appellant is now aged 33. At the time of the offending, the appellant was between 28 - 32 years of age. The appellant’s parents separated when she was 15 months old. Her father re-married and the appellant reported that she suffered poor treatment at the hands of her step-mother. Although she had a reasonable relationship with her mother as a child, their relationship deteriorated as the appellant grew older. The appellant is no longer in communication with her parents.

10. The appellant did not socialise well with other children and displayed aggressive behaviour from a young age. Despite these difficulties, the appellant remarked to Dr Brereton that she viewed her childhood as “generally good”. This is perhaps owing to the strong relationship she shared with her maternal grandparents.

11. At 13 years of age, the appellant was placed in foster care after hitting her mother. Around this time, the appellant was admitted to the Women’s and Children’s Hospital on at least three occasions for angry outbursts and was prescribed Thioridazine, a major tranquilizer. The appellant struggled at school academically and socially. At year 10, the appellant left school and began to live independently.

12. The appellant remarked to Dr Brereton that this is when she first got into trouble with the law. She reported antisocial behaviour such as stealing money, a mobile phone and her grandfather’s car. She was remanded to the Magill Training Centre on five occasions for offensive language, disorderly behaviour and shoplifting.

13. The appellant has had several relationships, the longest lasting for two and a half years. She describes these relationships as abusive and controlling with prominent domestic violence.

14. The appellant has reported using cocaine, heroin, LSD and ecstasy in the past. She has smoked cannabis on a regular basis since the age of 15 and reports using three bags per week.

15. The appellant has lacked stability in her employment. In her mid-twenties, the appellant worked as a sex-worker. In 2013, she commenced a TAFE course in information technology but did not complete it. Before being imprisoned, the appellant sold copies of the Big Issue. Although not currently working, the appellant is making efforts to improve her chances of employment. She is studying an online course in record keeping and office work and regularly sees a job provider. The appellant has stable accommodation in a Housing Trust property.

    Psychiatric Condition

16. In 2013, the appellant’s treating psychiatrist, Dr Jennings, diagnosed her with Intermittent Explosive Disorder (“IED”). IED is characterised by verbal aggression, physical aggression and behavioural outbursts that are grossly disproportionate to the provocation or triggers. The outbursts are not premeditated and are not committed to achieve some tangible objective.

17. In her report of 20 January 2018, Dr Lim disagreed with Dr Jennings’ diagnosis. In Dr Lim’s opinion, the appellant’s history and presentation is consistent with an Antisocial Personality Disorder because of her repeated failure to conform to social norms with respect to lawful behaviours, anti-authoritarian attitudes, impulsivity, irritability and aggressiveness, reckless disregard for safety of self or others and lack of remorse. Further, Dr Lim found that the appellant had borderline personality traits characterised by actual or threats of self-harm, a pattern of unstable interpersonal relationships and emotional dysregulation resulting in inappropriate intense anger or frequent displays of temper. Dr Jennings had the benefit of reading Dr Lim’s report but maintained the diagnosis of IED.

18. In his report of 24 October 2019, Dr Brereton agreed with Dr Lim’s diagnosis, noting that the appellant has a personality disorder with both antisocial and borderline traits. A personality disorder is “a maladaptive pattern of thinking and behaviour that is pervasive and inflexible and manifests across a broad range of personal and social situations”. Thus Dr Brereton said:

    …Ms Nadebaum shows both emotionally unstable borderline type traits (i.e. impulsivity, outbursts of anger, intense unstable relationships, acts of self harm) and antisocial personality traits (i.e. disregard for social norms, low tolerance to frustration, low threshold for discharge of aggression, inability to profit from experience, especially punishment, and a marked proneness to blame others or offer plausible rationalisations for poor behaviour). Ms Nadebaum has shown a range of disturbed behaviour and offending not simply related to explosive, disproportionate anger. A diagnosis of a personality disorder excludes a diagnosis of Intermittent Explosive Disorder, and better explains the clinical picture.

19. Each psychiatrist accepted that the appellant has a very low intellect. A neuropsychological assessment reported her IQ was in the “extremely low average to borderline range”. In Dr Brereton’s opinion, the appellant’s low intellect has contributed to the development of a pattern of behaviour whereby she loses her temper when faced with adversity. Dr Brereton noted that her offending has often (but not always) been secondary to her anger. He neatly summarised the position as follows:

    It is difficult for Ms Nadebaum to control her behaviour but it cannot be said to be outside her control.

    These factors inform the appellant’s risk of recidivism; which Dr Brereton describes as “high”.

20. I accept that the appellant’s case is complex and that the psychiatric diagnoses vary. I prefer the opinion expressed by Dr Brereton and will sentence the appellant on that basis.

21. I accept that the appellant suffers from significant psychiatric conditions, including a propensity to react angrily and disproportionately to perceived conflict. The appellant’s conditions “serve to provide a context and understanding for her offending” even if the extent to which they mitigate her responsibility is limited.

