R v Farquhar
[2006] SADC 77
•7 July 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v FARQUHAR
[2006] SADC 77
Ruling of His Honour Judge Tilmouth
7 July 2006
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 creating risk of bodily harm and arson - 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 s29(3), s85(1), s269B, s269G, s269O, s269P, s269R, s269S, s269T; Criminal Law (Sentencing) Act 1988 (SA) s7A, s18A, referred to.
R v Davey [2006] SASC 177; R v Thomas (1999) 75 SASR 235; Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251, applied.
R v FARQUHAR
[2006] SADC 77
STEVEN FARQUHAR is before the court on two counts filed in this court on 8 May 2006, one of creating risk of bodily harm[1] and the second, arson[2] causing damage amounting to less than $2,500.
[1] Contrary to s29(3) of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to s85(1) of the Criminal Law Consolidation Act 1935 (SA)
The maximum penalties for these offences are respectively five and two years imprisonment. The damage actually caused to the property concerned was accepted on both sides as being approximately $1,000.
Part 8A Evidence
When the matter first came before the Court, both parties accepted Mr Farguhar was “mentally incompetent” to commit the offences as charged, and they were equally agreed there should be a finding that the objective elements were made out. An election had already been validly made pursuant to s269B(4) of the Criminal Law ConsolidationAct 1935 (SA) for trial by Judge alone.
Accordingly the court proceeded initially, according to the path provided for under s269F and recorded a finding beyond reasonable doubt that the objective elements of these two offences were made out, dispensed with the requirement of further investigating the defendant’s mental competence (as permitted by s269FA(5)(a) and (b)), and proceeded on 9 May 2006, to make orders declaring Mr Farguhar to be mentally incompetent to commit the offences charged, to find him not guilty accordingly and to declare him liable to supervision under Part 8A of the Act.
The declaration of mental impairment arises from the unanimous psychiatric opinion that he suffered from chronic and severe paranoid schizophrenia when the offences were committed.
Part 8A – Division 4 Disposition
Later “expert” and other reports in compliance with ss 269Q, 269R(1) and 269T(2), were obtained and further submissions and representations were then received.
In their report of 1 June 2006, the psychiatrist Drs Schirripa and Dr Czechowicz, both recommend further detention for a period of three months, to allow for improvements in Mr Farguhar’s mental state and “to consolidate the therapeutic gains already made”, a period of time to “allow for more appropriate discharge planning into the community”. They point to continuing “compliance problems” and to “a significant risk that he would become non-adherent with his treatment and suffer a relapse of his illness (ie, become acutely psychotic)”. The psychiatric report of Dr Nambier of 20 June 2006 concurs in that opinion, on the basis of “some remaining residual features of active symptoms of schizophrenia” and for the additional reason that it would “allow for further adjustments to be made to his medication, a treatment plan for the community to be formulated, including accommodation and follow up …”. A final report of the psychiatrist, Dr Tomasic, agrees with the plan outlined in the report of 1 June 2006, as she considers Mr Farquhar “requires further improvement in his mental state, ongoing education, and more comprehensive discharge planning”. It was her opinion that Mr Farquhar “remains at reasonable risk of inappropriate behaviour, aggression, and poor compliance with treatment”.
Based on those reports, both counsel joined in a submission for the court to fix, at this stage, a “limiting term” equivalent to the period of imprisonment that would have been appropriate if Mr Farquhar had been convicted of these offences[3] and to then commit him to detention for further assessment, before proceeding to consider whether he ought to be released at some later time on licence on conditions, as permitted by Ss 269O(1)(b)(ii).
[3] S269O(2).
The Application of S296O
At first sight S269O(1) of the Act might appear intractable in that respect, in that it appears to require orders for supervision to be made coupled with committal to detention or release on licence, but not a combination of both. Nor does it appear to permit an interim detention order, as such.
