R v Burfield (No 3) - [2006] SASC 97

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v BURFIELD (No 3)
Judgment of The Honourable Justice Gray
7 April 2006
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
Defendant found not guilty of attempted murder on the ground of mental incompetence - declared liable to supervision - limiting term to be fixed for supervision order - consideration of legislative scheme of Part 8A of the Criminal Law Consolidation Act 1935 (SA) - consideration of purpose of limiting term and process of fixing limiting term - Court fixed limiting term of 11 years.
Criminal Law Consolidation Act 1935 (SA) Part 8A, s 269FB, s 269O, s 269P, s 269R, s 269T; Criminal Law (Sentencing) Act 1988 (SA) s 10; Mental Health Act 1993 (SA) s 12, referred to.
R v Burfield [2005] SASC 438; R v Burfield (No 2) [2005] SASC 439; R v Weiss [2005] SASC 338; R v T (1999) 75 SASR 235; Cameron v The Queen (2002) 209 CLR 339, considered.

R v BURFIELD (No 3)
[2006] SASC 97
Criminal
GRAY J:
Introduction

On 10 September 2004, Mark Andrew Burfield was charged with the attempted murder of his mother, Rae Carmel Burfield. He was also charged with wounding with intent to do grievous bodily harm.
At the trial (conducted by Judge alone) it was contended that Mr Burfield was mentally incompetent to commit the charged offences. On 15 September 2005, I concluded that mental incompetence had been established on the balance of probabilities. [1]
[1] R v Burfield [2005] SASC 438.
In accordance with section 269FB(1) of the Criminal Law Consolidation Act 1935 (SA), I then considered the objective elements of attempted murder.[2] I concluded that the objective elements had been established. Following the publication of this conclusion, the Crown accepted that there was no need for the court to proceed to consider the alternative charge of wounding with intent to do grievous bodily harm.
[2] R v Burfield (No.2) [2005] SASC 439.
Mr Burfield, having been found not guilty of the offence of attempted murder on the ground of mental incompetence, was declared to be liable to supervision. A supervision order was consequently made pursuant to section 269O(1)(b). This order was the subject of my reasons in R v Burfield (No. 2).
A limiting term must now be fixed with respect to the supervision order. Section 269O relevantly provides:
(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 established¹.
(3)At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.
Note—
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.
It is to be observed that in fixing a limiting term the legislature requires that Mr Burfield’s mental impairment not be taken into account.
The Legislative Scheme
Before addressing the limiting term to be fixed, it is helpful to first address the legislative history of section 269O.
Part 8A, of which section 269O is a part, was introduced into the Criminal Law Consolidation Act in 1995 by the Criminal Law Consolidation (Mental Impairment) Amendment Act 1995 (SA). Prior to the insertion of Part 8A, the common law provided that on a defendant being found unfit to plead or not guilty by reason of insanity, the Court was obliged to order that the defendant be detained at the pleasure of Her Majesty. Commentators suggested that this produced the undesirable result that only those charged with the gravest of crimes would invoke these defences for fear of being detained for a longer period than the term of imprisonment that would be imposed if they did not suffer from a mental illness.[3]
[3] State of South Australia, Parliamentary Debates, House of Assembly, 21 November 1995, p.617-620, (The Hon SJ Baker), State of South Australia, Parliamentary debates, House of Assembly, 23 November 1995, p.737-739 (Ms White).
The South Australian legislature enacted Part 8A following legislative change in other jurisdictions to give South Australia’s law a degree of consistency with the laws of other jurisdictions and also with international legal instruments to which Australia was a party.[4]
[4] These instruments included the International Covenant on Civil and Political Rights and the UN Draft Guidelines and Principles for the Protection of the Mentally Ill.
