R v Brown - [2006] SADC 82

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BROWN
[2006] SADC 82
Reasons for Decision of His Honour Judge Millsteed
24 July 2006
CRIMINAL LAW
Pursuant to s269MB(2) of the Criminal Law Consolidation Act defendant declared liable to supervision on the ground of being mentally unfit to stand trial on charges of Assaulting a Family Member, Threatening a Person with a Firearm and Possessing a Prescribed Firearm - matters called up from Magistrates Court in relation to which defendant had been declared liable to supervision pursuant to s269F on the ground of mental incompetence - supervision order made releasing the defendant on licence under s269O - whether Court has power to fix single limiting term - s18A of Sentencing Act does not authorize the fixation of a single limiting term - power to do so contained in s269O(2).
Criminal Law Consolidation Act 1935 (SA) s269(1)(b)(ii), s269K, s269M, s269MB(2), s269O, s269O(1), s269O(2), s269Q, s269R, s269S, s269T(1), s269T(2), s269W; Criminal Law (Sentencing Act) 1988 (SA) s3, s18A, s31(1); Summary Offences Act 1953, referred to.
R v Davey [2006] SASC 177; R v Bartholomaeus [2006] SASC 13, considered.

R v BROWN
[2006] SADC 82

The defendant Toby Brown has been declared liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (CLCA). I have determined that he should be released on conditional licence pursuant to s269O of the CLCA. These are the reasons for my decision.
History of proceedings
Mr Brown was charged on information in this Court with having committed on 6 October 2003 the offences of Assaulting a Family Member,[1] Threatening a Person with a Firearm[2] and two counts of Possessing a Prescribed Firearm[3].
[1] s39 CLCA 1935
[2] s47A CLCA 1935
[3] s11 Firearms Act1997
On 11 April 2005 on the application of Dr McGrath, counsel for Mr Brown, I ordered an investigation into Mr Brown’s mental fitness to stand trial pursuant to s269M. Reports relating to Mr Brown were obtained from a psychiatrist, Dr C Raeside, dated 28 April 2005 and 6 July 2005, and from a neuropsychologist Mr Reid dated 27 June 2005 pursuant to s269K. Mr Reid has reported that Mr Brown has a low level of intellectual functioning in the bottom 3% of the population (IQ 65). Dr Raeside concluded that Mr Brown also suffers from a severe personality disorder. They both agreed that Mr Brown did not have the capacity to adequately follow the course of trial proceedings due to his mental impairment and, accordingly, was unfit to stand trial.
On 22 December 2005 Dr McGrath and Ms Trengove, counsel for the prosecution, agreed that, in light of the expert reports, it was appropriate to dispense with the investigation into Mr Brown’s mental fitness to stand trial. Dr McGrath made this concession in the exercise of his independent discretion under s269W. I was satisfied on the basis of the material before me that Mr Brown was mentally unfit to stand trial and recorded a finding to that effect[4].
[4] s269MA(5) CLCA 1935
I proceeded to consider whether the objective elements of each offence had been proved. Counsel tendered a set of agreed facts. Once again Dr McGrath agreed the material in the exercise of his discretion under s269W. I was satisfied that the objective elements of each offence had been proved beyond reasonable doubt and declared Mr Brown liable to supervision under Part 8A of the Act[5].
[5] s269MB(2) CLCA 1935
In accordance with the requirements of Part 8A I ordered reports pursuant to s269Q[6], s269R[7] and s269T(2)[8]. I was subsequently supplied with the following reports:
·reports by Ms J. Fox (social worker) dated 23 February 2006 and 11 July 2006[9];
·reports by psychiatrist Dr N. Nambiar dated 27 February 2006, 5 April 2006 and 11 July 2006[10]; and
·reports by psychiatrist Dr C. Raeside dated 11 February 2006 and psychologist Mr L. Khorasanee dated 2 February 2006[11].
[6]     Report on mental condition of defendant submitted on behalf of the Minister responsible for the administration of the Mental Health Act 1993
[7]     Report on attitudes of victim and next of kin
[8]     Three reports each prepared by a different psychiatrist or other appropriate expert.
