R v Bober (No 3)
[2010] SASC 31
•18 February 2010
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 31Criminal
GRAY J.
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]
[1] R v Bober [2008] SASC 162.
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 section 23(1) of the Criminal Law Consolidation Act. A nolle prosequi was entered with respect to the earlier charge of attempted murder.
On 19 September 2008 I recorded my finding that Ms Bober was unfit to stand trial in respect of this new Information.[2] At the same time I proceeded with a trial with respect to the objective elements of the offence the subject of this Information.
[2] R v Bober (No 2) [2008] SASC 250; pursuant to Criminal Law Consolidation Act 1935 (SA) section 269MA(5)(b).
The relevant facts surrounding the alleged offence were agreed between the parties in the following terms:
Ms Bober and Edward Bober, the complainant, have been married for over 35 years. On the 15 March 2007 they resided together at 56 Oval Avenue, Woodville.
In the early hours of the morning on the 15 March 2007, Ms Bober stabbed Mr Bober [with a knife] at least 9 times. The first stab wound was inflicted while Mr Bober was asleep in bed. After he woke Ms Bober continued to stab him while he attempted to defend himself. Ms Bober stabbed Mr Bobre [sic] to the back whilst he was on the phone call 000.
…
Paramedics arrived at the scene at 2.59am. They conveyed Mr Bober to the Queen Elizabeth Hospital (QEH). Paramedic Amber Cooper noted Mr Bober had 9 stab wounds, which were marked on the Patient Report Form….
Mr Bober required multiple blood transfusions. He had intra-abdominal bleeding and a haemo-peritoneum. He required a procedure to control this bleeding and plastic surgery to repair a tendon on his right index finger. While in hospital he also suffered recurrent ileus, due to the damage to his abdominal organs.
The stress of the attack also caused a heart attack which complicated the treatment of the various penetrating wounds.
The injuries outlined [above] were as a result of Ms Bober’s actions.
I concluded that I was satisfied beyond reasonable doubt that the objective elements of the offence charged had been established. I made an order declaring that Ms Bober was liable to supervision under Part 8A of the Criminal Law Consolidation Act.[3]
[3] Section 269T mandates that in deciding proceedings under Part 8A the court should have regard to the following:
(a)the nature of the defendant's mental impairment; and
(b)whether the defendant is, or would if released be, likely to endanger another person, or other persons generally; and
(c)whether there are adequate resources available for the treatment and support of the defendant in the community; and
(d)whether the defendant is likely to comply with the conditions of a licence; and
(e)other matters that the court thinks relevant.
The purpose of Part 8A is to provide a scheme for the detention or release of defendants who suffer a mental impairment and as a consequence are acquitted of the charged offence. In making an order under Part 8A, the court must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.[4]
[4] Criminal Law Consolidation Act 1935 (SA) section 269S; R v Draoui (2008) 101 SASR 267 at [44] (Sulan J).
Section 269O provides:
(1)The court by which a defendant is declared to be liable to supervision under this Part may—
(a) release the defendant unconditionally; or
(b) make an order (a "supervision order")—
(i) committing the defendant to detention under this Part; or
(ii)releasing the defendant on licence on conditions decided by the court and specified in the licence.
(2)If a court makes a supervision order, the court must fix a term (a "limiting term") equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court's opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established 1.
(3)At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.
Note—
1The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant's mental impairment.
Pursuant to section 269O, when a person is declared liable to supervision under Part 8A of the Criminal Law Consolidation Act, the court may release the person unconditionally or make a supervision order, either committing the person to detention under Part 8A or releasing the person on licence subject to conditions decided by the court. Part 8A contemplates treatment during detention and on licence. If a supervision order is made, the section requires the court to fix a term limiting the operation of the supervision order.
Having regard to the medical reports concerning Ms Bober and in particular the most recent reports of Dr Czechowicz of 29 June 2009 and the report of Dr Raeside of 24 June 2009, I consider that it is appropriate, pursuant to section 269O(1)(b)(i), to make a supervision order releasing Ms Bober on licence subject to certain conditions, including those pertaining to supervision and treatment. In doing so I must fix a limiting term specifying the period in which Ms Bober shall be subject to those conditions.
Section 269O(2) requires me to fix a limiting term according to the period of imprisonment that would, in my opinion, have been appropriate if Ms Bober had been convicted of the offence of aggravated unlawfully causing serious harm with intent to cause serious harm. The note to section 269O requires that in fixing that limiting term I take no account of Ms Bober’s mental impairment.[5]
[5] That note forms part of the text of the Act: Criminal Law Consolidation Act 1935 (SA) section 5(2); cf Acts Interpretation Act 1915 (SA) section 19; see discussion in R v McGlynn [2004] SASC 55 at [6] (Debelle J, Doyle CJ & Perry J agreeing). A number of cases have confirmed that the fact that a defendant is a person of diminished responsibility by reason of mental impairment is not to be taken into account in fixing the limiting term; see R v T (1999) 75 SASR 235; see also Maione v Police [2007] SASC 116 at [76] (Layton J).
For reasons that follow, I have reached the conclusion that it is appropriate to set a limiting term of 10 years in respect of Ms Bober.
On the analysis of the authorities which have considered Part 8A of the Criminal Law Consolidation Act, it is apparent that no thorough judicial review of the scheme has been undertaken since its introduction.[6] In these reasons I propose to undertake such a review. In reaching my ultimate conclusion, I have considered the legislative history of Part 8A and the overriding purpose of the scheme. In particular, I have considered the purpose and utility of the fixing of a limiting term in the context of a supervision order. This analysis of the provisions of Part 8A in light of the history of the scheme and the authorities which have considered the scheme allows for the following principles to be identified:
[6] Only a small number of cases have considered Part 8A. The analysis of the scheme has been limited to discrete issues that have arisen.
