R v Bober (No 3)

Case [2010] SASC 31

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v BOBER (No 3)

[2010] SASC 31

Judgment of The Honourable Justice Gray

18 February 2010

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - COMMUNITY BASED ORDERS

CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED - OTHER MATTERS

MENTAL HEALTH - DEFINITIONS AND IN GENERAL

Defendant found mentally unfit to stand trial with respect to charge of aggravated unlawfully causing serious harm with intent to cause serious harm, pursuant to section 269MA(5)(b) Criminal Law Consolidation Act 1935 (SA) - objective elements of charge established - defendant declared liable to supervision under Part 8A of the Criminal Law Consolidation Act - supervision order made pursuant to section 269O(1)(b)(i) releasing defendant on licence - limiting term of 10 years fixed - process of fixing of limiting term - review of legislative regime - whether time spent in detention taken into account.

Criminal Law Consolidation Act 1935 (SA) s 5(2), s 269 and s 23(1); Criminal Law (Sentencing) Act 1988 (SA) s 10; Acts Interpretation Act 1915 (SA) s 19 and s 22(1); Criminal Law Consolidation (Detention of Insane Offenders) Amendment Act 1992 (SA); Mental Health Act 1993 (SA) s 12, s 13, s 18 and s 20; Crimes Act 1900 (ACT) Pt 13; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) Pt 5; Criminal Law (Mentally Impaired Defendants) Act 1996 (WA); Criminal Code Act 1995 (NT) sections 43J-43ZD; Crimes Act 1914 (Cth) sections 20B-20BH, referred to.
R v Draoui (2008) 101 SASR 267; R v Davey (2006) 95 SASR 63; R v Weiss [2005] SASC 338; R v King [2004] ACTSC 82; Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; Fothergill v Monarch Airlines Ltd [1981] AC 251; Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404; Bropho v Western Australia (1990) 171 CLR 1; Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251; R v T (1999) 75 SASR 235; R v Ardler [2004] ACTCA 4; Maione v Police [2007] SASC 116; McGlynn [2004] SASC 55; Veen v The Queen (No 2) (1987) 164 CLR 465; K-Generation v Liquor Licensing Court (2009) 237 CLR 501, considered.

R v BOBER (No 3)
[2010] SASC 31

Criminal

GRAY J.

  1. On 19 June 2008 I recorded my finding pursuant to section 269MA(5)(b) of the Criminal Law Consolidation Act 1935 (SA) that Sandra Kay Bober was mentally unfit to stand trial on the charge of attempted murder.[1] 

  2. Following that ruling a new Information was laid alleging that Ms Bober committed the offence of aggravated unlawfully causing serious harm with intent to cause serious harm contrary to…

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R v Bober (No 3) [2010] SASC 31
Case
[2010] SASC 31
Decision Date

CaseChat Overview and Summary

The case of R v Bober (No 3) was heard in the Supreme Court of South Australia. The defendant, Ms Bober, was found to be mentally unfit to stand trial for the charge of aggravated unlawfully causing serious harm with intent to cause serious harm. This determination was made under section 269MA(5)(b) of the Criminal Law Consolidation Act 1935 (SA). Despite her unfitness to stand trial, the objective elements of the charge were established, and Ms Bober was declared liable to supervision under Part 8A of the same Act. The court made a supervision order pursuant to section 269O(1)(b)(i), releasing Ms Bober on licence, with a limiting term of 10 years. The court was required to consider the process of fixing the limiting term, review the legislative regime, and determine whether time spent in detention should be taken into account.

The legal issues before the court included whether the court should consider the section 10 factors in sentencing Ms Bober, given her mental impairment, and how these factors should be weighed in light of her condition. Counsel for Ms Bober argued that the court should consider the aggravating features of the offence, such as the use of a weapon, the number of injuries inflicted, and the relationship between the offender and the victim. However, the court needed to decide whether these factors could be appropriately applied given Ms Bober's mental state. Another issue was whether contrition or remorse could be considered when fixing the limiting term, and whether time spent in detention or under restricted liberty should be taken into account.

