R v Donovan - [2007] SADC 96

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DONOVAN
[2007] SADC 96
Ruling of His Honour Judge Soulio
7 September 2007
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
Accused pleaded not guilty by reason of mental incompetence to charges of aggravated serious criminal trespass in a place of residence, and theft - defendant admitted objective elements of offence - consideration of psychiatric evidence of accused's mental state at time of alleged offending - court satisfied at time of alleged offences accused was mentally incompetent to commit the offences - consideration of ss269O and 269P of Criminal Law Consolidation Act 1935 (SA) to fix appropriate "limiting term" of supervision order.
Criminal Law Consolidation Act 1935 Part 8A, referred to.
R v T (1999) SASR 235 , discussed.

R v DONOVAN
[2007] SADC 96

John Craig Donovan was charged with the offences of aggravated serious criminal trespass in a place of residence, and theft. The maximum penalties for these offences are life imprisonment, and ten years imprisonment respectively.
When this matter first came before me Mr Donovan pleaded guilty to both charges. The matter was then remanded for submissions to be made on sentence. Following that a psychiatric assessment was conducted, and Dr Raeside, in a report dated 29 May 2007, diagnosed Mr Donovan as suffering from brain damage consistent with a previous frontal lobe injury together with a psychotic disorder, either schizophrenia or organic psychotic disorder secondary to his head injury. He also expressed the view that Mr Donovan was mentally incompetent to commit the offences with which he had been charged.
When the matter next came before me, both parties accepted that Mr Donovan was mentally incompetent to commit the offences charged. On that basis I granted leave to withdraw the pleas of guilty.
Pursuant to s269B of the Criminal Law Consolidation Act an investigation into a defendant’s mental competence to commit an offence, or into whether elements of the offence 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 not made pursuant to s7 of the Juries Act. Although the election was not formally made, it can be inferred from the conduct of counsel[1], and in the present case it is clear that that counsel for the defendant made such an election on behalf of the defendant.
[1] R v T (1999) 75 SASR 235 at 240
Pursuant to s269E(2) I proceeded first with the trial of the objective elements of the offence, and having heard counsel for the Director of Public Prosecutions, and counsel for the defendant, I found that the objective elements of the offences were proved beyond reasonable doubt. That finding was made with the consent of counsel for the defendant.
Thereafter, pursuant to s269F(5) after having considered the report of Dr Raeside dated 29 May 2007, and on the basis that the prosecution and defence agreed, I dispensed with any further investigation into the defendant’s mental competence to commit an offence and declared that the defendant was mentally incompetent to commit the offences with which he was charged. Pursuant to s269G(5) I found the defendant not guilty of the offence and declared the defendant to be liable to supervision under part 8A of the Criminal Law Consolidation Act.
Thereafter reports were provided pursuant to s269Q(1), s269T(2) and s269R following which further submissions were made by both counsel for the Director, and counsel for the defendant.
Division 4 Disposition
Dr Raeside, having interviewed Mr Donovan again, prepared a report dated 11 July 2007. He described Mr Donovan as presenting a difficult management problem due to lack of insight and some defiance relating to the use of antipsychotic medication. He was of the view that that put Mr Donovan at considerable risk of non-compliance in the future with an increase in risk of relapse of psychosis and unlawful behaviour. He recommended a period of detention at James Nash House with a primary focus being the determination of appropriate medication. He described that process as being quite difficult to achieve in the community at large, complicated at times by the concurrent use of illicit drugs, and on that basis expressed the view that a period on a controlled environment with close observation free of illicit drugs and alcohol was the best way to address Mr Donovan’s problems. He concluded that Mr Donovan’s prognosis was dependent on compliance with appropriate medication and abstinence from illicit drugs.
Dr Michael Clarke assessed Mr Donovan in December 2006, and reviewed his progress in January and April 2007 before again seeing him in late June 2007 for the purpose of both follow up treatment and preparing a report presented to the court and dated 6 July 2007. He also diagnosed a past brain injury and a psychotic illness which he thought were related, although the thought disorder and delusional thinking responded to antipsychotic medication. He considered that a significant past history of substance abuse exacerbated the psychotic illness and the behavioural disturbance secondary to brain injury.
He considered that there was an adequate plan in place to ensure ongoing monitoring, support and treatment which should assist with the stability of Mr Donovan’s mental state and reduce the risk of offending or other behavioural disturbance in the future. He expressed the view that Mr Donovan could be released on licence without undue risk to the community.
As Dr Clarke said, Mr Donovan currently has an extensive range of support. He has a worker from Anglicare providing ongoing support on the basis that he has been extended an exceptional needs package. He is in line to be housed in an independent accommodation provided by Anglicare. He receives weekly support from a worker through United Care Wesley. He is under a Guardianship Board Administration Order and liaises with Brain Injury Options in relation to that order. His psychiatric management is supervised through the Homeless Team from the Community Mental Health Service at Felixstow and has follow up with that service and follow up appointments with Dr Clarke to monitor Mr Donovan’s mental state and make adjustments to his medication. He is also the subject of a Community Treatment Order issued by the Guardianship Board.