·Part 8A of the Criminal Law Consolidation Act has a primary concern with ensuring the safety of the community.[7]
[7] Criminal Law Consolidation Act 1935 (SA) section 269S; R v Draoui (2008) 101 SASR 267 at [44].
·Part 8A has introduced a legislative scheme for dealing humanely with the mentally impaired.[8]
[8] South Australia, Parliamentary Debates, Legislative Council, 14 November 1995, 398 (Hon K T Griffin, Attorney-General); South Australia, Parliamentary Debates, Legislative Council, 3 August 1994, 33-34 (Hon K T Griffin, Attorney-General).
·Part 8A invests the Court with the responsibility of making findings with respect to mental impairment. This may involve a mental impairment affecting the ability to form the necessary intent to commit a crime[9] as well as a mental impairment affecting a person’s ability to enter a plea to a charge.[10]
[9] Criminal Law Consolidation Act 1935 (SA) section 269C.
[10] Criminal Law Consolidation Act 1935 (SA) section 269H.
·Once a finding of mental impairment has been made, the Court, if it has not already done so, is obliged to consider whether the objective elements of the charged offence have been established.[11]
[11] Criminal Law Consolidation Act 1935 (SA) sections 269F, 269M.
·If the Court so concludes, then the Court is obliged to record a finding to the above effect and to declare a defendant liable to supervision under Part 8A.[12]
[12] Criminal Law Consolidation Act 1935 (SA) section 269MB(2).
·Following the making of such a declaration, the Court is invested with a discretion to either release a defendant unconditionally, or to make a supervision order.[13]
[13] Criminal Law Consolidation Act 1935 (SA) section 269O(1).
·The supervision order can either commit a defendant to detention under Part 8A or alternatively order the release of the defendant on licence on conditions decided by the Court.[14]
[14] Criminal Law Consolidation Act 1935 (SA) section 269O(1)(b); see also section 269Q which provides:
(1)If a defendant is declared to be liable to supervision under this Part, the Minister must, within 30 days after the date of the declaration, prepare and submit to the court by which the declaration was made a report, prepared by a psychiatrist or other appropriate expert, on the mental condition of the defendant containing—
(a) a diagnosis and prognosis of the condition; and
(b) a suggested treatment plan for managing the defendant's condition.
(2)If a supervision order is made against the defendant, the Minister must arrange to have prepared and submitted to the court, at intervals of not more than 12 months during the limiting term, a report containing—
(a) a statement of any treatment that the defendant has undergone since the last report; and
(b)any changes to the prognosis of the defendant's condition and the treatment plan for managing the condition.
·On the making of a supervision order, the Court is obliged to fix a limiting term. [15] This term limits the period during which the supervision order is in force. At the end of the limiting term, the supervision order lapses.[16]
[15] Criminal Law Consolidation Act 1935 (SA) section 269O(2).
[16] Criminal Law Consolidation Act 1935 (SA) section 269O(3).
·The Court retains a discretion on the application of the Crown, the defendant, the Parole Board, the Public Advocate, or any person with a proper interest, to vary or revoke a supervision order, and if revoked, make in substitution any other order that the Court might have made at first instance.[17]
·When fixing a limiting term, the Court engages in a process that is the subject of express statutory provision. The process involves a consideration of the period of imprisonment that would, in the Court’s opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established.[18]
·The legislation, by a note, directs that in determining this period of imprisonment, the Court is not to take into account the defendant’s mental impairment.[19]
·It is this direction that leads to what has been described as an artificial process.[20]
·It is necessary for the Court to consider its findings as to the objective elements and the gravity of the conduct giving rise to those findings.
·The injury sustained by a victim is a relevant objective consideration.[21]
·When regard is had to the other matters identified in section 10 of the Criminal Law (Sentencing) Act 1988 (SA), particular difficulties may arise. For example, section 10(l) obliges the Court when sentencing to have regard to the mental condition of a defendant. The direction in the note earlier referred to precludes any consideration of this factor. Other considerations set out in section 10 may also create difficulties. This will depend on the particular consideration and may depend on the nature of the mental impairment in a particular case.
·Regard cannot be had to the fact that there may have been no contest to the establishment of the objective elements, as this process is not comparable to a plea of guilty.[22]
·Presumably, if cooperation in the investigation of the alleged offence was not impacted by mental impairment, then this could be a relevant consideration.[23]
·These examples illustrate that the Court when fixing a limiting term must consider those sentencing considerations listed in section 10 of the Sentencing Act, that are not impacted upon by the mental impairment of the defendant.
[17] Criminal Law Consolidation Act 1935 (SA) section 269P.
[18] Criminal Law Consolidation Act 1935 (SA) section 269O(2).
[19] Criminal Law Consolidation Act 1935 (SA) section 269O.
[20] R v Draoui (2008) 101 SASR 267 at [69]; R v Davey (2006) 95 SASR 63 at [56]; R v Weiss [2005] SASC 338 at [9] (Bleby J).
[21] See R v Draoui (2008) 101 SASR 267 at [21] (Sulan J); see eg remarks in R v King [2004] ACTSC 82 at [70].
[22] R v Draoui (2008) 101 SASR 267 at [66] (Vanstone J).
[23] See eg R v King [2004] ACTSC 82 at [79].
Principles of statutory construction
Before discussing further the application and interpretation of Part 8A it is appropriate to identify a number of relevant principles of statutory construction.
The adoption of a purposive construction is the usual or general approach to be taken to issues of statutory construction.[24] A purposive approach to statutory construction is also prescribed by section 22(1) of the Acts Interpretation Act 1915 (SA):
[W]here a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
[24] Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 at [88] (Kirby J).
In Palgo Holdings Pty Ltd v Gowans,[25] Kirby J made the following observations in relation to purposive construction:
... a purposive and not a literal approach[26] is the method of statutory construction that now prevails:[27]
“A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act.”