The court considered that issues of deterrence and rehabilitation were inextricably linked to Ms Bober's mental impairment and therefore should not be taken into account in fixing the limiting term. The court held that it was not possible to isolate any contrition or remorse from her mental impairment, as both are states of mind. Similarly, the time spent in detention and the restrictions on Ms Bober's liberty were directly linked to her mental condition, and thus should not be considered when determining the limiting term. The court fixed the limiting term of 10 years, taking into account the severity of the objective conduct and the need for continued supervision and treatment for Ms Bober's mental health.

The court ordered that Ms Bober be released on licence under a supervision order, with a limiting term of 10 years. The terms of the licence were set to equate to the strict bail conditions already imposed on Ms Bober. The court's decision was based on the need to ensure Ms Bober's continued treatment and supervision, given her mental impairment and the severity of her actions. The court recognised the importance of balancing public safety with the need to address Ms Bober's mental health issues.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J

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Ratio Decidendi

Legal Principle Established

Established by: GRAY J

It was submitted by counsel for Ms Bober that although Vanstone J in Draoui expressed some difficulty with several section 10 factors, in particular deterrence, rehabilitation and adequate punishment, she did not disregard their application altogether. Counsel did not resile from the fact that the Court should have regard to a number of aggravating features of Ms Bober’s conduct, including the use of a weapon, the number of injuries inflicted, her attempts to stop the victim seeking assistance, that the victim was a family member of Ms Bober, being her spouse, and the maximum penalty for the offence.Consideration of Limiting Term If Ms Bober did not have a defence of mental impairment, and if found guilty of the alleged offence, her crime would have been very serious. She stabbed her husband on nine separate occasions, including while he slept, and later as he telephoned for emergency assistance. Her proven objective conduct was grave. The unchallenged evidence established Ms Bober’s mental impairment. Her illness was described as a general depressive and anxiety state of such severity as to be a diagnosable psychiatric condition. It was this psychiatric condition, this mental state, that accompanied the objective acts. It was this psychiatric condition that led to Ms Bober’s detention from the time of her arrest, and the restrictions on her liberty since that time. With the concurrence of the Director, Ms Bober has been granted bail on terms that equate to the conditions of licence that would attach to a supervision order. These terms were fixed having regard to the consensus of psychiatric opinion. This course was followed to allow full consideration of the submissions that were to be advanced with respect to the fixing of the limiting term. Ms Bober’s liberty has been significantly restricted as a consequence of the strict bail terms to which she has been subject. Having regard to the foregoing, in the circumstances of Ms Bober’s case, issues of deterrence and rehabilitation are necessarily linked to her mental impairment and are not to be taken into account in fixing the appropriate limiting term. It is not possible to consider deterrence in any meaningful way without a consideration of Ms Bober’s mental state. Equally, her rehabilitation, which the evidence suggests is underway, is inextricably linked with her mental impairment. On the hearing of the application, two particular matters arose for consideration: whether any regard could be had to contrition or remorse, and whether time spent in detention and in circumstances where Ms Bober’s liberty had been severely curtailed, could be brought to account. In my view, it is not possible to isolate any contrition or remorse on the part of Ms Bober, from her mental impairment. Contrition and remorse are states of mind. Although there is some evidence that Ms Bober is contrite and remorseful, any assessment of those factors cannot be disentangled from her mental impairment. Ms Bober’s liberty has been curtailed as a direct result of her mental impairment. Again, for this reason, time spent in detention and on bail is not a matter to be taken into account when fixing a limiting term. The submission of the Director accepted that time spent on detention or with impaired liberty was an objective fact. This much may be accepted. However, it is a different question as to whether the defendant’s mental impairment has given rise to, or is inextricably linked to those matters. As earlier observed, in these circumstances, the impact on Ms Bober’s liberty has been occasioned as a direct consequence of, and is directly linked to, her mental impairment.