R v Kastrappis - [2007] SADC 39

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KASTRAPPIS
[2007] SADC 39
Reasons for Decision of His Honour Judge Millsteed
18 April 2007
CRIMINAL LAW
Pursuant to s 269F of the Criminal Law Consolidation Act defendant declared liable to supervision on the ground of being mentally incompetent to commit one count of Aggravated Serious Criminal Trespass and two counts of Indecent Assault - supervision order made releasing the defendant on licence under s 269O - single limiting term of 3 years fixed pursuant to s 269O.
Criminal Law Consolidation Act 1935 s 269F, s 269O; Criminal Law (Sentencing Act) 1988 (SA) s 18A, referred to.
R v Davey [2006] SASC 177; R v Brown [2006] SADC 82, considered.

R v KASTRAPPIS
[2007] SADC 39
Introduction

The defendant Andrew Kastrappis was charged on information in this Court with one count of Aggravated Serious Criminal Trespass and two counts of Indecent Assault. On 20 November 2006 I found that the defendant was not guilty of the charged offences on the ground of mental incompetence and declared that he was liable to supervision under Part 8A of the Criminal Law Consolidation Act1935 (the Act). Pursuant to s 269O of the Act I have decided to fix a limiting term of 3 years and to release the defendant on conditional licence. These are my reasons.
The offences
The defendant lives on his own in a block of units at Pooraka. In the early hours of 17 June 2005 he entered the unit of his neighbour Ms Matthews, by forcing open the back door. Ms Matthews was asleep at the time. She awoke as a result of something touching her lips and saw the defendant standing by her bed wearing a coat but no pants. He was holding his penis close to her face. This incident was the subject of the first count of indecent assault.
The defendant then pulled down Ms Matthews’ pyjama pants and said that she had to sleep with him otherwise 200 guys were going to come around to her house and there would be trouble. This conduct was the subject of the second count of indecent assault. Ms Matthews pulled up her pyjama pants and asked him what he was talking about. The defendant then searched the unit for Ms Matthews’ boyfriend. However, he was not there. The defendant left a short time later. The complainant then went to her boyfriend’s home and telephoned the police. The police attended the defendant’s unit later that morning and arrested him.
The proceedings in this Court
On 20 November 2006 I conducted an investigation into the defendant’s mental competence to commit the charged offences pursuant to s 269F of the Act.
Mr Koehn, counsel for the defendant, tendered with the consent of Ms Powell, counsel for the prosecution, psychiatric reports prepared by Dr J Begg dated 28 July 2006 and Dr C Raeside dated 31 October 2006. The history contained in both reports indicated that the incident occurred against the background of heavy drug use (in particular cannabis and methamphetamine (ice)) during the months leading up to the incident.
Both psychiatrists expressed the view, though for different reasons, that the defendant was mentally incompetent to commit the charged offences. The prosecution did not dispute their findings.
Dr Begg opined that the defendant suffered from Paranoid Schizophrenia as a result of which he experienced auditory hallucinations which commanded him to carry out the offences. He was of the view that the defendant was unable to know the nature and quality of his conduct at the time.
Dr Raeside was of the opinion that the defendant experienced a psychotic episode at the time of the alleged offences in the form of a methamphetamine induced psychosis, or alternatively, a first episode of either a Bipolar Disorder or Schizophrenia. He concluded that the defendant was probably unable to control his conduct due to command auditory hallucinations.
Although the psychiatrists expressed different opinions as to the cause of the defendant’s condition I was satisfied that the defendant was not guilty of each offence by reason of mental incompetence and recorded a finding to that effect.[1] I then proceeded to consider whether the objective elements of each offence had been proved. The defendant did not dispute the objective facts. I was satisfied that the objective elements of each offence had been proved beyond reasonable doubt and declared the defendant liable to supervision.[2]
[1] Section 269 FA(3)(a)
[2] Section 269 FB(2)
In accordance with the requirements of Part 8A I ordered reports pursuant to s 269Q, s 269R and s 269T. I was subsequently supplied with the following:
·report by Dr C Raeside dated 14 December 2006 (s 269T);
·report by Dr P Tyllis (psychiatrist) dated 7 December 2006 (s 269Q and s 269T);
·joint report by Dr M Ferris and Dr N Nambiar (psychiatrists) dated 24 January 2007 (s 269T); and
·report by Susan Bone (social worker) dated 7 December 2006 (s 269R);
On 9 February 2007 and 20 February 2007 counsel made submissions as to the disposition of the defendant under s 269O. Counsel for the prosecution, Ms Shaw, did not challenge Mr Koehn’s submission that it was appropriate to release the defendant on conditional licence. In the main her submissions focused on the terms upon which the defendant should be released.
