R v Haines - [2009] SASC 88

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAINES
[2009] SASC 88
Judgment of The Honourable Justice Gray
3 April 2009
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON CUSTODIAL ORDERS
MENTAL HEALTH - CONFINEMENT AND RESTRAINT OF MENTALLY ILL PERSONS AND SIMILAR ORDERS - GENERALLY
On 9 October 2008 defendant found not guilty of offence of attempted murder by reason of mental incompetence - objective elements of offence established beyond reasonable doubt - fixing of supervision order deferred.
Held: supervision order made pursuant to section 269O of the Criminal Law Consolidation Act 1935 (SA) on basis of three psychiatric reports - defendant released on licence with conditions designed to ensure adequate monitoring and treatment - 10 year limiting term imposed.
Criminal Law Consolidation Act 1935 (SA) s 11, s 269FB(3), s 269T(2)(a), s 269O, s 270A, referred to.
R v Draoui (2008) 101 SASR 267; R v T (1999) 75 SASR 235, considered.

R v HAINES
[2009] SASC 88
Criminal
GRAY J.

Garry Haines was charged on Information with the offence of attempted murder pursuant to sections 11 and 270A of the Criminal Law Consolidation Act 1935 (SA). The particulars alleged against him were that between 24 and 25 December 2004 at Woodville Gardens, he attempted to murder his brother, Lynton Haines.
On 9 October 2008, following a trial by Judge alone, I acquitted Mr Haines of the charge of attempted murder on the ground of mental incompetence. I then proceeded to consider the objective elements of the offence and on the same day found that the objective elements had been established beyond reasonable doubt. I recorded those findings pursuant to section 269FB(3) of the Criminal Law Consolidation Act. At that time, I deferred my consideration of the making of a supervision order and directed that Mr Haines’ bail continue.
On 9 October 2008 pursuant to section 269T(2)(a) of the Criminal Law Consolidation Act I ordered the preparation of three psychiatric reports to enable consideration as to whether a supervision order should be made and whether Mr Haines should be released on licence.
Dr Strobel reported on 21 November 2008. This report was written against the background of his earlier reports of 21 July and 25 August 2008. Dr Strobel concluded his report with the following observations:
Mr Haines is a single man with a long history of Chronic Paranoid Schizophrenia who lives with his intellectually disabled older brother in supported accommodation.
Symptomatically he suffers of persecutory delusions, which are only partially responsive to treatment with a chronic moderate level of worry and weariness, compounded by features of compulsive behaviours, however he has learned self management skills to contain his anxiety and worry, mainly be [sic] focussing on valued activities like painting, walking, watching movies and a positive mindset focussing on hope and gratitude that is imbedded in his faith.
…
Mr Haines lives in supported accommodation. He has a good rapport with the manager and his medication is supervised. Dr Bisazza reviews him psychiatrically on a 2-monthly basis.
The level of supervision, the genuinely positive relationship with his brother and the self‑management skills, which he conscientiously puts in practice, give raise [sic] to the expectation that a repeat of an instance like the current issue before the court is most unlikely to occur again.
The main elements therefore, to keep him and others safe are:
Continued adherence to medication in cooperation with Dr Bisazza at Beaufort Clinic
Continued residence in a supervised setting where the manager of that facility supervises medication.
Reinforcement of his positive skills and self-management strategies.
Dr Nambiar reported on 19 November 2008 and his opinion and recommendations were as follows:
Mr Haines has a diagnosis of Chronic Paranoid Schizophrenia which appears to have responded reasonably well to Clozapine. It has been a number of years since the offence occurred , and Mr Haines appears to have improved considerably in relation to his level of functioning. However he is still somewhat disabled in terms of his level of independence. Nonetheless, given the support he receives from Mental Health Services, non-government agencies and his father, I am of the view that Mr Haines’ risk of re-offending has been substantially reduced.
