R v Chan - [2008] SADC 120

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CHAN
[2008] SADC 120
Reasons for the Order of His Honour Judge Nicholson
24 September 2008
CRIMINAL LAW
Investigation into mental competence to commit four offences of aggravated threatening life, one offence of aggravated serious criminal trespass in a place of residence, two offences of false imprisonment and one offence of possessing a firearm without a licence - 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 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), 170(1) Part 8A; Firearms Act 1977 s11, referred to.
R v Brown [2006] SADC 82, considered.

R v CHAN
[2008] SADC 120
Introduction

Justin Chan was charged on an Information in this court with four counts of aggravated threatening life contrary to s19(1) of the Criminal Law Consolidation Act 1935 (“the Act”); one count of aggravated serious criminal trespass in a place of residence contrary to s170(1) of the Act; two counts of the common law offence of false imprisonment and one count of possessing a firearm without a licence contrary to s11 of the Firearms Act 1977.
The particulars of each of the four counts of aggravated threatening life are identical save that two counts relate to one of the complainants and two counts relate to the other complainant. The particulars are as follows:
Justin Chan between the 9th day of May 2007 and the 10th day of May 2007 at Mansfield Park, threatened to kill Hue Linh Ly [Phat Van Tran], 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.
It is further alleged that Justin Chan used an offensive weapon, namely a shotgun, when committing the offence.
The particulars of the one count of aggravated serious criminal trespass in a place of residence are that:
Justin Chan between the 9th day of May 2007 and the 10th day of May 2007 at Mansfield Park, remained in the place of residence of Hue Linh Ly and Phat Van Tran as a trespasser, with the intention of committing an offence therein, namely an offence against the person.
It is further alleged that Hue Linh Ly and Phat Van Tran were lawfully present in the said place of residence and that Justin Chan knew of their presence, or was recklessly indifferent as to whether anyone was in the said place of residence.
It is further alleged that Justin Chan used an offensive weapon, namely a shotgun, when committing the offence.
The particulars of the two counts of false imprisonment are that:
Justin Chan between the 9th day of May 2007 and the 10th day of May 2007 at Mansfield Park, unlawfully imprisoned Hue Linh Ly [Phat Van Tran] and detained her [him] for about 8 hours against her [his] will.
The particulars of the one count of possessing a firearm without a licence are that:
Justin Chan between the 9th day of May 2007 and the 10th day of May 2007 at Mansfield Park, had in his possession a prescribed firearm, namely a sawn off shotgun, whilst not being the holder of a firearm’s [sic] licence authorising possession of that firearm.
The defendant raised the defence of mental incompetence, at the relevant time, to have committed the charged offences. On 25 January 2008 I found the defendant not guilty of each of the eight 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 7 years and 3 monthsand to release the defendant on conditional licence. These are my reasons. Throughout, I refer to Mr Chan as either Mr Chan or the defendant.
The alleged offending
The fact that the defendant committed the objective elements of the 8 offences is not in dispute and I will therefore refer to Hue Linh Ly and Phat Van Tran as the victims, notwithstanding that I have found the accused to be not guilty of each offence by reason of mental incompetence. The defendant entered the house of Hue Linh Ly and Phat Van Tran around 7pm on 9 May 2007 and demanded to see their son Tin Tran. He had a sawn-off shotgun, ammunition, a machete and plastic cable ties in his possession. He threatened to kill the victims whilst he was talking to Tin Tran on a mobile phone in their presence. He said words to the effect “You come in or I will kill your family”. As Mr Chan’s anger escalated, he discharged the firearm and forced Hue Linh Ly and Phat Van Tran from the kitchen into the sewing room. He locked the door and refused to let them out. The accused continued to yell and make phonecalls. He threatened to burn the whole family. At one point Ly was forced to put a plastic cable tie around Tran’s wrists before the accused handcuffed her as well. Police negotiators spoke to the defendant on a phone during this period and eventually persuaded him to leave the house around 3am the next day. He subsequently was detained under the provisions of the Mental Health Act 1993.
