R v Adrian Bennet Pipitone
[2014] ACTSC 318
•27 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Adrian Bennet Pipitone |
Citation: | [2014] ACTSC 318 |
Hearing Date(s): | 7, 17 February 2014, 3 April 2014, 14 May 2014, 27 August 2014 |
DecisionDate: | 27 August 2014 |
Before: | Refshauge J |
Decision: | 1. Adrian Bennet Pipitone be convicted of damaging property on 17 June 2013. 2. Adrian Bennet Pipitone be required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of twelve months, with the following conditions: (a) a probation condition that he be subject to supervision of the Director‑General, or a person delegated by her, for twelve months, and obey all reasonable directions of the person delegated to supervise him, such directions to be made only in consultation with the Public Advocate in respect of treatment and counselling for drug and alcohol use, treatment and counselling for his mental illness, including psychoeducation about his schizophrenic disorder and vocational or other training; and (b) that he consent to any provider of treatment and counselling services for drug and alcohol use that he may be directed to access and ACT Mental Health Services providing to the Public Advocate and the person delegated to supervise him any information as to his compliance with and progress on treatment and counselling that they may provide. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentencing Damaging property – Mental illness involved in offender’s criminality – Mental illness reduced offender’s moral culpability as distinct from his legal culpability |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Criminal Code 2002 (ACT), s 403 |
Cases Cited: | Halden v The Queen (1983) 9 A Crim R 30 |
Parties: | The Queen (Crown) Adrian Bennet Pipitone (Offender) |
Representation: | Counsel Mr D Sahu Khan (Crown) Mr J De Bruin (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid (ACT) (Offender) | |
File Number(s): | SCC 110 of 2013 |
Refshauge J:
Adrian Bennet Pipitone has been a consumer of Mental Health Services for many years. He has a diagnosis of chronic paranoid schizophrenia, which has led him into trouble in various ways in the past. His mental health is exacerbated by his illicit drug use, which has become a drug dependence and which may be currently a greater cause of trouble to him and the community.
The facts
On 4 March 2013, Mr Pipitone was admitted to the Brian Hennessey Rehabilitation Centre. It was while there that the offence to which he has now pleaded guilty was committed.
On 17 June 2013, he had just finished a visit with his mother without incident when he returned to his room but, in doing so, along the main corridor used his feet to kick the internal plaster wall. Two large holes resulted in the plaster wall and pieces of broken plaster landed on the floor. He was told to calm down and go to his room, but he was yelling and screaming at staff, yelling statements such as “I will kill you” towards staff members, though he walked down the corridor towards his room.
Along the way, however, he kicked the plaster internal walls again about ten to fifteen times, causing damage to the wall in the form of about thirteen large holes. He walked into his room and closed the door, but staff members heard banging and yelling in his room, and later observed six large holes in the internal plaster wall of his room.
Later, police attended at the Centre and Mr Pipitone explained to them, “I got a bit angry and kicked some holes in the walls”. He was arrested and placed in handcuffs as a result of his violent behaviour.
He was remanded in custody until he was granted bail by this Court on 14 September 2013. Since then, attempts have been made to provide a plan for Mr Pipitone so that he can live supported in the community. That has taken some time.
The offence of damaging property is an offence under s 403 of the Criminal Code 2002 (ACT), which provides for a maximum penalty of 1,000 penalty units (at the time, a fine of $100,000, or imprisonment for ten years, or both. It is a serious offence, therefore, and needs to be dealt with by the Court seriously.
It is important to recognise that public property, such as the Brian Hennessey Rehabilitation Centre, is important for other members of the community, particularly those with mental health challenges, and the court cannot ignore that destruction and damage to that property has a flow-on effect to other users of the facility.
It is clear, however, that Mr Pipitone’s mental challenges are very significantly involved in his criminality. I refer to the principles set out by the Victorian Court of Appeal in R v Verdins (2007) 16 VR 269 at 276; [32].
In part, it seems to me that Mr Pipitone’s mental illness reduces his moral culpability for the offence as distinct from his legal responsibility. There needs, however, to be some response, both to meet the needs of general deterrence, but also specific deterrence showing to Mr Pipitone that this behaviour is unacceptable and cannot be tolerated.
