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 for hearing before me pursuant to s 102(4) of the Summary Procedures Act 1921 (SA) on 18 October 2005.
On 1 July 2004, Mr Bartholomaeus was charged with the attempted murder of Gloria Leonie Williams (now Gloria Williams-Dickie) at Northfield contrary to ss 11 and 270A of the Act and in the alternative with one count of wounding with intent to do grievous bodily harm contrary to s 21 of the Act.
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.
I also declared that the objective elements of those offences had been established beyond a reasonable doubt pursuant to s 269FB (2) of the Act.
I declared that Mr Bartholomaeus was liable to supervision under Part 8A of the Act and committed him to detention at the Grove Closed Ward situated at Glenside Hospital where he remains.
I ordered reports pursuant to s 269R being a victim and next of kin report and a s 269Q report being a report as to the mental condition of the defendant and recommendations for future psychiatric management.
On 1 November 2005, the matter came before me again and Mr Bartholomaeus was arraigned on count 1 of damaging property and count 2 of assaulting a police officer in the execution of his duty. Having received addendum reports on the mental competence of Mr Bartholomaeus at the time of the 2 July 2004 offences, and on the concession made by the DPP, I declared that Mr Bartholomaeus was, on the balance of probabilities, mentally incompetent to commit the offences on 2 July 2004. I also declared that the objective elements of the offences had been established beyond a reasonable doubt pursuant to s 269FB (2) of the Act and declared that Mr Bartholomaeus was not guilty of these offences. I further made a declaration that Mr Bartholomaeus be liable to supervision under Part 8A of the Act and s 269R and s 269Q reports were ordered.
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.
Upon finishing high school at Gawler, Mr Bartholomaeus worked for one year and then pursued university studies at Flinders University. He did not complete the first year of studies, preferring instead to enter the workforce.
He was trained as an apprentice and then worked as a belt technician maintaining conveyer belts in Newcastle. He returned to Adelaide at the age of 21. He began working part-time as an aged carer at the Murray Mudge Aged Care Facility at Glenelg.
Mr Bartholomaeus became a user of illicit drugs including marijuana, LSD, amphetamines and magic mushrooms in his early twenties. At the age of 24 he began suffering from mental illness when he developed a manic episode characterised by the paranoid belief that the police were after him, the world was coming to an end and he was the anti-Christ. He was initially diagnosed in 1997 with schizophrenia at Glenside Hospital but his diagnosis has since been established as Bipolar Disorder (Manic). He was placed on Lithium after spending four to six weeks at Glenside. He stopped taking this medication after six months due to its depressive effects and his suicidal thoughts.
At the age of 26, Mr Bartholomaeus suffered another manic episode whilst residing in Brisbane. He had not been sleeping and had increased his use of marijuana prior to this episode. He returned to Adelaide and was admitted to the Lyell McEwin Health Service for four to six weeks after suffering from visual and auditory hallucinations. He was treated with a mood stabiliser (Sodium Valproate) and an anti-psychotic (Olanzapine) but stopped taking the Olanzapine when he became sedated. He continued the Sodium Valporate for six to twelve months.
In his late twenties and early thirties he suffered two further manic episodes characterised by delusions that he was superhuman, and that he was being filmed on television.
After returning to live in Adelaide, Mr Bartholomaeus at various times lived with his mother, his brother and his sister. During this time he also completed the Certificate in Aged Care and began studying naturopathy. In or about 2004 Mr Bartholomaeus began attending lectures and seminars on the benefits of nutritional products, and bought several products including Majestic Earth Mineral Water and Majestic Earth OsteoCal.
The Circumstances of the Offending
For the purposes of setting out the chronology of the offending I have had regard to a number of witness statements tendered by the Crown and psychiatric reports prepared by Doctors Begg, Czechowicz and Raeside.
23 May 2004 Offences
In the weeks leading up to the commission of the first of the offences, namely the driving offences of 23 May 2004, Mr Bartholomaeus was observed acting strangely by family members and other witnesses.
