R v Cardillo - [2007] SADC 82

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CARDILLO
[2007] SADC 82
Reasons for the Order of His Honour Judge Nicholson
14 August 2007
CRIMINAL LAW
Investigation into mental competence to commit two offences of threatening life - decided that the objective elements were established beyond reasonable doubt - decided that at the time of the conduct alleged to give rise to the offences the defendant was suffering a mental impairment and, in consequence of that mental impairment, he did not know that the conduct was wrong - defendant declared to be mentally incompetent to commit the offences and declared to be liable to supervision - limiting term of 3 years fixed - supervision order made releasing defendant on licence on conditions decided by the court and specified in the licence.
Criminal Law Consolidation Act 1935 ss19(1), Part 8A referred to; R v Brown [2006] SADC 82, referred to.

R v CARDILLO
[2007] SADC 82
Introduction

Patrick Cardillo was charged on an Information in this court with two counts of threatening life contrary to s19(1) of the Criminal Law Consolidation Act 1935 (“the Act”). The particulars of each offence are the same, namely that,
Patrick Cardillo on 20^th day of March 2006 at Blair Athol, without lawful excuse, threatened to kill Parkash Chand, intending to arouse a fear that the threat was likely to be carried out, or being recklessly indifferent as to whether such a fear was aroused.
The defendant raised the defence of mental incompetence, at the relevant time, to have committed the charged offences. On 20 April 2007 I found the defendant not guilty of the charged offences on the ground of mental incompetence and declared that he was liable to supervision under Part 8A of the Act. Pursuant to s269O of the Act I have decided to fix a limiting term of 3 years and to release the defendant on conditional licence. These are my reasons. Throughout, I refer to Mr Cardillo as either the accused or the defendant.
The alleged offending
The fact that the accused committed the objective elements of the two offences is not in dispute and I will therefore refer to Mr Parkash Chand as the victim and notwithstanding that I have found the accused to be not guilty of each offence by reason of mental incompetence. The victim is the proprietor of a business, “Indian Temptations”, located in Main North Road, Blair Athol. He leases the shop from his (residential) next door neighbours who are the parents of the accused. On Monday, 20 March 2006, at about 1am the accused came through the back door of the restaurant; he picked up a seven inch chefs knife that was on the bench and said words to the effect “I’m going to kill you” and “I’m going to go to your house and burn it down”. He approached the victim and pointed the knife at the victim’s stomach. It touched him but did not cause any pain. He further said, “Fuck off from my shop, I will kill you”. When the victim took steps to call the police the accused left the shop.
Later that day, in the early afternoon, whilst the victim was at the restaurant, he received a message that the accused was causing problems at the victim’s house. The victim went home straight away and saw the accused carrying a large metal pole that was thick and heavy. He was hitting the fence at the front of the victim’s house and saying words to the effect that he was “going to burn [the victim’s] house down”. The accused entered the victim’s yard with the metal pole and said “I want to kill you, you bastard”. He did not hit the victim with the pole but continued to threaten him by raising it in the air as if to strike him. The victim again called the police. The victim has said that he is afraid of the accused and is not sure what he will do next. His children are also afraid of him.
The proceedings in this court
The accused elected, pursuant to s269B of the Act, to have the charges dealt with by a judge sitting alone.
In the exercise of the discretion available to me under s269E, I determined to deal with the issue of mental competence first and before dealing with the objective elements of the offences. When the defence of mental incompetence is raised the onus rests with the defence on the balance of probabilities. I heard from counsel for the prosecution and counsel for the defence, both of whom agreed that I should make a finding that the accused was mentally incompetent to commit both of the offences. Both agreed that I could dispense with an inquiry into this issue. However, and notwithstanding this, I read and considered the psychiatric reports of Dr Nambiar, exhibit P2 and Dr Craig Raeside, exhibit D1.
On the basis of those reports and having heard from counsel, I found that the accused, at the time of committing the conduct the subject of the offences charged, was suffering from a mental impairment, namely bipolar mood disorder involving mania with psychotic thinking, as a consequence of which he did not know that the conduct he engaged in was wrong and/or in the alternative, he was unable to control that conduct. As a consequence, on 20 April 2007 I made and recorded a finding that the accused was, at the time of the alleged offences, mentally incompetent to commit those offences.