Subjective circumstances
Mr Pipitone is forty years old. He lives in a one-bedroom flat in Reid, and is subject to a guardianship order, which has been extended now to the middle of next year. He is also subject to a treatment order.
The Public Advocate, who has been appointed guardian of Mr Pipitone, has rallied a number of supports for Mr Pipitone. Principal is the assistance provided by a Commonwealth funded agency, Partners in Recovery, which can provide daily assistance to Mr Pipitone, in particular helping him to attend appointments and ensuring that he accesses the other services that he needs from time to time.
Mr Pipitone has been a patient of local mental health services since the onset of his mental illness. A number of approaches to the management of his mental health challenges have been tried over time, including a variety of oral anti-psychotic medications and several types of long-acting injections. At times, these have been augmented or supplemented by benzodiazepines and, occasionally, an anti-depressant. A major contributor, as I have said, to the difficulty in managing Mr Pipitone’s illness has been a lack of insight into the harm that illicit substances do to his mental state and corresponding absence of motivation to change his behaviour with respect to his abuse of those substances.
He has been on a psychiatric treatment order continuously, or effectively so, since 2008. Those treatment orders have been able to ensure compliance with long-acting injectable medications, but not to ensure compliance with oral medication or to stop his habitual substance abuse, even when he has been an in-patient of the Mental Health Services. The result has been a chronically chaotic lifestyle and the admission to hospital for stabilisation from time to time. It is in that context that I need to identify how best to respond, both in terms of the criminal justice system, but also to support the possibility of Mr Pipitone managing within the community.
Reliance was placed particularly on a mental health report by Dr Richard Gray, who has been assisting Mr Pipitone since about May 2014. Mr Pipitone was then apprehended by police officers because he was running in traffic and was considered to be at risk to himself. His bail was then breached because of a positive return of urinalysis to cannabis, which was contrary to his bail conditions requiring him to refrain from using cannabis.
Mr Pipitone has a relatively short criminal history, which is perhaps surprising for one with the challenges and chaotic lifestyle that he has experienced. They all are traffic offences since 1992, the most serious being driving at a speed dangerous, for which he was fined $400. However, on 4 December 2012 he was charged with possessing a drug of dependence and, on 7 February 2014, was convicted but released on a good behaviour order.
Consideration
Damaging property is a serious offence, but it is committed in a variety of ways, as Murphy J said in Halden v The Queen (1983) 9 A Crim R 30 at 38-9. The value of the damage actually done and the property that was damaged is important, and I have described that and commented on that earlier, but the personal circumstances of the offender must also be taken into account.
Mr Pipitone pleaded guilty in the Magistrates Court on 1 August 2013 and was committed to this Court. That is an early plea and entitles him to a discount on the penalty that is to be imposed.
One of the options that was suggested for Mr Pipitone is a residential drug and alcohol facility, but he refuses to go to such a facility. It would be possible for me to mandate that as a condition of a good behaviour order, or as an option for him to choose, instead of a custodial sentence. Indeed, it has been suggested that it is only in custody that he is able to manage his chaotic lifestyle and bring it into order. It seems to me, however, that mandating treatment in this case is inappropriate.
We do know from research that mandated treatment can be of assistance to offenders from time to time, but, in Mr Pipitone’s case, I am satisfied that that is likely to set him up to fail, which will not be of any benefit to him or to the community. I consider, therefore, that we are not yet at the stage where I need to impose a custodial sentence on him in order to ensure that he accesses the services and, in particular, the drug and alcohol assistance that he needs.
I note, in particular, that he has effectively been under order of the court, similar to a deferred sentence order, since he was arrested and, in this Court, since he was committed for sentence, has been subject to supervision and control while the appropriate plan is prepared for him. That amounts, it seems to me, to something over fifteen months when he has been under a degree of intensive supervision and during that time has not committed any further offending for which he has been charged. That is an important matter and needs to be taken into account.
Dr Gray has recommended a strict regime of strategies in the community. He has made a number of suggestions, on which I will briefly comment. He suggested that Mr Pipitone be required to be supervised by Probation and Parole, which ensures that he undergoes frequent drug screening for use of illicit substances and that, if that drug screening is positive for such substances, he be breached by Probation and Parole and returned to court. It seems to me that it is appropriate that he be under supervision and I will recommend that there be appropriate drug screening.
