R v PHILLIPS - [2013] SADC 164

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PHILLIPS
Criminal Trial by Judge Alone
[2013] SADC 164
Reasons for the Order of His Honour Judge Soulio
6 December 2013
CRIMINAL LAW
Defendant charged with aggravated robbery and a series of other offences – investigation into fitness to stand trial – decided that in each case the defendant was not fit to stand trial – objective elements established beyond reasonable doubt – declared liable to supervision – limiting term of six years, two months and two weeks – defendant to be detained.
Criminal Law Consolidation Act 1935 s 137, Part 8A, referred to.
R v Draoui (2008) 101 SASR 267, considered.

R v PHILLIPS
[2013] SADC 164
Introduction

The defendant is charged with a series of offences, the principal offence being one count of aggravated robbery contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (‘CLCA’) said to have been committed on 29 June 2012 at Torrensville.
Circumstances of the Offending
Aggravated robbery
On 29 June 2012 at about 10.45am, the defendant ran towards a woman, snatched her handbag out of her hand and continued running. He was pursued by members of the public and eventually detained until police arrived. Police located the complainant’s phone on the defendant. The circumstance of aggravation was that the defendant committed the offence knowing the complainant was over the age of 60 years.
Other Offending
During the course of proceedings, I was informed that the defendant had also been charged with a series of offences being dealt with in the Magistrates Court, which, by consent, were dealt with in this Court. I outline those charges chronologically as follows:
Assault causing harm
On 13 August 2011 an employee of the Margaret Tobin Centre responded to a duress alarm activated by a nurse after the defendant had begun making verbal and gestured threats of violence towards staff. The complainant advised the defendant that he would be placed in seclusion. The defendant struck the complainant to the face.
Assault causing harm
On 28 October 2011 the defendant assaulted a security officer working at the Colonnades Tavern by poking his thumbs into the complainant’s eye sockets, and then punching him. The complainant suffered a cut to the eye and sprained fingers.
Disorderly behaviour and resist police
Later the same day police located the defendant in the vicinity of the Noarlunga Library car park. As police approached, the defendant began yelling profanities. The defendant resisted attempts by police to handcuff him.
Aggravated assault
On 19 March 2012 the defendant approached a man at the Mile End Foodland car park and asked for money and cigarettes. The complainant refused to comply and turned to walk away. The defendant then pushed the complainant in the back and caused him to fall to the ground. The complainant suffered soreness to his head and right hand.
Property damage
On 28 June 2012 the defendant entered the offices of Maxima Job Link and asked for help to obtain a job. He was advised by staff that he needed a referral from Centrelink. The defendant then left but returned a few minutes later and punched and smashed a glass window.
Serious criminal trespass (non-residential) and theft
Between 10 November 2012 and 12 November 2012 the defendant entered a vacant building on Anzac Highway Camden Park. A Samsung washing machine valued at approximately $1,000, and a microwave oven valued at approximately $200, were missing. The theft of the washing machine is the subject of a dispute, and I must make a finding in relation to that dispute. The defendant conceded having stolen the microwave oven. I am unable to be satisfied, beyond reasonable doubt, that the defendant was able to single-handedly carry the washing machine away. There is no suggestion the defendant was accompanied by anyone.
Aggravated assault
On 4 March 2013, the defendant assaulted a man at an ATM in Bank Street Adelaide. The defendant used a butter knife in committing the offence, and the complainant suffered a cut to the back of his neck.
Court Proceedings
The defendant first appeared in this Court on 10 December 2012. His arraignment was deferred pending determination of the issue of his fitness to stand trial. Section 269 CLCA provides that if there are reasonable grounds to suppose that a person is mentally unfit to stand trial, the court may order an investigation into that issue.
The defendant, through his counsel, elected for trial by judge alone, pursuant to s 269B(1) CLCA. Pursuant to s 269L CLCA, I decided to proceed first with a trial of the defendant’s mental fitness prior to embarking on a trial as to the objective elements of the charge.
Mental Fitness to Stand Trial
The defendant bears the onus of displacing the presumption of mental fitness to stand trial, pursuant to s 269I CLCA. The defendant relied on the reports of Dr Schirripa, forensic psychiatrist, dated 24 July 2012; Dr Tibrewal, psychiatrist, dated 18 October 2012; and Dr Rose, senior psychiatrist, dated 20 January 2013.
Dr Schirripa was of the opinion that the defendant suffered from a psychotic illness, most likely paranoid schizophrenia. He described the defendant as having ongoing psychotic symptoms and disorder of thought, which would mean the defendant was unable to rationally respond to the charges. When interviewed, the defendant displayed persisting delusional beliefs. Dr Schirripa formed the view that the defendant was not fit to stand trial. Due to the defendant’s mental state, Dr Schirripa was unable to assess him in relation to a possible mental incompetence defence.
