R v Alizada (No 2) - [2018] SASC 192

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v ALIZADA (No 2)
[2018] SASC 192
Reasons for the Order of The Honourable Justice Bampton
17 December 2018
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
The defendant was found not guilty of the offence of attempted murder and declared liable to supervision under Division 4 of Part 8A of the Criminal Law Consolidation Act 1935 (“the CLCA") – an order was made committing the defendant to detention pursuant to s 269O(1)(b) of the CLCA – where the Court must fix a limiting term.
HELD: limiting term fixed of eight years nine months.
Criminal Law Consolidation Act 1935 (SA) s 269O, s 269Q, s 269R, referred to.
R v Behari (2011) 110 SASR 147, applied.
R v Alizada [2018] SASC 157, discussed.

R v ALIZADA (No 2)
[2018] SASC 192
Criminal

BAMPTON J: On 24 September 2018, I made an order committing Mr Alizada to detention pursuant to s 269O(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). I refer to my reasons in R v Alizada.[1] I heard submissions regarding the fixing of a limiting term on 4 December 2018.
[1] [2018] SASC 157.
I have received, in accordance with s 269Q of the CLCA, a report from a psychiatrist regarding Mr Alizada’s diagnosis, prognosis and suggested treatment plan. The report, dated 29 November 2018, was prepared by Mr Alizada’s treating psychiatrist, Dr Cassie Smith, and co-signed by Dr Craig Raeside.
Dr Smith states that Mr Alizada has undergone a thorough assessment of his mental state at James Nash House and, taking into account his response to antipsychotic medication and all available information, Mr Alizada has a diagnosis of a primary psychotic illness: specifically, Treatment Resistant Schizophrenia, in partial remission.
Dr Smith considers that Mr Alizada has demonstrated a limited but encouraging response to antipsychotic medication considering his prolonged period of untreated psychosis. Dr Smith expects that with a trial of Clozapine and further management at James Nash House, Mr Alizada’s mental state will continue to improve.
Following the trial of Clozapine, Mr Alizada will require a further assessment of function and cognition to inform his long-term rehabilitation requirements. Mr Alizada will receive psychoeducation, psychological counselling and support to improve his English communication.
Mr Alizada has repeatedly requested that he be allowed contact with his wife and family. Dr Smith considers that, having regard to the fact Mr Alizada has residual delusional beliefs, his limited understanding of the seriousness of his conduct, and the impact it has had on his family, contact with his family at this stage would likely cause further distress and upset for his wife and children. Dr Smith does not recommend contact with his family until his illness is better treated and his mental state and insight improve.
Dr Smith says that she is prepared to review this recommendation at any stage in the future should Mr Alizada’s family wish to be in contact with him.
Dr Smith concludes that Mr Alizada remains at risk of reoffending due to the presence of ongoing psychotic symptoms and limited insight.
The plan proposed by the forensic mental health team will mitigate Mr Alizada’s risk of reoffending by providing the level of supervision and treatment that he requires at this time.
I have also received a s 269R report – the Victim and Next of Kin Counselling Report. Mrs Alizada suffered nine stab wounds inflicted by Mr Alizada, she required major lifesaving surgery, and spent eight nights in hospital. Mrs Alizada was extremely fearful about returning to her home where the attack occurred. As a result, Mrs Alizada and her three children stayed with a relative following her discharge from hospital. She returned to her home and lived there for 12 months, but reported feeling very fearful at night. She would sleep at a neighbour’s house, and staying in her car during the day while her children were at school. Mrs Alizada and her children now live in a rental property in another suburb.
Mrs Alizada reported that she does not want to see her husband again, and that her children have never asked after him. Mrs Alizada said that she wants Mrs Alizada to be free, but she wants to feel safe and does not consider that she could ever live in the same city if he were to be released into the community.
The limiting term
As Kourakis J, as he then was, said in R v Behari,[2] s 269O(2) of the CLCA requires that the Court fix a term which would have been appropriate if Mr Alizada had been convicted of the offence of which the objective elements have been established, and does not require the exclusion of matters personal to Mr Alizada.
[2] (2011) 110 SASR 147.
Mr Alizada is now aged 42. He was born in Jaghury, Afghanistan.
Mr Alizada explained to Dr Smith that he attended a Muslim school, where students were taught only to read the Quran in Dari. He said that he was not taught other subjects. He left school at the age of 14 and worked for his uncle in a pharmacy. At the age of 15, he left Afghanistan for Iran, where he worked for a period of time in a butcher’s store and in a construction job. From Iran he travelled to Pakistan, where he married in 1999 and undertook a plumbing apprenticeship. His three sons were born in Pakistan. For several years he worked for himself as a plumber. He also worked with his father and brother in Saudi Arabia for two years as a plumber before returning briefly to Pakistan.
Mr Alizada travelled to Australia alone at the age of 34 in 2009, flying to Malaysia, crossing the border into Indonesia and travelling by boat to Australia. He was on the boat for four days when it ran out of petrol. The boat was picked up by the Australian Navy and Mr Alizada was conveyed to Christmas Island, where he remained for three and a half months.
Mr Alizada then returned briefly to Pakistan in August 2010 and then travelled to Adelaide. In Adelaide, he worked in a glasshouse picking tomatoes. His wife and children arrived in Adelaide in July 2015.
Mr Alizada’s family had been in Australia for 14 months when, on 21 September 2016, his wife took him to a general practitioner, who prepared a mental health care plan to refer him to a psychologist. Mrs Alizada had been concerned for some time that Mr Alizada had mental health issues, but he was reluctant to seek assistance. Unfortunately, no interpreter was present at the appointment with the general practitioner and, due to the language barrier, the appointment was not fruitful. Mr Alizada’s stabbing attack on his wife occurred later that evening.
Mr Alizada has no history of criminal offending.
The maximum penalty for attempted murder is life imprisonment.
Mr Alizada was taken into custody on 16 September 2016. He has now spent two years and three months in custody or in detention at James Nash House.
If I were to sentence Mr Alizada for the offence committed by the objective conduct which I have found established beyond reasonable doubt, I would have sentenced him to 11 years’ imprisonment. I would have reduced that period by two years and three months to reflect the time he has been in detention. I therefore fix a limiting term today of eight years and nine months.
[REDACTED].