R v Pylypenko - [2025] SADC 32

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v PYLYPENKO
[2025] SADC 32
Judgment of her Honour Judge Davison
21 March 2025
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT - EVIDENCE - PSYCHIATRIC EVIDENCE
The accused is charged with a number of offences relating to his attendance at his parent’s home on 9 April 2022. He has alleged that he was mentally incompetent to have committed these offences on the basis that he could not reason his conduct was wrong. The prosecution contested that allegation. Two psychiatrists examined him, provided reports, and gave evidence.
Held: It was not proved on the balance of probabilities that the accused was mentally incompetent.
Criminal Law Consolidation Act 1935 (SA) s 268, referred to.
R v Bonython [1984] 38 SASR 45; R v Childs [2023] SASC 103; Stapleton v The Queen (1952) 86 CLR 35; R v Porter (1936) 55 CLR 182, applied.

R v PYLYPENKO
[2025] SADC 32
Introduction

David Martin Pylypenko is charged with two counts of damaging property and one count of aggravated serious criminal trespass in a place of residence. The prosecution alleges that on 9 April 2022, Mr Pylypenko travelled from Adelaide to Mount Gambier, to the home of his parents. His father was there alone, as his mother was in hospital. At about 7:40 pm, there was a knock at the door. His father went to open the door and unlocked the main door. The screen door was locked and shut. As he opened the door, he saw his son (the accused) standing back from the main door. The accused started yelling and stating that he knew ‘this was going to happen.’ He then began smashing the front lounge room window with a baseball bat.
Mr Pylypenko Snr, raced to his bedroom to get his walking cane. He did this for his own protection. As he did so, he heard smashing coming from the direction of the front of the house. He then walked back to the end of the hallway, where it adjoins the lounge room. The accused was standing in the lounge, and the windows to the lounge room were smashed. He was yelling at his father to stop the legal process. He said it was ‘his [father’s] fault’ and that his father had to stop the proceedings. He then turned around and smashed the television with the baseball bat. Mr Pylypenko Snr left the house by the laundry, connected to the hallway, walked around the back of the house and started banging on the fence to raise his neighbours. He did not get any response, so he walked around the front of the house, via the right-hand side of the house. The accused followed him, exiting the house through the broken front window. Mr Pylypenko Snr went to the front door of his neighbour’s home and knocked. The accused continued to follow him along the road and walked up the driveway towards him. He then walked back onto the road and walked away.
There was substantial damage to the property in the home. This damage included; the windows at the front of the house; the glass in one of the French doors leading to the study; the television in the lounge room; the smaller television in the study; the computer screen in the study; and a chess clock. There was also damage to the windscreen on the driver’s side of the vehicle that was in the garage.
The Charges
Count 1:
Offence Details:
Damaging Property. (Section 85(2) of the Criminal Law Consolidation Act, 1935)
Particulars
David Martin Pylypenko on the 9^th day of April 2022 at Mount Gambier, without lawful excuse, damaged a building and contents including windows and doors, blinds, flooring, a television and other electronic items, the property of Valentine Pylypenko, intending to damage property, such damage amounting to more than $2,500 but not more than $30,000.
Count 2:
Offence Details:
Aggravated Serious Criminal Trespass In A Place of Residence. (Section 170(1) of the Criminal Law Consolidation Act, 1935)
Particulars
David Martin Pylypenko on the 9^th day of April 2022 at Mount Gambier, entered or remained in the place of residence of Valentine Pylypenko as a trespasser, with the intention of committing an offence therein, namely, an offence of damaging property.
Circumstances of aggravation
It is further alleged that David Martin Pylypenko committed the offence knowing that the victim of the offence was a person with whom he was in a relationship.
It is further alleged that David Martin Pylypenko committed the offence knowing that the victim of the offence was over the age of 60 years.
It is further alleged that another person was lawfully present in the place of residence when the offence was committed and David Martin Pylypenko knew of the other’s presence or was reckless about whether anyone was in the said place.
Count 3
Offence Details:
Damaging Property. (Section 85(2) of the Criminal Law Consolidation Act, 1935).
Particulars
David Martin Pylypenko on the 9^th day of April 2022 at Mount Gambier, without lawful excuse, damaged a motor vehicle, the property of Valentine Pylypenko, intending to damage property, such damage amounting to not more than $2,500.
Part 8A – Mental Impairment
Pursuant to s 269D of the Criminal Law Consolidation Act (‘the Act’):
A person's mental competence to commit an offence is to be presumed unless a person is found on an investigation under this division to have been mentally incompetent to commit the offence.
The accused alleges he was mentally incompetent to commit the offences with which he is charged. He has elected for trial by judge alone, pursuant to s 269B of the Act.
Pursuant to s 269E of the Act, if, on the trial of a person for an offence, they raise a defence of mental incompetence, the question of whether they are mentally incompetent to commit the offence must be separated from the remainder of the trial. As the trial judge, I have the discretion to proceed first with the trial of the objective elements of the offence or with the trial of the mental competence of the defendant. I determined that the trial of the mental competence of the defendant would be tried first, pursuant to s 269F.
269C—Mental competence
(1) A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—
(a) does not know the nature and quality of the conduct; or
(b) does not know that the conduct is wrong; that is, the person could not reason about whether the conduct, as perceived by reasonable people, is wrong; or
Note—
Paragraph (b) adopts the test as stated and excludes from consideration whether the defendant could reason with a moderate degree of sense and composure as set out in R v Porter (1936) 55 CLR 182.
(c) is totally unable to control the conduct.
The defendant had been examined by two psychiatrists, who provided reports concerning his mental competence. Dr Jessica Lowe provided a report, dated 19 June 2024. This was marked Exhibit P5. Dr Hoa Nguyen provided two reports, the first dated 24 November 2023, which was marked Exhibit D7, and an addendum report, dated 16 September 2024, which was marked Exhibit D8.
The Trial
As the defendant has the onus to prove that he was mentally incompetent to commit any or all of the offences with which he is charged, on the balance of probabilities, the trial commenced with him being called.
