R v Pipitone
[2015] ACTSC 164
•30 June 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Pipitone |
Citation: | [2015] ACTSC 164 |
Hearing Date(s): | 25 June 2015 |
DecisionDate: | 30 June 2015 |
Before: | Refshauge J |
Decision: | 1. It be declared that Adrian Bennet Pipitone breached the Good Behaviour Order made on 22 August 2014. 2. The Good Behaviour Order made on 22 August 2014 be cancelled. 3. The conviction of Adrian Bennet Pipitone for damaging property on 17 June 2013 be confirmed. 4. Adrian Bennet Pipitone be sentenced to imprisonment for 4 months and three days to commence on 28 February 2015 and end on 30 June 2015. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentencing – Breach of Good Behaviour Order – Public Advocate – Serious mental health issues – Psychiatric Treatment Order – Substance abuse dependence |
Legislation Cited: | Crimes Act 1900 (ACT), s 309 |
Cases Cited: | R v Pipitone [2014] ACTSC 318 |
Parties: | The Queen (Crown) Adrian Bennet Pipitone (Defendant) |
Representation: | Counsel Mr D SahuKhan (Crown) Mr J De Bruin (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) | |
File Number(s): | SCC 110 of 2013 |
REFSHAUGE J:
There is no doubt that the criminal justice system is challenged when dealing with accused persons who have serious mental health problems. Inevitably, such problems are exacerbated when the person involved also uses illicit drugs and, indeed, may become drug dependent.
Adrian Bennet Pipitone is such a person. He has been a consumer of mental health services for many years. He has a diagnosis of chronic paranoid schizophrenia. He has also come into contact with the criminal justice system but not very often and certainly not as often as many people with such co-morbidities might be expected to.
Mr Pipitone now appears before me for sentencing on a breach of a Good Behaviour Order made on 27 August 2014 when I convicted him of damaging property on 17 June 2013.
The Facts
The genesis of these proceedings was when Mr Pipitone was charged for possessing methylamphetamine on 4 December 2012 and appeared in the Magistrates Court. He was referred for assessment under s 309 of the Crimes Act 1900 (ACT) and, it appears, remained under mental health care until 1 February 2013.
I did not have a clear picture of what happened thereafter but the Statement of Facts, tendered at the sentencing, without objection, stated that Mr Pipitone was admitted under a Psychiatric Treatment Order to the Extended Care Unit of the Brian Hennessy Rehabilitation Centre on 4 March 2013.
On 17 June 2013, his mother visited him at that Centre without incident but, shortly after, he became very agitated and was seen by staff members in the main corridor yelling and kicking the internal plaster wall. He kicked two large holes in the plaster wall.
The staff told him to calm down but he continued yelling, including yelling statements such as, “I will kill you” directed towards staff members, although he did not act with violence to any person. He continued walking along the corridor, kicking the plaster internal walls, causing a total of about thirteen large holes.
He then walked into his room and closed the door, though he continued to yell and damage the internal plaster walls of his room, creating six large holes.
Police were called and Mr Pipitone explained to them, “I got a bit angry and kicked some holes in the walls”. He was arrested and placed in handcuffs as a result of his violent behaviour. He was charged with damaging the property.
He was remanded in custody and remained in custody until he was granted bail by this Court on 14 September 2013, with a condition that he enter the GROW Community at West Hoxton, New South Wales to undertake the program of Live-In Rehabilitation conducted by that agency.
Unfortunately, he left the program on 28 September 2013 but re-entered on 1 October 2013 leaving, finally, on 14 October 2013. He was there for a total of 26 days. The program co-ordinator reported that he had “never been interested in studying the program” and “isolated himself”.
On 7 February 2014, he was convicted of the charge of possessing methylamphetamine and released on a twelve month Good Behaviour Order with a probation condition.
As noted above, on 27 August 2014, I convicted him of damaging the walls at the Brian Hennessy Rehabilitation Centre and I made a Good Behaviour Order for twelve months: R v Pipitone [2014] ACTSC 318.
The Good Behaviour Order contained a probation condition and a condition that he consent to any provider of treatment or counselling services for drug and alcohol use and ACT Mental Health Services providing to the Public Advocate any information about his compliance with the Good Behaviour Order. This was because, on 25 March 2014, the ACT Civil and Administrative Tribunal had appointed the Public Advocate as his guardian with, in particular, powers to give consent to medical procedures and to make other personal decisions needed to ensure his health and welfare needs are met.
On 17 February 2015, a Probation and Parole Officer of Community Corrections in ACT Corrective Services swore an information under s 102 of the Crimes (Sentence Administration) Act 2005 (ACT), that Mr Pipitone had breached a direction given to him under the Good Behaviour Order that he not use illicit substances nor abuse prescribed medications. On 11 February 2015, the information deposed, Mr Pipitone submitted to urinalysis, the result of which tested positive for amphetamine, methylamphetamine and cannabis.