However, whether that be so or not, it appears clearly enough that under s269P, the Court may at any time during the period of the “limiting term” on the application of either party (amongst others), make an order revoking the supervision order and substituting any other order the court might have made at first instance, thus practically achieving that result in any event.
That view of the proper construction of the sections concerned, as they apply in practical terms, is wholly consistent with the scheme of the legislation and the flexible application rendered of Part 8A as a whole, by the Court of Criminal Appeal in R v Davey[4]: (Gray J; Bleby and Anderson JJ concurring at [53]):
It is within this context that the note to section 269O(2) must be considered. The legislature intended that the court fix a limiting term having regard to the gravity of the objective conduct whilst allowing for a supervision order to be varied or revoked on a consideration on a consideration of a defendant’s ongoing rehabilitation. The limiting term is not intended to be punishment. A defendant has not been found guilty. Rather, a limiting term ensures that a defendant receives the appropriate period of detention or control and supervision relevant to the conduct the subject of the charge. It also enables treatment to be provided, and it allows the community to be protected whilst a defendant receives treatment. It does not unfairly disadvantage a defendant to fix a limiting term without considering mental impairment.
[4] [2006] SASC 177
When such an application for variation is made, the Court would be required to reconsider whether detention remained appropriate, or whether it was by then opportune to release on licence, after having duly considered the various matters set out in s269T, as they apply at that time and having once again, duly considered the requisite reports.
Accordingly the Court proposes to take the course urged by both counsel, having first considered that restrictions on Mr Farquhar’s “freedom and personal autonomy should be kept to a minimum consistent with the safety of the community”: s269S. As to that, those portions of the expert reports quoted above are unanimous in the conclusion that Mr Farquhar is not ready for release on licence at the present moment, and also lead to the conclusion that he may presently be a danger to other persons and certainly that he is unlikely to comply with the conditions of any licence when it comes to taking his medication: (Ss269T(1)(a), (b) and (d)). These reports do however, give some hope for a change in prognosis in about three months time.
Fixing a “Limiting Term”
The Court must then turn its attention to fixing the appropriate limiting term, for both offences. The defendant is aged 25, was brought up in the Riverland and left school in year 11. He is unemployed and receives a Disability Support Pension. There have been problems with living alone in the past and with the abuse of drugs. Mr Farquhar was first diagnosed with schizophrenia in 1997; then followed admissions to Glenside Hospital and a series of Community Treatment Orders under the Mental Health Act 1993 (SA). There are minor antecedents, of no particular relevance or weight.
As both offences occurred at the same time, with respect to the same premises and are closely interrelated, it would be appropriate to proceed by way of imposing one single term for both[5].
[5] S18A Criminal Law (Sentencing) Act 1988
On 8 October 2005 Mr Farquhar set fire to the outside area of a housing trust unit next door to his own in Clearview, causing damage of about $1,000 to various property items on the front porch. At that time Mrs Sullivan, one of two occupants, was inside and on opening the front door to investigate, saw fierce flames near the security door, which leapt towards her as she opened it. The fire was put out by Mr Sullivan who was not at home, but was nearby at the time and heard her scream for help. Both are elderly. These events caused them considerable distress at the time, and continue to haunt them to the present. They were inconveniently forced to move premises, at some considerable financial and personal cost.
This latter information comes before the Court by way of a “Victim and Next of Kin Counselling Report” dated 16 June 2006 pursuant to Ss 269R(1) of the Act, and by way of the Victim Impact Statements of Mr and Mrs Sullivan, read in open Court by Court staff, with the consent of the defence, pursuant to Ss7A of the Criminal Law (Sentencing) Act 1988 (SA). That being the case, there is no occasion to determine whether Ss269R is a complete code with respect to the presentation of victim information once Part 8A is engaged, or whether both provisions are complimentary, to be read and applied in aid of each other.
