R v Bayley - [2013] SADC 103

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BAYLEY
Criminal Trial by Judge Alone
[2013] SADC 103
Reasons for the Order of His Honour Judge Soulio
9 August 2013
CRIMINAL LAW
Defendant charged with one count of arson - investigation into mental competence to commit an offence - decided that at the time of the conduct alleged to give rise to the offence the defendant was suffering a mental impairment - defendant declared to be mentally incompetent to commit the offence - objective elements established beyond reasonable doubt - declared liable to supervision - limiting term of five years - supervision order made releasing the defendant on licence on conditions decided by the Court and specified in the licence.
Criminal Law Consolidation Act 1935 s 85, Part 8A; Cross Border Regulations 2009, referred to.
R v Draoui (2008) 101 SASR 267, considered.

R v BAYLEY
[2013] SADC 103

The defendant, Scott Bayley, was charged with one count of arson, contrary to s 85(1) of the Criminal Law Consolidation Act 1935 (‘CLCA’) said to have been committed on 1 September 2011.
Circumstances of the Offending
In the early hours of the morning of 1 September 2011 the defendant drove to the BP service station on Main North Road at Willaston. He parked his vehicle next to a petrol pump, took a hose from the pump and sprayed petrol into his vehicle and onto the area around his vehicle. He then told the service station employee on duty to leave and to call the police, which that person did. The defendant set fire to the petrol, which caused significant damage to the vehicle and to the surrounding area.
When police attended the scene they found the defendant lying on the south bound lane of Main North Road, about 50 metres away from the service station. The defendant was naked from the waist down, and was complaining of pain to his lower legs which had obvious burn injuries. The defendant said to police “I did it, I did it, I wanted to get away from the man who wanted to shoot me with a gun.”
The Hearing
The defendant was first arraigned in this court on 14 January 2013 when he pleaded not guilty. On the basis of a report dated 2 November 2012, from Dr Jules Begg, psychiatrist, an issue was raised as to the mental competence of the defendant to commit the offence, and a further psychiatric report was ordered, from Dr Mohan, pursuant so s 269T CLCA. An addendum report from Dr Begg was also ordered. The matter proceeded to an initial hearing on 22 April 2013.
Pursuant to s 269B CLCA, an investigation into a defendant’s mental competence to commit an offence, or into whether the elements of the offence have been established, is to be conducted before a jury unless the defendant has elected to have the matter dealt with by a judge sitting alone. Counsel for the defendant applied for the matter to proceed to trial without a jury. The application was granted.
Mental Competence
I decided to proceed pursuant to s 269F CLCA, that is to first try the issue of the defendant’s mental competence to commit the offence charged.
In his report of 2 November 2012, Dr Begg reported that the defendant had experienced mental health problems beginning in 2002 when the defendant suffered from pervasive anxiety, initially treated by anti-depressant medication. The defendant was hospitalised on a number of occasions, and treated with medication including mood stabilisers and antipsychotic medication.
The defendant overdosed on a combination of drugs in 2007, and was evicted from his home by his father. Thereafter the defendant lived an itinerant existence, living in a tent, and in his car. He lost touch with reality, and suffered auditory hallucinations, and commenced believing that discussions he heard on the radio in the car were directed at him, and that he was being monitored by satellites while he was driving. He suffered paranoid delusions and believed that he was going to be murdered.
Dr Begg noted a history of a diagnosis of bipolar affective disorder. He further noted from a review of the notes of the Mental Health Service at the Royal Adelaide Hospital, where the defendant was admitted for some two months following the offending behaviour, that, upon examination following his initial admission, the defendant was found to be actively psychotic.
Dr Begg concluded, in relation to the offending behaviour, that the defendant “understood the nature and quality of his actions as they were apparently done in a purposeful manner,” but Dr Begg went on to say that:
I am quite certain that he did not understand the wrongfulness of his actions. Directly as a result of the psychosis associated with his mental impairment he was not able to reason with a moderate degree of sense and composure about the nature and quality of his action.
Dr Begg came to the conclusion “with a high degree of certainty, that a mental impairment defence would be available to Mr Bayley.”
In his addendum report of 14 February 2013, after Dr Begg had been provided with the declarations, CCTV footage of the offending behaviour, and the video of the police interview on 14 October 2011, and comprehensive medical records, he assessed the defendant as revealing signs of paranoia, and presenting as suspicious, irritable and with a superior manner, which Dr Begg described as typical of a paranoid schizophrenia which is responding to treatment.
Dr Begg concluded:
I therefore remain of the opinion that as a result of the mental illness operating at the time of the offence he satisfies section 269C (b) of the Criminal Law Consolidation Act, as he did not know that the conduct was wrong.
