R v Brown - [2011] SADC 186

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BROWN
Criminal Trial by Judge Alone
[2011] SADC 186
Reasons for the Orders of His Honour Judge Soulio
6 December 2011
CRIMINAL LAW
Investigation into mental competence to commit an offence - decided that at the time of the conduct alleged to give rise to the offences the defendant was suffering a mental impairment - decided that the objective elements were established beyond reasonable doubt - defendant declared to be mentally incompetent to commit the offences and declared liable to supervision - limiting term of five years and nine months - supervision order made releasing defendant on licence on conditions decided by the Court and specified in the licence.
Criminal Law Consolidation Act 1935 (SA) Part 8A; Juries Act 1927 (SA) s 7, referred to.
R v Sumner [2010] SASC 43; R v Bobner (No 3) [2010] SASC 31; R v Draoui (2008) 101 SASR 267; R v T 75 SASR 235, considered.

R v BROWN
[2011] SADC 186
Background

The defendant, John Brown, was charged with the offence of aggravated robbery committed on 7 April 2010. The maximum penalty for that offence is imprisonment for life.
Circumstances of the Offending
At about 5.10pm on 7 April 2010 the proprietor of a hairdressing salon at the Parafield Gardens shopping centre, when closing the shop, observed two men watching her. She left the shop and walked onto a roadway behind the shopping centre and towards the local train station. She observed a vehicle drive past her and stop. The defendant got out and approached her. She recognised him as one of the men who had been watching her earlier.
The defendant demanded the victim’s bag and when she refused he showed her the knife in his hand and said “do you want to die?”. The victim then handed over her handbag. The defendant demanded her phone. She threw the phone into the front yard of a nearby house. The defendant retrieved the phone and then ran and entered the passenger seat of the vehicle she had seen drive past earlier.
The victim noted a partial registration number which enabled police to locate the defendant. The description she provided matched the defendant. A number of her belongings, which had been in her handbag at the time of the robbery, were located in the defendant’s vehicle, as was a knife.
Procedure
Counsel for the defendant presented material in support of an application to declare the defendant not guilty on the basis that he was mentally incompetent at the time of the offending.[1]
[1] Within the meaning of s 269C of the Criminal Law Consolidation Act 1935 (SA).
The process for investigation by the Court of the defendant’s mental competence is governed by Part 8A of the Act. Pursuant to s 269B of the Criminal Law Consolidation Act 1935 (SA) (‘the Act’), an investigation into a defendant’s mental competence to commit an offence, or into whether elements of the offence have been established, is to be conducted before a jury unless the defendant has elected to have the matter dealt with by a judge sitting alone. Such election is not made pursuant to s 7 of the Juries Act 1927 (SA). Here the election was made by oral application on 8 April 2011. Pursuant to s 269E of the Act I proceeded to hear the matter without a jury. The matter came on for final determination on 1 November 2011.
Mental Competence to Commit the Offence
A number of medical reports were tendered which set out details of the defendant’s background and mental status.
The defendant was born on 2 February 1983 and is now 28 years old. He has been receiving intermittent treatment from Dr Ford, a psychiatrist, since 2003 when Dr Ford diagnosed a major depression, in the setting of a post-traumatic stress disorder. In a report of 6 December 2010 Dr Ford noted that Mr Brown’s left arm had been almost severed while working at an abattoir, with his radial and ulna arteries severed. Whilst the structures were re-attached, he was left with limited use of his left arm.
Dr Ford described the defendant as illiterate, and as having an intellectual impairment. An assessment in 2006 indicated intellectual retardation with an IQ in the range of 62-70. The defendant was assessed as being in the extremely low range for adaptive functioning. Dr Ford dealt with him in again April 2006, when the defendant was using marijuana excessively. In June 2008 Dr Ford again assessed the defendant and reported that the defendant was in a relationship and had fathered two children, one aged six weeks and one aged 18 months at the time. Dr Ford expressed the opinion that the defendant would have difficulty living independently, and was living with his parents, and was in receipt of a disability pension.
Dr Ford obtained a history of the offending behaviour. The defendant asserted that he had been driving his car with a friend, when the friend suggested they needed money to buy drugs. His friend instructed him to grab the victim’s bag. The defendant was scared of his friend who had threatened violence against him or his parents if he did not comply. He said that the friend had previously beaten him, and stolen from him. He said that he was distressed at the time of the offending.
