R v Gryzbowicz - [2014] SADC 192

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v GRYZBOWICZ
[2014] SADC 192
Reasons for the Order of His Honour Judge Soulio
18 November 2014
CRIMINAL LAW
Investigation into mental competence to commit offences – decided that at the time of the conduct alleged to give rise to the offences 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 offences and declared liable to supervision – limiting term of five years, three months and 11 days – supervision order made releasing defendant on licence on conditions decided by the Court and specified in the licence.
Criminal Law Consolidation Act 1935 Part 8A, referred to.
R v Draoui (2008) 101 SASR 267, considered.

R v GRYZBOWICZ
[2014] SADC 192

The defendant, Martin Gryzbowicz, was charged with one count of robbery committed on 30 August 2013, contrary to s 137 of the Criminal Law Consolidation Act (‘CLCA’).
The defendant was also charged with offences committed on 24 August 2013 at a swimming centre at Oaklands Park, namely behaving in a disorderly manner, contrary to s 7(1)(a) of the Summary Offences Act 1953 (‘SOA’); carrying an offensive weapon, namely a chisel, in a public place causing a person to fear for personal safety, contrary to s 21C(7) SOA; and resisting police officers in the execution of their duty contrary to s 6(2) SOA, when they attended to arrest him.
Circumstances of the Principal Offending
On 30 August 2013 the defendant had been involuntarily detained at Glenside Hospital but had escaped. At just after 10.30am that day the defendant was standing outside the roller door of the garage of a house at Dulwich. The victim of the offending entered the garage from inside her house, and entered her car. She opened the roller door remotely. The defendant approached the driver’s side of the vehicle. He demanded that she get out of the car. He opened the driver’s side door, grabbed her by the arm and began pulling her out of the car. The defendant got into the driver’s seat, started the car and reversed out of the garage. The victim of the offending and a neighbour subsequently identified the defendant. The defendant was arrested on the afternoon of 30 August 2013, transferred to James Nash House on the 6 September 2013, and then discharged into custody at Yatala Labour Prison on 30 October 2013.
The Hearing – 8 August 2014
On 14 April 2014 the defendant, through his counsel, entered a plea of not guilty to the principal charge. On 8 August 2014 the additional charges of disorderly behaviour, using an offensive weapon, and resisting police, were read and pleas of not guilty by reason of mental incompetence were entered.
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. Here the election was made by an oral application, by the defendant’s counsel, and was granted.
The Objective Elements of the Offences
Pursuant to s 269E(2) CLCA, I proceeded with the trial of the objective elements of the offences. I considered the tendered declarations relating to Count 1 and the police apprehension report relating to Counts 2, 3 and 4, and having heard submissions from counsel for the Director of Public Prosecutions (‘DPP’) and counsel for the defendant, who conceded that the objective elements were proved, pursuant to s 269GA(2) CLCA, I found that the objective elements of the offences were proved beyond reasonable doubt.
Mental Incompetence
The question of the defendant’s mental competence at the time of the offending came on for determination, after a number of hearings, on 8 August 2014. The process for investigation by the Court of the defendant’s mental competence is governed by Part 8A CLCA.
Counsel for the defendant and the DPP were agreed that if the evidence was sufficient to establish that the defendant was not mentally competent to commit the principal offence, the same finding could apply to the August 2013 offences. The defendant bears the onus of displacing the presumption of mental competence, pursuant to s 269D CLCA.
In respect of the principal offence Dr Raeside, in his report of 30 January 2014, concluded:
There is considerable evidence to suggest that Mr Grzybowicz was very unwell at the time of the alleged offending, suffering from a manic psychotic episode. Whilst there is some suggestion that he knew the nature and quality of his actions in demanding a lift in the car and then taking the car, causing damage to it, I think it likely, on the basis of the information available to me, that he would have been unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions. Further, whilst not totally unable to control his conduct, it is likely that there was significant difficulty in control of his behaviour due to the weight of his manic psychotic episodes. The corroborative hospital information suggests that even in a secure closed psychiatric facility the staff had marked difficulty trying to manage his behaviour with associate aggression, which was apparent at the time of the alleged offending. Consequently I would support a mental incompetence defence in this matter.
