R v Clayton - [2006] SASC 358

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v CLAYTON
[2006] SASC 358
Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Anderson and The Honourable Justice White)
28 November 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON
Appeal against sentence – appellant convicted of threatening to cause harm, threatening life and common assault – sentencing judge sentenced appellant to imprisonment for two years and ordered non-parole period of nine months – offending result of psychiatric disorder -whether sentence should have been suspended – whether sentencing judge considered all relevant matters – no reason to interfere with sentence – appeal dismissed.
Criminal Law Consolidation Act 1935 s 19(1), s 19(2), s 39; Criminal Law (Sentencing) Act 1982 s 18A, referred to.

R v CLAYTON
[2006] SASC 358
Court of Criminal Appeal: Debelle, Anderson and White JJ

DEBELLE and ANDERSON JJ: This is an appeal against sentence.
The appellant was convicted on her plea of guilty of three offences which occurred at Smithfield on 27 October 2005. The offences were threatening to cause harm contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (“the Act”), threatening life contrary to s 19(1) of the Act, and common assault contrary to s 39 of the Act. The victim of the first offence was a male support worker who cared for the appellant. The victim of the second and third offences was a woman going to collect her son from school. The woman was pregnant at the time. The maximum penalty for each of these offences, which the Act calls “basic offences”, is imprisonment for five years, ten years, and two years respectively.
The Judge imposed one sentence in respect of this offending pursuant to s 18A of the Criminal Law (Sentencing) Act 1982. He sentenced the appellant to imprisonment for two years. He ordered a non-parole period of nine months.
The appellant appeals against the sentence on the ground that both the head sentence and non-parole period are manifestly excessive. The appellant does not complain against the length of the sentence but contends that it should have been suspended.
The Offending
At the time of the offending, the appellant was aged 25 years. The offending arose out of psychiatric difficulties experienced by the appellant. In 2002 the appellant was sexually assaulted on three separate occasions. The offender has never been brought to justice. Following those attacks, the appellant became suicidal. She suffers from a severe chronic post traumatic stress disorder as a result of those incidents. She was provided with counselling for rape but she found it difficult and discontinued it. She has been treated by the Mental Health Services Department since 2002. She has an extensive history with that department.
On 27 October 2005 the appellant was residing in a house at Elizabeth North where she was assisted by support workers. The house was jointly managed by the Lyell McEwin Health Service and the South Australian Housing Trust. The support team was managed by the Exceptional Needs Unit of the Department for Families and Communities which had set up a régime to manage the needs of the appellant.
At about 11.30 that morning she left those premises. She went to a main road and sat in the middle of the road at a point where the speed limit is 80 kilometres per hour. Police were called to remove her to the side of the road. They returned her to the house where she then lived. The police left. The appellant returned to the same main road and again sat in the middle of the road. The police came and returned her to where she resided. She said she wanted to be hit by a car and that she wanted to be dead.
After she had been returned to the premises, the appellant located a knife and again left the premises. She used the knife to cut her wrist. Later, she was seen to draw the knife across her throat cutting herself. She then walked away from the premises. Her support workers followed her and were on either side of her. She attempted to stab the male support worker saying, “If you don’t go back to the house I will stab you”. The worker backed away but the appellant lunged at him. Her purpose was to keep the workers at some distance so she could harm herself. These facts are the subject of count 1.
She then walked along a road with a support worker on either side. While doing so, she grabbed a woman who was walking along the road to collect her son from school. She grabbed the woman round the neck and positioned the knife to stab her in the throat or neck, at the same time saying she was going to kill her. That incident is the subject of counts 2 and 3. One of the support workers intervened and freed the woman. The appellant was wrestled to the ground and disarmed. She was taken away in an ambulance to a hospital. At the hospital razor blades were recovered from her. One was in her jeans and two were recovered from her rectum.
Medical History
The appellant is under the joint guardianship of the Public Advocate and her parents. She is directed as to where she should reside. Until this offending, she resided in the house at Elizabeth North mentioned earlier. She has the support of her family. A program has been designed to assist her rehabilitation. It includes medication. When taking that medication, she is usually able to manage her psychiatric difficulties. However, difficulties occur when she refuses that medication.