The defendant was assessed by Dr Titus Mohan, psychiatrist, on 20 February 2013. Dr Mohan reported, on 22 February 2013, that upon a review of the defendant’s past history it was apparent that the defendant was suffering a largely untreated schizophrenia, involving non specific anxiety and depressive symptoms, and paranoid delusions. He said the defendant described what is typically known as a delusional atmosphere, involving a belief that there is a non specific conspiracy, and a tendency to misinterpret neutral events to substantiate a biased belief. Dr Mohan said that the defendant had long standing paranoid beliefs which appeared to have worsened after he ceased taking medication in 2010. The symptoms progressed to the point where the defendant perceived that he was in a life threatening emergency and was terrified that he could be the target of an attack.
Dr Mohan concluded that:
Based on the above background information, on balance of probabilities with respect to the offence of arson, Mr Bayley did know the nature and quality of the conduct and was able to control his behaviour. However he was suffering from an acute mental illness namely schizophrenia and hence was unable to reason about the wrongfulness of his conduct with a [moderate] degree of sense and composure. Hence in my view he does have a mental incompetence defence.
The decision as to whether a finding should be made that the defendant was, at the time of the alleged offence, mentally incompetent to commit the offence, is to be made on the balance of probabilities.[1]
[1] Section 269F(3) CLCA.
Taking into account the opinions of Dr Begg and Dr Mohan that the defendant was mentally incompetent at the time of the offending, and noting the concessions to that offending by the Director of Public Prosecutions (‘DPP’), with the consent of both counsel for the prosecution and defence, pursuant to s 269FA(5) CLCA, I terminated the investigation and recorded a finding that the defendant was mentally incompetent to commit the offence.
Objective Elements
Pursuant to s 269FB CLCA, I proceeded to a trial of the objective elements of the offence. I received a book of photographs, recordings of the CCTV footage from the service station, a transcript of the police interview of the defendant, and the declarations. Having heard submissions from counsel for the prosecution and defence I was satisfied beyond reasonable doubt that the objective elements of the offence were established, and recorded a finding accordingly.
Pursuant to s 269FB(3) CLCA, I found the defendant not guilty of the offence, but declared him liable to supervision under Part 8A CLCA.
Division IV Disposition
Reports were provided pursuant to ss 269Q(1), 269T(2) and 269R CLCA. Further submissions were made on 25 June 2013 by both counsel for the prosecution and the defendant.
Dr Begg provided a further report dated 20 June 2013, pursuant to s 269T CLCA. He obtained a history that the defendant was by then 40 years old, and was living in supported residential accommodation, where meals and medication were provided. He had been prescribed antipsychotic medication, clozapine 325mg, and anti-depressant medication, mirtazapine 60mg. However, the defendant’s use of medication was not supervised.
Dr Begg noted that the defendant had established a regular daily routine, but slept for some 11 hours each night. The defendant denied psychotic symptoms. While suicide is a risk in schizophrenia, the defendant did not express suicidal ideation. On the basis of a review of the Mental Health Service Consumer Summary, Dr Begg concluded that the defendant’s condition was stable, without significant signs of deterioration since being assessed in November 2012. He further concluded that the appropriate diagnosis was of chronic paranoid schizophrenia, that had made an excellent response to the prescribed medication.
Dr Begg had reviewed the report of Dr Foo, provided pursuant to s 269Q CLCA, to which I will refer in a moment, and agreed with Dr Foo’s recommendations. Dr Begg considered that continued medication would result in stable mental health, and reduce the risk of further offending. He considered, however, that the administration of clozapine required a strict monitoring regime, and should not be dispensed unless the defendant, and attending medical staff, adhered to a monitoring regime of regular blood tests, and ongoing assessment of the defendant’s mental state. Dr Begg considered that the defendant would require lifelong treatment with medication, without which there was a likelihood of illness relapse, and dangerous behaviour.
Dr Mohan provided a report dated 21 June, following his further assessment of the defendant undertaken on 23 May 2013. He obtained a similar history to that of Dr Begg. Dr Mohan noted that the defendant’s capacity to deal with the activities of daily living appeared reasonable. He noted that the defendant had made very few friends in the hostel accommodation in which he was housed. The defendant has supportive parents who live in Victoria, and have visited him several times in Adelaide. The defendant attends the West Adelaide Community Health Services for appointments with Dr Foo. Dr Foo has recommended the intervention of a psychologist to treat ongoing depressive symptoms. Dr Mohan accepted Dr Foo’s assessment that the defendant’s mental state was currently stable, and that the defendant’s symptoms were under control.
Dr Mohan described the defendant, upon assessment in May, as having a reactive affect. He said the defendant had good insight as to his condition, and did not have any current psychotic phenomena. The defendant appeared willing to engage with the mental health system, and act on recommendations provided. Dr Mohan considered that the defendant’s mental state suggested that his schizophrenia had been well stabilised, and that the defendant was suitable for community living if medically supervised.
