R v Chattaway - [2016] SASC 195

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v CHATTAWAY
Criminal Trial by Judge Alone
[2016] SASC 195
Judgment of The Honourable Justice Bampton
16 December 2016
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
The defendant was charged with the attempted murder of his parents – he pleaded not guilty on the grounds of mental incompetence – investigation into the defendant’s mental competence dealt with by way of a Judge sitting alone – Court determined to proceed first with the question of the defendant’s mental competence to commit each of the offences in accordance with s 269FA of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) – Court accepted psychiatric evidence – finding recorded that defendant mentally incompetent to commit each of the offences of attempted murder pursuant to s 269FA(5)(b) – finding recorded that the objective elements of each of the offences of attempted murder established beyond reasonable doubt pursuant to s 269FB(2) – defendant found not guilty of each of the offences of attempted murder pursuant to s 269FB(3) and declared liable to supervision under Division 4 of Part 8A of the CLCA – supervision order committing the defendant to detention made pursuant to s 269O(1)(b)(i) – limiting term fixed pursuant to s 269O(2).
HELD:
1. The defendant was suffering a psychotic episode as a result of an acute psychotic relapse of schizophrenia at the time of the conduct.
2. Finding recorded pursuant to s 269FA(5)(b) that the defendant was mentally incompetent to commit each of the offences of attempted murder.
3. Finding recorded pursuant to s 269FB(2) that the objective elements of each of the offences established beyond reasonable doubt.
4. Pursuant to s 269FB(3) defendant found not guilty of each of the offences of attempted murder and declared liable to supervision under Division 4 of Part 8A of the CLCA.
5. The defendant committed to detention pursuant to s 269O(1)(b)(i).
6. Limiting term of 10 years fixed pursuant to s 269O(2).
Criminal Law Consolidation Act 1935 (SA) Part 8A; Criminal Law (Sentencing) Act 1988 (SA) s 10, referred to.
R v Draoui (2008) 101 SASR 267; R v T (1999) 75 SASR 235; R v Bober (No 3) (2010) 107 SASR 165, considered.

R v CHATTAWAY
[2016] SASC 195
Criminal

BAMPTON J: Nicholas Chattaway was charged with the attempted murder of his parents, Catherine and Robert Chattaway, at Torrens Park on 29 October 2014. Mr Chattaway pleaded not guilty raising the defence of mental incompetence.
Mr Chattaway is presumed to be mentally competent to commit an offence unless he is found on an investigation under Part 8A of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) to have been mentally incompetent to commit the offences.
Part 8A investigation
Mr Chattaway elected to have the investigation under Part 8A of the CLCA dealt with by a Judge sitting alone pursuant to s 269B(1) of the CLCA.
On 27 November 2015, the prosecution filed written submissions detailing the psychiatric evidence provided to the Court, a summary of Mr Chattaway’s recollection of the alleged offending, the evidence of what occurred on 29 October 2014, and details of the injuries sustained and treatment provided to Mr and Mrs Chattaway. Counsel appearing for Mr Chattaway on 7 December 2015 stated that, whilst he did not wish to adopt every sentence of the prosecution summary, it was agreed the alleged offending was fairly summarised.
On 7 December 2015, I commenced an investigation into Mr Chattaway’s mental competence to commit the offences pursuant to s 269B(1)(a) of the CLCA. Following that investigation, I recorded a finding that Mr Chattaway was mentally incompetent to commit each offence of attempted murder pursuant to s 269FA(5) of the CLCA.
I then followed the procedure prescribed by s 269FB(1) and (2) of the CLCA and recorded a finding that the objective elements of the offences had been established beyond reasonable doubt.
Having found that the objective elements of the offences had been established, pursuant to s 269FB(3) of the CLCA I found Mr Chattaway not guilty of each offence of attempted murder and declared him liable to supervision under Division 4 of Part 8A of the CLCA.
In these reasons I set out in more detail how I found Mr Chattaway not guilty. I then proceed to make a supervision order committing Mr Chattaway to detention and fix a limiting term of 10 years.
Finding of mental incompetence
On 29 October 2014, Mr Chattaway, then aged 21, stabbed both his parents multiple times in a frenzied attack using a kitchen knife and a barbeque fork.
I accepted the opinions of the forensic psychiatrists, Dr Nambiar and Dr Begg, who each examined Mr Chattaway. Dr Nambiar’s report was obtained by Mr Chattaway’s solicitors and Dr Begg’s report was provided to the Court pursuant to s 269WA of the CLCA. Dr Nambiar and Dr Begg are both of the opinion that Mr Chattaway suffers schizophrenia and, at the time of the conduct alleged to give rise to the offences (“the conduct”), was experiencing an acute psychotic relapse of schizophrenia following a reduction in his medication. The psychotic episode was characterised by delusions that his parents were replaced by aliens. Mr Chattaway reported hearing voices of 10 small men on the roof telling him he needed to kill his parents in order to avoid being tortured or murdered by them.
