R v Hamlyn - [2012] SADC 158

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HAMLYN
[2012] SADC 158
Reasons for the Order of His Honour Judge Soulio
22 November 2012
CRIMINAL LAW
Investigation into mental competence to commit an offence - 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 seven years - 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; Criminal Law (Sentencing) Act 1988 s18A, referred to.
R v Draoui (2008) 101 SASR 267, considered.

R v HAMLYN
[2012] SADC 158

The defendant Brenton John Hamlyn was charged with one count of endangering life, contrary to s 29(1) of the Criminal Law Consolidation Act 1935 (the Act), and one count of arson, contrary to s 85(1) of the Act, committed on 26 May 2011.
Circumstances of the Offending
Just before midday on 26 May 2011 the two residents of a house at Aberfoyle Park, owned by Housing SA, were in the main bedroom of that house when they heard a loud noise and discovered that an object had been thrown through the window. The male resident ran outside and observed the defendant getting into a motor vehicle and driving away. The male resident returned to the house and saw that a fire had started, and noticed a petrol can inside the house. He tried to fight the fire and was partially successful. The fire was ultimately extinguished by fire service officers. The male resident suffered cuts to his left hand and left foot while attempting to extinguish the fire. The fire caused damage with an estimated repair cost of $15,000.
The Hearing
On 12 December 2011 in this Court Mr Hamlyn pleaded not guilty to the charges. Psychiatric reports were ordered, pursuant to Part 8A of the Act, and the matter proceeded to a hearing on 27 July 2012.
Pursuant to s 269B of the 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. Here, the election was made by counsel on behalf of the defendant pursuant to s 269W of the Act.
Mental Competence
I decided to first try the question of the defendant’s mental competence to commit the offence. I proceeded pursuant to s 269F of the Act and received a report dated 22 October 2011 from Dr Raeside, a forensic psychiatrist, who concluded that:
I believe it is likely that Mr Hamlyn was experiencing a mental illness at the time of the alleged offending, namely Paranoid Schizophrenia. I could find no evidence that he would have been unable to know the nature and quality of his actions, or be unable to control his conduct by virtue of any mental impairment.
The crucial issue in considering his mental competence appears to be whether he was able to reason with a moderate degree of sense and composure about the wrongfulness of his actions. He clearly states that he knew that it was unlawful, but at the same time felt not only was he justified, but this was his last remaining option in order to stop the harassment and persecution and threats that he believed these people were making. However, he initially denies lighting the fire, which might be an effort to avoid incrimination at that point.
Consequently, there are some features to suggest that Mr Hamlyn knew the wrongfulness of his actions, but overall on the balance of probabilities, it would be my opinion that his reasoning was impaired by virtue of paranoid delusional elaboration on what might have been real concerns. As such, I believe that his behaviour was heavily influenced by his psychotic symptoms at the time.
I would emphasise that this opinion is on the balance of probabilities and there is not any certainty about it given the lack of information regarding his mental illness, as well as any corroborative information about the nature and extent of the validity of his concerns.
…
Therefore, on the balance of probabilities I would support a mental incompetence defence.
Dr Tomasic, forensic psychiatrist, provided a report dated 20 April 2012. She relevantly said:
In my opinion Mr Hamlyn had an adequate understanding of the nature and quality of his actions.
However in my opinion he could not reason with a moderate degree of sense and composure about the wrongfulness of his actions. He was psychotic with prominent persecutory delusions where he believed he had been harassed and tormented by “junkies” for a prolonged period of time, breaking into his house, and monitoring his home and car and constantly following him. Increasingly he believed that his parents’ house was also being broken into and on the day of the offence that “they were bugging dad’s car” and “lost the plot” and felt he had to do something to stop the ongoing harassment to protect himself and his family. He committed the offence in the middle of the day, in the front yard in full view, knew he had been recognised and went home and made no attempts to hide from police.
There is no evidence to suggest that he could not control his conduct in terms of the Act.
