R v Behari - [2011] SASC 111

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v BEHARI
[2011] SASC 111
Reasons for Sentence of The Honourable Justice Kourakis
26 May 2011
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - GENERALLY
Defendant mentally unfit to stand trial - whether in fixing a limiting term Court must proceed as if sentencing for offence constituted by objective elements in ignorance of mental state of accused - whether antecedents should be considered - whether time in custody taken into account.
Held: in fixing a limiting term Court must not take into account mental state of accused at time of offending - antecedents must be considered - time in custody should be taken into account.
Acts Interpretation Act 1915 (SA) s 19; Criminal Law Consolidation Act 1935 (SA) s 269H, s 269N(3), s 269O, referred to.
R v Sumner [2010] SASC 43, applied.
R v Bober (No 3) (2010) 107 SASR 165, not followed.
Veen v The Queen (1979) 143 CLR 458; R v McLaren (2009) 105 SASR 29, considered.

R v BEHARI
[2011] SASC 111
Criminal

KOURAKIS J: Demal Behari, I have found that you are mentally unfit to stand trial. I have also found that you engaged in conduct constituting the objective elements of three offences of attempted murder, an offence of causing serious harm, an offence of endangering life and an offence of creating a risk of bodily harm. The conduct occurred over a period of about 30 minutes in which residents of and visitors to Snowtown were terrorised. It has left the victims and their families and many others in the township permanently traumatised.
Shortly after midday on 1 April 2009 you were in Snowtown in your four-wheel drive motor vehicle. You saw Janet Teague and her mother, Mavis Kerley, in a Toyota Camry. You initially drove past them but then returned, stopping your vehicle across from where they were parked. You stared at them for a while before again driving off. Ms Teague and Ms Kerley then drove out of Snowtown. They were travelling at about 110 kilometres per hour when Janet Teague saw you following her in your four-wheel drive. You sped up and drove your vehicle into the rear of Ms Teague’s Camry. Ms Teague pulled over to the left-hand side of the road and you pulled up your four-wheel drive in front of the Camry. Mavis Kerley and Janet Teague got out of the car to assess the damage. You approached them saying “you follow me”. You then ran towards Ms Kerley holding a knife. You slashed the knife once across her neck causing her to fall backwards on to the ground. You then ran towards Ms Teague and slashed her throat several times. She attempted to fight you off using her arms and legs. When you desisted both Ms Teague and Ms Kerley ran into the car. They drove into the Snowtown Police Station arriving there at about 1:20 pm. That is the objective conduct constituting two of the offences of attempted murder.
Ms Teague required 20 stitches to her throat. Whilst the wound has healed the scars on her throat remain as a constant reminder of the day. The trauma of the event has left her weak and often emotional. She becomes easily stressed and finds it hard to learn new things. She has lost confidence at work. She does not sleep well and feels depressed. In the words of her daughter she is “not the same anymore”.
Ms Kerley required surgery and stiches. She still suffers pain from her injuries and has to take medication for it. The trauma has left her suffering nightmares and flashbacks. She has many sleepless nights and some days is unable to leave the house. She receives ongoing counselling from her doctor but still finds it hard to go out in public. Ms Kerley understandably says that she has been robbed of life as she knew it.
At about 1:15 pm, Andrew Marriott awoke from a nap he had taken in his prime mover, which was parked on a street corner. Whilst he was checking the tyres you drove your vehicle around the corner and into Mr Marriott, throwing him nearly a metre along the road. You then continued down Railway Service Road knocking over two traffic signs. Mr Marriott sustained a fractured hip as a result of the collision. That is the objective conduct constituting the offence of causing serious bodily harm.
Either shortly before or just after you knocked over Mr Marriott, Colin Bird was standing on the footpath outside his scrap metal business. Mr Bird is the victim of the third count of attempted murder. You drove your four-wheel drive towards Mr Bird’s position and then accelerated sharply onto the footpath. You struck him whilst travelling between 50 and 60 kilometres per hour. The four-wheel drive continued through the fence of the scrap metal yard pushing Mr Bird a distance of some four or five metres away from the initial point of impact. You eventually left through a closed gate on the West Terrace entrance of the yard. Mr Bird sustained multiple injuries including a crushed pelvis and ruptured spleen. He is unable to work and is in constant pain. He has lost his livelihood as he can no longer drive a truck. He requires further surgery because of his injuries and pain. He cannot sleep and takes medication to sleep as well as antidepressant medication. He hardly goes out because he becomes distressed if he sees a vehicle similar to yours. He is no longer able to take care of himself.
