R v AM (No 2) - [2021] SASC 122

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

R v AM (No 2)
[2021] SASC 122
Reasons for the Order of the Honourable Justice Nicholson
3 November 2021
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC
The defendant was found not guilty of one count of attempted murder by reason of mental incompetence. A declaration was made that the defendant be liable for supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA) (the Act) and an order was made that the defendant be released on licence pursuant to s 269O(1)(b)(ii) of the Act.
Held:
1. A limiting term of seven years is fixed pursuant to s 269O(2) of the Act.
2. The defendant is to be released on licence subject to conditions.
Criminal Law Consolidation Act 1935 (SA) s 269O(2), referred to.

R v AM (No 2)
[2021] SASC 122
Criminal
NICHOLSON J.
Introduction

On 1 June 2021, I found AM not guilty of the attempted murder of her son, L, by reason of mental incompetence.[1] As a consequence, I made a declaration that AM be liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA) (the Act). It is now necessary for me to set a limiting term for that supervision, to be determined pursuant to subsection 269O(2) of the Act.
[1] R v AM [2021] SASC 64.
In my earlier reasons, I summarised the conduct of AM which constituted the objective element of the offence as follows.
[O]n 26 August 2018, AM administered to her 11 year old son, L, an overdose of the prescription drug Temazepam. She also administered to herself a prescription drug overdose and cut her wrists and neck in an apparent suicide attempt. Both were discovered by AM’s mother on the morning of 27 August 2018 in barely responsive states. There is evidence that AM was having great difficulty in coping, as a single mother, with the care of L as a consequence of her mental health problems and L’s severe behavioural difficulties. L suffers from Autism Spectrum Disorder, Asperger’s Syndrome and Attention Deficit Hyperactivity Disorder.
AM admitted committing the physical actions perpetrated against L but pleaded not guilty to attempted murder. The three psychiatric reports,[2] before me at the previous hearing held to determine whether or not the defence of mental incompetence had been made out, were summarised at some length in my earlier reasons. It is sufficient to repeat the following
The three reports provide comprehensive investigations into and analyses of AM’s mental state as at the time of the conduct in question. Each psychiatrist expressed the opinion that AM suffered from a Major Depressive Disorder and episode at the time she engaged in the conduct in question. Major Depressive Disorder is a recognised mental illness falling within the definition of mental impairment as provided for in subsection 269A(1) and, as such, satisfies the requirement in the chapeau to section 269C that AM was, at the time, “suffering from a mental impairment”.
[2] One by Dr Harry Hustig, dated 29 March 2020, one by Dr Chris Branson, dated 8 October 2020 and one by Dr Narain Nambiar, dated 18 January 2021.
The parties’ submissions and general consideration
On 7 September 2021, I heard submissions from the parties. By then I had received an additional report provided by Dr Nambiar pursuant to sections 269Q and 269T of the Act (dated 9 August 2021) and a victim and next of kin report provided by Ms Anna D’Alessandro pursuant to section 269R (dated 6 September 2021).
According to Dr Nambiar, AM has a history of depressive episodes, including the major depressive episode which she experienced at the time of the offending. He was of the opinion that AM has recovered from that episode of major depression and is now well managed with medication and supportive therapy. AM has also been diagnosed with an obsessive compulsive disorder and concurrent borderline personality disorder. Borderline personality disorder is an enduring pattern of: instability in the regulating of emotions; unstable interpersonal relationships and sense of self; high levels of anxiety; and heightened emotions that can give rise to maladaptive behaviours. Borderline personality disorder is an enduring condition which can improve over time with maturity and coping strategies gained in therapy in order to obtain more adaptive ways to manage stress. Major depression is a remitting and recurring condition with the risk of relapse being mitigated by regular medication. Cognitive therapies and supportive therapies also can provide protection from relapse. Dr Nambiar is supportive of AM’s continued recovery in the community and this was part of his suggested treatment plan.