The proceedings in this court
The defendant 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 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 defendant was mentally incompetent to commit the offences. Both agreed that I could dispense with an inquiry into this issue. However, and notwithstanding this concession, I read and considered the psychiatric reports of Dr Maria Tomasic dated 13 October 2007, Dr Andrew Czechowicz dated 23 November 2007 and Dr Craig Raeside dated 8 August 2007.
On the basis of those reports and having heard from counsel, I found that the defendant, at the time of committing the conduct the subject of the offences charged, was suffering from a mental impairment, namely chronic paranoid schizophrenia with delusions and was acutely psychotic. I further found that, as a consequence, he was unable to reason sufficiently to know that his conduct was wrong and, therefore he did not know that his conduct was wrong. I therefore made and recorded a finding, on 25 January 2008, that the defendant was, at the time of the alleged offences, mentally incompetent to commit those offences.
Upon my upholding the defence of mental incompetence, the defendant 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 each of the offences of aggravated threatening life, as particularised in this case, the prosecution must prove beyond reasonable doubt, first, that the defendant 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 and third, that the defendant used an offensive weapon, in this case, a shotgun, in doing so.
The objective elements of the offence of aggravated serious criminal trespass in a place of residence, as particularised in this case, are first, that the defendant entered or remained in a place of residence as a trespasser; second, arguably, that he did so intending to perform acts which, in the circumstances, would constitute an offence against the person and third, that, in so doing, he used an offensive weapon, namely, a shotgun. I have included the second element I have just recited, notwithstanding that there may be an argument that, strictly, it is not an objective element. For present purposes I have assumed that it is.
The objective elements of each of the offences of false imprisonment, as particularised in this case, are that the defendant acted to totally restrain the liberty of a person against their will for a period of time and that the defendant had no lawful excuse for this conduct.
The objective elements of the offence of possessing a firearm without a licence, as particularised in this case, are that the defendant had in his possession a prescribed firearm whilst not being the holder of a licence authorising that possession.
The evidence relevant to the objective elements of the eight charges and proffered by the prosecution with the consent of the defence comprised the declarations on the court file. Counsel for the defence conceded that the objective elements of each count had been established. Nevertheless, I read and considered the admissible evidence in the declarations. On 25 January 2008 I recorded a finding that the prosecution had proved beyond reasonable doubt that the defendant engaged in conduct which establishes or satisfies the objective elements of each of the counts with which he has been charged, save for the element that the accused was not licensed to possess the firearm. However, this element, as I have indicated already, has been conceded by the defence.
For completeness, although possibly unnecessary given the terms of s269FB(4) of the Act, I add that there is no sufficient evidence to persuade me on the balance of probabilities that there was any lawful excuse for any of the defendant’s conduct.
In the result, on 25 January 2008, I found the defendant not guilty of each of the eight charges by reason of mental incompetence and made a declaration pursuant to s269F of the Act that he is to be liable to supervision under Part 8A of the 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 a number of separate occasions for submissions, most recently on 8 August 2008. In addition to the three reports referred to in paragraph [9] above, I have had regard to and heard submissions relating to, a report prepared by Dr Rohan Dhillon dated 25 February 2008, two reports prepared by Dr Bastiampillai dated 8 March 2008 and 12 May 2008, two further reports prepared by Dr Maria Tomasic dated 12 March 2008 and 24 June 2008, and two reports prepared by Anna D’Alessandro, a senior social worker at the Forensic Mental Health Service, dated 8 April 2008 and 15 May 2008 and prepared pursuant to s269R.
The medical evidence
Dr Dhillon and Dr Bastiampillai both interviewed Mr Chan on 13 February 2008 at the Cramond Clinic at the Queen Elizabeth Hospital. Dr Tomasic interviewed Mr Chan on 27 February 2008 and 18 June 2008 as an outpatient in James Nash House. Each of these doctors also had regard to the various materials as identified in their respective reports. They noted Mr Chan’s past psychiatric, medical, drug and alcohol history, his background and developmental history and described his then current psychiatric state. They recorded the fact that he has a longstanding diagnosis of chronic paranoid schizophrenia and a past history of marijuana abuse. All noted that his psychotic illness was characterised by a complex system of persecutory delusions.