In respect of the earlier offending, Dr Raeside expressed the opinion, in his report of 7 May 2014, that:
There is considerable evidence to suggest that Mr Grzybowicz was very unwell at the time of the alleged offending, suffering from a manic psychotic episode. However, it is difficult to make the direct connection that this resulted in him entering in the swimming centre and struggling with the guard or the police. However, the intensity of his struggle is probably related to his mental illness. It is not clear why he was carrying the chisel. Consequently, on the balance of probabilities, I believe that Mr Grzybowicz was likely to be unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions. There is no indication that he would have been totally unable to control his behaviour, or that he was unable to know the nature and quality of his actions. Consequently, as before, I would support a mental incompetence defence in this matter that occurred within a few days of the other offense for which I supported a mental incompetence defence.
By his report of 19 June 2014 Dr Begg, psychiatrist, expressed the opinion that he did not consider that the defendant was able to reason with a moderate degree of sense and composure, but was overwhelmed by his abnormal mood, and could not appreciate the wrongfulness of his actions. Dr Begg expressed the view that a mental impairment defence was available for the defendant.
Dr Nguyen, in a report of 18 July 2014, said:
At the time of the alleged offences it would appear clear, from the evidence available, that Mr Grzybowicz was experiencing a manic psychotic episode. Due to this, on the balance of probabilities, he would have been unable to know the wrongfulness of his conduct with a moderate degree of sense and composure. There is no evidence to suggest that he was unable to know the nature of his actions or was unable to control his conduct. In summary I believe that Mr Grzybowicz was mentally incompetent to commit all of the alleged offences and has a mental impairment defence available to him.
The DPP conceded that the defendant was mentally incompetent to commit the offences charged. The prosecution and defence jointly submitted that I should dispense with any further investigation into the defendant’s mental competence. Having considered the reports of Dr Raeside, Dr Begg and Dr Nguyen I agreed, and declared that the defendant was mentally incompetent to commit the offences.
Pursuant to s 269GB(3) CLCA, I found the defendant not guilty of the offences and declared the defendant to be 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 cannot release the defendant until the court has considered at least three reports pursuant to s 269T(2), each prepared by a different psychiatrist or other appropriate expert who has personally examined the accused, in addition to a report on the defendant’s mental condition, diagnosis, prognosis and suggested treatment plan which must be 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 both counsel for the DPP and counsel for the accused on 27 October 2014.
Dr Begg had provided an initial report of 18 June 2014. He noted a long history of the defendant’s involvement with mental health services, and that the defendant was diagnosed with a conduct disorder as an adolescent, and an antisocial personality disorder as an adult. Dr Begg noted there were admissions to James Nash House in 2001 and 2009, and engagement with the Community Forensic Mental Health Service from 2005 to 2012. At the time of his assessment on 17 June 2014 Dr Begg considered that the defendant’s mental state was stable, consistent with recovery of psychosis. He noted a poor history of attendance at the outpatient clinic for drug use treatment. He considered that the defendant required a continuation of injections of anti-psychotic medication for at least two years. He also recommended continued drug counselling.
In his report of 20 September 2014, Dr Begg noted that the defendant continued to receive regular injections of anti-psychotic medication. The defendant frankly conceded that he had difficulty in avoiding a relapse into illicit drug use. An examination of the defendant’s mental state did not reveal signs of active psychosis. Dr Begg said that whilst the defendant recognised the importance of continuing treatment and abstention from illicit drug use, he appeared indifferent to the long term relationship between illicit drug use and psychosis. Dr Begg considered that illicit drug use was a factor in increasing the risk of further offending. He considered however that the defendant’s schizophrenia was under good control with current treatment, which could continue in a community setting. Drug counselling was recommended as an important component of rehabilitation. Dr Begg considered that historical risk factors increased the risk of further offending and that strong emphasis needed to be given to treatment to avoid a relapse into illicit drug use.