Therefore in my opinion there are grounds for a mental impairment defence based on Mr Hamlyn being unable to reason with a moderate degree of sense and composure about the wrongfulness of his actions.
The decision as to whether it has been established that the defendant was, at the time of the alleged offence, mentally incompetent to commit the offence is to be made on the balance of probabilities.[1]
[1] Section 269F(3) of the Act.
The Director of Public Prosecutions ultimately accepted that the defendant was mentally incompetent at the time of the offending. Having taken into account the opinions of Dr Raeside and Dr Tomasic that the defendant was mentally incompetent at the time of the offending, and whilst noting Dr Raeside’s caution regarding his ultimate conclusion that the defendant was not mentally competent to commit the offences, pursuant to s 269F A(5) the Act, with the consent of both prosecution and defence, I terminated the investigation into the defendant’s mental competence to commit the offence, and recorded a finding that the defendant was mentally incompetent to commit the offences.
Objective Elements
I then proceeded to the trial of the objective elements of the offences pursuant to s 269F B the Act. I received declarations tendered by consent, and heard submissions from both the prosecution and the defence. I was satisfied that the objective elements of the offences were established beyond reasonable doubt, and recorded a finding accordingly.
Pursuant to s 269F B(3) of the Act I found the defendant not guilty of the offences, but declared him to be liable to supervision under Part 8A of the Act.
Division IV Disposition
Reports were provided pursuant to s 269Q(1), s 269T(2), and s 269R of the Act. Further submissions were made by both counsel for the prosecution and counsel for the defendant on 25 October 2012.
Dr Raeside
Dr Raeside reviewed the defendant on 6 September 2012, and provided a supplementary report dated 8 October 2012. The defendant reported, at that time, that he had been sleeping well, and exercising but said that fatigue produced ongoing problems. Dr Raeside expressed the opinion that sleep deprivation is often associated with a relapse of psychotic symptoms in patients with an underlying psychotic illness. The defendant’s paranoid beliefs persisted. However he did not display other evidence of psychosis such as psychotic thought disorder or perceptual disturbances. Dr Raeside noted that the defendant had been in employment, which had helped the defendant’s mental state.
In that supplementary report Dr Raeside made reference to the more extensive medical information by then available to him, and noted Dr Tomasic’s diagnosis that the defendant suffered chronic schizophrenia, and Dr Chin’s diagnosis of paranoid schizophrenia, expressed in a report to which I refer below.
Dr Raeside concluded that although the defendant’s past psychotic symptoms had been influenced by amphetamine use, given the persistent paranoid delusional beliefs, a diagnosis of paranoid schizophrenia was more appropriate. Dr Raeside said that had significant implications for the defendant’s prognosis.
Dr Raeside noted that the defendant’s acute psychotic symptoms appeared to have been in general remission in recent months, despite the persistence of low grade fixed delusional beliefs which Dr Raeside suspected represented residual beliefs that arose at the time of acute psychosis. He noted that the defendant remained convinced that those beliefs were true. Dr Raeside considered, on the basis of the defendant’s history and presentation, that the defendant was likely to undergo relapses, although the frequency and intensity of such relapses could be minimised through appropriate medication and abstinence from illicit drugs.
Dr Raeside recommended community follow up with an experienced psychiatrist to monitor the defendant’s mental state, and the introduction of antipsychotic medication if necessary. He also recommended that the defendant undergo cognitive behavioural therapy, and drug and alcohol rehabilitation supported by periodic urine drug testing.
Dr Tomasic
In her follow up report of 10 October 2012 Dr Tomasic noted that the defendant had lost his employment, and was depressed. The defendant reported having ceased taking antipsychotic medication when he commenced employment in March 2012, and since ceasing that medication had experienced auditory hallucinations. The defendant expressed thoughts to Dr Tomasic that he may have had his employment terminated as a result of his employer being informed about the offences.