Courts are no longer satisfied with a literal or grammatical meaning of words that does not conform to the presumed legislative intention, including the policy that can be discerned from the law in question.[28] As Lord Diplock explained, in an extra-judicial comment,[29] “if ... the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed”.[30]
[25] Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at [35]-[36].
[26] Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272-273, 275, 280, 290.
[27] Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 (McHugh JA) approved in Bropho v Western Australia (1990) 171 CLR 1 at 20.
[28] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321.
[29] Referring to Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641.
[30] Lord Diplock, ‘The Courts as Legislators’ in Brian Harvey (ed), The Lawyer and Justice (1978) 263, 274; cited in Kingston (1987) 11 NSWLR 404 at 424.
The importance of context as an aid to statutory construction was noted by Kirby J in Palgo Holdings v Gowans:[31]
... the meaning of words in legislation is not derived by taking a word in isolation and construing it as if it existed in a vacuum. In the law, context is critical.[32] In a statute, a word (if undefined) normally takes its meaning from the surrounding text. Isolating a word … and affording it meaning torn from its context is a discredited approach to interpretation, given the way that language is ordinarily used and understood by human beings.[33]
[31] Palgo Holdings v Gowans (2005) 221 CLR 249 at [37].
[32] R (Daly) v Home Secretary [2001] 2 AC 532 at 548 [28] (Lord Steyn).
[33] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396-397, citing R v Brown [1996] AC 543 at 561.
The use of extrinsic materials was discussed by French CJ in K-Generation v Liquor Licensing Court:[34]
The question whether extrinsic materials may be considered in South Australia and in what circumstances they may be considered as an aid to statutory interpretation is to be answered by the common law. The answer at common law is that such materials can be considered to determine, inter alia, the mischief to which an Act is directed. This Court has referred to Hansard in aid of its interpretation of South Australian statutes.[35] In 1996 the Full Court of the Supreme Court of South Australia referred to a minister's Second Reading Speech in order to identify the purpose of a statutory provision.[36]
At common law it is not necessary before entering upon a consideration of such material to surmount a threshold of ambiguity, obscurity or possible absurdity. Statutory interpretation requires the court to have regard to the context in which the words to be interpreted arise and also their statutory purpose. Context includes “the existing state of the law and the mischief which, by legitimate means … one may discern the statute was intended to remedy”.[37]
[34] K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501at [51]-[53].
[35] Gerhardy v Brown (1985) 159 CLR 70 at 104 (Mason J), 111 (Wilson J); Hoare v R (1989) 167 CLR 348 at 360-1.
[36] Owen v South Australia (1996) 66 SASR 251 at 256–7 (Cox J), 257 (Prior J); see also Nemer v Holloway (2003) 87 SASR 147 at 166–7 (Vanstone J); and generally, in relation to South Australia, Pearce, D C, and Geddes, R S, Statutory Interpretation in Australia (6th ed, 2006) at 70–1.
[37] CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408.
In accordance with the above observations, it is instructive to consider the history of the mental impairment provisions in the Criminal Law Consolidation Act, and the intent which informed the enactment of Part 8A.
Relevant Legal history
The mental impairment provisions contained in Part 8A of the Criminal Law Consolidation Act were introduced by the Criminal Law Consolidation (Mental Impairment) Amendment Bill 1994 (SA). The rationale informing the introduction of Part 8A was to clarify the consequences of an alleged offender being found unfit to plead, and to move away from the indeterminate detention that previously applied in such circumstances. This impetus for change was highlighted in the second reading speech:[38]
…the common law is that if a person is found unfit to plead, or is found to be not guilty by reason of insanity, the only outcome can be detention at the pleasure of Her Majesty – that is, indeterminate detention. As a consequence, it is only those charged with the gravest of crimes who elect to invoke these legal procedures. For example, who would risk being labelled as criminally insane and confined for an indefinite period when the allegation is one of, say, common assault, carrying a maximum penalty of two years’ imprisonment?
[38] South Australia, Parliamentary Debates, Legislative Council, 3 August 1994, 33 (Hon K T Griffin, Attorney-General).
This rationale and explanation was expanded upon as follows:[39]
Under current law and common law if a person is found not guilty by reason of insanity, or is found unfit to stand trial, the only disposition option available to a court at first instance is detention at the pleasure of the Crown. Under current law a person who is, for example, found guilty of common assault can, at the very worse [sic], be imprisoned for two years but a person found not guilty by reason of insanity can be detained indefinitely. This fact alone explains why the use of the defence is limited to very serious crimes such as murder. The result is, of course, indefensible. The Bill seeks to provide justice to those people by providing that they cannot be dealt with more harshly than if they had been found guilty for the offence. This disposition is set by the court and is called a limiting term.
[emphasis added]
[39] South Australia, Parliamentary Debates, Legislative Council, 14 November 1995, 398 (Hon K T Griffin, Attorney-General).
The second reading speech adopted the following statement of Matthew Goode who in 1990 circulated a discussion paper on mental impairment and the criminal process and who strongly advocated reform, highlighting a number of reasons which he suggested necessitated action:[40]
The current law is in many respects a farce. It is notorious that mentally ill offenders will not employ the defence unless the penalty involved is likely to outweigh the effect of indeterminate detention. The legislation [as it then stood] is archaically and defensively worded; and those detained as mentally ill offenders have few effective rights. The effect of the system now is that the role of mental illness and intellectual disability in the criminal process is massively understated.
[40] South Australia, Parliamentary Debates, Legislative Council, 25 October 1995, 353 (Hon R D Lawson).
The unsatisfactory state of the law surrounding mental impairment and the consequent and reactive reforms in a number of comparable jurisdictions were outlined in the second reading speech:[41]
[41] South Australia, Parliamentary Debates, Legislative Council, 3 August 1994, 33 (Hon K T Griffin, Attorney-General).