He gave evidence that he is 47 years old and works full-time in demolition and asbestos removal. He is currently in a relationship with a woman whom he has known for five years. He said his father is Mr Valentine Pylypenko, and his mother is Glenis Pylypenko, and resides in Mount Gambier. He has a brother who resides in Melbourne, but they do not have contact with each other. When his grandmother passed away, he said he was left some money from her will. His father was left out of the will. He claimed that his father was furious that he had bought a house with the inheritance and instituted South Australian Civil and Administrative Tribunal (SACAT) proceedings in 2016 to have his house taken away from him.
He claimed that his parents made phone calls behind his back to SACAT and that he was subject to orders. He said that he was stripped of his Centrelink benefits, and these payments were instead collected by his parents. Mr Pylypenko stated that in 2016, he spoke with Dr Pam Carol and Dr Colin Field, who wrote reports for SACAT regarding him. He did not believe that these were the ‘greatest reports’, as they said he was not making the best decisions and was not in the greatest frame of mind.
In 2019, he stated that orders were issued by SACAT regarding special powers, which granted Valentine Pylypenko control over his affairs. He said that his father used this power to ‘kill and destroy him.’[1] He went on to say that in 2020, SACAT orders were made in relation to guardianship administration and special powers and a caveat was placed on his residence.[2]
[1] T10.
[2] Ibid.
At Christmas time in 2021, Mr Pylypenko had a call with his father, where his father told him that they would be taking his house. Mr Pylypenko, thereafter, sent messages to his father saying that he would not let them take his house. Mr Pylypenko believed that his father was involved in the orders made by SACAT to sell his house. SACAT documents were tendered.
Mr Pylypenko agreed that he sent text messages to his father in approximately December 2021 and January 2022. In these messages, he said he told his father to stop the orders to SACAT. He acknowledged that the messages were vicious, as they spoke of property damage to his father's house. He said that at the time he sent the messages, he was scared and worried as he had nowhere to go. He said he was not given another location to live. He claimed that they were going to ‘kill’ him.[3] He explained what that meant:[4]
Well you know if they take your house from you then you've got no job, you've got nowhere to live and you basically, you know you're sort of dead. You know I'm not living on the street because I'm dead and I need somewhere to live and a roof over my head and I need a job and I was working very hard at the time and I didn't deserve any of this treatment, I did not deserve any of this and you know when I say that when they take your house you are pretty much dead that's pretty well true you are pretty much dead, that's a fact.
[3] T15-17.
[4] T17.
Mr Pylypenko gave evidence that he believed his father was orchestrating the sale of his house, as he had power of attorney. He said that his father asked SACAT for further information on him to gain more ‘power’ over him.
Before driving to Mount Gambier, Mr Pylypenko explained his thought processes as follows:
Well, basically the orders were still coming and they were still coming at a rapid pace, they were still sending me correspondence, like letters in my letter box telling me they were going to take my house and I was receiving no help at all. So I actually physically went to SACAT, I went into the office on level 11 Pirie Street and I asked them 'Why were they trying to take my house from me' and they didn't help me at all, they just said that I have to leave the building and so I left the building but unfortunately I didn't receive any help, no-one helped me and the orders were still coming and they were coming like a freight train, it was crazy.
…
Well, very scared, very worried, yeah, scared, well I was very scared, I was very scared and I was very worried and you know and I sort of like, you know, I don't know I guess I just - like I knew where the orders were coming from, I knew that it was Val, I knew he was sending them and I had to stop the orders, I had to stop this, this had to stop, it was because of him, it wasn't more SACAT, I mean it was SACAT but it was also my father, they were all in on it.
…
Well I had to stop him from sending emails to SACAT through his computers because I knew that he was doing that, I knew that he was sending correspondence through his computers through to SACAT, they were in full correspondence. It went on for quite a while too, like a couple of months, and then you know and then I just got to the point where I sort of realised that you know it's actually, it's just about to happen, they are actually just about to come and take my house, we were not far away, I don't know how close we got but we are never getting to that again.
Mr Pylypenko said he travelled to Mount Gambier. He stopped at a service station on the way. He also bought a baseball bat from a sports store in Mount Barker, as he had the feeling that he was going to have to smash his way in and destroy the computers to stop his father from sending orders to SACAT. He said there was nothing else that he could do.
When Mr Pylypenko was cross-examined, he denied thinking about his actions, the subject of the charges, in December 2021, but said maybe he had been thinking about it before that in the few weeks prior to the offending. He agreed that he had parked a few streets away from his parents’ house, and attended at the door with the baseball bat, gloves, and a hard hat. He denied that he was angry whilst doing this. He said that he was annoyed and scared. He said that he never wanted to hurt his father or scare him. He just wanted the orders to stop. He agreed that he knew the difference between right and wrong; he knew it was wrong to enter his father’s house and damage property. He said that he did not want to commit the acts, subject to the charges, but wanted the orders to stop, and the events played out due to the ‘evilness’ of his parents’ actions.[5] He agreed that he threw away the baseball bat in a nearby forest because he ‘didn’t want to have anything to do with it.’[6]
[5] T43-44.
[6] T46.
He was cross-examined about the history he had provided to doctors. He denied lying to the doctors in order to receive a positive report. He agreed that he told the doctors that he did not take drugs, and that he may have taken drugs when he was younger, but that was decades ago.
Both Dr Nguyen and Dr Lowe were seated in the Court during the evidence that Mr Pylypenko gave, and also remained during the evidence given by each other.
The expert evidence
Dr Nguyen
Dr Nguyen is a legally qualified medical practitioner. He is registered in Australia as a specialist psychiatrist. He obtained his basic medical qualifications from the University of Adelaide in 2002 and first worked within the mental health system in 2003. He entered into psychiatric training in 2006 and completed that in 2011, when he was granted a fellowship at the Royal Australian and New Zealand College of Psychiatrists. In 2011, he was employed as a consultant psychiatrist with the Southern Adelaide Mental Health Service and took on the role of consultant, consultation-liaison, and acute inpatient psychiatrist. Between 2013 and 2018, he worked as a consultant psychiatrist with the Forensic Mental Health service, with duties in both the inpatient unit and the community outpatient service. Since 2018, he has been working at the Royal Adelaide Hospital as a consultant psychiatrist, where he has duties in the acute inpatient unit. In 2020, he moved to the older person mental health service acute inpatient unit, located at the Queen Elizabeth Hospital, where he continues to work. He also maintains a private practice.