Dr Ford expressed the view that the defendant was unfit to plead, or to instruct counsel. He did not, however, consider that the defendant lacked mental competence at the time of the offending.
Dr Begg, a psychiatrist, first assessed the defendant on 20 January 2011. Dr Begg noted that the defendant was taking medication including Epilim and Lamictal, both anti-convulsants, and citalopram, an anti-depressant.
Dr Begg obtained a history that the defendant had been using marijuana and heroin at the time of the offending, and obtained a similar history as to the circumstances of the offending. He noted that the defendant displayed reduced emotional reactivity, slow speech using simple language, and had described auditory hallucinations when waking at night. Dr Begg assessed the defendant as mildly mentally retarded.
Dr Begg expressed the opinion that the defendant was not able to refuse the demands of his acquaintance, and did not have the intellectual capacity to analyse the consequences of his actions when in a state of emotional distress. He was therefore not able to reason with a moderate degree of sense and composure as to the nature of his actions. Dr Begg said that while the defendant would have appreciated what he was doing, he did not consider that the defendant would have appreciated the wrongfulness of his actions. He considered that the defendant was therefore mentally incompetent within the meaning of s 269C of the Act. Unlike Dr Ford, Dr Begg was of the view that the defendant was mentally fit to stand trial.
He concluded by saying that the defendant was compliant with medication, had ceased contact with the co-accused, had the support of a psychiatrist, and, although the defendant remained vulnerable to exploitation by others with supervision, the risk of re-offending was low. Following reassessment on 2 May 2011 Dr Begg’s opinion remained unchanged.
Dr Schirripa, a consultant forensic psychiatrist employed by the South Australian Forensic Mental Health Service, provided a report addressing issues arising for consideration pursuant to ss 269A, 269C, 269H and 269K of the Act. He assessed the defendant on 23 February 2011. Dr Schirripa obtained a history that the defendant had suffered from epilepsy for many years and was under treatment by a neurologist for management of that condition.
During the interview Dr Schirripa noted that the defendant displayed a limited vocabulary in keeping with his intellectual impairment. Dr Schirripa did not consider there was any formal psychotic thought disorder. Dr Schirripa accepted the diagnosis of intellectual impairment and depression. He concluded that the defendant was fit to stand trial. He also concluded that the defendant was suffering from mental impairment, namely mental retardation. He considered, however, that the defendant knew the nature and quality of his conduct.
Dr Schirripa described the issue of whether the defendant knew the ‘wrongfulness” of his conduct as being complicated. He concluded that it appeared that due to the defendant’s intellectual impairment he was unable to adequately and appropriately weigh up complicated decisions, and had difficulty learning new information. When under significant stress or in a situation of feeling threatened, his cognitive abilities were further compromised. Dr Schirripa considered that the defendant did not have the cognitive capacity to arrive at other choices in relation to his behaviour. On balance, he concluded that the defendant was not mentally competent to have committed the offence.
I find that, on balance, at the time of the offence, the defendant was not mentally competent to commit the offence. I am fortified in that view by the fact that counsel for the prosecution conceded that the defendant was mentally incompetent at the time of the offence which would, pursuant to s 269FA(5) entitle me to dispense with an investigation into that issue, and record a finding that the defendant was mentally incompetent to commit the offence.
The Objective Elements of the Offence
I received evidence and heard representations as to proof of the objective elements of the offence. I considered the declarations tendered, and heard submissions from counsel for the Director of Public Prosecutions, and counsel for the defendant, who conceded that the objective elements were proved. I am satisfied that the objective elements of the offence were established beyond reasonable doubt.
Finding
I find the defendant not guilty by reason of his mental incompetence, and declare him liable to supervision pursuant to s 269FB(3) of the Act.
Additional Evidence
Reports Pursuant to Sections 269Q and 269T
A report was requested from Dr Raeside, pursuant to ss 269Q(1) and 269T(2) of the Act. Dr Raeside, an experienced forensic psychiatrist, accepted that the defendant was suffering from intellectual impairment, but did not consider that at the time of his assessment on 28 April 2011 the defendant was suffering from any psychiatric disorder. He considered that the defendant’s difficulties were primarily related to intellectual impairment, with psychiatric factors including depression exacerbated by the struggle to cope with day-to-day stressors. He considered that the defendant required significant ongoing social support, best administered through Disability South Australia.
Dr Raeside made the comment that he could not be confident that such a service could be provided given his experience with other people in similar circumstances. He considered that the best course was for the Forensic Community Team to broker such services from Disability SA and that practical support in terms of assistance with day-to-day living, including organising finances, supported employment, and drug and alcohol rehabilitation were necessary.
