R v M, RA - [2019] SADC 1

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v M, RA
[2019] SADC 1
Reasons for Decision of His Honour Judge Tilmouth
25 August 2011
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
Accused pleaded not guilty due to unfitness to stand trial in relation to an aggravated charge of threatening harm, an aggravated serious criminal trespass in a place of residence, and two aggravated charges of threatening life - consideration of psychiatric evidence of accused's mental state at the time - court satisfied that accused was mentally unfit to stand trial. Proper disposition and appripriate limiting term, considered.
Criminal Law Consolidation Act 1935 s 269O, s 269Q, s 269R, s 269T; Bringing them home, National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their families 1997, pp 12-13, 222-228, referred to.
Atkinson v Walkely (1984) 27 NTR 34, [35], [37]., applied.

R v M, RA
[2019] SADC 1

The defendant M,RA was found mentally unfit to stand trial during the June Port Augusta circuit of the court, in respect of an aggravated charge of threatening harm, an aggravated serious criminal trespass in a place of residence, and two aggravated charges of threatening life, all committed on 20 July 2010 at Yappala Station outside Hawker in the mid-north.
The court thereupon dispensed with further investigation into the defendant’s mental competence, recorded findings that it was satisfied beyond reasonable doubt the objective elements of each of the four offences were established, on the basis of the material identified by the prosecution. A finding that the defendant was thereby liable to supervision was then made.
The relevant victim and next of kin reports pursuant to s 269R of the Criminal Law Consolidation Act 1935 (SA), and the reports required by ss 269Q, 269R and 269T having been duly compiled, the matter came on again by video link to Adelaide on 22 August and again on 25 August for further submissions.
These reasons deal with the fixation of a limiting term pursuant to s 269O(2). The defendant is a 50 year old Aboriginal elder. He had a good work record until an operation in 2010 prevented him from working. He is however hoping to gain some work soon. He has a number of convictions over the years, principally for assaults, for which he has received fines at times and between three and five months imprisonment. He also went to gaol for seven years (with a non-parole period of three years) on two counts of rape committed in 1984, but he was trouble free so far as offences were concerned since February 1997. The current offences are by far the worst of his violent episodes.
He presently resides at another station outside Hawker with his daughter and her partner. He is supported by his ex-wife, from whom he has been separated, but hopes of reconciliation remain. They have three daughters. One of two daughters from a previous relationship unfortunately died in tragic circumstances and he was widowed when his first wife died suddenly in front of him of an aneurysm.
Born in Port Augusta and raised in the Oodnadatta area, he was one of the ‘stolen generation’, which damaged him profoundly. It is well documented that forced removal of Indigenous Australians from family and country had far-reaching and enduring consequences: ‘Bringing them home’, National Inquiry into the Separation of Aboriginal and Torres Strait Islander children from their families.[1] The defendant has been receiving a disability support allowance for some time owing to chronic depression and cognitive defects, amongst other things. These complications arise from the trauma and disturbing memories of forced removal, compounded by the two family deaths. He is diagnosed with an acquired cognitive deficit or brain injury secondary to alcohol excess.
[1] 1997, pp 12-13, 222-228
The events of 20 July 2010 were terrifying. The victims were in great fear of their lives. Both worked for an Aboriginal youth mentoring program, based around the station. The defendant comes from the country, but had been banned for some time except for the Warro Downs Homestead where he lives, because he had caused numerous fights in the past.
At about 8.00 pm on the evening in question a group of young people were sitting around a campfire at Yapalla when the defendant pulled up in his car. Obviously intoxicated and angry, he began yelling at them, asserting it was not their land. He began to blame the first victim for his expulsion, and with whom he had disagreements in the past. He then abused him and continued yelling whilst swinging a bottle in his right hand threatening to smash his face, and eventually lunging at him. These events constitute the aggravated count of threatening life, which attracts a maximum sentence of seven years imprisonment.
He then drove towards the shearers’ quarters, which the first victim and another man had entered with the defendant in hot pursuit. The second victim was on the phone to the emergency number as the defendant commenced shouting obscenities at her. He then smashed a window, and entered the quarters whilst holding a wooden club in a raised position with both hands. He was claiming this was his country and these other people should not be there. This entry constitutes the offence of trespass on the second count. It carries a maximum penalty of life imprisonment, since the defendant both knew there would be people in the residence and was using a waddy in a threatening manner.
The third count of threatening life involves the threat to kill the first victim with the waddy, whilst the second relates to a threat to kill the second, when she was on the telephone to police. During this encounter he repeatedly swung the waddy menacingly in the air. The defendant was eventually pushed outside, got into his car and left. He has no memory of these events due to the excessive alcohol consumption.
There are extensive reports before the court, so it is unnecessary to go into great personal detail. The defendant continues to suffer from chronic depression and most likely post-traumatic stress disorder, related to his damaging childhood experiences and the trauma of later harrowing events. It is clear that he has been punished by the Community by being banned from his country. This is a significant punishment in Aboriginal culture.[2] The defendant has developed an insight into the impact of his chronic alcohol abuse and these offences. He has made a determined and concerted effort to change, most notably by completely abstaining from alcohol use over the past six months. This is no small achievement given the long history of alcohol abuse. Drug and alcohol counselling has been recommended but unfortunately not made available as yet, as it should be.
[2] Atkinson v Walkely (1984) 27 NJR 34 at 35 & 37
The court is required to fix a limiting term according to the objective seriousness of the offences by reference to the appropriate head sentence. These charges were the product of the one incident, so it is appropriate to impose a single penalty for all.
In all the circumstances an appropriate limiting term is one of three years and nine months. The parties should now be heard as to whether the defendant should be released on licence and as to appropriate conditions thereof.