Upon my upholding the defence of mental incompetence, the accused maintained his election to proceed with a trial of the objective elements of the offences by judge alone.
In order to establish the objective elements of the offence of threatening life, the prosecution must prove beyond reasonable doubt, first, that the accused on each particularised occasion made a threat; second, that each such threat was directed towards the life of another person, being a threat to kill or to endanger the life of that other person. In my opinion, the third element ordinarily necessary to establish the offence of threatening life involves an inquiry into the accused’s mental state at the time of the relevant events and cannot be characterised as an objective element.
The evidence, relevant to the objective elements and tendered by the prosecution with the consent of the defence, comprised various declarations being exhibits P3, P4, P5, P6, P7, and P8 and one by Leisa Pullen dated 2 August 2006 with respect to which no exhibit number was given. Counsel for the accused conceded that the objective elements of the offence had been established. Nevertheless, I considered the evidence on this issue. On 20 April 2007 I found and recorded a finding that the prosecution had proved beyond reasonable doubt that the accused engaged in conduct which established or satisfied the objective elements of each of the counts of threatening life with which he had been charged.
For completeness, although possibly unnecessary given the terms of s269FB(4) of the Act, I found that there was no evidence or no sufficient evidence to persuade me on the balance of probabilities that the threats made by the accused were made with lawful excuse.
In the result, on 20 April 2007 I found the accused not guilty of each charge by reason of mental incompetence and made a declaration pursuant to s269F of the Criminal Law Consolidation Act that he is to be liable to supervision under Part 8A of that Act.
I then directed that three reports be prepared in accordance with the requirements of s269T(2). The Director of Public Prosecutions undertook to arrange for reports to be prepared and provided as required by s269R (a report on the attitudes of victims and next of kin) and under s269Q.
The matter came back before me on 25 June 2007 at which time the following reports (additional to exhibits P2 and D1) were before me: a report prepared by Dr Megan Ferris and countersigned by Dr Ken O’Brien dated 20 June 2007 (s269Q and s269T), a further report by Dr NP Nambiar dated 20 June 2007 (s269T) and a report by Dr Bagvati Asokan dated 20 June 2007 (s269T). In addition I had before me a report prepared by Anna D’Alessandro, a senior social worker at the Forensic Mental Health Service, dated 21 June 2007 and prepared pursuant to s269R. I heard submissions from counsel on matters arising out of these various reports.
The matter came before me again on 25 July 2007 at which time I had before me a further or supplementary report prepared pursuant to s269R of the Act by Anna D’Alessandro and a report prepared by Dr Radisic dated 28 June 2007, being an “annual psychiatric report” prepared pursuant to s269Q of the Act.
This last mentioned report came about for the reason I now explain. Subsection 269Q(1) obliges the Minister within thirty days of a person being declared to be liable to supervision under Part 8A of the Act to prepare and submit to the court by which the declaration was made, a report dealing with the matters referred to in s269Q. As I have indicated above the report of Drs Megan Ferris and Ken O’Brien has been provided in satisfaction of this requirement. However, Mr Cardillo, at the time he engaged in the conduct the subject of the alleged offending before me, already was subject to a declaration that he be liable for supervision under Part 8A and to an order for release on licence with conditions, as imposed by Judge Simpson of this court on 18 December 2003. That order for release on licence remains in effect and is due to expire on 17 December 2008. Subsection 269Q(2) obliges the Minister to arrange to have prepared and submitted to the court at intervals of not more than twelve months during a limiting term, a report dealing with the matters referred to in that subsection. The report of Dr Radisic was provided by way of compliance with this obligation and relates to the continuing release on licence ordered by Judge Simpson.
The medical evidence
Dr Ferris interviewed Mr Cardillo on 6 June 2007. She (and Dr O’Brien) had regard to a number of other reports and materials as recorded in their report. They noted Mr Cardillo’s past psychiatric history, medical health, drug and alcohol history and background and developmental history and described his then current psychiatric state, essentially as recounted to Dr Ferris by him. They recorded the fact that he has a longstanding diagnosis of bipolar affective disorder with manic and depressive features, and observed that,
Currently his mental state appears to be extremely stable and his bipolar affective disorder is in remission secondary to him remaining compliant with his mood-stabiliser medication and refraining from poly substance abuse.