The statutory scheme
Section 269O(1) provides that a court by which a person is declared liable to supervision may release the defendant unconditionally or make a supervision order committing the defendant to detention or releasing the defendant on licence on conditions decided by the court and specified in the licence.
By virtue of s 269(2) if a court makes a supervision order it must fix a limiting term 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 relevant offence or offences.
This exercise requires the Court to have regard to all matters that would usually be relevant to the fixing of a sentence except matters that were based upon or which arose out of the defendant’s mental impairment.[3] The limiting term must be fixed by reference to the head sentence of imprisonment that would have been appropriate and not the non-parole period.[4] Unconditional release is appropriate in a case where a fine would have been imposed if the offence had been proved in the normal way.[5]
[3] s 269O note 1, R v T (1999) 75 SASR 235 per Doyle CJ at 242
[4] Question of Law Reserved (No 1 of 1997) 70 SASR 251
[5] Question of Law Reserved (No 1 of 1997) 70 SASR 251 at 266
In deciding whether to release a defendant on licence and in determining the conditions of a licence, the Court must apply the principle, expressed in s 269S, that restrictions on the defendant’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Furthermore the Court is obliged to have regard to the matters specified in s 269T(1), namely:
·the nature of the defendant’s mental impairment;
·whether the defendant is, or would if released, be likely to endanger another person, or other persons generally;
·whether there are adequate resources available for the treatment and support of the defendant in the community;
·whether the defendant is likely to comply with the conditions of a licence; and
·other matters the court thinks relevant.
The defendant’s personal circumstances and mental condition
Mr Kastrappis is 43 years old and single. He still lives alone in his unit at Pooraka. However, he has a girlfriend with whom he has had a relationship for about seven years. He has described the relationship as supportive. He enjoys a close relationship with his father, stepmother and siblings. His mother died when he was 12 years old. After he left school in year 10 he worked in a paint factory for 20 years until the year 2000. Since then he has been in receipt of a Disability Pension due to a chronic work related back condition.
The defendant has a long history of drug abuse. He began using cannabis and amphetamines when he was aged in his early twenties and progressed to using methamphetamine (ice or crystal meth) a short time before the incident involving Ms Matthews. The defendant has committed minor drug offences and driving offences in the past. However, he has no convictions for offences of the type that have brought him before the Court.
The defendant has no known psychiatric history before the relevant events. Apparently, his first contact with the mental health system occurred in February 2006 when he was admitted to Brentwood Ward (a locked psychiatric unit) for a period of one week at a time. There was some uncertainty about his diagnosis at that stage and in particular as to whether he was suffering from schizophrenia or a drug induced psychosis. The possibility of the latter was not dismissed though he had reported that he had stopped using amphetamines following the incident involving Ms Matthews and had ceased using cannabis a short time before his admission to hospital. When discharged from hospital he was prescribed Risperidone (an anti-psychotic medication) and Sodium Valproate (a mood stabilizer).
Since his release from hospital Mr Kastrappis has received follow up supervision and treatment through Community Mental Health Services. He has been seen by Dr C Vladcoff, a psychiatric registrar, every four to six weeks and by Mr K Poulson, a Community Health Worker every fortnight. Upon the advice of Dr Vladcoff, the defendant’s intake of Sodium Valproate was gradually reduced. He is no longer required to take it. However, he continues to receive the anti psychotic medication but at a reduced dose.
As earlier observed Dr Begg was of the view that the defendant suffered paranoid schizophrenia at the time of the relevant incident while Dr Raeside in his report of 31 October 2006 considered that his conduct might have been the product of a drug-induced psychosis. However, in his s 269T report dated 14 December 2006, Dr Raeside said that he was prepared to accept that the defendant’s condition was the product of a Bipolar Disorder because he had a similar presentation when admitted to hospital earlier in the year at which time no illicit drugs other than cannabis were found in his urine.
