R v Burke - [2006] SADC 39

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v BURKE
Reasons for Sentence of His Honour Judge Tilmouth
30 March 2006
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
Accused pleaded not guilty by reason of mental incompetence to charge of arson - defendant admitted objective elements of offence - consideration of psychiatric evidence of accused's mental state at time of alleged offending - court satisfied that at time of alleged offences accused was mentally incompetent to commit the offence.
Criminal Law Consolidation Act 1935 (SA) s85(2), s269B, s269F, s269G, s269O, s269Q, s269R, s269T, referred to.
R v Boniface No 132 of 2004; R v Hardman No 638 of 2005; R v Jones (1981) 27 SASR 368; R v Iommazzo No 1277 of 2003; R v T (1999) 75 SASR 235; R v Teremoana (1990) 54 SASR 30; R v Webster No 1047 of 2004, applied.

R v BURKE
[2006] SADC 39
REASONS FOR SENTENCE IN THE MATTER OF MELINDA JANE BURKE

Melinda Jane Burke stands charged with arson, contrary to s85(2) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) The particulars are that on 3 December 2004 at Brighton, she unlawfully set fire to an home unit she was renting, causing damage to the estimated value of $50,000. She made admissions to lighting the fire, to her neighbours shortly afterwards.
Upon the matter coming before the Court, an issue of mental competency arose under Part 8A of the Act. The matter came on again on 23 January 2006, when an election was made pursuant to s269B of the Act for trial by judge alone. At that time, various statements were tendered in support of the prosecution case concerning the objective elements of the offence, the court taking that course by mutual agreement between the parties, provided for in s269G, at that stage of the proceedings. On considering those materials, the court made a finding that it was satisfied beyond reasonable doubt pursuant to s269GA(2) that the objective elements of the offence of arson, committed on 3 December 2004, were established.
The court then received two reports, one of Dr Branson of 11 November 2005 and one of Dr K P O’Brien of 31 October 2005, relating to the question of the defendant’s mental competence to commit the offence of which she was charged. Both reported, in unqualified forms, that although she was fit to plead, she was mentally impaired, due to a “Chronic Schizo-Affective Disorder”.
These reports were accepted by both parties, and both eventually sought dispensation with any further investigation into the defendant’s mental competence, as permitted by s269GB(5)(a). On that footing the Court then proceeded to make an order declaring the defendant to be mentally incompetent to commit the offence of arson, to find her not guilty of that offence on that account, and to declare her liable to supervision under Part 8A of the Act.
Subsequently reports in compliance with s269R were sought and obtained, to address the issues of diagnosis and prognosis as required by s269Q and as to the mental condition and the possible effects of release on supervision, as required by s269T(2).
At a resumed hearing, reports were submitted to the court which both the prosecution and the defence accept, discharged the entire requirements of s269T, in that there were then before the court reports, each prepared by a different psychiatrist or other appropriate expert, who personally examined the defendant. The further report of Dr O’Brien of 6 March 2006 was also accepted on both sides as covering and satisfying the requirement to consider the report “most recently submitted to the court by the Minister” under s269T(2)(b). There is also a next of kin and victim reports before the court as required by s269T(2)(d), from Ms Fox a social worker with the Forensic Mental Health Service at James Nash House, dated 16 March 2006. It records having interviewed the unit owner and the defendant’s parents. The unit owner indicated receiving reimbursement for his financial loss through an insurance policy, and expressed some sympathy for the defendant and a concern that she was “now receiving appropriate treatment”. Her parents described the impact of the offences as devastating on themselves and the defendant alike.
In his report of 6 March 2006, which addresses both the s269Q and s269T criteria, Dr O’Brien expresses the view that the defendant should remain living in the community at Ocean Grove Boarding House, where she has resided since this offence, under the supervision of Dr Anita Paull, a consultant psychiatrist whom she sees on a regular basis. Dr O’Brien also confirms the defendant requires both in her treatment and taking medication, “regular monitoring and supervision”, and goes on to conclude “provided this is maintained, I would not anticipate that there would be any particular difficulty in maintaining her in the community.” He regards hospitalisation as “counter-productive”, and once again confirms his original diagnosis of mental impairment owing to Schizo-Affective Psychosis, which he concludes is reasonably stable. As to the s269T requirements, Dr O’Brien recommends the continuation of the current domestic, treatment and supervision arrangements to be in her best interests, whilst “at the same time, reducing the risk of the exhibition of unacceptable behaviours, including those putting the community at risk.”
In his report of 27 February 2006, Dr Nambiar regards the defendant as having made a fairly good recovery since the offence, sees no immediate risk to herself or the community and recommends that she remain in the community on licensed conditions. He also recommends the allocation of a Community Corrections Officer who could, from time to time, perform random urine drug screens in order to monitor whether, in fact, she is using illicit substances.
A third expert report as required by the legislation is that of Dr Anita Paull herself, dated 20 March 2006. Dr Paull is based in the Mental Health Unit at the Flinders Medical Centre, and has been a medical practitioner for over three decades. She points out that the defendant is also subject to Guardianship Board orders, particularly a community service order for 12 months, and points out that the more effective treatment, and for the defendant’s rehabilitation, is to establish a social network to develop creative and rewarding activities, and devoting some time in the week to work, which the Court was advised by defence Counsel during the course of submissions in mitigation, is taking place. Dr Paull regards “remaining on licence” to be “helpful to this process”. The order of the Guardianship Board referred to by her, was a community treatment order dated 6 February 2006 made under s.20 of the Mental Health Act 1993 (SA) authorising “treatment (excluding prescribed psychiatric treatment) as is authorised by the Consultant Psychiatrist for the time having the care of her”.
