Peters v Police - [2014] SASC 192

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PETERS v POLICE
[2014] SASC 192
Reasons for Decision of The Honourable Justice Gray
17 December 2014
CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS - VAGRANCY, PROSTITUTION AND KINDRED OFFENCES - DRUNKENNESS IN A PUBLIC PLACE AND HABITUAL DRUNKENNESS
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
Appeal against sentence. The defendant pleaded guilty to offences of inhaling a regulated substance and possessing a regulated substance for the purpose of inhalation. Those offences each carry a maximum penalty of a fine. The defendant also admitted that those offences were in breach of the terms of a bail agreement imposed in relation to an earlier offence of inhaling a regulated substance. In relation to the offences of inhaling a regulated substance and possessing a regulated substance for the purpose of inhalation, the Magistrate recorded convictions but imposed no further penalties. In relation to the offence of breach bail, the Magistrate imposed a sentence of 21 days’ imprisonment, suspended upon the defendant’s entry into a suspended sentence bond.
On the appeal, the police conceded that the term of imprisonment of 21 days for the offence of breach bail exceeded the maximum penalty for the principal offence contrary to section 17(2) of the Bail Act 1985 (SA). An issue arose on the appeal as to whether the offences of inhaling a regulated substance and possessing a regulated substance for the purpose of inhalation were duplicitous. The police sought and were granted leave to withdraw the charge of possessing a regulated substance and the charge of breach of bail agreement. A further issue arose as to the defendant’s mental fitness to plead to the offences. Psychological reports relating to the defendant were obtained.
Held (allowing the appeal):
1. The defendant was mentally unfit to stand trial for the offences of which he was charged.
2. Orders made with the consent of both parties setting aside the convictions and penalties imposed by the Magistrate.
Aboriginal Lands Trust (Yalata Reserve) Regulations 2005 reg 5; Aboriginal Lands Trust Act 2013 (SA) s 49(1); Bail Act 1985 (SA) s 17(2); Criminal Law Consolidation Act 1935 (SA) s 269H; Public Intoxication Act 1984 (SA) s 7(3) and s 16a, referred to.

PETERS v POLICE
[2014] SASC 192
Magistrates Appeals: Criminal
GRAY J.

This is an appeal against sentence.
The defendant and appellant, Amos Ashleigh Peters, pleaded guilty to the offences of inhaling a regulated substance pursuant to regulation 5(a) of the Aboriginal Lands Trust (Yalata Reserve) Regulations 2005 (SA) and of possessing a regulated substance for the purpose of inhalation pursuant to regulation 5(b). Those offences each carry a maximum penalty of a fine in accordance with section 49(1) of the Aboriginal Lands Trust Act 2013 (SA). The defendant also admitted that those offences were in breach of the terms of a bail agreement imposed in relation to an earlier offence of inhaling a regulated substance.
On 2 June 2014, the defendant was sentenced in the Magistrates Court. In relation to the offences against the Yalata Reserve Regulations, the Magistrate recorded convictions but imposed no further penalties. In relation to the offence of breach bail, the Magistrate imposed a sentence of 21 days’ imprisonment. That sentence was suspended upon the defendant’s entry into a 12 month bond requiring compliance with rehabilitation under the supervision of a community corrections officer.
On the appeal, the defendant was represented by the Aboriginal Legal Rights Movement. The defendant submitted that the term of imprisonment of 21 days for the offence of breach bail exceeded the maximum penalty for the principal offence contrary to section 17(2) of the Bail Act 1985 (SA). Section 17 provides:
(1)A person who, without reasonable excuse, contravenes or fails to comply with a term or condition of a bail agreement is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2)A penalty imposed under this section must not exceed the maximum penalty that may be imposed for the principal offence.
(3)A penalty imposed under this section is in addition to any pecuniary forfeiture that the convicted person suffers or may suffer in consequence of the offence.
(4)     A reference in this section to the principal offence is a reference to—
(a)     the offence with which the person released on bail was charged; or
(b)     if that person was charged with a number of offences—that one of the offences that attracts the highest penalty.
[Emphasis added.]
The police conceded that the penalty imposed by the Magistrate was ultra vires. In particular, it was agreed that the maximum penalty available to the Magistrate for the offence of breach bail was a fine, that being the maximum penalty that may be imposed for the principal offence of inhaling a regulated substance. The police consented to the defendant being resentenced by this Court, or the matter being remitted for resentencing by a different Magistrate.
