R v Chesher - [2021] SADC 42

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CHESHER
[2021] SADC 42
Reasons for the Order of his Honour Judge Soulio
16 April 2021
CRIMINAL LAW
Defendant charged with aggravated causing harm with intent to cause harm - investigation into mental competence to commit offences - decided that at the time of the conduct alleged to give rise to the offence the defendant was suffering a mental impairment - decided that the objective elements were established beyond reasonable doubt - defendant declared to be mentally incompetent to commit the offence and declared liable to supervision - limiting term of two years, two months and seven days - supervision order made releasing the defendant on licence on conditions decided by the Court and specified in the licence.
Criminal Law Consolidation Act 1935 (SA) Part 8A, referred to.
R v Draoui (2008) 101 SASR 267, considered.

R v CHESHER
[2021] SADC 42

The defendant Jiah Thomas Chesher was charged with aggravated causing harm with intent to cause harm contrary to s 24(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) committed on 12 August 2019.
Circumstances of the Offending
The background to the offending is that on 11 August 2019 at 10.30 pm police officers were called to a house at Wanilla, South Australia, where the defendant lived with his parents, as a consequence of concerns his parents had for his wellbeing. An ambulance was also despatched to that address. The defendant was taken by ambulance to the Port Lincoln Hospital for review by the Mental Health Team. He arrived at the hospital at about 11.20 pm.
The victim of the offending, Ms Treagus, is a registered nurse, and was working at the Port Lincoln Hospital. She commenced a day shift on 12 August 2019. She was rostered to work in Eyre Ward, where the defendant had been admitted.
At about 8.30 pm Ms Treagus entered the defendant’s room for the purpose of providing him with a prescribed medication. He refused the medication. Ms Treagus reported that to the doctor in charge, Dr Persheeva. Ms Treagus returned with Dr Persheeva to the defendant’s room, where the doctor spoke to the defendant. Dr Persheeva told the defendant that it was proposed to conduct a review of his mental health. The defendant expressed reluctance, and Dr Persheeva informed him that if he did not submit to such review he would need to be detained under the Mental Health Act 2009.
Dr Persheeva then left the room. Ms Treagus was still in the room. She went to the door and turned to leave. The defendant asked her why he had to remain in the room, and then punched Ms Treagus on at least three occasions. She called for help. The defendant then struck her several more times, causing her to fall to the ground, whereupon he continued to punch her.
Another doctor, and another nurse, responded to her call for help and the defendant was removed.
Ms Treagus sustained abrasions to the left eye, bruises to the left arm, pain in the left shoulder and neck resulting in difficulties in moving her head and left arm, and bruising and swelling to the back of her head and left ear. She continued to suffer neck pain, pain behind the left eye, and pain at the back of the head, and has been diagnosed as suffering a post-traumatic stress disorder.
The Hearing
On 24 April 2020 the defendant, through his counsel, entered a plea of not guilty.
Pursuant to s 269B CLCA, an investigation into a defendant’s mental competence to commit an offence, or into whether the elements of the offences have been established, is to be conducted before a jury unless the defendant has elected to have the matter dealt with by a Judge sitting alone. Such election is made pursuant to s 269B(1) CLCA. The defendant’s counsel made such election.
Mental Incompetence
The matter was referred for further investigation. After a further hearing, the question of the defendant’s mental competence at the time of the offending came before another judge of this Court for determination on 11 September 2020. The process for investigation by the court of the defendant’s mental incompetence is governed by Part 8A CLCA. The defendant bears the onus of displacing the presumption of mental competence, pursuant to s 269D CLCA.