There has been general agreement for many years that the law on these subjects is unsatisfactory. The Commonwealth enacted substantial legislation in 1989 and New South Wales made major amendments to its law in 1990. The Victorian Law Reform Commission recommended substantial change to the common law in that State in 1990, and in England reforms of a similar kind were enacted in 1991.
The defects of the common law may be summarised as follows:
The current law operates badly –
accused people avoid the defence of insanity except where the offence is very serious indeed, because the result of a ‘successful’ defence is indefinite detention;
the legislation is archaic and offensively worded and is, in many respects, ignored in practice;
those detained as mentally ill under the criminal law have few effective rights.
The result of all of this is that the role of mental impairment and intellectual disability in the criminal justice system is massively understated with consequent personal and systemic injustice.
Other jurisdictions in this country have acted to reform their laws on the subject. While the results cannot be described as uniform, there are common themes. Most importantly, the Commonwealth enacted substantial reforms in 1989 and, unless South Australia acts to achieve some kind of consistency, it will result in drastically different treatment for State and Federal detainees. The Government is not urging complete uniformity but some degree of fair consistency is highly desirable.
…
Prior to the 1994 amendments, the first major statutory reform to the system in South Australia was introduced by the Criminal Law Consolidation (Detention of Insane Offenders) Amendment Act 1992 (SA). This Act reformed the existing regime by removing decisions about the release on licence of detainees from the Governor in Council, and instead giving the decision to the relevant court. In addition, the Act provided for the notification and consultation of next of kin and victims, with respect to decisions about release on licence of detainees under the scheme. The Act also required the formulation of ‘treatment plans’ for detainees.
The 1994 amendments were intended to achieve the following further reforms:[42]
It defines ‘mental illness’ using the words chosen for the purpose by the High Court. In particular, the definition includes severe personality disorders for the purposes of ascertaining criminal responsibility and to encompass the situation in which the accused is unable to control his or her conduct due to mental illness;
It defines the roles of judge and jury;
It isolates the question of fitness to plead or mental impairment from other questions which may be at issue in the case so that the judge and jury may concentrate on the issues affecting those fundamental questions;
It ensures that if the question of fitness to plead or mental impairment is raised, the court must first be satisfied that there is sufficient evidence available that the accused actually committed the acts in question;
It empowers a court which finds that the accused is unfit to plead or was not criminally responsible (due to mental impairment) to make the most appropriate disposition with respect to each accused, including detention or a community based treatment program;
It requires a court to set a limit to the exposure of the accused to any supervision order made, the limit being fixed in relation to the penalty which would have been applicable had the accused been found guilty of the offence with which he or she is charged;
It retains the 1992 reforms…with some tidying up and clarification of the roles and responsibilities of those participating in the system who have legal responsibilities in relation to such people.
[emphasis added]
[42] South Australia, Parliamentary Debates, Legislative Council, 3 August 1994, 33-34 (Hon K T Griffin, Attorney-General).
It is to be noted that the mental impairment provisions were primarily introduced in order to modernise and improve the manner in which mentally impaired individuals were to be dealt with by the criminal courts. The reforms were made as a result of the growing awareness and understanding of mental health, and sensitivity as to the interaction between mental illness and the criminal justice system. As the opposition leader observed during the second reading debates:[43]
…It is probably beyond the realm of legislation to resolve all these problems in terms of taking instructions and getting a clear story from a mentally impaired accused person and making decisions about tactical opinions [sic] in the course of the criminal law procedure, but at least this Bill allows mentally impaired accused people to be dealt with more realistically in the court system.
This observation illustrates that although the issues inherent in the interaction between mental health and the criminal justice system may not be surmountable, the reforms recognised that a more realistic and humane treatment of the mentally ill in the criminal courts was required. Ultimately, the amendments were “designed to provide for greater justice and fairness for those with mental impairment who are unfortunate enough to find themselves in the criminal justice system”.[44]
[43] South Australia, Parliamentary Debates, Legislative Council, 24 October 1995, 290 (Hon Carolyn Pickles, Leader of the Opposition).
[44] South Australia, Parliamentary Debates, Legislative Council, 3 August 1994, 397 (Hon K T Griffin, Attorney-General).
It is in this context that the operation and application of Part 8A should be understood. The scheme is primarily beneficial in operation. As the excerpts above make clear, the purpose of the scheme is to provide justice and a degree of mercy to persons suffering from a mental impairment in their interaction with the criminal justice system. This beneficial objective is to be pursued without compromising the protection and safety of the community; that is, the restrictions on the defendant's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.[45] Having regard to the earlier observations as to statutory interpretation, the ultimate purpose of the scheme should provide guidance when considering the application of various provisions in relation to the conditions of a supervision order and the fixing of a limiting term. This process underpins a treatment regime that reflects the seriousness of the crime and the length of time that a person’s freedoms are to be restricted.
[45] Criminal Law Consolidation Act 1935 (SA) section 269S.
It is important to record that the mental health provisions of the Criminal Law Consolidation Act should be read in conjunction with the powers and responsibilities under the Mental Health Act 1993 (SA). In addition, irrespective of any regime put in place under Part 8A, common law requirements relating to mental health remain applicable. It has been observed that the apparent absence of express power under Part 8A to enforce treatment and compliance with the terms of a supervision order, either on an interim or long term basis, may result in reliance on the Mental Health Act[46] to detain and treat mentally impaired defendants who are the subject of a supervision order under section 269.[47] As a consequence, the ordinary regime for the treatment and monitoring of mentally ill individuals in the community may remain applicable despite the operation of Part 8A.
[46] Mental Health Act 1993 (SA) sections 12, 13, 18 and 20.
[47] M Bonesmo, Mental Impairment: Joint Stakeholder Survey (2005) 3.1.2.