Dr Tibrewal accepted that the defendant had a history of schizophrenia dating back to June 2003, as well as diagnoses of polysubstance abuse, antisocial personality disorder and intellectual impairment. The defendant has had numerous admissions to inpatient psychiatric facilities over the past seven years and had been trialled on multiple antipsychotic medications. Dr Tibrewal said the defendant’s management over the years had been complicated by the defendant’s ongoing substance abuse, poor insight and poor compliance with treatment requirements, and ultimately resistance to treatment. Dr Tibrewal expressed the opinion that the defendant demonstrated psychotic symptoms in the form of grandiose and bizarre delusions, with limited insight into his condition, and poor judgment.
Dr Tibrewal expressed concern as to the defendant’s fitness to stand trial, given the defendant’s ongoing psychotic symptoms. Dr Tibrewal was of the view that the defendant’s chronic psychosis combined with his intellectual disability would impact adversely on the defendant’s ability to effectively participate in his defence. On the basis of his examination of the defendant, Dr Tibrewal was of the opinion that the defendant, on the balance of probabilities, was not fit to plead or to stand trial.
Dr Rose was of similar opinion to Dr Schirripa and Dr Tibrewal, and expressed the opinion that the defendant had very poor judgment and showed no remorse or concern for his behaviour, or its impact or potential consequences. Dr Rose formed the view that the defendant was grossly thought disordered with extensive delusions, such that he was unable to instruct a solicitor or respond rationally to the charges. Dr Rose concluded the defendant was not fit to stand trial.
Having considered the reports and the persisting nature of the defendant’s condition, and with the agreement of counsel for the prosecution and defence, I terminated the investigation and recorded a finding that the defendant was mentally unfit to stand trial pursuant to s 269MA(5)(a) CLCA.
Objective Elements of the Offences
I then proceeded to the trial of the objective elements of the offences. The prosecution and defence agreed that the objective elements of the offences were made out, except the dispute relating to the defendant’s theft charge committed on 10 November 2012. I have earlier referred to my finding on that dispute. Having regard to the declarations and apprehension reports tendered in relation to all files, I found, beyond reasonable doubt, that the objective elements of the offences were made out pursuant to s 269MB(2) CLCA.
Division IV Disposition
Having regard to my finding as to the defendant’s fitness to stand trial, I found him not guilty of the offences charged, by reason of his inability to stand trial, and declared that the defendant be liable to supervision under Part 8A CLCA.
Reports to which I refer below were provided pursuant to ss 269Q(1), 269T(2), and 269R(1) CLCA.
Dr Furst, a forensic psychiatrist, reported on 23 August 2013 that the defendant had a well-documented history of disorganised type schizophrenia which had proven resistant to treatment. The defendant also had an underlying polysubstance dependence, borderline intellect and antisocial personality traits. Dr Furst said that the defendant had an extremely poor prognosis if released into the community. The defendant had previously displayed a limited response to prolonged periods of hospitalisation despite enforced abstinence from illicit drugs, and the administration of Clozapine. Dr Furst said, that if appropriately medicated the defendant should be significantly less impulsive and aggressive, but said that it is likely the defendant will remain prone to disorganisation and poor general functioning.
Dr Furst expressed the opinion that the most appropriate management plan was for the defendant to be committed to detention at James Nash House where he would be able to continue to receive Clozapine and prescribed medication, have an enforced abstinence from illicit drugs, and where his aggressive and violent behaviour could be managed in a secure environment.
In a later report dated 3 September 2013, Dr Furst noted that the defendant had shown a significant improvement in his mental state with the ongoing prescription of Clozapine. The defendant had become less impulsive and aggressive; his thoughts and behaviour had become less severely disorganised, and his periods of marked disorganisation had become less frequent. However, Dr Furst assessed the defendant as remaining quite psychotic with bizarre delusions and a disorder of thoughtform. Whilst the defendant remained floridly psychotic, he appeared to have better impulse control and frustration tolerance. Dr Furst remained of the view however that the defendant had a poor prognosis if released into the community, and should be committed to detention at James Nash House.
I received two reports pursuant to s 269T CLCA, from Dr Nguyen, a psychiatrist. In 5 June 2013 Dr Nguyen reported having assessed the defendant’s mental state as being unstable, displaying symptoms of delusional thinking, thought disorder and mood elevation. The defendant’s general function was poor. Dr Nguyen agreed with Dr Furst’s recommendations and said that a further period in a long-term psychiatric inpatient facility would be beneficial for the defendant to allow the defendant access to an appropriately structured psychosocial rehabilitation program and to allow for consolidation of pharmacological treatment.
In the second report dated 5 September 2013, Dr Nguyen’s opinion remained unchanged. He agreed with the treatment program recommended by Dr Furst, and said the defendant demonstrated poor insight and a very limited capacity to engage in therapy in a meaningful way if not under close supervision and coercion.
I received a report pursuant to s 269R CLCA, from Mr Bell, an experienced senior clinical and forensic psychologist at James Nash House. Mr Bell, in assessing the defendant, came to a similar view to that of Dr Furst. Mr Bell noted that Dr Furst’s expectation of the defendant’s progress to transition to some sort of supported community premises, via rehabilitation wards and programs, could take in excess of three years, based on the defendant’s slow and incomplete response to medication provided, and the background history of factors which complicated the defendant’s primary psychiatric condition.