Ms D’Alessandro contacted a supervisor at the Department for Child Protection (DCP) who in turn provided a written statement. The supervisor explained that, from a DCP perspective, court stipulations regarding conditions to protect L are not required. L was said to be confused and upset by the offending, although relieved that AM will not be incarcerated. L was said to love his mother very much. The offending appears to have exacerbated a fixation with death which has had an impact on his social relationships. The most significant consequence for L has been his removal from AM’s care. Due to his disability needs he was unable to remain with his grandparents, and he now resides in residential care. This is very difficult for L, who wishes to live with AM and her partner. At present, there is a system in place of regular supervised contract. L is now 14 and getting to an age where contact with his mother can increase and, perhaps, on a less restrictive basis.
The prosecutor submitted that the offending was a significant attempt on a young, vulnerable child in the care of AM and could have resulted in his death. I repeat what I said in my earlier reasons.
AM admitted to a nurse that she gave L about 20 tablets containing Temazepam. She admitted to a police officer that she administered 30 such tablets and told another doctor that it was about 20 such tablets. The empty packaging in close proximity to AM and L indicated that 10 mg tablets had been available. … The administration of something between 20 and 30 10 mg tablets is consistent with Professor White’s toxicology results. It suggests that L was given approximately 200-300 mg whereas the usual adult dose is 5-20 mg. There is no prescribed dosage for children.
… [T]he concentration of Temazepam, at its peak, in L’s system was 15.6 mg per litre of blood; a very high concentration. Professor White also expressed the opinion that while deaths from Temazepam overdose were rare they are possible. This level of concentration has been found in a small number of adult fatalities.
The prosecution has not submitted that AM should be detained in a secure facility. Rather, it is agreed by both parties that the medical recommendation for release on licence should be accepted. That is my position as well.
From the time AM was discovered on 27 August 2018 until 7 December 2018, AM spent time in hospital under police guard, at James Nash House, and at the Adelaide Women’s Prison (three months and 12 days). On 7 December 2018, AM was granted home detention bail (two years and seven months). On 8 July 2021, I varied AM’s bail conditions to that of simple bail, on which she remains (two months and two days). Both parties agree that I should take into account time spent in custody when setting a limiting term. Further, I have a discretion to also take time spent on home detention bail into account.
In R v Behari,[3] Kourakis J provided the following helpful observations pertinent to the setting of a limiting term.
It follows, in my view, that in fixing a limiting term the court must proceed as if it is sentencing for an offence constituted by the objective elements it has found but where it has been left in ignorance of the mental state of the accused. It can neither reduce the limiting term by reason of diminished responsibility nor increase it by reason of callous premeditation or disregard for the suffering of the victims. In that way, fixing a limiting term will not be plagued by the difficulty of ascertaining the relevant guilty mental state to which I have referred, nor will the period during which the psychiatric care is provided be reduced on account of diminished responsibility arising out of the very mental condition which requires treatment.
. . . .
However, exclusion of any consideration of the mental element of a defendant, which is necessary by reason of the very nature of the function of fixing a limiting term, does not require exclusion of his or her antecedents. The family and social circumstances and previous good character of a defendant are distinct matters which must still be taken into account.
In my view, time spent in custody must also be taken into account. The fact that a defendant has been kept in a particular psychiatric institution after his or her arrest does not mean that period on remand cannot be taken into account. The fact that a defendant has been detained prior to sentencing is a distinct consideration from his or her subjective responsibility for the offending conduct. Persons suffering from a mental impairment sufficient to require incarceration in a psychiatric institution may nonetheless be found mentally fit and competent and ultimately guilty of a criminal offence. The period spent in custody by them may be, and often is, taken into account even though, depending on the circumstances, the weight it is given might vary.
[3] [2011] SASC 111 at [14], [16]-[17].