[9] Report prepared pursuant to s269R
[10] Reports prepared pursuant to s269Q and s269T
[11]    Reports prepared pursuant to s269T
Previously the defendant had been charged in the Magistrates Court with various offences on multiple complaints and informations. On 15 November 2005 Mr P Wilson SM had declared the defendant liable to supervision in respect of those matters on the ground that he had been mentally incompetent to commit the offences[12]. In relation to those proceedings the defendant’s mental incompetence had been agreed by counsel[13] and the objective elements of the offences admitted[14] by Dr McGrath in the exercise of his discretion under s269W.
[12]    s269F CLCA 1935
[13]    s269FA(5) CLCA 1935
[14]    s269FB(3) CLCA 1935
At the request of Dr McGrath, I called for the Magistrate Court files[15] pursuant to s22 of the Magistrates Act 1983. The files included reports that Mr Wilson SM had ordered pursuant to s269R, s269S and s269T. They had been prepared by the same experts who submitted reports pursuant to the orders that I had made.
[15] I shall refer to the files by reference to the District Court file numbers allocated to them.
In the result I was required to make an order of disposition under s269O in respect of the District Court and Magistrates Court matters.
The statutory scheme
Section 269O(1) provides that a court by which a person is declared liable to supervision may release the defendant unconditionally or make a supervision order committing the defendant to detention or releasing the defendant on licence on conditions decided by the court and specified in the licence.
By virtue of s269(2) if a court makes a supervision order it must fix a limiting term 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 relevant offence or offences.
This exercise requires the Court to have regard to all matters that would usually be relevant to the fixing of a sentence except matters that were based upon or which arose out of the defendant’s mental impairment[16]. The limiting term must be fixed by reference to the head sentence of imprisonment that would have been appropriate and not the non-parole period[17]. Unconditional release is appropriate in a case where a fine would have been imposed if the offence had been proved in the normal way[18].
[16] s269O note 1, R v T (1999) 75 SASR 235 per Doyle CJ at 242.
[17] Question of Law Reserved (No 1 of 1997) 70 SASR 251
[18] Question of Law Reserved (No 1 of 1997) 70 SASR 251 at 266
In deciding whether to release a defendant on licence and in determining the conditions of a licence, the Court must apply the principle, expressed in s 269S, that restrictions on the defendant’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Furthermore the Court is obliged to have regard to the matters specified in s 269T(1), namely:
·the nature of the defendant’s mental impairment;
·whether the defendant is, or would if released, be likely to endanger another person, or other persons generally;
·whether there are adequate resources available for the treatment and support of the defendant in the community;
·whether the defendant is likely to comply with the conditions of a licence; and
·other matters the court thinks relevant.
The defendant’s personal circumstances and mental condition.
Mr Brown is 26 years old. The s269T and s269R reports reveal that he had a difficult childhood. His mother and father separated when he was young. Following his parent’s separation, Mr Brown lived mostly with his mother. He was frequently physically abused by his mother’s partners. He did not perform well at school and left when he was about 15. He has no meaningful history of employment.
Mr Brown has a long history of behavioural disturbance and aggressive conduct. At the age of 15 he was admitted into the Davenport House program at the Hillcrest Hospital for youths with behavioural problems. He also has a significant history of alcohol and drug abuse. Over the years he has used a variety of illicit drugs primarily amphetamines, heroin and cannabis.
As earlier observed Mr Brown suffers from a low level of intellectual functioning which is possibly due to acquired brain damage. Mr Khorasanee reports that it is unclear whether Mr Brown’s level of impairment is such that he would qualify for the services of the Intellectual Disability Services Council.
Mr Brown has reported psychotic symptoms such as hearing voices and has stated that he was given a diagnosis of schizophrenia through his contact with Hillcrest Hospital. Dr Raeside is of the view that Mr Brown suffers from a severe personality disorder but does not believe that he is schizophrenic. In his report of 11 February 2006 he states:
It is possible that he may have experienced psychotic episodes at times when abusing drugs (particularly cannabis and amphetamines), but I have not found any evidence to strongly support a diagnosis of schizophrenia. His description of voices and other phenomena such as paranoia would probably be secondary to his intellectual disability than a formal psychotic disorder.
Despite Mr Brown’s dysfunctional history he has few previous convictions and they have been mainly for driving offences.
The defendant has been held in custody since 7 December 2004. He was initially accommodated in James Nash House. He was then transferred to the Grove Closed Ward at the Glenside Hospital where he is currently situated. After he was taken into custody, he was placed on a combination of medications that have been gradually reduced. He has remained on a very low dose of Risperidone, an anti psychotic medication, and Methadone as part of a drug rehabilitation program.