Dr Nguyen interviewed Mr Pylypenko on 19 October 2023. His opinion is that Mr Pylypenko has a mental incompetence defence for the offending. In short, he says that Mr Pylypenko was labouring under a persecutory delusion that his parents were involved in the application to sell his home. He also considered the possibility that his understanding was due to illogical thoughts related to a thinking style, as a result of probable Autism Spectrum Disorder (‘ASD’). However, regardless of this, he opines on the balance of probabilities that Mr Pylypenko was unable to know the wrongfulness of his actions. Further, he said that there is no evidence to suggest that Mr Pylypenko was unable to know the nature and quality of his conduct[7] nor be unable to control it.[8]
[7] s 269(1)(a).
[8] s 269(1)(c).
Dr Nguyen gave evidence that Mr Pylypenko presented at the interview, conducted on 19 October 2023, in a very similar fashion to his presentation in Court. His demeanour was of somebody trying to present favourably and give his best impression. Dr Nguyen said that he attempted to engage reasonably well. Dr Nguyen questioned the account provided by Mr Pylypenko as it did not appear as though Mr Pylypenko was being upfront in his accounts of some of his history that, in his perspective, may have appeared unfavourable.
Dr Nguyen did not perceive any evidence of significant mood or thought disorder, nor were there any gross cognitive abnormalities.
Dr Nguyen said that when he comes to assess people, he has a degree of scepticism or curiosity about what people say and tries to see if it is consistent with the associated material. He did note that there were some inconsistencies with how Mr Pylypenko perceived his life to be, in respect of his quality of relationships with his peers and family, and his history of offending and anti-social behaviour. He noted that Mr Pylypenko was either not willing to be forthcoming or not able to be forthcoming about those things. He got the impression that Mr Pylypenko was trying to garner a favourable response. However, he determined that, given the information that was provided, he favoured that there was a significant component of delusional thoughts that led to him acting out in the way that he did. Dr Nguyen stated that the delusional thoughts presented in the paranoid delusions were that his father and his family were plotting against him to gain for their own benefit.
Dr Nguyen was asked to explain the difference between a fixation on a fact that is wrong, versus a fixation in respect of something that is delusional. He responded by saying that it can be quite an individual experience as well, but when he interviewed Mr Pylypenko and also assessed the associated materials, he formed the opinion that the fixated thoughts that he had were very intense. The fixated thoughts stirred up a lot of emotion for Mr Pylypenko, to the extent that he acted out in such an extreme manner.
He noted that Mr Pylypenko had previously made verbal threats. However, he said that he did not get a clear history from the information available that Mr Pylypenko had ever acted out on those thoughts with violence, let alone violence as extreme as the alleged offending. That indicated to Dr Nguyen that Mr Pylypenko was very preoccupied and distressed with his fixated thoughts, and he made an assessment that they were of quite significant intensity, and therefore, crossing the threshold for him in determining that Mr Pylypenko was experiencing delusional beliefs.
The delusion, Dr Nguyen explained, was a persecutory delusion that his father and others were trying to sell his house so that they could financially gain from that sale. Despite the fact that he had information in his possession that was contrary to this view, Mr Pylypenko was unable to shake or reconsider that fixated thought.
Dr Nguyen gave evidence that ASD and delusional disorders can co-exist and that it is not uncommon. He said that a person with ASD may be more prone to developing psychotic illnesses compared to the general population, who do not have ASD.
He was asked to comment on whether Mr Pylypenko was unable to know the wrongfulness of his actions in light of evidence that Mr Pylypenko had given, that he understood that his actions were wrong.

Dr Nguyen explained that there was a lot of evidence that suggested Mr Pylypenko knew the illegality of his conduct, but, in his opinion, because of the delusions, he was unable to know the wrongfulness of his conduct compared to reasonable persons. After he had committed the acts, his distress was reduced. Mr Pylypenko had articulated that executing the attack would end the ‘war,’ so he was able to satisfy his need to resolve the delusion, and that by doing that, led him to feel calmer and less threatened. This was consistent with how he appeared in the police interview.
Dr Nguyen was cross-examined. It was put to him that there were two main differences between his and Dr Lowe’s opinion. The first was the actual diagnosis of a delusional disorder, and the second was whether that operated in a way to make Mr Pylypenko unable to understand the wrongfulness of his actions. He agreed with these propositions. He said that he felt quite confident in his finding that ASD has not resulted in Mr Pylypenko being unable to know that his conduct was wrong, rather, it was the delusional disorder.
Dr Nguyen said that there were three aspects to the delusion. The first being that his father had planned to take his house. The second aspect being that there was a ‘war.’ The third aspect being that there was a threat to his physical safety in the ‘killed’ type comment. Dr Nguyen accepted that it was so, and said the last of them, being the ‘kill’ comment, was an exaggeration of the situation if he were to become homeless.[9]
[9] T71.
In respect of the first aspect, Dr Nguyen was asked why he said that belief was a delusion rather than a misinterpretation of his legal situation. He responded that Mr Pylypenko seemed unable to reappraise his ideas when presented with different facts. He went on to refer to the written transcript from SACAT, which indicated that his parents were opposed to the sale of the house and Mr Pylypenko being so inflexible about the idea and glossing over it.
There was also, Dr Nguyen said, the history of the nature and quality of his relationships with his family. Dr Nguyen explained that, despite Mr Pylypenko’s strong expression of grievance throughout the assessment, when he came to talk about his development and his relationships with his parents, he smiled and seemed to reflect quite fondly and said that they had a ‘pretty good’ relationship, but somewhere along the line that relationship changed. Dr Nguyen formed the idea that was probably in keeping with the time course of the onset of these delusions, or the evolution of the delusions.