Dr Furst, an experienced forensic psychiatrist, in his report of 25 January 2020, having considered written material and interviewed the defendant, expressed the opinion that the defendant had presented in the context of more than 12 months of functional decline associated with social withdrawal, increasing irritability and odd behaviour, including reported delusions of reference, thinking the TV was talking about him or giving him messages, paranoid delusions, and being internally preoccupied with a previous assessment in 2018 suggesting that he had signs of a possible emerging psychosis. At the time of his offence he was noticed to have disorganisation in thinking, evident in his speech. At the Royal Adelaide Hospital he was noted to have a history and presentation consistent with emerging schizophrenia, and was treated with anti-psychotic medication. The main symptoms had resolved by the time he was transferred to the Rural and Remote ward at Glenside Campus. At the time of Dr Furst’s assessment the defendant had no insight into his previous delusions, but attempted to rationalise his beliefs and demonstrated unequivocal negative symptoms of schizophrenia, in that his self-care was poor and he had a very restricted affect. Dr Furst expressed the opinion that the history and presentation was clearly consistent with schizophrenia. He concluded that on the basis of the material he had considered, that whilst the defendant was aware of the nature and quality of his conduct in assaulting the nurse in the course of her duty, and he had some, albeit reduced, measure of control over his behaviour, he could not reason about whether the conduct, as perceived by reasonable people, was wrong as a result of his schizophrenia. On that basis Dr Furst believed there were grounds for a mental incompetence defence.
Dr Ferris in her report of 2 August 2020, based on her assessment and the extensive collateral information available to her, concurred with the diagnosis of a first episode psychosis, most likely a chronic paranoid schizophrenia. She noted that the defendant had most likely presented with prodromal symptoms over the preceding 12 months, and by his own account was experiencing intrusive, overwhelming and derogatory auditory hallucinations, significant paranoid and persecutory beliefs particularly in relation to his parents, bizarre behaviour, poor sleep due to persecutory ideas and significant negative symptoms, including withdrawal from social interactions and minimal conversation in the months prior to the offence. Dr Ferris expressed the opinion that the defendant was continuing to experience psychotic symptoms at the time of her review. She expressed the opinion that the defendant was suffering from an acute psychotic episode at the time of the offending, which had gone on to lead to a diagnosis of a chronic paranoid schizophrenia. She considered that the defendant’s psychotic symptoms substantially affected his judgement and that he was markedly impaired with such symptoms, and was unable to appreciate the consequences of his actions. She concluded that the defendant was suffering from a mental impairment that would deem him mentally incompetent pursuant to Part 8A CLCA. She reiterated that view in her addendum report of 17 August 2020.
Counsel for the DPP conceded that the defendant was mentally incompetent to commit the offence. The prosecution took the view that the judge considering the matter should dispense with any further investigation into the defendant’s mental competence. Having considered the reports of Dr Furst and Dr Ferris, Judge Chivell found that the defendant was mentally incompetent to commit the offence charged.
Counsel for the defendant conceded the objective elements of the offence. Judge Chivell found the objective elements proved beyond reasonable doubt.
He proceeded to find that the defendant was not guilty of the offence, pursuant to s 269GB(3) CLCA, and declare the defendant liable to supervision under Part 8A CLCA.
Division 4 Disposition
Where an accused is declared liable to supervision under Part 8A CLCA, the Court is required to determine the disposition of that person under s 269O CLCA, and may release the defendant unconditionally, or make a supervision order either committing the defendant to detention or releasing the defendant on licence conditions.
If the court is satisfied it is appropriate to declare the defendant liable to supervision, the court must consider reports pursuant to s 269T(2), in addition to a report on the defendant’s mental condition, diagnosis, prognosis and suggested treatment plan submitted to the court by the Minister pursuant to s 269Q CLCA, and a report on the attitude on the defendant’s next of kin, and the victim of the defendant’s conduct, which is to be provided pursuant to s 269R(1) CLCA.
Reports were provided pursuant to s 269Q(1), s 269T(2) and s 269R CLCA, following which further submissions were made by counsel for the DPP and counsel for the defendant on 7 December 2020 and 23 March 2021
Dr Ferris provided a s 269Q report of 14 March 2021. She noted by way of history that at the time of her interview of the defendant on 9 February 2021, the defendant was a 19 year old man living in Adelaide with his grandmother, father, and brother where he had resided for the las two years. He had recently commenced work as a concreter.
By way of background, the defendant had been diagnosed with depression in his teens, and prescribed anti-depressant medication which he did not persist with for very long. He was subsequently reviewed by a psychologist and psychiatrist. He had been formally diagnosed with depression and anxiety in his teens after behavioural changes including ceasing to attend school, ceasing to play sports, and withdrawing socially. In August 2018 he experienced his first onset of psychotic symptoms, when he thought that the television was telling him that this mother was evil. He was talking to himself and was behaviourally disturbed. He was assessed via teleconference in November 2018, and a low dose anti-psychotic medication was prescribed, on the basis that he appeared to be presenting with prodromal symptoms of schizophrenia.