I believe Mr Haines can continue to be managed in the community. Should licence conditions be agreed to I believe they should include that Mr Haines continues to abide by treatment as directed by Western Community Mental Health Services and should there be any deterioration in his mental health that it would be in his best interest to be managed initially through Western Mental Health Services as a least restrictive practice.
Naturally, should Mr Haines’ mental state deteriorate to a point where the risk to himself or others cannot be contained in a general mental health unit, at that point consideration can be given to reviewing his licence conditions with regard to the need for continued detention in a Forensic facility.
Dr Tomasic reported on 25 November 2008 and her diagnosis was as follows:
Mr Haines has a diagnosis of Chronic Paranoid Schizophrenia with chronic symptoms of paranoid delusions, psychotic thought disorder, and social isolation. He also has a history of Alcohol Abuse at the time of the offence. At the time of the offence he attempted to kill his brother believing that he was saving him, based on paranoid delusions where he felt they were both in danger.
Her prognosis, conclusion and recommendations were as follows:
Mr Haines has a moderate prognosis. Although he has had chronic psychotic symptoms and a poor general level of functioning and acted on his delusional beliefs when he attempted to kill his brother. However, he is now on Clozapine, an antipsychotic medication used in treatment resistant schizophrenia, and has had a good response to date. His alcohol use has also reduced and this is important in preventing a relapse.
Dr Strobel in his report recommends that Mr Haines remain in the community in his supported accommodation where his medication is supervised, see Dr Bisazza on a regular basis and take medication as prescribed.
I agree with this, but would also highlight that he requires frequent close monitoring to detect any deterioration early. Although he gets on with his brother, the fact that they live in the same room, that when unwell he attempted to kill his brother in the past, reinforces the need for intensive community mental health care to minimise the risk of this recurring. Alcohol abuse contributed to his deterioration at that time, and it is essential that he abstain from alcohol use.
These opinions have led me to the conclusion that I should make a supervision order pursuant to section 269O of the Criminal Law Consolidation Act. That section provides as follows:
(1)The court by which a defendant is declared to be liable to supervision under this Part may—
(a)   release the defendant unconditionally; or
(b)   make an order (a "supervision order")—
(i)     committing the defendant to detention under this Part; or
(ii)releasing the defendant on licence on conditions decided by the court and specified in the licence.
(2)If a court makes a supervision order, the court must fix a term (a "limiting term") equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court's opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established 1 .
(3)At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.
Note—
1The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant's mental impairment.
For reasons to be discussed later I consider it appropriate to order the release of Mr Haines on licence on conditions to provide for his further treatment and supervision, so as to ensure that the community is adequately protected.
Pursuant to section 269O(2) I propose fixing a limiting term. In this respect I am required to fix that limiting term by reference to the sentence that would have been imposed if Mr Haines had been found guilty of the offence of attempted murder, without taking into account his mental impairment.
Notwithstanding that the rationale for fixing a limiting term is clear, the process of doing so has been described as an “artificial exercise”.[1] To fix a limiting term by reference to a sentence that would have been imposed had the defendant been found guilty of the relevant offence without taking account of mental impairment is necessarily contrived. Mental impairment is relevant to many factors that could arise in the normal sentencing process.
[1] R v Weiss [2005] SASC 338 at [9] (Bleby J).
Since the insertion of Part 8A into the Criminal Law Consolidation Act, there has been limited judicial discussion of section 269O(2). Doyle CJ, with whom Debelle and Wicks JJ concurred, discussed the fixing of a limiting term in R v T.[2] Doyle CJ observed:[3]
I consider that s 269O makes it clear, by note 1, that in fixing the limiting term the court must not take account of the defendant’s mental impairment. That meant that it was not appropriate to consider the mental impairment from which [the defendant] was suffering, and accordingly it was not appropriate to sentence him on the basis that he was a person of seriously diminished responsibility. In fixing the limiting term it was appropriate for the Judge to have regard to all matters that would usually be relevant to the fixing of a sentence for the offence, but not to have regard to matters that were based upon or arose out of [the defendant’s] mental impairment.