An issue arose on the hearing of the appeal as to whether the two offences against the Yalata Reserve Regulations were duplicitous. The defendant was given leave to amend his notice of appeal to include a complaint that the offences against the Regulations were duplicitous. The police subsequently sought and were granted leave to withdraw the charge of possessing a regulated substance and the charge of breach bail. In relation to the charge of possessing a regulated substance, the Court was informed that the police conceded that the rule equivalent to a plea in bar of autrefois convict that applies in summary proceedings would have been applicable upon the Magistrate accepting a guilty plea to the charge of inhaling a regulated substance. The police submitted that the withdrawal of the charge of breach bail reflected the police’s view that the defendant could still appropriately be dealt with for his conduct if a single charge only were to proceed, namely, the charge of inhaling a regulated substance.
A further issue arose on the hearing of the appeal as to the defendant’s mental fitness to plead to the offences. The matter was adjourned to enable enquiries to be made as to the existence of any pre-sentence reports, Parole Board reports or medical reports relating to the defendant.
Background
The defendant was born on 30 April 1984 and was aged 30 years at the time of the hearing of the appeal. He resides in the Yalata community about 200 kilometres northwest of Ceduna, and also at times with relatives in the Tjuntjuntjara Community, a large Aboriginal community 550 kilometres east of Kalgoorlie in Western Australia.
On 29 April 2014, the defendant was arrested and charged with an offence of inhaling a regulated substance, namely petrol, on the Yalata Reserve. He was granted police bail at the Yalata Police Station. A condition of that bail agreement stated that the defendant was to reside in the Tjuntjuntjara Community in an effort to break the cycle of petrol sniffing.
The offences the subject of this appeal related to the defendant’s conduct on 1 June 2014. At about 11.00 am, police officers attended the Yalata Community in relation to an alleged petrol sniffer in an abandoned building on Middle Street. The police officers located the defendant hiding in a shower cubicle with a can of petrol to his nose and a bottle of petrol in his hand. The defendant was placed under arrest and charged with an offence of inhaling a regulated substance and possessing a regulated substance for the purpose of inhalation. Police bail was refused and the defendant was remanded in police custody. The defendant was not asked any questions by police as he was under the influence of petrol.
On 2 June 2014, the matter was listed for an application for bail in the Elizabeth Magistrates Court. Defence counsel appeared by telephone link from the Ceduna Police Station, where the defendant was being held in custody. The Court was informed that the defendant wanted to plead guilty to the charges before the Court. Defence counsel indicated that he did not have written instructions to plead guilty, but that he was satisfied and confident in the defendant’s clear oral instructions to plead guilty, having been adequately advised as to his legal rights and interests. The prosecutor outlined the circumstances of the offending and the defendant’s prior offending history. The Magistrate then imposed the earlier referred to penalty.
The Appeal
As earlier noted, having reviewed the documents on the appeal, it appeared to me that an issue arose as to whether the defendant was mentally competent to plead to the offences. In particular, I was concerned that, despite the defendant’s evidently lengthy history of petrol sniffing, the consequent impact upon his cognitive functioning did not appear to have been considered by defence counsel, the prosecutor, or the sentencing Magistrate. As earlier mentioned, I adjourned the matter to enable enquiries to be made as to whether any pre-sentence reports, Parole Board reports or medical reports had been prepared in relation to the defendant’s prior criminal offending.
Section 269H of the Criminal Law Consolidation Act 1935 (SA) provides:
A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is—
(a)unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b)unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c)unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
This Court was provided with a pre-sentence report dated 13 September 2007 and relating to offences committed by the defendant of theft and interfering with a motor vehicle without owner’s consent. The author noted that the defendant’s father passed away when he was young. The defendant was raised by his mother and has one older sister, both of whom reside in Yalata. The author was informed that the defendant’s upbringing lacked guidance, as he was often left to his own devices in the community. The defendant left school in grade 7 at the approximate age of 14 years. The defendant’s primary language is Pitjantjatjara. The author noted that the defendant can understand the English language, but appears to have difficulty articulating his responses in a manner other than providing “yes” or “no” answers. The defendant has virtually no literacy or numeracy skills. The author expressed the following opinion:
The subject offences and prior offending history indicate poor impulse control and an inability to think clearly may be the prominent criminogenic need and the writer suspects Mr Peters may have significant underlying organic brain damage perhaps related to his long history of petrol sniffing. Formal psychometric testing and a psychiatric assessment may be useful to define the extent of his organic brain damage and improve his functional state however this would be exceptionally difficult to organise given his usual place of residence in Yalata Aboriginal Community.
The Court was also provided with a copy of a pre-sentence report dated 19 September 2013 relating to earlier offences of petrol sniffing committed by the defendant. The author commented that the defendant’s criminogenic needs are related to his dependency on alcohol and petrol sniffing. It was noted that these addictions are difficult to address due to neither substance being illegal and both being readily available from the defendant’s social network. The report further noted that little is known about the effect that petrol sniffing has had on the defendant’s cognitive or mental ability.