I have also had the benefit of a report jointly prepared by Dr Michael Schirripa, and Dr Nambiar, the latter being a Consultant Forensic Psychiatrist at James Nash House. Their diagnosis was consistent with the opinions of the other psychiatrists. They expressed the view that it is extremely important for Mr Donovan to receive ongoing psychiatric treatment and that he should continue on his currently prescribed antipsychotic medication under close psychiatric supervision, as well as continuing to receive his current community mental health follow up through Brain Injury Options. Dr Schirripa recommended random urine drug testing to be undertaken by a Community Corrections Officer, and that there be a requirement that Mr Donovan abstain from the use of alcohol and cannabis as well as other illicit substances. The use of illicit substances would result in a high risk of relapse of psychotic symptoms in the future. The strong view expressed was that community treatment was appropriate and that committal to detention was not recommended. Dr Schirripa concluded that the proposed management plan would further stabilise Mr Donovan’s mental state and reduce the risk of him re-offending.
In terms of the s269R report, I note that the victim of the offending was frail and elderly and was likely to be further upset if required to discuss the court proceedings. She had indicated quite strongly that she wished to put the incident behind her and on that basis the senior social worker of the Forensic Mental Health Service at James Nash House had come to the conclusion that the potential upset to the victim of the offending and the potential impact on her health and well being outweighed the requirement for an interview. I have had regard to her victim impact statement. Mr Donovan’s mother was interviewed and described a close relationship with her son. She noted some improvement in his mental state and functioning. She is prepared to continue to support him and I take that into account.
Section 269O 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. 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. Further the limiting term is to be fixed on the basis of the head sentence that would have been imposed.
Section 269S provides that in deciding whether to release the defendant under this division, or the conditions of a licence, the court must apply the principle that restriction of the defendant’s freedom and personal autonomy should be kept to a minimum consistent with the safety of the community.
Having considered the material to which I have earlier referred, and whilst bearing in mind Dr Raeside’s suggestion that the medication regime be established whilst the defendant is in detention at James Nash House, on the basis of the opinions expressed by Dr Schirripa and Nambiar jointly, and by Dr Clarke who has had the responsibility of the treatment of Mr Donovan, I have come to the view that it is not appropriate that Mr Donovan be detained nor that he be released unconditionally.
He is to be released on licence subject to conditions I will impose.
I note that in all likelihood, had the defendant been convicted of the present offence, I would have suspended the sentence I have referred to. I further note that the course that I have adopted was not opposed by counsel for the Director of Public Prosecutions.
Fixing the limiting term
The offences both occurred on 6 September 2005 at about 7.30am. Mr Donovan’s co-accused whilst under the influence of drugs, entered an occupied house and whilst there stole DVD player. Mr Donovan’s involvement in the offending was alleged by the prosecution, and accepted by counsel for the defendant, as being on the basis that Mr Donovan observed that the co-accused had entered the house and removed an item, and had then permitted the co-accused to enter Mr Donovan’s vehicle and drove the co-accused away from the scene. Mr Donovan accepted a payment for his part in the offending. Counsel for the Director of Public Prosecutions described Mr Donovan’s involvement as joining the enterprise at the tail end and being essentially an “accessory after the fact rather than being a joint offender from the outset”.
The defendant is 28 years of age. He had an abusive and neglectful childhood due to his parent’s drug use. He was placed in foster care due to the physical abuse suffered at the hands of his parent’s. He has been in receipt of a disability support pension for the effects of an acquired brain injury when he as a pedestrian, was struck by a motor vehicle, when he was 16 years of age. He has a long history of consuming cannabis and has subsequently used amphetamines and heroin. That motor vehicle accident occurred on the first day of his first job. He has never been in a significant relationship.
His antecedent report records convictions for a number of traffic offences, an offence of being unlawfully on premises which together with some traffic offences was dismissed without penalty, an offence of making off without payment which was also dismissed without penalty, and the offence of dishonestly taking property without the owner’s consent for which he was sentenced, apparently together with an offence of driving under disqualification, to two months imprisonment which was suspended.
Counsel for the defence consented to me receiving the victim impact statements of the occupant of the house, and of her daughter-in-law who observed the entry into the house by the defendant’s co-accused. There is no doubt that the offending had a significant impact on both, although as I have said, counsel for the Director accepts that the involvement of the defendant occurred after the principal offending had already been committed and was in the nature of being an accessory after the fact.
On the basis that the offences I have found proved are serious, but that the defendant’s involvement was limited, I would have imposed a sentence of imprisonment of eight months.
The defendant also conceded the objective elements of the offences through his counsel and I take that into account in fixing the limiting term. On that basis, and taking into account that the defendant spent some seven days in custody after being first arrested, I fix a limiting term of six months.
The defendant will be released on licence subject to the following conditions:
1That he refrain from using alcohol.
2That he refrain from using cannabis or any other illicit substance.
3That he be under the supervision of a Community Corrections Officer and obey the lawful directions of that Community Corrections Officer particularly in relation to:
a.attending for psychiatric assessment or treatment
b.undergoing blood testing, or breath testing or urinalysis for the purpose of assessing drug and alcohol use
4That he advise the Community Corrections Officer of any intended change of address.
5That he report to the Community Corrections Office at Adelaide within one working day.