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

1. 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.

2. 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 fractures to the sixth and eighth rib on his right side, a fractured first left toe and a retroperitoneal haematoma in his abdomen.  He was an inpatient for 21 days at the hospital before being discharged for follow up treatment in the orthopaedic clinic and referred to the neurosurgery clinic in respect of the spinal injuries he suffered.  To this day, he continues to experience pain and suffering. 

3. The defendant was arrested later in the afternoon of 23 September 2015 and charged with offences of attempted murder in relation to Mr Clarke and aggravated causing harm with intent in relation to Mr King. 

4. 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

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.

8. 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.

9. It is now the duty of this Court to make a supervision order under the provisions of s 269O(1) of the Act.

10. 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.

11. These terms are relevant to the making of the supervision order because the limiting term which must be fixed must be equivalent to the period of imprisonment or supervision that would have been appropriate if the defendant had been convicted of the offence of which the objective elements were established.

12. To assist me in determining the appropriate orders which should be made in the defendant’s case, I received reports under s 269Q and s 269R of the Act. In particular, I have regard to two addendum psychiatric reports from Dr Nguyen dated 28 November 2016 and 6 February 2017 in response to specific questions that arose out of the first report.

13. It seems that the defendant has been assessed at James Nash House as requiring residential supported care.  Unfortunately, at this current time there is no appropriate facility that can accommodate the defendant and, in light of that fact, the psychiatrist has recommended ongoing detention at James Nash House until an appropriate care facility can be identified.

14. Since being taken into detention at James Nash House, the defendant has been treated with anti-psychotic medication which has settled his psychotic symptoms.  However, given that he also suffers cognitively from an acquired brain injury, it is the psychiatrist’s opinion that he requires further ongoing rehabilitation in respect of that injury.  To that end, he spent some time at Hampstead Rehabilitation Centre last year at the Brain Injury Rehabilitation Unit but was discharged back to James Nash House on 22 December 2016, where he has remained.  It is hoped that appropriate supported residential accommodation can be found with adequate resources to support ongoing rehabilitation for the defendant, guided by the Brain Injury Rehabilitation Unit in conjunction with forensic mental health services.

15. In setting the limiting term I have taken into account the gravity of the conduct by the defendant on 23 September 2015, the seriousness of the consequences insofar as Mr Clarke was concerned, together with the background, family and previous antecedent history, of the defendant.  Apart from some matters which might properly be regarded as behavioural and traffic offences, the defendant does not have a significant criminal record. 

16. As other Judges of this Court have noted, whilst s 269O of the Act prohibits the Court from having regard to the personal circumstances of a defendant, the Act remains silent as to whether or not in fixing the limiting term time already spent in custody will be taken into account. In Mr Bohner’s case that is quite a significant period, on my calculation being 18 months and 19 days, since 23 September 2015. As I observed earlier, for most of that time the defendant has been in James Nash House, except for that period when he went to Hampstead Rehabilitation Centre last year. As Sulan J pointed out in R v Sumner,[1] if that period of time is not taken into account it could lead to unjust consequences.  Therefore I accept the submission which was not opposed in this case that the period of time already spent at James Nash House should be deducted from the limiting term which I am now obliged to set. 

    [1] [2010] SASC 43.

17. Therefore, consistent with the requirements of s 269O, I will impose a limiting term according to the period of imprisonment that would in my opinion have been appropriate if the defendant had been convicted of the offences of attempted murder and causing harm with intent to cause harm.

18. In light of the medical reports, in particular the reports of Dr Nguyen, I consider that it is inappropriate to make a supervision order releasing the defendant on licence at this stage. 

19. The medical reports lead me to the conclusion that there is no other alternative at this stage but to commit the defendant to detention and await further advice from the forensic mental health services as to any realistic possibilities which may arise to accommodate the defendant in due course. 

20. Taking all of these matters into account, I consider that an appropriate limiting term in respect of the offence of attempted murder would be 11 years.  For the offence of aggravated causing harm with intent to cause harm, I consider that an appropriate limiting term would be five years.  Taking into account the fact that the defendant’s conduct caused harm to two people but nevertheless arose out of one course of action, I consider it is appropriate to set a limiting term for both offences of 13 years, less the period of time spent in custody from 23 September 2015. 

21. Therefore the order I make today is to set the limiting term at 11 years, five months and 12 days.