Dr Nambiar and Dr Begg are both of the opinion that Mr Chattaway suffered a mental impairment at the time of the conduct such that he was unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions.
On the basis of Dr Nambiar and Dr Begg’s opinions, the prosecution conceded it was open to the Court to find that at the time of the conduct Mr Chattaway was suffering from a mental impairment such that he was unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions.
I found that Mr Chattaway was suffering a psychotic episode as a result of schizophrenia.
Having regard to the opinions of the psychiatrists and noting the prosecution and the defence agreed, pursuant to s 269FA(5)(a) of the CLCA, I dispensed with an investigation into Mr Chattaway’s mental competence to commit the offences, and, pursuant to s 269FA(5)(b) of the CLCA, I recorded a finding that Mr Chattaway was mentally incompetent to commit each offence of attempted murder.
The objective elements of the offence of attempted murder
Having made the finding that Mr Chattaway was mentally incompetent to commit the offences, I inquired into whether the objective elements of the offences had been established pursuant to s 269FB of the CLCA.
Pursuant to s 269FB(1), I had regard to the evidence and representations put by the prosecution and the defence relevant to the question of whether I should find that the objective elements of each offence of attempted murder had been established.
Mr Chattaway, through his counsel, conceded that there was sufficient evidence to make a finding that the objective elements of each offence of attempted murder had been established beyond reasonable doubt.
I was satisfied beyond reasonable doubt pursuant to s 269FB(2) of the CLCA that the objective elements of each offence of attempted murder had been established.
I therefore recorded a finding pursuant to s 269FB(2) of the CLCA that the objective elements of the offences had been established beyond reasonable doubt.
Finding of not guilty
Having found the objective elements of each offence of attempted murder established and Mr Chattaway mentally incompetent to commit each offence of attempted murder, pursuant to s 269FB(3), I found Mr Chattaway not guilty of each offence of attempted murder but declared him liable to supervision under Division 4 of Part 8A of the CLCA.
Supervision – Division 4 of Part 8A of the CLCA
Report on mental condition of Mr Chattaway
Upon making the declaration that Mr Chattaway was liable to supervision, the Minister for Mental Health provided the Court with a report from the psychiatrist Dr Lim dated 18 February 2015 regarding Mr Chattaway’s diagnosis, prognosis and a suggested treatment plan pursuant to s 269Q of the CLCA.
Dr Lim was of the opinion at the time of her report that unless Mr Chattaway can demonstrate consistent and meaningful engagement with mental health services, discharge from hospital was likely to be unsafe.
I would have preferred, for Mr Chattaway’s sake, to have made a supervision order soon after the receipt of Dr Lim’s report. However, as it transpired, that was not to be.
Reports and statements to be provided to the Court
Section 269R requires that, for the purpose of assisting the Court to determine what orders should be made with respect to a person who has been declared liable to supervision, the prosecution must provide the Court with a report setting out, as far as reasonably ascertainable, the views of the next of kin and the victims of the defendant’s conduct.
Mr Chattaway’s parents chose not to engage with the prosecution for the purpose of providing a report pursuant to s 269R of the CLCA. Rather, they instructed counsel to appear on their behalf and assist them in preparing a statement for the Court. The Court received a statement from each of Mr Chattaway’s parents during a hearing on 29 November 2016. Whilst the statements are unconventional, I received them as victim impact statements pursuant to s 269R(3) of the CLCA. They are not s 269T(2)(d)(ii) statements as submitted by Mr and Mrs Chattaway’s counsel. Section 269T(2) of the CLCA prescribes the matters that the Court must have regard to before releasing a defendant or reducing supervision to which a defendant is subject.
Mr and Mrs Chattaway express their disappointment regarding the treatment provided to their son whilst he was in the community prior to 29 October 2014. It was also submitted that their son has pleaded to the wrong charges and that the injuries they sustained were not life threatening.
I emphasise that Mr Chattaway has not pleaded guilty to any offence. He pleaded not guilty to each offence of attempted murder and I have found him not guilty by reason of mental impairment.
There can be no doubt having regard to the statements of the medical practitioners who attended Mr and Mrs Chattaway that the injuries that they sustained would have been, without the medical assistance they received, life threatening.