    Pre-sentence Report

22. On 29 November 2019, I ordered a pre-sentence report in respect of the appellant with a focus on what the writer considers would be appropriate supervision. The writer noted three categories of criminogenic factors:

    ·mental health issues (including the demonstration of antisocial and borderline personality traits);

    ·substance misuse (including regular cannabis use); and

    ·overexposure to conflict (a severely disordered personality which does not lend itself to effective conflict resolution).

23. Taking into account the appellant’s personal circumstances and those factors, the writer recommended:

    In direct response to your honour’s question as to what the writer considers appropriate supervision; I believe that a community based order requiring Ms Nadebaum to take measures to manage her anger management issues would be a suitable strategy to manage her forensic risk. This should include drug screening to monitor her cannabis levels and any other drug use, and permit communication with her GP, psychiatrist, or any relevant counsellors to monitor her level of engagement.

    Offending History

24. The appellant has a long offender history dating back to 2004. Without setting out that history in full, I note the following relevant instances.

25. On 10 October 2006, the appellant was convicted of assault and sentenced to 80 hours of community service.

26. On 23 April 2007, the appellant was sentenced for various offending, including assaults, hindering police, disorderly behaviour and theft. For these offences, she was sentenced to 14 weeks imprisonment which was suspended on the condition that she enter into a bond to be of good behaviour for a period of 18 months.

27. On 10 August 2009, on charges of assault, disorderly behaviour, theft and unlawful possession, the appellant was sentenced to eight months imprisonment which was suspended. She was placed on a good behaviour bond of two years.

28. On 24 August 2011, the appellant was convicted of breaching that bond and it was revoked. The appellant was sentenced to a further five months imprisonment for assault (resulting in a 13-month head sentence with a four month non-parole period).

29. On 18 March 2014, on charges of assault and threaten to cause harm, the appellant was sentenced pursuant to Pt 8A of the Criminal Law Consolidation Act 1935 (SA) and released on a conditional licence for a period of one year. The appellant did not breach that licence.

30. In relation to this matter, the appellant was placed on bail on 18 April 2019. She has complied with her bail conditions and abstained from further offending.

    Victim Impact Statements

31. I have considered the victim impact statements of Jennifer Barker, Bridgette Shrestha, Anita McNeill and Jade Gaston who were, on separate occasions, assaulted by the appellant. Clearly the appellant’s offending has had a significant effect on her victims.

    Submissions on Resentence

32. Mr McDonough, counsel for the appellant, concedes that the number and seriousness of some of the offences warrants a term of imprisonment. However, he submits that any sentence should be suspended on the condition that the appellant be subject to a good behaviour bond.

33. Ms Kleinig, counsel for the respondent, submits that a term of imprisonment is warranted. As to how that sentence is served, the respondent is not opposed to a suspended sentence or an intensive correction order. Ms Kleinig submits that, despite the appellant’s good performance on supervised bail and on a previous release on licence, the appellant should not be permitted to serve her sentence in the community without strict conditions.

    Consideration

34. I must sentence the appellant afresh. The appellant is to be sentenced for multiple offences, committed over several years. As such, s 26 of the Sentencing Act 2017 (SA) (“the Act”) is relevant. It provides:

    26—Sentencing for multiple offences

    (1)If a person is to be sentenced by a court for a number of offences, the court may sentence the person to the 1 penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.

    (2)However, if any of the offences for which the person is being sentenced is a prescribed designated offence, subsection (1) does not apply to the sentencing of the person for that offence (but nothing in this subsection affects the operation of subsection (1) in respect of the other offences).

    (3)In this section—

    prescribed designated offence has the same meaning as in section 96.

35. Section 26 is in near identical terms to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (now repealed). In R v McNamara[2],Vanstone J discussed the proper application of s 18A:[3]

    The Court of Criminal Appeal has consistently held that, in applying s 18A of the Sentencing Act, the sentencing judge should, as a general rule, first determine what sentence each separate offence would attract. Then, consideration should be given to whether the sentences would be concurrent or cumulative: R v Major (1998) 70 SASR 488 at 490 (Doyle CJ) and 497 (Olsson J); R v Place (2002) 81 SASR 395 at 432 (Doyle CJ, Prior, Lander and Martin JJ). Following that method has the advantage of exposing the sentencing process to scrutiny by an appellate court… Having said that, I do not suggest that a precise or arithmetical approach is called for. Ultimately, the sentence imposed under s 18A must reflect the total criminality involved: Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 85 per King CJ; R v Siozios (2004) 236 LSJS 88 per Perry J at [4], Doyle CJ agreeing.

    [2] (2009) 105 SASR 38.

    [3]    R v McNamara (2009) 105 SASR 38 at 43 [27].

36. Section 26 of the Act informs the structure of the sentence but not its content. In sentencing the appellant for multiple offences, I must ensure that the total effect of the sentence is not unduly burdensome.[4]

    [4]    Sentencing Act 2017 (SA) s 10(1)(c).

