R v B, T J

[2011] SADC 27

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v B, T J

[2011] SADC 27

Reasons for Sentence of His Honour Judge Tilmouth

11 March 2011

CRIMINAL LAW - PROCEDURE - PLEAS - GENERAL PLEAS - PLEA OF NOT GUILTY

The defendant, before the court on indictable charges, applied for summary charges to be brought into court, to which she intended to enter pleas of not guilty on the grounds of mental incompetence.

Held: The District Court had jurisdiction to entertain the summary charges notwithstanding the pleas of not guilty.

Magistrates Court Act 1983 (SA) s 22; Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) s 5; R v Tennant (No 2) [2010] SASCFC 26; R v Allen (2002) 81 SASR 434; R v Mitrovic (2010) SASCFC 83, referred to.
Tarasenko v Boylen and Attorney-General for South Australia (1992) 58 SASR 587, applied.
R v Adams (1995) 666 SASR 284, discussed.

CRIMINAL LAW - PROCEDURE - PLEAS

DISEASE OF THE MIND, UNFITNESS TO STAND TRIAL

Defendant pleaded not guilty by reason of mental incompetence to multiple charges - court satisfied that accused was mentally unfit to stand trial.  Proper disposition and appropriate limiting term, considered.

Criminal Law Consolidation Act 1935 (SA) s 269O(2), 269T(1); Criminal Law (Sentencing) Act 1988 (SA) s 11(1), s 13; R v McGlynn (2004) 87 SASR 440; Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251; R v Draoui (2008) 101 SASR 267; R v T (1999) 75 SASR 235; R v Wiskich (2000) 207 LSJS 431; R v Grehan (2010) 199 A Crim R 408, [2010] QCA 42; The Queen v O'Loughlin: Ex parte Ralphs (1971) SASR 219, DCCRM-10-1377, referred to.

R v B, T J
[2011] SADC 27

The proceedings

1. The defendant is before the court for the purposes of fixing a limiting term or terms with respect to a number of summary and indictable charges, having earlier been found mentally unfit to stand trial.

   The charges

2. The primary charge before the court is an offence of aggravated serious criminal trespass in a place of residence and an associated aggravated assault, both committed on 27 July 2008.[1] These are laid on one information presented in the September 2009 criminal sessions of the court. To these she entered pleas of not guilty on 28 September 2009, on the grounds of mental incompetence. On these she was declared mentally unfit to stand trial under Part 8A of the Criminal Law Consolidation Act 1935 (SA)[2] in June of 2010.  They carry maximum penalties of life and three years imprisonment respectively.[3]

   [1]    DCCRM-09-1534

   [2]    Hereafter the "CLCA"

   [3] Sections 170(1)& 20(3) CLCA

3. The defendant also faces a series of closely related offences, charged on complainant, mostly breaches of the Domestic Violence Act 1994 (SA), and in addition on a few occasions to be detailed later, other inter-related summary offences. To these she also entered pleas of not guilty on the grounds of mental incompetence on 19 November 2010. It was on the same date that she was declared unfit to stand trial on those charges, and findings were made in respect of all charges after hearing representations from the parties, including admissions by the defendant’s counsel Mr Warburton, that the objective elements in each instance were established and thereupon recording findings to that effect: s 269MB CLCA. The factual bases relevant to each charge is spelt out later in these reasons. At the same time she was for a second time declared to be liable to supervision under Part 8A: s 269MB(2) CLCA.

4. This case features all the hallmarks of a prolonged classic “Catch-22” situation.  Equally it involves a systemic failure to deal with the underlying problem, which emerges in the following way.

   Background facts

5. Prior to these offences the defendant who is now aged 38, was without blemish – she had no prior offender history whatsoever.  She is described in numerous reports obtained by the court, as having extensive and multiple admissions into James Nash House and other psychiatric institutions and who has at many times including the present, received intensive psychiatric care.  At one point in late 2009 she was homeless.  Her mental history seems to emanate from mild post-natal depression following the birth of her son in April 2005, although it appears she may have suffered a form of chronic fatigue sickness as early as 1997.  She is diagnosed as suffering an “unspecified personality disorder” and “well documented episodes of depression” for which she is prescribed anti-depressant medication and undertaking cognitive behavioural therapy.  Her multiple problems are characterised by “childlike demeanour and conversation” and “age inappropriate patterns of behaviour”.

