R v K, B

[2014] SADC 200

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v K, B

[2014] SADC 200

Judgment of His Honour Judge Tilmouth

20 November 2014

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY

Proper disposition and appropriate limiting term on charges of arson and assault with respect to a defendant declared mentally unfit to commit the offences, considered and discussed.

Criminal Law Consolidation Act 1935 (SA) s 10, s 20(3), s 85(1), s 269FA(5)(a) & (b), s 269O(2), s 269Q, s 269R, s 269T(2)(c); Criminal Law (Sentencing) Act 1988 (SA) s 10; Summary Procedure Act 1921 (SA) s 5(3)(a)(iii); Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251; R v Behari (2011) 110 SASR 147; R v Bober (No 3) (2010) 107 SASR 165; R v T (1999) 75 SASR 235; R v Sumner [2010] SASC 43; R v Draoui (2008) 101 SASR 267; R v Bartholomaeus [2006] SASC 13, referred to.

R v K, B
[2014] SADC 200

1. K, B is before the court facing charges of arson of a building contrary to s 85(1) of the Criminal Law Consolidation Act 1935 (SA) and a basic summary offence of assault contrary to s 20(3) thereof. The maximum penalty for arson is life imprisonment and for the assault is two years.

2. To each charge he has pleaded not guilty on the grounds of mental incompetence. Through his counsel he admitted and the court has found proven, the objective elements of each offence and dispensed with further investigation into his mental competence. Subsequently the court proceeded to record a finding that he was mentally incompetent to commit the offences under s 269FA(5)(a) & (b) of the Criminal Law Consolidation Act and declared him liable to supervision thereunder. The various reports required by ss 269Q, 296R and 269T(2) have since been ordered and received.

3. With these steps now taken, it is necessary for the court to fix a limiting term for both offences within the meaning of s 269O(2) of the Criminal Law Consolidation Act.  This provides:

   (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 established1.

   Note—

   1       The 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.

4. It is established principle that the limiting term is fixed (amongst other considerations) by:

   .Reference to the head sentence of imprisonment, and not to the non-parole period: Question of Law Reserved (No 1 of 1997).[1]

   .Proceeding as if sentencing for an offence constituted by the objective elements in ignorance of the mental state of the accused, such that the court can neither reduce a limiting term by reason of diminished responsibility, nor increase it by reason of callous premeditation or disregard for the suffering of the victims: R v Behari.[2]

   .Considering the factors set out in s 10 of the Criminal Law (Sentencing) Act 1988 (SA), except those arising out of the mental impairment of the defendant himself: R v Bober (No 3).[3]

   .        Taking account of general and personal deterrence: R v T.[4]

   .Giving credit for time spent in custody for the offence: R v Sumner,[5] R v Behari.[6]

   .Not equating an admission of the objective elements with a plea of guilty and without reduction for such admissions as if they were a plea of guilty: R v Draoui.[7]

   .Considering the use of s 18A of the Sentencing Act to fixing a single limiting term for all the offences where there is more than one offence before the court: R v Bartholomaeus.[8]

   [1] (1997) 70 SASR 251.

   [2] (2011) 110 SASR 147.

   [3] (2010) 107 SASR 165.

   [4] (1999) 75 SASR 235.

   [5] [2010] SASC 43.

   [6]    Above.

   [7] (2008) 101 SASR 267.

   [8] [2006] SASC 13.

5. The arson arises from setting fire to a home at Indulkana on the APY Lands on 9 September 2013.  The defendant is 28 years of age and an Aboriginal man residing in the Indulkana Community.  He had been drinking with friends that day and was seen to behaving erratically in the afternoon.  Towards evening he argued with his wife, so she left the vicinity to stay with a friend.  A short time later smoke was seen in the area of the home, so his brother went to investigate.  The house, in which he lived, was in flames.  He was found lying inside on a mattress from which he was rescued by his brother.

6. Mr K made admissions to the police the next day to the effect that he set fire to the house because he was ‘sad’.  He also told them that he suffers from schizophrenia.  He is in fact diagnosed with well-established and documented schizophrenia, characterised by florid psychotic symptoms, persecutory delusions, auditory hallucinations and thought disorders.  He was assessed as medically incompetent to commit either offence on account of the schizophrenic condition.

7. Aboriginal housing is expensive and in short supply on the APY Lands.  Whether he knew this house was earmarked for demolition or not, objectively speaking it was a serious offence.  The house was owned by Housing SA and the amount of damage is estimated at just over $152,000.  It was however due for demolition to enable a new home to be built, scheduled for July 2016 at the earliest, at a replacement cost of $600,000.  Demolition costs are estimated at $42,000.  The cost of repairs to the existing damaged property is estimated at just over $144,000 and damage was estimated for insurance purposes at $152,000, whereas the cost of a new house is around $600,000.

8. Section 5(3)(a)(iii) of the Summary Procedure Act 1921 (SA) provides that:

   5—Classification of offences

   (3)     All offences apart from summary offences are indictable and of these—

   (a)     the following are minor indictable offences:

   ...

   (iii)those for which the maximum term of imprisonment exceeds 5 years and which fall into one of the following categories:

   (A)an offence involving interference with, damage to or destruction of property where the loss resulting from commission of the offence does not exceed $30 000;

   (AB)an offence involving a threat to interfere with, damage or destroy another person's property where, if the threat had been carried out, the loss would not have exceeded $30 000;

   On any view of the above facts more than $30,000 damage was caused by this arson offence.

9. Mr K was arrested by the police on the arson charge on 9 September 2013, refused police bail and remanded into custody on 10 September 2013 by a Magistrate, initially to the Port Augusta Prison.  He was however transferred to James Nash House on 30 January 2014 and later to the Eastern Psychiatric Intensive Care Unit at the Glenside Campus of SA Health, where he presently remains.  It appears however that removal from the prison system was arranged administratively by Corrections, so that at all material times the court order for remand in custody remained in force.

10. The summary offence of assault was committed just over a month earlier on 2 August 2013, in the Nganampa Health Service Clinic at Indulkana.  Mr K had attended as a patient and was being seen by the victim, a Doctor, who was impressing upon him the need to take medication for his psychiatric disorder.  He had in fact been taken there by the local police for that very purpose.  It was at this time that Mr K suddenly grabbed the Doctor with both hands to the front of his shirt and then shoved him backwards some 20 cm to a wall of the clinic in the presence of a police officer.

11. Mr K was immediately arrested and conveyed to the nearby Marla Police Station, where he was charged and bailed.  He was not questioned about the offence by the police.  He was however detained by another Doctor under the Mental Health Act 2009 (SA) and conveyed to the Coober Pedy Hospital.

12. In a victim and next of kin report produced pursuant to ss 269R(1) and 269T(2)(c) of the Criminal Law Consolidation Act, the Doctor concerned described the incident as ‘minor’, that no physical damage was done and that he had ‘lots of dealings’ with Mr K whom he considered a ‘gentle mild mannered person’.  This concession demonstrates that this assault was out of character, resulted in minor consequences, nevertheless more damage could have been done and the incident was capable of putting fear into the minds of other workers at the Health Centre. 

13. Another consideration is that Mr K has a prior offence for aggravated domestic assault committed in May 2008, for which he was, without conviction, placed on a bond to be of good behaviour for 12 months.  On the other hand he successfully kept to the conditions of that bond and there is no other offender history.

14. In all the circumstances an appropriate single limiting term for both offences is four years.  That must be reduced to two years, nine months and 19 days to take into account time spent in custody since 9 September 2013.