Conditional release appropriate
The defendant’s problems are not insubstantial. It is evident from the material before me that he requires a structured program of counselling, treatment and rehabilitation. However, the view of Dr Nambiar, Mr Brown’s treating psychiatrist at Glenside Hospital, is that Mr Brown’s mental state is stable and that it is appropriate to release him into the community subject to conditions which ensure that he receives appropriate supervision and continuing psychiatric assistance. This view is shared by the other experts involved in this matter.
Dr Nambiar, in his reports of 27 February 2006, 5 April 2006 and 11 July 2006, has proposed that Mr Brown be discharged into the care of his sister and brother-in-law and that he be jointly managed by the Eastern Community Health Team and Forensic Mental Health Services. Dr Nambiar has advised that should Mr Brown’s mental state deteriorate, or his behaviour pose a risk to himself or the community, then his treating team would make arrangements for his return to James Nash House. An application could then be made to vary or revoke Mr Brown’s release on licence pursuant to s269P.
There is a difficulty with the proposal in that the defendant’s sister and her partner Mr Jenkins have an infant child and currently live with Mr Jenkin’s parents at Klemzig. They are waiting to obtain their own home which they hope to purchase in the near future. Ms Fox in her report of 11 July 2006 has acknowledged that the accommodation which is immediately available is less than ideal “due to the number of adults and an infant occupying a relatively small dwelling.”
Dr McGrath in a written submission dated 19 July 2006 has also expressed concern “that the accommodation situation in general, and the presence of Mr Brown’s infant nephew in particular, notwithstanding Mr Brown’s family support could pose significant challenges to Mr Brown’s recovery.” Dr McGrath has proposed a gradated program of re-entry into the community to ensure that Mr Brown is able to cope with his new accommodation. He has suggested that Mr Brown’s release commence with day leave, followed by mid week and weekend overnight leave and then “normal” release on licence on conditions. He has discussed this proposal with Dr Nambiar who has expressed support for the plan.
In light of the material before me I am of the view that it is appropriate to make a supervision order releasing the defendant on licence on conditions that accord with the recommendations contained in the experts’ reports. The conditions are set out at the conclusion of my reasons. However, I agree with Dr McGrath that it is in Mr Brown’s interests that his release be gradated in the manner he has suggested.
The limiting term
By reason of s269O it is necessary to fix a limiting term for the period of the defendant’s release on licence.
As earlier observed when making such an order it is necessary to fix a limiting term by reference to the head sentence that would have been appropriate if the defendant had been convicted of each of the offences of which the objective elements had been established. In that regard separate consideration is required of the factual circumstances of each of the charged offences. This exercise would be followed in the ordinary course by consideration of whether the terms of imprisonment would have been concurrent or cumulative.[19]
[19] R v Davey [2006] SASC 177 per Gray J at [57]
The circumstances of the offences
I shall canvass the charges in chronological order.
File 404/2006
The defendant was charged on information in the Magistrates Court with two counts of Receiving[20] and one count of Giving False Information to a Second-Hand Dealer[21]. The maximum penalty for Receiving is imprisonment for eight years and for the offence of Providing False Information, a fine of $10,000, if the person made the statement knowing that it was false or misleading, and, in any other case, a fine of $2,500.
[20] s20(2) Second-Hand Dealers and Pawnbrokers Act 1996
[21] s196 CLCA 1935
The circumstances of the offences are these. Between 9 June 2001 and 12 June 2001 the defendant received from an associate two cheques that had been stolen from a motor vehicle at St Peters. Later, between 9 July 2001 and 10 August 2001 he received from another associate two radios, three batteries and two sets of headphones which had been stolen from a motor vehicle at Whyalla.
On 10 August 2001 the defendant attended a second hand dealers shop at Windsor Gardens and pawned for $120 the equipment stolen from the car at Whyalla. Prior to receiving the money, the defendant signed a form indicating that he was the owner of the goods and that he was authorised to sell them. On 30 November 2002, the defendant was arrested and interviewed by police. He was cooperative and admitted the relevant acts.
If the defendant had been found guilty of these offences I would have imposed, as a starting point, a notional sentence of about two months imprisonment for the first offence and four months imprisonment for the second. The offences did not arise out of a single episode of offending but were committed about one month apart. In the circumstances, it would have been appropriate to order that the sentences be served cumulatively[22].