Dr Tomasic concluded that the appropriate diagnosis was one of chronic paranoid schizophrenia characterised by persecutory delusions, auditory hallucinations and racing and disorganised thoughts. She noted again the defendant’s history of methylamphetamine abuse but reported, based on a history provided by the defendant, that he had ceased such use in late 2011.
Dr Tomasic considered that there were some positive aspects as to the defendant’s prognosis, including his determination, his ability to abstain from drug use, his strong work ethic, and the fact that he had stable accommodation and the support of his parents. However, she said that a return to drug use would exacerbate the defendant’s psychotic symptoms and worsen his prognosis. The defendant’s reluctance to maintain a consistent use of antipsychotic medication and to avoid psychiatric follow up were also matters of concern.
Dr Tomasic recommended that the defendant be supervised in the community under conditions that he abstain from illicit drugs and alcohol, and that he undergo random drug testing. She considered that the defendant should be required to attend regular medical appointments and take medication as prescribed. She considered that undergoing appropriate treatment, and psychoeducation to improve his insight, would reduce the risk of an exacerbation of his condition, and increase the defendant’s ability to maintain employment and abstain from drug use.
Dr Chin
Dr Evangelina Chin, a consultant psychiatrist at the Noarlunga Health Service, conducted an assessment of the defendant on 21 September 2012 and provided a report dated 3 October 2012. She had access to the declarations, the defendant’s record of interview, previous psychiatric reports, and a hospital discharge summary from the Flinders Medical Centre. She made a provisional diagnosis of paranoid schizophrenia. She considered that, at the time of interview, the defendant was “mentally well” but expressed ongoing paranoid delusional beliefs. Her differential diagnosis was of a delusional disorder with episodes of transient substance induced psychosis.
Dr Chin was also of the view that the defendant should be granted release under supervision. She expressed the opinion that the defendant had the capacity to comply with licence conditions as evidenced by his compliance with bail conditions. She recommended that the conditions of the defendant’s release on licence include the requirement to submit to urine drug testing, that he undergo drug and alcohol counselling, and that he be provided with cognitive behavioural therapy or interpersonal therapy. In the event that the defendant’s mental state deteriorated and he suffered a relapse of his psychosis, she said that he would require assertive follow up through the Mental Health Service.
Community Corrections
In a pre-sentence report, undated but received by the Court on 16 November 2012, Mr Mercer, a community corrections officer, reported as to the defendant’s compliance with assessment and preliminary treatment requirements. Such requirements included attendances at James Nash House Forensic Mental Health Department for assessment for medical treatment on 6 November 2012, an attendance at DASSA for assessment for Alcohol and Other Drugs relapse prevention counselling, and an attendance at the Adaire Clinic on 14 November 2012 for the allocation of a mental health care worker and for review of medication needs. The defendant complied with all such directions.
In addition, the defendant attended for supervision by his community corrections officer on 7 and 14 November 2012, and was described as polite, open and engaging.
Mr Mercer expressed the opinion that the defendant required treatment for drug addiction, and for his mental disorder, and said that the defendant’s risk of re-offending could be significantly reduced through intensive support and rehabilitation in the community.
In considering the appropriate disposition of this matter regard must be had to a victim and next of kin report. However, the two people subjected to the attack by the defendant were either not contactable, or reluctant to provide a statement. No representative of Housing SA provided a statement. The defendant’s father did not wish to be interviewed.
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. The limiting term is to be fixed on the basis of the head sentence that would have been imposed.
The defendant is now 41 years of age. He has never married. He lives in rented accommodation in his sister’s house. He has performed volunteer work. He has previously been in receipt of a disability support pension.
He has convictions, although now some 20 years ago, for producing and possessing cannabis for which he was fined, a drink driving offence some 15 years ago, and had committed the offence of assault some six years ago, for which he was placed on a bond to be of good behaviour, without a conviction being recorded. He appears to have attended to the terms of that bond, the present offences having been committed shortly after the expiry of that bond.
The offences are extremely serious, and quite clearly endangered the lives of the occupants of the house in question. The maximum penalty for endangering life is imprisonment for 15 years, and for arson, imprisonment for life.
