R v Pellicciotta - [2011] SADC 73

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PELLICCIOTTA
[2011] SADC 73
Reasons for the Order of His Honour Judge Soulio
25 May 2011
CRIMINAL LAW
Investigation into mental competence to commit an offence - decided that at the time of the conduct alleged to give rise to the offences the defendant was suffering a mental impairment - decided that the objective elements were established beyond reasonable doubt - defendant declared to be mentally incompetent to commit the offences and declared liable to supervision - limiting term of five years - supervision order made releasing defendant on licence on conditions decided by the Court and specified in the licence
Criminal Law Consolidation Act 1935 Part 8A, referred to.
R v Draoui (2008) 101 SASR 267, considered.

R v PELLICCIOTTA
[2011] SADC 73

The defendant Angelo Pellicciotta was charged with one count of aggravated serious criminal trespass in a place of residence, one count of aggravated assault, and one count of theft committed on 30 August 2009.
Circumstances of the Offending
Just after midday on 30 August 2009 the defendant approached his neighbour’s house in Brooklyn Park and knocked on the door. When the neighbour opened the door the defendant tried to step inside the house. He was making rambling statements relating to death and to killing. The neighbour described the defendant as appearing to be in some kind of trance. The neighbour left the house, closed the screen door behind him, and walked to his rubbish bin. He turned and saw that the defendant had entered the house and had closed the front door.
The neighbour’s six year old daughter and three month old daughter were inside the house. The six year old daughter opened the door and the neighbour ran into his house towards his infant daughter’s room. He saw the defendant attempting to enter a built-in wardrobe. The neighbour seized hold of the defendant and dragged him out of the house, pushed him to the ground and restrained him, and then called police.
The neighbour then asked his six year old to check on his infant daughter, Lucy, and the defendant, in the neighbour’s words, continued to ramble, stating things such as ‘Lucy’s already dead’.
In relation to Count 1 the prosecution alleges that the defendant entered his neighbour’s house at a time when he knew or was reckless as to whether the children were in the house. The allegations in respect of Count 2 relate not to a physical assault, but rather to the fear in which the neighbour’s six year old daughter was placed as a result of the defendant’s statements about death and killing. The allegations in respect of Count 3 relate to the fact that the defendant had stolen his neighbour’s thongs which had been on the verandah of the house, prior to knocking on the door.
Police attended in response to the emergency call and found the neighbour restraining the defendant. Police later questioned the defendant, and asked his name, to which the defendant responded “Thomas Magnum PI”.[1] When the question was repeated the answer was repeated, and upon a further request for name and details the defendant feigned sleep. Police conveyed the defendant to the Flinders Medical Centre for a mental health assessment, and the defendant was detained for psychiatric treatment.
[1] The name of a character in a television series.
The Hearing
On 30 August 2010 Mr Pellicciotta pleaded not guilty to the principal charges, and on 18 March 2011 the related charge of theft was read, and the hearing commenced.
Pursuant to s 269B of the Criminal Law Consolidation Act (the Act), an investigation into a defendant’s mental competence to commit an offence, or into whether elements of the offence have been established, is to be conducted before a jury unless the defendant has elected to have the matter dealt with by a Judge sitting alone. Such election is not made pursuant to s 7 of the Juries Act. Here the election was made by an oral application, by the defendant’s counsel, and was granted.
The Objective Elements of the Offence
Pursuant to s 269E(2) of the Act, I proceeded with the trial of the objective elements of the offences. I considered the declarations tendered, and having heard submissions from counsel for the Director of Public Prosecutions and counsel for the defendant, who conceded that the objective elements were proved, I found that the objective elements of the offences were proved beyond reasonable doubt.
Mental Incompetence
The question of the defendant’s mental competence at the time of the offending came on for determination, after a number of hearings, on 18 March 2011. The process for investigation by the Court of the defendant’s mental competence is governed by Part 8A of the Act.
Three reports from Dr Dhillon, and a report from Dr Brereton, were tendered in support of the contention that the defendant was mentally incompetent to commit the offences.
Dr Dhillon’s Opinion
Dr Dhillon is the medical director of the Cramond Clinic, the psychiatric unit of the Queen Elizabeth Hospital. Dr Dhillon cared for the defendant following his admission to the Queen Elizabeth Hospital between 18 December 2009 and 11 January 2010, and again between 18 March 2010 and 13 April 2010. Dr Dhillon also had available to him medical records compiled by the Flinders Medical Centre, the Western Mental Health Service, and the Lyell McEwin Hospital where the defendant was initially admitted following the offences.