6. She formed a relationship with the father of her child, who left her a month before his birth.  For two years or so thereafter she attempted to raise him with difficulty.  It appears tolerably clear that she voluntarily surrendered him to Families SA, although she denies that now.  Her belief was that he would go into foster-care and that she would be accorded weekly visiting rights.  As it happened the boy was placed in the care of his father.  It is from this fall of events – whatever the underlying merits - that all her subsequent difficulties with the law emanate.

7. The defendant has plainly found it troublesome to adjust to, or accept this arrangement.  Consequent anger and frustration have produced maladaptive responses.  It has instilled in her a continuing and pervading deep-seated sense of injustice.  In August 2007 Dr Stephens noted “drastic changes … in her behaviour … characterised by extreme anger at not having access to her son”.  This so happens to coincide with the commencement of her problems with the law.  She is now in such a position that she is unable to see the child.  This stark reality lies at the very core of her legal problems.  It is abundantly clear that until a solution to the impasse is found, she is likely to endure the same unresolved anger that has dogged her for so long.

   Domestic violence restraining order

8. The sorry saga commences with a summons issued out of the Adelaide Magistrates Court seeking a domestic violence restraining order against her, granted on 3 September 2007.[4]  An order was made for two years.  It included provisions that she not attend within 100 m of the place of residence of her child and his father (order 3), and that she was not to “contact, harass, threaten or intimidate” them (order 4).  However the order permitted limited contact, essentially confined to court proceedings (order 5).  The foundation for these orders was a complaint by the father that in February 2007 and again in August 2007, the defendant had either intruded into his flat or attending on numerous occasions, telephoned him frequently and generally made a nuisance of herself.

   [4]    DCCRM-10-1370, AMC-07-12249

   The charges

9. Just two days after being made, she fell in breach of the order by going to the subject home, in the late evening of 5 September 2007. It was a rather benign incident in that all she did was knock on the door and call out “I’m going to hospital”. She told the police that she went to the home in order to see her son. For this she was charged with the offence of failing to comply with a domestic violence restraining order, contrary to s 15(1) of the Domestic Violence Act 1994 (SA).[5]  An offence is committed under that section whenever a person “contravenes or fails to comply” with such orders, for which a penalty of up to two years imprisonment applies.

   [5]    DCCRM-10-1379, AMC-07-12401

10. Ten days later on September 15, she repeatedly telephoned the father’s mobile over a period of 12 hours, threatening to come and take her son.  She sent something like 30 or 40 text messages in the same period and dispatched no less than four taxis, plus a pizza delivery man to the home.  This brought her into a second breach of the domestic violence order for which she was also charged.[6]

    [6]    DCCRM-10-1378, AMC-07-13135

11. But four days thereafter (19 September 2007) she drove into the driveway of the subject residence, conversed with a witness, stating that she wished to take her son.  Although she departed immediately, she repeatedly drove past the property sounding a car horn.  She was quite frank when spoken to by the police, admitting only a desire to collect her son’s clothes and toys, even though she understood she was restrained from doing so.  This constituted a third breach of the restraining order.

12. Barely little more than a month afterwards at about 8pm on the evening of 23 October she again visited the child’s home, knocking on the front door.  She was encouraged to leave, which she apparently did.  Police officers attended her unit the following day.  When she eventually opened the door, she was arrested for yet another breach of the domestic violence order.  Unfortunately she resisted arrest by grabbing the shirt of an officer which was torn, and she continued to resist until restrained with handcuffs.[7]  Following these events she was detained under the Mental Health Act 2009 (SA) and left in the care of hospital staff at the Flinders Medical Centre. It is unclear for how long the detention order remained in force, however the minimum period is seven days and the maximum is 42: Mental Health Act ss 21(4) and 25(6).

    [7]    DCCRM-10-1369, AMC-07-16242

13. As a consequence she was charged with resisting arrest, thus attracting a potential penalty of a fine or up to six months imprisonment under s 6(2) of the Summary Offences Act 1953 (SA). She was also charged with intending to damage property contrary to s 85(3) of the CLCA, which then carried a maximum penalty of 18 months imprisonment.  This apparently relates to the torn shirt, but just why an attempt was charged is not at all clear.