Authorities and Analysis
The provisions in Part 8A and, in particular, the fixing of a limiting term pursuant to section 269O, have received limited judicial consideration. A number of authorities which have addressed the provisions have done so on a limited basis, answering questions of narrow scope.
In Question of Law Reserved (No 1 of 1997),[48] the Court established that the length of the limiting term to be fixed for persons falling within section 269O of the Criminal Law Consolidation Act is to be consistent with the length of the head sentence of imprisonment that would have been imposed if the accused had been convicted of the offence rather than found mentally incompetent. In that proceeding, the following question was reserved for the Court of Criminal Appeal:[49]
Does the "term" referred to in s 269O(2) refer to the head sentence of imprisonment which would have been appropriate in the event of a conviction for the offence in question, or to the non-parole period which might properly have been set in those circumstances?
[48] Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251.
[49] Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251 at 264.
Duggan J, with whom Matheson and Nyland JJ agreed, held that the limiting term was referable to the head sentence rather than the non-parole period that would have been appropriate in the event of a conviction for the offence:[50]
Section 5(2) of the Act provides that a note to a section or subsection forms part of the text of the Act unless the note clearly has no substantive effect.
[The Director of Public Prosecutions] submitted that the expression "period of imprisonment" in s 269O(2) refers to the head sentence and not to any non-parole period which might have been imposed. [Defence counsel] submitted that it refers to the non-parole period which would have been appropriate and that the phrase "the aggregate period of imprisonment and supervision" refers to the non-parole period coupled with the period of supervision the person would have been subjected to after release on parole if he had been found guilty and sentenced for the offence.
The phrase "the period of imprisonment" in subs (2) refers to the sentence of imprisonment which would have been passed by the court if the accused had been convicted. This cannot be anything other than the head sentence. The fixing or extending of a non-parole period is included in the definition of "sentence" in the Criminal Law (Sentencing) Act 1988 (SA), no doubt for purposes such as the appeal process. However s 32 of the Sentencing Act makes a clear distinction between the sentence of imprisonment and the consequential order fixing a non-parole period. The approach to the task of sentencing "is to impose a sentence appropriate to the offence in all the circumstances and then but only then, to fix a minimum term in the light of the duration of the sentence imposed": see R v Governor of Her Majesty's Gaol at Pentridge; Ex parte Cusmano [1966] VR 583 at 587. See also Power v The Queen (1974) 131 CLR 623.
Section 269O refers to "the aggregate period of imprisonment and supervision" and [defence counsel] argued that this must refer to the aggregate of the non-parole period and the time which the accused would be likely to serve under supervision on parole after release. He submitted that this was an argument in favour of construing the word "imprisonment" as being a reference to the non-parole period. However if this argument were correct, the court would be involved in making an estimate as to the length of time a person was likely to be on parole. In my view the legislature did not intend that the court should endeavour to estimate the time during which a particular accused might be subject to supervision as a parolee. This is a matter which, in many cases, can only be properly assessed at the expiration of the non-parole period and, in any event, it is an exercise beyond the common experience of the courts. In my view the most likely explanation for the inclusion of the words in parenthesis in subs (2) is that the drafter has overlooked the fact that a sentence of imprisonment followed by a bond with supervision is no longer a sentencing option in this State. I would answer question 7 as follows, "The head sentence".
[50] Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251 at 265.
In T, Doyle CJ briefly discussed the process undertaken in the fixing of a limiting term:[51]
I consider that s 269O makes it clear, by note 1, that in fixing the limiting term the court must not take account of the defendant’s mental impairment. That meant that it was not appropriate to consider the mental impairment from which [the defendant] was suffering, and accordingly it was not appropriate to sentence him on the basis that he was a person of seriously diminished responsibility. In fixing the limiting term it was appropriate for the Judge 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 defendant’s] mental impairment.
It may be that in fixing the limiting term the Court does not engage in exactly the same process that it does when imposing a sentence. Note 1 requires the Court to fix a limiting term “by reference to the sentence that would have been imposed”. But, in my opinion, one cannot say that the Judge should not have regard to a matter such as general and personal deterrence when fixing a limiting term under this provision. I agree that the result may seem harsh, but the terms of the provision are clear. As well, it is important to bear in mind the flexible regime for treatment that is envisaged under Pt 8A…[I]t is relevant to bear in mind that the limiting term does no more than fix the period during which [the defendant] may be subjected to restraints under Pt 8A.
These observations suggest that, while a court does not engage in precisely the same process when fixing a limiting term as it does when imposing a sentence, personal and general deterrence are factors that may be considered.
[51] R v T (1999) 75 SASR 235 at 242.
In Draoui[52] the Court of Criminal Appeal considered the proper approach to be taken when fixing limiting terms. The question for the Court was whether the limiting term that had been fixed for the appellant was excessive. The appellant submitted that the sentencing Judge had fallen into error in two respects; that the limiting term did not reflect the sentence of imprisonment that would be imposed for similar conduct in the absence of mental impairment, and that the Court had failed to take into account the fact that the appellant did not challenge the objective facts as charged on the Information. Vanstone J observed:[53]
[52] R v Draoui (2008) 101 SASR 267.
[53] R v Draoui (2008) 101 SASR 267 at [65]-[69], [87] (Vanstone J, Doyle CJ, Duggan, Sulan & Anderson JJ agreeing).
The reference in s 269O(2) to "the period of imprisonment ... that would ... have been appropriate if the defendant had been convicted of the offence" must be taken to attract the factors enumerated in s 10 of the Criminal Law (Sentencing) Act 1988 SA, so far as they "are relevant and known to the court": s 10(1) of the Sentencing Act. For the reasons which follow I consider that the factor found in s 10(1)(g) -- the fact of a plea of guilty -- cannot be relevant to the task contemplated by s 269O(2) of the CLCA.