The Criminal Law Consolidation (Mental Impairment) Amendment Act intended to reform the criminal law of South Australia by adopting the High Court’s common law definition of mental illness; by removing the prospect of indefinite detention and by also removing what was described as archaic and offensive language. The legislation also defined the role of judge and jury when mental competence or mental fitness to stand trial was at issue and separated the question of whether a defendant suffered from a mental impairment from the question of whether the objective elements of an offence had been committed. The operation of Part 8A was designed to remove the suggested harshness of the common law, which as it stood, left the mentally ill with limited rights.
One of the primary purposes of Part 8A was to provide courts with power to make the most appropriate order once a court had found a defendant unfit to plead or not criminally responsible because of mental impairment. The court, pursuant to section 269O, was given the option to release the defendant unconditionally or to make a supervision order.
As discussed earlier, following the making of a supervision order, a court is required to fix a limiting term. In this process, a court cannot consider the mental impairment of a defendant nor set what would be the equivalent of a non-parole period.
Counsel for Mr Burfield submitted that the legislation discriminates against a person who has a mental impairment or who is not fit to plead. However, upon analysis it can be seen that the operation of Part 8A provides greater flexibility with respect to a person detained under a supervision order. The legislation provides a different and humane regime for the treatment of the mentally impaired.
Part 8A, through section 269P, provides that a supervision order can be varied or revoked at any time. Section 269T provides that the court has the power, when determining whether an order should be varied or revoked, to consider the issue of mental impairment. Importantly, Part 8A provides that if a defendant is sufficiently rehabilitated prior to the expiration of the limiting term an application can be made to the court to vary or revoke a supervision order.
If a defendant, at the end of the limiting term, is still a danger to him or herself or to the community, an application can be made under section 12 of the Mental Health Act 1993 (SA) for continued detention.
It is within this context that the note to section 269O(2) must be considered. The legislature intended that the court fix a term having regard to the gravity of the objective conduct whilst allowing for a supervision order to be varied or revoked on a consideration of a defendant’s ongoing rehabilitation. 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 relevant to the offence, enables treatment to be provided and for the community to be protected whilst a defendant receives treatment. It does not unfairly disadvantage a defendant to fix a limiting term without considering mental impairment.
The Limiting Term
Notwithstanding that the rationale for fixing a limiting term is clear, the process of doing so has been described as an “artificial exercise”.[5] To fix a limiting term by reference to a sentence that would have been imposed had the defendant had been found guilty of the relevant offence without taking account of mental impairment is necessarily contrived. Mental impairment is relevant to many factors that could arise in the sentencing process.
[5] R v Weiss [2005] SASC 338 at [9] (Bleby J).
Since the insertion of Part 8A into the Criminal Law Consolidation Act, there has been limited judicial discussion of section 269O(2). Doyle CJ, with whom Debelle and Wicks JJ concurred, briefly discussed the fixing of a limiting term in R v T.[6] Doyle CJ observed:[7]
I consider that s 269O makes it clear, by note 1, that in fixing the limiting term the court must not take account of the defendant’s mental impairment. That meant that it was not appropriate to consider the mental impairment from which [the defendant] was suffering, and accordingly it was not appropriate to sentence him on the basis that he was a person of seriously diminished responsibility. In fixing the limiting term it was appropriate for the Judge to have regard to all matters that would usually be relevant to the fixing of a sentence for the offence, but not to have regard to matters that were based upon or arose out of [the defendant’s] mental impairment.
It may be that in fixing the limiting term the Court does not engage in exactly the same process that it does when imposing a sentence. Note 1 requires the Court to fix a limiting term “by reference to the sentence that would have been imposed”. But, in my opinion, one cannot say that the Judge should not have regard to a matter such as general and personal deterrence when fixing a limiting term under this provision. I agree that the result may seem harsh, but the terms of the provision are clear. As well, it is important to bear in mind the flexible regime for treatment that is envisaged under Pt 8A…[I]t is relevant to bear in mind that the limiting term does no more than fix the period during which [the defendant] may be subjected to restraints under Pt 8A.