14. Thereafter she managed to keep herself out of trouble so far as the criminal law was concerned until the evening of 9 November 2007.  She again went to her former partner’s home and knocked on the front door, but that was all.  The police were called.  She confirmed once again, knowing she was not supposed to be there.  This resulted in another breach of the domestic violence order.[8]

    [8]    DCCRM-10-1375, AMC 07-16284

15. Just a little less than a month later (7 December 2007) she attended a child care centre at Norwood to see her son.  This visit prompted yet another charge of breaching the domestic violence order.[9]  She told the police she went there because no-one had arranged anything regarding access to the child.  She spoke of wanting an agreement which would enable her to see her son.

    [9]    DCCRM-10-1380, AMC-07-17387

16. The next step in this tortured chronology is 27 July 2008 when the aggravated trespass and assault mentioned at the very commencement of these remarks were committed.  In addition the events of that day resulted in two charges of breaching the domestic violence order, the precise particulars of which are unclear, particularly when one charge would have sufficed.  In all probability each related to perceived breaches in the one course of conduct of the separate orders 3 and 4.

17. On this occasion a Sunday evening at around 8.30 pm, the defendant went to the home, once again looking for her son, who was then 3 ½ years old.  She knocked on the door which her former partner opened, entered by pushing past him, grabbed his hair whilst declaring “you’re going to lose [the boy] you’re going to get charged”.  Two occupants managed to remove her through the front door out of the house before calling the police.  Minutes later she smashed a glass panel on the front door, making her way back inside, where she tried to grab her son.  When she was told the police had been called, she left.

18. There was a second period of relative calm until 17 April 2009, when she telephoned her former partner in the evening merely to ask “when am I going to see my son”.  This led to charges of breaching condition 4 of the domestic violence order and of failing to comply with her bail conditions.[10]  The following evening she again went to the house and rang the front doorbell once again resulting in one charge of breaching to the domestic violence order and one count of breaching her bail.[11]

    [10]   DCCRM-10-1376, AMC-09-6665, counts 1 and 2

    [11]   DCCRM-10-1376, AMC-09-6665 counts 3 and 4

19. Virtually a month later at 6:50pm on 16 May 2009, the defendant went to the same home, shouted through a window, before commencing to push an object against some blinds.  For these events of 16 May she was charged with breaching the Domestic Violence Act, one count of breaching s 17 of the Bail Act 1985 (SA) and an attempt to damage property.[12]  There were further charges of damaging property contrary to s 85(3) of the CLCA, of the failure to comply with the bail agreement for events occurring on 17 May 2009.[13]  These were at the grandmother’s home when she cut a kitchen window screen causing about $400 damage attempting to gain entry.

    [12]   DCCRM-10-1376, AMC counts 5, 6 and 7

    [13]   DCCRM-10-1381, AMC-10-1593, counts 8 and 9

20. A fresh domestic violence order in similar terms to the first was made on 24 November 2009, probably because the former had expired.[14]  It was extended amongst other things to prohibit SMS and e-mail contact and with the paternal grandparents of her son.

    [14]   DCCRM-10-1371, AMC-09-14637

21. We come then to 22 and 28 January 2010.  The defendant was charged in each instance with further breaches of the second domestic violence order by contacting her former partner by telephone.[15]  She also faced a charge of failing to comply with a bail agreement by failing to reside at the original bail address on 29 January 2010.[16]  She faced identical charges in two instances related to 2 and 5 February 2010 by failing to comply with the bail agreement requiring her to attend at the Adelaide Community Corrections.[17]  She said that she so failed because of confusion with dates, a state of affairs amply supported by the material before the court.

