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…

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 Pellicciotta

Details

AGLC: R v Pellicciotta [2011] SADC 73
Case: [2011] SADC 73
Decision Date: 25 May 2011

CaseChat Overview and Summary

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. The defendant pleaded not guilty to the principal charges. The court conducted an investigation into the objective elements of the offences, and determined that they were established beyond reasonable doubt. The court also investigated the defendant’s mental competence to commit the offences, and concluded that the defendant was suffering from a significant mental impairment at the time the offences were committed. The court declared the defendant to be mentally incompetent to commit the offences and liable to supervision. The court found that the defendant was not guilty of the offences and declared him to be liable to supervision under part 8A of the Criminal Law Consolidation Act. The court fixed the limiting term to be five years, which is the equivalent period of imprisonment that would have been appropriate if the defendant had been convicted of the offences. The court released the defendant on licence subject to a number of strict conditions, including that the defendant be under the care and direction of a psychiatrist and a Community Corrections Officer, that he obey any directions given to him with regard to medical and psychiatric treatment and medication, that he submit to random screening of his blood to ensure compliance with medication, and that he not use, possess, or administer any narcotic or psychotropic drug which is not medically prescribed. The court also imposed conditions that the defendant not approach nor contact the victims of his offending, and not enter the premises or attend the grounds of the Lockleys North Primary School.

The court’s decision was based on the evidence provided by the examining psychiatrists, who concluded that the defendant was suffering from a significant mental impairment at the time the offences were committed, and that he was unable to control his conduct with a moderate degree of sense and composure. The court considered the reports of the examining psychiatrists, who expressed the opinion that the defendant was severely psychotic and unable to reason about the wrongfulness of his conduct with a moderate degree of sense and composure. The court also considered the reports of the defendant’s parents, who were supportive of the defendant, and the victims of the defendant’s offending, who were concerned at the prospect of the defendant re-offending. The court concluded that it was not appropriate that the defendant be further detained, but that it was not appropriate that he be released unconditionally. Rather, he is to be released on licence subject to a number of strict conditions.

The court’s decision was in accordance with 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. The court considered the material to which it had earlier referred, and having regard to the fact that the defendant was being treated with a reasonable degree of success, and had a programme in place for the compulsory provision of antipsychotic medication and intensive follow up treatment, the court came to the view that it was not appropriate that the defendant be further detained. The court adopted the course that it had concluded was appropriate, and which was not opposed by counsel for the Director of Public Prosecutions. The court imposed the conditions that it considered appropriate, having regard to the recommendations made in the reports prepared by the examining psychiatrists, and having regard to the need to ensure the safety of the community, including the victims of the defendant’s offending.

The court’s decision was based on a careful consideration of the evidence and the law, and was in accordance with the principles of justice and the protection of the community. The court’s decision was also in accordance with the provisions of the Criminal Law Consolidation Act, which provide for the investigation of a defendant’s mental competence to commit an offence, and for the declaration of a defendant to be mentally incompetent to commit an offence and liable to supervision. The court’s decision was also in accordance with the provisions of the Act which provide for the fixing of a limiting term, and for the release of a defendant on licence subject to conditions. The court’s decision was therefore in accordance with the law, and was just and appropriate in the circumstances of the case.

Orders