[22] The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient. There are dangers in each course. Where consecutive sentences are imposed it may be thought that they are kept artificially apart where they should, to some extent, overlap. Where concurrent sentences are imposed, there is the danger that the primary term does not adequately reflect the aggravated nature of each important feature of the criminal conduct under consideration. Attorney-General v Tichy (1982) 30 SASR 84 per Wells J at 92-93
File 407/2006
The defendant was charged on information in the Magistrates Court with one count of Illegal Interference with a Motor Vehicle[23], one count of Larceny[24] and seven counts of False Pretences[25]. The maximum penalties for these offences are imprisonment for two years (for a first offence), imprisonment for five years and imprisonment for four years respectively.
[23]    s86A CLCA 1935
[24]    s131 CLCA 1935
[25]    s195(1)(a) CLCA 1935
The relevant facts are as follows. On 2 June 2003 the defendant broke into a motor vehicle parked in a public car park at St Peters by smashing a window. He then removed a briefcase, a wallet, an electronic palm pilot and credit cards belonging to Mr Matheson, the owner of the vehicle.
Later that day the defendant attended seven different stores and purchased various goods by falsely pretending that he had authority to use the credit card. As a result of these seven transactions the defendant acquired goods worth a total of about $3445.00.The accused was arrested and interviewed by police on 3 September 2003.He declined to answer questions.
For such offences I would have imposed as a starting point sentences of three months for the offence of Illegal Interference, six months for the Theft and six months for each of the False Pretences. Because these acts comprised a single multi-faceted course of conduct, I would have made the sentences concurrent but cumulative on the previous sentences.
File 409/2006
The defendant was charged in the Magistrates Court on information with the offence of Serious Criminal Trespass[26]. This offence attracts a maximum penalty of imprisonment for 10 years.
[26] s169(1) CLCA 1935
Between midday on 21 June 2003 and 7.15am on 23 June 2003 the defendant entered the business premises of Burnside Plastics Pty Ltd at Norwood after breaking a window and stole a digital camera box. The box was empty at the time. A bloodstain was found at the scene which was later found to contain the defendant’s DNA profile. When interviewed by police, the defendant stated that he could not recall breaking into the premises because he was using illicit drugs at the time.
If the defendant had been convicted of this offence a sentence of 20 months imprisonment would have been a suitable starting point. I would have made the sentence cumulative on the previous sentences.
File 403/2006
The defendant was charged on information in the Magistrates Court with Serious Criminal Trespass[27] and Providing a False Name and Address[28]. As observed above the maximum penalty for the first offence is imprisonment for 10 years and for the second a fine of $1250 or imprisonment for 3 months.
[27] s269(1) CLCA 1935
[28] s74A(3)(b) Summary Offences Act1953
At about 3.00 am on 10 July 2003, the defendant broke into the business premises of Boral Ltd at Hindmarsh by smashing an office window. He was disturbed by an employee of the victim and fled the building without stealing anything. A short while later he was found by a police patrol walking along a nearby street. When questioned he gave the police a false name and address. He was arrested and conveyed to the Port Adelaide Police Station where he was interviewed. He admitted the relevant acts.

If the defendant had been found guilty of these offences my starting point would have been a head sentence of about 18 months imprisonment for the trespass and a sentence of imprisonment for two weeks for the offence of providing a false name. It would have been appropriate to require the sentences to be served concurrently but cumulatively on the previous sentences.
File 405/2006
The defendant was charged on information with Damaging Property[29], Driving an Unregistered Motor Vehicle[30] and Driving Without a Licence[31].
[29] s85(3) CLCA 1935
[30] s9 Motor Vehicles Act1959
[31] s74 Motor Vehicles Act 1959
The maximum penalties for these offences are imprisonment for two years, a fine equal to twice the amount of the prescribed registration for 12 months payable in respect of the vehicle on the day of the offence, or $750 whichever is the greater, and a fine of $1250 respectively.
On 16 August 2003 the defendant drove a Magna sedan up the driveway and through the closed gates of the home of the victim, Ms Cook, causing damage in the amount of about $400. The Magna was unregistered and the defendant’s driver’s licence had expired three months earlier. The accused was interviewed by police later that day and refused to answer questions.
If the defendant had been convicted of these offences a sentence of six months imprisonment would have been an appropriate starting point for the offence of Damaging Property served cumulatively on the previous sentences. It would have been necessary to impose substantial fines in respect of the driving offences.