Mr and Mrs Chattaway are very concerned that their son is not receiving the care he needs and that they would facilitate if he were in the community. In particular, they refer to Mr Chattaway requiring orthopaedic treatment to his hands and dental treatment. They consider that they would be able to provide a more rigorous treatment regime if their son were not detained. To that end that they have engaged the psychiatrist Dr Kutlaca to provide their son with psychiatric treatment
Whilst Mr Chattaway is liable to supervision and subject to the supervision order I am about to make, final decisions regarding his care and the treatment he receives must rest with those who are charged with his care whilst he is detained and subject to the supervision order.
I have been provided with four letters of reference from friends of the Chattaway family. Each referee refers to Mr Chattaway being a positive, happy young man. They each describe the profound effect that an assault in 2010, where Mr Chattaway was attacked with bottles, has had on him and his family. One referee says it is apparent to him that the assault significantly affected Mr Chattaway physically and mentally, causing him to become seriously unwell. All of the referees speak of the love, devotion and support that Mr and Mrs Chattaway have for their son.
Mr Chattaway’s parents are loving, supportive parents who want to ensure their youngest son receives the care and treatment he needs. I cannot adequately describe or do justice to what they as parents have endured before and after 29 October 2014 and what they as a family continue to live with as they try to navigate caring for their son while he is in detention.
The updated s 269Q report
As it has been almost 10 months since Dr Lim provided her report, at Mr Chattaway’s solicitor’s request I ordered an updated report pursuant to s 269Q of the CLCA.
The Court received an updated report from the psychiatrist Dr Nguyen dated 25 November 2016. I paraphrase Dr Nguyen’s report as follows.
Mr Chattaway was given a provisional diagnosis of post‑traumatic stress disorder and anxiety in 2012 following the assault in 2010. Mr Chattaway sustained a head injury and may have lost consciousness following the assault. Mr Chattaway’s treating psychiatrist at the time reported that he subsequently suffered an emergence of psychotic symptoms. He was commenced on an antipsychotic, which he stopped taking due to concerns regarding over-sedation. In October 2012, Mr Chattaway was admitted to the Margaret Tobin Centre presenting with delusions regarding himself and his parents. It is reported that he was prescribed Paliperidone which led to a reduction of his delusional beliefs.
Mr Chattaway was admitted again to the Margaret Tobin Centre between 13 July 2013 and 2 August 2013. He was brought in by police after becoming increasingly aggressive towards his family and smashing a television. Mr Chattaway was again suffering from persecutory delusions and his relapse was considered to be due to his reluctance to take the prescribed 12mg of Paliperidone daily. The prescription was reduced to 9mg daily on his discharge.
Mr Chattaway was again admitted to the Margaret Tobin Centre between 5 September 2013 and 11 October 2013. He was admitted from the City Watchhouse after pushing over a cyclist. During that admission, it was recommended that Mr Chattaway be subject to a community treatment order depot injection. However, Mr Chattaway and his family were strongly opposed to that recommendation. At his family’s suggestion, he was discharged with an increased prescription of 12mg of Paliperidone daily. He was followed up by the Carramar Community Mental Health Team upon discharge.
Mr Chattaway complained that 12 mg Paliperidone was over-sedating and negotiated a reduction in the dose over several months. His medication was subsequently changed to Olanzapine with good symptom control, but he continued to complain of over-sedation.
In the weeks leading up to the conduct, Mr Chattaway became progressively more withdrawn, hostile, angry and intimidating in his behaviour. It is reported that the community mental health team made several unsuccessful attempts to conduct further assessments in the days leading up to the conduct.
Dr Nguyen’s report then details Mr Chattaway’s progress whilst he has been at James Nash House. Dr Nguyen reports that he was initially treated with 30mg of oral Aripiprazole daily. He experienced lapses into psychotic symptoms, particularly around his court hearing dates. His engagement varied and eventually he was reluctant to attend therapeutic groups. It was noted that his attention span was limited, his memory and degree of organisation was impaired. His treating team considered this could have been related to ongoing psychotic symptoms. The treating team also queried the possibility that he had a significant acquired brain injury. It appears that Mr Chattaway has declined, despite repeated encouragement, to undergo detailed neuropsychological assessment to help diagnose the aetiology of the observations made by his treating team.
It is reported that Mr Chattaway’s mental state deteriorated in June 2016, characterised by decreased engagement, irritability, swearing at staff members and observations that he was talking to the television. It was considered that he was experiencing an early relapse of psychosis with an escalating risk of harm to others which led to a step up transfer to Birdwood Ward. Mr Chattaway denied being unwell and his treating team were concerned that he either lacked insight or was trying to mask his symptoms. Following another incident, Mr Chattaway was stepped up to Aldgate Ward for further management. A decision was made to treat Mr Chattaway with depot Aripiprazole. As this led to suboptimal improvement he was also prescribed oral Olanzapine. Thereafter, Mr Chattaway’s mental state gradually improved as did his engagement with the treating team, which allowed a step down to Birdwood Ward in mid-September this year.
