R v Stuckey - [2006] SADC 108

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v STUCKEY
[2006] SADC 108
Reasons for Decision of His Honour Judge Boylan
13 September 2006
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY
Accused pleaded not guilty by reason of mental incompetence to charges of producing cannabis, assault police, resist arrest and theft - defendant admitted objective elements of offences - consideration of psychiatric evidence of accused's mental state at time of alleged offending - court satisfied at time of alleged offences accused was mentally incompetent to commit the offences - consideration of ss269O and 269P of Criminal Law Consolidation Act 1935 (SA) to fix appropriate "limiting term" of supervision order.
Criminal Law Consolidation Act 1935 29(3), 85(1), 269G, 269O, 269P, referred to.

R v STUCKEY
[2006] SADC 108

Greg Stuckey was charged in this court with one count of taking part in the production of cannabis and one count of producing cannabis. Those offences were alleged to have occurred on the 6^th of November 2003 at Modbury Heights. On that occasion, police attended at a house owned by the accused’s mother and searched it. There they found growing and harvested cannabis the subject of the charges. While detained by a detective and, on being asked to produce keys to a shed, the accused became aggressive. He broke away from the detective who was holding him and punched another detective in the nose. As a result of that conduct he was charged in the Magistrates Court at Holden Hill with offences of resisting a member of the police force in the execution of his duty and with assaulting a member of the police force in the execution of his duty.
Mr Stuckey is also charged with one count of theft. That is an unrelated matter. It is alleged that on the 1^st day of October 2003 at Adelaide he stole a handbag and its contents. On that occasion, the complainant was sitting at a table outside a café in Gouger Street. Her handbag was on the table next to her. The accused spoke briefly to her, asking her for the time. He then grabbed the handbag and ran away. He was chased and ran to a house in Oakley Street in the City. Police attended there soon afterwards and arrested him. The handbag and its contents were recovered.
A question arose as to whether or not Mr Stuckey was fit to plead to any of those offences. Accordingly, he was examined by Dr Raeside and Dr Motamarri.
On the 26^th of January 2006, Dr Raeside reported, confirming an earlier report, that Mr Stuckey continued to be unfit to plead. Dr Raeside was of the view that he had been so unfit for the last few years and that there was no likelihood of any improvement in his fitness within the next twelve months.
In a report dated the 16^th of August 2005, Dr Motamarri had given the opinion that Mr Stuckey was unfit to plead and that he would be unlikely to be fit within the next twelve months.
Acting on those reports, the Director of Public Prosecutions conceded that Mr Stuckey was unfit to plead to the cannabis offences charged on Information.
Those two matters came on before me on Friday the 2^nd of June 2006. On that day, Mr Stuckey elected for the investigation into his fitness to stand trial to be conducted by me sitting alone. I then ordered that his mental fitness to stand trial be tried first. By consent, I dispensed with any further investigation into his fitness to stand trial and I recorded a finding that Mr Stuckey was medically unfit to stand trial.
Ms Dunlop, counsel for the Director, then tendered the declarations of the various witnesses, a report of Thomas Sobieraj and a Certificate of Analysis. Having read the declarations, I was satisfied beyond reasonable doubt that the two charges had been proved. Accordingly, I made an order pursuant to Section 269M(b)(2) that the objective elements of the offences had been proved and I declared the accused to be liable to supervision.
Having declared the accused liable to supervision pursuant to Section 269O, I was obliged to determine whether to release him unconditionally or to make a supervision order. Accordingly, pursuant to Section 269T, I ordered reports from three different psychiatrists to report on Mr Stuckey’s mental condition. I also ordered a report pursuant to Section 269Q. As a result of those orders, reports were requested from Dr Bal Krishna Jha, Dr Craig Raeside and Dr Maria Tomasic.
The matter came before me on the 28^th of June 2006. On that occasion, Ms Dunlop asked me to call up the Magistrates Court files to which I have referred. I did so. I also directed that the contents of those files be sent to the three psychiatrists who had been directed to prepare reports pursuant to Section 269T. I made those orders so that the psychiatrists could give their opinions with respect to the matters in Information and to the matters charged in the Magistrates Court.