District Court Information
As earlier observed the defendant is charged on information in this Court with Assaulting a Family Member (count 1)[32], Threatening a Person with a Firearm (count 2)[33] and two counts of Possessing a Prescribed Firearm (counts 4 and 5)[34]. The maximum penalties for these offences are imprisonment for three years, a fine of $15,000 or imprisonment for four years and a fine of $50,000 or imprisonment for 10 years, respectively. The defendant had been charged on the same information with the offence of Rape (count 3) but a nolle prosequi was entered in relation to the charge.
[32] s39 CLCA 1935
[33] s47A CLCA 1935
[34] s11(7) (a) Firearms Act1977
The defendant had been living in a defacto relationship with Ms Leanne Prak for a period of about 12 months. They resided with their baby daughter at Northfield. In the course of the relationship the defendant had subjected Ms Prak to violence and threats of violence. Ms Prak ceased living with the defendant a short time before the events which are the subject of the District Court charges.
The relevant acts were committed on 6 October 2003 and appear to have been motivated by a belief on the part of the defendant that Ms Prak had been unfaithful to him. The defendant spoke to Ms Prak on the telephone and demanded that she collect him from the home of a friend. When Ms Prak arrived the defendant opened the driver’s side door and pulled her from the car by her hair and arms. The defendant then banged her head against the car and threw her onto the ground. He then removed a rifle from underneath his jacket and continued the assault by forcefully hitting Ms Prak three times on the head with the butt of the rifle (count 1). He then pointed the muzzle of the rifle close to Ms Prak’s head (count 2) and asked if she had been having sex with anyone else. She denied that she had been unfaithful.
On 7 October 2003 police attended the defendant’s home at Windsor Gardens. They searched his house and located two firearms prescribed for the purposes of the Firearms Act 1977. The defendant did not have a licence authorising possession of either firearm (counts 4 and 5). One of the firearms located had been used in the attack on Ms Prak. The defendant was arrested and conveyed to the Holden Hill Police Station where he was interviewed. He admitted assaulting Ms Prak and threatening her with the firearm.
The incident, which gave rise to these charges, involved serious acts of violence. These were not isolated acts but were perpetrated against a background of violence directed at Ms Prak. If the defendant had been convicted of count 1 and count 2, I would have imposed concurrent sentences of two years imprisonment. In relation to the remaining offences I would have imposed concurrent sentences of three months imprisonment to be served cumulatively on the sentences fixed in respect of the first and second counts. Furthermore I would have made an order that all of sentences be served cumulatively on the sentences imposed in relation to the previous files.
File 406/2006
The defendant was charged on complaint with two counts of Breach of Bail[35]. The maximum penalty for this offence is a fine of $10,000 or imprisonment for two years.
[35] s17 Bail Act1985
On 29 October 2003 the defendant was granted bail in respect of the offences alleged to have been committed against Ms Prak.
On 17 March 2003 the defendant rang Ms Prak and made threats to kill her. As a result of the threats Ms Prak attended the defendant’s home and then drove him to her place of residence. The defendant’s conduct in making contact with Ms Prak breached a condition of his bail that he not communicate with, or approach Ms Prak either directly or indirectly. His conduct in removing his electronic transmitter and leaving his home address without permission, constituted further breaches of bail.
The breaches were serious having regard to the nature of the offences for which the defendant was on bail and the fact that the breaches involved continued mistreatment of Ms Prak. If the defendant had been convicted of these offences concurrent sentences of three months imprisonment would have been an appropriate starting point with the sentences having to be served cumulatively on the previous sentences
File 408,410/2006
I turn to the final matter. The defendant was charged on two separate complaints of Assault Occasioning Actual Bodily Harm[36] and Possessing a Firearm[37]. The maximum penalties for these offences are imprisonment for five years and a fine of $20,000 or imprisonment for four years respectively.
[36] s40 CLCA 1935
[37] s11(7)(c) Firearms Act 1977
On 4 December 2004 the defendant had an argument with a person named Tyrone Grocke. The argument took place in a house at Morgan. Following the argument the defendant approached Mr Grocke from behind and struck him on the head with a hammer. The victim was conveyed by ambulance to hospital where he was treated for swelling inside his skull.
