R v HEAL - [2013] SADC 87

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v HEAL
[2013] SADC 87
Reasons for Ruling of His Honour Judge Soulio
4 July 2013
CRIMINAL LAW
Investigation into fitness to stand trial on charges of indecent assault, failure to comply with bail agreements and damage property - decided that defendant unfit to stand trial - decided that the objective elements were established beyond reasonable doubt - supervision order made.
Defendant released on licence with a limiting term of two years, 10 months, and one week, after taking into account time in custody.
Criminal Law Consolidation Act 1935 Part 8A, referred to.
R v Draoui (2008) 101 SASR 267, considered.

R v HEAL
[2013] SADC 87

The defendant was charged with one count of indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (‘CLCA’), committed on 30 August 2011 at Campbelltown.
He had originally been charged with rape on the basis that it was alleged that he had inserted his fingers into the vagina of the adult complainant. The charge of indecent assault was laid in the alternative, and the Director of Public Prosecutions (‘the DPP’) has proceeded on that charge on the basis that it could not be established beyond reasonable doubt that there was penetration.
The defendant had been living with the complainant and her partner at the time of the offending. At about 7.30am on the morning of the offending, after the complainant’s partner had left the house, the defendant went into the complainant’s bedroom, where the complainant was in bed, and put his hand under the bed covers and inside her underwear. She pushed him away and he then left the room.
During the course of proceedings in this Court I was informed that the defendant was also charged with a series of offences being dealt with in the Magistrates Court. I called for those matters, which I list chronologically as follows:
·20 February 2011 – failure to comply with bail agreement by breaching non-contact condition.
·September 2011 – failure to comply with condition of bail by breaching curfew condition.
·17 September 2011 – failure to comply with bail agreement by breaching curfew condition.
·13 October 2011 - failure to comply with bail agreement by breaching curfew condition.
·15 October 2011 - failure to comply with bail agreement by breaching curfew condition.
·13 February 2012 - failure to comply with bail agreement by breaching curfew condition.
·15 March 2012 – damaging property.
The circumstances of the bail breaches are generally self-explanatory. The charge of damaging property gives some cause for concern. The defendant attended at the victim’s shop on Woodville Road at Woodville inquiring as to whether she wished her car to be cleaned. She declined. About an hour later she heard a noise at the back of the shop, and upon investigating saw the accused standing outside ripping the screen from the rear door. The victim confronted the defendant and advised him that she would call the police. Police attended, and later located and arrested the defendant.
Court Proceedings
The defendant first appeared in this Court on 5 March 2012. His arraignment was deferred pending determination of the issue of his fitness to stand trial. Section 269 CLCA provides that if there are reasonable grounds to suppose that a person is mentally unfit to stand trial, the court may order an investigation into that issue.
On the basis of the report of Mr Reid, a forensic neuropsychologist, dated 17 January 2012, I formed the view that there was a potential issue as to the defendant’s mental fitness to stand trial and ordered an investigation.
The defendant, through his counsel, elected for trial by judge alone, pursuant to s 269B(1) CLCA. Pursuant to s 269L CLCA, I decided to proceed first with a trial of the defendant’s mental fitness, prior to embarking on a trial as to the objective elements of the charge.
Mental Fitness to Stand Trial
The defendant bears the onus of displacing the presumption of mental fitness to stand trial, pursuant to s 269I.[1] The defendant relied on the report of Mr Reid, and a report of Mr Balfour, forensic psychologist, dated 17 May 2012.
[1] Section 269I CLCA.
Mr Reid assessed the defendant at Yatala Labour Prison and noted that the defendant had at some stage been diagnosed with schizophrenia, and had been originally admitted to Hillcrest Hospital, in a closed ward at Davenport House. Mr Reid administered the Wechsler adult intelligence scale test. He assessed the defendant as having verbal intelligence quotient of 63, placing the defendant at the first percentile. Mr Reid did not assess the defendant’s non-verbal intelligence as it was difficult to maintain the defendant’s attention in the prison setting.