It may be that in fixing the limiting term the Court does not engage in exactly the same process that it does when imposing a sentence. Note 1 requires the Court to fix a limiting term “by reference to the sentence that would have been imposed”. But, in my opinion, one cannot say that the Judge should not have regard to a matter such as general and personal deterrence when fixing a limiting term under this provision. I agree that the result may seem harsh, but the terms of the provision are clear. As well, it is important to bear in mind the flexible regime for treatment that is envisaged under Pt 8A…[I]t is relevant to bear in mind that the limiting term does no more than fix the period during which [the defendant] may be subjected to restraints under Pt 8A.
[2] R v T (1999) 75 SASR 235.
[3] R v T (1999) 75 SASR 235 at 242.
Section 269O(2) obliges a court to fix a term equivalent to “the period of imprisonment ... that would, in the court’s opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established”. However, note (1) makes it plain that the equivalent term is to be fixed “by reference to” the sentence that would have been imposed. The phrase “by reference to” introduces some elasticity into the process.
The legislation requires a court to engage in a hypothetical exercise of determining what sentence would have been imposed had a defendant been convicted of the offence of which the objective elements had been established, without taking into account consideration of the defendant’s mental impairment. This is a difficult task. When sentencing for a crime such as murder or attempted murder, a defendant’s mental state must be considered by the court. That mental state is relevant to and permeates many of the factors to be considered in the sentencing process.
Counsel accepted that having regard to the observations of the Court of Criminal Appeal in Draoui,[4] no regard may be had to Mr Haines’ co‑operation in the trial process. Relevantly Vanstone J observed:[5]
[4] R v Draoui (2008) 101 SASR 267.
[5] R v Draoui (2008) 101 SASR 267 [65]-[69].
The reference in s 269O(2) to “the period of imprisonment … that would … have been appropriate if the defendant had been convicted of the offence …” must be taken to attract the factors enumerated in s 10 Criminal Law (Sentencing) Act 1988, so far as they “are relevant and known to the court”: s 10(1) Sentencing Act. For the reasons which follow I consider that the factor found in s 10(1)(g) — the fact of a plea of guilty — cannot be relevant to the task contemplated by s 269O(2) CLCA.
In my opinion the words “… a term … equivalent to the period of imprisonment … that would … have been appropriate if the defendant had been convicted …” in s 269O(2) cannot accommodate the reduction in sentence which would have been given to a defendant who had pleaded guilty. What the section requires is an exercise or calculation which is hypothetical. It is hypothetical first, because in determining what sentence would otherwise have been imposed no account is to be taken of the defendant’s mental impairment and second, because it is based on the premise that the defendant had been found guilty of the offence. He has not been. Under the legislative framework he has either been found mentally incompetent and therefore not guilty, or mentally unfit to stand trial.
It would be contrary to the thrust of the legislation to assume those two false premises as required, but then have regard to the way the trial of the objective elements was conducted and use that conduct to reduce the figure otherwise reached. I say that because to do so would be to go behind one of the false premises which the judge is required to act upon and to build into it an antecedent step. This would require the judge to reason in this way: I am to determine the sentence I would pass for this offence if a mentally sound person (otherwise of the defendant’s characteristics) were found guilty of it, but because he made admissions on his trial of the objective elements, I shall go further and incorporate an assumption that he was found guilty on his own confession. To me this is illogical. Therefore I do not think the way the trial of the objective elements was conducted is permitted by the section to play any part in the hypothetical calculation of the sentence.