The breach was admitted.
Subjective Circumstances
Mr Pipitone is 41 years old. I did not have a lot of information about his personal background. He has an older brother and a younger sister. His childhood appears to have been reasonably uneventful, though he found it somewhat difficult at school as he did not get on with the other children. At about age 14 or 15, he experienced some bullying and left school during Year 10.
He initially worked in the retail sector but had an interest in computers and worked as a computer technician and, between 1990 and 1992, as a computer salesperson.
He is a single man and has had no significant intimate relationships.
He first came into contact with the mental health system in 1995 and was admitted to a psychiatric unit.
He has been diagnosed with paranoid schizophrenia, as I have noted above (at [2]). He has also been diagnosed with a substance abuse dependence. He has been hospitalised a number of times. On a number of occasions, he has been referred for assessment under s 309 of the Crimes Act. This provision allows the Magistrates Court to have an accused person taken to an approved health facility for clinical examination to decide whether the person needs immediate treatment or care because of mental impairment. I had available to me a number of reports following the examinations that had been made as a result of those examinations.
Mr Pipitone has a significant drug problem but it has been difficult to get a clear picture of it. He has no real problem with alcohol and he says he does not generally drink it.
He is reported to have been spending up to $10 on cannabis every few days but said that he gave up its use when his bail conditions precluded its use.
He also used amphetamines, apparently up to 2 points of ice every few days but, again, said he had given its use up when on bail. This, unfortunately, does not seem to be borne out by the few times he has been subject to urinalysis and, indeed, which has brought him now before the courts.
Mr Pipitone has also used heroin and was said to have injected about 1/8th of a gram every few months.
Though denying much drug use, I note that he was served, in March 2014, with an eviction notice from Ainslie Village due to drug use on the premises.
He has been in contact with the Alcohol and Drug Service of ACT Health (ADS). He has, however, steadfastly declined to attend residential drug rehabilitation.
Reading the various mental health reports, it is clear that his drug dependence severely disrupts the management of his mental health.
In the most recent report to the Court, Dr Richard Gray, Psychiatrist, said:
A major contributor to the difficulty managing Adrian’s illness has been a lack of insight into the harm illicit substances do to his mental state & a corresponding absence of motivation to change behaviour with respect to his substance abuse. Reflecting this lack of insight is the fact that Adrian has been on a succession of psychiatric treatment orders (PTOs) continuously, or effectively so, since 2008. While the TPO’s have been able to mandate compliance with long-acting injectable medication, they haven’t been able to ensure compliance with oral medication including Cloazipine, & haven’t been able to stop Adrian’s habitual substance abuse – even when he has been an inpatient of the Mental Health Services. The result has been a chronically chaotic lifestyle &, in the last four years, admission to hospital for a stabilisation on an annual basis.
Dr Gray continued:
At this stage, the only way to ensure Adrian doesn’t use street drugs would be to treat him in the secure residential facility. The only non-forensic facility of this nature in the ACT is the Brian Hennessy Rehabilitation Centre (BHRC). However, it was at the end of his last admission there that he committed the property damage offences for which he is on the Good Behaviour Order. Sending Adrian back to the BHRC carries a significant risk of the same problems & outcome as last time.
He has, including the current offence, eight offences on his criminal record. Of those, six are traffic offences dating back to between 1992 and 1998. As noted above (at [12]), he was convicted of possession of methylamphetamine in 2014 and, of course, of the current offence of damaging property also in 2014.
Mr Pipitone was provided with support from the Transition to Recovery Program of Woden Community Services, known as TRec. This program provided much needed support to Mr Pipitone. The Key Worker supporting Mr Pipitone described his living arrangements in very satisfactory terms. That support, however, is now expired, which is very unfortunate, but may be replaced, to some extent, by the support provided by the Canberra Mens Centre to which I refer below (at [41]).
An indication of the challenge posed by Mr Pipitone’s circumstances is that since being granted bail by this Court, there have been a number of breaches occasioned by him failing to attend for supervision or failing to submit to urinalysis.
It seems obvious to me that much of this is connected with his mental situation and what has been described above (at [29]), as his “chaotic lifestyle”. It is to no-one’s benefit for him to be put on to a regime with which he is realistically incapable of complying, in part, at least, because of his mental condition.
Despite these challenges, it was submitted to me that significant progress had been made since Mr Pipitone appeared before me to answer the breach.
The breach action was first mentioned in Court on 24 February 2015. While Mr Pipitone was not present, he was represented and, in due course, the breach was admitted.
