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 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.
Dr Lim does not, at this stage, support the release of Mr Lado on licence or any step down process towards that end. Dr Lim has set out in her report, in some detail, her current treatment plan.
Ms D’Alessandro has interviewed Mr Lado’s step brother (the victim), and also his older brother, Mr Laila Lado, who is Mr Lado’s immediate next of kin.[6] Mr Laila Lado and two other brothers live interstate. Mr Laila Lado is very supportive of Mr Lado who has no family in Adelaide. He maintains regular contact. Mr Laila Lado is concerned about the prospect of long term detention leading to his brother becoming “institutionalised”. Mr Laila Lado has noted significant improvement in Mr Lado’s behaviour and presentation. He describes the four brothers as close and supportive and is hopeful that in time Mr Lado can relocate interstate to live with and rejoin the family. The step brother in Adelaide has told Ms D’Alessandro that he has “moved on” and has forgiven Mr Lado.
[6] Mr Lado’s mother has been stranded in Africa for some time as a result of Covid-19 difficulties. She is uncontactable and it has not been possible to interview her.
The various stab wounds and other physical injuries suffered by the victim at the time were relatively superficial, although some required surgical repair leading to permanent scarring. He has made or is expected to make a full recovery from those injuries. However, the left eye injury is significantly more serious. The victim required surgery but has been left with impaired vision which is likely to be irreversible.
The attack on the victim, whilst relatively spontaneous and as a result of Mr Lado’s, then florid, schizophrenia, was in objective terms a serious one. Far more serious consequences, including death, could have resulted. The victim, his father and the wider family have found the whole incident and its aftermath extremely traumatic and frightening.
Ordinarily, personal and general deterrence would be important sentencing considerations with respect to an offence of attempted murder. However, when setting a limiting term in the case of a successful mental impairment defence, these considerations, together with prognostications about prosects of rehabilitation, have little, if any role, to play as, typically, they will necessarily be inextricably linked to the mental impairment itself.[7] Nevertheless, the fact that Mr Lado, for whatever reason, continues to present a risk to the public means that the need for protection of the public remains relevant.
[7] R v Bober (No 3) [2010] SASC 31; (2010) 107 SASR 165, not followed, in other respects, by Kourakis J in R v Behari [2011] SASC 111; (2011) 110 SASR 147.
Mr Lado’s personal circumstances are relevant and are such that a measure of leniency is appropriate. Mr Lado is 23 years old and was 21 at the time of the events under consideration. He has no criminal history whatsoever. Mr Lado’s personal circumstances have been summarised at some length in the report of Dr Jayawant and the reports of Dr Lim. He was born in South Sudan but the family relocated to Cairo in Egypt when he was one year old and then to Sydney, Australia when he was seven. Mr Lado’s mother and his biological father separated in 2009 against a background of domestic violence. Mr Lado’s mother and his three brothers in New South Wales, remain very supportive. However, early in 2020, Mr Lado’s mother and her new husband (the victim’s father) went to the Sudan for a visit. Mr Lado’s three brothers remained in New South Wales. Mr Lado’s mother has been unable to return.
Whilst Mr Lado completed year 12 at school he has, since then, engaged only in intermittent physical unskilled work. He is very good at basketball and was selected for a State representative team. Mr Lado is keen to engage with Dr Lim’s treatment plan and is keen to return to the community and take up employment again, probably of a physical nature.
In R v Behari,[8] Kourakis J provided the following helpful observations pertinent to the setting of a limiting term.
It follows, in my view, that in fixing a limiting term the court must proceed as if it is sentencing for an offence constituted by the objective elements it has found but where it has been left in ignorance of the mental state of the accused. It can neither reduce the limiting term by reason of diminished responsibility nor increase it by reason of callous premeditation or disregard for the suffering of the victims. In that way, fixing a limiting term will not be plagued by the difficulty of ascertaining the relevant guilty mental state to which I have referred, nor will the period during which the psychiatric care is provided be reduced on account of diminished responsibility arising out of the very mental condition which requires treatment.
For these reasons the evidence which suggests that you, Mr Behari, acted in a way which was reactive to a delusional fear of the people you attacked cannot be taken into account. That motivation is inextricably linked to the subjective elements of the offending which cannot be found and which must be ignored for the purposes of fixing a limiting term.
However, exclusion of any consideration of the mental element of a defendant, which is necessary by reason of the very nature of the function of fixing a limiting term, does not require exclusion of his or her antecedents. The family and social circumstances and previous good character of a defendant are distinct matters which must still be taken into account.
In my view, time spent in custody must also be taken into account. The fact that a defendant has been kept in a particular psychiatric institution after his or her arrest does not mean that period on remand cannot be taken into account. The fact that a defendant has been detained prior to sentencing is a distinct consideration from his or her subjective responsibility for the offending conduct. Persons suffering from a mental impairment sufficient to require incarceration in a psychiatric institution may nonetheless be found mentally fit and competent and ultimately guilty of a criminal offence. The period spent in custody by them may be, and often is, taken into account even though, depending on the circumstances, the weight it is given might vary.
[8] [2011] SASC 111; (2011) 110 SASR 147 at [14]-[17].
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.