I do not consider this result is either harsh or surprising. A court fixing a limiting term under this section is not imposing a penalty. The purpose of the supervision order is not to penalise, but to both protect the public and to secure to the defendant such supervision and treatment as is available and appropriate. As Doyle CJ said in R v T (1999) 75 SASR 235 at 242:
As well, it is important to bear in mind the flexible regime for treatment that is envisaged under Pt 8 A. There is no denying the impact that the fixation of a limiting term might have on [the defendant]. But it is relevant to bear in mind that the limiting term does no more than fix the period during which [the defendant] may be subjected to restraints under Pt 8 A.
Furthermore, s 269P allows the court, at a later time, to “vary or revoke a supervision order” and to substitute any other order which might have been made in the first instance. Therefore, if a supervision order is found to be unnecessarily restrictive, its terms can be varied.
I digress to say that there may be difficulty in having regard to some of the other factors relating to the defendant listed in s 10(1) Sentencing Act. For example, s 10(1)(j) (deterrent effect), (k) (adequate punishment) and (m) (rehabilitation) can only be applied to this task at the cost of some further artificiality. Reference to the defendant’s mental impairment, 10(1)(l), is, as mentioned, specifically precluded by the Note to s 269O(2) CLCA. Arguably, that would mean that nothing about his mental condition should be taken into account when addressing the s 269O task.
The circumstances giving rise to the charge of attempted murder were that Mr Haines provided an overdose of drugs to his brother sufficient to have caused his death. On 24 December 2004, Mr Haines gave his brother a glass of water in which he had tried to dissolve a large quantity of the prescribed anti-psychotic drug Olanzapine. Mr Haines told his brother that the drink would give him some energy. Following the instruction of Mr Haines, his brother ingested the drink. It was in these circumstances that I made the finding that the objective elements of the offence had been established. I have reached the conclusion that it is appropriate to fix a limiting term of 10 years to commence today, 2 April 2009.
The next of kin report together with declarations tendered to this Court disclose that Mr Haines’ conduct occurred in very sad circumstances. Both Mr Haines and his brother have at all material times suffered from mental impairment. Mr Haines’ brother is intellectually disabled and apparently has no appreciation of Mr Haines administering an overdose of drugs to him. At the time, Mr Haines and his brother shared accommodation. Their mother passed away several years previously. Their father lived in separate accommodation but maintained regular contact with them. Apparently Mr Haines decided to attempt to end his brother’s life through the overdose. The history taken by Dr Tomasic in this respect was as follows:
Mr Haines said that at the time of the offence he had paranoid thoughts that someone was going to hurt him and would hurt his brother. He “had the idea my brother was in danger” and was “trying to suicide him” by giving him over 50 olanzapine (an antipsychotic) tablet mixed with water. Mr Haines said he was “mental as anything and waiting for him to go to sleep”, until finally calling for help in the early hours of the morning.
The next of kin report has been provided from information coming from the father of Mr Haines and his brother. Apparently Mr Haines’ brother would be distressed by any form of interview due to his intellectual disability. Since being on bail, Mr Haines and his brother have continued to live together with Mr Haines providing a level of care to his brother. The report from the Senior Social Worker concluded with the final observation:
Mr Haines informed me that he had been surprised by the offending and had no imagines that the defendant would have harmed his brother. He had noted a significant improvement in mental state since the offending and had demonstrated compliance with his treatment plan. Mr Haines has requested that the defendant’s current treatment plan be upheld and that his contact with Dr Bisazza be increased to monthly contact to ensure long-term stability. He also felt it was crucial that the defendant and his brother continue to reside together as their relationship was strong and had encouraged further improvements in their individual functioning.
Having regard to the psychiatric evidence and the next of kin report, both counsel agreed that it would be appropriate for Mr Haines to be released on licence with conditions designed to ensure that he is properly monitored and treated. In the circumstances I agree that this is an appropriate course to be followed. I direct that Minutes of Order be prepared setting out the proposed conditions of the licence for the consideration of the Court.
Conclusion
Having regard to the foregoing, I fix a limiting term of ten years. Mr Haines is to be released on licence with conditions to be approved.