Dr Nguyen also placed some store in the affidavit from Mr Pylypenko’s father, stating that Mr Pylypenko had become much more paranoid in the 18 months prior to the alleged offending. He also placed weight on the intensity of the held beliefs and considered that it had changed his behaviour and willingness to act out in an anti-social way with extreme violence when previously there was no real history of any extreme violence, such as that. He acknowledged that there had been threats, but where there were threats, when he was assessed in hospital or by mental health clinicians, they seemed to be somewhat diminished compared to the problems that existed when those phenomena were initially reported. In summary, Dr Nguyen said that he thought it was the changes in the relationships, several reports of increasing paranoia, and then the intensity with which those beliefs were held and were unshakable and by definition, that constituted a delusion.
Dr Nguyen was asked whether he agreed that there was a strong basis in the real-life situation that Mr Pylypenko was facing and the delusion. He responded by saying that there was some real stress and that he thought that probably contributed to Mr Pylypenko’s vulnerability for developing delusional beliefs.[10] He said that the threat of the Public Trustee to sell his home, which he perceived to be a big threat against his living and integrity, along with his perception of relationships and people’s motivations – which was to be contrasted with their expressed motivations – was what constituted the difference between the stress and reality, and the false beliefs that formed the delusions.
[10] T73-74.
In respect of Mr Pylypenko’s knowledge of the wrongfulness of his actions.[11]
[11] T77-78.
Q.In your evidence this morning you said that it was apparent from the information that you had that Mr Pylypenko knew what he was doing was illegal but that because of his delusion he was unable to know the wrongfulness compared to reasonable people, what evidence have you used to get to that opinion.
A.I think the crux of it is forming an opinion that he had a mental illness, being delusional disorder as the most significant of a paranoid nature and his motivation to commit the alleged offending was driven by his paranoid beliefs and his sense of threat and so he went to try to problem solve that in the commission of the offence.
Q.So you say it's both the paranoid beliefs and the sense of threat that's driven him to commit these offences.
A.The paranoid beliefs drive a sense of threat, or lead to a sense of threat, yes.
Q.Is it the case that the sense of threat that you're talking about to his present situation and fear of the house being sold, that's actually really the motivating factor here rather than a delusion.
A.I think they are one and the same that he's got these delusions of a paranoid nature that he perceives as threatening his existence, he perceives that there's a threat to, a threat of a loss.
HER HONOUR
Q.If he had such a paranoid delusion, that is that his father in particular was trying to sell the house from under him and he would be left homeless, does that necessarily mean that he knows that going to the house, or he doesn't know that going to the house and damaging the property is wrong. Does one necessarily follow the other.
A.Yeah, I think it depends on which perspective you're trying to consider. I think in a legal sense I think he would have known that it was wrong and I think there's evidence after the commission of the alleged offences that point towards that, however when we compare his appraisal of the situation and ability to know right from wrong compared to reasonable people I think he lacked the ability to make a reasonable appraisal of the wrongfulness in that perspective, so not from a legal perspective.
Q.And do you say that that's at the time he goes to the house and damages the property, goes inside and damages the property, that he would at that time not have known his conduct was wrong.
A.Yes, when compared to reasonable people because of the delusions that were driving him to do that.
Dr Nguyen explained that he formed the opinion that the accused had a complete incapacity to know the wrongfulness of his actions as he was labouring under intense delusional beliefs. As such, he would be unable to reason that those ideas were false and that his father was trying to orchestrate the sale of his house. He was asked if Mr Pylypenko knew that his conduct was wrong, and he replied:[12]
A.So he's formed in his mind the idea that if he carried out this attack, that that would stop the war, or the communication with, from, between his father and SACAT, and, yep.
Q.So you say, in that sense, his conduct in going there and damaging the property was something he was unable to reason about.
A.That's right.
[12] T80.
He agreed that Mr Pylypenko knew that the acts he committed were illegal and conceded that at the time Mr Pylypenko discarded the baseball bat after the conduct, he was probably trying to conceal his illegal activity, and he was making attempts at not being caught or made responsible for his actions.
Dr Nguyen maintained his opinion that Mr Pylypenko had a delusional disorder, and as a consequence of that delusional disorder, he did not know that his conduct was wrong, that is, he could not reason about whether the conduct, as perceived by reasonable people, was wrong.
Dr Lowe
Dr Jessica Ann Lowe was called by the prosecution. She briefly outlined her qualifications. She completed a Bachelor of Bio-Medicine at the University of Melbourne in 2012. She then commenced a medical Doctorate at Flinders University and obtained that qualification in 2016. She then completed a year of vocational training as an intern before being accepted into psychiatry training. She completed that training in five years, gaining her Fellowship in the Royal Australian and New Zealand College of Psychiatrists in February 2023. During her final two years of training, she completed an advanced training certificate in psychiatry, qualifying her as a forensic psychiatrist. She also completed a graduate certificate in forensic mental health at the University of New South Wales, which she completed at the beginning of 2023.
Since completing her training, Dr Lowe has gained a full-time permanent position as a forensic psychiatrist with the South Australian Forensic Mental Health Service. She runs the forensic community mental health team as a part of her role. In that role, she looks after approximately 180 to 200 forensic patients who have been found mentally incompetent or unfit to stand trial in South Australia. About 50% of the patients she looks after have a neurodiverse or neurodevelopmental disorder, such as ASD or an intellectual disability. She also conducts prison clinics, providing in-reach psychiatric care for prisoners at Port Augusta Prison. She has also provided cover for her forensic psychiatry colleagues at James Nash House, both in acute and rehabilitation forensic psychiatry.
Her opinion is that Mr Pylypenko is not mentally incompetent to have committed the offences with which he is charged. He does suffer from a mental impairment, having an ASD, however, in her opinion, he knew the conduct, the subject of the charges, was wrong. That is, he could reason about whether the conduct as perceived by reasonable people was wrong. As such, he does not have a defence of mental incompetence available to him in respect of these charges.
