R v Paauwe (No 2) - [2018] SASC 43

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v PAAUWE (No 2)
[2018] SASC 43
Judgment of The Honourable Justice Hinton
4 April 2018
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - GENERALLY
On 1 February 2018, Mr Paauwe was found not guilty of the attempted murder of his father by reason of his mental incompetence and declared liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA): see R v Paauwe [2018] SASC 42. Noting a report of Dr Lim, a forensic psychiatrist, dated 8 March 2018, Mr Paauwe conceded that it was appropriate that the Court make a supervision order committing him to detention. The prosecution submitted that in fixing a limiting term the Court was to have regard to the seriousness of the offending, that it was unprovoked and extremely violent and occurred in circumstances similar to a previous attempted murder in 1999 for which Mr Paauwe was found not guilty by reason of mental incompetence.
Held:
1. Mr Paauwe is committed to detention under Part 8A of the Criminal Law Consolidation Act 1935.
2. In all the circumstances, a limiting term of 12 years and six months is appropriate, such term to commence on the date Mr Paauwe was taken into custody.
Criminal Law Consolidation Act 1935 (SA) Part 8A, referred to.
R v Paauwe [2018] SASC 42; Question of Law Reserved (No 1 of 1997) (1997)70 SASR 251; R v T (1999) 75 SASR 235; R v Davey (2006) 95 SASR 63; R v Draoui (2008) 101 SASR 267, applied.

R v PAAUWE (No 2)
[2018] SASC 43
Criminal
HINTON J.

By an Information laid in this Court for arraignment on 10 July 2017, David Paauwe was charged with the offence of attempted murder. The offending conduct occurred on 25 December 2016 when Mr Paauwe struck his father to the head four or five times with a meat cleaver. On 1 February 2018 I made the following orders:
1.The investigation into Mr Paauwe’s mental competence to commit the offence of attempted murder is terminated pursuant to s 269F(A)(5)(a) CLCA.
2.I find on the balance of probabilities that Mr Paauwe was mentally incompetent to commit the offence with which he is charged.
3.I find the objective elements of the offence with which Mr Paauwe is charged established beyond reasonable doubt.
4.I find Mr Paauwe not guilty of the offence of attempted murder and declare him to be liable to supervision under Part 8A CLCA.
In consequence of order four s 269O CLCA is enlivened. It provides:[1]
[1] Part 8A of the Criminal Law Consolidation Act, 1935 (SA) has been amended since 25 December 2016, the day of the alleged offence. It was not suggested by either the prosecution or the defence that such amendments as they relate to mental incompetence have retroactive effect. Accordingly, I have applied Part 8A as it was at 25 December 2016.
269O—Supervision orders
(1)The court by which a defendant is declared to be liable to supervision under this Subdivision may—
(a) release the defendant unconditionally; or
(b) make an order (a supervision order)—
(i)committing the defendant to detention under this Part; or
(ii)releasing the defendant on licence on the following conditions:
(A)the conditions imposed by subsection (1a);
(B)any other condition decided by the court and specified in the licence (including a condition that the defendant be monitored by use of an electronic device approved under section 4 of the Correctional Services Act 1982).
Through his Counsel Mr Paauwe conceded that it was appropriate that the Court make a supervision order committing him to detention under Part 8A CLCA pursuant to s 269O(1)(b)(i) CLCA. In the light of the report provided to the Court pursuant to s 269Q CLCA by Dr Pei Lim, a forensic psychiatrist, dated 8 March 2018, that concession was appropriate. Accordingly, pursuant to s 269O(1)(b)(i), I order that Mr Paauwe be committed to detention under Part 8A CLCA.
Having made that order, a supervision order, s 269O(2) CLCA is engaged. It provides:
(2)If a court makes a supervision order, the court must fix a term (a limiting term) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and 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 established1.
…
Note—
1 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.
I agree generally with the observations of Gray J who in R v Davey said:[2]
[2] (2006) 95 SASR 63 at 74 [53].
… The limiting term is not intended to be punishment. A defendant has not been found guilty. Rather, a limiting term ensures that a defendant receives the appropriate period of detention or control and supervision relevant to the conduct the subject of the charge. It also enables treatment to be provided, and it allows the community to be protected while a defendant receives treatment. …
However, it appears plain that the limiting term is to be fixed by reference to the purposes of punishment. In that regard Doyle CJ in R v T commented that:[3]
[3] (1999) 75 SASR 235 at 242 (Debelle and Wicks JJ agreeing).