Following the receipt of the above reports, I granted a further adjournment in order to enable an additional psychological report to be prepared. In particular, I indicated that any report should address the effects of petrol sniffing on the defendant’s cognitive functioning.
The Court received a report from Dr Jack White, a psychologist, dated 27 October 2014. Dr White assessed the defendant on 9 October and 23 October 2014 and administered a number of psychological tests. Dr White reported:
3.2 What were Mr Peters’ Cognitive Problems?
The preliminary neuropsychological screening suggested that there was evidence of cognitive l impairment in relation to higher order problem solving tasks.
The intellectual assessment indicated that Mr Peters was in the ‘Intellectual Disability’ (i.e. IQ<70) range of ‘intelligence’ and around the 0.3rd percentile of the age equivalent population.
3.3 What were Mr Peters’ Clinical Problems?
Mr Peters’ main clinical issues related to ‘Social Withdrawal’ and ‘Alienation’.
He experienced significant problems with social detachment and discomfort in close relationships and had little apparent interest or investment in social interactions. He may be seen by others as cold, unfeeling, and unable to display affection or commit to personal relationships.
Mr Peters felt unsupported and treated unfairly by others.
3.4 What was Mr Peters’ Legal situation regarding ‘Fitness’
The current assessment indicated that Mr Peters had a mental impairment in the form of an intellectual disability …
According to s269a of the legislation this impairment is defined in 269a (b) as specifically relevant.
Dr White concluded:
In relation to the questions of ‘fitness’ relevant to the legislation (Section 269H) it is asked that as a consequence of his “mental impairment” is Mr Peters’ mental processes so impaired that he is:
1. Unable to understand the charges or allegations,
2. Unable to respond rationally to the charges or allegations,
3. Unable to exercise procedural rights,
4. Unable to understand the nature of the proceedings,
5. Unable to follow the evidence,
6. Unable to follow the course of the proceedings.
In relation to his current legal matter, it is unclear as to the extent to which he understands his current charges. He reports not having a lawyer, which may not be an accurate judgement. He has limited awareness of his capacity to communicate with his lawyer. He has no clear understanding of his procedural rights, nor is he aware of the basic proceedings in the Court. It is doubtful that he would be able to follow the evidence or the course of the proceedings.
In my opinion, because of his limited intellectual function and his lack of English language skills, Mr Peters would (on the balance of probabilities) be “unfit” and lacks the capacity to satisfy specific criteria related to section 269 H.
[Emphasis added.]
The Court also received a report from Dr Anthea Krieg, a medical practitioner practicing in the area of social health in Ceduna, dated 29 October 2014. Dr Krieg reviewed the defendant’s medical records and reports, and undertook conversations with staff from local services including the Ceduna District Health Service, Drug and Alcohol Services of South Australia, Country Health Mental Health Services, Wangka Wilurrara Transitional Accommodation Centre, Tullawon Health Services, Yalata Police and Ceduna Koonibba Health Services. Dr Krieg also interviewed the defendant on two occasions in October 2014. Dr Krieg reported that the defendant was cooperative and pleasant, and displayed no signs of irritability or agitation.
Medical records from the Tullawon Health Service at Yalata note that the defendant commenced petrol sniffing in 1998 at the age of 13. He is documented to have displayed self-harming behaviour in 2008 by attempting to hang himself. At the time, he was reportedly intoxicated and became angry when friends refused to share their alcohol with him. In August 2010, the defendant was assessed as having a psychotic episode in the context of petrol sniffing and was commenced on antipsychotic medication. His medical notes report that he responded well to olanzapine and his psychosis resolved rapidly. Also in 2010, questions were raised by health staff about possible neurocognitive deficits as a result of petrol sniffing. On 12 July 2014, the defendant was transferred from Yalata to Ceduna Hospital by police following concerns about suicidal ideation. The defendant had been sniffing petrol and expressed to a police officer that he wanted to die and that that was why he continued to sniff petrol. Once in Ceduna, the defendant was referred for a mental health assessment but declined to follow-up and discharged himself from care.
Dr Krieg further reported that, over the past ten years, the defendant has had three admissions to Ceduna Hospital in total – once in 2008 for self-harm in the context of petrol sniffing, once in 2009 for an alcohol-related seizure and the recent episode of suicidal ideation. Family members and service providers had reported that when the defendant is affected by alcohol or petrol, he is often irritable and aggressive, and can be frightening to be around. The service providers also indicated that the defendant’s pattern is to sniff petrol while at Yalata and to drink alcohol while in Ceduna. The defendant has recently been identified as a vulnerable person under the Vulnerable People’s Framework in Ceduna. The Framework was set up partially in response to the recommendations of the 2011 “Sleeping Rough” Inquest into Aboriginal deaths in the Ceduna area.
