R v Richmond - [2011] SADC 75

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RICHMOND
[2011] SADC 75
Reasons for the Order of His Honour Judge Nicholson
27 May 2011
CRIMINAL LAW
Investigation into mental competence to commit the offence of aggravated causing serious harm with intent to cause serious harm - earlier decided that defendant mentally incompetent to have committed the offence - earlier decided that the objective elements had been established beyond reasonable doubt, that the defendant was not guilty of the offence by reason of mental incompetence, and declaration made that the defendant was liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935, see [2011] SADC 31.
Limiting term and conditions of release on licence determined.
Criminal Law Consolidation Act ss 23(1), 269B, 269E, 269F, 269O, 269Q, 269R, 269S, 269T, referred to.

R v RICHMOND
[2011] SADC 75
Introduction

Belinda Richmond was charged on an Information in this court with one count of Aggravated Causing Serious harm with Intent to Cause Serious Harm contrary to s 23(1) of the Criminal Law Consolidation Act 1935 (the Act). The particulars of the charge are as follows:
Belinda Carolyn Richmond on the 16^th day of March 2009 at Golden Grove, caused serious harm to Ercan John Corak, intending to cause him serious harm.
It is further alleged that Belinda Carolyn Richmond committed the offence whilst armed with an offensive weapon, namely a machete.
Ms Richmond raised the defence of mental incompetence, at the relevant time, to have committed the offence. On 23 March 2011 I found Ms Richmond not guilty of the charged offence on the ground of mental incompetence and declared that she was liable to supervision under Part 8A of the Act. Pursuant to s 269O I have decided to fix a limiting term of 6 years and to release Ms Richmond on conditional licence. These are my reasons.
The proceedings in this court
Ms Richmond elected, pursuant to s 269B of the Act to have the issue of mental competence dealt with by a judge sitting alone. In exercise of the discretion available to me under s 269E of the Act, I determined that the issue of mental competence should be dealt with first before dealing with the objective elements of the offence charged. On 10 January 2011 I found and recorded a finding that the defendant was, at the time of the alleged offence, mentally incompetent to have committed the offence.[1]
[1] My reasons for this finding are set out in R v Richmond [2011] SADC 31 at [3] – [4].
Ms Richmond also put in issue the objective elements of the offence. On 23 March 2011 I delivered reasons for my finding that the objective elements had been proved beyond reasonable doubt.[2]
[2] R v Richmond [2011] SADC 31.
I found Ms Richmond to be not guilty of the offence charged by reason of mental incompetence. I made a declaration pursuant to s 269F of the Act that Ms Richmond is liable to supervision under Part 8A of the Act. I directed that three reports be prepared in accordance with the requirements of s 269T. The Director of Public Prosecutions undertook to arrange for reports to be prepared and provided as required by s 269R (a report on the attitudes of the victim and next of kin) and as required by s 269Q.
Proposed orders
Under s 269O of the Act I may release Ms Richmond unconditionally or make an order committing her to detention or release her on licence on conditions to be decided upon by me. I note that s 269S enjoins me, in deciding whether to release Ms Richmond or in determining the conditions of any licence, to apply the principle that restrictions on her freedom and personal autonomy should be kept to a minimum consistent with the safety of the community.
Counsel for the Director and counsel for Ms Richmond both submitted that, in this case, it would be appropriate to release Ms Richmond on licence provided that suitable conditions could be fashioned. I have read and considered the various psychiatric reports made available, by Dr Andrew Czechowicz dated 21 April 2011, Dr Michael Schirripa dated 3 December 2010, and 2 May 2011, and Dr Craig Raeside dated 18 May 2010, 22 December 2010, and 18 April 2011, and the victim and next of kin counselling report dated 4 May 2011 prepared by Ms Anna D’Alessandro. I summarise the effect of these reports later in these reasons.
On the material before me, it clearly would not be appropriate to release Ms Richmond unconditionally. However, I am satisfied, having regard to all of the expert opinion in the matter that the appropriate course is to make a supervision order releasing Ms Richmond on licence subject to conditions. Under s 269O I must set a limiting term with respect the licence pursuant to which Ms Richmond is to be released, which term is to be equivalent to the period of imprisonment that would, in my opinion, have been appropriate if she had been convicted of the offence with respect to which the objective elements have been established.