    [15]   DCCRM-10-1382, AMC 10-867, counts 1 and 2

    [16]   DCCRM-10-1381, AMC-10-1593

    [17]   DDCRM-10-1381, AMC-10-1593, count 3

22. In the result, apart from the two indictable charges presented in this court, the defendant faces 13 summary counts of breaching domestic violence orders, seven of failing to comply with bail agreements, one of resisting arrest, three counts of intending to damage property, laid on 10 separate complaints.  It can be seen from the bare summary given above, that the subject events are remarkably similar, give or take a few aberrations at times.  Without exception they pivot around visits almost invariably in the early to mid-evening, with the sole motivation of nothing more than a mother wishing to see her child at the forefront of her mind.  Her mental state at those times clearly led to poor decision making in the first place and even poorer responsive decision making in some instances in the second.  None of these offences is motivated by any criminal intent, other than the knowing breach of various court orders.  No doubt her former partner felt harassed and intimidated at times, some more so than others.  They are for the most part pathetic, pitiful, clumsy and forlorn attempts of a grieving mother, trapped in an unresolved situation, unassisted by any agencies to see her child.

    Jurisdiction – summary offences

23. During the course of the hearing counsel for the Director of Public Prosecutions Ms Nelson, raised the question whether the District Court had jurisdiction in relation to the summary matters.  This issue arose when the multiple outstanding Magistrates Court files were called up at the request of the parties.  Ordinarily this practice occurs when the court is seized of an indictable crime for which it is to sentence an offender and who concurrently faces outstanding summary offences to which he or she indicates an intention to plead guilty.

24. This is not quite the situation here, because pleas of not guilty were entered on account of mental incompetence. Thereafter the various report procedures dictated by Part 8A were implemented. As a consequence on 19 November 2010 the defendant was declared unfit to stand trial on those summary matters, pursuant to s 269GB(3)(a) of the CLCA.  The requisite s 269Q & R reports were then ordered.  At a subsequent hearing both counsel more or less conceded the court had jurisdiction.  Even so it is advisable to spell out for the record why the court took a similar view.

25. Judges of the District Court of South Australia are empowered to exercise the jurisdiction, powers and functions of Magistrates, pursuant to s 22 of the Magistrates Court Act 1983 (SA). Similar powers are vested by s 5 of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA). As King CJ pointed out (with the concurrence of Mullighan J) in Tarasenko v Boylen and Attorney-General for South Australia,[18] these several powers contemplate both that a judge may sit either in a lower court, or in the court to which he or she was appointed, and exercise summary jurisdiction in either.

    [18] (1992) 58 SASR 587 at 591

26. As the Chief Justice reasoned, the facultative effect of s 22 of the Magistrates Court Act is very broad.[19]

    The section seems to me moreover to have a wider operation. It enables the judge to exercise the jurisdiction powers or functions of a magistrate by sitting in the Magistrates Court, but it goes further than that. It does not limit the means by which a judge may exercise the jurisdiction powers and functions of a magistrate, to sitting as the Magistrates Court. The language of the section is apt to confer on the District Court judge, while sitting as the District Court, the jurisdiction powers and functions of a magistrate. As the jurisdiction powers or functions of a magistrate include the jurisdiction powers or functions which he enjoys in sitting as the Magistrates Court, it follows that the District Court judge sitting as the District Court may exercise the jurisdiction powers or functions of the Magistrates Court.

    The operation of s 22 of the Magistrates Act is, for relevant purposes, twofold. It empowers the judge to sit in the Magistrates Court as though he were a magistrate and to exercise the jurisdiction powers and functions of a magistrate therein. It also enables him, while sitting in his own court and exercising the jurisdiction of that court, to exercise the jurisdiction powers or functions of a magistrate including those which the magistrate could exercise when sitting as the Magistrates Court.

    [19] (1992) 58 SASR 587 at 590

27. Tarasenko has been applied liberally since in a wide variety of situations.  For example in R v Adams,[20] the Court of Criminal Appeal held that in light of a Parliamentary intention designed to render the jurisdiction of the District Court more flexible, a person could be tried in the District Court by a judge and jury for both an indictable and summary offences at the one time.  The same conclusion was reached in R v Tennant (No 2).[21]The above sections have moreover been employed to uphold judges exercising jurisdiction, to enforce breaches of bonds imposed in summary courts: R v Allen,[22] and to make orders breaching bonds on the basis of the subsequent commission of summary offences: R v Mitrovic.[23]  Given these authorities there can be no doubt the court enjoys the jurisdiction to entertain these summary matters, despite the apparent departure from the “usual” course of events.