37. I must have regard to the purposes of sentencing a defendant as set out in ss 3 and 4 of the Act. The primary purpose is to protect the safety of the community (whether as individuals or in general). The secondary purposes are to ensure the defendant is punished for the offending behaviour, is held accountable to the community for the offending behaviour, to publicly denounce the offending behaviour, to publicly recognise the harm done to the community and to any victim of the offending behaviour, to deter the defendant and others in the community from committing offences and to promote rehabilitation.

38. A court, when confronted with a defendant suffering from a mental illness, must consider the question of whether the illness is such as to diminish the importance of general and personal deterrence. The appellant’s offending has largely been secondary to her psychiatric condition, particularly her tendency to react angrily to conflict. In such circumstances, there is little utility in imposing a higher sentence for the purposes of general or personal deterrence.

39. The appellant’s offending is serious. On several occasions, she acted violently and without regard to the impact of her actions on those around her. The victims of her offending remain fearful of her and report feelings of anxiety. In my view, the number and seriousness of the offences warrants a term of imprisonment.

40. I note that since being released from custody, the appellant has complied with her bail conditions and has abstained from further offending. The appellant’s personal circumstances are different to those at the time of the offending. She now enjoys stable housing and is taking steps towards gaining employment.

41. I am not bound by the decision of the Magistrate. However, when sentencing afresh, I would not sentence any differently. Thus, I sentence the appellant as follows:

DATE	OFFENCE	SENTENCE BEFORE DISCOUNT
April – July 2015	1.   Theft 2.   Theft	1 month imprisonment­­
11/08/16	1.   Wilful damage	1 month imprisonment
17/10/16	1.   Aggravated assault	8 months imprisonment
	2.   Indecent behaviour
	3.   Wilful damage
14/12/16	1.   Disorderly behaviour	Convicted without further penalty
	2.   Refuse name/address
10/09/17	1.   Aggravated assault	4 months imprisonment
	2.   Threaten to cause harm
	3.   Aggravated assault
18/11/17	1.   Aggravated assault	2 months imprisonment
17/12/17	1.   Offensive language	C1-3: 4 months imprisonment C4: Convicted without further penalty
	2.   Assault
	3.   Wilful damage
	4.   Refuse name/address
22/12/17	1.   Breach bail	Convicted without further penalty
22/02/18	1.   Wilful damage	C1-2: 2 months imprisonment C3: Convicted without further penalty
	2.   Assault
	3.   Refuse name/address
23/02/18	1.   Disorderly behaviour	1 month imprisonment
	2.   Assault
26/04/18	1.   Disorderly behaviour	1 month imprisonment
22/08/18	1.   Wilful damage	C1: 1 month imprisonment C2: Convicted without further penalty
	2.   Refuse name/address

1. The total is 25 months imprisonment. The appellant is entitled to a 30% reduction for her guilty pleas. The result is a head sentence of one year, five months and 15 days. This sentence takes into account the one day the appellant spent in custody before being sentenced.

1. The appellant was in custody in relation to these matters from the 8 March 2019 to 18 April 2019. The appellant must receive credit for time served. To take into account time served and approximately 10 months on bail, I allow two months and 15 days. That leaves a final sentence of 15 months imprisonment. I fix a non-parole period of eight months.

2. The question which then arises is whether the sentence ought to be suspended. Section 96(1) of the Act provides:

   96—Suspension of imprisonment on defendant entering into bond

   (1)Subject to this section, if a court has imposed a sentence of imprisonment on a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—

   (a)to be of good behaviour; and

   (b)to comply with the conditions of the bond referred to in subsection (2); and

   (c)to comply with any other conditions of the bond as the court thinks appropriate and specifies in the bond.

   What constitutes “good reason” for the purposes of this section depends on the circumstances of the case. I note that the respondent is not opposed to the suspension of the sentence and that this is a relevant (but not decisive) factor that I may consider in determining the question of suspension.[5]

   [5]    Greig v Police [1999] SASC 392 at [23].

3. Considering the appellant’s psychiatric condition, change in personal circumstances as well as the recommendations of the pre-sentence report, I find that there is good reason to suspend the sentence.

4. I will suspend the sentence on the condition that the appellant enter a bond to be of good behaviour pursuant to s 96(1) of the Act. The term of the bond is 18 months. In addition to the compulsory firearms conditions, the conditions of the bond are that:

   ·the appellant be under the supervision of a Community Corrections Officer for the term of the bond and comply with any reasonable directions of the Community Corrections Officer;

   ·the appellant attends psychological or psychiatric treatment as reasonably recommended by a Community Corrections Officer; and

   ·the appellant attends violence prevention courses as reasonably recommended by a Community Corrections Officer.

   Order

   1The appellant is sentenced to a term of imprisonment of 15 months.

   2The non-parole period is fixed at 8 months.

   3The term of imprisonment is suspended upon the appellant entering into a bond to be of good behaviour for a period of 18 months with the following conditions:

   ·the appellant be under the supervision of a Community Corrections Officer for the term of the bond and comply with any reasonable directions of the Community Corrections Officer;

   ·the appellant attends psychological or psychiatric treatment as reasonably recommended by a Community Corrections Officer; and

   ·the appellant attends violence prevention courses as reasonably recommended by a Community Corrections Officer.