As to prognosis, Dr Ferris and Dr O’Brien recorded this opinion.
It would appear that currently his long term prognosis appears good. He appears to be stable in his accommodation and relationship and insightful into the need for his ongoing compliance with mental health medications and follow up through Community Corrections. There will be a risk of relapse if he was to become non-complaint with his medications or resume any illegal drug use as he clearly becomes actually unwell in a rapid time frame if not clearly monitored.
On the topic of the suggested treatment plan, the authors observed that Mr Cardillo is currently being appropriately and effectively managed by the Northern Mental Health Team, including the regular monitoring by a key worker of his mental state in the community setting and the holding of regular appointments with a psychiatry doctor who is overseeing ongoing compliance with medication. Dr Ferris and Dr O’Brien see no need to drastically alter his current psychiatric and corrections management plan. They do recommend regular urine drug testing in order to assist with early intervention.
Dr Nambiar interviewed Mr Cardillo for the purpose of his report on 14 June 2007. Dr Nambiar has had prior contact with Mr Cardillo and also was provided with various reports and other documents as noted in his report. Dr Nambiar agreed that, at the time of his review, there were no active symptoms of illness and that Mr Cardillo appeared to be compliant with his medication and his treatment regime generally. Dr Nambiar expressed support for Mr Cardillo’s current treatment plan. It is his recommendation that Mr Cardillo can continue to be treated in the community and does not require detention. Dr Nambiar also recommended dual supervision, that is, by both the Northern Mental Health Services and by Community Corrections because the latter can continue to monitor his abstinence from alcohol and/or other illicit substances by way of regular urine drug screens.
Dr Asokan interviewed Mr Cardillo for the purpose of his report on 13 June 2007. He also was provided with various reports to assist him, as noted in his report of 20 June 2007. Dr Asokan agreed that Mr Cardillo had a longstanding diagnosis of bipolar disorder but that, at the time of his assessment, he was stable. He expressed the opinion that Mr Cardillo was behaviourally settled and had no mood or psychotic symptoms. Dr Asokan agreed that Mr Cardillo does not require inpatient management but should be closely followed up by the current community team. Dr Asokan also is of the view that it is important that Mr Cardillo abstain from alcohol and illicit drugs and that random urine drug testing on a regular basis would be appropriate. Dr Asokan recommended frequent blood tests to check compliance with his mood stabilising medication and also the possibility of adding a depot anti-psychotic medication such as Rasperdal Consta which he maintains is beneficial for mood symptoms but also assists in improving compliance with his mood stabilising medication. As to this last recommendation I note that this is essentially a matter within the province of his current treating practitioners.
Dr Radisic provided the annual psychiatric report under s269Q(2) and dated 6 July 2007. Dr Radisic also concluded that Mr Cardillo’s bipolar disorder was stable as at the time of Dr Radisic’s last contact with him (27 June 2007).
Other reports
I have taken into account the s269R report (and supplementary report) dealing with the views of the victim and next of kin prepared by Ms D’Alessandro. The victim (Mr Chand) said that he wished to express no view, positive or negative, with respect to what might be an appropriate outcome in this matter. This is understandable giving that Mr Chand is the tenant of Mr Cardillo’s parents. Mr Cardillo’s next of kin include his mother whom Ms D’Alessandro was unable to contact and Ms Katie O’Reilly, Mr Cardillo’s defacto partner, whom Ms D’Alessandro was able to interview. Ms O’Reilly indicated that she had an understanding of the notion of licence conditions and the importance of Mr Cardillo maintaining his treatment as required. She said that she did not consider Mr Cardillo to be dangerous and did not have concerns for her own safety. She thought that he had progressed well and that, at the time she was interviewed, he was stable in his mental state. She expressed the view that Mr Cardillo would remain compliant with medication and treatment; that he had her support and that she would assist with continued monitoring of his medication regime.
Proposed orders
Under s269O of the Act I may release the accused unconditionally or make an order committing him to detention or release him on licence on conditions to be decided upon by me. I note that s269S enjoins me, in deciding whether to release the accused or in determining the conditions of any licence, to apply the principle that restrictions on his freedom and personal autonomy should be kept to a minimum consistent with the safety of the community.