These observations suggest that whilst it is not entirely the same process that a court engages in when fixing a limiting term as it does when imposing a sentence, personal and general deterrence are factors that can be considered.
[6] R v T (1999) 75 SASR 235.
[7] R v T (1999) 75 SASR 235 at 242.
Section 269O(2) obliges a court to fix a term equivalent to “the period of imprisonment ... 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”. However, note (1) makes it plain that the equivalent term is to be fixed “by reference to” the sentence that would have been imposed. The phrase “by reference to” introduces some elasticity into the process.
The legislation requires a court to engage in a hypothetical exercise of determining what sentence would have been imposed had a defendant been convicted of the offence of which the objective elements had been established, without taking into account consideration of the defendant’s mental impairment. This will be a difficult task. When sentencing for a crime such as murder or attempted murder, a defendant’s mental state must be considered by the court. That mental state is relevant to and permeates many of the factors that must be considered in the sentencing process.
This may be readily illustrated when regard is had to the terms of section 10(1) of the Criminal Law (Sentencing) Act 1988 (SA) that mandates the matters to which a sentencing court must have regard:
A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
(a)     the circumstances of the offence;
(b)     other offences (if any) that are to be taken into account;
(c)if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character—that course of conduct;
(d)     the personal circumstances of any victim of the offence;
(e)     any injury, loss or damage resulting from the offence;
(ea)in the case of an offence committed by an intruder in the home of another—the need to give proper effect to the policy stated in subsection (2);
(f)    the degree to which the defendant has shown contrition for the offence—
(i)    by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii)    in any other manner;
(g)     if the defendant has pleaded guilty to the charge of the offence—that fact;
(h)the degree to which the defendant has co-operated in the investigation of the offence;
(i)    the need to protect the community from the defendant's criminal acts;
(j)the deterrent effect any sentence under consideration may have on the defendant or other persons;
(k)the need to ensure that the defendant is adequately punished for the offence;
(ka)if a forfeiture of property (other than a forfeiture that merely neutralises a benefit that has been obtained through the commission of the offence) is, or is to be imposed, as a result of the commission of the offence—the nature and extent of the forfeiture;
(l)the character, antecedents, age, means and physical or mental condition of the defendant;
(m)    the rehabilitation of the defendant;
(n)the probable effect any sentence under consideration would have on dependants of the defendant;
(o)     any other relevant matter.
Paragraphs (a), (f), (g), (h), (j), (k), (l) and (m), and possibly other paragraphs, are likely to involve a consideration of a defendant’s mental impairment.
Counsel for Mr Burfield submitted that this Court, in fixing the limiting term, should take into account Mr Burfield’s cooperation with the police and his acceptance of the objective elements of the offence. Acceptance of the objective elements of an offence would, in the ordinary case, be manifest in a guilty plea. A sentence would in appropriate circumstances reflect a reduction on account of a plea of guilty. However, where a defendant accepts the objective elements but is found not guilty of an offence on the ground of mental incompetence there has been be no plea of guilty.
The rationale for making a reduction on account of a plea of guilty was considered by Kirby J in Cameron v The Queen:[8]
The true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount. Nevertheless, where genuine remorse is established to the satisfaction of the sentencing judge, it may be in the public interest to mitigate punishment further as a reinforcement for the prisoner’s resolve to avoid repetition of such conduct in the future and as an example to others. However “remorse” is not, as such, a precondition for the provision of a discount for a plea of guilty. There are other features of the public interest that need to be given weight.
The features of the public interest, relevant to the discount for a plea of guilty, are “purely utilitarian”. The include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconveniences caused, to any jurors, summoned to perform jury service…
It also encourages the clear-up rate for crime and so vindicates public confidence in the processes established to protect the community and uphold its laws. A plea of guilty may also help the victims of crime to put their experience behind them; to receive vindication and support from their families and friends and possibly assistance from the community for injuries they have suffered. Especially in cases of homicide and sexual offences, a plea of guilty may spare the victim or the victim’s family and friends the ordeal of having to give evidence.