The admission to the Port Lincoln Hospital in mid-August 2019 followed a four week history of reduced sleep, delusional beliefs, at times catatonic behaviour, and behavioural disturbance. Assessment at the hospital concluded that the defendant was floridly psychotic and he was placed on an interim treatment order after initially being managed voluntarily. It was in that context that the offence to which I have referred was committed. The defendant was thereafter subjected to chemical and mechanical restraining and transferred to the Royal Adelaide Hospital where it was noted that he was dishevelled, hypervigilant, and displaying thought disorder. He required intensive care management in the Royal Adelaide Hospital and was diagnosed with a first episode psychosis, most likely paranoid schizophrenia. He was then transferred to Glenside for a two week admission, and settled significantly with anti-psychotic medication whereupon he was discharged to the Eastern Community Mental Health Team for ongoing prescription medication, and then in late 2019 was transferred from the Eastern Community Mental Health Team for follow up by Headspace Youth Early Psychosis Program for joint management with the defendant’s general practitioner.
The defendant has a limited history of drug use including having used cannabis between the ages of 14 to 16, but then ceasing at age 16. He denied any other illicit drug use. Upon assessment in February this year Dr Ferris noted that the defendant continued to participate in boxing training which he had been undertaking prior to the commission of the offence. The defendant denied any current psychotic symptoms, and in particular denied any paranoia, ideas of reference, auditory hallucinations or delusional beliefs. He said he was compliant with medication which he concluded were assisting with his symptoms. He had managed to reconnect with some friends. He was in the process of attempting to complete year 12 in communication studies. He had been unable to finish that course and had taken up work which meant that it was unlikely that he would return to such studies.
Dr Ferris said that the defendant presented as calm, pleasant and polite. He continued to present with significant negative symptoms of schizophrenia, including blunted affect, minimal reactivity and spontaneity of speech. He spoke in a slow monotonal manner, with a paucity of history. There were no acute positive psychotic symptoms, irritability or mood disturbance.
Dr Ferris maintained her original diagnosis of first episode psychosis, namely paranoid schizophrenia. She considered that there may be minimal improvement in the negative symptoms of schizophrenia. She considered that the prognosis would be assisted by close follow up by mental health services, close family support, rehabilitation and education. She also considered that it was important that the defendant continue to abstain from illicit substances.
As to the treatment plan, Dr Ferris considered that having regard to the defendant’s presentation at review, and collateral information from mental health services, that the defendant was continuing to engage and present in a stable mental state, and it was therefore her opinion that he could continue to be managed in the community under licence conditions. Dr Ferris said the defendant will need to continue to be closely monitored by mental health services, most likely in the long term, and she recommended ongoing regular assertive follow up by Headspace where the defendant is currently being seen by a psychiatrist every four to six weeks, where he has access to case managers as required. She considered it important that the defendant continue to be monitored in relation to compliance with medication, given that they are currently provided in oral form. She considered that the defendant was likely to remain compliant provided he was monitored by family and mental health services.
Dr Ferris considered that supervision by a community corrections officer would be of assistance, and such supervision should include close monitoring and regular urine drug tests. She considered that psycho-social rehabilitation was extremely important, and was supportive of vocational options, including his current employment. She considered that his stress levels would need to be monitored. Social interaction and contact with friends and family was also regarded as very important, specifically targeting some of the defendant’s negative symptoms of social isolation and blunted emotional reactivity. She recommended that the defendant’s family continue to receive support from mental health services, have access to education and support services as required and liaise with mental health services in relation to any early warning signs of deterioration.
Dr Ferris’ s 269T report of 14 March 2021 confirmed her diagnosis, described the defendant’s mental condition in terms that the defendant presented as calm, cooperative and polite on assessment, with no evidence of acute psychosis, thought disorder, mood disturbance or behavioural disturbance. She repeated her observation of the significant blunted affect and minimal reactivity, slow monotonal speech, and paucity of history. She considered that the defendant’s mental state had improved compared with her assessment in late 2020 although the negative symptoms of schizophrenia had persisted.
