R v Bartholomaeus - [2006] SASC 13

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v BARTHOLOMAEUS
Reasons for Decision of The Honourable Justice Layton
20 January 2006
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
Defendant pleaded not guilty by reason of mental incompetence to charges of attempted murder, two counts of creating risk of bodily harm, one count of damaging property and one count of assault of a police officer - offences occurred over a one month period - defendant admitted objective elements of all offences - finding that on the balance of probabilities the defendant was mentally incompetent at the time of the offending - defendant declared liable to supervision under Part 8A of the Criminal Law Consolidation Act - consideration of sentencing factors relevant to fixing a limiting term required by s 269O - consideration of whether defendant should be released on licence - Held: on basis of s 269Q report not appropriate to release defendant on licence at present time - supervision order pursuant to s 269O(1)(b) made committing defendant to detention - limiting term of 9 years fixed.
Criminal Law Consolidation Act 1935 s 11, s 21, s 29(1)(3), s 85(3), s 269A, s 269B, s 269C, s 269FA, s 269FB, s 269Q, s 269R, s 269S, s269T, s 269O, s 269P, s 270A; Criminal Law (Sentencing) Act 1988 s 18A, s 10; Summary Procedures Act 1921 s 102(4); Summary Offences Act 1953 s 6(1); Mental Health Act 1993 s 23, referred to.
R v McGlynn (2004) 87 SASR 440; R v Place (2002) 81 SASR 395; R v Symonds [1999] SASC 217; R v T (1999) 75 SASR 235; R v Weiss [2005] SASC 338, considered.

R v BARTHOLOMAEUS
[2006] SASC 13

LAYTON J: This matter concerns the sentencing of the defendant for crimes committed in circumstances in which I have previously declared that he was mentally incompetent at the time of the commission of the offences. It also concerns whether an order should be made at this point for his release into the community on licence.
The defendant, Simon Peter Bartholomaeus, was charged with a number of serious offences occurring in the period between 23 May 2004 and 2 July 2004.
The first of the offences occurred on 23 May 2004 near Warnertown in the State of South Australia when Mr Bartholomaeus was charged with 2 counts of endangering life contrary to section 29(1) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) when Mr Bartholomaeus drove his car at the vehicle of Barry Ronald Wakefield and an unknown person driving a red Commodore.
He was further charged with two counts of creating risk of bodily harm contrary to s 29(3) of the Act against Barry Ronald Wakefield and the unknown driver of the red Commodore. These charges were originally heard in the District Court then transferred, with the consent of the parties, to the Supreme Court…

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 Bartholomaeus

Details

AGLC: R v Bartholomaeus [2006] SASC 13
Case: [2006] SASC 13
Decision Date: 20 January 2006

CaseChat Overview and Summary

In the case of R v Bartholomaeus, the defendant faced a series of charges including attempted murder, endangering life, creating a risk of bodily harm, damaging property, and assaulting a police officer. The defendant pleaded not guilty by reason of mental incompetence, admitting to the objective elements of the offences. The case was heard in the Supreme Court of South Australia, where the issue of the defendant's mental competence was rigorously examined through psychiatric evaluations and expert opinions.

The legal issues before the court involved determining whether the defendant was mentally incompetent at the time of the offending, and if so, what appropriate measures should be taken under the Criminal Law Consolidation Act 1935 (SA). Specifically, the court had to decide on the appropriate limiting term for a supervision order under Part 8A of the Act and whether the defendant should be released on licence. The court also needed to consider the maximum penalties for each offence and the relevant sentencing factors without considering the defendant's mental impairment.

In its reasoning, the court found that on the balance of probabilities, the defendant was mentally incompetent at the time of the offences. The court considered the psychiatric reports and the maximum penalties for each offence. It also took into account factors such as general and personal deterrence, the circumstances of the offending, and the defendant's background. Ultimately, the court determined that it was not appropriate to release the defendant on licence at that time, and thus, a supervision order was made committing the defendant to detention with a limiting term of 9 years. This decision was made in accordance with the statutory provisions and relevant case law.