[8] Cameron v The Queen (2002) 209 CLR 339 at 360-361. (footnotes omitted)
This rationale has equal application to Mr Burfield’s co-operation in the present case. Consideration of public policy allows a reduction for cooperation and the admission of the objective elements of an alleged offence when fixing a limiting term.
As earlier observed, the intention of the legislature is clear. The court, when fixing a limiting term, is obliged to undertake the hypothetical task proscribed by section 2690(2). The court must assess the sentence that would have been imposed in respect of the crime of which the objective elements have been established. The court must work through the exercise of determining that sentence excluding from consideration the effects of mental impairment on the sentencing process. This may lead to the fixing of limiting terms that approach the higher end of the range of sentences that may be imposed. Generally, factors affected by mental impairment would mitigate rather than aggravate the sentence to be imposed.
Fixing of the Limiting Term
The particulars of the incident the subject of the Court’s orders are set out in detail in Burfield (No.2). However, for the purpose of fixing the limiting term it is helpful to provide a summary.
On 9 September 2004, Mr Burfield travelled to Adelaide with his brother, Ian Burfield. Upon their return to their mother’s home in Auburn, Mr Burfield began to verbally abuse his mother. His mother left shortly after.
In the early hours of 10 September 2004, Mrs Burfield returned. She was confronted by Mr Burfield standing in the hallway with a kitchen knife. Mr Burfield stabbed his mother in the left shoulder and chest. He stopped as he said he could not stand the sound of the knife coming out of her.
Mrs Burfield retreated to the toilet. She tried to calm her son. These efforts were to no avail. Mr Burfield forced the toilet door open. He then punched his mother in the face. When she fell to the ground he started kicking her and jumping on her head and hands. Mr Burfield then beat his mother with a broom handle and a metal tennis racquet. Mr Burfield told his mother that he was going to kill her. At around this time, Mr Burfield’s brother entered the house. This gave Mrs Burfield an opportunity to escape. She hid in bushes before being discovered the following morning.
During the time Mrs Burfield was hiding, Mr Burfield visited an acquaintance. Mr Burfield said that he was looking for his mother to “finish her off”. He described how he had stabbed his mother many times.
Mrs Burfield sustained serious injuries. Twelve stab wounds were inflicted to her left arm and chest. There was a lengthy laceration to her head and a stab wound to her abdomen. She sustained a large haematoma to the back of her head. A blood transfusion was necessary.
Mr Burfield was arrested on 10 September 2004. He has remained in custody since that date. Since Mr Burfield’s arrest, he has made numerous threats that he would kill his mother upon his release.
Mr Burfield’s threats were discussed in a number of the psychiatric reports. On 29 June 2005, Dr Tomasic reported:
He says he still has homicidal thoughts towards his mother and her cousin Trevor, “her boyfriend”, and says those thoughts won’t go “until they’re dead”.

Dr Czechowicz similarly reported on 4 July 2005:
I asked him specifically whether he felt that injuring his mother was wrong, he said: “no”. He said that she was an evil person. “I think it is justice that her child should kill her”. He then said “when I get out of gaol I will have to move to another state because if I see her again I will kill her”.
…
In my opinion he continues to remain “dangerous” voicing homicidal intent towards his mother after 8 months of treatment.
Dr Czechowicz’s report of 10 October 2005 noted a slight improvement in Mr Burfield’s violent tendencies towards his mother:
Asked specifically about his intent to kill his mother. He said that this was not a certain thing now and he said that, “better if I move away,” by which he implied going away interstate or into some other area so that he had no opportunity to meet his mother. Such a decision would provide a better outcome rather than his intent to positively seek her out and her “boyfriend” to kill them which had been his stated intention in the first half of this year.
The threats that Mr Burfield has made and continues to make are matters of objective fact. They have caused and continue to cause distress and anxiety to Mrs Burfield. These are relevant facts to be taken into account when fixing the limiting term. However, the mental impairment that may underlie the threats is to be disregarded as a relevant consideration.
