R v Lado - [2021] SASC 33

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

R v LADO
[2021] SASC 33
Reasons for the Order of the Honourable Justice Nicholson
9 April 2021
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC
The defendant was found not guilty of one count of attempted murder by reason of mental incompetence. A declaration was made that the defendant be liable for supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA) (Act) and an order was made committing the defendant to detention pursuant to s 269O(1)(b) of the Act.
Held:
1.A limiting term of seven years and eight days is fixed pursuant to s 269O(2) of the Act.

Criminal Law Consolidation Act 1935 (SA) s 269O(2), referred to.
R v Lado [2020] SASC 22; R v Bober (No 3) (2010) 107 SASR 165; R v Behari (2011) 110 SASR 147, considered.

R v LADO
[2021] SASC 33
Criminal
NICHOLSON J.
Introduction

On 13 November 2020, I found Wani Philip Samson Lado not guilty of the attempted murder of his step brother by reason of mental incompetence.[1] As a consequence, I made a declaration that Mr Lado was to be supervised under Part 8A of the Criminal Law Consolidation act 1935 (SA) and I made an order committing him to detention pursuant to subsection 269O(1)(b)(i) of that Act. It is now necessary for me to set a limiting term for that supervision, to be determined pursuant to subsection 269O(2) of the Act.
[1] See R v Lado [2020] SASC 22.
In my earlier reasons,[2] I summarised the conduct of Mr Lado which constituted the objective element of the offence as follows.
At approximately 4.30 am [on 17 April 2019], Mr Lado took a knife from the kitchen of the house in which he and his step brother were living and went into his step brother’s bedroom. Mr Lado started to strangle the complainant with his hand around the neck. During the struggle, the complainant was stabbed in the chest, hand and eye. The mother of Mr Lado and the father of the complainant heard screams for help, entered the room and pulled Mr Lado away from the complainant.
Mr Lado admitted committing the physical actions perpetrated against his step brother but, on 3 November 2020, pleaded not guilty to attempted murder. The two psychiatric reports,[3] available at the previous hearing held to determine whether or not the defence of mental incompetence was made out, were summarised at some length in my earlier reasons. It is sufficient to repeat the following.[4]
Both reports presented a comprehensive investigation into and analysis of Mr Lado’s mental state as at the time of the conduct in question. Both confirmed that Mr Lado suffers from paranoid schizophrenia, characterised by persecutory and bizarre delusions, auditory hallucinations, delusions of reference and thought disorder, undiagnosed as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lado

Details

AGLC: R v Lado [2021] SASC 33
Case: [2021] SASC 33
Decision Date: 9 April 2021

CaseChat Overview and Summary

The case of R v Lado involved the defendant, Mr Lado, who had pleaded not guilty to attempted murder due to mental impairment. The court was tasked with determining an appropriate limiting term for Mr Lado's detention under the provisions of the Criminal Law (Mentally Impaired Defendants) Act 1990. The primary legal issues revolved around interpreting subsection 269O(2) of the Act, which requires setting a limiting term equivalent to the sentence that would have been imposed if the defendant had been found guilty, without considering their mental impairment. Additionally, the court needed to balance the seriousness of Mr Lado's conduct against his personal circumstances, including his young age and lack of prior criminal convictions.

The court began by acknowledging the objective seriousness of Mr Lado's actions, which involved a violent assault on his stepbrother. Despite this, the court considered Mr Lado's young age and favourable personal circumstances, which warranted some leniency. The court also took into account the time Mr Lado had already spent in detention, calculating that he would receive credit for 11 months and 22 days of his detention period. Based on these factors, the court determined a starting point of nine years for the limiting term. After adjusting for the time already served, the court set the limiting term at seven years and eight days, to commence from 9 April 2021.

The reasoning behind the court's decision was grounded in the statutory provisions and the specific circumstances of Mr Lado's case. The court emphasised the importance of setting a term that reflected the seriousness of the offence while also considering mitigating factors such as age and personal background. The court's approach ensured that the limiting term was appropriate and balanced, reflecting both the gravity of the offence and Mr Lado's personal circumstances.