On the 4^th of July 2006 the Magistrates Court files had been sent to this court and those matters were before me. On that occasion, the prosecution conceded that Mr Stuckey was unfit to stand trial. I then ordered, with the consent of counsel that the defendant’s mental fitness to stand trial be tried first.
On the basis of the reports of Drs Raeside and Motamarri, and upon the prosecution and the defence agreeing to dispense with an investigation into Mr Stuckey’s fitness to stand trial, I dispensed with any such investigation and I recorded a finding that Mr Stuckey was mentally until to stand trial on the Magistrates Court charges.
By consent, counsel for the Director then tendered the relevant declarations with respect of the charge of theft. I also received, by consent, the declarations of Grantley Hudson dated the 30^th of November 2003 and of Michael Francis Murphy dated the 8^th of December 2003. Those declarations contained the prosecution case with respect to the charges of resisting police and assaulting police. On the basis of the contents of those declaration I found that the objective elements of the offences of theft, resist police and assault police had been proved and I declared Mr Stuckey to be liable to supervision. As I had already made a similar declaration in relation to the offences charged on Information, I required that the reports ordered from three psychiatrists in respect of those offences should also deal with the offences of theft, resist police and assault police. Accordingly, I directed that those reports should consider those offences.
In due course Drs Jha, Raeside and Tomasic forwarded their reports to the court.
Section 269O
By virtue of Section 269O, the court by which a defendant has been declared liable to supervision may release him unconditionally or make a supervision order committing him to detention or releasing him on licence on conditions decided by the court and specified in the licence.
If the court makes a supervision order pursuant to Section 269O(b) then it must fix a limiting term equivalent to the period of imprisonment or supervision, or the aggregate period of imprisonment and supervision that would, in the court’s opinion, have been appropriate if the defendant had been convicted of the offences of which the objective elements have been established.
The fixing of the limiting term requires the court to have regard to all of those matters which would be relevant to the fixing of a sentence except matters based upon or arising out of the defendant’s mental impairment. The limiting term is to be fixed by reference to the head sentence that would have been appropriate but not to the non-parole periods. Unconditional release is relevant in cases were a fine would have been appropriate had the defendant been found guilty in the normal way. I need not concern myself with that issue here.
By virtue of Section 269S, in deciding whether to release Mr Stuckey on licence, and in deciding upon the conditions of such a licence, I must apply the principle that the restriction on his freedom and personal autonomy should be kept to the minimum consistent with the safety of the community. I am also obliged to consider the matters set out in Section 269T of the Act.
The defendant’s circumstances
Mr Stuckey is a 29 year old single man with no children. He is the youngest of four siblings. He now no longer has contact with his siblings but remains in contact with his mother who is his chief social support. Mr Stuckey was diagnosed as having schizophrenia in 1999 having been unwell for some years before that. He has had various admissions to psychiatric institutions and has been the subject of community treatment orders. In the past, he has had poor insight into his condition and has discontinued his medication.
When not on medication, he can become violent and threatening.
He has a significant criminal history and has in the past been subject to a limiting term.
It appears from the doctors’ reports that things have settled down a little in more recent times. He is on better terms with his mother, who has had to obtain restraining orders against him in the past. He is subject to a community treatment order and is now complying with his medication. In addition, it seems that he has given up the use of illicit drugs which have caused him problems in the past. Nevertheless, his prognosis remains poor. There is no doubt that he requires ongoing psychiatric treatment. He also needs to refrain from using illegal drugs. He requires regular medication and social support.
Conditional Release
The psychiatrists are agreed that Mr Stuckey can remain in the community while he is on his current medication. It is plain that he needs much support and supervision. He currently lives alone in Housing Trust accommodation at Windsor Gardens. His mother, his chief support, lives reasonably close by at Modbury. He reports to the Eastern Community Mental Health Care Centre for review and for his medication.
In my opinion, it is appropriate to make a supervision order releasing Mr Stuckey on licence on conditions suggested by the relevant psychiatrists.