The circumstances of the incident
The circumstances of the incident are set out in detail in my reasons published 23 March 2011.[3] What follows is a summary.
[3] [2011] SADC 31.
The victim and Ms Richmond were in a relationship. During the day of 16 March 2009 the two of them drank a large quantity of beer and were intoxicated to a significant degree. Whilst the two had argued during the day, they had made up or reconciled and engaged in consensual sexual intercourse at around 6pm. The victim then fell asleep on a mattress in the lounge room. He awoke some time later whilst it was still light and observed that Ms Richmond was no longer in the lounge room. The front door was unlocked and her house keys were in the usual place on the key rack. The victim fell back asleep. He awoke some time later and saw Ms Richmond standing inside near the front door with an horrified look on her face. He saw her run out the door and run off. Within seconds he realised that he was bleeding quite significantly and that he had suffered a serious injury to his face.
In the front yard near the water meter the police located a machete which contained a blood like substance containing DNA that matched that of the victim. The machete was usually located in a drawer in a chest in the main bedroom of the house and, some one to two weeks prior to the incident, had been placed there by the victim with the knowledge of Ms Richmond.
I was satisfied beyond reasonable doubt that the victim’s injuries were caused by his being struck by the machete found in the front yard. Given amongst other matters, the sequence of events, the proximity of Ms Richmond both in space and time and the fact that she had the highly pertinent esoteric knowledge concerning the location of the machete, I found beyond reasonable doubt, that she wielded the machete and caused the victim’s injuries. The victim sustained two full thickness lacerations to his lower jaw which required suturing. He also suffered a minimally displaced comminuted fracture to the right side of his jaw which needed to be reduced and held with a plate and screw device. The victim remained in hospital for nearly a month.
Personal circumstances
Ms Richmond is currently 42 years of age and resides in Housing SA accommodation. She has two sons aged 24 and 16 and has been in receipt of a Disability Support Pension since 1994. Ms Richmond receives this pension because of her diagnosed mental illness. She is also employed to deliver catalogues in her area. She has recently passed a Certificate II in Aged Care and was undergoing a Certificate IV in Lifestyle and Leisure, but found this too difficult with the ongoing court matters.
Ms Richmond’s sister and the victim’s brother both died of a drug overdose about 20 years ago. This event appears to have been a catalyst for Ms Richmond’s 20 year history of mental health problems.
Ms Richmond completed secondary school to year 11 but left school at age 17 after becoming pregnant with her first son. This child’s father is the victim in this matter with whom Ms Richmond lived in the very early days before he went to prison. She remained faithful during the victim’s incarceration and visited him regularly in prison. The relationship ended for the first time shortly after he was released. They resumed their relationship many years later by which time their son was an adult and only a short time prior to the incident the subject of these proceedings.
Ms Richmond started drinking at the age of 15-16 years. She has described herself as a binge drinker. On occasions she has drunk nearly a carton of beer. She told Dr Schirripa that she would cut herself at times when she was alone and intoxicated. Ms Richmond first consumed cannabis at about age 15 years. She has been a regular user of both cannabis and amphetamines in the past but is no longer. In 1989 Ms Richmond had multiple admissions to the Lyell McEwin Hospital for mental health issues. She was prescribed antipsychotic mediation and diagnosed with schizoaffective disorder. She received outpatient treatment at Woodleigh House. She felt mentally well for a period of about 10 years after that.
Ms Richmond had further hospital admissions in the late 1990s and in 2003. She again became delusional and psychotic. Her mood was disturbed and she experienced symptoms of mania. Her lack of insight caused her to refuse to take her medication. Ms Richmond was placed on a community treatment order by the Guardianship Board.
In the time leading up to the machete incident Ms Richmond was concerned that her partner, the victim in this matter, was poisoning her with methadone by deliberately putting it in her drinks. Her mood was very elevated and she went to the police and requested a blood test. She was brought by ambulance to the emergency department and the hospital notes state that she was suffering from a grief reactive psychosis. It appears that alcohol and other psychosocial stressors played a significant role in her presentation.
Ms Richmond at present is taking her prescribed anti-psychotic medication and antidepressants. She reports feeling much better on this medication and that she is not suffering any side effects. There is nothing about Ms Richmond’s antecedent criminal history that causes any concern in the present context.