It may be seen then, that the reports are consistent and unanimous regarding the general disposition of this case. Accordingly, the court proposes to proceed by way of s269O – a course not seriously opposed by the prosecution - to make a supervision order releasing her on licence under certain conditions, as specified in that licence under s269O(1)(b)(ii). The Court heard submissions from the parties as to the terms and content of such conditions.
However, when proposing to make such an order, the court must fix a “limiting term”, equivalent to the period of imprisonment or 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: s269O(2), R v T (1999) 75 SASR 235..
As noted above, the objective elements are established. As there was no dispute as to those elements in these proceedings, the defendant is entitled to discount for what is, in effect by analogy, an early plea of guilty which would be in the order of 20% in the circumstances, bearing in mind also that despite her mental problems she has been very contrite about this offence ever since.
No explanation is readily apparent why this offence was committed, outside the defendant’s mental condition itself. She is unable, even now, to articulate or explain her offending, and the reports throw precious little light on that issue as well. What is clear though, is that immediately afterwards she effectively made full admissions to her neighbours and it appears that the torching of her unit must have come at a critical and especially weak moment in her psychiatric wellbeing, which for some unaccountable reason, triggered her to do what she did.
It is difficult of course, to wholly separate the subjective and objective components because the offence is only explicable, on account of the medical condition. In all the circumstances, and having regard to other broadly “comparable” sentences and the authorities in point[1] and also bearing in mind that a maximum penalty of life imprisonment applies (the amount of damage admitted by the defence being more than $30,000) a limiting term of two years, reduced from two years and six months on account of the “early” plea of guilty, is made pursuant to s269O(2).
[1] R v Jones (1981) 27 SASR 368, R v Teremoana (1990) 54 SASR 30, R v Boniface No. 132 of 2004, R v Iommazzo No 1277 of 2003, R v Hardman No 638 of 2005, R v Webster No 1047 of 2004.
As to the proposed conditions of supervision, I do not propose to impose a requirement prohibiting the defendant from consuming alcohol, as there is no evidence to suggest this offence, or any of her difficulties, arise from the use of alcohol. I do propose, however, to make terms and conditions relating to urine testing and blood analysis, but only for the purposes of detecting the use of illicit substances and more importantly, given difficulties in the past, to detect non-compliance with her medication regime, and in accordance with the recommendations of Dr Nambiar in order to detect and confirm that she is taking those drugs which she is prescribed to take. Nor do I propose to impose a general condition that the defendant be of good behaviour, because there is a mechanism taking care of any potential contravention of her licence conditions[2].
[2] S269P and s269V.
Bearing in mind the requirements of s269S and s269T of the Act, the conditions of release on licence will therefore be:
1.That the defendant reside at all times at Ocean Grove, 39 Beach Road, Brighton or as otherwise directed by the Clinical Director, Forensic Mental Health Services (“the Director”).
2.That the defendant remain under the care of the Director, or a consultant psychiatrist nominated by the Director, and obey any directions given to her from time to time with regard to medical and psychiatric treatment and medication, and further that she be psychiatrically reviewed on a regular basis as directed by the Director or a consultant psychiatrist, nominated by the Director.
3.That the defendant follow all the directions of such psychiatrist who may from time to time be treating her, as to her treatment and use of medication.
4.That the defendant report as required by the Director or a consultant psychiatrist or such other person nominated by the Director as often as directed by that person from time to time.
5.That the defendant, whenever required by the Director or a consultant psychiatrist to do so, shall submit herself to and comply with any blood and/or urine analysis to ensure her compliance with the terms of this order and in particular the taking of her medication and/or other prescribed medicine.
6.That the defendant during the period of her release on licence, be under the supervision of a Community Corrections Officer and obey the lawful directions of that officer and submit herself, if required by that officer, to any random blood and/or urine analysis testing to ensure compliance with the terms of this order. The defendant is to report to the Community Corrections Officer, initially to the office of the Department of correctional Services at 181 Flinders Street, Adelaide within two working days.
7.That the defendant not use, possess or administer any illicit substance the subject of control under the Controlled Substances Act 1984 (as amended) except for the medication prescribed by a legally qualified medical practitioner, and then only in the doses prescribed.
8.That the Director or his nominee or a consultant psychiatrist nominated by the Director, upon becoming aware of any breach of these conditions by the defendant, is to inform the Director of Public Prosecutions (on behalf of the Crown) forthwith.
9.That the defendant does not leave the State of South Australia without the permission of the Director and the psychiatrists nominated by the Director.
This order shall take effect on the 30^th day of March 2006.
The formal order of the Court is accordingly that the objective elements of the offence of arson are found proved, the defendant is declared to be mentally incompetent to commit that offence, she is found not guilty of that offence, she is declared to be liable to supervision under Part 8A of the Act, a limiting term of two years is fixed, and an order is made releasing her on licence on the conditions specified above.