Mr Reid formed the view that it was very difficult to interview, assess or obtain a reasonable history from the defendant. He described the defendant as operating with very low intellectual capacity, and presenting with child-like regressed behaviour. He considered the defendant to be somewhat manipulative in an unsophisticated manner, trying to control the situation by interruption, distraction or flippant comment.
Mr Reid concluded that the defendant qualified for a diagnosis of mental impairment within s 269 CLCA due to his intellectual disability. He expressed the opinion that the defendant had difficulty in being able to understand and respond rationally to the charge of rape as well as the allegations on which the charge was based. He did not consider the defendant had the intellectual capacity to provide rational instructions about procedural rights in court. He did not consider that the defendant would be able to understand or follow the evidence or the course of proceedings. Mr Reid considered that, given the long standing nature of the defendant’s intellectual impairment, his condition was permanent.
Mr Balfour described the defendant as angry, defensive, stubborn, surly and defiant. He also assessed the defendant as being intimidatory and manipulative, and concluded that the defendant was a street-wise man with an intellectual disability.
Mr Balfour accepted, on the basis of the documentation provided, that the defendant may have a history of psychosis being treated by antipsychotic medication. He also considered however that the defendant had a history of manipulative behaviour with feigned psychotic symptoms and suicide attempts that were performed in order to gain admission to hospital. He ultimately concluded that the primary diagnoses were of a personality disorder characterised by borderline and dependent traits, and an intellectual disability. On the basis of Mr Reid’s assessment, Mr Balfour agreed that, on the balance of probabilities, the defendant’s intellectual disability would satisfy the legal definition of a mental impairment.
Further, Mr Balfour expressed the opinion that, on the balance of probabilities, the defendant was unfit to stand trial. Although the defendant might be able to provide some legal instructions, these would be inconsistent and insufficient. Further, the defendant would experience problems following the course of legal proceedings or understanding the gist of the evidence. He would be prone to suffering information overload and dissociate from the proceedings, or potentially act in a contemptuous or disruptive manner. He agreed that the defendant’s intellectual disability was a permanent neuro-developmental disorder.
Having considered the reports, and with the agreement of counsel for the prosecution and defence, I terminated the investigation and recorded a finding that the defendant was mentally unfit to stand trial.
Objective Elements of the Offences
I then proceeded to the trial of the objective elements of the offences, pursuant to s 269NB CLCA. The prosecution and defence, having agreed that the objective elements of the offences were made out, and having regard to the declarations filed in relation to the principal charge, and the apprehension reports tendered in relation to the Magistrates Court charges, I found, beyond reasonable doubt, that the objective elements of the offences were made out.
Division IV Disposition
Reports to which I refer below were provided pursuant to ss 269Q(1), 269T(2), and 269R(1) CLCA. Further submissions were made by counsel for the prosecution and the defendant on 14 June 2013.
Dr Field, a clinical neuropsychologist reported on 7 May 2013 that the appropriate diagnosis and prognosis were of a long standing mental retardation with probable personality disorder and probable conduct disorder. He agreed with the treatment plan suggested by Mr Reid. He emphasised the need for the defendant to remain compliant with medication to manage the presumed psychotic symptoms. He also agreed with Mr Reid’s suggestion as to having a support person to monitor the defendant’s progress in the community, and to prompt the defendant to adhere to his management plan.
In his addendum report of 8 May 2013 Dr Field noted a history of some offending behaviour on release, which he presumed was associated with the defendant’s failure to adhere to the required medication and treatment regimes. He considered that the defendant would comply with the conditions of a release on licence, if such conditions were sufficiently and clearly explained to the defendant, and reinforced on an ongoing basis by the appointed carer.