There is a substantial body of medical and other reports proving the psychiatric difficulties experienced by the appellant. It is readily apparent that she has strong suicidal tendencies as well as an inclination for self-harm. She has on occasions inflicted severe injuries on herself.
In 2004 she walked on to a busy road and remained there, hoping to be struck by a motor car. She was convicted of obstructing traffic following that incident. She engaged in like conduct again in 2005 and was convicted of walking without due care. That conduct is, of course, of the same kind as first occurred on 27 October 2005 when clearly her conduct was prompted by a desire to cause herself harm. Late in 2004 the appellant sustained severe injuries after jumping from an overpass.
Sentencing considerations
The offending was serious in that the appellant seriously threatened an innocent bystander as well as one of her support workers who was endeavouring to assist her.
The appellant was in custody following her arrest on 27 October 2005 until 1 February 2006. She was then released on strict bail conditions. She was again arrested for disorderly behaviour, for an assault, and for assaulting police. She was again placed in custody on 2 May 2006. Since that time she has remained in custody. The sentencing Judge said of that behaviour:
Although I cannot have regard to any alleged offences on 2 May 2006, the generalities of your conduct give me cause for concern. I note that, in respect of those matters, you are hoping to go into the Mental Health Diversion Program.
We agree with the Judge that the conduct on 2 May 2006 is a cause for concern. It tends to indicate what may happen in the future when the appellant is free to move around within the community.
Mr English, for the appellant, submitted that the appellant is not a criminal but someone with a severe mental illness. Although this sentiment is understandable, the fact is that she has engaged in criminal conduct, albeit because of her illness. Mr English submitted that it is most unlikely that the appellant’s difficulties will be assisted by a period of imprisonment. He argued that the irrationality of the appellant’s behaviour does not suggest any disposition on her part to engage in criminal activity but, instead, childlike acts induced by her psychiatric condition. In short, he says, the appellant is not a person normally prone to criminal conduct.
There is considerable force in these contentions. The appellant’s criminal conduct is essentially the result of her psychiatric condition when she fails to take her medication. The sentencing principle that regard is to be had to the circumstances of the offender as well as to the circumstances of the offending requires that regard be had to her psychiatric condition.
There is a consistent theme in the reports from the psychiatrists who have treated the appellant or who have examined her. It is that she requires continuing psychiatric treatment and that would best be administered at an institution other than a prison. The psychiatric evidence shows the appellant’s mental condition deteriorates when she is in imprisoned. Following her arrest for these offences, she was detained at the Northfield Women’s prison. Her mental condition was observed to deteriorate as a result. Treatment at James Nash House appears to be a preferred alternative.
Because the appellant is a high suicide risk, she has been involved in a highly specialised treatment program. The well-intentioned attempt by the Exceptional Needs Unit to assist her rehabilitation by allowing her to reside with support workers in the house at Elizabeth North has failed in that it exposed members of the public to danger when the appellant refuses to take her medication. After the incident on 27 October 2005, the appellant’s behaviour deteriorated. While it has improved, she can become dangerous both to herself and others as is evidenced by what occurred on 2 May 2006.
In his report of 8 June 2006 Dr Raeside, a specialist forensic psychiatrist, says:
Ms Clayton requires ongoing psychiatric treatment whether in custody or out. She probably represents a poor bail risk at present, given her recent behaviour and difficulties in the community. She presents considerable management problems whilst in custody, and she may require admission to James Nash House at times when she becomes extremely disturbed. However, essentially she requires behavioural management, together with ongoing psychiatric medication.
It is desirable, therefore, that the appellant be accommodated in an institution other than a prison where she can be appropriately treated but her liberty is restrained so that she has no capacity to harm members of the public. However, no such institution is currently available to her. The fact that the appellant’s conduct exposes members of the public to danger militates against her being released even to a facility of the kind in which she resided at Elizabeth North. Her plight raises real concerns as to the adequacy of facilities for the proper treatment of persons suffering from mental disorders of this kind.
There is, therefore, no adequate facility available for the appellant outside the prison system at the present time. We were informed that there are no vacancies in James Nash House. There is no other suitable facility. This is a lamentable state of affairs. It has the consequence that, because members of the public are subject to a real risk that the appellant might engage in conduct which could harm them, the appellant must be detained in prison notwithstanding that the true reason for that is not any criminal propensity on her behalf but the fact that she is suffering from a mental disorder.