Dr Lowe gave evidence in relation to a delusional disorder. She described this as a psychotic illness. She said that the criteria are that there must be a delusion, which is a fixed, false belief based on unreality. This has to be present for a month, and there have to be no other features that could indicate another psychotic illness, such as schizophrenia, hearing voices, or having any other sort of psychotic symptom. She explained that the person also has to maintain functional capacity, for instance, an ability to continue working, and have no other deficits in their ability to look after themselves on a day-to-day basis. Importantly, the delusion must not be better explained by some other medical, psychiatric or other sort of disorder.
She explained ASD as a neuro-developmental disorder. She explained that it is considered to be a spectrum, as is consistent with its name. It involves lifelong and persistent deficits in emotions and behaviours. The current DSM, which she said is the main reference in Australia used to diagnose such conditions, outlines seven criteria that fall under the broad headings of deficits in emotional and interpersonal interactions, and then odd or eccentric behaviours. A person would have to fulfil several criteria for this.
She described the difference between ASD and delusional disorder. A delusional disorder, she explained, is a discrete psychotic illness that is quite clear and is either present or not present. ASD can present with variations of normal. Everyone can display some of the symptoms of ASD to various degrees, depending on the individual and how they are made up biologically. Where there can be some cross-over, as we see in the present case, a feature of ASD is an insistence on sameness, cognitive inflexibility in thinking, and rigidness in interpreting things literally and in a very rigid manner. That can sometimes be interpreted as being so intense or fixed in a belief that a person would not be able to reason that there was an alternative explanation for something. There may be a crossover when considering a delusion and a definition of a delusion as being a fixed, false belief, but the difference with a delusional disorder is that the fixed belief, and particularly the falsity of the belief, stems from a psychotic misinterpretation of a situation rather than a paranoid delusion.[13]
[13] T107.
Dr Lowe went on to say, that with ASD, the fixed and rigid belief can come from an unwillingness to consider things differently, often a reality-based situation, and it can be interpreting things literally and struggling with nuances of situations. Her opinion is that Mr Pylypenko has a diagnosis of ASD, rather than a delusional disorder. This was based on the combination of her assessment and looking at the collateral health records, including a psychological report that was prepared by Dr Field. She said these records and information outline that there has been a lifelong pattern of odd and fractured or difficult interpersonal interactions, often relating to misinterpreting the subtleties of interpersonal interactions, nonverbal communication, and jumping to conclusions about things. She described Mr Pylypenko as having an intensity in the way he communicates, particularly during the psychiatric interview, and struggling to understand the back-and-forth of that interview, as well as the social and emotional reciprocity that naturally occurs between people.
Dr Lowe was asked to comment on the three aspects of the presentation of Mr Pylypenko, upon which Dr Nguyen had relied to form his opinion in respect of the delusional disorder and the consequences that flowed from that. The first was the belief that Mr Pylypenko's parents were controlling his finances. She stated that the evidence Mr Pylypenko presented to her as proof of this belief was the SACAT order, an administrative order that mentioned his parents would serve as the liaison between the Public Trustee and Mr Pylypenko regarding his best interests. She said that Mr Pylypenko had either misinterpreted this stipulation or the role of his parents in the administrative order. He jumped to the conclusion about what their involvement meant.
Dr Lowe said that having regard to Mr Pylypenko’s medical history, his health records and the report of Dr Field, demonstrates that Mr Pylypenko has a longstanding history of being impulsive, jumping to conclusions and making incorrect assumptions in those circumstances. For that reason, Dr Lowe said that she could not find that it was a delusion. She characterised it as a misinterpretation of a legal order. It could not be said to be based in unreality.
The second aspect is the ‘war attack’ aspect. She said that her interpretation was that Mr Pylypenko's referring to things as a ‘war’ is more a quirk of his style of communication. She noted from his health records that during a previous conflict with his employer, he similarly described that conflict as having a ‘war’ with the workplace or with colleagues. She interpreted this to be his style or method of communication, probably with the frustration and intensity of his anguish within what she described as a fraught interpersonal situation. She attributes this to ASD. Dr Lowe said it demonstrates his very concrete way of seeing the world, that there is a good side and a bad side. Dr Lowe did not interpret the ‘war’ comment to mean anything delusional or persecutory; rather, it is his style of communication.
The third aspect related to the ‘kill’ comment. Dr Lowe said that during the psychiatric interview, when Mr Pylypenko referred to his life being in danger, or his parents attempting to ‘kill him,’ she clarified what he meant. On each occasion, it was an exaggerated endpoint, that, he clarified, meant that his house being sold would cause him to be a homeless person, and being a homeless person puts you at greater risk. One of those risks might be that you commit suicide so the end result would be his death. She said that she did not interpret that as a delusional belief, but rather as being dramatic and exaggerating a situation, where he has very concrete ideas as to how things may progress.
Dr Lowe gave evidence that she did not believe Mr Pylypenko was delusional, rather the timeline of events was very relevant. It explained what occurred in April, when he committed the offences at his parent's home. She said that she considers that there had been a series of misinterpretations of events, which has been compounded by his tendency to make assumptions about situations, assume the motivations of others and then feel unfairly treated.
She was very firm in her view that she does not believe that Mr Pylypenko has delusional beliefs, but she does consider that he has firmly held beliefs that are based on misinterpretations and misunderstandings, and as a consequence of his thinking style, he is less likely or willing to change his perspective on that.
Dr Lowe was asked whether there was any significance, in her opinion, to the pre-planning that appeared to have occurred prior to this offending. Dr Lowe identified that there had been several text messages sent to Mr Pylypenko’s father conveying his level of frustration and distress. They also clearly outlined what he was threatening to do and the impact that it would have upon the broader family. Dr Lowe said it also transpires that the date of the offending was proximate to a SACAT hearing, regarding the sale of his house, and that most likely accounts for the amount of stress Mr Pylypenko was experiencing. Three was also a significant degree of planning in terms of his personal protection and the decision to drive from Adelaide to Mount Gambier.