In my opinion the words "a term ... equivalent to the period of imprisonment ... that would ... have been appropriate if the defendant had been convicted" in s 269O(2) cannot accommodate the reduction in sentence which would have been given to a defendant who had pleaded guilty. What the section requires is an exercise or calculation which is hypothetical. It is hypothetical, first, because in determining what sentence would otherwise have been imposed no account is to be taken of the defendant's mental impairment and, secondly, because it is based on the premise that the defendant had been found guilty of the offence. He has not been. Under the legislative framework he has either been found mentally incompetent and therefore not guilty, or mentally unfit to stand trial.
It would be contrary to the thrust of the legislation to assume those two false premises as required, but then have regard to the way the trial of the objective elements was conducted and use that conduct to reduce the figure otherwise reached. I say that because to do so would be to go behind one of the false premises which the judge is required to act upon and to build into it an antecedent step. This would require the judge to reason in this way: I am to determine the sentence I would pass for this offence if a mentally sound person (otherwise of the defendant's characteristics) were found guilty of it, but because he made admissions on his trial of the objective elements, I shall go further and incorporate an assumption that he was found guilty on his own confession. To me this is illogical. Therefore I do not think the way the trial of the objective elements was conducted is permitted by the section to play any part in the hypothetical calculation of the sentence.
I do not consider this result is either harsh or surprising. A court fixing a limiting term under this section is not imposing a penalty. The purpose of the supervision order is not to penalise, but to both protect the public and to secure to the defendant such supervision and treatment as is available and appropriate. As Doyle CJ said in R v T (1999) 75 SASR 235 at 242:
As well, it is important to bear in mind the flexible regime for treatment that is envisaged under Pt 8A. There is no denying the impact that the fixation of a limiting term might have on [the defendant]. But it is relevant to bear in mind that the limiting term does no more than fix the period during which [the defendant] may be subjected to restraints under Pt 8A.
Furthermore, s 269P allows the court, at a later time, to "vary or revoke a supervision order" and to substitute any other order which might have been made in the first instance. Therefore, if a supervision order is found to be unnecessarily restrictive, its terms can be varied.
I digress to say that there may be difficulty in having regard to some of the other factors relating to the defendant listed in s 10(1) of the Sentencing Act. For example, s 10(1)(j) (deterrent effect), (k) (adequate punishment) and (m) (rehabilitation) can only be applied to this task at the cost of some further artificiality. Reference to the defendant's mental impairment, s 10(1)(l), is, as mentioned, specifically precluded by the Note to s 269O(2) of the CLCA. Arguably, that would mean that nothing about his mental condition should be taken into account when addressing the s 269O task.
…
But in any event, for the reasons earlier given I do not consider either that admission of the objective elements of an offence is to be equated with a plea of guilty, or that the terms of s 269O admit of such a consideration. Moreover, an acknowledgment of the objective elements of an offence in the context of a Pt 8A inquiry (particularly where the defendant was unfit for trial) would not likely proceed from any of these motivations. Indeed, where the defendant is unable to instruct counsel and counsel takes decisions in the exercise of the independent discretion, as permitted by s 269W, it would, in my view, be incongruent to afford credit to the defendant.
These observations make clear that a court in fixing a limiting term is not entitled to reduce the length of the limiting term if the defendant does not take issue with or contest the objective facts or allegations of a charge, in the same way as a reduction may be made in sentencing on account of a guilty plea. The observations further highlight the artificiality and consequent difficulty involved in having regard to the terms of section 10 of the Sentencing Act relevant to sentencing generally.
In a separate judgment, Sulan J, having noted the difficulty of comparing sentences generally, also highlighted the difficulty involved in fixing a limiting term without having regard to the person’s mental impairment at the time of offending:[54]
The court in determining the length of a limiting term is prohibited from taking into account a person’s mental impairment at the time of the offending, which further demonstrates the difficulty of comparing the length of a sentence with the length of a limiting term.
[54] R v Draoui (2008) 101 SASR 267 at [23] (Sulan J, Doyle CJ, Duggan, Vanstone & Anderson JJ agreeing).
In Davey[55] an authority preceding Draoui, the Court of Criminal Appeal considered section 269O(2). Although Draoui overruled Davey in relation to the relevance of a person agreeing the objective elements of the offence, the general observations as to the operation of section 269O retain relevance.
[55] R v Davey (2006) 95 SASR 63.
In Davey Bleby J emphasised the difficulties inherent in fixing a limiting term “by reference to” the sentence that would have been imposed on a conviction for the offence:[56]
The exclusion from consideration of the defendant’s mental impairment must mean that a number of matters which would normally favour leniency or mitigation of the sentence are necessarily excluded from consideration. That presents a difficulty, but the Court must do the best it can in fixing the limiting term “by reference to” the sentence that would have been imposed if the defendant had been found guilty of the relevant offence, without taking into account the mental impairment.
In determining what would have been appropriate for a sentence, there are certain factors referred to in s 10 of the Criminal Law (Sentencing) Act 1988 which will have a substantial influence on that determination regardless of the defendant’s mental impairment. The seriousness of the offence and the injury, loss or damage resulting from it are clearly matters which have a substantial bearing on the length of any sentence and, in this case, on the length of any limiting term. Other factors in this category include the aspect of protection to the community against the performance or repetition of the act constituting the offence. Other such factors include the age, means (if relevant at all) and physical condition of the defendant.
[56] R v Davey (2006) 95 SASR 63 at [6] – [7].
In Davey, I considered the context in which the requirement to not have regard to mental impairment when fixing a limiting term, is to be considered and in this respect observed:[57]
The legislation does not discriminate against a person who suffers mental impairment or who is not fit to plead. The legislation provides a humane regime for the treatment of the mentally impaired. Part 8A provides flexibility with respect to a person detained under a supervision order
Section 269P of Part 8A provides that a supervision order can be varied or revoked at any time. Section 269T provides the court with power, when determining whether an order should be varied or revoked, to consider the issue of mental impairment. Importantly, Part 8A provides that, if a defendant is sufficiently rehabilitated before the expiration of the limiting term, application can be made to vary or revoke a supervision order.