Dr Ferris expressed the opinion that the defendant was well aware of his requirements under licence to continue to engage with the community mental health and correctional service supervision requirements, and was happy to continue consulting the psychiatrist at Headspace, and to comply with oral medication.
I received a s 269R report from Ms D’Alessandro, dated 25 September 2020. She noted that, upon interview of Ms Treagus, she continued to endure physical pain as a result of the injuries, and ongoing impact on her mental health, as Ms Treagus remained fearful of the defendant, and feared for her safety, which had affected her capacity to undertake her normal duties. It was noted that Ms Treagus family support to assist when she felt unsafe, but requested that the court consider imposing conditions of licence that would assist her recovery in sense of safety including that the defendant be precluded from entering the town of Port Lincoln, not entering the Port Lincoln Hospital unless for medical emergency, and not approach Ms Treagus.
The defendant’s family expressed disappointment and concern that the defendant had not been treated in the correct way at the time of the offending. The defendant’s father said that he had endeavoured to engage mental health assistance for his son, but unsuccessfully. He said that the defendant had suffered a psychosis and had not slept for some four to five days prior to the offending. He was presenting in a confused manner. He said that since the provision of medication the defendant’s condition had improved, and that the defendant’s attendance at Headspace where he received education and support, and the assistance of a psychologist and a psychiatrist, had improved the situation considerably.
The defendant’s mother, who resides in Port Lincoln, noted that once the defendant had been taken to Adelaide the situation had improved. She said that the defendant had first displayed symptoms at about the age of 14, at which time he had been a footballer and was attending school regularly. The defendant’s mother observed that after football matches the defendant ceased wishing to socialise with friends, and wanted to go straight home. The defendant reported strange physical symptoms, which upon assessment did not have any factual basis. He expressed suicidal ideation and concern about his mental state. His mother said the defendant was assessed by audio visual link and prescribed fluoxetine which appeared to have side effects and made the defendant’s condition worse. The defendant’s presentation and suspicions about his family increased.
The defendant’s parents recounted examples of efforts to seek help for the defendant, and the difficulties in doing so. However they were satisfied that the current services and treatment plan were suitable, and were beneficial for the defendant. They expressed a desire to see such care and assistance continue in the long term. The defendant’s mother asked for consideration of a less restrictive condition in relation to attending in Port Lincoln, on the basis that while she resides outside of Port Lincoln, the defendant’s grandparents and brother live in the city centre. She said that it was important that access and contact be continued as they are significant persons on the defendant’s life.
Fixing the Limiting Term
Where a supervision order is made, a limiting term must be fixed equivalent to the period of imprisonment or supervision, or the aggregate period of imprisonment and supervision that would have been appropriate if the defendant had been convicted of the offences, and without taking into account the defendant’s mental impairment. The limiting term is to be fixed on the basis of the head sentence that would have been imposed, and there can be no discount on the basis of the concession made by counsel for the defendant that the objective elements of the offence were made out.[1]
[1] R v Draoui (2008) 101 SASR 267 at [88] per Vanstone J.

It is clear from the victim impact statements of Ms Treagus and the s 269R report, that Ms Treagus was very significantly affected by the defendant’s assault upon her. She described, in her detailed victim impact statement, that she had suffered great mental anguish and emotional turmoil. Her initial shock turned to anger. She became increasingly frustrated due to her physical restrictions, and the impact of the event upon her life. She became overwhelmed with anxiety and sadness. She said she felt broken. She was fearful of the sudden appearance of people near her, or by quick movements. She was fearful of going out in public. That has improved slightly. She said the impact of the offending upon her had in turn impacted upon members of her family and her social circle. Her husband took time away from work to support her and struggled with the concept that his wife had been violently assaulted. Her children had been affected by the impact upon her. Her son was diagnosed with autism, and enjoys a close relationship with Ms Treagus such that the impact of the offending upon her has in turn affected him. Ms Treagus said at the time of making her statement that she was unsure as to whether she could return to nursing as the offending had taken away her trust, her faith in humanity and her compassion.