Dr Raeside further reported that the defendant does not currently display any features of mood disturbance or psychosis and that there is no reason based on psychiatric grounds for detaining him in a secure in-patient setting. He considered that a continuation of the community based psychiatric treatment that the defendant is currently receiving is appropriate. He emphasised that it was essential that the defendant abstain from illicit drugs because of the risk that drugs might exacerbate his mental condition. He further recommended periodic random urine drug testing by a community corrections officer.
In their respective s 269 reports, Dr Tyllis and Drs Ferris and Nambiar expressed the view that the defendant suffered from paranoid schizophrenia at the time of the offences and that his symptoms were exacerbated by his heavy drug use. They considered that the defendant’s psychotic symptoms have now resolved due to the medication that he has been taking. They were also of the view that it was appropriate for him to receive community based treatment and that he should continue to abstain from illicit drugs. They recommended a similar treatment plan to Dr Raeside.
Conditional release appropriate
It is clear on the material before me that Mr Kastrappis requires continuing treatment. However, there is no reason to believe that he currently represents a danger to the public. His condition is stable and he is receiving appropriate treatment in the community to which he has responded positively. There is no sound reason for not allowing him to remain in the community upon conditions designed to ensure that he continues to receive appropriate treatment and abstains from illicit drug use. Accordingly, it is appropriate to make a supervision order releasing the defendant on licence upon the conditions set out at the conclusion of these reasons.
The limiting term
Under s 269O it is necessary to fix a limiting term for the period of the defendant’s release on licence.
As earlier observed when making such an order it is necessary to fix a limiting term by reference to the head sentence that would have been appropriate if the defendant had been convicted of each of the offences of which the objective elements had been established. In my view if the defendant had been convicted of the charged offences an appropriate starting point would have been a single sentence of 3 years and 6 months fixed pursuant to s 18A of the Sentencing Act 1988.
In accordance with the principles expressed in R v Davey[6] it is appropriate to allow for a reduction of the notional “head sentence” on account of the defendant’s co-operation in agreeing, through his counsel, the objective elements of the charges. In my view it is appropriate to reduce the notional head sentence to three years on account of this factor.
[6] [2006] SASC 177 at [15] and [82]
Order
Accordingly I make a supervision order pursuant to s 269O(1)(b)(ii) releasing the defendant on licence. I set a single limiting term[7] of three years to operate from today. The defendant’s release on licence is subject to the following conditions:
[7] Section 269O and not s 18A of the Sentencing Act is the source of power to fix a single limiting term. I refer to my remarks in R v Brown [2006] SADC 82.
1That the defendant be under the care of the Clinical Director, Forensic Mental Health Service (‘the Director’) or a consultant psychiatrist nominated by him (‘a consultant psychiatrist’) and obey any directions given to him from time to time with regard to medical and psychiatric treatment and medication, and further that he be psychiatrically reviewed on a regular basis as directed by the Director or a consultant psychiatrist.
2That the defendant reside at all times at Unit 1/68 Muriel Drive, Pooraka or where otherwise directed (‘the nominated address’) by the Director or a consultant psychiatrist under such conditions as may be authorised by the Director or a consultant psychiatrist.
3That the defendant remain at the nominated address between the hours of 11pm and 7am, except in the case of a medical emergency or if the absence is approved in writing by the Director or a consultant psychiatrist.
4That the defendant be under the supervision of a probation officer (‘probation officer’) from the Department of Correctional Services, and for that purpose is to report initially to the North East Office of Community Corrections at 8 Gaelic Avenue Holden Hill within two working days.
5That the defendant not possess, consume or administer any prohibited drug or substance other than medication prescribed by the Director, a consultant psychiatrist or a medical practitioner.
6That the defendant submit to blood, breath or urine analysis for the purposes of determining whether there is any prohibited drug or substance present in his body whenever required by the Director, a consultant psychiatrist or the probation officer.
7That the defendant obey all directions of his probation officer, including but not limited to attendance at Drug and Alcohol Services courses and/or appointments.
8That the defendant be of good behaviour.
9That the Director, his nominee, a consultant psychiatrist or the probation officer upon becoming aware of any breach of the said conditions by the defendant is to inform the Director of Public Prosecutions (on behalf of the Crown) forthwith.
The order shall take effect as from today.