    [20] (1995) 666 SASR 284

    [21] [2010] SASCFC 26

    [22] (2002) 81 SASR 434

    [23] (2010) SASCFC 83

    The appropriate limiting term

28. The court must now consider the appropriate limiting term or terms: R v McGlynn.[24] The precise requirement of s 269O(2) of the CLCA is to fix a limiting term:

    … equivalent to the period of imprisonment … (or the aggregate period of imprisonment …) that would, in the court’s opinion, have been appropriate if the defendant had been convicted of the offence …

    [24] (2004) 87 SASR 440

1. In so doing the court is required to conform with the considerations set out in s 269T(1) of the CLCA:

   269T—Matters to which court is to have regard

   (1)     In deciding proceedings under this Division, the court should have regard to—

   (a)     the nature of the defendant's mental impairment; and

   (b)whether the defendant is, or would if released be, likely to endanger another person, or other persons generally; and

   (c)whether there are adequate resources available for the treatment and support of the defendant in the community; and

   (d)whether the defendant is likely to comply with the conditions of a licence; and

   (e)     other matters that the court thinks relevant.

2. In this exercise the court is prohibited from taking into account the fact that the defendant is a person of diminished responsibility at the time of the offending: Question of Law Reserved (No 1 of 1997).[25]The defendant’s acknowledgement of the objective facts of the offences does not serve to reduce the limiting term otherwise appropriate, as it would with an early plea of guilty: R v Draoui.[26]The purpose of a limiting term is not to penalise.  A limiting term is designed to both protect the public and to secure for the defendant such supervision and treatment as is available and appropriate to the circumstances of her case:  R v T,[27] R v Draoui.[28]  On the other hand in a case such as this, personal deterrence has little role to fulfil: R v Wiskich,[29] R v Grehan.[30]  She does however need to understand that she cannot continue to take the law into her own hands, so far as the access issue is concerned.

   [25] (1997) 70 SASR 251

   [26] (2008) 101 SASR 267

   [27] (1999) 75 SASR 235

   [28]   Above

   [29] (2000) 207 LSJS 431 at 457-458

   [30] (2010) 199 A Crim R 408, [2010] QCA 42

3. The defendant herself is out of work. At times she has lived in the community under supervision, treatment and medication. She left school aged 17 and held employment as a career until 1996 when she collapsed at work. It was this incident that led to the chronic fatigue syndrome related earlier. It is clear as it can be that being reunited with her son has dominated and controlled her life for upwards of four years now. As stated earlier she has no earlier criminal antecedents. It is quite apparent that she has no capacity to pay fines which might otherwise in some instances be appropriate penalties: s 13 Criminal Law (Sentencing) Act 1988 (SA). Given the nature of her complex mental problems, the sole precipitating cause of her indiscretions and the resources presently available to her for treatment and support in the community, it is likely she will comply with the conditions of her licence, and unlikely she will endanger her former partner again. That fact that no further incursion of consequence have occurred since May 2009, attests to that conclusion.

4. The gist of the charge of aggravated trespass on 27 July 2008, lies in the fact that when she entered the premises she knew her former partner was inside.  It is further aggravated by the fact that she was subject to an order restraining her from attending there in the first place.  These particulars of aggravation are co-extensive with the failure to comply with the domestic violence order and in the case of the assault (count 2) the fact that her victim was her former de facto partner.  The charge of aggravated assault derives from pulling his hair.  Accordingly the two summary charges of breaking the domestic violence order on both counts will be dismissed without conviction as involving double punishment: The Queen v O’Loughlin: Ex parte Ralphs.[31]  As the charges were part of the one incident, set however in the context of a series of earlier unauthorised visits, it is appropriate to impose one single penalty.  In all the circumstances an appropriate limiting term is one of 26 months in relation to those two indictable offences.