In considering the sentence that would have been imposed, it is necessary to also consider the defendant’s circumstances. He is a very young man, now aged 19 years, and was aged 18 years at the time of the offending. He has never come to the attention of police previously. I have already referred to his family circumstances and his educational background. I note that he is now living a productive life with his father, grandmother and brother. He is in employment. His employer has provided a letter of 20 March 2021 confirming that he is aware of the defendant’s current proceedings in court. Mr Bucco said that the defendant commenced employment on 27 January 2021 on a full time casual basis, and works on average 35 hours per week assisting with the delivery of concrete. The defendant was described as reliable, and as having a strong work ethic, and making progress towards becoming a qualified concrete pump operator. He was described as showing a keen interest in his work, and as getting on well with his fellow employees. Mr Bucco confirmed his willingness to provide ongoing employment.
I also received a letter from Dr Vukovic, psychiatrist, and Mr Hagias, psychologist, from Headspace. That letter, dated 24 March 2021, confirmed that the defendant had been receiving medical and psychiatric input, psychological support, employment and education support, and case management over the preceding 18 months. He is eligible for a further six months of support before transferring to the community mental health service.
I turn then to the limiting term. The offence is serious as is indicated by the maximum penalty imposed by Parliament, namely imprisonment for 13 years. Absent the issue of the defendant’s mental health the offending would be regarded very seriously. The protection of the community is an important factor in sentencing, and an unprovoked attack upon a nurse working in a hospital endeavouring to assist in the treatment of patients, is a serious example of such offending. The consequences for Ms Treagus have been significant, and ongoing. Had I been required to sentence the defendant I would have taken into account his youth and lack of prior offending, and the fact that he has now obtained ongoing employment. I would have sentenced him to imprisonment for two years and three months. He is entitled to credit for the period of 24 days spent in involuntary detention, making what would have been the sentence, two years, two months and seven days. I fix a limiting term accordingly.
Options
As I have said, s 269O CLCA provides that once a defendant has been declared liable to supervision, the Court may release him unconditionally or make a supervision order either committing the defendant to detention or releasing the defendant on licence on conditions.
Section 269S CLCA provides that in deciding whether to release the defendant under this Division, or in deciding the conditions of a licence, the Court must apply the principle that restriction on the defendant's freedom and personal autonomy should be kept to a minimum consistent however with the safety of the community, including of course the victims of his offending.
Having considered the material to which I have earlier referred, on the basis of the opinions expressed by Dr Ferris, and indeed Dr Furst, having regard to the the fact that the defendant is being treated with a reasonable degree of success, and has a program in place for the provision of anti-psychotic medication, and ongoing broad based treatment and support through Headspace, I have come to the view that it is appropriate that the defendant be released on licence. It is not appropriate that he be released unconditionally. Rather, he is to be released subject to a number of strict conditions. I note the course that I have adopted was not opposed by counsel for the DPP.
Licence Conditions
Various recommendations have been made in the reports prepared by examining psychiatrists, relating to the future supervision of the defendant. On the basis of those recommendations, counsel for the DPP and counsel for the defendant jointly drafted conditions giving effect to the recommendations. One issue which has arisen in respect of which there is no agreement, is the question of whether the conditions should include a prohibition upon the defendant from entering the town of Port Lincoln. I have come to the view that although there are reasons as to why the non-contact provision could be restricted to prohibiting the defendant from attending within an area close to where Ms Treagus lives, or works, at this stage it is appropriate to impose a blanket prohibition preventing the defendant entering into the town of Port Lincoln. Although it is important as part of the defendant’s socialisation that he meet with and spend time with his grandmother and brother who live in Port Lincoln, that socialisation can be achieved, at this stage at least, through visits to his mother’s residence outside Port Lincoln, when the defendant visits her. In future, subject to the defendant’s compliance with conditions generally, an application could be made to reduce the level of restriction in that regard enabling attendance in Port Lincoln subject to sufficient conditions to provide for the safety of Ms Treagus. Subject to that issue, after careful consideration, and some amendment, I regard the suggested conditions as the appropriate basis upon which the defendant is to be released on licence.
The defendant will be released on licence, for the period of the limiting term of two years, two months and seven days, subject to the conditions contained in the order annexed to these reasons.