In or about late May 2004 after taking half an ecstasy tablet he was having trouble sleeping and began suffering from delusions. He believed the rain was poisoning people and that Adelaide would be flooded. As a result of the delusions, he decided to drive to Uluru for safety and it was whilst driving near Port Pirie that he began thinking the world was watching him through cameras in the sun and that he had magic power. He began stunt driving and swerving towards and driving at cars. It was this driving which constituted the offences of driving dangerously and endangering life on 23 May 2004.
It was at this time that Mr Bartholomaeus’ sister, Sarah, and brother, Paul, notified their mother that he had stopped taking his medication.
Following his arrest on 23 May, he was detained under the Mental Health Act 1993 (SA) (the “Mental Health Act”) in the Cramond Ward, the psychiatric ward of the Queen Elizabeth Hospital (“QEH”), for two to three weeks. He was released on 4 June 2004. Mr Bartholomaeus’ mother, Angela Klose was very concerned about his release believing that he was released too soon as on earlier occasions when he had been detained under the Mental Health Act, he was in hospital for 4 to 5 weeks.
In mid June he attended a seminar in Melbourne on energy healing, believed to occur upon placing hands over a person’s body.
Upon returning to Adelaide Mr Bartholomaeus was again observed to be acting strangely. On 29 June 2004 he was seen running past a property at Anthony Street Henley Beach, rambling and incoherent and enticing the owner of the property to a fight.
On 30 June 2004 he visited his sister, Sarah, at her house at Anthony Street Henley Beach. He became involved in a fight with his sister’s boyfriend, Mr Peter Holland and a friend, when he refused to leave the house. He believed that they were black magicians and that magicians were against him. He suffered a fractured nose as a result of the fight.
After the fight, Mr Bartholomaeus visited his mother, Ms Klose, at her place of work. She was very concerned about him as her daughter had been in to see her at work that same morning telling her about the events of the night before when Mr Bartholomaeus was injured in a fight. Ms Klose then rang the QEH where Mr Bartholomaeus had been treated over the years and left a message for his outpatient carer Ms Sonja Walmsley.
When Mr Bartholomaeus arrived at her work, Ms Klose’s concerns about him were confirmed as he began acting inappropriately towards some of the staff. She called Ms Walmsley again and spoke with her about the possibility of getting Mr Bartholomaeus admitted as a mental health patient. Ms Walmsley suggested she take him to the QEH using the pretext of the broken nose which Ms Klose attempted to do. However Mr Bartholomaeus jumped out of a taxi on West Terrace when she mentioned they were going to the QEH. Ms Klose rang Ms Walmsley again and asked that she fax his medical details from the QEH to the Royal Adelaide Hospital (“RAH”) as she was going to try to take him there instead.
Ms Klose caught up to Mr Bartholomaeus after he got out of the taxi and they walked together to the RAH. At the hospital she attempted to have him admitted using the circumstances of the facial injuries sustained in the fight. A doctor spoke with Mr Bartholomaeus and then told Ms Klose that he did not consider that he should be admitted. The doctor then indicated he would speak with the Assertive Crisis Intervention Service (“ACIS”) to see if they would get involved in admitting Mr Bartholomaeus. However after waiting some time for ACIS to arrive, Mr Bartholomaeus left the hospital despite Ms Klose’s efforts to get the doctor to detain him under the Mental Health Act. In a report of 12 October 2005, Dr Raeside is of the opinion that this decision not to detain Mr Bartholomaeus was “an error of judgement and the history and other concerns raised should have led to his admission at that time”.
After leaving the hospital, Mr Bartholomaeus spent some time wandering around the city and after observing some Anti-Iraq War protesters he developed the idea that the Government was following him and that America was dropping gas bombs on the city. He spent some time hiding under trees and then made his way to his mother’s house and went to bed early on the morning of the 1 July 2004.
1 July 2004 Offence
On the 1 July 2004, Mr Bartholomaeus left his mother’s house at Northgate and started walking to the city. His mother’s partner attempted to go with him and take him to the RAH but Mr Bartholomaeus broke away.
On the same street as his mother’s home, he attempted to force his way into a vehicle while the occupant was inside, but was unsuccessful.