Dr Nguyen says that he has impressed upon Mr Chattaway the need to gain an up to date neuropsychological assessment in order to inform his rehabilitation. Mr Chattaway maintains that he will not participate in such an assessment until he has had his hands operated on. Mr Chattaway says that as he is right‑handed his finger injuries affect his grip to the extent that he could not participate in the neuropsychological testing. Dr Nguyen notes that Mr Chattaway has not demonstrated any significant impairment when required to do writing tasks during occupational therapy groups.
Dr Nguyen says that Mr Chattaway has a well-established diagnosis of schizophrenia but has partial insight into his mental health. Dr Nguyen comments that there is uncertainty regarding whether Mr Chattaway has a brain injury as a result of the head injuries he sustained.
Dr Nguyen concludes that he would be guarded about Mr Chattaway’s prognosis as his schizophrenic illness demonstrates a degree of treatment resistance as evidenced by the need to treat him with dual antipsychotic treatments. He says that Mr Chattaway tends to overestimate his adaptive capacity whilst minimising the need to undergo recommended assessments and rehabilitation, he finds it challenging to form therapeutic relationships and he has a history of limited disclosure and masking symptoms. Dr Nguyen says that, in his opinion, if there were, at this stage, less restrictions for Mr Chattaway to engage in therapy he would most likely progressively disengage and make poor treatment choices, as has been the pattern in the past. Dr Nguyen considers that his progress would be more favourable if he were able to develop greater insight and demonstrate the capacity to form stronger therapeutic relationships with his treating mental health workers. He would also benefit from more intensive psychosocial rehabilitation to enhance his independent living skills and participation in therapies targeting his criminogenic risk factors and pitched at his cognitive level.
The supervision order
In deciding the terms of Mr Chattaway’s supervision, I have applied the principle set out in s269S of the CLCA that the restrictions on his freedom of personal autonomy should be kept to a minimum consistent with the safety of the community.
Having applied this principle and taking into account the s 269Q reports and all that has been submitted, it is clear that in order to secure Mr Chattaway’s current treatment needs and rehabilitation he must be detained.
I make a supervision order pursuant to s 269O(1)(b)(i) of the CLCA committing Mr Chattaway to detention.
Limiting term
Pursuant to s 269O(2), I must fix a limiting term equivalent to the period of the term of imprisonment that would have been imposed if Mr Chattaway had been convicted of each offence of attempted murder.
I emphasise that in fixing a limiting term I am not imposing a penalty. The purpose of a supervision order is not to penalise Mr Chattaway, but to protect the public and to ensure that Mr Chattaway is supervised and receives the treatment that is available and appropriate to his needs.[1] It is because a supervision order serves this purpose that a submission that a merciful limiting term be fixed is irrelevant. A submission that a merciful sentence be imposed has its place in proceedings pursuant to the criminal sentencing regime.
[1] R v Draoui (2008) 101 SASR 267 at 281.

It will undoubtedly be difficult for Mr Chattaway and his parents to reconcile themselves to the limiting term I fix. It is important they bear in mind the flexible regime for treatment provided for under Division 4 of Part 8A of the CLCA.[2] Section 269P of the CLCA permits the Court during the limiting term, on the application of the prosecution, a defendant, the Parole Board, the Public Advocate or another person with a proper interest, to vary or revoke a supervision order.
[2] R v T (1999) 75 SASR 235 at 242 (Doyle CJ).
In this regard, I point out to Mr Chattaway and his parents that when Mr Chattaway makes an application pursuant to s 269P of the CLCA to vary his supervision order he must be able to demonstrate he has engaged with his mental health workers and complied with his recommended treatment and rehabilitation regime. It is also important that Mr Chattaway undergo neuropsychological assessment as soon as possible as the results of such assessment may aid in tailoring a rehabilitation program specific to his needs.
In arriving at a limiting term, I have had regard to the sentencing considerations set out in s 10 of the Criminal Law (Sentencing) Act 1988 (SA) except those impacted by Mr Chattaway’s mental impairment, for example contrition and remorse.[3] I also bear in mind that I must not take into account Mr Chattaway’s mental impairment.
[3] R v Bober (No 3) (2010) 107 SASR 165 (Gray J).
The fundamental sentencing law principle that a sentence may not be extended beyond what is proportionate to the crime in order to protect the community applies equally to the setting of a limiting term. The limiting term I fix must remain proportionate to the offences charged.
Bearing in mind the time Mr Chattaway has spent in detention since 29 October 2014, I fix a limiting term of 10 years.