Dr Nguyen provided a report dated 15 October 2014 pursuant to s 269Q CLCA. He expressed the opinion that the diagnosis of schizo-affective disorder was consistent with the defendant’s past history of psychiatric illness. An alternative diagnosis was bipolar-affective disorder. Treatment in each case would be similar. Dr Nguyen also expressed the opinion that the defendant had problems relating to an antisocial personality disorder, and illicit drug abuse. He considered the prognosis was guarded, with the most significant factors being the defendant’s lack of insight, the pattern of poor engagement with mental health and drug and alcohol services, and the pattern of illicit drug use. He noted that the defendant’s future plans were vague, that his life skills were questionable, and that there was a pattern of making poor choices. He said that the defendant’s mental illness was well managed with current treatment, but a relapse into illicit drug use was the most likely significant destabilising factor.
Dr Nguyen expressed the opinion that the defendant was unlikely to benefit from further psychiatric hospitalisation or detention. He considered that if the defendant was to be released on licence, the defendant would require assertive psychiatric follow up in the community which could be arranged through the prison health service referring the defendant to the Western Adelaide Community Mental Health Service. He said the defendant would need to continue receiving anti-psychotic medication, which should be “under involuntary treatment orders and depo medication”.
Dr Nguyen considered that the defendant required psycho-social rehabilitation options, and structured daily activities, although he acknowledged that that would rely largely on the defendant’s willingness to participate. If unsuccessful, the treating team could consider psychiatric inpatient rehabilitation, probably pursuant to compulsory orders for compliance.
Dr Nguyen also expressed the opinion that in the event that the defendant breached licence conditions, it may be necessary to revoke his licence and commit him to detention to James Nash House in order to obtain psychiatric rehabilitation, particularly given that resources for psychiatric inpatient rehabilitation are scarce. He also recommended that the defendant be directed to participate in drug and alcohol counselling and rehabilitation, and subjected to close screening for illicit drug use through community corrections.
In a report prepared on 15 October 2014 pursuant to s 269T CLCA, Dr Nguyen concluded that whilst the defendant was likely to be opposed to the recommended treatment plan, he was likely to attempt to comply with directions from the Court. Dr Nguyen considered that the defendant’s risk of relapsing into illicit drug use was moderate to high in the short to medium term, and that if that were to happen the defendant’s mental state was likely to deteriorate which may impact on his ability to comply with licence conditions and engage with support services. That would also be associated with an increased risk of recidivism. Dr Nguyen said that if the defendant was able to abstain from illicit drug use his risks would be considerably lower, and he would be more likely to engage in appropriate mental health treatment, and maintain a stable mental state.
Dr Raeside had earlier expressed the view, in a report of 7 May 2014, that the defendant was clearly at risk of ongoing offending behaviour, given his extensive past history, his mental illness combined with an underlying severe personality disorder, and the difficulty in managing his condition. He noted that the defendant was under a Community Treatment Order, which enabled the ongoing provision of regular anti-psychotic medication. Dr Raeside considered that the defendant’s mental health could be optimised by a combination of regular use of appropriately prescribed medication, abstinence from illicit drugs and alcohol, and general support in the community by an experienced probation and parole officer. He considered that the defendant’s prognosis was guarded and described an “unfortunate triad of a formal psychotic disorder, severe personality disorder, and substance abuse” which resulted in a poor prognosis as the psychosis produced impaired insight, the personality disorder rendered the defendant’s compliance and treatment responsiveness difficult, and the substance abuse would lead to a relapse of psychosis.
Dr Raeside recommended assistance with drug and alcohol rehabilitation, and assertive community supervision by the forensic mental health service and a probation and parole officer, in order to help reduce the risk of relapse of mental illness, and to help modify the defendant’s behaviour in order to decrease his risk of re-offending.