After wandering the streets near his mother’s home, he ended up on the grounds outside the Yatala Labour Prison. He began arranging sticks and rocks in the belief it was a black magic site. He thought he was following the flight path of birds, and he had been sent there on a spiritual mission. In the report prepared by Dr Begg of 19 October 2004, Mr Bartholomaeus described time distortion saying that everything was happening a lot faster and that he had “lost mind control and that it let his body do things automatically without thinking”. Mr Bartholomaeus also described the prison as a vortex from which negative energy was emanating.
A person matching Mr Bartholomaeus’ description was also observed by a number of witnesses picking up wood, arranging sticks and looking at the ground around the perimeter of the prison. It was at about this time that the attack on Mrs Williams-Dickie occurred.

Gloria Williams-Dickie was working as a records officer at the Yatala Labour Prison on 1 July 2004 and had just begun her lunchbreak at 1.10pm. She was walking the perimeter fence of the prison as she often did during her lunch break, when the attack occurred. Although Mrs Williams-Dickie did not recall the incident when giving a statement to police on 15 August 2004, in a later statement given on 24 September 2004 she remembered seeing a male squatting amongst trees and bushes. She recalls the male asking her if she had any money and she replied that her belongings were at work and kept walking.
In a report of Dr Begg dated 13 October 2005, and a report of Dr Raeside dated 12 October 2005, Mr Bartholomaeus described his belief that at the time of the attack on Mrs Williams-Dickie he believed he was destroying the leader of the evil magicians. He said that he felt detached during the assault. He recalls her screaming and him hitting her in a chopping motion across the neck to silence her. He believed she would revert into her original form, being a millipede. He also removed her clothes in order to remove any sign of her existence and put the clothes in his backpack. On the evidence a stick was found at the scene and this appeared to have been used in the attack although Mr Bartholomaeus says that he did not remember this. Following the attack he went to a nearby house at 35 Hoods Road Northfield and put the clothes in an orange garbage bag found in the carport of the home, explaining to psychiatrists later, that he wanted to “remove all trace of her existence.”
A person matching the description of Mr Bartholomaeus was observed by neighbours jumping the fence and then hiding in some bushes of the front yard of 35 Hoods Road. The neighbours phoned the police. The police spoke with Mr Bartholomaeus at the corner of Hoods Road and Thompson Avenue Northfield. After speaking with him and conducting police checks he was allowed to leave.
Mr Bartholomaeus continued to walk and made his way to the car park of the Mawson Lakes University Gym where he again attempted to enter a vehicle while the occupant was inside. He was subsequently escorted to the campus security office by two Security Guards and a taxi was called to collect him.
Mr Bartholomaeus was dropped off at the home of his ex-girlfriend Ms Teresa Nguyen at Paralowie. After speaking with him at her home Ms Nguyen was very concerned about his presentation and behaviour and rang the police as she realised that Mr Bartholomaeus was not well.
During this time, police searches undertaken at Northfield located a backpack with blood on it and also containing Mr Bartholomaeus’ identification. The backpack was found at the premises of 35 Hoods Road. Shortly after these items were found and examined, Senior Constable Crawford attended at Ms Nguyen’s home where other police officers and an ambulance had already arrived. Senior Constable Crawford arrested Mr Bartholomaeus for attempted murder and he was taken to the Holden Hill Police Station.
After being interviewed by police, he was assessed by a psychiatrist, Dr Janina Gipslis from ACIS to determine if he required immediate acute psychiatric treatment. She was of the opinion that he was acutely psychotic, however, she did not detain him under s 23 of the Mental Health Act at this time believing that he could remain in police custody rather than be transferred to a hospital.
2 July 2004 Offences
On 2 July 2004, the day after the attack on Mrs Williams-Dickie, Holden Hill police staff noted Mr Bartholomaeus was acting aggressively. He was shouting, and screaming and banging on his cell door for most of the morning. Around midday he broke out of his cell by kicking the steel grid out of the door and began throwing Perspex glass at the prison staff. A police officer, Constable Mark Howie was one of the staff at the station at the time. Mr Bartholomaeus threw glass at Constable Howie and lunged at him swinging the steel grid but luckily he was not injured. Mr Bartholomaeus was eventually restrained. These events are the basis for the charges of damaging property and assault of a police officer.
He was admitted to James Nash House that same day.