It may be that in fixing the limiting term the Court does not engage in exactly the same process that it does when imposing a sentence. Note 1 requires the court to fix a limiting term “by reference to the sentence that would have been imposed”. But, in my opinion, one cannot say that the Judge should not have regard to a matter such as general and personal deterrence when fixing a limiting term under this provision. I agree that the result may seem harsh, but the terms of the provision are clear. As well, it is important to bear in mind the flexible regime for treatment that is envisaged under Pt 8A. There is no denying the impact that the fixation of a limiting term might have on T. But it is relevant to bear in mind that the limiting term does no more than fix the period during which T may be subjected to restraints under Pt 8A.
There are a number of authorities addressing the function of this Court in fixing a limiting term and the principles applicable. References to the task as being one involving a degree of artificiality are many. From the authorities I have distilled the following:
i.where s 269O(2) CLCA refers to the length of the limiting term as being equivalent to the period of imprisonment that would in the court’s opinion have been appropriate if the defendant had been convicted of the offence, it means the head sentence that would have been imposed in those circumstances;[4]
[4]    Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251 at 265 (Duggan J, Matheson and Nyland JJ agreeing).
ii.in fixing a limiting term a court is to have regard to all matters that would usually be relevant to the fixing of a sentence for the offence, but not to matters based upon or arising out of the defendant’s mental impairment. Note 1 to s 269O CLCA makes it clear that in fixing a limiting term a court is not to take into account the defendant’s mental impairment with the consequence that:[5]
[5]    R v T (1999) 75 SASR 235 at 242 (Doyle CJ, Debelle and Wicks JJ agreeing).
a.      Matters which will have a substantial bearing on the length of any limiting term include the seriousness of the offence and the injury, loss or damage resulting from it, the age, means (if relevant) and physical condition of the defendant, and the need to protect the community from the performance and repetition of the conduct;[6]
[6]    R v Davey (2006) 95 SASR 63 at [7] (Bleby J, Anderson J agreeing).
b.     Aspects of a defendant’s character which are independent of or not influenced by his or her mental impairment may be relevant.[7]
[7]    R v Davey (2006) 95 SASR 63 at [9] (Bleby J, Anderson J agreeing).
c.     A defendant’s criminal history is relevant, although less weight may be attached to offending that occurred after the development of his or her mental impairment.[8]
[8]    R v Davey (2006) 95 SASR 63 at [7] (Bleby J, Anderson J agreeing).
d.     The relevance of contrition and remorse will vary greatly from one case to the next;[9]
[9]    R v Davey (2006) 95 SASR 63 at [10] (Bleby J, Anderson J agreeing).
e.     Where a defendant agrees the objective elements such agreement is not to be equated with a plea of guilty meriting any discount.[10]
[10] R v Draoui (2008) 101 SASR 267.
iii.Notwithstanding (ii), there may be some difficulty in having regard to some factors ordinarily relevant to sentencing under s 10(1) of the Criminal Law (Sentencing Act) 1988 (SA); e.g. s 10(1)(i) (deterrent effect), (j) (adequate punishment) and (m) (rehabilitation).[11]
[11] R v Draoui (2008) 101 SASR 267 at [69] (Vanstone J, Doyle CJ, Duggan, Sulan and Anderson JJ agreeing). As in relation to Part 8A, I have referred to the Sentencing Act as enacted on 25 December 2016.
iv.A court is to have regard to matters such as general and personal deterrence.[12]
[12] R v T (1999) 75 SASR 235 at 242 (Doyle CJ, Debelle and Wicks JJ agreeing); R v Davey (2006) 95 SASR 63 at [8] (Bleby J, Anderson J also agreeing).
The maximum penalty for the charge of attempted murder is life imprisonment.
The circumstances surrounding Mr Paauwe’s attack upon his father are set out in my reasons for concluding that he was not guilty of attempting to murder his father by reason of mental incompetence.[13] I do not repeat them here but these reasons should be understood in the light of my earlier reasons.
[13] R v Paauwe [2018] SASC 42.
The attack was premeditated and planned. It was savage though not sophisticated. The footage caught by the camera recording the church service captures the sickening sound of the blows struck in addition to vision of the last blow. The force of the blows must have been considerable. The last certainly was. Edward Paauwe had no notice of the impending attack and could do nothing to defend himself. He was fortunate that his wife and members of the congregation quickly intervened on his behalf.
In sentencing for attempted murder general deterrence, specific deterrence and condign punishment ordinarily attract great weight.