In relation to Mr Pylypenko’s father describing the accused as becoming increasingly paranoid over the last 18 months, Dr Lowe said that the term ‘paranoid’ is used generally by the community. However, it has a very specific psychiatric meaning. From a psychiatric perspective, it indicates a psychiatric symptom, particularly of psychosis, where there is a focus on someone else’s sense of safety either for themselves or for a loved one, where there is a feeling that there is increased scrutiny and increased possibility of surveillance or an increased focus on them and their loved one. This can be felt as a sense of threat. However, in a general sense, the public may be referring to a focus on something being a bit suspicious or being preoccupied with something.
In cross-examination, Dr Lowe accepted that this occasion was the first occasion that she had given evidence in Court. She is also less experienced than Dr Nguyen. She accepted that ASD and psychosis can co-exist and that she has seen many patients with both conditions. She did not accept that psychiatric disorders are prevalent in the ASD community, compared to those who are not affected by ASD. She said that there is some research to suggest that differences in brain wiring may make a person more vulnerable to developing a psychotic illness later in life, but that is far from conclusive, and it is an observation, not a predictive factor.[14]
[14] T135.
Dr Lowe was cross-examined about delusions. She said for something to become a delusion there has to be an unreal basis to it, and it has to be unshakeable and fixed. The key aspect is that it is false. The meaning of false in the psychiatric perspective is that it is based in unreality.[15] She went on to explain that something is unreal when there is no factual basis for it being real.
[15] T139.
Mr Caldicott cross-examined Dr Lowe in relation to Mr Pylypenko’s purported belief that his father was responsible for the sale of his house, or for the order being put in place by SACAT. She clarified this by saying:[16]
He believed that his father was communicating with SACAT and by SACAT, I mean the administrator of his administration order with the Public Trustee to authorise or direct the sale of his house.
[16] T141.

She accepted that in reality, his father was not orchestrating the sale of his house. She also accepted that she had seen text messages from Mr Pylypenko’s father to the accused, making it clear that he had nothing to do with the sale of the house. In respect of these text messages, she said that Mr Pylypenko’s father made it very clear and advised Mr Pylypenko saying, ‘Please read this carefully, this is a two-part text message.’ She interpreted this to give rise to the possibility that there was a tendency for the accused to misread things, not focus on things, or rush over text messages that his father was sending.
When it was put to Dr Lowe that as Mr Pylypenko still retains or at least at the time of sending the text messages had the false belief that his father was the orchestrator of the sale of his house, why she maintained that this was not a delusionally held belief, as opposed to something else. Dr Lowe responded stating, that she ultimately has a better explanation for that series of assumptions. She explained that the health records of Mr Pylypenko’s attitude and way of communicating has a tendency to minimise anything that might not portray him in a positive light. She described him as being very focused on his autonomy and his capabilities, as a competent and independent person. She accepted that he appeared very upset and distressed by being subject to an order that took away some of his autonomy, initially in terms of his finances and subsequently in terms of his decision-making in respect of his residence and the administration order, where it allowed the Public Trustee to make decisions about his finances. This caused Mr Pylypenko to become very frustrated.
She differentiated between the orders with respect to his decision-making about his residence and the decision-making about his finances. She stated that whilst they are separate, it had caused Mr Pylypenko to become very upset and very angry. She said he appeared to want to find blame, and quickly made connections where not warranted or overvalued. While there is a fixed belief and it is false, in the sense that it does not reflect the actual situation, the reason that it is false is that Mr Pylypenko was angry and frustrated and has a history of not thinking, reflecting, and taking responsibility for his actions, rather than being a psychotic thought process that is born out of a psychosis, neuro-chemistry and the brain misfiring. Dr Lowe reiterated that she did not believe that Mr Pylypenko had a fixed false belief that was based in delusional and psychotic thinking.[17]
[17] T145.
Dr Lowe accepted that stress in and of itself can cause psychosis to appear. She said that there had been cases of people experiencing very stressful situations, where they may have transient psychotic symptoms in the form of voices, paranoia or any number of psychotic symptoms. She said that by the term transient, she is conveying that it is not permanent and enduring as you would see in a disorder like schizophrenia.[18] She also accepted that a delusion can be enduring. It can also reduce in intensity and resolve for some people over time. This is to be contrasted with schizophrenia, which is certainly a more permanent and lifelong condition.
[18] T146.
Dr Lowe accepted that delusional disorders could resolve in a short space of time. She clarified this, stating, that a delusional disorder by its very definition needs to persist for at least one month. If after one month it resolves, that would still constitute a delusional disorder if it fulfilled all the criteria. She accepted that Mr Pylypenko was subject to significant levels of stress at the time, when he thought, he was going to lose his house. She accepted that high levels of stress over a prolonged period can be a factor in the development of psychotic symptoms, which can be a factor in the development of major mental illness.[19]
[19] T147.
Dr Lowe was taken to the text messages, she accepted that by the use of capital letters, Mr Pylypenko was trying to convey a message. There was also a marked difference in the nature of the text messages, which indicated this.
Dr Lowe agreed with the proposition put to her that the alleged offending in this matter was a marked increase in the conduct of making threats, which had occurred previously. She said this was certainly the most extreme example of him becoming angry, violent, and causing property damage. She agreed that the intensity with which Mr Pylypenko tried to resolve the issues was a matter she took into account in her opinion. She said that his very fixed and inflexible thinking was certainly causing him to make poor decisions on the night of the offending and that was a result of him being in a very stressful situation.
She was further cross-examined about whether the destruction of the computer, which he believed his father was using in communicating with the Public Trustee and SACAT, was a factor that she took into account in determining whether he had a delusional disorder or ASD.[20] She said this was a matter that she had taken into account because he had not previously disclosed any underlying beliefs about technology or communication through technology. Dr Lowe, therefore, specifically asked him whether there were any special abilities that his father had. His response was a very concrete and literal explanation for that behaviour, that the computer was how his father was communicating with SACAT. From his literal interpretation, the way to resolve the situation was to stop the communication, therefore, he damaged the computer. She said that if this was the only act that had happened, then it would have seemed a ‘bit strange’.[21] However, there was extensive damage done around that same time, suggesting that the computer was not the only target.