Dr Dhillon noted in his report dated 25 February 2008 that Mr Chan had been stable and not acutely psychotic since receiving regular antipsychotic medication and that consequently his schizophrenia was largely in remission. Even though some of his paranoid beliefs appeared to be fixed with regard to past events, they were not at the same intensity as previously experienced. At this time, Mr Chan was receiving antipsychotic medication administered through fortnightly depot intramuscular injections in the form of Risperidone Consta and was being supervised in the community by the Port Adelaide Community Team as well as Correctional Services. Dr Dhillon was of the opinion that the then prevailing medical regime and level of supervision meant that the chance of Mr Chan becoming acutely unwell in the near future was low as was the risk of his further offending.
In his original review dated 8 March 2008, Dr Bastiampillai agreed that Mr Chan’s illness was well controlled, which suggested that Mr Chan was compliant with his medication and treatment regime generally. Subsequently, Mr Chan’s treating psychiatrist replaced Risperidone Consta with the oral medication Olanzapine following complaints of medical side effects. Dr Bastiampillai expressed some concern at this development in his supplementary report dated 12 May 2008, given Mr Chan’s poor compliance with oral medical regimes in the past.
Dr Bastiampillai reported that Mr Chan acknowledged that he had previously been paranoid and that it was likely due to mental illness. However, Mr Chan did not agree that he had a diagnosis of formalised schizophrenia as such. Further, Mr Chan was not of the view that medication was entirely necessary in the long term. Dr Bastiampillai formed the view that his insight into his condition was thus partial, at best. Consequently, Dr Bastiampillai suggested a further sustained period of consolidation on depot antipsychotic treatment before any consideration for a transition to oral medication is made. He observed that:
I believe Mr Chan should be on depot antipsychotic medication rather than oral medication. Compliance is usually better monitored and easier to establish with depot medication. My opinion in this respect is based on a history of having been poorly compliant with Olanzapine in the past. When he is not on antipsychotic medication he is at risk of a significant psychotic relapse.
Dr Bastiampillai further recommended that Mr Chan should be assigned a case manager who could monitor his mental state and compliance with medication, as well as focus on rehabilitation goals.
Turning to the question of alcohol use, Dr Bastiampillai noted that Mr Chan was not currently abusing alcohol and did not have a history of alcohol dependence or abuse. He did not suggest any specific restrictions in this respect. However, he highlighted the need for Mr Chan to be encouraged to use alcohol to a minimum as part of his general psychoeducational program. Although Mr Chan was not taking illicit drugs or abusing alcohol, Dr Bastiampillai nevertheless felt that the use of random urine drug screens would be sensible.
Dr Tomasic noted in her report dated 12 March 2008 that while Mr Chan felt moderately anxious, he was cooperative and generally felt good, reporting that his medication helped slightly and kept him calm. She noted that Mr Chan’s insight was limited and recorded this view as to prognosis,
In my opinion he has a limited prognosis given his lack of insight and ongoing determination that his delusional beliefs at the time of the offences were actual events. Without careful monitoring there is a risk that he would be noncompliant with medication.
Notwithstanding this concern regarding his lack of insight, Dr Tomasic expressed her support for Mr Chan remaining in the community.
In the report dated 24 June 2008, Dr Tomasic indicated that Mr Chan continued to have strong ongoing negative feelings and the same fixed delusional beliefs which had led him to act aggressively in the past. Dr Tomasic strongly agreed with the view that Mr Chan should be on depot medication rather than oral medication, given Mr Chan’s limited insight into his illness and poor record of compliance with taking oral medication in the past. She noted that depot medication is the only way to ensure compliance and points out that the risks associated with any deterioration in Mr Chan’s mental state are high given his past acts of violence.
With respect to the matter of case management, Dr Tomasic expressed a view that Mr Chan needs intensive community monitoring, psychoeducation and support, as well as assistance in rehabilitation to help him gain appropriate employment. Dr Tomasic supported the recommendation of Dr Bastiampillai that Mr Chan should be assigned a case manager who could not only support Mr Chan but also provide information to his parents regarding the illness, compliance and risks.
Finally, Dr Tomasic supported limiting the consumption of alcohol to a safe minimal level even though Mr Chan does not have a history of alcohol abuse. In light of Mr Chan’s history of drug use, she also agreed with the implementation of urine drug screening as part of the licence conditions.