In the days that followed other items were found by police at 35 Hoods Road. These included an orange plastic bag containing blood stained clothing belonging to Mrs Williams-Dickie, a Magestic Earth herbal drink and loose olives. From the area around where Mrs Williams-Dickie was found, jewellery, sticks, and boots were located.
The Victims
Mrs Gloria Leonie Williams – Dickie (previously Gloria Leonie Williams)
Following the attack on 1 July 2004, Mrs Williams-Dickie was found in a critical condition on the pathway adjacent to the side perimeter fence of the prison and an ambulance was called. The ambulance officers who attended described her as lying in a pool of blood and that she appeared to have a skull fracture, with bruising and swelling around her eyes, abrasions and bruising to her chest and back, bleeding from the ears, a collapsed lung, and a loss of bodily functions.
At the RAH, Mrs Williams-Dickie was placed in the intensive care unit. Her injuries were described as severe and life threatening. The injuries she sustained included a skull fracture, a large scalp laceration, eye trauma, multiple facial fractures, and fractured ribs. She also suffered from massive blood loss.
After some recovery, Mrs Williams-Dickie was transferred to the Brain Injury Rehabilitation Unit. She was discharged from hospital on 16 August 2004, almost a month and a half after the attack.
Mrs Williams-Dickie continues to suffer physical and mental health problems as a result of the attack. She has continual problems with fatigue, she has permanently lost her sense of smell, and has also noticed changes to her sense of taste.
She also has reduced short-term memory causing problems in her ability to undertake day-to-day tasks and this has caused frustration, and short temperedness. She also has trouble sleeping. In a victim impact statement prepared by Mrs Williams-Dickie and in a victim impact report prepared by a social worker pursuant to s 269R, she describes her short-term memory loss and reduced concentration span as causing the biggest problems to her quality of life. As a result of her injuries she can no longer follow movies, read books or magazines. Her eyesight to her injured eye was affected by the injuries causing her to use reading glasses which she finds inconvenient. Her sense of smell is gone and she can no longer enjoy food, which is particularly distressing given her husband, Mr Ross Dickie, whom she married in January 2005, is a chef.
Mrs Williams-Dickie is now too afraid to continue her daily walking, as she regularly did before the attack, for exercise and fitness and to help improve her asthma. Her injuries have also caused a loss of balance and she often feels fuzzy headed and lacks stamina. She continues to receive regular treatment from a neuro-physiotherapist and has been prescribed medication to prevent seizures.
Mrs Williams-Dickie has only limited memory of the attack. She received some counselling following the attack; however she declined further counselling after about four to five weeks, as she had no memory of the event.
Mrs Williams-Dickie has now returned to some part-time work at Yatala Labour Prison in the same administrative position. She cannot drive the full distance from her home to work and is assisted by volunteers. Doctors have told her that she may never return to full time work.
There is also a significant effect on her family. Her husband has become her carer and he is often visibly upset, as the memories of the incident are still vivid for him. She missed the birth of her first grandchild while she was in hospital and her elderly parents suffered greatly.
Mrs Williams-Dickie has demonstrated a courageous approach to her devastating injuries. At the same time she has also demonstrated a generous approach to the situation of Mr Bartholomaeus. She is understanding of Mr Bartholomaeus’ mental illness and has empathy for him. This was most manifest in her preparedness to permit Mr Bartholomaeus to apologise to her in Court personally on the day when I heard submissions. Mrs Williams-Dickie hopes that he can get help and receive treatment and is relieved that at least there is some hope for rehabilitation. She has expressed the view that he is too dangerous for the community if he does not comply with his medication and that he should remain in a custodial environment for a time while he receives treatment.
Mark Howie
The other victims of the offending included Constable Mark Howie the police officer at the Holden Hill Police Station. He described the incident on 2 July 2004 as “scary and exciting at the same time”. He said he has not suffered any long-term effects other than that he is more aware of the possibility that prisoners can get out of the cells. He declined counselling.
Barry Wakefield
Another victim, Barry Wakefield was the driver of one of the cars travelling near Port Pirie on 23 May 2004 when Mr Bartholomaeus swerved towards him. Mr Wakefield believed Mr Bartholomaeus was drunk or drugged when he swerved towards his vehicle and was horrified at the time. In order to avoid a collision Mr Wakefield had to turn onto the gravel on the side of the road at about 100km/h and said that he thought his car would roll. He witnessed other cars also being subject to the same ‘cat and mouse’ game. Another driver of a vehicle accompanied Mr Wakefield to the police station to make a statement.