   [31]   The Queen v O'Loughlin: Ex parte Ralphs (1971) SASR 219, DCCRM-10-1377

5. Turning then to the summary files, in view of the sentence just imposed and in view of the time the defendant has spent in James House Nash and in other institutions, quite apart from the detention order under the Mental Health Act on 24 October 2007, all summary charges of breaching the Domestic Violence Act and failing to comply with bail agreements, will be dismissed without conviction.[32]  The two counts of failing to comply with the bail agreements entered into on 2 and 5 February 2010 stand to be dismissed without conviction in any event, because of the strong likelihood as revealed in multiple papers before the court of confusion or forgetfulness.[33]  The charges of failing to comply with domestic violence orders on 5 September 2007, 23 October 2007, 9 November 2007, 7 December 2007 and 17 and 18 April 2009, despite their repeated nature were lame and non-intrusive, so they would deservedly merit dismissal without conviction anyway: s 16(b)(i) & (ii) Criminal Law (Sentencing) Act.

   [32]   DCCRM-10-1369 count 1, DCCRM-10-1375 count 1, DCCRM-10-1376 counts 1, 3 and 5, DCCRM-10-1377 counts 1 and 2, DCCRM-10-1378 counts 1 and 2, DCRM-10-1379 count 1,  DCCRM-10-1380 count 1, and DCCRM-10-1382 counts 1 and 2.

   [33]   DCCRM-10-1381, AMC-10-1593, counts 1 and 2

6. Matters stand slightly differently when it comes to events which became more serious than mere unobtrusive visits to the subject home.  The reports before the court demonstrate that through frustration and angst arising from the inability to see her son, there is an element of wilfulness in her actions, acknowledged in most instances by admissions afterwards to the police that she realised she should not be attending at the house or attempting to make contact.  As noted in one report she must better recognise that “her behavioural choices have not helped her achieve her main aim”.

7. It should also be born in mind that these occasions are rather isolated and episodic rather than standard features of repeated offending, so that in those instances it is not appropriate to impose sentences of imprisonment: s 11(1) Criminal Law (Sentencing) Act.  Accordingly in the case of resisting arrest and attempting to damage property during the incidents on 24 October 2007, she will be convicted without further penalty.[34]  Likewise she will be convicted without further penalty with respect to the three counts of intending to damage property, on 24 October 2007 and on 16 and 17 May 2009.[35]  This disposition is in keeping with what both counsel described as the usual course in a Diversion Court setting when sitting in the court of summary jurisdiction in any event.[36]  The extant domestic violence orders will be discharged, these being more appropriately addressed in the conditions of release on licence.

   [34]   DCCRM-10-1369, AMC-07-16242 counts 2 and 3

   [35]   DCCRM-10-1369, AMC-07-16242, count 2, DCCRM-10-1376, AMC-09-6665 counts 7 and 8

   [36]   Transcript 24/2/11 p.4, 21-.31; p.5, 5.37-6.12

   Parting comments

8. It is to be hoped the defendant will eventually achieve her goal of seeing her son once again, but she must do so within the law.  Whatever the conditions of her release on her licence might be, they should not be seen as preventing her from doing so.  It appears from what counsel said from the bar table that at one time she initiated proceedings to that end in the Federal Magistrates Court, but these did not proceed, probably due to lack of legal representation.  It is also to be expected any court exercising the jurisdiction might have been reluctant to make orders before the criminal proceedings were disposed of.  Now that much has been achieved, the door is now hopefully been finally opened for her to take steps in that direction.  Unless and until the access issue is satisfactorily resolved, there is always the risk – one much less likely than it was in May of 2009 when the last of this spate of offences of consequence were committed – that she will succumb to the temptation to seek self-redress once again.  That outcome is as undesirable as the present situation, whilst her legitimate interest in gaining access to her son remains unresolved.

   Formal sentence

9. On the aggravated trespass and assault offences committed on 27 July 2008, one single limiting term of 26 months is set.  The two charges of failing to comply with the domestic violence order arising from the same incident are dismissed without conviction as duplicitous.  The remaining breaches of domestic violence order or bail agreements committed on 5 October, 15, 19 and 24 October, 9 November and 7 December 2007, 17 and 18 April, 16 and 17 May 2009 are dismissed without conviction, for the various reasons stated above.  On the three charges of intending to damage property on 21 October 2007 and 16 and 17 May 2009, and resisting arrest on 24 October 2007, she is convicted without further penalty.  The domestic violence order of 26 November 2009 is varied to the extent that at the commencement of order 6 the following be inserted “Except as otherwise provided for by the Family Court of Australia or the Federal Magistrates Court”.