R v Beck - [2007] SADC 45

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BECK
[2007] SADC 45
Reasons for the Order of His Honour Judge Lovell
2 May 2007
CRIMINAL LAW
Investigation into mental competence to commit an offence - the appropriate procedure and steps for an investigation into the defendant's mental competence to commit the offence considered - decided that the objective elements were established beyond reasonable doubt - decided that at the time of the conduct alleged to give rise to the offence the defendant was suffering a mental impairment and, in consequence of that mental impairment, he did not know that the conduct was wrong - defendant declared to be mentally incompetent to commit the offence and declared to be liable to supervision - limiting term of 18 months fixed - supervision order made releasing defendant on licence on conditions decided by the court and specified in the licence.
Criminal Law Consolidation Act 1935 ss 19(1), 19(2), Part 8A, referred to.
R v Cryan [2004] SADC 99; R v Davey (2006) 95 SASR 63, considered.

R v BECK
[2007] SADC 45
Introduction

The accused Robert Beck was charged on information in this court with one count of threatening life (s 19(1) of the Criminal Law Consolidation Act 1935) and one count of threatening to cause harm (s 19(2) of the Criminal Law Consolidation Act).
It was indicated by defence counsel at a directions hearing that the defence of mental incompetence was to be raised. On 20 July 2006 his Honour Judge Boylan ordered reports be obtained pursuant to s 269WA of the Criminal Law Consolidation Act.
Alleged Offending
On 11 and 12 November 2005 the accused telephoned the victim Allan Ebdell and asked for Michael Ebdell his brother. He wanted his telephone number. Allan Ebdell refused to disclose his brother’s telephone number. The accused then telephoned Allan Ebdell again and was verbally abusive towards him. Mr Allan Ebdell then allowed all further calls to be diverted to his message bank. The accused continued to telephone and left nine messages for him of a threatening nature. The messages included threats to have his associates in a motorcycle gang harm him and his family. The messages contained threats to shoot the victim and put him in a “pine box”.
When interviewed the accused said he did not make the telephone calls to the victim.
On 15 May 2006 before his Honour Judge Millsteed the accused pleaded not guilty. It was indicated on that date that a defence of mental incompetence may be raised.
The Proceedings
The procedure for an investigation by the court into a defendant’s mental competence to commit an offence is contained within Part 8A – Mental Impairment of the Criminal Law Consolidation Act 1935.
In relation to the procedure that I adopted in this matter I had regard to the judgment of his Honour Judge Muecke in R v Cryan[1]. I found his Honour’s distillation of the procedures to be adopted extremely helpful.
[1] [2004] SADC 99
The matter came on before me on 15 December 2006. I determined to adopt the procedure under s 296G of the Criminal Law Consolidation Act. Ms Swart who appeared on behalf of the DPP tendered the declarations of Allan Thomas Ebdell dated 14 November 2005 and 21 May 2006, Keren Ann Burke dated 24 May 2006, Bradley Christopher Foord dated 13 February 2006, 5 May 2006, 25 May 2006 and 4 June 2006, Geoffrey Stephen Moore dated 15 February 2006, Heidi Susan Ebdell dated 14 November 2005, Lee David Firth dated 5 June 2006 and Frazer Woods dated 31 May 2006. Ms Swart outlined the facts that the prosecution relied upon to establish the objective elements of the offences. Ms Millen who appeared on behalf of the accused conceded that the objective elements of the offence were established. In any event I was satisfied that the objective elements of the offence were established beyond reasonable doubt and I made that finding on 15 December 2006.
I then heard evidence and representations in relation to the question of whether the accused was mentally competent to commit the offence. Ms Swart tendered before me the report of Dr Christopher Branson dated 26 June 2006, the report of Dr Rohan Dhillon of 29 September 2006 and the report of Dr Kenneth O’Brien dated 24 October 2006. The prosecution conceded the question of the mental incompetence of the accused in this matter. However considering the report from Drs Branson, Dhillon and O’Brien I decided that it had been established on the balance of probabilities that the accused was mentally incompetent to commit the offences charged. As I was satisfied that he was suffering from a mental impairment, I was also satisfied that in consequence of that mental impairment the accused did not know that the conduct was wrong.
As a result of that evidence and that finding I declared the accused to be mentally incompetent to commit the offence and I found him not guilty of the offence but I declared him liable to supervision.
