R v Klemenko - [2010] SADC 55

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v KLEMENKO
[2010] SADC 55
Reasons for the Order of Her Honour Judge McIntyre
22 April 2010
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY
Investigation into mental competence - decided defendant not fit to stand trial - objective elements established beyond reasonable doubt - defendant declared liable to supervision - limiting term of 4 years - supervision order made detaining defendant.
Criminal Law Consolidation Act 1938 Part 8A, s269X, s269T, s269Q, referred to.

R v KLEMENKO
[2010] SADC 55
Introduction

Vasily Klemenko was charged with one count of aggravated threatening life and one count of carrying an offensive weapon both committed on 28 December 2007.
On that date Mr Klemenko was at Henley Square. He asked for money from a family group and then pointed at a two year old child in that group and said “I’m going to fuck her”. One of the men in the family group picked up Mr Klemenko’s bag and tossed it some distance in an attempt to divert his attention. Mr Klemenko went to his bag then produced a knife which he brandished at the family shouting “I’m going to kill your wife”.
Police then attended and arrested Mr Klemenko. A knife was found in his backpack.
Psychiatric background
Mr Klemenko is a single man of Russian background. He is 59 years of age. He lives alone and is on a Disability Support Pension. He has a long standing psychiatric history. His mental health problems began in the late 1960’s when he appears to have suffered a head injury following a fall at work. He has an acquired brain injury affecting the frontal lobe, chronic paranoid schizophrenia and a significant history of alcohol abuse.
Neuropsychological testing establishes that he has significant cognitive impairments, low intellectual ability and frontal lobe impairment. His brain injury and alcohol abuse cause disinhibition and aggression, significant memory problems, lack of insight and disorganisation. Further he suffers from paranoid delusional ideas from time to time.
The circumstances of the offending and Mr Klemenko’s psychiatric history raised the possibility of mental competence issues.
Fitness to stand trial
The procedure for an investigation by the court in relation to a defendant’s mental competence is governed by Part 8A of the Criminal Law Consolidation Act 1935 (the Act). Reports were obtained addressing both Mr Klemenko’s fitness to stand trial and his mental competence at the time of the alleged offending. These reports were:
1.Ms Kathryn Hart, psychologist, dated 14 October 2008 and 11 September 2009
2.Dr Craig Raeside, forensic psychiatrist, dated 24 September 2008 and 7 September 2009
The matter was set down for an investigation in relation to Mr Klemenko’s fitness to stand trial. The matter came on before me for determination on 26 November 2009. The medical evidence was unanimous in supporting the proposition that the defendant was not fit to stand trial. The DPP conceded that question. In the light of those reports, and that concession, I made a finding under section 269M that, on the balance of probabilities, Mr Klemenko was not fit to stand trial
Objective elements
The defence did not contest the declarations. It was agreed that the declarations established that the offences had been committed and the objective elements of the offences were admitted under s.269W of the Act. Having considered the declarations and the admissions made I found, under section 269M, that the objective elements of both counts on the information established beyond reasonable doubt. I then declared that Mr Klemenko was liable to supervision under Part 8A.
Reports were ordered and provided under s.269Q in relation to Mr Klemenko’s mental condition as follows:
·Dr Craig W J Raeside – Forensic Psychiatrist dated 8/1/2010 and 11/2/10.
·Dr Michael Schirripa – Forensic Psychiatrist dated 14/1/2010. and 18/2/2010.
·Dr Paul Furst reports dated 22/1/2010, 16/2/2010 and 19/4/10.
In addition a report on the attitudes of the victims and next of kin was ordered and provided under s.269R by Ms D’Alessandro, Senior Social Worker with the Forensic Mental Health Service, dated 22 January 2010.
Supervision order
In making a supervision order I must fix a term equivalent to the period of imprisonment or 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. This is the limiting term. An acknowledgement of guilt is not to be equated with an admission of the objective elements and therefore there is no rule requiring credit to be given for the admission of the objective elements.
A limiting term is not and should not be regarded as punishment. The limiting term sets the maximum period during which a defendant should remain subject to the supervision of the court in the application of the processes of treatment for possible recovery from the mental incapacity suffered
In setting a limiting term a court cannot consider the mental impairment of a defendant and cannot set what would be the equivalent of a non-parole period.
In relation to the offence of aggravated threatening life the maximum penalty is twelve years imprisonment. The maximum penalty for carrying an offensive weapon is a fine of $2, 500 or 6 months imprisonment.
I note the antecedent report shows limited prior offending. Of concern is the offending in between 3/9/2005 and 25/10/2007 for disorderly behaviour, property damage, common assault and resist police. Mr Klemenko was found not guilty of those offences under Part 8A and released on a conditional licence for 12 months. I have been provided with only limited information about those offences and the licence.
It is plain from the declarations and the witness statements that this was unprovoked incident involving a family group engaged on a picnic at the beach. Threats were made and reinforced by the use of a knife. This was both dangerous and frightening for the victims who continue to suffer the psychological effects.
Personal deterrence has a role to play given Mr Klemenko’s antecedent history. General deterrence is also of importance. Mr Klemenko has spent no time in custody on these charges.
I cannot give credit for the admission of the objective elements of the offences. Further it appears plain that Mr Klemenko continues to deny any wrongdoing and that he has no insight into his behaviour on that day.