[20] T153.
[21] Ibid.
It was put to Dr Lowe that Mr Pylypenko’s belief about his father’s conduct was not based in fact and was false in and of itself. Dr Lowe responded that it was false in the sense that it was inaccurate, not false in the sense that it was delusional. She was asked why that does not amount to a delusion as opposed to just a misunderstanding. Dr Lowe responded by saying that it is important to consider that Mr Pylypenko fundamentally did not believe that he had financial difficulties. He did not believe that he had debts that required settling, and as a result, he was completely unaccepting of the fact that the Public Trustee had suggested that to resolve those debts, he needed to sell the house. This caused him to become very angry. In this situation, there was no evidence that he was willing to accept that he had some unfavourable financial decisions and that in the absence of there being any clear evidence of psychosis, it appeared that his personality style was such that he would apportion blame. She said the fact that she can trace back where those beliefs are coming from made her feel confident that this was not a delusional belief.[22]
[22] T_157.
Dr Lowe was asked if a person who is so fixated on doing something is unable to reason rationally. She responded:[23]
Not necessarily. Someone’s thinking can be clouded, or impaired, or influenced by their fixed or false beliefs, or psychotic or delusional thought processes, but that does not necessarily render them incompetent or completely impaired. It comes down to how does this specific thought or mental impairment connect to the behaviour.
[23] T160.
Dr Lowe accepted that in her report of 19 June 2024, she stated:[24]
There is certainly no evidence that Mr Pylypenko is suffering with an enduring psychotic illness, such as schizophrenia. Whilst this was the diagnosis reached in the previous psychiatric assessment of Dr Nguyen, my assessment has occurred a further six months later, during which time, if there was an enduring psychotic illness, it would be expected that psychotic symptoms (such as hallucinations or delusions) would occur and functional impairment would emerge.
[24] Psychiatric Report of Dr Lowe dated 19 June 2024 [FDN:41].
Dr Lowe accepted she was incorrect when she said Dr Nguyen had reached this diagnosis in his previous report. She explained this by saying that she and Dr Nguyen were doing several reports in relation to the same people at the same time, and she made an error. It was put to her that the reason she had included that paragraph was because she was under the belief that Mr Pylypenko was suffering from that type of psychiatric disorder.[25] She responded by saying that she had made it quite clear that she did not believe he was suffering from schizophrenia or an enduring psychotic illness.
[25] T162.
The approach to the expert evidence
In South Australia, suitably qualified witnesses may give opinion evidence in respect to matters about which ordinary persons are unable to form a sound judgment, without the assistance of those possessing special knowledge, or experience.[26] It has long been accepted that the question of mental competence is one in which an appropriately qualified witness could be of assistance to the Court in deciding the question. The CLCA makes provision for defendants to undergo examination by a psychiatrist or other appropriate expert and requires the results of the examination to be reported to the Court.[27]
[26] R v Bonython [1984] 38 SASR 45, p 46-47.
[27] s 269F(1)(b).
I accept that both Dr Nguyen and Dr Lowe, are suitably qualified psychiatrists to provide expert evidence in these Courts in respect of the mental competence of Mr Pylypenko. There was no suggestion by either party that either of the witnesses were not so qualified. However, it is plain that Dr Nguyen has more experience in the field of forensic psychiatry than Dr Lowe, who has only recently been admitted as a Fellow and was giving evidence in Court for the first time. This is a matter to be taken into account in the weighing of their relative opinions, along with a number of other factors.
Both opinions should be considered and neither rejected capriciously.
Discussion
There was no question in this matter in relation to the facts that underpin the opinions of Dr Nguyen and Dr Lowe. These were established by the evidence before me.
The question that arises for consideration by me, is whether, having heard the relevant evidence and representations to the Court by the prosecution and the defence on the question of Mr Pylypenko’s mental competence to commit the offences, I am satisfied that it has been established on the balance of probabilities that at the time of the alleged offences, Mr Pylypenko was mentally incompetent to commit the offences.
On the factual basis in this court, all the offences were committed at or about the same time and there was no suggestion that the mental state of Mr Pylypenko changed over that period.
In order to be mentally incompetent, a person must be suffering from a mental impairment. A mental impairment includes a mental illness, intellectual disability, or a disability or impairment of the mind resulting from senility.[28]
[28] s 269A(1)
The basis of the mental incompetence is said to be that Mr Pylypenko, at the time of the conduct alleged to have given rise to the offences, was suffering from a mental impairment and as a consequence of the mental impairment, did not know that the conduct was wrong, that is, he could not reason about whether the conduct, as perceived by reasonable people, was wrong.
The Act makes it clear that this test excludes from consideration whether Mr Pylypenko could reason with a moderate degree of sense and composure, as set out in R v Porter.[29]
[29] R v Porter (1936) 55 CLR 182.
The relevant test was considered by Lovell J in R v Childs.[30] In paragraphs 48 and following, his Honour considered two issues that arose in respect of the test in s 269C(1)(b) of the Act. The first was, what does the word ‘wrong’ mean in the context of the legislation. The second, does the test require the defendant to establish that he had a ‘complete incapacity’ to know that the conduct was wrong.[31]
[30] R v Childs [2023] SASC 103.
[31] s 269C(1)(b)
As Lovell J remarks, Dixon J considered the question of the word ‘wrong’ in R v Porter, saying, ‘What is meant by wrong is wrong having regard to the everyday standard of reasonable people.’[32]
[32] R v Childs [2023] SASC 103, at [52].