Mrs Burfield has sustained serious physical and psychological injuries. In the report of victims and next of kin, required by section 269R(1) of the Criminal Law Consolidation Act, the counsellor observed:
Mrs Burfield said that she suffers considerably from the lasting effects of the assault. These include a chronic tennis elbow of her left arm and two fingers which she is not able to straighten out. She continues to have a concave hole in her head. Mrs Burfield said she can still hear the broom coming down on her head and see the blood spraying across her dining room wall as he was assaulting her.
…
Mrs Burfield still lives in fear of her life. She believes that her son will come to kill her as soon as he is released. She fears that he will come after [her] with a gun, as ‘he has had guns before’. She also fears that he will attempt to harm her family members…Mrs Burfield has been told that the defendant is still making threats against her life even while he is detained at James Nash House. She does not believe that even a restraining order will stop her son from coming after her once he is released.
This incident has affected all aspects of Mrs Burfield’s life. Her general health has suffered. She feels unable to undertake her daily living skills as a result of a lack of motivation and energy. Mrs Burfield feels isolated. She believes people avoid her. She believes she is judged by people and found wanting as a parent. Generally she does not know how to cope with what has happened. This has been emphasised by living in a small town. Since the incident Mrs Burfield has increased her consumption of alcohol. She has discontinued a course in aged care. She feels a failure.
Mr Burfield had a troubled youth. He spent time in various institutions including the Magill and Cavan Training Centres. He spent a period in foster care. When aged was about 14 years, he attempted suicide.
Mr Burfield has been in trouble with the law on numerous occasions. His antecedents include offences of theft, break and enter, attempted armed robbery, car theft, driving offences and using offensive weapons. He has been convicted of a number of offences of violence, including assaults on his mother and on police.
Mr Burfield has struggled with most aspects of life. His relationship with his mother has been marked by violence. He believes his mother sexually abused him, allowed him to drink and smoke as a young adolescent and turned him into a homosexual.
Mr Burfield and his family have had a significant history of mental illness. His mother suffers from depression and anxiety and his grandmother suffered bipolar affective disorder.
Mr Burfield has previously been diagnosed with Asperger’s disorder, an attention deficit hyperactivity disorder, schizophrenia and an antisocial personality disorder. He has experienced psychotic episodes, hallucinations and paranoid delusions. Mr Burfield has been diagnosed as suffering from chronic paranoid schizophrenia. This condition has been exacerbated in the past by non-compliance with medication and heavy amphetamine use. However, as earlier observed, Mr Burfield’s mental impairment is not to be taken into account when fixing the limiting term.
Mr Burfield began using alcohol and drugs from an early age. His substance abuse has included heroin, marijuana and amphetamines. He has also abused prescription medicines. Mr Burfield is Hepatitis C positive secondary to his drug use.
Mr Burfield brutally attacked his mother with devastating effects on every aspect of her life: psychological, physical and social. The events will plague Mrs Burfield for the rest of her life. She lives in fear, believing Mr Burfield will come and kill her as soon as he is released.
As earlier observed, Mr Burfield has a history of violent offending including assaults on police officers and on his mother. There are few objective factors that could weigh in Mr Burfield’s favour. However, his comparative youth is one factor.
If I were to sentence Mr Burfield for the crime of attempted murder without taking account of his mental impairment, I would find little to mitigate the sentence that I should impose. The crime would be very grave. He continues to threaten his mother. She has and continues to experience much suffering. I would have fixed a notional head sentence of 14 years’ imprisonment. I would in the event of co-operation with the authorities have made a reduction of one and a half years. I would have backdated the sentence to 10 September 2004.
I propose to fix a limiting term equivalent to and by reference to the hypothetical sentence referred to above by fixing a limiting term of 11 years.
The order of the court is that a limiting term be fixed of 11 years. That limiting term is to commence today.