The psychological evidence
Dr Schirripa has diagnosed Ms Richmond with schizoaffective disorder. Schizoaffective disorder is a primary psychotic disorder in which individuals experience both psychotic symptoms (such as delusions, hallucinations, disorganised thinking and disorganised behaviour) together with significant mood disturbances (such as depression and/or mania). There is also evidence that Ms Richmond suffers from alcohol and cannabis dependence. In Dr Schirripa’s assessment Ms Richmond is currently responding well to her medication. Dr. Schirippa agrees with the suggested management plan as outlined by Dr Czechowicz and that it is important for her to remain abstinent from alcohol and illicit substances. He says that regular drug testing should be part of her monitoring. He also agrees that community management of Ms Richmond is appropriate.
According to Dr Czechowicz Ms Richmond is suffering from a schizoaffective disorder that, at present, is reasonably well controlled by regular antipsychotic and antidepressant medication. Dr Czechowicz recommends maintenance of the current medication regime with supervision by her local doctor as well as the Community Mental Health Centre. In his opinion it is appropriate to place restrictions on her alcohol and illicit drug intake as these could seriously affect her mental state for the worse and increase the possibility of interrupted treatment resulting in psychosis.
Dr Raeside was initially more cautious in his approach to diagnosis. However, he now agrees with Dr Schirripa that schizoaffective disorder seems the most likely disorder. Dr. Raeside agrees that there is no need to admit Ms Richmond as an inpatient. It is his present view that she can be adequately treated in the community with periodic psychiatric review. He also agrees that Ms Richmond needs to be abstinent from illicit drugs and alcohol. In his opinion compliance with medication is essential to maintain her optimum mental health.
Victim and next of kin counselling report
The victim was interview on 4 May 2011. The injuries sustained from the commission of this offence have been very traumatic for him. The victim did not make any comment upon the terms of any licence that he would like to see imposed.
Ms Richmond’s mother was interviewed on 3 May 2011. With respect to the conditions of any licence, she suggested that Ms Richmond should receive support from a case manager. She also felt that ongoing support with a psychiatrist would assist in maintaining stability in the future. She requested a condition requiring regular blood tests to ensure compliance with medication. It was her view that Ms Richmond should not have any contact with the victim in this matter.
Limiting term
Under s 269O I must set a limiting term with respect to the licence pursuant to which Ms Richmond will be released, which term is to be equivalent to the period of imprisonment that would, in my opinion, have been appropriate if Ms Richmond had been convicted of the offence with respect to which the objective elements have been established. In undertaking this exercise I am not to take into account Ms Richmond’s mental impairment. The maximum penalty for the offence of aggravated causing serious harm with intent to cause serious harm is 25 years in custody. Given the nature of and circumstances surrounding the incident, the date of its occurrence and Ms Richmond’s personal history (excluding for present purposes the fact of her mental illness) I impose a limiting term of 6 years.
Licence and conditions
As I have indicated, I consider it appropriate to release Ms Richmond on licence with conditions. Having considered the opinions of Dr Czechowicz, Dr Schirripa and Dr Raeside and the reports of the victim and next of kin, I am of the opinion that in order to promote community safety as far as is practicable and subject to hearing further from counsel, the licence conditions as provided for in the order for release appended to these reasons should be imposed.
Subject to hearing further from counsel, the Order for Release will be subject to the licence conditions as set out in the Order for Release on Licence attached to these reasons. The Order for Release will take effect and the limiting term of 6 years will commence from today.