In Stapleton v The Queen, the High Court held that the test is whether the accused appreciated that the act was wrong according to the ordinary standards of reasonable persons, not whether the accused was capable of understanding his act was contrary to the law. [33] However, they went on to observe that in cases of murder, the difference between a capacity to understand the wrongfulness as opposed to the illegality of the act often might not be of much significance, but in some cases, it may be decisive. [34]
This perhaps means that in cases of serious crime, the fact that is punishable by law is enough to show the prisoner that it is something which he ought not to do, although the final test is that it is wrong according to the standard adopted by reasonable men. The truth perhaps is that, from a practical point of view, it cannot often matter a great deal whether the capacity of the accused person is measured by his ability to understand the difference between right or wrong according to reasonable standards, or to understand what is punishable by law, because in serious things the two ideas are not easily separable. But in certain cases, where the insane motives of the accused arise from complete incapacity to reason as to what is right or wrong … he may yet have at the back of his mind an awareness that the act he proposes to do is punishable by law.
[33] Stapleton v The Queen, (1952) 86 CLR 358.
[34] R v Childs [2023] SASC 103, quoting Stapleton v The Queen (1952) 86 CLR 358, 375.
Whilst it is not necessary to know that the conduct is illegal, the defendant must know right from wrong. The test is concerned with whether the defendant had the capacity to know that reasonable people would regard their conduct as wrong, and as such, his comprehension as to whether his actions were legally wrong is not irrelevant to the evaluative task.
The term ‘know’ means, understand, appreciate, or comprehend. As Lovell J says:[35]
An incapacity to reason rationally as to what is right or wrong according to ordinary standards prevents a person from having the capacity to know that he or she ought not do the act.
[35] R v Childs [2023] SASC 103.
Lovell J was satisfied that the test, that should be applied, is a complete incapacity to reason as to what is right or wrong, according to ordinary standards. Both Dr Nguyen and Dr Lowe understood the test in that way. The relevant time to assess this knowledge is at the time the offences were committed. In this matter, that is, at the time the accused entered the premises of his father and damaged the property on the premises.
Although Mr Pylypenko has never been diagnosed with ASD, both Dr Nguyen and Dr Lowe considered that it is consistent with his presentation. Mr Pylypenko declined to be examined and to undertake the assessment that is required for a formal diagnosis of ASD.
Dr Nguyen formed the opinion that Mr Pylypenko has a mental impairment, that is a delusional disorder and did not know the conduct was wrong. In Dr Lowe’s opinion, Mr Pylypenko is likely to have a mental impairment, namely ASD. She does not accept that he had a delusional disorder at the time of the offending. The basis of her opinion in relation to this is that there is another explanation for the behaviour and beliefs exhibited by Mr Pylypenko. This is based on his rigidity of thinking, as a result of his suspected ASD.
In order to be diagnosed with a delusional disorder, it is necessary that the practitioner must consider any alternative explanations. I accept that both practitioners did this. I also accept that it is possible for an individual to have a delusional disorder and ASD.
In this matter, I am not satisfied that it has been established on the balance of probabilities that Mr Pylypenko was mentally incompetent to have committed the offences. Mr Pylypenko knew that the conduct, the subject of the offences, was wrong. He accepted this in his evidence. He, however, chose to commit the acts in an effort to stop what he perceived to be the interference in his affairs by his father in particular. The belief that he had in his father's role was based in reality. His father had previously been in communication with SACAT and the Public Trustee in respect of Mr Pylypenko’s financial affairs.
I accept that the failure of Mr Pylypenko to accept that his father was not supporting the sale of his house is, as Dr Lowe has opined, a result of his rigid and concrete thinking, along with his tendency to gloss over and failure to take the time to properly absorb the information.
In determining that it has not been proved on the balance of probabilities that Mr Pylypenko has a complete incapacity to reason about whether the conduct as perceived by reasonable people was wrong, I have taken into account all the evidence before me. This includes the text messages that were sent preceding the offending that demonstrate that the offending had been contemplated for about four months. As the defendant had not carried through with the threats until April, it also demonstrates that he knew that he ought not to do it because it would be wrong to do so.
The second category of evidence involves Mr Pylypenko’s preparation for the conduct. In order to commit these offences, he wore a hard hat and had other protective equipment. He also purchased a baseball bat en route from Adelaide to Mount Gambier. He parked his car away from the address. After the offending, he disposed of the baseball bat that had been used. He did not want to be linked to the offences. His actions at the home also demonstrate that he was angry and seeking retribution. Although he did damage the computer, which he believed his father was using to communicate with the authorities, this was just one of the number of items he damaged. If his actions had been directed at simply wanting his father to stop communicating, that would have been sufficient. Instead, he has caused damage to windows and the car, in addition to other items in the house.
The action of disposing of the baseball bat with which he caused this damage, prior to him being stopped by the police, is, in my opinion, a very clear indication that he knew his actions were wrong in both a criminal and moral sense. He was seeking to distance himself from the offence.
I also accept that Mr Pylypenko has had a history of threatening people in the past and threatening to do things when he was unable to get his way or to achieve what he wanted.
In my mind, the actions taken by Mr Pylypenko demonstrate that he knew that it was both morally and legally wrong to have committed the offences. I accept that in his evidence, he used phrases such as ‘had to do what I had to do.’[36] He knew it was wrong to enter the house and smash things, but did it to stop the orders, saying he ‘knew it wasn’t right but was left with no other choice.’[37] Although Mr Pylypenko is attempting to communicate that he had no option or felt that he had no option, this does not suffice to prove that, on balance, he had a complete incapacity to reason about whether his conduct was wrong. There was an element of vengeful behaviour on the part of Mr Pylypenko towards his father, which also demonstrates his knowledge of the wrongfulness of his actions.
[36] T28.
[37] T54.
Having considered all the material, I prefer the evidence and opinion of Dr Lowe. Although Dr Lowe has less experience than Dr Nguyen, I was impressed by her approach to the issues in this matter, in particular, the analysis of the meaning of the words used by Mr Pylypenko. Dr Lowe asked Mr Pylypenko what he meant when he used various words. She understood that Mr Pylypenko did not use the word ‘kill’ in the sense that he would personally be killed or was at threat of death at that time, and the use of the word ‘war’ being a word that he commonly used to describe when he had a conflict with others.

I am not satisfied that it has been proved on the balance of probabilities that Mr Pylypenko was mentally incompetent to have committed the offences with which he is charged.