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. When the defendant was only 15, he underwent surgery for the removal of a brain tumour. That tumour was successfully removed and, after a period of radiotherapy, he went back to school and eventually gained a high pass. He qualified as a personal aged and disability carer and then went on to perform as a security guard at level 2 and 3. The defendant does have a criminal record between October 1984 and July of 1996, however, most of these offences could be described as behavioural type offences or traffic offences. In 2013, a further tumour was identified on the defendant’s brain and in June 2015 he underwent a frontal craniotomy and resection of the right-sided meningioma. The surgery impacted on the defendant’s ability to return to paid employment. He was also advised not to drive for six months following that surgery in June 2015.
[6]On 11 September 2015, the defendant was detained under the Mental Health Act 2009 (SA) after he threatened to kill a neighbour and himself. The defendant had been exhibiting signs of paranoid behaviour towards his neighbours (of whom Mr Clarke was one) for some weeks prior to September 2015.
[7]After he was detained under the Mental Health Act 2009 (SA), the defendant was diagnosed with an acquired brain injury with evidence of frontal lobe cognitive impairment and psychotic symptoms. The psychotic symptoms were manifesting as delusions about the behaviour of his neighbours. After remaining in the Margaret Tobin ward for a week, he was discharged into his mother’s care by a psychiatrist, Dr Mohan, on 18 September 2015, having been prescribed Olanzapine. According to the defendant’s mother, he stopped taking this medication shortly after he was discharged from the Flinders Medical Centre.
[3] R v Bohner [2017] SASC 57 at [1]-[3].
[4] R v Bohner [2017] SASC 57 at [5]-[7].
As touched upon above, in recent times Mr Bohner’s mental health has declined markedly. In this connection, and as required by s 269T(2)(a) of the Act, I have had the benefit of a psychiatric report prepared by Dr H Nguyen, a consultant psychiatrist with the Forensic Mental Health Service, dated 21 November 2017. I understand that this report was also tendered in satisfaction of s 269T(2)(b). In addition I have been provided with a report prepared by Dr T Connell, a psychologist employed by the Forensic Mental Health Service dated 22 November 2017, and a next of kin and victim counselling report dated 21 November 2017.
Dr Nguyen reports:
·Mr Bohner was transferred to the Lyell McEwin Hospital on 19 October 2017. Up until that point in time, and throughout the period of his admission at James Nash House, he had been in Dr Nguyen’s care.
·Leading up to his offending Mr Bohner developed psychotic delusions in the context of his suffering a neurocognitive disorder from an acquired brain injury, the consequence of his brain tumour and associated surgery. Mr Bohner’s delusion was characterised by paranoid thoughts about his neighbour which ultimately led to his offending.
·Over the past few months Mr Bohner’s clinical condition has deteriorated, characterised by a significant cognitive and functional decline. His carers have noticed a progressive worsening of his memory, speech and executive functioning since earlier this year. Approximately three months ago he experienced an episode of delirium for which no cause upon investigation could be found.
·Over the last two months Mr Bohner’s confusion has persisted and his cognitive functioning has become severely impaired. He has required “assertive 1:1 nursing” as a consequence of occasional falls, instability in walking even short distances and requiring stand-by assistance, inappropriate toileting, his development of pressure sores, and his becoming regularly apraxic with feeding himself. His condition:
… is akin to a dementing process with a fronto-temporal pattern. His prospects for recovery are poor and it was deemed that he no longer required management in a Forensic Mental Health facility and that a care facility was more appropriate. Therefore, he was transferred to the Lyell McEwin Hospital for his acute care needs while alternative community placement could be sourced and funded.
·Whilst in the Lyell McEwin Hospital he has displayed agitation related to his confusion and neurodegenerative process similar to someone with advanced dementia. He is managed by nursing intervention.
·It appears his psychotic illness due to his brain injury has remained in remission. He has not in recent times expressed any paranoid delusions.
Dr Nguyen considers that Mr Bohner suffers from a major neurocognitive disorder secondary to his traumatic brain injury and associated behavioural disturbance. His current presentation is such that it may be said, in short, that he has advanced dementia. In Dr Nguyen’s opinion not only is it no longer necessary that Mr Bohner be cared for in a forensic mental health institution, but it is inappropriate. Mr Bohner is severely disabled with the consequence that his risk of re-offending is low. His needs would now better be met in a nursing home where his –
… care will be provided by the visiting General Practitioner to the care facility. He will also be followed up by the Forensic Community Team who can also recruit the expertise of age-appropriate mental health clinicians to provide direct care to assist the nursing home staff.
Dr Nguyen adds:
With respect to Community Corrections follow up, I would respectfully recommend that he be visited by an officer wherever he resides, with regular liaison with the nursing home staff and the Forensic Community Team.
Dr Connell’s report and his opinion is consistent with that of Dr Nguyen. Dr Connell records:
On 1/9/17, it was recorded in JNH notes that from about 25/8/17 there was a further, very marked decline in Mr Bohner’s condition. The (sic) led to his transfer from Birdwood to Aldgate ward at JNH. Key features of that decline were worsening delirium, inattention, disorientation, and aggression requiring seclusion. He became unable to follow any more than 1 stage commands and required significant persistence at this. He had been seen responding to visual hallucinations, plucking at the environment. He was also unable to perform activities of daily living (ADL) including toileting. This was a contrast to one week before when he was independent for ADL and functioning in an open-ward environment (JNH Birdwood). He was no longer recognizing people he had seen regularly for many months. He has also been manipulating objects in very inappropriate ways, apparently in confusion about what those objects actually are, and what they are used for (suggestive of object agnosia).