I then ordered at the request of Ms Swart reports pursuant to ss 269Q and 269R.
The matter came back before me on 16 March 2007, those reports having been received.
I received a report pursuant to s 269R(1) (report for victims and next of kin) dated 6 February 2007 and signed by Ms Bone, the acting senior social worker from James Nash House. I also received a report from Dr Maria Tomasic a consultant psychiatrist dated 7 February 2007, a report from Dr Champion of 7 March 2007 and a report from Dr O’Brien dated 30 January 2007.
Medical Evidence
Dr Tomasic interviewed Mr Beck on 17 January 2007. She had access to the report of Dr O’Brien of 30 January 2007 as well as the earlier reports relating to the mental incompetence defence. She noted his past psychiatric history of chronic paranoid schizophrenia. Mr Beck presented as well settled and cooperative to interview. She noted that he felt improved on medication but he was continuing to have some psychotic symptoms. He apparently experiences visual hallucinations of people and some auditory hallucinations. Dr Tomasic reported that he is able to resist these at the moment because “he knows they are not real”. Dr Tomasic noted that Mr Beck currently had regular reviews by a psychiatric registrar and case management through the Adaire Clinic.
Dr Tomasic’s diagnosis was that Mr Beck suffers from chronic paranoid schizophrenia and an antisocial personality disorder. She was of the opinion that he is relatively well settled at the moment but still has some ongoing psychotic symptoms which should respond to the fine tuning of his medication and continued abstinence from illicit drug use.
Dr Tomasic agreed with the recommendations of Dr O’Brien, that Mr Beck have ongoing follow up and case management through the Adaire Clinic. That included adherence to the recommended medication.
Dr O’Brien interviewed Mr Beck on 17 January 2007. As with Dr Tomasic, Dr O’Brien did not notice any obvious symptoms of active mental illness although he did note the presence of some chronic lower grade psychotic symptoms.
Dr O’Brien noted that Mr Beck continued to live at Noarlunga Downs in a three bedroom unattached Housing Trust home. Apparently he gets on well with the neighbours and spends time fishing on his own or going to the beach. He has access to his 11 year old daughter who lives with her mother at Pooraka. Mr Beck himself thought he was generally better since he commenced on the medication. He regulates his own tablets but also attends the Adaire Clinic every two weeks for his depot injection (Zuclopenthixol). Apparently he also takes the antipsychotic preparation of Stelazine, the antipsychotic preparation Zyprexa and the antidepressant Deptran. Mr Beck told Dr O’Brien that he has a regular care worker who visits him. This female worker, Ms James, spoke to Dr O’Brien and confirmed that she sees him regularly. Her view was that by and large she was satisfied with Mr Beck’s progress and she believed that Mr Beck appreciates the benefit of medication and appears to be compliant with it.
Overall Dr O’Brien was of the opinion that Mr Beck suffers from paranoid schizophrenia which is presently under reasonable control. He noted that he is under the care and supervision of the Adaire Clinic at Noarlunga and has a regular caseworker. He also sees a medical practitioner on an as required basis.
Dr O’Brien was of the opinion that the current arrangements which consist of regular supervision and treatment through the Adaire Clinic should be sufficient for Mr Beck’s ongoing management. Dr O’Brien thought it may be possible to decrease the level of intensity of his supervision with the passage of time; such a decision should not be taken at the moment.
Dr Champion, a consultant psychiatrist, interviewed Mr Beck on 16 February 2007.
As with the other psychiatric reports Dr Champion noted the long psychiatric history of Mr Beck. He noted his diagnosis of schizophrenia with a long history of antisocial personality and behavioural disturbance. As with Dr O’Brien and Dr Tomasic, Dr Champion thought that the current treatment arrangements under the Adaire Clinic appear to be adequate to control Mr Beck’s symptoms at present. He thought it was appropriate for Mr Beck to continue on long term depot antipsychotic medication. He also thought that given Mr Beck’s history of drug abuse in the past that it would be appropriate for urine drug testing to be performed from time to time.
Other Reports
I have taken into account the s 269R(1) report for victims and next of kin. I note that Mr Ebdell supports in general terms the treatment proposed for Mr Beck. However he wished to be informed about the licence conditions once they are set. I am satisfied that the defendant’s next of kin and the victim Mr Ebdell have been given reasonable notice of the proceedings before me on 16 March 2007.
