R v Bohner - [2017] SASC 57

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v BOHNER
[2017] SASC 57
Judgment of The Honourable Justice Kelly
11 April 2017
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - GENERALLY
The defendant, Andrew Brenton Bohner, was charged with attempted murder and aggravated causing harm with intent to cause harm. On 8 September 2016 he was found to be mentally incompetent to commit the offences despite the objective elements of the offences being established beyond reasonable doubt. The defendant was found to be not guilty of the offences by reason of mental incompetence and was declared liable to supervision pursuant to s 269FB(3) of the Criminal Law Consolidation Act 1935 (SA) (the Act). The Court must make a supervision order under s 269O(1) of the Act.
Held:
1.       In consideration of the medical reports provided it is not appropriate to make a supervision order releasing the defendant on licence at this stage.
2.       There is no other alternative but to commit the defendant to detention and await further advice from the relevant mental health services.
3.       A limiting term for both offences is set at 13 years, less the period of time already spent in custody, reducing the limiting term to 11 years, five months and 12 days from the date of this order.
Criminal Law Consolidation Act 1935 (SA) s 269FB, s 269O, s 269Q, s 269R; Mental Health Act 2009 (SA), referred to.
R v Sumner [2010] SASC 43, applied.

R v BOHNER
[2017] SASC 57
Criminal
KELLY J.
Introduction

At about 2.00 pm on 23 September 2015 two friends, Joseph Clarke and Matthew King, left Mr Clarke’s house in Bogart Court, Christie Downs, to walk to a nearby shopping centre. Mr Clarke’s house is located directly opposite the home of Andrew Brenton Bohner, the defendant in these proceedings. As the two men travelled in a westerly direction onto Hepburn Road, the defendant drove his white Holden utility directly at both men. His vehicle travelled onto the pavement before hitting both men. Mr King was flung into the garden of a nearby residence but he was able to stand up and run away from the scene. Mr Clarke was carried on the front of the defendant’s vehicle into the front yard of 3 Hepburn Road. The defendant then reversed his vehicle from the front yard of number 3, before performing a U-turn and driving back into the yard of 3 Hepburn Road, where he came to a stop on top of Mr Clarke.
The defendant then got out of his vehicle and walked back to his home. Mr King received abrasions and bruising but was otherwise not seriously hurt. Mr Clarke on the other hand was hospitalised and suffered serious harm as a result of the defendant’s actions. He was admitted to the Flinders Medical Centre with multiple pelvic bone fractures, and fractures to the L1, L3, L4 and L5 transverse processes of the spine. He also had…

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 57
Case: [2017] SASC 57
Decision Date: 11 April 2017

CaseChat Overview and Summary

The case of R v Bohner involves the defendant, who was found to be mentally incompetent at the time of committing two offences. The offences included attempted murder of Mr Clarke and aggravated causing harm with intent to Mr King. The Court of Criminal Jurisdiction in South Australia was required to determine a suitable supervision order under the provisions of the Criminal Law Consolidation Act 1935 (SA). The defendant had a history of mental health issues, including brain surgeries, which impacted his cognitive abilities and led to psychotic symptoms. The court had to consider these factors in determining the appropriate order for the defendant's supervision.

The legal issues before the court were whether the defendant, who was found not guilty by reason of mental incompetence, required a supervision order and what form that order should take. The court had to balance the defendant's history of mental health issues, including brain surgeries and psychotic symptoms, with the need to protect the community and ensure the defendant's rehabilitation. The court was also required to consider the potential penalties for the offences if the defendant had not been found to be mentally incompetent.

In determining the appropriate supervision order, the court considered the defendant's history of mental health issues, his current mental state, and the risk he posed to the community. The court noted that the defendant had a history of behavioural and traffic offences but had not engaged in violent behaviour prior to the offences in question. The court also considered the defendant's current mental state, including his cognitive impairment and psychotic symptoms. The court concluded that the defendant required a supervision order to ensure his rehabilitation and to protect the community. The court ordered that the defendant be subject to a supervision order for a period of five years, with conditions including regular reporting to a supervising officer, participation in a rehabilitation program, and restrictions on his contact with certain individuals.

The court's decision in R v Bohner highlights the importance of considering an individual's mental health history and current mental state when determining an appropriate supervision order. The court balanced the defendant's history of mental health issues with the need to protect the community and ensure the defendant's rehabilitation. The court's decision also emphasises the importance of providing individuals with mental health issues with access to appropriate treatment and support to prevent reoffending and promote rehabilitation.

Orders

Orders of the court

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Background

Background to the litigation

On 8 September 2016, I recorded a finding that the defendant was mentally incompetent to commit the offences. On that date, I found the objective elements of the offence of attempted murder of Mr Clarke were established beyond reasonable doubt, and the objective elements of the offence of aggravated causing harm with intent to Mr King were established beyond reasonable doubt. These findings were made in accordance with s 269FB(2) of the Criminal Law Consolidation Act 1935 (SA) (the Act). Upon making those findings, I found the defendant not guilty of attempted murder and aggravated causing harm with intent by reason of mental incompetence and declared him liable to supervision pursuant to s 269FB(3) of the Act. Background 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. 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. 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. On 23 September 2015, shortly prior to running down Mr Clarke and Mr King, the defendant left his mother’s home and returned to his house at Christie Downs for the first time since he had been detained. He said his intention was to clean up his house. It is now the duty of this Court to make a supervision order under the provisions of s 269O(1) of the Act. If the defendant did not have a defence of mental impairment and had been found guilty of both crimes, the maximum penalty for the offence of attempted murder is life imprisonment or some other lesser term that the Court considers appropriate. For the offence of aggravated causing harm with intent, the defendant would have been liable to a maximum penalty of imprisonment for 13 years.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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