The Director of Public Prosecutions has not submitted that I should commit the accused to detention under this Part. It was submitted by both the Director and Ms Matson on behalf of Mr Cardillo that he should be released on licence, essentially on the conditions already applicable pursuant to the order for release on licence made by Judge Simpson in this court on 18 December 2003, but with some adjustments. I will come to those conditions and those adjustments shortly. On the material before me it clearly would not be appropriate to release Mr Cardillo unconditionally. However, I am satisfied, having regard to all of the expert opinion in the matter, that the appropriate course is to make a supervision order releasing Mr Cardillo on licence subject to conditions.
Limiting term
Under s269O I must set a limiting term with respect to the licence pursuant to which Mr Cardillo will be released, which term is to be equivalent to the period of imprisonment that would, in my opinion, have been appropriate if Mr Cardillo had been convicted of the offences with respect to which the objective elements have been established. In undertaking this exercise I am not to take into account Mr Cardillo’s mental impairment. I note that the maximum penalty with respect to each of the counts of threatening life is ten years imprisonment. I accept that I have a discretion to fix a single limiting term with respect to both charged offences, if not pursuant to s18A of the Sentencing Act, then pursuant to s269O itself. See the discussion by Millsteed J in R v Brown [2006] SADC 82 at [65] – [77].
I turn to Mr Cardillo’s personal circumstances. He is 34 years of age and resides with his fiance in private rental accommodation. Whilst he has no children or dependents, his mother and other members of his family also suffer from mental illness and require care from time to time. He is unemployed but has spent a great deal of time looking after his parents. He has been engaged in court-ordered community service work from time to time. As I have indicated, Mr Cardillo does have the support of his family and his defacto partner/fiance. He has a significant history of prior offending although I accept the submission of his counsel that only rarely has his offending involved violence. His personal circumstances and history are more fully set out in the various psychiatric reports referred to above and to which I have had regard.
Mr Cardillo’s counsel told the court that he acknowledged that his conduct was extremely serious, that he was extremely embarrassed and regretted the immense pain an anxiety that his actions must have caused the victim.
Viewed objectively the offending, involving the use of a knife and a large metal pole together with the words used and the conduct accompanying those words, was very serious. Mr Cardillo’s conduct no doubt caused great fear and anxiety in Mr Chand and his family. However, it does appear to have been spontaneous; it happened fairly quickly and was over fairly quickly.
I start with a single limiting term with respect to both incidents of three years and eight months. I note that Mr Cardillo, through his counsel, conceded the objective elements of the two charged offences. He also has shown some contrition and clearly is trying to co-operate with his psychiatric treatment. For these reasons I reduce that starting limiting term of three years and eight months to three years.
As I have indicated, I consider it to be appropriate to release Mr Cardillo on licence on certain conditions. The order for release will take effect and the limiting term will commence today. This means that until the expiration of the licence granted by Judge Simpson to which Mr Cardillo is presently subject, he will be obliged to observe both the conditions of that licence and the conditions of the new licence that I order. Upon the expiration of the licence ordered by Judge Simpson, Mr Cardillo will continue to be subject to the licence conditions ordered by me until the expiration of that licence three years from today.

Consistent with the submissions made in this respect by both counsel for the Director of Public Prosecutions and counsel for the defence, the conditions set out in the order for release on licence that I make today essentially mirror those contained in Judge Simpson’s earlier order, with the following variations and additions.
(i)Condition 5 of the licence conditions I impose will reflect the fact that Mr Cardillo is now under the care of the Northern Mental Health Service.
(ii)Condition 9 of the Judge Simpson licence provides as follows:
The defendant is to submit to blood and/or urine testing as directed, to monitor compliance with the above conditions of licence.
On the recommendation of a number of the psychiatrists who have reported in this matter, condition 9 in the licence ordered by me is to provide:
9.The defendant is to submit to blood and/or urine testing as directed by either the Director or his nominee or the defendant’s supervising Community Corrections Officer, to monitor compliance with the above conditions of licence.
(iii)   In condition 10 of the licence ordered by me I have used the term “Community Corrections Officer” rather than “parole officer”, the term used in the already existing licence.