Later that day police attended an address where the defendant was living in a caravan. The defendant was arrested and conveyed to the Berri Police Station where he was interviewed. The defendant said that he could not recall the incident regarding Mr Grocke. In the course of searching the premises at Morgan the police found a hammer and an air rifle. The defendant admitted that the rifle belonged to him and that he was not the holder of a firearm licence.
The incident involving Mr Grocke involved a gross act of violence. If the defendant had been convicted of assaulting Mr Grocke my starting point would have been sentence of 30 months cumulative on the previous sentences. I would have imposed a fine in respect of the air rifle offence.
Total notional head sentence
After consideration of the objective seriousness of the relevant acts and the relevant maximum penalties and by a combination of concurrent and cumulative sentences, the approach that I have taken thus far would have resulted in a total notional head sentence of about nine years and eight months, if the defendant had been found guilty of each of the offences of which the objective elements had been established.
Other factors
In accordance with the principles expressed by the Court of Criminal Appeal in R v Davey[38] it is appropriate to allow for a reduction of the notional head sentence on account of the defendant’s cooperation in agreeing, through his counsel, the objective elements of the various charges. In my view it is appropriate to reduce the notional head sentence by about 15 months on account of this factor.
[38] [2006] SASC 177 at [15] and [82]
There are no factors personal to the defendant that would warrant any further reduction. By reason of the defendant’s mental condition, considerations of contrition and remorse have no relevance[39]. However, a sentence of eight years and five months for offences of this kind would amount to a crushing sentence. I would have invoked the totality principle to reduce the notional head sentence to 6 years.
[39] R v Davey [2006] SASC 177 at [12]
In the ordinary course it would be necessary at this point in the sentencing process to take into account any time spent in custody. The defendant has been held in custody in relation to these matters since 6 December 2004. There was an earlier period of four months and four days when he was held in custody in respect of some of the offences. Accordingly, it would have been appropriate to reduce the notional head sentence by a further 24 months on account of this factor.
By this process of reasoning I have concluded that an appropriate limiting term is 4 years as from the date of this order.
Single limiting term
During submissions I raised with counsel the question of whether I had the power to fix a single limiting term in respect of these matters. Dr McGrath and Ms Kleinig for the prosecution submitted that I could fix a single limiting term under s18A of the Sentencing Act 1988. I do not agree with this though I note that in R v Bartholomaeus[40] Layton, J appears to have accepted the same submission without argument[41].
[40] [2006] SASC 13
[41] [2006] SASC 13 at [70]-[71] and [79]. Note in Lunn Criminal Law South Australia at [63420.5] Bartholomaeus is cited as authority for the view that s 18A authorises the fixation of a single limiting term Note: in Davey [2006] SASC 177 the Court of Criminal Appeal exercising its own discretion imposed a single limiting term in relation to multiple matters but did not identify the source of its power.
Section 18A states:
If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
In my view it is clear that s18A does not apply to these proceedings. The section applies only to persons “found guilty” of offences. A person declared liable to a supervision order under s269O on grounds of mental incompetence to commit the charged offence or mental unfitness to stand trial in respect of the charged offence has not been found guilty of the offence.
Furthermore a supervision order is not a sentence. Sentence is defined in s3 of the Sentencing Act to mean:
(a)     the imposition of a penalty; or
(b)     the decision of a court to offer a defendant an opportunity to enter into a bond; or
(c)     the fixing or extending of a non-parole period; or
(d)     the making of any other order or direction affecting penalty.
It could not be said that a supervision order is a penalty for the purposes of this definition. As Gray J observed in Davey[42]:
The limiting term is not intended to be punishment. A defendant has not been found guilty. Rather, a limiting term ensures that a defendant receives the appropriate period of detention or control and supervision relevant to the conduct the subject of the charge. It also enables treatment to be provided, and it allows the community to be protected whilst a defendant receives treatment.
[42] [2006] SASC 177 at [53]
In other words a limiting term is a protective order not a penalty.
It does not follow from what I have said that a court does not have power to fix a single limiting term. In my view the power is contained in s269O. That section states:
(1) The court by which a defendant is declared to be liable to supervision under this Part may –
(a)     release the defendant unconditionally; or
(b)     make an order (a supervision order) –
(i)    committing the defendant to detention under this Part; or
(ii)releasing the defendant on licence on conditions decided by the court and specified in the licence
(2)If a court makes a supervision order, the court must fix a term (a limiting term) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court’s opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established.¹
(3)At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.
¹The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant’s mental impairment.