Mr Wakefield said it would take him a long time to forget the incident. He has not suffered any long-term effects other than recalling the incident and having flashbacks from time to time. He said he believed he was lucky to be alive and expressed his view that he did not think Mr Bartholomaeus should hold a driver’s licence again.
Limiting Term
Single Sentence
Counsel for Mr Bartholomaeus submitted that the 23 May 2004 driving offences of two counts of endangering life should be seen as one series of offences that would attract a single sentence. Further that the 1 July 2004 incident and the incident at the Holden Hill Police Station on 2 July 2004 be viewed as a discrete offence or series of offences which would attract a further single sentence. The offences all occurred over a period of one month.
Counsel further submitted that it would be impractical to fix two limiting terms and instead I should consider employing s 18A of the Criminal Law (Sentencing) Act1988 (SA) in fixing a single term. DPP counsel submitted that it was open to me to decide whether to impose a single limiting period for all of the offences or set more than one limiting term.
In this case, if I was to sentence Mr Bartholomaeus to separate sentences for each of the offences, I would impose concurrent sentences for the driving offences of 23 May 2004 which occurred within a limited time frame. Similarly I would impose concurrent sentences for the offences which occurred in the police station on 2 July 2004. The outcome of those two sets of sentences should then be cumulative to the sentence for attempted murder on 1 July 2004. I consider it appropriate to apply s 18A of the Criminal Law (Sentencing) Act and impose one penalty for all of the criminal offences. This approach appears apposite bearing in mind that s 269O of the Act requires the fixing of a limiting term and that it would be artificial, as well as impractical, to set more than one limiting term for each of the offences. I also do not regard it necessary for me to articulate these individual sentences before setting a single penalty.[5]
[5] R v Symonds [1999] SASC 217, [21] -[22].
Sentencing Considerations
In fixing a limiting term, as set out below, I have had regard to the following matters. I have taken into account the circumstances of the offending, as set out above; the circumstances of the victims as set out; the injuries which resulted from the offending and matters of general and personal deterrence. I have noted that Mr Bartholomaeus had no prior convictions up until the events commencing on 23 May 2004.
In addition to some of Mr Bartholomaeus’ personal circumstances and background referred to previously, I note that he is usually of a non-violent and considerate disposition. He also has a strong relationship with his mother and her partner, who have expressed their desire to continue their loyal support and to look after him if he was to be released on licence. His counsel submitted and I accept that he was a useful member of the community and was hard working.
During submissions I expressed concern as to whether Mr Bartholomaeus’ previous failure to comply with his medication, which led to the commission of these offences, could be viewed as an aggravating feature when determining an appropriate limiting term. Counsel for Mr Bartholomaeus submitted that a feature of bipolar disorder is the non-compliance with medication and that the effectiveness of the medication often leads to a belief by the sufferer that the medication is no longer required. This was the situation with this defendant. The DPP did not contradict this submission. I do not consider in the circumstances that this should be regarded as an aggravating factor in this case. However this circumstance and his past failure to take his medication is particularly important in considering any future application for his release on licence.
I have also noted that there is no tariff on sentences for the offence of attempted murder due to the varying circumstances which constitute the offence.
There are also other factors which I have taken into account which would operate to reduce the individual sentences, particularly the attempted murder. I consider it appropriate to make allowance for the fact that the defendant, who is currently on medication and is able to make a decision, has instructed his counsel that the objective elements of the offences were accepted. This is not the same as a discount which is taken into account for pleas of guilty, as indeed there are no such pleas. On the other hand there are analogous benefits which flow from such admission of objective elements,[6] albeit that the case against him on the objective elements was very strong.
[6] R v Place (2002) 81 SASR 395.
I have also had regard to his clear expressions of contrition and remorse including his personally expressed apology to Mrs Williams-Dickie made in Court on the day of submissions.