The offences on Information
The cannabis offences are reasonably serious offences of their type. The total weight of the loose cannabis the subject of Count 1 was about four and a half kilograms. There were three growing cannabis plants, each about one metre in height which are the subject of Count 2. Those plants would have yielded about two hundred and fifty grams each of dry usable cannabis. The maximum penalty for the offence of taking part in the production of cannabis in this case is a penalty not exceeding $50,000 or imprisonment for 10 years or both. The maximum penalty for the offence of producing cannabis is a fine of $2,000 or imprisonment for 2 years or both.
The maximum penalty for assaulting a police officer is a fine of $10,000 or imprisonment for 2 years. The maximum penalty for resisting arrest is a fine of $2,500 or imprisonment for 6 months.
As I said earlier, the offence of theft involved the snatching of his victim’s handbag from the seat on which she had placed in beside her at a café. I treat that as an unpremeditated and opportunistic offence. Nevertheless, it was a most unpleasant experience for the victim.
Mr Stuckey has a record of convictions going back to 1992. They include two counts of producing cannabis in 1999. For those offences he was placed on a good behaviour bond with supervision. He has never before been charged with an offence of dishonesty.
In considering the sentence that I would have imposed had he been found guilty of the drug offences, I have taken into account the sentence imposed upon his co-offender, Alexander Mitchell. Mitchell was released upon his entering into a bond to be of good behaviour and be subject to supervision for two years. While I take that into account, I note that the circumstances of Mr Stuckey’s offending were more serious.
Had I been sentencing him for the drug offences on the basis that he had been found guilty of those offences, I would have sentenced him to imprisonment for 15 months on the charge of taking part in the production of cannabis. I would have convicted him without further penalty on the charge of producing cannabis. On the charge of assaulting a police officer I would have sentenced him to imprisonment for 6 months and made it cumulative on the sentences for the other offences. I would have convicted him without penalty on the charge of resisting arrest. On the charge of theft, I would have sentenced him to imprisonment for 6 months and made it cumulative on the other sentences.
He has co-operated readily in, effectively, agreeing the objective elements of the various offences. Accordingly, I reduce the period of 15 months to 12 months and the periods of 6 months to 4 months each.
There then arises the issue whether or not I can fix a single limiting term. I have not employed Section 18A of the Criminal Law Sentencing Act. In my view, there is no bar to my fixing a single limiting term in respect of all offences. Section 269O requires me to fix a term
“that would, in the court’s opinion, had been appropriate if the defendant had been convicted of the offence of which the objective elements have been established.”
In my view, it is in accord with Section 14A of the Acts Interpretation Act to treat “offence” as including offences. Accordingly, I shall fix a single limiting term. I shall fix conditions in accordance with the reports of the psychiatrists.
I make a supervision order pursuant to S269)(1)(b)(ii) releasing Mr Stuckey on licence. I set a limiting term of 20 months to operate from today and Mr Stuckey’s release on licence will be subject to the following conditions:
That the defendant be released on licence subject to the following conditions:
(1)That the defendant be under the care of the Director or a consultant psychiatrist nominated by him, and obey all directions given to him from time to time with regard to medical and psychiatric treatment and medication; and further that he be psychiatrically reviewed on a regular basis as determined by the Director or a consultant psychiatrist nominated by him.
(2)That during the period of his release on licence the defendant be under the supervision of a Community Corrections Officer appointed by the Parole Board and obey all lawful directions given to him by his supervising officer with respect to non-medical matters, including his place of residence.
(3)That the defendant comply with all directions given to him by staff of the Forensic Community Team and the Eastern Community Health Team in relation to the treatment plan devised for him.
(4)that the defendant not consume alcohol.
(5)That the defendant not use, possess or administer any narcotic or psychotropic drug or any drug other than tobacco which is not medically prescribed for his use by a legally qualified medical practitioner, and that he use such medication as may be so prescribed for him only at prescribed or recommended doses.
(6)That the defendant, whenever required by the Director to do so, shall submit himself for breath or urine analysis for the purpose of determining whether there is present in his body any alcohol or non-prescribed drug.