Both limiting term and offence are expressed in the singular. A literal interpretation of the section would suggest that a single limiting term needs to be fixed in respect of each offence of which the objective elements have been established. Such a requirement would make the disposition of persons under s269O in respect of multiple matters unnecessarily complicated.
But more than that it would serve to defeat the purpose of s269O in cases where the defendant is liable to supervision in respect of multiple matters. The section does not authorise cumulative limiting terms[43]. Thus in a case such as the present, the Court would be required to fix multiple limiting terms with the length of each term restricted to a period equivalent to the sentence that would have been imposed if the defendant had been convicted of the relevant offence.
[43] Compare s 31(1) of the Sentencing Act 1988 which enables a court to impose cumulative sentences in relation to multiple crimes.
In the result multiple concurrent limiting terms would be imposed that would fail to reflect the total sentence that would have been imposed if convictions had been recorded. Putting it another way limiting terms would be imposed that may not ensure the defendant receives the appropriate total period of detention or control and supervision relevant to the conduct which is the subject of the charges. The community would also be deprived of an appropriate degree of protection. This could not have been the intention of Parliament.
I would interpret s269O(2) as authorising the fixing of a limiting term equivalent to the period or periods of imprisonment that would have been imposed if the defendant had been convicted of the offence or offences of which the objective elements have been established. In other words, I would interpret the singular, where necessary, to include the plural[44]. This construction would promote the purpose of the legislation[45].
[44] See s26 Acts Interpretation Act1915 (SA)
[45] Where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object: s22 Acts InterpretationAct1915 (SA)
It is to be noted that the defendant has been declared liable to supervision in respect of some matters on the ground of mental unfitness to stand trial and in respect of others on the ground of mental incompetence. I do not think that this factor is a bar to a single limiting term. The process of disposition of such persons remains the same[46].
[46] See R v Davey [2006] SASC 177 at [50]
Accordingly, I find that I have the power to fix a single limiting term in respect of all the matters in relation to which the defendant has been declared liable to supervision.
Order
I make a supervision order pursuant to s269O(1)(b)(ii) releasing Mr Brown on licence. I set a limiting term of four years to operate from today and Mr Brown’s release on licence will be subject to the following conditions:
1.That he be under the care of a psychiatrist (his treating psychiatrist) at the Eastern Community Health Service, and that he obey all directions given to him by his treating psychiatrist with regard to medical, psychological and psychiatric treatment and medication, and further that he be psychiatrically reviewed on a regular basis as determined by his treating psychiatrist.
2.That he be released into the care of Kylie Colmer (his sister) on Saturday, 29 July 2006 at 8.30 am to travel immediately to her place of residence at 11 Leighton Avenue, Klemzig and return to a residential mental health facility approved by his treating psychiatrist by 6 pm on Saturday 29 July 2006.
3.That he be released into the care of his sister on Friday 4 August 2006 at 8.30 am to travel immediately to, and reside at her place of residence at 11 Leighton Avenue, Klemzig and return to a residential mental health facility approved by his treating psychiatrist by 6 pm on Sunday 6 August 2006.
4.That he be released into the care of his sister on Tuesday 8 August 2006 at 8.30 am to travel immediately to, and reside at her place of residence at 11 Leighton Avenue, Klemzig and return to a residential health facility approved by his treating psychiatrist by 6 pm on Thursday 10 August 2006.
5.That the defendant be released into the care of his sister on Monday 14 August 2006 at 4.30 pm to travel to and reside at his sister’s place of residence at 11 Leighton Avenue, Klemzig or such other address approved by his treating psychiatrist.
6.That he not possess, consume or administer alcohol or any prohibited drug other than medication prescribed by a medical practitioner.
7.That he be under the supervision of an officer of Department for Correctional Services, his supervising officer, and obey that person’s lawful directions.
8.That he participate in programs and activity as directed by his supervising officer, or his treating psychiatrist or his or her nominee, including, but not limited to, drug and alcohol rehabilitation programs.
9.That he submit to testing for the presence of alcohol and drugs in his system as required from time to time by his supervising officer or treating psychiatrist.
10.That he not possess any firearm and surrender to police forthwith any firearm which he currently owns.
11.That he not contact directly or indirectly Leanne Prak or Tyrone Grocke.
12.That he be restrained from attending the places of residence and employment of Leanne Prak and Tyrone Grocke.
13.That he not attend within two kilometres of the township of Morgan, unless in the company of his sister.