Dr Mohan recommended that the defendant undergo continuing review by the West Adelaide Community Mental Health Services. He considered that there should be regular monitoring of clozapine levels as a marker for compliance, and also to avoid unnecessary sedation. He also recommended mandatory reporting to a community corrections officer who would monitor the use of illicit substances through drug testing. Dr Mohan also considered that the defendant would benefit from moving interstate to live with his parents to enable him to focus on his rehabilitation.
Dr Foo provided two reports, pursuant to ss 269Q and 269T CLCA, both dated 30 May 2013. He obtained a detailed history of the defendant. He reported, pursuant to s 269Q, that although the defendant’s symptoms appeared to be well controlled at the time of review, with no overt symptoms of psychosis, the longitudinal history, and the nature of the defendant’s presentation at the time of the admission to the Royal Adelaide Hospital immediately following the offending, supported a diagnosis of schizophrenia. He considered that the prognosis was heavily dependent on continued compliance with the use of medication, and a support network. He considered that, despite the delay in diagnosis and treatment, the defendant’s prognosis was fair given the relatively late onset of the illness. He recommended regular and active mental health monitoring to enable an appropriate response to signs of erratic or paranoid behaviour. He considered that such monitoring was best achieved by continued involvement at the supported residential facility with input from the manager of the facility, the defendant’s family, the Beaufort Clinic, the defendant’s general practitioner, and the Forensic Mental Health Service Team.
In his s 269 T report, Dr Foo again emphasised the importance of regular medical monitoring of the defendant’s mental state, and compliance with medication by blood level testing through the Beaufort Clinic. He considered that the proposed community based management plan, if consistently and properly monitored, should provide a sufficient infrastructure to support the defendant’s continued well being, and provide an opportunity to identify any early deterioration of his mental state.
Ms D’Alessandro, an experienced social worker from the Forensic Mental Health Service, James Nash House, provided a s 269R report dated 19 June 2013. She communicated with the service station employee on duty on the night of the offending. He was aware of the court process, and of the finding of mental incompetence but declined to be interviewed. The manager of the service station was also aware of the proceedings, and indicated that he agreed with the finding of mental incompetence. He said that the corporate owner of the service station suffered a significant financial loss. The manager did not wish to be further interviewed.
Ms D’Alessandro also interviewed the defendant’s parents who, as I have observed, have been very supportive of the defendant. The defendant’s father maintains daily telephone conversations with the defendant and has travelled to Adelaide to attend each court appearance to support the defendant. The defendant’s father commented that the defendant had undergone a significant improvement in his mental health, while on the present treatment plan. He said that the defendant, prior to the development of mental illness, had been successful at sport, had owned a business, and was studying. The defendant had been in a long term relationship which had also come to an end because of the development of the illness. The defendant’s father was both relieved and satisfied with the current treatment regime, and said that the use of the medication clozapine, had resulted in a rapid improvement in the defendant’s presentation.
The defendant’s mother was similarly supportive and also maintained daily telephone contact with the defendant, and attended in South Australia to support him on a regular basis. She also commented on the marked improvement in the defendant’s presentation, and the progress made by the defendant. She had observed an improvement in the defendant’s insight, and said the defendant accepted that he needed to remain under treatment. She was keen for the defendant to return to eventually live in Victoria, independently, but with the support of his parents.
Fixing the Limiting Term
Where a supervision order is made, it is necessary to fix a limiting term equivalent to the period of imprisonment or supervision, or the aggregate period of imprisonment and supervision that would have been appropriate had the defendant been convicted of the offence. The limiting term must be fixed on the basis of the head sentence that would have been imposed.
The defendant is now 40 years of age. He has been dealt with in relation to offences of theft in 2001 and 2002, and breaching an intervention order in 2005, without a conviction being recorded, or a penalty being imposed. In 2010 he was convicted of obtaining property by deception, and knowingly dealing with the proceeds of crime, for which he was ultimately dealt with by way of bond.
The defendant is the eldest of four siblings, and maintains communication with each of them. The defendant performed adequately at school, although he lacked social confidence. He completed year 12, and then completed an apprenticeship as a diesel mechanic. He has had three significant relationships, the last of which ended when his mental health symptoms emerged during 2003.
The defendant is currently on a disability support pension. Room and board are deducted from that pension by the supportive residential facility in which he resides. The defendant intends to find independent accommodation, and eventually intends to return to live in Melbourne to be near his family, although not immediately.
The present offending is very serious, and caused significant damage to the service station. The offending potentially endangered the lives of the service station employee, and fire fighters who were called to the scene of the fire. The maximum penalty for arson is imprisonment for life.
Had I been required to sentence the defendant I would have imposed a sentence of imprisonment for five years. Given that there can be no discount on the basis of the concession made by counsel for the defendant that the objective elements of the offence were established,[2] the limiting term must be five years.