Mr Bell was also of the view that a significant period of time within a secure inpatient facility would be required for the defendant to respond to treatment and engage with rehabilitation programs to achieve the mental and motivational state that would be required for a successful transition from James Nash House into supported services in the community. Mr Bell held the view that a longer period of detention would be required to meet the defendant’s complex needs.
Victim and Next of Kin Reports
Ms D’Alessandro, a senior social worker at James Nash House, interviewed the victim regarding the aggravated robbery committed on 29 June 2012; the victim of the serious criminal trespass and theft committed in November 2012; and the victim of the aggravated assault committed on 4 March 2013. Ms D’Alessandro also interviewed the defendant’s mother.
The victim of the aggravated robbery said that the offending caused minimal impact. She did not have any physical injuries and her bag and money were returned. She did not wish to be further interviewed.
The victim of the serious criminal trespass and theft said that there had been damage to his house. The complainant did not wish to be further interviewed.
The victim of the aggravated assault indicated that he had not suffered any long-term impacts. He suffered minor lacerations to the rear of his neck, and pain and discomfort in his left shoulder for approximately two weeks. He had concerns about the defendant being in the community, and said that everyone should feel safe undertaking an ATM transaction during the day. The victim remains concerned that the community would be at risk should the defendant be insufficiently monitored.
The defendant’s mother was supportive of her son and said she appreciated the treatment and support that the defendant had been receiving at James Nash House. She did not acknowledge that the defendant continued to require hospital care. The defendant’s mother was of the view that the defendant’s main issue in the future was compliance with medication.
Fixing a 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. The limiting term is to be fixed on the basis of the head sentence that would have been imposed.
Antecedent History
The defendant’s antecedent report shows that he has committed similar offences in the past, including previous convictions for trespass and larceny.
Personal Circumstances
The defendant is currently 28 years of age and residing at James Nash House. He was born in South Australia. His parents separated before his birth and he has no contact with his biological father. The defendant has an older brother and younger half-sister from his father’s subsequent relationship. He was brought up by his mother and stepfather. The defendant said he did not get on well with his stepfather and reported physical altercations with him.
The defendant has a history of cannabis use dating from the age of nine years. He has a longstanding history of poly-substance abuse including inhaling solvents from glue and paint, and the use of heroin and methamphetamines.
The defendant was diagnosed with ADHD as a child and left school at the age of 15. He has engaged in short term periods of employment in a variety of jobs but has not worked for the past eight years. The defendant is currently receiving a disability support pension.
The defendant was first diagnosed with schizophrenia in 2003 and he has had a significant number of admissions to psychiatric hospitals since that time, including a period of two and a half years in Glenside Extended Care Services between 2005 and 2008. The defendant has absconded from psychiatric facilities in the past.
The defendant spent just under two weeks in custody for his robbery offence, being from 29 June 2012 to 11 July 2012. He was then released on bail and taken back into secure detention on 4 March 2013 after being arrested for aggravated assault. He has remained in detention since that date.
The current offending, in combination, is serious. The maximum penalty for aggravated robbery is imprisonment for life. The maximum penalty for assault causing harm is imprisonment for three years. The maximum penalty for disorderly behaviour is a fine of $1,250 or imprisonment for three months, and for resisting police, a fine of $2,500 or imprisonment for six months. The maximum penalty for aggravated assault is imprisonment for three years. The maximum penalty for property damage, serious criminal trespass (non-residential), and theft, is in each case, imprisonment for 10 years. The maximum penalty for aggravated assault by use of an offensive weapon is imprisonment for four years.
In fixing a limiting term, there can be no discount on the basis of a concession made by counsel for the defendant that the objective elements are made out.[1] Had I been required to sentence the defendant, I would have proceeded pursuant to s 18A of the Criminal Law (Sentencing) Act and imposed one penalty for all of the offending. I would have imposed a head sentence of imprisonment for seven years. Accordingly the limiting term must be seven years. From that I deduct a total of nine months and two weeks for time spent in custody and detention. The limiting term therefore becomes six years, two months and two weeks.
[1] R v Draoui (2008) 101 SASR 267 at [88].
Options
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 subject to conditions.[2]
[2] Section 269O CLCA.
In deciding whether to release the defendant under this division, or in deciding the conditions of a licence, the court must apply the principle that restriction of 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 complainants of his offending.[3]
[3] Section 269S CLCA.
The defendant has a history of violent and aggressive behaviour along with unresolved psychotic symptoms. Mr Bell noted the defendant demonstrated poor frustration tolerance, with frequent angry and aggressive responses when his requests cannot be met, demonstrated by his violent offending in the community and by assaults and threats to staff in mental health facilities. The defendant needs to be closely monitored. The overwhelming medical evidence suggests that the defendant requires a long period of detention in a secure inpatient facility. There is no suggestion that it is appropriate that the defendant be released at present. Having considered the material to which I have earlier referred, and on the basis of the opinions expressed by Dr Furst, Dr Nguyen, Dr Schirripa, Dr Tibrewal, Dr Rose and taking into account the contents of the report from Mr Bell, I have come to the view that it is appropriate that the defendant remain in detention at James Nash House to effectively case manage his complex needs.