Mr Reid’s confirmed his earlier diagnosis in his report of 18 May 2013. He considered that the question of whether the defendant might pose a danger to other persons depended upon the success of any treatment or management regime imposed. He considered that without appropriate management the risk of re-offending would increase significantly as it has in the past. He said treatment should involve not only management, but maintenance of the medication regime.
Mr Reid highlighted the need for a combination of stable accommodation, and appropriate support systems to monitor and manage the defendant’s behaviour. He again recommended the provision of a carer who could be contacted by the defendant, rather than having the defendant go to an emergency health department. He did not consider that a full time carer was required, but rather suggested a resource person be made available as needed. He also considered that there was a requirement that there be regular consultation with a treating psychiatrist. Mr Reid recommended that be Dr Nambiar. He also considered that supervision by a community corrections officer with a regular reporting requirement would be of assistance.
Mr Reid concluded that the defendant was likely to comply with the conditions of a licence in the event that monitoring and management of his behaviour and his treatment were coordinated. Mr Reid expressed the opinion that when the defendant perceives difficulties and cannot have access to support services at times of high need he tends to behave inappropriately, including potentially engaging in offending behaviour.
Mr Reid had earlier provided a report, dated 26 April 2012, in which he suggested a treatment plan which included the provision of stable accommodation, and support systems to monitor and manage behaviour including access to a carer as required. He also recommended regular consultation with a treating psychiatrist with regard to medication needs and in order to monitor the defendant’s mental state.
Dr Milosevic, a consultant psychiatrist, reported on 7 June 2013 that at the time of her assessment the defendant did not exhibit signs of mental illness, and that his diagnosis was unclear. She accepted that the defendant had a long standing intellectual disability.
She agreed with Dr Field’s recommendations regarding adherence to a medication regime, and agreed that support by a carer should be provided in order to, amongst other things, ensure mental health follow up. She considered that it was necessary to have a definitive diagnosis to establish whether the defendant had an ongoing mental illness in order to develop a proper mental health treatment plan. She expressed the opinion that if there was a definitive diagnosis and a mental health problem was identified, the appropriate treatment would minimise the defendant’s hazardous behaviour. Alternatively, if there is no mental health problem, and only a residual intellectual disability, then the appropriate intervention could be put in place to deal with behavioural issues arising from the intellectual disability.
I received two reports from Ms D’Alessandro, an experienced senior social worker at James Nash House, pursuant to s 269R CLCA.
The first, dated 7 February 2013, noted that the victim of the principal offending reported that the defendant had approached her on a number of occasions. The victim requested that the court consider including a condition of licence restricting the defendant from approaching or making contact with her. In her subsequent report of 13 June 2013, Ms D’Alessandro reported having spoken to the victim, who again advised that the defendant had approached her and attempted to speak to her.
There are no next of kin, or at least none identified to Ms D’Alessandro.
The defendant, it appears, associates with a social circle of people who may also have intellectual disabilities, or mental health problems. The group congregate in the city. Many of them are usefully engaged in selling a magazine known as ‘The Big Issue’. The circle of people with whom the defendant associates includes, or has included, the victim of the offending. Compliance with an order restricting him from approaching the victim may well be problematic, particularly given the defendant’s limited intellectual functioning.
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.
Personal Circumstances
The defendant is now aged 45 years. Dr Field had difficulty obtaining a personal history from the defendant. The defendant told Dr Field that he was self employed as a car detailer, although, having regard to his behaviour in relation to the offence of property damage, that would seem to be illusory. Dr Field noted that the defendant propositioned Dr Field’s receptionist with regards to washing and detailing her car.
The defendant told Mr Reid however that he was born in Bendigo and that he had a number of siblings. He said he had a cousin in Adelaide. He did not want to talk about his parents. He said he was the victim of sexual abuse at the hands of his father. He said he was educated at Bendigo Primary School, apparently up until about year 9, but was in special classes throughout his education. He said he worked at McDonalds from the age of 14 years until he was 17 years of age. He then came to Adelaide to visit his cousin. He said he carried out volunteer work and car washing work before being placed on a disability support pension. Mr Reid understood that the defendant was under an administration order by the Guardianship Board. Mr Reid noted that the defendant lived a semi-itinerant lifestyle, staying in various boarding houses in Adelaide, prior to his offending.