[2] R v Draoui (2008) 101 SASR 267 [88].
Options
Pursuant to s 269O CLCA, once a defendant has been declared liable to supervision, the Court may release him unconditionally or make a supervision order either committing the defendant to detention or releasing the defendant on licence on conditions.
The Court is required to apply the principle that restriction on the defendant’s freedom and personal autonomy should be kept to a minimum, consistent however with the safety of the community, including the victims of his offending.[3]
[3] Section 269S CLCA.
Having considered the material to which I have referred, on the basis of the opinions expressed by Dr Begg, Dr Mohan, and Dr Foo, and having regard to the material obtained by Ms D’Alessandro by way of interview with the victim of the offending, and the defendant’s parents, I have come to the view, consistent with the recommendations of the examining psychiatrists, that it is not appropriate that the defendant be detained. However, it is clearly not appropriate that he be released unconditionally. I conclude, therefore, that the defendant should be released on licence subject to a series of strict conditions, a course which was not opposed by the DPP.
Licence Conditions
Recommendations have been made relating to the supervision of the defendant. On the basis of those recommendations, counsel for the DPP and for the defendant jointly drafted conditions giving effect to the recommendations. After consideration of the proposed conditions, and with some amendment, I regard the suggested conditions as the appropriate basis upon which the defendant is to be released on licence. I incorporate them into the following orders:
1.That the defendant be subject to a supervision order pursuant to Section 269O(1)(b)(ii) of the Act.
2.That the defendant be released on licence subject to the following conditions:-
(a)That the defendant be under the care and direction of the Clinical Director, Forensic Mental Health Service (“The Director”), or a consultant psychiatrist nominated by him or her (“the nominee”), and obey any directions given to him from time to time with regard to medical and psychiatric treatment and medication.
(b)That the defendant be under the supervision of a Community Corrections Officer assigned by the Parole Board of South Australia and comply with the lawful directions of that officer or the Board with respect to non-medical matters. To effect initial contact the defendant is to report to the Adelaide Office of the Department for Correctional Services at 181 Flinders Street Adelaide SA 5000 within two working days of signing this order.
(c)That the defendant continue to receive his medication current at the date of this order, and further that any alteration or reduction in such medication not occur without the approval of the Director or the nominee.
(d)That the defendant submit to random screening of his blood at the direction of the Director or the nominee, to ensure compliance with medication.
(e)That the defendant not use, possess or administer any narcotic or psychotropic drug unless medically prescribed by a legally qualified medical practitioner, and further that any drugs which are prescribed to the defendant by a medically qualified practitioner be possessed or administered by the defendant only at prescribed or recommended dosages.
(f)That the defendant not consume alcohol.
(g)That the defendant’s case initially be managed by a Community Mental Health Team, the West Adelaide Community Mental Health Services, and that the defendant comply with all directions from that team, or other team as directed by the Clinical Director, or nominee.
(h)That the defendant be under the supervision of a Case Manager appointed by the Community Mental Health Team and that he comply with all directions from that Case Manager.
(i)That the defendant shall submit himself for breath and or urine testing as directed by his Community Corrections Officer, for the purpose of determining whether there is present in his body any alcohol, illicit, or non-prescribed drug.
(j)That the defendant reside initially at Hindmarsh Care Lodge, and that he not thereafter change his residence without the permission of the Parole Board.
(k)That the defendant not depart or attempt to depart from the State of South Australia without the prior written permission of the Parole Board.
(l)That the defendant not possess a firearm, ammunition or any part of a firearm.
(m)That the defendant submit to tests, including testing without notice, for gunshot residue.
3.In the event that the Director, or the Director’s nominee, or the Presiding Member of the Parole Board, or the Presiding Member’s nominee is of the opinion that the defendant has contravened, or is likely to contravene a condition of this order, that person who becomes so aware, shall immediately notify the Director of Public Prosecutions of that opinion.
3AIf the Director of Public Prosecutions is notified by the Director or the Director’s nominee, or the Presiding Member of the Parole Board, or the Presiding Member’s nominee in accordance with order 3 above, the Director of Public Prosecutions may make an application to this Court for a review of the supervision order which in cases of urgency may be made at short notice.
4.That the defendant, the Director of Public Prosecutions (on behalf of the Crown) and the Parole Board shall be at liberty to apply at any time and from time to time, as they may be advised, at short notice to the other to vary or revoke this order or seek any other order in substitution thereof.

Finally, I make the observation that it is unfortunate that there does not seem to be a provision, whether pursuant to the provisions of the CLCA, or the Cross Border Regulations 2009, which would enable the supervision of the defendant to be transferred to the Victorian authorities, to enable the defendant to reside with or near to his parents who live in Victoria.