The learned sentencing Judge correctly directed himself on all relevant matters. He took into account that there was a knife used during the offences, and that there were two victims threatened. He took into account the impact of the appellant’s conduct upon the victim of the second and third counts from her victim impact statement. He was justifiably aware of the need to protect members of the public. At the same time, the sentencing Judge took into account all of the relevant matters relating to the appellant which mitigated her offending including her guilty plea, her contrition, the fact that she did not intend any harm, her mental health at the time of the offending, the time spent in custody, her relatively young age, and previous good record.
The sentencing Judge had to discharge a very difficult and delicate balancing exercise, having regard to the seriousness of the appellant’s conduct and the need to protect the community as against allowing the appellant the best chance to rehabilitate herself.
The appellant needs to be assisted in realising as quickly as possible that she is both a danger to herself and to others. It is necessary to bring home to her the seriousness of her offending and emphasise that she must not inflict harm on others because of her difficulties.
It has not been demonstrated that the learned Judge failed to take into account any relevant matter or that he took into account any irrelevant matters.
Conclusion
The Judge considered whether he should suspend the sentence. He declined to do so because of the serious nature of the appellant’s offending. There is no proper reason to interfere with that exercise of the sentencing discretion. The Judge had regard to the appellant’s mental difficulties and, for that reason, ordered a non-parole period which was lower than normal. He did so in the hopeful expectation that with medication to stabilise her condition and the affluxion of time it would be possible to release the appellant into the community with a considerably reduced risk of danger to the community.
We would therefore dismiss the appeal.
WHITE J: I agree with the reasons of Debelle and Anderson JJ.
I add the following. There is considerable force in the submission of Mr English that the appellant should be dealt with as a mentally disturbed person rather than a criminal who has acted in a calculated way intending to instil fear in her victims. At the same time it has to be remembered however that the appellant accepted that she knew what she was doing, knew that it was wrong, and that she had been able, if she wished, to control her conduct.
Mr English did not suggest that the sentencing judge had applied inappropriate sentencing principles or that he had not considered all relevant matters. He did submit, however, that the judge had given too much weight to the need to protect the community.
The sentencing judge had a difficult sentencing decision, but when one reviews all the circumstances, I do not consider that it can be said that he has erred. The evidence showed that the appellant had received assistance to overcome her difficulties of an intensive kind. That assistance had been provided for many months. The regime of assistance was in place at the time of the commission of the offences. It can be said that the offences were committed despite the assistance which had been provided to the appellant. Even if the regime was resumed and supported by the conditions of a bond imposed as part of a suspended sentence, there are real doubts about its efficacy in preventing further offences. As Debelle and Anderson JJ have noted, in early May 2006 the appellant offended again, apparently in circumstances arising from her mental disturbance.
Dr Raeside has described the appellant as being “a poor bail risk”. I understand that expression to convey Dr Raeside’s opinion that the appellant is at real risk of offending in the same way in the future. Ms Clarke of the Exceptional Needs Unit of the Department of Families and Communities has said that in her present mental state the appellant’s ability to function outside a highly structured environment is very severely impaired. Ms Clarke considers that the appellant requires a highly structured hospital environment such as James Nash House. We were informed that no spaces are currently available in a suitable institution. These circumstances suggest real doubts about the appellant’s ability to take advantage of a suspended sentence so as to rehabilitate herself. They also suggest that there are very real doubts about the prospect of the appellant complying with the terms of a bond.
This case involves the interstice of the criminal justice system and the mental health system. It is most unfortunate that there are not additional facilities in the mental health system by which the appellant’s mental disturbance can be addressed whilst at the same time affording protection to the public. Incarceration does seem a crude substitute. However, in the absence of suitable mental health facilities, the judge was correct, in my opinion, to have regard in a significant way to the need to protect the public. I agree with Debelle and Anderson JJ that the appellant had to be dealt with as a person who is not only a risk to herself but to others in the community. The ways in which the appellant may cause harm to others are not limited to circumstances of the kind which occurred in the present offences.
For the reasons of Debelle and Anderson JJ and these additional reasons, I would dismiss the appeal.