The current offending, in combination, is serious. The maximum penalty for the offence of indecent assault is eight years imprisonment. The maximum penalty for each count of breaching bail is a fine of $10,000 or imprisonment for two years. The maximum penalty for offence of damage property is 10 years imprisonment.
In imposing a limiting term there can be no discount on the basis of a concession made by counsel for the defendant that the objective elements are made out.[2] Had I been required to sentence the defendant I would have imposed a single penalty, pursuant to s 18A of the Criminal Law (Sentencing) Act of imprisonment for three years. Accordingly the limiting term must be three years. After taking into account seven weeks spent in custody the liming term becomes two years, 10 months and one week.
[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 subject to conditions.[3]
[3] Section 269O CLCA.
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 of 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 CLCA.
Having considered the material to which I have earlier referred, and on the basis of the opinions expressed by Mr Reid, Dr Field, Mr Balfour, and Dr Milosevic, and taking into account the contents of the reports from Ms D’Alessandro, I have somewhat cautiously come to the view that it is not appropriate that the defendant be detained. It is clearly not appropriate that he be released unconditionally. Rather, he is to be released on licence subject to a number of strict conditions. I note that 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 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. I incorporate them into the following orders:
1.That the defendant be subject to a supervision order pursuant to s 269O(1) CLCA.
2.That the defendant be released pursuant to s 269O(1)(b)(ii) CLCA subject to the following conditions of licence:-
(1)That during the period of his release on licence, the defendant be under the supervision of an Officer of the Department for Correctional Services appointed by the Parole Board of South Australia and obey all lawful directions of his supervising officer with respect to non-medical matters; and for that purpose the defendant is to report within two working days to the Office of the Department for Correctional Services closest to his place of residence, and thereafter report to his supervising Correctional Services Officer as directed.
(2)That the defendant obey all reasonable directions of his supervising Correctional Services Officer with respect to attendance at programs and counselling as directed and as to his place of residence.
(3)That the defendant notify his supervising Correctional Services Officer of any proposed change of address prior to changing his residential address.
(4)That the defendant be under the care and supervision of the Clinical Director of the Forensic Mental Health Service of South Australia (‘the Director’) or a consultant psychiatrist nominated by him, and that the defendant abide by all directions of the Director or his nominee in relation to his psychiatric treatment, including directions as to the taking of medication, attendance at appointments, and as to his compliance with the treatment plan devised for him under s 269Q CLCA.
(5)That the defendant be psychiatrically reviewed regularly by a consultant psychiatrist nominated by the Director and, in particular, that for at least the first 12 months of the supervision order the defendant be psychiatrically reviewed at three-monthly intervals.
(6)That the defendant comply with all lawful directions given to him by his Carer, Key Worker and/or other mental health staff of the Community Mental Health Service nominated by the Director or his nominee to monitor his mental health supervision.
(7)That the defendant not leave the State of South Australia without permission from his treating psychiatrist and the Parole Board.
(8)That the respondent not approach or contact, either directly or indirectly, Nadia Lengs.
(9)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 respondent has contravened, or is likely to contravene, a condition of this order, the Director or the Director’s nominee, or the Presiding Member of the Parole Board or the Presiding Member’s nominee shall notify forthwith the Director of Public Prosecutions of that opinion.
(10)If the Director of Public Prosecutions is notified by the Director of the Director’s nominee or by the Presiding Member of the Parole Board or the Presiding Member’s nominee in accordance with order 8 above, the Director of Public Prosecutions may forthwith make an application to this court for a review of the supervision order which in cases of emergency may be made at short notice.
3.And further I fix a limiting term of two years, 10 months, and one week pursuant to s 269O(2) CLCA.