Had I been required to sentence the defendant I would have proceeded to s 18A of the Criminal Law (Sentencing) Act and imposed a single penalty of imprisonment for seven years. There can be no discount on the basis of the concession made by counsel for the defendant, that the objective facts of the offences are made out.[2] Accordingly the limiting term must be seven years.
[2] R v Draoui (2008) 101 SASR 267 at [88].
Options
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 condition.[3]
[3] Section 269O of the Act.
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.[4]
[4] Section 269S of the Act.
Having considered the material to which I have earlier referred, on the basis of the opinions expressed by Dr Raeside, Dr Tomasic, and Dr Chin, the defendant’s compliance with supervision requirements as reported by Mr Mercer, and the defendant’s compliance with bail conditions, I have come to the view that it is not appropriate that the defendant be 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 I have adopted was not opposed by counsel for the DPP.
Licence Conditions
Various recommendations have been made relating to the future supervision of the defendant. On the basis of those recommendations, counsel for the DPP and 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. I incorporate them into the following orders:
Orders
1.That the defendant be subject to a supervision order pursuant to Section 269O(1)(b)(ii) of the Act.
2.That the defendant be released on licence subject to the following conditions:-
(a)That the defendant be under the care and direction of the Clinical Director, Forensic Mental Health Service (“The Director”), or a consultant psychiatrist nominated by him or her (“the nominee”), and obey any directions given to him from time to time with regard to medical and psychiatric treatment and medication.
(b)That the defendant be under the supervision of a Community Corrections Officer assigned by the Parole Board of South Australia and comply with the lawful directions of that officer or the Board with respect to non-medical matters. The defendant is to report to the Noarlunga Office of the Department for Correctional Services at 1/12-18 David Witton Drive, Noarlunga, within two working days of signing this order to initiate such supervision.
(c)That the defendant not use, possess or administer any narcotic or psychotropic drug unless medically prescribed by a legally qualified medical practitioner, and further, that any drugs which are prescribed to the defendant by a medically qualified practitioner be possessed or administered by the defendant only at prescribed or recommended dosages.
(d)That the defendant not consume alcohol.
(e)That the defendant’s case be managed by the Forensic Community Mental Health Team and that the defendant comply with all the lawful directions of that team, particularly with respect to attendances at all appointments nominated by that team.
(f)That, at the discretion of the Director or nominee, and at such time when the Director or nominee sees fit, the defendant’s case management be transferred to a local Community Mental Health Team and that the defendant comply with all directions of that team.
(g)That the defendant shall submit himself for breath and or urine testing as directed by his Community Corrections Officer, for the purpose of determining whether there is present in his body any illicit or non-prescribed drug.
(h)That the defendant reside initially at 41 Miller Drive, Happy Valley, and that he not thereafter change his residence without the permission of the Parole Board.
(i)That the defendant not depart or attempt to depart from the State of South Australia without the prior written permission of the Parole Board.
(j)That the defendant not approach or contact, directly or indirectly, the victims of his offending and not attend at 24 Maple Avenue Aberfoyle Park.
3.In the event that the Director, or the Director’s nominee, or the Presiding Member of the Parole Board, or the Presiding Member’s nominee is of the opinion that the defendant has contravened, or is likely to contravene a condition of this order, that person who becomes so aware, shall immediately notify the Director of Public Prosecutions of that opinion.
3AIf the Director of Public Prosecutions is notified by the Director or the Director’s nominee, or the Presiding Member of the Parole Board, or the Presiding Member’s nominee in accordance with Order 3 above, the Director of Public Prosecutions may make an application to this Court for a review of the supervision order which in cases of urgency may be made at short notice.
4.That the defendant, the Director of Public Prosecutions (on behalf of the Crown) and the Parole Board shall be at liberty to apply at any time and from time to time, as they may be advised, at short notice to the other to vary or revoke this order or seek any other order in substitution thereof.