Mr Paauwe has twice before attacked another person. In Indonesia in the late 1990s he punched a man a number of times before fleeing, and in this State in 1999 he struck an unsuspecting man once with a meat cleaver. In a report dated 26 June 1999, Dr Raeside recounted the circumstances of the 1999 attack as relayed to him by Mr Paauwe:
Mr Paauwe reported having “a wild imagination about a lot of things”. He recalled that prior to the incident he began believing that the white paint on the road was actually “God’s blood”. He had a habit of reading words backwards which then gave him different meaning which he believed was significant to him. He began to believe that the victim was Satan, “because whenever I was around him I would get chills”. He began thinking that the victim had raped a young girl and killed her in the car park next to the hostel where they were staying. He believed that the victim had hidden the body in a black garbage bag in his room that contained recyclable cans and bottles.
Mr Paauwe began having dreams about the victim and also “felt pains in my body because of him. I felt he could do it through evil magic powers”. On further questioning Mr Paauwe said he wasn’t scared of the victim but felt that he needed to be killed “before things got out of hand”. He said he believed that the victim was going to “set me up for a crime” but added he was unsure where those thoughts were coming from. He also had a dream he was Ned Kelly and that he had to kill the victim although he would go to gaol and be sentenced to death, which he said he was prepared to do at that time. By way of explanation he said that he believed he was Michael, the archangel and that the victim was Satan and therefore had to be destroyed. He said he believed that he (sic) victim could fly and was “doing shows in Rundle Mall”, but before he was able to fly he had to have sex with young girls to give him the power.
Mr Paauwe said that these (psychotic) thoughts were increasing during the month preceding the attack. However he had only begun thinking about killing the victim three days prior to the incident. He had originally planned to attack him in (sic) laundry section of the hostel where the victim went sometimes. He had planned to hit him over the head and suffocate him. However, the situation did not eventuate and Mr Paauwe became increasingly anxious. Consequently he went to the victim’s room and invited him to come to his room (where he would attack him) but the victim declined. During that night he continued to think about how he could get him “somehow”. He was hearing thoughts being put into his head which he found difficult to describe, but the intensity and preoccupation about killing the victim increased during the night.
The next morning at breakfast Mr Paauwe observed the victim in the dining room. He said “whilst his back was turned I chopped him in the head with the meat cleaver” which he had brought at a supermarket for his cooking about four months previously. He said this was the same implement with which he had planned to cut off his leg. …
Mr Paauwe was charged with attempted murder as a consequence of this attack. He was found not guilty by reason of mental incompetence. A Judge of this Court ordered that he be committed to detention and fixed a limiting term of four years and six months.
Mr Paauwe has no other relevant criminal history.
Edward Paauwe was hospitalised. He had multiple lacerations to his scalp and suffered a depressed skull fracture. He required surgery on two occasions. His post operative recovery was prolonged due to his suffering seizures and clots in his leg veins. He has made a good recovery but will likely have some long term problems such as left sided weakness and seizures. Despite this Edward Paauwe has been able to resume teaching and preaching.
The Court received victim impact statements from Edward and Lehia Paauwe. Mr and Mrs Paauwe speak of their love for their son and hopes for his speedy recovery. They remain very supportive of him. They understand that he was unwell and put his psychotic episode and offending down to the reduction in his medication.
Mrs Paauwe expresses the wish that her son be continually supervised by a psychiatrist who will provide him with adequate mental health care, thus ensuring his own safety and the safety of others.
Edward Paauwe refers to the negative impact that components of the criminal justice system have also had upon him since his son was charged, including the obtaining of an intervention order that has prevented him from communicating with his son. He hopes that the order will soon be lifted so that he can write to his son, and, at a later stage, talk to him and then visit him in person.
Mr Paauwe is 47 years old. For twelve years prior to the attack upon his father he was gainfully employed as a nurse at the Lyell McEwin Hospital. His offending was precipitated by a reduction during 2016 in his medication by half. There is no suggestion that since his discharge in 2003 Mr Paauwe has not been compliant with all directions given regarding his anti-psychotic medication and attendance upon his supervising doctors.
He has expressed his sorrow to his mother for the attack upon his father.
Ordinarily sentences for attempted murder must bear some relativity to sentences for murder, and, in particular, to those imposed for intentional murder. As I have said, putting to one side Mr Paauwe’s mental health, his conduct was premeditated and planned. It occurred in a context where he had acted similarly in the past. I accept he is remorseful.
Bearing in mind the task required by s 269O(2) CLCA it is difficult to consider Mr Paauwe’s prospects of rehabilitation meaningfully. The same may be said for any consideration of the need to protect the community. What can be said with some confidence is that the risk he poses to the community and his risk of re-offending have proven to respond positively to intervention.
In all the circumstances I consider a limiting term of twelve years and six months appropriate. I so order. That term is to run from the date Mr Paauwe was taken into custody.