The defendant suffers from a congenital condition of panhypopituitarism, first diagnosed following the psychiatric admission to the Lyell McEwin Hospital in August 2009. Dr Dhillon reported that the defendant was assessed as having confabulation related to suspected brain damage, related in turn to his medical condition. Prior to the present offending the defendant had not had any mental health treatment.
When assessed at the Flinders Medical Centre the defendant was diagnosed as being acutely psychotic. He was then transferred to the psychiatric unit at the Lyell McEwin Hospital and underwent extensive organic investigations because of significantly abnormal blood test results. He was clinically assessed as being psychotic, having displayed disorganised and rambling speech, and expressed bizarre delusional beliefs of a persecutory and grandiose nature. He was initially aggressive and agitated and required closed ward management.
The defendant’s panhypopituitarism was identified as the aetiology of his psychosis, and he was treated with antipsychotic medication, and hormonal replacement therapies to treat his underlying endocrine deficiencies, necessitated by the absence of a working pituitary gland.
The defendant refused to accept the diagnosis, and upon eventual release did not comply with his prescribed treatment, resulting in a deterioration of his mental health and admission to the Cramond Clinic, in an acutely psychotic state. On 8 April 2010, during the course of a later admission to the Cramond Clinic, a Community Treatment Order was made by the Guardianship Board.
Dr Dhillon concluded, on the basis of his clinical assessment, his access to the above mentioned medical records, and by interviewing the defendant’s parents, that the defendant displayed a pervasive pattern of detachment from social relationships, and a restricted range of expression of emotions. Dr Dhillon expressed the opinion that the features were consistent with a schizotypal and/or schizoid personality disorder. He queried whether the defendant was suffering from a mild autistic disorder.
Dr Dhillon concluded, on the basis of the material available, that it was clear that the defendant was suffering from a significant mental impairment at the time the offences were committed. He considered that whilst it was likely that the defendant did, to some extent, know the nature and quality of his conduct and that his actions or conduct were wrong, because of the severity of his psychosis he was unable to control his conduct with a moderate degree of sense and composure. He considered that a mental incompetence defence was available to the defendant.
Dr Brereton’s Opinion
Dr Brereton, a psychiatrist based at James Nash House, provided a report dated 4 November 2010. He expressed an opinion that the defendant suffered from a persistent psychotic illness, largely due to hormonal deficiency caused by the defendant’s underdeveloped pituitary gland. Dr Brereton expressed the opinion that the defendant may also suffer an underlying schizophrenia, and that his presentation was complicated by his dysfunctional personality. He considered it likely that the defendant suffered a schizoid personality disorder.
On the basis of the information available, including that set out in Dr Dhillon’s reports, Dr Brereton concluded that at the time of the offending the defendant was severely psychotic and that whilst he would have known the nature and quality of his conduct and was probably able to control his conduct, as a consequence of his mental impairment Dr Brereton did not believe the defendant was able to reason about the wrongfulness of his conduct with a moderate degree of sense and composure. He concluded that the defendant was not mentally competent to commit the offences.
The Director of Public Prosecutions conceded that Mr Pellicciotta was mentally incompetent to commit the offences charged.
The prosecution and defence jointly submitted that I should dispense with any further investigation into the defendant’s mental competence. Having considered the reports of Dr Dhillon and Dr Brereton I agreed and declared that the defendant was mentally incompetent to commit the offences.
Pursuant to s 269GB(3) of the Act, I found the defendant not guilty of the offences and declared the defendant to be liable to supervision under part 8A of the Act.
Division 4 Disposition
Reports were provided pursuant to s 269Q(1), s 269T(2) and s 269R of the Act, following which further submissions were made by both counsel for the Director and counsel for the accused and on 9 May 2011.
Dr Brereton provided a report dated 18 April 2011 in which he expressed the opinion, based on having been the defendant’s treating psychiatrist since the defendant’s admission to James Nash House on 15 July 2010, that the defendant’s mental condition was stable, in that the defendant was not actively psychotic. He described the defendant as having some functional impairment, due to particularly poor social function, and noted that the defendant remained insightless as to his condition.
Dr Brereton is guarded about the defendant’s prognosis. He concluded that if the defendant remains compliant and takes advantage of the support offered to him, he will be able to remain in the community with minimal risk. He expressed concern however at the defendant’s lack of insight, and admitted desire to have nothing to do with mental health follow up, nor to comply with medication. He considered that the defendant will be compliant while he remains under licence, but his long term compliance and prognosis remain in doubt.