Dr Gray also suggested that I should order that Mr Pipitone be assessed for treatment at an approved health facility which could assess his mental state and institute treatment. He is currently under the care of ACT Mental Health Services, and I do not consider that I need to require him to attend an approved health facility for assessment or diagnosis. It seems to me, however, that directions as to treatment and counselling for his mental health is an important element in the order that I should make.
Dr Gray also recommended that I consider requiring him to undergo an assessment with a view to admission to a residential drug and alcohol rehabilitation facility. He noted that it would have to be a facility that was not so intense as to overwhelm Mr Pipitone and that Canberra Recovery Services conduct such a program. I have given anxious thought to that but, in my judgment, Mr Pipitone is not at a stage where I should give up on the possibility of continued treatment within the community, particularly with the support networks that he now has. He must understand, however, that residential rehabilitation, whether in custody or not, may become an option if he does not commit himself to the assistance that will be provided through the order that I will make.
Dr Gray said that if Mr Pipitone was not assessed as suitable or, presumably, if I chose not to make such an order, then Mr Pipitone co-operate with the regime of counselling, monitoring and support that includes regular, he suggested daily, contact with at least one of a number of agencies that was specified. It seems to me that I should not mandate that regime to that degree of specificity, but I should ensure that the support networks with ACT Corrective Services and the Public Advocate would be sufficient for the purpose. He recommended also that in those circumstances he undertake regular urinalysis and his medication as prescribed, and I will make appropriate directions in relation to that.
He recommended that Mr Pipitone be reviewed regularly by a psychiatrist and, again, I think that is a good recommendation and I will encourage those agencies that are participating in his support to consider that, but will leave that to the flexibility of directions. He recommended that Mr Pipitone receive psychoeducation about his schizophrenic disorder and his polysubstance dependence, and I will include that in the order that I make. He also recommended that he be allowed to attend vocational or other training, noting that Mr Pipitone has some skill and interest in computer hardware and information and communication technology. That would increase the opportunities for some employment.
I do not consider, however, that I can do all of these things, but will try to incorporate, as much as possible, into a structure where those who are providing the assistance to Mr Pipitone can continue to do so with, nevertheless, the encouragement, perhaps enforcement, of a good behaviour order as the structure to implement that.
I heard from the Public Advocate, who is, as I have noted, presently Mr Pipitone’s guardian, and it is clear that she has a good understanding of his needs and the available supports that are required and how they might be marshalled to assist Mr Pipitone to be a stable member of the community. Mental Health Services have also ably responded to the assistance requested by the Court and understand the need for participation in a case management conference as soon as possible with other agencies so as to arrange for a case management plan for Mr Pipitone. Those agencies would include at least the Public Advocate, ACT Corrective Services, Partners in Recovery, and an appropriate drug and alcohol agency to map out that plan.
It seems to me that this is the best way forward. The elements of the plan are clear, but the actual implementation of it is still to be explored and established and needs some flexibility to meet the exigencies of the particular circumstances as Mr Pipitone settles in to the regime that will be established as a result. I do not consider, however, that I should provide a more structured arrangement nor that the sentencing of Mr Pipitone should be further delayed pending an implementation of the plan that is proposed. That risks compromising the opportunity for him to establish proper relationships with the relevant agencies and to settle in to the implementation of the plan.
There is a risk of that and certainly there is no doubt that Mr Pipitone performs better in custody than he has recently in the community, but he cannot be institutionalised for the rest of his life, and it seems to me that it is proper to take the opportunity now to see if the supports that can be put in place will be able to establish a pattern of behaviour and activity for Mr Pipitone and, in particular, address his drug misuse so that he does not come to the attention of the courts in the future.
I take into account his plea of guilty. I take into account the seriousness of the offence, but also the fact that it was clearly influenced by his mental illness. I take into account his subjective circumstances.
It was not submitted that I should proceed other than by way of a good behaviour order and I propose to do so. In doing so, and setting the period for that order, I take into account the time he has spent in custody, as I have already referred, and the adjournment of these proceedings from time to time which, as I have said, has acted somewhat like a deferred sentence order.
Mr Pipitone, please stand:
1.I convict you of damaging property on 17 June 2013.