Under s 269O of the Criminal Law Consolidation Act I may release the defendant unconditionally or make an order committing the defendant to detention or release the defendant on licence on conditions to be decided by me. I note the principal set out in s 269S that in deciding whether to release the defendant under this division of the Act or the conditions of a licence I must apply the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to a minimum consistent with the safety of the community.
The DPP did not suggest that I should commit the defendant to detention under this Part. It was submitted by both the DPP and Ms Millen on behalf of Mr Beck that he be released on licence on the conditions suggested by the psychiatrists in this matter. On the material before me it would not be appropriate to release Mr Beck unconditionally. I am satisfied having regard to all of the expert opinion in this matter that the appropriate course is to make a supervision order.
Orders
Under s 269O I therefore have to set a limiting term equivalent to the period of imprisonment that would in my opinion have been appropriate if the defendant had been convicted of the offences of which the objective elements have been established. I note the maximum penalty for a threaten life is ten years imprisonment and the maximum penalty for threatening harm is five years imprisonment.
I now turn to consider the question of what limiting term I should fix. I have had regard to the remarks of the Court of Criminal Appeal in R v Davey[2]. I have also had regard to matters set out in s 269T of the Criminal Law Consolidation Act.
[2] (2006) 95 SASR 63.
Viewed objectively the offending was reasonably serious although Ms Swart did concede, appropriately so in my opinion, that it was towards the lower end of the scale due to the fact that the threats were not made face to face. There was no evidence of any intention to carry out the threats although of course Mr Ebdell believed that that was going to be the case. The victim in this case was living in Whyalla and Mr Beck lives in the southern suburbs of Adelaide. There was no immediate threat. Clearly as the threats were uttered via the telephone no weapon was used.
Given that the two offences were part of a course of conduct had I been sentencing Mr Beck other than pursuant to this Part of the Criminal Law Consolidation Act I would have used s 18A and imposed one penalty. I also indicate that even if I had not used s 18A I would have made any sentences of imprisonment relating to these two counts concurrent.
I start with a limiting term taking into account the seriousness of the offence of two years. I note that Mr Beck through his counsel conceded the objective elements of the offence. It also appears to me that Mr Beck has indicated some contrition in the way that he has dealt with the psychiatric treatment he has undergone and his approach to treatment. He should receive some discount for that. I therefore impose a limiting term of 18 months in all the circumstances.
As mentioned before I consider it would be appropriate to release Mr Beck on licence on certain conditions which I will specify in the licence.
ORDER FOR RELEASE ON LICENCE
I, DAVID CAMERON LOVELL, a Judge of the District Court of South Australia, DO HEREBY MAKE, pursuant to section 269O of the said Act, a supervision order releasing the defendant on licence upon the following conditions:-
1.    That upon the defendant’s discharge into the community he be referred to the Clinical Director, Adaire Clinic, Noarlunga and that he be under the care and supervision of the Director.
2.(a)   That he obey any directions given to him from time to time by the Director or by a consultant psychiatrist nominated by the Director (“the nominee”). The name of the nominee, if any, shall be nominated by the Director and a copy of the written nomination shall be given to the defendant, and be sent to the nominee, the Registrar of this Court, the Director of Public Prosecutions for the State of South Australia and the Director of the Legal Services Commission of South Australia.
(b)That the directions given to the defendant from time to time under condition 2(a) hereof be in regard to his medical and psychiatric treatment and medication.
(c)That the defendant be psychiatrically reviewed on a regular basis at times directed by the Director or the nominee and further that the defendant comply in every respect with any treatment plan (including the taking of medication) prepared by the Director or the nominee.
3.    That the defendant not use, possess, administer or consume illicit substances or dugs other than those prescribed from time to time by the Director or the nominee and then only at prescribed or recommended dosages.
4.    That the defendant submit himself for urine analysis as and when required and directed by the Director or the nominee or the supervising officer assigned to him pursuant to paragraph 5 herein.
5.    That during the period of his release on licence the defendant be under the supervision of a probation officer from the Department of Correctional Services (“supervising officer”), and for that purpose he report to the office of the Director of Correctional Services at 181 Flinders Street, Adelaide within two working days of the date of this order and that he report then in accordance with the directions of the supervising officer.
6.    That the defendant obey any lawful direction of his supervising officer in relation to literacy and numeracy courses as may be directed by the supervising officer.
7.    That the defendant not have or make any contact with Mr Allan Ebdell.