R v Smailes (No 2) - [2021] SASC 118

Supreme Court of South Australia
(Criminal)

R v SMAILES (No 2)
[2021] SASC 118
Reasons for the Order of the Honourable Justice Bampton
19 October 2021
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
Where the Court previously recorded a finding that the defendant was not guilty of attempted murder and declared him liable to supervision under Division 4 Subdivision 2 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).
1. Defendant committed to detention pursuant to s 269O(1)(b)(i) of the CLCA.
2. Limiting term of seven years, seven months, and 10 days fixed pursuant to s 269O(2) of the CLCA.
Criminal Law Consolidation Act 1935 (SA) ss 269GB, 269R, 269Q, 269T, 269Z, 269O, 269NI, referred to.
R v Smailes [2020] SASC 81, considered.

R v SMAILES (No 2)
[2021] SASC 118
Criminal

BAMPTON J: On 1 July 2021, pursuant to s 269GB(5)(b) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”), I recorded a finding that Mr Smailes was not guilty of attempted murder (“the alleged offending”) and declared him liable to supervision under Division 4 Subdivision 2 of the Act.
In my reasons for decision R v Smailes,[1] I detailed the circumstances of the alleged offending against the community rehabilitation worker (“the worker”) at a unit occupied by Mr Smailes at the Trevor Parry Centre on 31 May 2020. The worker was attacked with a knife by Mr Smailes when he attended the unit with a nurse who was going to administer Mr Smailes’ medication (“the incident”).
[1] [2021] SASC 81.
The worker sustained lacerations to his left forearm, left lower thigh, left chest flank and left flank. He also sustained lacerations to his forehead and the top of his scalp. An MRI of his left knee showed evidence of a tear in the lateral head of the gastrocnemius muscle. The worker’s treating surgeon noted a 25 per cent division of the ulnar nerve at surgery. The surgeon reported the lacerations to the worker’s left forearm were associated with deeper muscle injury to the muscles controlling the fingers and wrist flexion requiring extensive rehabilitation with a hand therapist.
Pursuant to s 269R(3) of the Act, the worker provided a statement of a kind referred to in s 14 of the Sentencing Act 2017 (SA) (“a victim impact statement”) as if Mr Smailes had been convicted of the alleged offending and I was determining sentence.
The worker describes in his statement that before the incident he was happy to get up and go to work every day. He felt a great sense of achievement in being able to help others better their lives, overcome challenges, and improve their independent living skills.
The worker describes how he has returned to work part‑time but no longer looks forward to working. He has been diagnosed with post-traumatic stress disorder, struggles to get a good night’s sleep, consults a psychologist weekly and suffers panic attacks on almost a daily basis. The worker says his partner does not understand why he still wants to go to work and is fearful that a similar incident may happen again.
The worker states that no changes to safety have occurred in his workplace that would prevent a similar incident occurring again and, for this reason, he does not work nightshifts.
The worker is no longer able to play competition golf. He was unable to drive for many months after the incident, relying on family and taxis. He still relies on taxis to attend medical appointments in the city, as he can only drive short distances due to the pain in his hand and left arm.
Following a recent MRI of his arm, the worker has been advised that he will either need a course of injections or surgery, which will come at the expense of loss of feeling or function or both.
The worker says that he is angry and disappointed that the incident ever occurred, as he showed Mr Smailes nothing but kindness and support and even defended him from others who bullied him.
Section 269R
The worker was also consulted by Ms Anna D’Alessandro, a forensic social worker, for the purposes of a victim counselling report pursuant to s 269R of the Act.[2] Ms D’Alessandro concludes her report stating the worker is traumatised by the incident, that he feels lucky to be alive, and often thinks about the potential outcome had his injuries resulted in permanent disability or death.
[2] Section 269R provides the Crown must provide the Court with a report detailing the views of the victim(s) of the defendant’s conduct and the next of kin of the defendant.
Section 269Q(1) and section 269T(2) report
Dr Narayan Nambiar has provided a report dated 2 September 2021, pursuant to s269Q(1) of s269T(2) of the Act. In addressing s 269Q(1), Dr Nambiar confirms Mr Smailes has an established diagnosis of chronic paranoid schizophrenia. He details that Mr Smailes continues to exhibit persistent and chronic bizarre and religious delusions that remain treatment resistant. Dr Nambiar is of the opinion that Mr Smailes’ prognosis is poor despite a prolonged hospital admission and compliance with treatment. Dr Nambiar considers Mr Smailes will continue to experience symptoms for the rest of his life which will impair his ability to function and he will require supported accommodation.
Dr Nambiar states that Mr Smailes requires prolonged hospitalisation for an adequate trial of medication and will require ongoing rehabilitation and psychoeducation to improve his insight, particularly around appreciating the difference between his delusional perceptions of reality and reality itself. Dr Nambiar supports Mr Smailes remaining in hospital and an order committing him to detention.
In addressing s 269T(2) of the Act, Dr Nambiar states that Mr Smailes remains delusional with limited insight, although compliant with treatment in a controlled environment. He says that Mr Smailes is actively engaging in rehabilitation activities and possesses a low risk to staff and fellow patients in that environment. Dr Nambiar states that as Mr Smailes’ illness remains treatment resistant, the treating team is titrating up the dose of his medication as tolerated, as well as monitoring for side effects.
Disposition
The maximum penalty for attempted murder is life imprisonment.
Following the incident, Mr Smailes was transferred to a closed ward at the Margaret Tobin Centre and placed on an interim treatment order. On 3 June 2020, he was transferred to James Nash House. He has been in custody since 31 May 2020.
Mr Smailes has no history of offending.
Having regard to Dr Nambiar’s report and the principle upon which the Court is to act as prescribed by s269NI[3] of the Act, I make an order committing Mr Smailes to detention pursuant to s 269O(1)(b)(i) of the Act.
[3] Section 269NI of the Act provides:
(1)The paramount consideration of the court in determining whether to release a defendant under this Division, or the conditions of a licence, must be to protect the safety of the community (whether as individuals or in general).
(2)The paramount consideration of the safety of the community outweighs the principle that restrictions on the defendant's freedom and personal autonomy should be kept to a minimum.
In fixing the limiting term pursuant to s269O(2) of the Act, I must proceed as if I am sentencing for the alleged offence of attempted murder constituted by the objective conduct I have found established beyond reasonable doubt. Mr Smailes’ objective proven conduct is very serious and the potential consequences for the worker were fatal.
Pursuant to the regime for disposition of persons declared liable to supervision under Division 4 of the Act, the limiting term fixed is not a punishment. It is an order fixing the limit of the term of supervision Mr Smailes is subject to under s 269O of the Act.
Having regard to all relevant factors, pursuant to s 269O(2) of the Act, I fix a limiting term of nine years reduced by the period Mr Smailes has been in custody, leaving a term of seven years, seven months and 10 days.