Finally, I have taken into account the time spent in custody. Mr Bartholomaeus’ was detained at the Holden Hill Police Station, the Adelaide Remand Centre and then James Nash House under a detention order on the grounds of his psychosis. He was then transferred again to the Remand Centre. He is currently at the Grove Closed Ward of James Nash House situated at Glenside. He has been in custody since 1 July 2004.
Taking into account all the factors as set out above, I have taken a starting point of 13 years and 6 months for all offences and reduced this on account of his acceptance of the objective elements of the offences, his contrition and time spent in custody since 1 July 2004, to reach a head sentence of 9 years as a single sentence under s 18A of the Criminal Law (Sentencing) Act. I do not consider that there should be any further modification to the single sentence by reason of the application of the totality principle, in so far as that principle could apply in these circumstances.
The limiting term I must now fix is a period of 9 years from this day, 20 January 2006.
Whether defendant should be released
In deciding whether Mr Bartholomaeus should be released and the conditions to apply to such a release on licence, s 269S of the Act requires me to apply the principle that keeps to a minimum any restrictions to his freedom and personal autonomy consistent with the safety of the community. Section 269T outlines the factors that I must consider when determining whether to release a defendant on licence. These include, the nature of the mental impairment; the danger to the community; whether there are adequate resources in the community to treat and support the defendant; and whether the defendant would comply with any conditions of licence.
However in the light of the current management plan for Mr Bartholomaeus’ treatment, as expressed in the report of Dr Raeside dated 27 October 2005, I accept the opinion of Dr Raeside and it is therefore not relevant for me to consider all of the matters contained in ss 269S and 269T at this point.
Medical Reports
I have considered a number of reports prepared by Dr Jules Begg (19.10.04, 18.01.05, 13.10.05, 4.4.05, 27.10.05), Dr Andrew Czechowicz (17.2.05, 4.4.05, 20.10.05) and Dr Craig Raeside (3.5.05, 30.5.05, 12.10.05, and 2 reports dated 27.10.05). In particular, I have considered the most recent report of Dr Raeside being the 27 October 2005 report which I ordered under s 269Q of the Act.
After some initial disagreement on the mental impairment of Mr Bartholomaeus at the time of the 1 July 2004 offence, all doctors finally agreed that at the time of the offending from 23 May 2004 to 2 July 2004 Mr Bartholomaeus was suffering from a mental impairment as defined in s 269A of the Act and was mentally incompetent to commit the offences. They are all agreed that Mr Bartholomaeus is diagnosed with Bipolar Disorder (Manic). This disorder is often a chronic psychiatric illness characterised by recurrent mood disturbance, and might relapse into non-compliance with medication or the abuse of illicit drugs. The psychiatrists are also of the opinion that his symptoms and psychotic episodes can be managed with medication but his failure to comply with his medication and his use of cannabis and amphetamines has aggravated his illness.
I have also had regard to a report prepared by a social worker pursuant to s 269R of the Act setting out the impact of the crimes on the victims, which I have previously set out above. It also details the impact of the crimes on Mr Bartholomaeus’ next of kin, being his mother, Ms Angela Klose, her partner, Mr Allan Hansford, his father, Mr Peter Bartholomaeus and his stepmother Mrs Kay Bartholomaeus.
Future Management Plan
Having read the victim and next of kin report of 7 December 2005, Dr Raeside maintained his opinion expressed in the 27 October 2005 s 269Q (1) report that Mr Bartholomaeus’ management plan at present should be to maintain his current medication at James Nash House and continue to receive ongoing inpatient psychiatric treatment.
Given Mr Bartholomaeus’ previous non-compliance and abuse of drugs aggravating his relapses, Dr Raeside believes his prognosis “is dependent on his ability and willingness to comply with psychiatric treatment and abstain from illicit drugs”, particularly given his aggressive and violent nature when he suffers from manic episodes.
It is not appropriate at this stage given the opinion expressed by the s 269Q report of Dr Raeside, to release Mr Bartholomaeus on licence. However an application may be made at some time in the future after there has been an opportunity to implement the management plan through James Nash House and to monitor his progress with medication as to whether he should be released on licence and upon what conditions.
Order
I make a supervision order pursuant to s269O(1)(b)(i) committing Mr Bartholomaeus to detention under Part 8A of the Act.
I set a limiting term of 9 years from today, 20 January 2006.