Again, soon after, or just before, striking Colin Bird, you drove your four-wheel drive in a manner which amounted to the offences of endangering the life of Ray Lidstone and creating a risk of bodily harm to Luke Bird. Both young men had been in Mr Lidstone’s car which was parked outside his house. You called Mr Lidstone over to your four-wheel drive. As he approached you, you revved the engine of your vehicle and accelerated quickly towards him. He jumped over the bonnet of his car to avoid being hit. You smashed your vehicle into the driver’s door and centre pillar of Mr Lidstone’s car and then drove it up, onto, and over the car. You eventually extricated your four-wheel drive from Mr Lidstone’s car. Luke Bird scrambled out as you did so. He suffers from flashbacks and dreams that he is being driven at. When he is out walking he panics that something like this will happen again. He takes antidepressant medication. He does not go out much and he has problems trusting people.
At about 1:25 pm, a police officer who had attended in response to the collision of Colin Bird saw you in your four-wheel drive. He directed you to stop and come out of the vehicle. You did so and you were then arrested.
I am required by s 269O of the Criminal Law Consolidation Act 1935 to fix a limiting term which is ‘equivalent’ to the period of imprisonment that would have been appropriate ‘if [you] had been convicted of the offence of which the objective elements have been established’. The exercise required by s 269O(2) of the Act is problematic for several reasons. The limiting term is not a sentence. However, it is nonetheless to be fixed by reference to a hypothetical sentencing exercise. Moreover, that hypothetical sentencing exercise is one, which the note to s 269O of the Act observes, is to be undertaken ‘without taking account of the defendant’s mental impairment’. Notes do not form part of an Act.[1] Nonetheless, the nature and parameters of the power I must exercise can be discerned with sufficient clarity from its statutory context.
[1] Acts Interpretation Act 1915 s 19.
The first aspect of that context is the limited nature of my finding that the objective elements of the offences were satisfied. Objective elements of an offence means an element of the offence that is not a subjective element. A subjective element of an offence means a mental element and includes voluntariness. On the trial of the objective elements I was required to exclude from consideration the question of whether your conduct was defensible.[2] The circumstances that no finding can be made concerning the mental elements of the alleged offences critically affects the way in which the limiting term is fixed, as I will shortly explain.
[2] Criminal Law Consolidation Act 1935 s 269N(3).
The second aspect of the statutory context is the degree of mental impairment which is a necessary condition for the making of a supervision order. Supervision orders and limiting terms are made either because an accused is not mentally competent or is unfit to stand trial. An accused is not mentally competent if he does not know the nature and quality of the conduct alleged to give rise to the offence, or does not know that the conduct is wrong or is unable to control the conduct. An accused is mentally unfit to stand trial if his or her mental processes are so distorted or impaired that he or she is unable to understand, or respond rationally, or to give rational instructions to the exercise of procedural rights, or is unable to understand the nature and course of the proceedings.[3]
[3] Criminal Law Consolidation Act 1935 s 269H.
It is a consequence of the conditions for making supervision orders and limiting terms that they will commonly, although not necessarily, be made with respect to persons who, by reason of their mental state, are either unlikely to have formed a guilty intention or, if an intention were formed, are likely to have acted in a state which the common law may have accepted as one of diminished responsibility for the purpose of sentencing.. In those circumstances it would be problematic to take into account the mental state which accompanied the objective elements as part of the required hypothetical sentencing exercise. The very mental impairment which renders the accused unfit to stand trial would make a determination of the mental state very difficult. Indeed, it may be self-contradictory to do so, because the mental state may not be a culpable one.
The third aspect of the statutory context to which I refer is the very nature of supervision orders and limiting terms. They are prophylactic and remedial in nature. The tension which arises when sentencing persons with mental impairments under the criminal law between the mitigating effect of their diminished responsibility on the one hand and the increased need for community protection on the other[4] is ameliorated by fixing a limiting term because the Act allows for release into the community on licence and ultimately discharge when there is no longer any risk to the community. Those options are not available under criminal sentencing regimes.
[4] Veen v The Queen (1979) 143 CLR 458.
It follows, in my view, that in fixing a limiting term the court must proceed as if it is sentencing for an offence constituted by the objective elements it has found but where it has been left in ignorance of the mental state of the accused. It can neither reduce the limiting term by reason of diminished responsibility nor increase it by reason of callous premeditation or disregard for the suffering of the victims. In that way, fixing a limiting term will not be plagued by the difficulty of ascertaining the relevant guilty mental state to which I have referred nor will the period during which the psychiatric care is provided be reduced on account of diminished responsibility arising out of the very mental condition which requires treatment.