The final orders included a declaration of mental incompetence and the imposition of a supervision order under s 269O(1)(b) of the Criminal Law Consolidation Act, with a limiting term of 9 years. The defendant was not released on licence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Within hours of Mr Bartholomaeus’ arrest for this latter offence, he was further charged with one count of damaging property on 2 July 2004, being a cell door at the Holden Hill Police Station contrary to s 85(3) of the Act. He was also charged on the same day with one count of assaulting a police officer, Constable Mark Howie in the execution of his duties contrary to s 6(1) of the Summary Offences Act1953 (SA). These charges were originally before the Holden Hill Magistrates Court and were transferred at the request of the parties to the Supreme Court to be heard by myself in conjunction with the other charges against Mr Bartholomaeus.Background After the defence of mental incompetence was raised, in relation to the offence of attempted murder the defendant, through his counsel, elected to have his trial dealt with by a judge sitting alone, pursuant to s 269B of the Act, with the trial on the mental competence of the defendant to proceed first.[1] [1] s 269F. On 17 October 2005 after medical reports had been received from a number of doctors including three psychiatrists Doctors Begg, Czechowicz and Raeside, the Director of Public Prosecutions (“the DPP”) properly conceded that Mr Bartholomaeus was not mentally competent to commit the offence of attempted murder at the time of the offending pursuant to s 269C (a) (b) and s 269FA(3) of the Act. The matter was adjourned in order to transfer the other two files concerning Mr Bartholomaeus, namely the District Court file (SCCRM-05-285), being the charges of endangering life and creating risk of bodily harm and the Magistrates Court file (SCCRM-05-284) concerning damaging property and assault of a police officer, before me so that I could hear all three matters together. When the matter resumed on 19 October 2005 I heard submissions on all three files. With regards to the charges of endangering life and creating risk of bodily harm committed on 23 May 2004, the DPP indicated on 19 October 2005 at the hearing before me, that counts 2 and 4 were alternatives to counts 1 and 3. The DPP conceded that on the basis of the psychiatric reports that Mr Bartholomaeus was not mentally competent to commit counts 1 and 3, namely the two counts of endangering life. Counsel for Mr Bartholomaeus conceded on his behalf that the objective elements of those two offences were established beyond a reasonable doubt. I adjourned the matter with regard to the charges of damaging property and assaulting a police officer committed on 2 July 2004 and ordered addendum reports from Doctors Begg, Czechowicz and Raeside as to their opinion on the mental competence of Mr Bartholomaeus at the time of the offences. With regards to the charges of attempted murder and the alternative count of wounding with intent to do grievous bodily harm, Mr Bartholomaeus was arraigned on count 1 of attempted murder and entered a plea of not guilty.Declarations under s 269 At the 19 October 2005 hearing I made certain declarations following the entering of not guilty pleas by reason of mental incompetence. I declared that upon the agreement of the DPP and Mr Bartholomaeus through his counsel that Mr Bartholomaeus was mentally incompetent to commit the two offences of endangering life on 23 May 2004 and the offence of attempted murder on 1 July 2004 within the meaning of s 269C of the Act.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

On 20 December 2005, after receiving the ordered reports from the treating psychiatrist and the victim and next of kin reports, I heard submissions from the DPP and defence counsel as to the appropriate limiting term to be fixed. Sentencing considerations Under s 269O of the Act I must fix a limiting term when making a supervision order under Part 8A. A supervision order may include committing the defendant to detention or releasing the defendant on licence and determining what conditions are appropriate if he is released. The limiting term is for a period in which the supervision order I make is to operate, however a supervision order may be revoked or varied at any time during the limiting term.[2] A limiting term is that which is equivalent to the duration of imprisonment or supervision if Mr Bartholomaeus had been convicted of the offences but is not a form of punishment.[3] [2] s 269P; R v T (1999) 75 SASR 235; R v Weiss [2005] SASC 338; R v McGlynn (2004) 87 SASR 440.[3] R v Weiss [2005] SASC 338. Under s 269O(2), the Act determines that when fixing a limiting term I am to make reference to the sentence that would have been imposed had Mr Bartholomaeus been found guilty of the offence. This is to be considered without regard to Mr Bartholomaeus’ mental impairment. Note 1 of s 269O requires the Court to fix a limiting term “by reference to the sentence that would have been imposed”. In R v T, [4] Doyle CJ considered that this may include matters such as general and personal deterrence as it is,appropriate for the [j]udge to have regard to all matters that would usually be relevant to the fixing of a sentence for the offence, but not to have regard to matters that were based upon or arose out of [the] mental impairment.[4] (1999) 75 SASR 235 at 242. Therefore in order to set the limiting term and in order to take into account those matters which would normally be relevant when sentencing, it is necessary for me to set out relevant facts and circumstances of the offending; including the maximum penalties for each of the offences and to have regard to these and other relevant matters referred to in s 10 of the Criminal Law (Sentencing) Act 1988 (SA) when fixing the limiting term.The Offences and the Maximum Penalty for Each of the Offences The maximum penalties for each of the offences are as follows: 1.For endangering life contrary to s 29 (1) of the Act the maximum term is a term of imprisonment not exceeding 15 years. 2.For the offence of attempted murder contrary to s 11 and s 270A of the Act the maximum penalty is life imprisonment.3.For the offence of damaging the property of another where the damage amounts to not more than $2,500 contrary to s 85 (3) (a) (iii) of the Act the maximum is imprisonment for 2 years.4.For the offence of assaulting a police officer in the execution of the officer’s duty the maximum penalty is $10,000 or imprisonment for 2 years pursuant to s 6(1) of the Summary Offences Act 1953 (SA).Mr Bartholomaeus At the time of the offences Mr Bartholomaeus was 33 years of age. He is the eldest of four children. His parents separated in his early childhood. He has a strong relationship with his mother and while growing up he saw his biological father infrequently when he returned home for short periods after driving trucks.