Dr Krieg concluded that, overall, the defendant is fit and well. He has no chronic diseases, although he has experienced episodic gastritis associated with alcohol use. He does not show any physical neurological deficits on basic screening. However, Dr Krieg reported that the defendant remains at significant risk as a consequence of his long-term heavy episodic petrol sniffing and alcohol use.
I am satisfied on the basis of the reports of Dr White and Dr Krieg that the defendant was mentally unfit to stand trial for the offences of which he was charged. In particular, I am satisfied that he was unable to understand, or to rationally respond to, the charges or the allegations on which those charges were based. I am further satisfied that the defendant was unable to understand the obligations and restrictions placed upon him by the bail agreement. With the consent of both parties, I made orders setting aside the convictions and penalty imposed by the Magistrate.
The Legislative History
Notwithstanding the above orders, the police indicated that it would be beneficial for the Court to provide direction and comments regarding the problems faced in the Ceduna and Yalata communities concerning the defendant and other Aboriginal persons in similar circumstances.
Problems associated with excessive intoxication at Yalata were the subject of an article published by the Australian National University Northern Australian Research Unit in 1984.[1] A response by the Government was the passing in 1984 of amendments to the Aboriginal Lands Trust Act 1966 (SA).[2] Section 16a of that Act applied the Public Intoxication Act 1984 (SA) to Aboriginal Lands Trust lands, upon proclamation of particular Lands Trust lands. The Yalata Reserve was duly proclaimed for this purpose. However, the lack of any appropriate holdings cells at Yalata meant that it was not initially feasible to implement the legislation.
[1] Maggie Brady and Kingsley Palmer, Alcohol in the Outback: Two Studies of Drinking (Australian National University Northern Australian Research Unit, 1984).
[2] The current power is conferred by Part 6 of the Aboriginal Lands Trust Act 2013 (SA).

The Public Intoxication Act allows for police to detain a person that is in a public place and, because of their intoxication, is unable to take proper care for himself. Section 7(3) of the Act provides that a person that has been detained in this manner must be taken as soon as reasonably practicable to their residence, a police station or a sobering up centre for admission as a patient.
In 2002, the then State Coroner conducted inquests into the deaths of petrol sniffers on the Anangu Pitjantjatjara Yankunytjatjara Lands. He recommended that petrol be declared a drug to which the Public Intoxication Act applies and that the Act be amended to apply on the Anangu Pitjantjatjara Yankunytjatjara Lands. In 2004, in accordance with the recommendations of the inquest, petrol was gazetted as being a drug to which the Act applied.
Counsel appearing for the defendant on the appeal indicated from the bar table that petrol sniffing was relatively less prevalent in Yalata as compared to, for example, the Anangu Pitjantjatjara Yankunytjatjara Lands. Instead, problems associated with alcohol consumption had been a greater issue in Yalata. The Court was further informed that the defendant’s offending was drawn to the attention of authorities by members of the local community, who were concerned about the defendant’s tendency to negatively influence younger members of the community. In these circumstances, it can be readily understood that police are placed in an invidious position when they are called to deal with the defendant’s offending.
Counsel for the police informed the Court that she had had conversations with four police officers from Ceduna Police Station and the Eyre and Western Local Service Area who have had frequent dealings with the defendant and other members of the Aboriginal community in these areas. The Court was informed that the sobering up unit at Ceduna has been substantially upgraded as a result of the 2011 “Sleeping Rough” Inquest. The unit was declared as a place approved by the Minister for the purpose of section 7(3)(b) of the Public Intoxication Act by Gazette on 1 November 2012. However, counsel for the police submitted that, if the defendant were detected with petrol in Yalata, it would be impractical to convey him to Ceduna, given the distance between Yalata and Ceduna.
The Court was informed that the Yalata Police Station is a new complex and that all cells meet the requirements needed for detention under the Public Intoxication Act. The Court was also informed that the defendant has been approved as a high priority for entry into the new detox rehabilitation centre at Port Augusta.
Ultimately, the approach to be taken in dealing with persons involved in petrol sniffing at Yalata will be a matter within the discretion of the relevant police officer. However, it may be suggested that one option to consider is detention in accordance with the Public Intoxication Act. That approach would have the advantage of enabling the person under the influence of drugs or alcohol to be detained without requiring them to be charged with an offence.