For these reasons the evidence which suggests that you, Mr Behari, acted in a way which was reactive to a delusional fear of the people you attacked cannot be taken into account. That motivation is inextricably linked to the subjective elements of the offending which cannot be found and which must be ignored for the purposes of fixing a limiting term.
However, exclusion of any consideration of the mental element of a defendant, which is necessary by reason of the very nature of the function of fixing a limiting term, does not require exclusion of his or her antecedents. The family and social circumstances and previous good character of a defendant are distinct matters which must still be taken into account.
In my view, time spent in custody must also be taken into account. The fact that a defendant has been kept in a particular psychiatric institution after his or her arrest does not mean that period on remand cannot be taken into account. The fact that a defendant has been detained prior to sentencing is a distinct consideration from his or her subjective responsibility for the offending conduct. Persons suffering from a mental impairment sufficient to require incarceration in a psychiatric institution may nonetheless be found mentally fit and competent and ultimately guilty of a criminal offence. The period spent in custody by them may, and often is, taken into account even though, depending on the circumstances, the weight it is given might vary.[5]
[5] R v McLaren (2009) 105 SASR 29 at [23], [38].
It follows that I prefer the approach of Sulan J in R v Sumner[6] to that of Gray J in R v Bober.[7] In my respectful opinion, the view of Gray J approaches the note as if it was part of the section and gives it an operation beyond its strict terms. Section 269O(2) of the Act requires only that the court fix a term which would have been appropriate if the defendant had been convicted of the offence of which the objective elements had been established, and does not require the exclusion of matters personal to the defendant. As I explained above, the exclusion of the defendant’s mental impairment is required by a negative implication arising from the statutory context to which I have referred. It is that implication which is commented on by the note. It would, in my respectful opinion, be an error to exclude other mitigating circumstances from the hypothetical sentencing exercise when making an order depriving a person of his or her liberty, notwithstanding the prophylactic and remedial objectives of the order to which I have earlier referred.
[6] R v Sumner [2010] SASC 43.
[7] R v Bober (No 3) (2010) 107 SASR 165 at [57].
Mr Behari, you are 44. You were married but have been separated for four years. You have four children. They are cared for by their mother and reside in Western Australia.
You have been in custody since 2 April 2009. You have a 14 year history of chronic paranoid schizophrenia. You have been admitted to psychiatric hospitals in Western Australia, New South Wales and South Australia. Although you have responded moderately well to medication there is, as I have earlier found, no real prospect of improvement in the level of your cognitive functioning. You are likely to remain substantially impaired in your cognitive and social functioning well into the future.
If I were to sentence you for the offences committed by the objective conduct which I have found I would have proceeded as follows.
The offences of attempted murder committed on Mavis Kerley and Janet Teague were, as I have said, terrifying. They were terrorised by your conduct over a protracted period. The terror of being attacked by knife on the side of a country road cannot be overstated. Even though they were able to drive back into Snowtown, events need only to have unfolded in a slightly different way and they have would not have survived the attack. In my view, concurrent sentences would have been appropriate because the conduct essentially comprises a single criminal episode that occurred over a very short period of time. Although one sentence will be imposed it must, of course, reflect the fact that there were two victims. I would, if sentencing for the criminal offence constituted by the objective conduct, have imposed a sentence of 12 years.
The attack on Colin Bird could have easily ended in loss of life. Although occurring within a short time of the offences on Ms Kerley and Ms Teague it was a distinct offence and was committed in a different way. Nonetheless, I would have made the sentence partially concurrent resulting in the imposition of a further period of five years cumulative on counts one and three.
For the offence against Mr Marriott I would have imposed a sentence of five years but again allowing for some partial concurrency I would have imposed a further term of four years cumulative upon the sentence imposed on counts one, three and five.
For the offences against Mr Lidstone and Luke Bird I would have imposed sentences concurrent as between themselves, but allowed for some degree of overlap with the other sentences, imposing a further cumulative term of three years.
The pre-existing estrangement from your children, your psychiatric illness and the lack of any evidence about the effects of prolonged detention on your children does not allow me to find that there is sufficient reason to reduce the term I would have imposed by reason of the hardship which might be suffered by your family.
The cumulative length of the sentences I would have imposed is 24 years. I would have reduced that period by two years and one month to reflect the time you have already been detained. I, therefore, fix a limiting term of 21 years and 11 months.