(iv)Condition 11 of the Judge Simpson licence provides as follows:
The defendant is not to hold or apply for a driving licence until his treating psychiatrist assesses him as being fit to do so and is to submit to an assessment as to his fitness to hold a driving licence at a minimum of six monthly intervals as required by the Director or his nominee.
The court was advised that Mr Cardillo now holds a driving licence and that it was obtained in accordance with the requirements of this condition 11. Accordingly, insofar as the licence conditions that I impose are concerned, I have included at condition 11 the following:
11.The defendant is to submit to an assessment as to his fitness to hold a driving licence at a minimum of six monthly intervals as required by the Director or his nominee.
(v)The licence ordered by me contains an additional condition 13 which provides as follows:
13.     The defendant
(a)     is not to contact directly or indirectly or remain in the immediate presence of Parkash Chand or any members of his household;
(b)     is not to attend at the shop premises that Parkash Chand currently leases from the defendant’s parents, being Shop 3/490 Main North Road, Blair Athol and whilst Parkash Chand is an occupier thereof or any other premises that Parkash Chand may from time to time lease from the defendant’s parents.
Order for release on licence
I Kevin Gordon Nicholson, a Judge of the District Court of South Australia, do hereby make, pursuant to s269O of the Criminal Law Consolidation Act 1935 a supervision order releasing the defendant, Patrick Cardillo, on licence on the conditions set out hereunder.
Pursuant to s269O(2) of the Act I order that a limiting term of 3 years be fixed to commence from today.
CONDITIONS OF LICENCE
That pursuant to s 269O(1)(b)(ii) of the Act, the defendant be released on licence subject to the following conditions:
1.The defendant is to be under the care of the Director of the Forensic Mental Health Service (“the Director”) or a consultant psychiatrist nominated by him (“his nominee”).
2.The defendant is to obey all directions given to him by the Director or his nominee with respect to medical and psychiatric treatment and care.
3.The defendant is to continue to see his treating psychiatrist on a monthly basis until directed otherwise.
4.The defendant is to be psychiatrically reviewed on a regular basis, as required by the Director or his nominee.
5.The defendant is to be under the care of the Northern Mental Health Service or such other Community Mental Health Team as may be directed from time to time.
6.The defendant is to comply with prescribed medication as directed by the Director or his nominee.
7.The defendant is not to possess, use, or administer any narcotic or psychotropic drug, or any drug which is not medically prescribed for his use by a legally qualified medical practitioner and then only at prescribed or recommended dosages.
8.The defendant is strictly to limit any consumption of alcohol, so that at no time is the concentration of alcohol in his blood to exceed a concentration of 0.08 grams per 100 millilitres of blood.
9.The defendant is to submit to blood and/or urine testing as directed by either the Director or his nominee or the defendant’s supervising Community Corrections Officer, to monitor compliance with the above conditions of licence.
10.The defendant is to be under the supervision of a Community Corrections Officer and obey all lawful directions given to him by the officer assigned to supervise him.
11.The defendant is to submit to an assessment as to his fitness to hold a driving licence at a minimum of six monthly intervals as required by the Director or his nominee.
12.The defendant may be detained at James Nash House, or other approved treatment centre, as defined by the Mental Health Act 1993, at the discretion of the Director or his nominee if:
(a)    The Director or his nominee is satisfied that the defendant has breached any condition of this order; or
(b)The Director or his nominee is satisfied that the defendant’s actions or patterns of behaviour are likely to lead to a breach of any condition of this order;
Provided that
(c)    Such confinement shall not be for more than 14 days without further order of this Court; and
(d)    The Director or his nominee shall notify a person nominated by the defendant and the Director of Public Prosecutions forthwith upon the confinement of the defendant at James Nash House under the terms of this condition of licence.
13.     The defendant
(a)    is not to contact directly or indirectly or remain in the immediate presence of Parkash Chand or any members of his household;
(b)is not to attend at the shop premises that Parkash Chand currently leases from the defendant’s parents being Shop 3/490 Main North Road, Blair Athol and whilst Parkash Chand is an occupier thereof or any other premises that Parkash Chand may from time to time lease from the defendant’s parents.
ADDENDUM
Please note that the orders in the abovementioned judgment were amended/corrected as follows:
After delivery of the judgment and upon hearing from counsel, by consent of both parties, Condition 11 of the orders as made and licence as granted, was deleted.