Dr Raeside concluded that whilst the defendant did not require in-patient psychiatric hospitalisation, he did require considerable practical support given his limited intellectual ability.
Mr Balfour, a psychologist, assessed the defendant on 20 July 2011 at the request of the Director of Forensic Mental Health Services. He obtained a similar history and made a similar assessment to those of the other examining psychologists as to the defendant’s intellectual impairment.
Mr Balfour concluded that Mr Brown possesses few of the traditional static and dynamic criminogenic risk factors. Mr Balfour noted that the defendant was awarded $90,000 in compensation for the injury to his left arm, but that by virtue of his intellectual limitations, his illiteracy and anumeracy, and vulnerability, he was exploited by people who introduced him to using heroin and, as a result, spent all of his compensation money on maintaining his drug addiction. The defendant’s addiction to heroin also brought about the end of his de facto relationship.
Mr Balfour expressed the opinion that Mr Brown should participate in a supervised, structured rehabilitation plan including case management by Disability SA, brokered through the Forensic Community Team; ongoing supervision on a regular basis with a case manager; referral to sheltered employment at Phoenix Industries where the defendant had previously worked; referral to bridging literacy and numeracy courses; referral to a clinical psychologist experienced in working with intellectually disabled people; medical treatment for other physical conditions; and referral to Drug and Alcohol Services SA for relapse prevention therapy, accompanied by drug testing.
Mr Balfour concluded that with the assistance of a supervised, structured rehabilitation plan the defendant’s propensity to offend could be kept at a low level. He considered that there were adequate resources in the community to provide such assistance, and importantly that the defendant was likely to comply with licence conditions.
Reports Pursuant to Sections 269R and 269Z of the Act
I received a report from Ms D’Alessandro, a senior social worker with the Forensic Mental Health Service. She had established that the victim of the offending had ceased working the day after the offence. Ms D’Alessandro ascertained from the victim’s former manager that the victim had been highly traumatised by the offence and was inconsolable. Tragically, as a result of her emotional reaction, the victim had allowed her visa to lapse, and had returned to live permanently in Asia.
The defendant’s mother was interviewed. She has been very supportive of the defendant, and in effect has taken on the role of a carer, being employed in that area of endeavour. She transports the defendant to appointments, provides advice to him, advocated for services for him, and provides him with support.
The defendant’s mother described the defendant as having complex mental health issues relating to both intellectual disability and associated vulnerability and gullibility. She was prepared to provide ongoing support. The defendant is currently residing with her, while on home detention. He has been living with her for the last three years. He maintains a reasonable relationship with his two older sisters. The defendant’s mother described the defendant as having complied with the requirements of home detention, and maintained good behaviour. She requested that conditions of any licence include abstaining from illicit drug use, regular drug testing, and drug counselling.
I note that the bail compliance home detention report of 5 November 2011 confirms that the defendant has been compliant, co-operative and respectful to supervising staff at all times. He has been at his approved location away from his residence when venue checks have been carried out. He has been tested for alcohol and drug use during his home detention period, and all tests have returned a negative result.
Fixing the Limiting Term
Where a supervision order is made, a limiting term must be fixed equivalent to the period of imprisonment or supervision, or the aggregate period of imprisonment and supervision that would have been appropriate if the defendant had been convicted of the offence. Further, the limiting term is to be fixed on the basis of the head sentence that would have been imposed.
Part 8A of the Act is primarily concerned with the safety of the community.[2] The scheme is primarily beneficial in operation and the purpose is to provide justice and a degree of mercy to persons suffering from a mental impairment in their interaction with the criminal justice system.[3] The scheme must reflect the seriousness of the crime, but is essentially in place to ensure that the defendant receives appropriate treatment for his mental condition.[4]
[2]    R v Sumner [2010] SASC 43.
[3]    R v Bober (No 3) [2010] SASC 31.
[4]    R v Draoui (2008) 101 SASR 267.
The application of sentencing principles has limited relevance to the orders made pursuant to Part 8A of the Act. It is appropriate to have regard to matters usually relevant to the fixing of a sentence for the offence, but not to have regard to matters arising out of the defendant’s mental impairment.[5]
[5] R v T (1999) 75 SASR 235.