Dr Brereton proposed a discharge plan whereby the defendant returns to live in the house which the defendant owns. The defendant is to be treated in the community by the Western Mobile Assertive Care Team who will initially see the defendant on a daily basis. That team will arrange for the defendant to take oral hormone replacement therapy, and will ensure that the defendant receives his depot antipsychotic medication. The defendant will undertake psychiatric outpatient treatments with the Western Mental Health Team. The defendant will also have support from his family. The defendant, in addition, will be subject to a Community Treatment Order, as an additional measure to ensure compliance and assist with intervention should he refuse his injection of antipsychotic medication.
Dr Nambiar, a consultant forensic psychiatrist at James Nash House provided a report dated 14 April 2011, in which he outlined the proposed treatment plan developed in conjunction with Dr Brereton. Dr Nambiar concluded that the defendant’s presentation is consistent with a complex medical condition that has impacted both physically and psychiatrically, giving rise to a psychotic phenomenology, and in addition has a personality style which has resulted in him being isolated from the community, and which could be conceptualised as part of an overall schizophrenic illness. He concluded that the defendant’s offending occurred in the midst of an acute psychotic episode that has now resolved with treatment, and that the defendant no longer requires hospitalisation.
Dr Jules Begg, a psychiatrist, provided a report dated 7 April 2011. Dr Begg reported that it was difficult to develop a rapport with the defendant, but that the defendant did not appear to display an active psychosis. He noted a delay in answering questions, which may be indicative of some thought disorder, but said that the defendant did not express delusional ideas, nor did he appear internally preoccupied by phenomenon such as hallucinations. He concluded that the antipsychotic medication which had been prescribed for the defendant was effective.
Dr Begg expressed the opinion that the defendant will need to remain on medication for panhypopituitarism. He concluded that it was appropriate to release the defendant into the community provided there was intensive follow up from the Mental Health Service, and provided the defendant continued to take his fortnightly antipsychotic injection. He considered that the risk of re-offending was significantly reduced, but not completely removed, provided the defendant continued to take that medication. He considered that it was appropriate for the defendant to be managed in the community, rather than in a custodial setting.
Dr Dhillon provided a further report dated 2 May 2010, in which he sought to further clarify his opinion that the defendant is fit to stand trial. It seems however, from the observations of Dr Dhillon, that there is some concern about the defendant’s likely compliance with a voluntary, that is, non-compulsory, treatment regimen. That is an issue which needs to be addressed in consideration of a decision as to whether the defendant should be released on licence, and if so, the conditions to which such release should be subject.
Ms D’Alessandro, a senior social worker from the Forensic Mental Health Service, provided a s 269R report. The defendant’s parents are supportive of the defendant, as are his brother and sister although he has in large part rejected their assistance. The victims of the defendant’s offending are concerned at the prospect of the defendant re-offending, and have moved house rather than proceeding with their plan to renovate their house in which they were living adjacent to the defendant’s house. They have requested that, as a condition of any release on licence, the defendant be restricted from approaching their family, from entering or attending at the grounds of the Lockleys North Primary School, from attending the Hilton Shopping Centre, and indeed from entering the suburb of Allenby Gardens.
Fixing the Limiting Term
Where a supervision order is made, a limiting term must be fixed equivalent to the period of imprisonment or supervision, or the aggregate period of imprisonment and supervision that would have been appropriate if the defendant had been convicted of the offences. Further, the limiting term is to be fixed on the basis of the head sentence that would have been imposed.
It is clear from the s 269R report that the victims of the defendant’s offending were significantly affected by his behaviour.
The defendant is 48 years of age. He has not previously offended. He completed year 12 at school, and then commenced a degree, but, according to his father, withdrew before completing that degree, after becoming involved with the Church of Scientology. He was employed at General Motors Holden for some years, but has been unemployed for about 10 years. Up until the time of this offending he lived alone, although, no doubt due to his deteriorating mental health status, the conditions in which he was living were described by police as being suggestive of a significant degree of neglect. The defendant has never been in a relationship, and is socially withdrawn.
The offences are serious. The maximum penalty for Count 1 is imprisonment for life, for Count 2 imprisonment for three years, and for Count 3 imprisonment for 10 years. Had I been required to sentence him, I would have proceeded pursuant to s 18A of the Criminal Law (Sentencing) Act and imposed a single penalty and would have imposed a head sentence of imprisonment for five years. There can be no discount on the basis of the concession made by counsel for the defendant, that the objective facts of the offences are made out.[2] Accordingly, the limiting term is five years.
