R v Bohner - [2017] SASC 180

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v BOHNER
[2017] SASC 180
Reasons for Decision of The Honourable Justice Hinton
6 December 2017
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
On 8 September 2016, under s 269F of the Criminal Law Consolidation Act 1935 (SA) (the Act), Kelly J found the applicant not guilty of the offences of attempted murder and aggravated causing harm with intent by reason of his being mentally incompetent to commit those offences. Her Honour declared the applicant liable to supervision under Division 4 Subdivision 2 of the Act and made an order under s 269O committing him to detention. On 11 April 2017 Kelly J set a limiting term of 11 years, five months and 12 days.
By application dated 31 October 2017, Mr Bohner applied to this Court for an order varying the supervision order. Since the making of the supervision order the applicant's health has deteriorated such that hereafter his needs will best be met by a nursing home. The medical reports provided state that he is at low risk of recidivism due to advanced dementia.
Held:
1. Application granted.
2. The supervision order is varied subject to conditions.
Criminal Law Consolidation Act 1935 (SA), referred to.

R v BOHNER
[2017] SASC 180
Criminal: Application
HINTON J.
Introduction

On 8 September 2016, under s 269F of the Criminal Law Consolidation Act 1935 (SA) (the Act), Kelly J found the applicant, Andrew Brenton Bohner, not guilty of the offences of attempted murder and aggravated causing harm with intent by reason of his being mentally incompetent to commit those offences.[1] Consequent upon making those findings her Honour declared Mr Bohner liable to supervision under Division 4 Subdivision 2 of the Act and made an order under s 269O committing him to detention. On 11 April 2017 Kelly J set a limiting term of 11 years, five months and 12 days.[2]
[1] R v Bohner [2017] SASC 57.
[2] R v Bohner [2017] SASC 57.
By application dated 31 October 2017, Mr Bohner has applied to this Court for an order varying the supervision order. Sadly Mr Bohner’s health has deteriorated such that hereafter his needs will best be met by a nursing home.
On 23 November 2017 I granted Mr Bohner’s application and varied the supervision order made by Kelly J. I ordered that Mr Bohner be released on licence in order that he may be cared for in a suitable nursing home. My reasons follow.
Mr Bohner’s circumstances
It is unnecessary to set out the circumstances of Mr Bohner’s conduct that lead to him being charged with the offences of attempted murder and aggravated causing harm with intent. That conduct is set out in Kelly J’s reasons.[3] Her Honour also referred to Mr Bohner’s mental health history. She recorded:[4]
[5]The defendant is now 48 years old. At the time that these two offences were committed he was 45 years old.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bohner

Details

AGLC: R v Bohner [2017] SASC 180
Case: [2017] SASC 180
Decision Date: 6 December 2017

CaseChat Overview and Summary

The case of R v Bohner involved the defendant, Mr Bohner, who was subject to post-custodial orders concerning his release on licence. Mr Bohner's victims, Mr Clarke and Mr King, were directly affected by his conduct, with Mr Clarke expressing specific concerns about Mr Bohner's potential presence in certain areas. The primary legal issue before the court was whether Mr Bohner should be released on licence, considering his declining health and the views of the victims and their next of kin.

The court considered the statutory framework, particularly Section 269T of the relevant Act, which mandates that several factors be taken into account when deciding on the release of a defendant on licence. These factors include the defendant's mental condition, the likelihood of the defendant endangering others, available resources for treatment and support in the community, the defendant's compliance with licence conditions, and other relevant matters. The court also needed to ensure that all relevant parties, including victims and next of kin, had been notified of the proceedings, unless their whereabouts could not be determined after reasonable efforts.

After reviewing the expert reports and the circumstances of the case, the court found that Mr Bohner's mental impairment was in remission and that his current physical and cognitive decline made it unlikely that he would endanger others. The court was satisfied that reasonable efforts had been made to notify the victims and their next of kin, except for Mr King, whose whereabouts could not be ascertained. The urgency of the application, considering Mr Bohner's condition and the unsuitability of his current accommodation, led the court to conclude that it was appropriate to proceed with the release. The court determined that releasing Mr Bohner on licence was appropriate, provided certain conditions were met to ensure public safety and to respect the wishes of the victims.

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

HINTON J

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Ratio Decidendi

Legal Principle Established

Established by: HINTON J

Mr Clarke and Mr King were the victims of Mr Bohner’s conduct. The report writer was unable to contact Mr King, despite considerable effort. Mr Clarke expressed the desire that despite the decline in Mr Bohner’s health and accepting that he no longer poses any real risk, the licence conditions prohibit Mr Bohner from entering the suburbs of Christies Beach and Christies Downs. He wanted it known that he continues to suffer because of Mr Bohner.Consideration Section 269T(1) and (2) of the Act provide:269T—Matters to which court is to have regard(1)In deciding proceedings under this Subdivision, the court should have regard to—(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.(2)The court cannot release a defendant under this Subdivision, or significantly reduce the degree of supervision to which a defendant is subject unless the court—(a) has considered a report (an expert report) prepared by a psychiatrist or other appropriate expert who has personally examined the defendant, on—(i)the mental condition of the defendant; and(ii)the possible effects of the proposed action on the behaviour of the defendant; and(b) has considered the report most recently submitted to the court by the Minister under this Subdivision; and(ba) is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release; and(c) has considered the report on the attitudes of victims and next of kin prepared under this Subdivision; and(d) is satisfied that—(i)the defendant's next of kin; and(ii)the victim (if any) of the defendant's conduct; and(iii)if a victim was killed as a result of the defendant's conduct—the next of kin of the victim,have been given reasonable notice of the proceedings. As is plain from the above, I have had regard to the reports of Drs Nguyen and Connell. They are the most recent reports provided to the Court, ordered specifically for this application. Equally plain, Mr Bohner’s next of kin has had notice of this application as has Mr Clarke. It is unfortunate that Mr King could not be contacted, but I am satisfied that reasonable efforts have been made by the Forensic Mental Health Service to do so. There is some urgency to the application, bearing in mind Mr Bohner’s condition and the unsuitability of James Nash House. In my view it is appropriate to proceed despite the inability to contact Mr King.[5][5] Section 269T provides that notice need not be given under subsection (2)(d) (above) to a person whose whereabouts have not, after reasonable inquiry, been ascertained. I consider it appropriate to release Mr Bohner on licence. I am satisfied that Mr Bohner’s mental impairment is in remission. I am satisfied that his dementia and resultant decline both physically and cognitively is such that he is unlikely to endanger another person or persons generally. I make plain that I am so satisfied on the balance of probabilities. I accept that it is possible that he may become aggressive and agitated in the nursing home environment but consider such agitation or aggression likely the sort that is not infrequently demonstrated by people suffering dementia and ordinarily more than capably managed by medical practitioners, nurses and trained carers.