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…
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- AGLC
- R v Bartholomaeus [2006] SASC 13
- Case
- [2006] SASC 13
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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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.