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 victims, Ms Hue Linh Ly and Mr Phat Van Tran, said that while they support the defendant and his family, they nevertheless continue to feel concerned about their own personal safety. Ms Ly expressed her sympathy for the defendant’s parents and stated ‘we don’t wish hardship to them’ and hoped their son recovered soon. She also stated that she continued to be fearful and felt that the defendant should be restrained from approaching or contacting the family in the future. Ms D’Alessandro also had the opportunity to interview the son of the victims, Mr Tin Tran, who had been a high school friend of the defendant but had not seen him regularly since leaving university. Mr Tran hoped that Mr Chan would continue to seek help and counselling.
Mr Chan’s next of kin include his mother and father whom Ms D’Alessandro was able to interview through an interpreter. Mrs Lang Quan Chan and Mr Toha Tran Chan indicated that they had an understanding of the notion of licence conditions and the importance of Mr Chan complying with his treatment as required. They were supportive of their son and felt that his progress had been positive under ongoing psychiatric care. Ms D’Alessandro had the opportunity to read and discuss the proposed licence conditions provided by the court with Mr and Mrs Chan and she was satisfied that they understood both the information presented to them and the significance of their role in this matter. They confirmed their ongoing support for their son and were willing to take on the responsibilities that the licence conditions would place on them. Mr and Mrs Chan indicated that they were prepared to report any changes in mental state or functioning, should the defendant demonstrate any signs of deterioration or behaviours of concern.
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.
Counsel for the Director of Public Prosecutions submitted that release on licence was not appropriate given concerns about Mr Chan’s lack of insight into his condition and offending and poor compliance with taking oral medication in the past, unless the administration of the appropriate medication took place via injections. I will come back to this issue. On the material before me, it clearly would not be appropriate to release Mr Chan 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 Chan on licence subject to conditions.
Limiting term

Under s269O I must set a limiting term with respect to the licence pursuant to which Mr Chan will be released, which term is to be equivalent to the period of imprisonment that would, in my opinion, have been appropriate if Mr Chan 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 Chan’s mental impairment. The maximum penalty with respect to each of the counts of aggravated threatening life is 12 years imprisonment. With respect to the counts of false imprisonment, the penalty is at large under the common law. For aggravated serious criminal trespass in a place of residence the maximum penalty is life imprisonment and for possessing a firearm without a licence the maximum penalty is 10 years imprisonment or a fine of $50,000. 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 Chan’s personal circumstances. He is a 30 year old single man with no dependents, who resides with his parents at their home in Pennington on home detention bail. Mr Chan completed a commerce degree at the University of Adelaide in 1999 but has not gained employment since that time and has been supported by a Disability Support Allowance since early 2007. He has indicated that near the completion of his degree he began to suffer from depression and has been unable to work. As I have indicated, Mr Chan does have the support of his parents. He does not have a history of prior offending. Mr Chan’s personal circumstances and history are more fully set out in the various psychiatric reports referred to above and to which I have had regard.
There remain ongoing concerns about Mr Chan’s mental condition even with medication, given his capacity for delusions and lack of insight into his illness and actions. He held strong ongoing negative feelings towards the victims and expressed the view that he wanted them to go to gaol.
Viewed objectively, the offending was extremely serious, particularly given the use of a shotgun, the words said and the conduct accompanying those words. Mr Chan’s conduct caused great fear and anxiety in Ms Hue Linh Ly and Mr Phat Van Tran over a period of some 8 hours. In setting the one limiting term, I have had regard to the overall course of conduct engaged in by Mr Chan which formed the basis of the 8 offences with which he was charged.
I start with a single limiting term with respect to all eight charged offences of 8 years. I note that Mr Chan, through his counsel, conceded the objective elements of the charged offences. However, in accordance with the decision of the Court of Criminal Appeal in R v Draoui [2008] SASC 188, I allow no reduction on account of this concession. However, Mr Chan has spent 5 months and 20 days in custody and 9 months and 24 days on home detention bail with strict conditions with respect to these offences. I will allow 9 months for both these considerations. I therefore reduce the starting limiting term to 7 years and 3 months.