If a defendant, at the end of the limiting term, is still a danger as a result of mental infirmity, application can be made pursuant to the provisions of the Mental Health Act 1993 (SA) for continued detention.
It is within this context that the note to section 269O(2) must be considered. The legislature intended that the court fix a limiting term having regard to the gravity of the objective conduct whilst allowing for a supervision order to be varied or revoked on a consideration of a defendant’s ongoing rehabilitation. The limiting term is not intended to be punishment. A defendant has not been found guilty. Rather, a limiting term ensures that a defendant receives the appropriate period of detention or control and supervision relevant to the conduct the subject of the charge. It also enables treatment to be provided, and it allows the community to be protected whilst a defendant receives treatment. It does not unfairly disadvantage a defendant to fix a limiting term without considering mental impairment.
Notwithstanding that the rationale for fixing a limiting term is clear, the process of doing so has been described as an “artificial exercise”.[58] To fix a limiting term by reference to a sentence that would have been imposed had the defendant been found guilty of the relevant offence without taking account of mental impairment is necessarily contrived. Mental impairment is relevant to many factors that could arise in the sentencing process. The description of “artificial” is apt.
[57] R v Davey (2006) 95 SASR 63 at [50] – [54].
[58] R v Weiss [2005] SASC 338 at [9] (Bleby J).
The above authorities accept that, having regard to the terms of the statute, the process of fixing a limiting term necessarily involves a degree of artificiality.
Observations in interstate authority on broadly comparable but differently worded legislation[59] provide an indication of the manner in which a limiting term may be set by reference to the term of imprisonment that would have been imposed if the person was competent and found guilty, despite the artificiality of that process.[60]
[59] Crimes Act 1900 (ACT) Part 13; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) Part 5; Criminal Law (Mentally Impaired Defendants) Act 1996 (WA); Criminal Code Act 1995 (NT) sections 43J-43ZD. Crimes Act 1914 (Cth) sections 20B-20BH.
[60] See eg R v King [2004] ACTSC 82 at [69]-[71], [78]-[81].
It is instructive to note that the Australian Capital Territory provisions are similarly informed by the intention that those with mental impairments who come into contact with the criminal justice system are not treated more harshly than those who are mentally fit and found guilty of the relevant charge. In this context, the following was observed by the ACT Supreme Court in Ardler[61] having assessed the various regimes in place when an accused lacks fitness to plead:[62]
An adverse finding in each of the jurisdictions referred to results in the making of a supervisory and/or detaining order with some form of limiting term referable to the potential sentence that might have been imposed had there been a full trial. Leaving aside the difficulties in setting such a period and the artificiality of so doing (in Victoria, it is an arbitrary nominal term) the purpose is to afford treatment to the accused within a regime referable to (and limited by) what might have been the accused’s liability to punishment had the offence been proved against the accused in an ordinary criminal trial.
[emphasis added]
The above observation again emphasises the common fundamental thrust of the differing regimes and the purpose of the setting of a limiting term.
[61] R v Ardler [2004] ACTCA 4.
[62] R v Ardler [2004] ACTCA 4 at [54] (Higgins CJ, Gray and Whitlam JJ).
The purpose of the supervision order and limiting term is to protect the public and to that end to secure the defendant for supervision and treatment as is available and appropriate having regard to their mental condition,[63] while limiting such restraint by the accused’s potential liability to punishment had the offence been proved against the accused in an ordinary criminal trial. The limiting term does no more than fix the period during which a person may be subjected to restraints under Part 8A.[64] Despite the artificiality of the process, it is intended to provide a more humane method of dealing with the mentally ill who come into contact with the criminal justice system, than the imposition of “detention at the pleasure of Her Majesty”.
[63] R v Draoui (2008) 101 SASR 267 at [68] (Vanstone J).
[64] R v T (1999) 75 SASR 235 at 242 (Doyle CJ).
The requirement that the Court is not to take into account the mental impairment in fixing a limiting term, removes mental impairment as a potential section 10 factor to be considered in assessing an otherwise appropriate sentence for the conduct in the event of a conviction. Such consideration would ordinarily be relevant in potentially mitigating an offender’s conduct and reducing their sentence, were they to stand trial and be found guilty of the offence. However it may also lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality.[65] The effect of a mental condition is irrelevant in the fixing of a limiting term, as the court in fixing that term is not imposing a penalty.
[65] See the discussion of the High Court in Veen v The Queen (No 2) (1987) 164 CLR 465 at 476-477 (Mason CJ, Brennan, Dawson & Toohey JJ).
It is to be observed that the nature of the mental illness, its effect on the person and the appropriate supervision and treatment for that illness are addressed by the terms of the supervision order imposed. The mental health of a person, although not to be taken into account in the fixing of a limiting term, is a fundamental consideration when assessing the treatment and care requirements of an individual coming under the auspices of the Part 8A regime.
Having regard to the above, in fixing a limiting term, the section 10 factors that would ordinarily be relevant in fixing a head sentence for the charged offence should be applied, save for those factors where mental impairment has a relevance. Such an approach was recognised by Bleby J in Davey, where he observed that the exclusion from consideration of the defendant’s mental impairment must mean that a number of matters which would normally favour leniency or mitigation of the sentence are necessarily excluded from consideration. This approach also received limited support in Draoui where Vanstone J noted that arguably nothing related to the mental condition should be taken into account when addressing the section 269O task of fixing a limiting term, resulting in further artificiality in the task when having regard to some of the section 10 factors, particularly deterrence, adequate punishment and rehabilitation.[66]
[66] R v Draoui (2008) 101 SASR 267 at [69] (Vanstone J).