The court's final order was to fix a limiting term of seven years and eight days, effective from 9 April 2021, under section 269O(2) of the Act. This decision ensured that Mr Lado's detention period was set in a manner that appropriately reflected both the seriousness of his conduct and his personal circumstances, while also adhering to the statutory requirements.

Orders

Orders of the court

Held:

1. A limiting term of seven years and eight days is fixed pursuant to s 269O(2) of the Act.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

NICHOLSON J

I remind myself that the task before me is to set a limiting term which, according to subsection 269O(2) of the Act, is to be a term “equivalent to the period of imprisonment … that would in the Court’s opinion have been appropriate if [Mr Lado] had been convicted of the offence of which the objective elements have been established”. There is the following “note” to subsection 269O(2).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.Whilst the “note” does not form part of the statute, it does, in my view, properly convey the meaning or effect of subsection 269O(2). Conclusion and limiting term As I have indicated, Mr Lado, if sentenced for the offence of attempted murder, would have been entitled to leniency primarily because of his very young age and lack of prior criminal convictions. In all the circumstances and having regard in particular to the objective seriousness of Mr Lado’s conduct together with his very favourable personal circumstances, I would start with a limiting term of nine years. Mr Lado was taken into detention on 17 April 2019. That means that, as of today, 9 April 2021, he will have spent one year, 11 months and 22 days in detention for which he is to receive credit. I, therefore, impose a limiting term of seven years and eight days to commence from 9 April 2021.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

In my earlier reasons,[2] I summarised the conduct of Mr Lado which constituted the objective element of the offence as follows.At approximately 4.30 am [on 17 April 2019], Mr Lado took a knife from the kitchen of the house in which he and his step brother were living and went into his step brother’s bedroom. Mr Lado started to strangle the complainant with his hand around the neck. During the struggle, the complainant was stabbed in the chest, hand and eye. The mother of Mr Lado and the father of the complainant heard screams for help, entered the room and pulled Mr Lado away from the complainant.Mr Lado admitted committing the physical actions perpetrated against his step brother but, on 3 November 2020, pleaded not guilty to attempted murder. The two psychiatric reports,[3] available at the previous hearing held to determine whether or not the defence of mental incompetence was made out, were summarised at some length in my earlier reasons. It is sufficient to repeat the following.[4]Both reports presented a comprehensive investigation into and analysis of Mr Lado’s mental state as at the time of the conduct in question. Both confirmed that Mr Lado suffers from paranoid schizophrenia, characterised by persecutory and bizarre delusions, auditory hallucinations, delusions of reference and thought disorder, undiagnosed as at the time he engaged in the conduct in question. Schizophrenia is a recognised mental illness falling within the definition of mental impairment as provided for in subsection 269A(1) and, as such, satisfies the requirement in the chapeau to section 269C that Mr Lado was, at the time, “suffering from a mental impairment”. [2] R v Lado [2020] SASC 223 at [2].[3] One by Dr Amisha Jayawant dated 6 April 2020 and one by Dr Lado’s treating psychiatrist, Dr Pei Lim, dated 16 September 2020.[4] R v Lado [2020] SASC 223 at [10].The parties’ submissions and general consideration On 19 March 2021, I heard submissions from the parties on the issue of an appropriate limiting term, both generally and with respect to an additional report provided by Dr Lim pursuant to sections 269Q and 269T of the Act (dated 5 February 2021) and victim and next of kin reports provided by Ms Anna D’Alessandro[5] pursuant to section 269R (dated 10 February 2021 and 12 March 2021).[5] Manager, Forensic Court Service, Forensic Mental Health Service. According to Dr Lim, Mr Lado suffers from treatment-resistant schizophrenia which has only partially responded to Clozapine (the “gold standard” medication). He still suffers from, inter alia, distressing hallucinations and persecutory delusions although the intensity of these has reduced. Staff have been proactive in managing Mr Lado’s distress and prompt clinical intervention has been necessary during periods of heightened paranoia. Nevertheless, he has not been physically violent. He has engaged in psychoeducation work and has become more willing to approach staff for additional medication and assistance. It is likely that Mr Lado has been unwell and untreated for some years.