As I have indicated, I consider it to be appropriate to release Mr Chan on licence on certain conditions. The only condition that has caused me particular concern is whether or not to require that he be treated with depot antipsychotic medication (injection) rather than oral medication. Counsel for Mr Chan submitted that it was unnecessary given Mr Chan’s apparent compliance with an oral regime over the last 6 months or so and that, in the circumstances, the ordering of such a condition would be an unwarranted intrusion into his medical treatment as determined by his treating doctors. Counsel for the Director of Public Prosecutions opposed release on licence unless such a condition were to be imposed. Having considered the views of Drs Bastiampillai and Tomasic and after undertaking the balancing exercise as required by s269S of the Act (see paragraph [33] above), I am of the opinion that considerations of community safety do require that the following condition be imposed:
The defendant is to comply with prescribed medication as directed by the Director (of the Forensic Mental Health Service) or the Director’s nominee. However, until further order, the defendant is to be prescribed depot antipsychotic medication, that is, antipsychotic medication to be administered by injection.
The order for release will be subject to the licence conditions as set out in the Order for Release on Licence attached to these reasons. The Order for Release will take effect and the limiting term of 7 years and 3 months will commence today.
IN THE DISTRICT COURT OF SOUTH AUSTRALIA
CRIMINAL JURISDICTION
DCCRM-1004 of 2007
BETWEEN
THE QUEEN
and
JUSTIN CHAN
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, Justin Chan, on licence on the conditions set out hereunder.
Pursuant to s269O(2) of the Act I order that a limiting term of 7 years and 3 months be fixed to commence from today.
CONDITIONS OF LICENCE
That pursuant to s269O(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 or her (“the nominee”).
2.The defendant is to obey all directions given to him by the Director or the nominee with respect to medical and psychiatric treatment and care.
3.The defendant is to see his treating psychiatrist on a monthly basis unless otherwise directed by the Director or the nominee.
4.The defendant is to be psychiatrically reviewed on a regular basis, as required by the Director or the nominee.
5.The defendant is to be under the care of the Port Adelaide Community Mental Health Team or such other Community Mental Health Team as may be directed by the Director or the nominee from time to time.
6.The defendant is to comply with prescribed medication as directed by the Director or the nominee. However, until further order, the defendant is to be prescribed depot antipsychotic medication, that is, antipsychotic medication to be administered by injection.
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 or otherwise available over the counter from a registered pharmacist and in either case only at prescribed or recommended dosages.
8.The defendant is to restrict his consumption of alcohol to such level as is recommended by his treating psychiatrist.
9.The defendant is to be under the supervision of a Community Corrections Officer and is to obey all lawful directions given to him by the officer assigned to supervise him.
10.The defendant is to report within two (2) working days of his release on licence to the office of the Department for Correctional Services at Port Adelaide.
11.The defendant is to submit to blood and/or urine testing as and when directed by either the Director or the nominee or the defendant’s supervising Community Corrections Officer, to monitor compliance with the conditions of this licence.
12.The defendant is not to have in his possession any firearm or ammunition.
13.The defendant is to reside with his parents at 54 Ward Street, Pennington, SA, or such other premises as his Community Corrections Officer shall approve after consultation, to the extent, if any, thought necessary by that officer, with the defendant’s treating psychiatrist.
14.In the event that the defendant changes his residential accommodation, he shall notify the Director or the nominee, in writing within 24 hours.
15.The defendant is not to leave the state of South Australia for any reason without the permission of the Chief Executive Officer (or his or her nominee) of the administrative unit of which the defendant’s Community Corrections Officer is an officer or an employee.
16.The defendant is not to contact directly or indirectly, communicate with, harass, annoy, injure, assault, or remain in the immediate presence of Hue Linh Ly or Phat Van Tran or any members of their family.
17.The defendant and the Director of Public Prosecution both have liberty to apply to this Court, on short but reasonable notice to the other, to seek a variation or a relaxation of the application of any of the conditions of this licence.
Given under my hand at Adelaide
this 24^th day of September 2008.
…………………………
  Judge
I, JUSTIN CHAN, have had the
conditions of my Release on Licence explained
to me and I fully understand these conditions.
I further acknowledge a copy of the order for
Release on Licence has been handed to me.
………………………….
Defendant
………………………..
Witness
Dated this 24^th day of September 2008.