I remind myself that the task before me is to set a limiting term which, according to subsection 269O(2) of the Act, is to be a term “equivalent to the period of imprisonment ... that would in the Court’s opinion have been appropriate if [AM] had been convicted of the offence of which the objective elements have been established”. There is the following “note” to subsection 269O(2).
The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant's mental impairment.
Whilst the “note” does not form part of the statute, it does, in my view, properly convey the meaning or effect of subsection 269O(2).
AM’s personal circumstances have been canvassed at length in the psychiatric reports. She is now 48 years old and has been living with her partner since her release from custody in December 2018. AM was born and brought up in country South Australia. Her father was a Vietnam veteran whom AM described as moody, became angry when he drank, suffered from depression and PTSD and was difficult to be around. AM described her parents as very strict and that she was often physically disciplined. AM went to the same school where both parents taught; as such, her father always knew what she was up to. After leaving school, AM lived a somewhat itinerant lifestyle. She experienced high levels of anxiety which caused her difficulty with relationships. AM had steady employment with Centrelink between 1992 and 2014. L was born in 2007; his father left the relationship when L was ten weeks old. AM has brought up L as a single mother with assistance from her parents since 2008. It was not long before L was diagnosed with the serious behavioural conditions earlier referred to. There is no doubt that AM has had a very difficult life.
In the circumstances of this matter when setting a limiting term, punishment and deterrence (both general and specific) are not of significance. However, denunciation, and in particular, rehabilitation, are very important considerations.
Conclusion and limiting term
In all the circumstances and having regard in particular to the objective seriousness of AM’s conduct together with the need for a term that will assist with and promote rehabilitation, I start with a limiting term of eight years.
AM was taken into custody on 27 September 2018. After two months and eleven days in custody she was granted home detention bail on 7 December 2018. She remained on home detention bail until 8 July 2021 (two years, seven months and two days). Since then, she has spent three months and 13 days on simple bail. I allow credit of one year with respect to the time spent in custody and home detention bail. I fix a limiting term of seven years to commence today.
I order that AM be released on licence pursuant to subsection 269O(1)(b)(ii) subject to the following conditions, as agreed by the parties.
1.That during the period of her release on licence, the defendant be under the supervision of an Officer of the Department for Correctional Services appointed by the Parole Board of South Australia and obey all lawful directions of her supervising Officer with respect to non-medical matters.
2.That the defendant be under the care of the Clinical Director (the Director) of the South Australian Forensic Mental Health Service (FMHS) or a consultant psychiatrist nominated by him, and obey all directions given to her from time to time with regard to medical and psychiatric treatment and medication; and further that she be psychiatrically reviewed on a regular basis as directed by the Director or the nominee.
3.That the defendant continue to receive her medication current at the date of this order as required by the Director or his nominee and further that no alteration or reduction of such medication occur without the approval of the Director or his nominee.
4.That the defendant comply in every respect with the treatment plan prepared and in force from time to time pursuant to section 269Q(2) of the Act.
5.That the defendant reside where directed by her Community Corrections Officer.
6.That the defendant submit to random screening of her blood at the direction of the Director or the nominee, to ensure compliance with medication.
7.That the applicant be permitted to drink alcohol provided that she seeks permission to do so from her consultant psychiatrist or her key worker, with the stipulation that she shall not become intoxicated. For the purpose of this condition, intoxication shall be defined as having an alcohol level exceeding 0.05 grams in each 100 mls of blood.
8.That the defendant not use, possess or administer any drug which is not medically prescribed by a legally qualified medical practitioner, and further that any drugs which are prescribed be possessed or administered only at the prescribed or recommended doses.
9.That the defendant, at the request of her Community Corrections Officer, submit to random breath analysis and/or urinalysis for the purpose of determining whether there is present in her body any illicit or non-prescribed drug, or alcohol.
10.That the defendant not depart or attempt to depart from the State of South Australia without the express written permission of the Parole Board.
11.That the defendant not possess a firearm, ammunition or any part of a firearm.
12.That the defendant submit to tests, including testing without notice, for gunshot residue.