The matter has returned to Court on three occasions since then and on all but one occasion, Mr Pipitone has been present. On one occasion, he arrived late. Nevertheless, he has been generally compliant.
The present position is that Mr Pipitone is subject to a Psychiatric Treatment Order which expires on 25 August 2015. He is being treated with an injectible antipsychotic medication. Regrettably, he often needs to be reminded of the need to present for treatment. He continues as a consumer of mental health services, though with some irregularity.
Since the commission of the offence, the Public Advocate has been appointed guardian of Mr Pipitone for relevant purposes, as set out above (at [14]).
The information I had are that these arrangements are working adequately.
He is currently being assisted by the Canberra Mens Centre and will enter into the MASS program of that agency this month. The agency is helping him to build routines around personal health, regular contact with health providers, hygiene and shopping.
This program appears to be providing valuable support for Mr Pipitone, though perhaps not as intensive as the support previously supplied by TRec as noted earlier (at [32]).
Despite the rather ambiguous attitude Mr Pipitone has expressed to his drug abuse, he has engaged to some extent with the ADS. Unfortunately, I did not have a recent report from the Court Alcohol and Drug Assessment Service (CADAS) but a reference to a referral from the ADS to the Mental Health Assessment Unit on 17 June 2015 leads me to infer that he is still engaging with that agency at some level. He was, at one stage, being treated with Suboxone but I cannot confirm whether that is continuing. He has expressed a preference for that treatment in the past.
Further progress is evidenced from the most recent Bail Progress Report, where it stated:
Despite rarely attending this Service at the schedule times, Mr Pipitone reported on eight occasions since his Supreme Court appearance. When in attendance the offender engaged well and appeared to have an understanding of his Court ordered requirements; however, he struggled to maintain his motivation to comply with these obligations.
While the lack of scheduled attendance creates problems, it is likely that the chaotic existence of Mr Pipitone will continue to make that a challenge but the fact of attendance and engagement is to his credit and an advance of the stability of his present situation.
I am also advised that when the National Disability Insurance Scheme becomes available to Mr Pipitone in 2016, there will be further advances available to him.
I note that Mr Pipitone has been charged with no further offences since he was charged for the current offence.
I have seriously considered the recommendations of Mr Pipitone’s mental health worker that he needs drug rehabilitation and that this would best be provided in a residential rehabilitation facility. That may be so but Mr Pipitone is not willing to do that. In other circumstances, that may be of no moment and it may be that, for a person without a mental impairment, it would simply be mandated. For a person with the impairment of Mr Pipitone, I consider it is more likely to set him up to fail. That is likely to result in further interaction with the criminal justice system.
Deterrence depends on a person making rational choices and mental impairment means that it is not always possible to make rational choices.
Consideration
Mr Pipitone admits the breach of the Good Behaviour Order under s 108 of the Crimes (Sentence Administration) Act. The current order has a little less than two months left to run. I have a number of choices set out in that section as to how to proceed. I can take no further action, extend it, amend it or cancel it and re-sentence Mr Pipitone.
It seems to me that the supports he is now accessing do not need the backing of the mechanism of the Good Behaviour Order. This seemed to be the view of his counsel, the Public Advocate and the representative of Forensic Mental Health.
In my view, Mr Pipitone needs to be moved out of the criminal justice system and into the mental health and welfare systems to continue the slow, halting, but nevertheless positive trajectory of him living in a crime free way that he has now managed to do since 2013 and, before that, between 1998 and 2012.
Accordingly, I will cancel the Good Behaviour Order and re-sentence Mr Pipitone. I take into account his plea of guilty and the matters set out in s 33(1) of the Crimes (Sentencing) Act 2005 (ACT). So far as I know them, they are set out above.
I take into account his mental impairment and apply the relevant principles set out in R v Verdins (2007) 16 VR 269 at 276; [32].
I take into account the 26 days Mr Pipitone spent in the Grow community which, although not strictly custody, can be taken into account, as I explained in R v Todd Elphick (No 2) [2015] ACTSC 23 at [86]-[90].
It seems to me that it is better for Mr Pipitone and for the agencies which are supporting him that this involvement in the criminal justice system should be brought to an end.
Mr Pipitone, please stand:
1. I find that, in February 2015, you breached the Good Behaviour Order made on 22 August 2014.
2. I cancel that order.
3. I confirm the conviction for damaging property on 17 June 2013.
4. I sentence you to imprisonment for 4 months and three days to commence on 28 February 2015 and to end today. Had you not pleaded guilty, I would have sentenced you to 5 months imprisonment.
| I certify that the preceding fifty-seven [57] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Refshauge. Associate: Date: 6 July 2015 |
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