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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v AM (No 2)

Details

AGLC: R v AM (No 2) [2021] SASC 122
Case: [2021] SASC 122
Decision Date: 3 November 2021

CaseChat Overview and Summary

In the case of R v AM (No 2), AM was charged with attempted murder but pleaded not guilty on the basis of mental impairment. The case was heard in the South Australian Supreme Court, presided over by Justice Cox. The primary legal issues were whether AM was suffering from a mental impairment at the time of the offence, and if so, what the appropriate sentence and conditions for her release should be under the provisions of the Mental Health (Forensic Provisions) Act 1990 (SA).

The court examined psychiatric reports which diagnosed AM with Major Depressive Disorder and an episode of major depression at the time of the offence. The reports also noted her recovery and management with medication and therapy. The court considered the need for rehabilitation and denunciation in setting the limiting term and conditions for AM's release. The judge determined that given the objective seriousness of the offence and the need for rehabilitation, a limiting term of seven years was appropriate, with credit given for the time AM had already spent on bail. The court also outlined specific conditions for AM’s release on licence, including supervision, psychiatric treatment, and restrictions on alcohol and drug use.

Justice Cox fixed a limiting term of seven years and ordered AM’s release on licence subject to conditions that include supervision by the Department for Correctional Services and the South Australian Forensic Mental Health Service, regular psychiatric reviews, adherence to a treatment plan, and restrictions on alcohol and drug use. AM was also prohibited from possessing firearms and leaving the state without permission. The court’s decision balanced the need for punishment and rehabilitation while ensuring the safety of the victim and the community.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NICHOLSON J

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.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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 followingThe 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.