Here the defendant spent a lengthy period on home detention bail. In the usual sentencing circumstances, just as with time spent in custody, time spent on home detention bail may be taken into account in reduction of the sentence. The Act is silent as to whether time spent in custody will be taken into account when fixing a Part 8A limiting order. As Sulan J observed in R v Sumner,[6] whilst time spent in custody has little relevance to setting a limiting term, there is no reason in principle that time spent in custody should not be taken into account. If that were not so, it could lead to unjust and illogical consequences. It would also be contrary to s 269S of the Act which requires the Court to ensure that the curtailment of the defendant’s liberty is kept to a minimum, consistent with the safety of the community.[7]
[6] R v Sumner [2010] SASC 43 at [31].
[7] R v Sumner [2010] SASC 43 at [36].
Limiting Term
I have set out already details of the defendant’s personal circumstances. He has a number of prior convictions, largely for traffic offences, and principally for numerous offences of driving whilst unlicensed. He has convictions for dishonestly taking property without the owner’s consent for which he was fined, and for unlawful possession, and providing false information to a second-hand dealer, for which he was placed on a bond to be of good behaviour.
He has an intellectual impairment to which I have referred but as that forms the basis for the finding of not guilty on the grounds of mental incompetence, I am not able to take that into account. He requires the ongoing support of his mother with whom he lives. He has two young children with his former partner. He has no directly relevant history of offending.
Although I have not seen a victim impact statement it is clear that the victim of the offending was significantly affected by the defendant’s behaviour.
Had I been required to sentence the defendant I would have imposed a head sentence of imprisonment for six years. His concession, through his counsel, as to the objective elements of the offence, does not entitle him to any discount. I am prepared however to reduce the sentence by a period of three months to take into account the period of approximately one and a half years spent on home detention bail, during which time he has complied with the terms of his bail, making the limiting term one of five years and nine months.
Having considered the material to which I have referred, and on the basis of the opinions expressed by Dr Ford, who has had the long term care of the defendant, Dr Begg, Dr Schirripa, Dr Raeside and Mr Balfour, and having regard to the fact that the general opinion is that the defendant is unlikely to re-offend, provided he has appropriate supervision and support, I have come to the view that it is not necessary that Mr Brown be detained. Nor, however, is it appropriate that he be released unconditionally.
He is to be released on licence subject to a number of strict conditions I will impose. I note that the course proposed was not opposed by counsel for the Director of Public Prosecutions.
Licence Conditions
Various recommendations have been made relating to the future supervision of the defendant. On the basis of those recommendations the Director of Public Prosecutions and counsel for the defendant jointly drafted conditions which sought to give effect to those recommendations. After careful consideration, and some amendment, I regard the suggested conditions as the appropriate basis upon which the defendant is to be released on licence.

The defendant will be released on licence subject to the following conditions:
(a)That during the period of his release on licence the defendant will 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 defendant 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. To effect initial contact the defendant is to report to the Elizabeth Office of the Department for Correctional Services at 13 Gillingham Road, ELIZABETH within two working days of signing this order.
(c)That the defendant 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.
(d)That the defendant submit to random screening of his blood at the direction of the Director or the nominee, to ensure compliance with medication.
(e)That the defendant not use, possess or administer any narcotic or psychotropic drug which is not medically prescribed by a legally qualified medical practitioner, and further that any drugs which are prescribed to the defendant by a medically qualified practitioner be possessed or administered by the defendant only at prescribed or recommended dosages.
(f)That the defendant’s case be managed by the Forensic Community Team and that the defendant comply with all the lawful directions of that team, particularly with respect to attendances at all appointments nominated by that team.
(g)That, at the discretion of the Director or nominee and at such time as the Director or nominee sees fit, the defendant’s case management be transferred to a local Community Mental Health Team and that the defendant comply with all directions from that team.
(h)That the defendant 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 illicit or non-prescribed drug.
(i)That the defendant reside initially at 26 Hope Drive Paralowie 5108, and that he not thereafter change his residence without the permission of the Parole Board.
(j)That the defendant not depart or attempt to depart from the State of South Australia without the prior written permission of the Parole Board.
(k)That the defendant attend for assessment of his eligibility for services provided by Disability SA as directed by the Director or nominee, in accordance with a referral by the Community Mental Health Team or treating psychiatrist.
(l)That the defendant, should he be accepted as a client of Disability SA, engage the available services as recommended with respect to counselling, support and assistance with day-to-day living.
(m)That the defendant not commence Interferon Therapy for treatment of Hepatitis C without the approval of the Director or the nominee.