His care needs were increasing markedly and it was judged they were no longer able to be met safely in the Aldgate Ward environment (management of fall-risk, appropriate shower and toilet aids, pressure care). Consequently he was transferred to the Lyell McEwin Hospital (LMH) on 19/10/17. In the week prior, his disoriented behaviour was only evident at night.
Dr Connell opined:
1. Mental Condition of the Defendant
Mr Bohner has been diagnosed with-
•      Cognitive decline secondary to Acquired Brain Injury (Tumor resection and radiation necrosis)
•      Resolving/resolved Delerium – unknown cause
•      Organic psychosis
•      Primary hyperparathyroidism
•      Recurrent urinary tract infections (UTIs)
His recent cognitive and functional decline is in keeping with a major neurocognitive disorder due to his brain tumour and resection. There is a frontal-temporal pattern of deficits. His functional impairment from this is severe and he is dependent on staff for basic activities of daily living.
2. Possible Effects of the Proposed Action on the Behaviour of the Defendant
Mr Bohner’s capacity for any kind of offending has been severely reduced by his neurological decline. His behaviour still has potential to be difficult, but that is not in any way related to offending. His responsibility for his own actions is now minimal. Evidence-based treatment of those kinds of difficulties involves control of stimulation, medication and de-escalation responses by highly trained staff (e.g. nurses) in a residential context. He also has an increasing physical dependency (e.g. he is incontinent, he wears incontinence pads and he gets very confused with even familiar routines like making a cup of coffee). Forensic settings (e.g. JNH) are simply not equipped to provide the care and support he now needs. A Nursing Home environment may be more appropriate.
Further, in the next of kin and victim counselling report, I have been advised that Mr Bohner’s mother is in favour of her son receiving whatever care he requires.
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.
It is plain that it is best for Mr Bohner that from hereon he be cared for in a nursing home. My understanding of the evidence of Drs Nguyen and Connell is that the sort of care Mr Bohner now requires is widely available; it is just a matter of finding a home with a vacancy.
In his present state Mr Bohner is unlikely to resist any conditions that I impose. Even though I propose releasing him on licence he will remain under the care of the Clinical Director of the Forensic Mental Health Service and subject to supervision by the Parole Board. I impose a number of other conditions regarding Mr Bohner’s care intended to facilitate the oversight of such care by the Clinical Director of the Forensic Mental Health Service, the Forensic Community Mental Health Team and the input of the Parole Board and Corrections.
Lastly, I accede to Mr Clarke’s wish and will prohibit Mr Bohner from entering the suburbs of Christies Beach and Christies Downs.
Accordingly, on 23 November 2017, I ordered:
1.That the applicant be released on licence subject to the following conditions:-
(a)That the applicant be under the care and direction of the Clinical Director, Forensic Mental Health Service (“The Director”), or a consultant psychiatrist nominated by him or her (“the nominee”), and obey any directions given to him from time to time with regard to medical and psychiatric treatment and medication.
(b)That the applicant be under the supervision of a Community Corrections Officer assigned by the Parole Board of South Australia and comply with the lawful directions of that officer or the Board with respect to non-medical matters.
(c)That the applicant continue to reside as an in-patient at James Nash House or securely in such ward as may be directed by the Director or the nominee.
(d)That at the discretion of the Director or his nominee, the applicant be discharged from James Nash House or from such ward as directed by the Director or the nominee to reside in a residential care facility when a suitable placement which meets his care needs becomes available.
(e)That the applicant continue to receive his medication current at the date of this order, and further that any alteration or reduction in such medication not occur without the approval of the Director or the nominee.
(f)That the applicant submit to random screening of his blood at the direction of the Director or the nominee, to ensure compliance with medication.
(g)That the applicant not possess, use or administer any narcotic or psychotropic drug unless medically prescribed by a legally qualified medical practitioner, and further that any drugs which are prescribed to the applicant by a legally qualified medical practitioner be possessed or administered by the applicant only at prescribed or recommended dosages.
(h)That the applicant not consume alcohol.
(i)That the applicant’s case be managed by the Forensic Community Mental Health Team and that the applicant comply with all the lawful directions of that team, particularly with respect to attendances at all appointments nominated by that team.
(j)That, at the discretion of the Director or nominee and at such time when the Director or nominee sees fit, the applicant’s case management be transferred to a local Community Mental Health Team and that the applicant comply with all directions from that team.
(k)That the applicant shall submit himself for breath and or urine testing as directed by his Community Corrections Officer, for the purpose of determining whether there is present in his body any alcohol, or illicit or non-prescribed drug.
(l)That the applicant not depart or attempt to depart from the State of South Australia without the prior written permission of the Parole Board.
(m)That the applicant not at any time enter, stop or remain in the suburbs of Christies Beach and Christie Downs.
(n)That the applicant not possess a firearm, ammunition or any part of a firearm.
(o)That the applicant submit to tests, including testing without notice, for gunshot residue.
2.In the event that the Director, or the Director’s nominee, or the Presiding Member of the Parole Board, or the Presiding Member’s nominee is of the opinion that the applicant has contravened, or is likely to contravene a condition of this order, that person who becomes so aware, shall immediately notify the Director of Public Prosecutions of that opinion.
3.If the Director of Public Prosecutions is notified by the Director or the Director’s nominee, or the Presiding Member of the Parole Board, or the Presiding Member’s nominee in accordance with order 2 above, the Director of Public Prosecutions may make an application to this Court for a review of the supervision order which in cases of urgency may be made at short notice.
4.That the applicant, the Director of Public Prosecutions (on behalf of the Crown) and the Parole Board shall be at liberty to apply at any time and from time to time, as they may be advised, at short notice to the other to vary or revoke this order or seek any other order in substitution thereof.