Identifying the Objective Elements
The elements of the offence charged on the first count of creating the risk of bodily harm, requires proof of doing an act - in this case setting fire to the porch - knowing the act was likely to cause harm to a person and intending that such harm be caused, or being recklessly indifferent as to whether such harm was caused. The objective facts are conceded in this matter on the footing that there was reckless indifference as required, that is to say, realising someone might be hurt, but nevertheless proceeding regardless.
However, the limiting term, that is the equivalent term of a head sentence Mr Farquhar would have faced if convicted, is fixed accounting to proof of solely the objective elements - that is those which are not subjective. The Court is also required to ignore the defendant’s mental impairment, in performing that task: see Note 1 to s269O.
As observed in Question of Law Reserved No 1 of 1997[6], as the Act as defines a “subjective element” to mean “voluntariness, intention, knowledge or some other mental state that is an element of the offence”, that suggests “a distinction between actions and state of mind”[7]. Duggan J (Matheson and Nyland JJ concurring) then continued[8]:
The definition of subjective elements encompasses every mental state which qualifies as an element of the offence. It would seem that the rationale for excluding them from consideration after mental incompetence has been established rests on the assumption that the cause of any involuntariness, lack of intention or other similar exculpatory factor is likely to be the result of the mental incompetence.
[6] (1997) 70 SASR 251, 261.
[7] Duggan, Matheson and Nyland JJ concurring.
[8] (Above at 262).
These considerations do not present particular difficulty in relation to the arson offence, as the objective elements of that are made out by proof of damaging property by fire, without lawful authority. But they do with respect to creating a risk of bodily harm, because that offence is cast by ss29(3) of the Act in almost entirely subjective terms. The objective elements comprise, at the least, doing an act or omission likely to cause harm to another person. That requirement is satisfied by proof of setting fire to the porch when it was likely someone might be harmed. The actual intention and actual state of knowledge of the defendant is intimately affected by his mental impairment, so the court must fix a limiting term without taking account of those subjective elements: R v T[9].
[9](1999) 75 SASR 235.
Sentencing Mr Farquhar on this basis, an appropriate single limiting term to reflect both offences, would be one of fifteen months. Should this categorisation of the objective elements be wrong, then the facts suggest that if the other elements relating to knowledge and intention (or recklessness) are in the same way to be considered in fixing the limiting term, it would not have affected the outcome. On this topic, so far as the evidence goes, Mr Farquhar told a psychiatrist on 21 March 2006 when interviewed for the early stages of these proceedings at James Nash House, that he was living in rental accommodation at Clearview for about three years and thought his neighbours were trying to influence his thoughts, by “thought broadcasting” and by voices heard inside his unit, as if he could “hear them whispering through the walls to me”. He said that he lit the fire as it was the only way of “silencing the voices and silencing the neighbours thoughts”. These statements seem to imply foresight of the likelihood of injuring someone and the hope or expectation of doing so. This account is more or less consistent with what was said to Dr Czechowicz during his examinations in December 2005. Even if relevant to fixing the limiting term, the same period of fifteen months would on the basis of these admissions, still remain appropriate.
Early Admission to Objective Elements
The matter does not end there. Mr Farquhar was arrested on 8 October 2005 and held for nearly two weeks at Glenside Psychiatric Hospital. Since 21 October 2005 he was held in James Nash House, where he has remained since. As of the date of these reasons, that period effectively in custody, is virtually nine months. That must be taken into account when fixing the limiting term.
Mr Farquhar conceded through his counsel and made admissions to the objective offences at an early stage, which the court is entitled to take into account according to accepted principles, reflecting the interests of the administration of justice, on purely utilitarian grounds: R v Davey[10]. The appropriate discount would in this case be one of three months, reducing the nominal limiting term to one of twelve months.
[10] [2006] SASC 177 at [18-22], [73-82].
Orders
Accordingly the order of the court is that a limiting term of twelve months, to commence from 8 October 2005 is fixed. Being the subject of a supervision order, Mr Farquhar is committed for detention pursuant to s269O(1)(b)(i) of the Act, noting that an application for variation is likely to be brought by him in about three months time, should he be so advised.