[2] R v Draoui (2008) 101 SASR 267 at [88] per Vanstone J.
Options
Section 269O of the Act provides that once a defendant has been declared liable to supervision, the Court may release him unconditionally or make a supervision order either committing the defendant to detention or releasing the defendant on licence on conditions.
Section 269S of the Act provides that in deciding whether to release the defendant under this Division, or the conditions of a licence, the Court must apply the principle that restriction on the defendant's freedom and personal autonomy should be kept to a minimum consistent however with the safety of the community, including of course the victims of the his offending.
Having considered the material to which I have earlier referred, on the basis of the opinions expressed by Dr Brereton, Dr Nambiar, and Dr Begg, and to that of Dr Dhillon, and having regard to the fact that the defendant is being treated with a reasonable degree of success, and has a programme in place for the compulsory provision of antipsychotic medication and intensive follow up treatment, I have come to the view that it is not appropriate that Mr Pellicciotta be further detained. However it is not appropriate that he be released unconditionally. Rather, he is to be released on licence subject to a number of strict conditions. I note the course that I have adopted was not opposed by counsel for the Director of Public Prosecutions.
Licence Conditions
Various recommendations have been made in the reports prepared by examining psychiatrists, relating to the future supervision of the defendant. On the basis of those recommendations counsel for the Director of Public Prosecutions and counsel for the defendant jointly drafted conditions giving effect to the recommendations. After careful consideration, and some amendment, I regard the suggested conditions as the appropriate basis upon which the defendant is to be released on licence.
The defendant will be released on licence, for the period of the limiting term of five years, subject to the following conditions:
aThat the defendant be under the care and direction of the Clinical Director, Forensic Mental Health Service (“The Director”), or a consultant psychiatrist nominated by him (“the nominee”), and obey any directions given to him from time to time with regard to medical and psychiatric treatment and medication.
bThat the defendant be under the supervision of a Community Corrections Officer employed by the Department for Correctional Services and assigned by the Parole Board of South Australia and obey the lawful directions of that officer or the Board with respect to non-medical matters. To effect initial contact the defendant is to report to the Office of the Department for Correctional Services at 938 South Road, Edwardstown within two working days of signing this order.
cThat the defendant continue to receive his medication current at the date of this order, and further, that any alteration or reduction in such medication not occur without the approval of the Director or the nominee.
dThat the defendant submits to random screening of his blood at the direction of the Director or the nominee, to ensure compliance with medication.
eThat the defendant not use, possess, or administer any narcotic or psychotropic drug which is not medically prescribed by a legally qualified medical practitioner, and further, that any drugs which are prescribed to the defendant by a medically qualified practitioner be possessed or administered by the defendant only at prescribed or recommended dosages.
fThat, at the discretion of the Director or nominee and at such time when the Director or nominee sees fit, the defendant’s case management be transferred to the Western Region Community Mental Health Service, including the Western Mobile Assertive Care Team. The defendant will comply with all lawful directions of that team, particularly with respect to compliance with medications.
gThat the defendant shall submit himself for breath and or urine testing as directed by his Community Corrections Officer, for the purpose of determining whether there is present in his body any illicit or non-prescribed drug.
hThat the defendant will comply with any conditions imposed by the Guardianship Board of South Australia under a Community Treatment Order which may be in operation from time to time.
iThat the defendant reside initially at 22 Thanet Street, Brooklyn Park, and that he not thereafter change his residence without the permission of the Parole Board.
jThat the defendant not travel down East Avenue, Allenby Gardens.
kThat the defendant not enter the premises or attend the grounds of the Lockleys North Primary School.
lThat the defendant not approach nor contact Abby, Corey, Molly or Lucy Farmer.
mThat the defendant only attend the Hilton Shopping Centre, situated on Sir Donald Bradman Drive, Hilton on either Saturday or Sunday. The defendant is not to attend the Hilton Shopping Centre from Monday to Friday.
nThat the defendant travel to and from his home via Pine Street and Whaddon Street and the Southern end of Thanet Street. That the defendant is not to enter or exit the northern half of Thanet Street from Henley Beach Road, Brooklyn Park.
oThat the defendant, when allocated, co-operate with a Non-Government Organisation (NGO) worker who will assist in finding employment.
pThat the defendant not depart or attempt to depart from the State of South Australia without the prior written permission of the Parole Board.