2.I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of twelve months, with the following conditions:
(a) a probation condition that you be subject to supervision of the Director‑General, or a person delegated by her, for twelve months, and obey all reasonable directions of the person delegated to supervise you, such directions to be made only in consultation with the Public Advocate in respect of treatment and counselling for drug and alcohol use, treatment and counselling for your mental illness, including psychoeducation about your schizophrenic disorder and vocational or other training; and
(b) that you consent to any provider of treatment and counselling services for drug and alcohol use that you may be directed to access and ACT Mental Health Services providing to the Public Advocate and the person delegated to supervise you any information as to your compliance with and progress on treatment and counselling that they may provide.
[His Honour then spoke directly to Mr Pipitone]
Now, Mr Pipitone that is a lot of legal words that I have got to say to make the order, but I need to explain to you I have released you now, but it is on a good behaviour order for twelve months. Now, that good behaviour order has a number of conditions. One is that you commit no further offences that are punishable by imprisonment for twelve months. If you commit such an offence, you can be brought back before me and I can deal with that, including sending you to gaol, if that is appropriate.
The second is that you are under supervision. That means you will have a probation officer who will meet with you, and that person will talk to you about how you are going, but will also particularly focus on three things. One is that you need to get into treatment and counselling for your drug use. You have got to stop using drugs. You will need assistance for that and you will talk to someone, an appropriate agency, whether it is the Alcohol and Drug Service or Directions or somewhere else – Arcadia House might be a good place – that might assist you in managing your drug use so that it does not get out of control and make you do stupid things.
If you do not comply with those directions, and they will be made with the assistance of the Public Advocate, who is looking after you and providing you with support and assistance, and if you do not obey and comply with those directions you can be brought back before me and I can punish you for that, including sending you to gaol.
The second one is you have got to keep complying with Mental Health Services. You have been reasonably good about that, but sometimes it has spiralled out of control and you have had to go into hospital. We want to try and avoid that; it is not good for you, it is not good for the community. If you do not comply, if you do not obey your treatment order and your compliance with that, then you can be brought back before me and I can punish you for not complying, including sending you to gaol.
One of the things that I have asked them particularly to do is to do some education so that you understand a bit about your disorder, your schizophrenia, and how you can live with that comfortably. Many people in the community live with that and manage that quite comfortably. There is no reason why you cannot, particularly if you stop using the illicit drugs, the cannabis and so on.
The third is that I want you to use your skills, which I am told you have got, in relation to your knowledge about computers. And that might give you a job, but certainly it might give you some opportunity to do some voluntary work with some agency that would be benefited from your computer skills, and that would be really good for you. If you are directed to do that and do not do that, that is a breach of the order also and you can be brought back before me and I will punish you for not complying with the conditions, and that can include going to gaol.
The other thing is I want everyone to know what is going on, not because your privacy is not important, but it is important for all the agencies that are helping you to understand what is happening. So as a condition of your good behaviour order I have said that you will consent to any drug and alcohol counselling or to Mental Health Services, letting the Public Advocate and Corrective Services know how you are going. Now, that is partly control. You are being punished for what you did and that is what the order is about.
It is controlled so that if you are not complying with those orders you can be brought back before me and I can deal with you, but it is also so that everyone knows what is going on, and hopefully they will not be doing different things that will send you up the wall. They all know what is going on, and then they can provide for you the appropriate assistance and support that you need.
Now, for a forty year old man you have got a very small criminal record. You have obviously had huge challenges in your life with your mental health. It is really bad now that you are into drugs, and you have got to stop that, and that will be hard, but you have got to stop that and you will get assistance to do that.
If you get into more trouble, then unfortunately the courts have to be tougher and tougher as it goes on. Now is your opportunity. You have got some good support around you, you seem to have a good relationship with the Public Advocate, who is doing her best to make sure that you do the right thing and you are kept out of trouble. I am giving you that opportunity. I do not want to lock you up. I do not think that is good for you or for the community, but only if you will co-operate with these people and do the things that they ask you to do and try to stop the drug use.
Now, that is a lot of talking, I am sorry. The sermon is over, but you understand that you are on probation now. You have got a lot of obligations, but you have got a lot of support and assistance. I hope that this will help you to be at large in the community, operating well and not getting into crime and that you can make good use of the skills that you clearly have and that they can be put to good use, which will be satisfying to you and helpful to the community.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge. Associate: Date: 27 January 2015 |