The victim and next of kin report was provided by Ms Kontopoulos. She is a qualified social worker, and acting Senior Social Worker in the Forensic Mental Health Service. She has extensive experience in the case management of prisoners, and of forensic patients at James Nash House. Ms Kontopoulos obtained information from the victim of the principal offence, who expressed the view that she wished the defendant to have treatment. She is fearful as a result of the offending committed against her, and has lost confidence residing in her home, walking around in the yard after dark, and being apprehensive about leaving the house, or returning to the house after dark. She sought an order that the defendant not be permitted to enter an area bounded by Greenhill Road, Fullarton Road and Stuart Road, Dulwich.
The defendant’s mother said that she believed the defendant’s condition had improved considerably. She was willing to assist the defendant to attend to treatment requirements in the community. She confirmed that the defendant was able to live with her, subject to strict house rules including no visitors, and a requirement of participation in family oriented activities. She asked that licence conditions be imposed prohibiting alcohol consumption.
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.
It is clear from the s 269R report and the victim impact statement that the victim of the defendant’s principal offending was significantly affected by his behaviour. The offending was committed after the defendant had escaped from Glenside. The victim of the offending, in her detailed victim impact statement, described previously feeling secure in her house, and in travelling to and from her house. She is now nervous, insecure and frightened. She suffered an exacerbation of the symptoms from a pre-existing fracture of her left leg and ankle. She said that the offence committed by the defendant had taken her from a state of serenity in her own house, to one of suspicion, distrust and fear. She suffered monetary losses due to damage to the vehicle, medical expenses and other associated losses totalling almost $6,000.
In considering the sentence that would have been imposed, it is necessary to consider the defendant’s circumstances. The defendant is now 34 years of age. His offending commenced as a 12 year old and he was dealt with in the Children’s Court on charges of damaging property, receiving stolen property, building break and felony, possessing equipment to ingest cannabis, unlawful possession, common assault, bail breaches and bond breaches. As an adult he has convictions for resisting police, break and enter buildings, stating false personal details, using a motor vehicle without consent, driving in dangerous manner, being unlawfully on premises, larceny, driving under disqualification, robbery, assault with intent to resist lawful apprehension, non-aggravated serious criminal trespass non-residential, dishonestly taking property without owner’s consent, possessing an article in suspicious circumstances, driving dangerously to cause police pursuit, numerous bail breaches, and bond breaches. He has served several lengthy sentences of imprisonment.

The defendant is of Aboriginal heritage. The defendant’s father left home before the defendant was born. The defendant has never had contact with him. He did not have a regular stepfather. His three siblings were born to different fathers. He was exposed to domestic violence between his mother and her partners during his tender years. He had a dysfunctional education and was ultimately expelled, having left school at the age of 14 in year nine. He has never been in any form of regular employment. Prior to being incarcerated the defendant was living with his mother and brother. He has a 12 year old son who lives with the defendant’s former partner in Port Augusta.
I turn then to the limiting term. The offences, in combination, are serious. The maximum penalty for Count 1 is imprisonment for 15 years, for Count 2 imprisonment three months or a fine of $1,250, for Count 3 imprisonment for two years or a fine of $10,000, and for Count 4 imprisonment for six months or a fine of $2,500. I do not regard the imposition of a fine as appropriate. Had I been required to sentence the defendant I would have proceeded pursuant to s 18A of the Criminal Law (Sentencing) Act, and imposed a sentence of imprisonment for six years and six months. There can be no discount on the basis of the concession made by counsel for the defendant that the objective elements of the offences are made out.[1] Accordingly, the limiting term is six years and six months. The accused was taken into custody on 30 August 2013. He is entitled to credit for that period in custody, namely one year, two months and 19 days, making the limiting term one of five years, three months and 11 days.
[1] R v Draoui (2008) 101 SASR 267 at [88] per Vanstone J.
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 Nguyen, Dr Raeside, and Dr Begg, and having regard to the fact that the defendant is being treated with a reasonable degree of success, and has a programme in place for the compulsory provision of antipsychotic medication and intensive follow up treatment, I have come to the view, with some degree of caution, that it is not appropriate that Mr Grzybowicz be further detained. However it is not appropriate that he be released unconditionally. Rather, he is to be released on licence 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. 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 five years, three months and 11 days, subject to the conditions contained in the order annexed to these reasons.