Appendix

SUPERVISION ORDER

WHEREAS on 23 March 2011 in the District Court of South Australia sitting at Adelaide, Belinda Carolyn Richmond (“the defendant”) was found not guilty of one count of aggravated causing serious harm with intent to cause serious harm by reason of mental incompetence and pursuant to Section 269FB of the Criminal Law Consolidation Act, 1935 (“the Act”), his Honour Judge Nicholson declared the defendant liable to supervision under Part 8A of the Act;
AND WHEREAS in considering the terms of a supervision order releasing the defendant on licence, the Court has had regard to and considered the matters referred to in s 269T of the Act, and various psychiatric reports, including, the reports of Dr Craig Raeside dated 18th April 2011, of Dr Andrew Czechowicz dated 21st April 2011 and of Dr Michael Schirripa dated 2nd May 2011, together with the matters referred to in s 269Q of the Act, and in particular the report of Dr Craig Raeside dated 18th April 2011, and the report dated 4^th May 2011, prepared pursuant to ss 269R and 269Z of the Act by Anna D’Alessandro, Senior Social Worker at the Forensic Mental Health Service at James Nash House;
AND WHEREAS pursuant to Section 269O(2) of the said Act, a Limiting Term of 6 years is fixed, commencing on 27 May 2011;
AND UPON the undertaking of Ms Sprod of Scammel and Co the solicitors for the defendant, to fully explain to the defendant the terms of this order;
NOW I, Kevin Gordon Nicholson, a Judge of the District Court of South Australia, hereby order:-
1.That the defendant be subject to a supervision order pursuant to Section 269O(1)(b)(ii) of the Act.
2.That the defendant be released on licence subject to the following conditions:-
(a)That the defendant be under the care and direction of the Clinical Director, Forensic Mental Health Service (“The Director”), or a consultant psychiatrist nominated by him or her (“the nominee”), and obey any directions given to her from time to time with regard to medical and psychiatric treatment and medication.
(b)That the defendant be under the supervision of a Community Corrections Officer employed by the Department for Correctional Services and assigned by the Parole Board of South Australia and obey the lawful directions of that officer or the Board with respect to non-medical matters. To effect initial contact the defendant is to report to the Office of the Department for Correctional Services at 220 Commercial Road, Port Adelaide within two working days of signing this order.
(c)That the defendant continue to receive her medication current at the date of this order, and further that any alteration or reduction in such medication not occur without the approval of the Director or the nominee.
(d)That the defendant not use, possess or administer any narcotic or psychotropic drug which is not medically prescribed by a legally qualified medical practitioner, and further that any drugs which are prescribed to the defendant by a medically qualified practitioner be possessed or administered by the defendant only at prescribed or recommended dosages.
(e)That the defendant shall submit herself to random screening of her blood at the direction of the Director or the nominee, to ensure compliance with her medication regime is maintained.
(f)That the defendant’s case be managed by the Forensic Community Team and that the defendant comply with all the lawful directions of that team, particularly with respect to attendances at all appointments nominated by that team.
(g)That, at the discretion of the Director or nominee and at such time when the Director or nominee sees fit, the defendant’s case management be transferred to a local Community Mental Health Team and that the defendant comply with all directions from that team.
(h)That the defendant is not to take or consume by any means any illegal drugs and is to restrict her consumption of alcohol to such level as is recommended by the Director or nominee.
(i)That the defendant shall submit herself for random breath and or urine testing as directed by her Community Corrections Officer, for the purpose of determining whether or not the conditions of this licence have been complied with.
(j)That the defendant reside initially at 1 Mimosa Court, Largs North, 5016, and that she not thereafter change her residence without the permission of the Parole Board.
(k)That the defendant not leave or attempt to leave the State of South Australia without the prior written permission of the Parole Board.
(l)That the defendant is not to contact directly or indirectly the victim, Ercan Corak, except when and to the extent reasonably necessary in order to facilitate their co-parenting of their adult son Curt. To the extent that any meetings in each other’s presence in their role as co-parents take place such meetings are always to occur in the presence of Curt or at least one other adult person.

3.In the event that the Director, or the Director’s nominee, or the Presiding Member of the Parole Board, or the Presiding Member’s nominee is of the opinion that the defendant has contravened, or is likely to contravene a condition of this order, the Director, or the Director’s nominee, or the Presiding Member of the Parole Board or the Presiding Member’s nominee shall forthwith notify the Director of Public Prosecutions of that opinion.
4.If the Director of Public Prosecutions is notified by the Director or the Director’s nominee, or the Presiding Member of the Parole Board, or the Presiding Member’s nominee in accordance with order 3 above, the Director of Public Prosecutions may forthwith make an application to this Court for a review of the supervision order.
5.That the defendant, the Director of Public Prosecutions (on behalf of the Crown) and the Parole Board shall be at liberty to apply at any time and at short notice to the other to vary or revoke these orders or seek any other order in substitution thereof.