I must impose one limiting term. I would in any event have made the two sentences concurrent as the two offences formed part of one criminal enterprise.
Taking all of these matters into account I fix a limiting term of 4 years commencing on 20 April 2010 the date upon which I ordered Mr Klemenko to be detained on an interim basis under section 269X of the Act.
Consideration of release on license
Section 269T of the Act requires a court to take into account a number of factors including the nature of the defendant’s mental condition, the likelihood of his endangering others, whether there are adequate resources available for the treatment and support of the defendant in the community and whether he is likely to comply with the conditions of a licence. The court must also consider at least three psychiatric reports and any report on the attitude of the next of kin and the victims of the defendant’s conduct.
Mr Klemenko’s counsel urged me to consider releasing him on licence in order that he might obtain treatment for his various conditions in the community. I was told that he is seeking such treatment and that he is prepared to agree to a condition that he abstain from alcohol as part of any release.
The s.269Q reports provided by the psychiatrists, Drs Furst, Schirripa and Raeside, are unanimous that Mr Klemenko’s prognosis is extremely poor given his permanent psychiatric and cognitive impairment. They also consider that his behaviour will deteriorate at times of alcoholic intoxication and that he is at great risk of reoffending particularly when intoxicated. It is clear from their reports that Mr Klemenko has no insight into his condition and that, in particular, he does not consider that he has a problem with alcohol abuse. This is far from being the case. The objective evidence suggests that Mr Klemenko regularly drinks to excess.
In his first report dated 22/1/2010 Dr Furst noted active symptoms of paranoid schizophrenia with paranoid delusions about someone stealing his money and a delusional memory of what happened on the day of his arrest. Dr Furst considered that Mr Klemenko was currently psychotic and acting on his delusions. He was unmedicated. He also had a severe cognitive impairment which placed significant restrictions on his ability to look after himself and to purchase and take prescribed medication. His single biggest problem was however his ongoing alcohol abuse, a problem into which he had no insight. Dr Furst considered that due to the very poor prognosis, high level of risk to himself and others and the complicated nature of his interacting conditions it was appropriate that he be detained at James Nash House or another appropriate health facility and that whilst in detention Mr Klemenko receive treatment including the following:
1.Acute management for alcohol detoxification;
2.A review of his physical health;
3.Initiation of anti-psychotic medication preferably one in depot formulation;
4.A social work investigation of his financial affairs and consideration of application for an Administration order;
5.An occupational therapy assessment of his ability to care for himself in the home and do day to day tasks;
6.Referral to Disability SA for assistance in managing in the community;
7.Treatment of his alcohol dependence with counselling and medical treatment such as Acamprosate or Naltrexone. He will also require organisation of a drug and alcohol counsellor in the community for when he is released from hospital;
8.Linking with a Community Mental Health Service prior to release from hospital to ensure that he receives medication to monitor his mental and physical health.
Drs Schirripa and Raeside made very similar findings and comments as to the various conditions suffered by Mr Klemenko in their initial reports. They too noted a very poor prognosis. The key difference in their reports to that of Dr Furst was that Mr Klemenko did not display any psychotic symptoms on their examination. They were of the opinion that his paranoid schizophrenia condition was relatively stable and would not be amenable to psychiatric treatment. They did not therefore consider that there was much benefit to detaining Mr Klemenko in a psychiatric facility.
In view of the divergence of psychiatric opinion, I ordered addendum reports from the doctors. In his further report Dr Furst reiterated his recommendation. Drs Schirripa and Raeside amended their views in the light of Dr Furst’s opinion. They noted his views that untreated paranoid delusions were a likely cause of some of Mr Klemenko’s problems and both accepted that this was the case. They therefore support the comprehensive treatment plan recommended by Dr Furst in his report dated 22/1/2010 although remaining pessimistic about the long term benefit.
I have noted the views expressed by the victims to Ms D’Alessandro and the comments by Mr Klemenko’s sister.
It is plain to me that Mr Klemenko has substantial restrictions upon his ability to look after himself. In particular he has difficulty with organisation which causes problems with purchasing and taking prescribed medication. The prospects of his receiving treatment in the community are poor. The material that I have been provided does not suggest that he is receiving such treatment on a regular or structured basis. I note in particular Dr Furst’s report dated 19 April 2010 which outlines the problems that Mr Klemenko is having currently both in terms of looking after himself, taking prescribed medication and abstaining from alcohol.
His ongoing abuse of alcohol places him at high risk of altercations with others. He has no insight into his alcohol abuse problem In the light of this it appears that the imposition of a condition that he abstain from alcohol during a release on licence would be foredoomed to failure. He is currently experiencing psychotic delusions and treatment of this is difficult whilst he remains in the community.
Taking the medical opinions into account together with the views expressed by the victims and the next of kin it appears unlikely that Mr Klemenko would be capable of complying with conditions of a licence. Having regard to the matters set out in section 269T it is my view that the recommendation for detention and treatment contained in Dr Furst’s report, supported by Drs Schirripa and Raeside, is the appropriate course of action.
I therefore make an order committing the defendant to detention at James Nash House or other appropriate mental health facility under Part 8A of the Act.