That this approach may result in a seemingly harsh outcome is ameliorated by the flexibility of the regime under Part 8A in comparison with the sentencing regime. In addition, it is also relevant to note that while matters of mitigation may be excluded from consideration in the setting of a limiting term, so too may matters of aggravation and matters that might otherwise tend to increase a sentence. As observed above, the needs of a person with respect to their rehabilitation and the need to protect the community, matters directly referable to their mental condition, are addressed through the terms of a supervision order. The limiting term is a period during which the person will be subject to that order. A supervision order is subject to variation and revocation pursuant to section 269P.[67] This may be contrasted with the fixing of a head sentence, which is final once fixed and only subject to appeal. The variation or revocation of a supervision order is undertaken by reference to the mental condition of the individual and the protection of the community.
[67] Section 269P provides:
(1) At any time during the limiting term, the court may, on the application of the Crown, the defendant, Parole Board, the Public Advocate or another person with a proper interest in the matter, vary or revoke a supervision order and, if the order is revoked, make, in substitution for the order, any other order that the court might have made under this Division in the first instance.
(2) If the court refuses an application by or on behalf of a defendant for variation or revocation of a supervision order, a later application for variation or revocation of the order cannot be made by or on behalf of the defendant for six months or such greater or lesser period as the court may direct on refusing the application.
In McGlynn,[68] Debelle J commented on section 269P and noted that the ability to vary a limiting term is an indicator that the fixing of a limiting term is an altogether different regime from the fixing of a head sentence:
Unlike a head sentence which, subject to appeal, is not capable of being varied, a limiting term may be varied in consequence of an application made pursuant to s 269P. The policy expressed in s 269O and s 269P and in the following provisions in Part 8A of the Act which follow them is that a person with a mental impairment who is subject to a supervision order will be under supervision during the limiting term but, if the offender's mental condition improves and the offender establishes the other matters prescribed in Part 8A (in particular those prescribed by s 269R), the offender may be released unconditionally or released on licence. If released on licence, the limiting term continues to operate so that, if the offender breaches a condition of his licence, the release on licence might be revoked pursuant to s 269U. This régime is, therefore, all together different from the fixing of a head sentence and of a non-parole period for offenders who do not suffer from a mental impairment.
[68] R v McGlynn [2004] SASC 55 at [12] (Debelle J, Doyle CJ & Perry J agreeing).
The ability to vary or revoke a supervision order allows considerable flexibility according to the varying circumstances of persons falling under the auspices of the regime. Indeed, this was one of the intentions of the amendments as articulated in the second reading speech:[69]
It empowers a court which finds that the accused is unfit to plead or was not criminally responsible (due to mental impairment) to make the most appropriate disposition with respect to each accused, including detention or a community based treatment program.
The above observations illustrate once more the dual purposes of the making of a supervision order and the fixing of a limiting term. As observed in Davey:[70]
The legislature intended that the court fix a limiting term having regard to the gravity of the objective conduct whilst allowing for a supervision order to be varied or revoked on a consideration of a defendant’s ongoing rehabilitation.
[69] South Australia, Parliamentary Debates, Legislative Council, 3 August 1994, 33 (Hon K T Griffin, Attorney-General).
[70] R v Davey (2006) 95 SASR 63 at [53] (Gray J).
Contentions of Counsel
Counsel for both the Director of Public Prosecutions and the defence submitted that the observations in Draoui did not preclude the Court from taking into account the matters set out in section 10 of the Sentencing Act in fixing a limiting term, as far as those matters “are relevant and known to the Court”. [71] However, both counsel acknowledged that the Court is constrained in this respect as Ms Bober’s mental condition is not a factor to which the Court may have regard.
[71] R v Draoui (2008) 101 SASR 267 at [65].
Counsel for the Director emphasised that the need to protect the community and issues in relation to Ms Bober’s rehabilitation, are issues that are based upon or arise out of her mental condition. As such, the contention was that these matters may not be considered in setting a limiting term although they are relevant when the Court is considering whether to release the defendant unconditionally or whether to release the defendant on licence. Counsel further noted that as Ms Bober was found mentally unfit to stand trial, any contrition and remorse expressed by Ms Bober in relation to her conduct must be assessed on the understanding that she does not have capacity to fully understand her actions.
Counsel for Ms Bober submitted that the Court is not precluded from having regard to a number of factors said to be mitigatory when fixing a limiting term for Ms Bober, including her previous good character, her age, her physical health, the time she has spent in custody and in institutions, the concerns of the victim and the fact that the offence was not premeditated.
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.
Relevant considerations when fixing a limiting term are the objective factors of Ms Bober’s age, the length of her marriage and that she has no prior record of criminal offending. On the other hand, her objective proven conduct as earlier observed is very serious. The maximum penalty provided for the offence of aggravated unlawfully causing serious harm with intent to cause serious harm is imprisonment for 25 years. Having regard to all relevant factors, I consider it appropriate to fix a limiting term of 10 years. It is to be expressly recorded that this is not a punishment. It is merely fixing the limits to the term of the supervisory order. As earlier noted, if circumstances change, Ms Bober may apply to vary or discharge the order.
It is to be understood that the supervisory order, which in Ms Bober’s case will involve a release on licence, will be designed, having regard to her ongoing mental impairment, to address the safety of the community. The terms of the licence that I intend to approve have been the subject of consultation between the Director, Ms Bober’s legal representatives and the reporting psychiatrists. All have agreed that the terms proposed provide the necessary protection of the community as well as addressing the circumstances of Ms Bober, including her mental impairment. Both the public interest and the interests of Ms Bober are best served by Ms Bober’s close and ongoing psychiatric treatment and supervision.
19
28
1