R v Sumner - [2010] SASC 43

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v SUMNER
[2010] SASC 43
Judgment of The Honourable Justice Sulan
26 February 2010
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - COMMUNITY BASED ORDERS
CRIMINAL LAW - PROCEDURE - FITNESS TO PLEAD OR BE TRIED - OTHER MATTERS
MENTAL HEALTH - DEFINITIONS AND IN GENERAL
Defendant found mentally unfit to plead and mentally unfit to stand trial with respect to charge of two counts of attempted murder - objective elements of charge established - defendant declared liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA) - supervision order made pursuant to s 290O(2) releasing defendant on licence - whether time already spent in custody can be taken into account in the fixing of a limiting term - limiting term of seven years fixed.
Mental Health Act 1993 (SA); Criminal Law Consolidation Act 1935 (SA) s 269; Mental Health Act 1959 (Vic), referred to.
Director of Public Prosecutions (Cth) v WJB [2000] SASC 364; Beckwith v The Queen (1976) 135 CLR 569, discussed.
R v Bober (No 3) [2010] SASC 31; R v Draoui (2008) 101 SASR 267; R v T (1999) 75 SASR 235; Watson v Marshall (1971) 124 CLR 621; McLaughlin v Fosbery (1904) 1 CLR 546, considered.

R v SUMNER
[2010] SASC 43
Criminal

SULAN J: In the early hours of the morning of 1 January 2008, an altercation took place between a number of aboriginal persons at Murray Bridge. In the course of the fight which ensued, Leila Anne Trevorrow and her daughter, Charisma Clarke, sustained stab wounds. As a consequence, Marilyn Vida-Anne Sumner, the defendant, was charged with two counts of attempted murder. The defendant’s counsel indicated that the defendant is unfit to plead.
I will return to the events of that morning in more detail later in these reasons.
Counsel for the Director of Public Prosecutions (“the DPP”) indicated that the DPP was prepared to accept an admission of the objective elements of aggravated unlawful causing serious harm with intent to cause serious harm in respect of each of the complainants as a sufficient response to the Information. The maximum penalty for each of those offences is 25 years’ imprisonment.
Background
The defendant’s counsel elected trial by judge alone. The defendant’s fitness to plead was the first issue to be determined.
The defendant, now aged 36 years, has an extensive history of mental health issues. Several years prior to the incident, on 1 January 2008, she had experienced depression and a number of paranoid episodes. Initially, she was unaware that she was suffering from a mental illness.
The defendant’s first episode of depression occurred following the birth of her first child in 1991. She experienced a further episode of depression in 2002, for which she was treated by her general practitioner with an antidepressant drug. She had not previously been in receipt of any psychiatric treatment for any psychiatric disorder. On 8 September 2009, she was first admitted to Glenside Hospital under the Mental Health Act 1993 (SA) after she had attempted to harm herself. She was assessed by a psychiatrist. At that time, the defendant described a range of depressive symptoms. She was having difficulty seeing her children. She had no stable accommodation. She was estranged from her family. She had been using marijuana and alcohol in an effort to self-medicate. The defendant was diagnosed with a bipolar disorder with a mixed affective state of depression and elevated mood. She was treated with various medications and was eventually discharged. She was subsequently assessed by another psychiatrist who diagnosed her as having a borderline personality disorder, in addition to a major depressive. She was again admitted to Glenside Hospital on 19 December 2007, after her general practitioner had her declared under the Act as requiring detention due to the risk of self-harm. At that time, the defendant was homeless and using cannabis.
The detention order pursuant to which she was admitted to Glenside was permitted to lapse. Nevertheless, she stayed at the hospital as a voluntary patient. When housing became available, she was keen to be discharged. She rejected medical advice that further in-patient management was required.
When the defendant was released from Glenside on 31 December 2007, she made her way to Murray Bridge. On the evening of 31 December 2007, a number of people, including Leila Trevorrow and Charisma Clarke, were at the Bridgeport Hotel. Ms Trevorrow and Ms Clarke had arrived at about 7.00 pm. During the evening, there had been a confrontation between Leila Trevorrow, the defendant and the defendant’s relations. At one stage, Ms Trevorrow and Ms Clarke were outside the hotel when Ms Clarke saw about 15 people, a number of whom were related to the defendant. There was a verbal exchange between them. Ms Trevorrow and Ms Clarke returned to the hotel. The defendant and her group were asked by the manager to leave the hotel.
The police were present when Ms Trevorrow, Ms Clarke, Ms Clarke’s uncle and cousin were walking away from the hotel. As they were walking, Ms Clarke observed the members of the group involved in the confrontation driving by in a motor vehicle. They were confronted by the group and an altercation between the groups ensued, which resulted in both Leila Trevorrow and Charisma Clarke being stabbed. Leila Trevorrow received four stab wounds to her left side. She received a laceration to the spleen and a penetrating wound through her stomach. There is no dispute that the defendant was directly responsible for inflicting some or all of the stab wounds to Leila Trevorrow.
A witness, Curtley Miller, observed the defendant and another person, Spencer Rigney, entering the affray, both armed with knives. He later saw them both holding knives on which he could see blood.
A knife was located at a house at which the defendant was seen. The knife was examined. DNA consistent with the defendant’s DNA and with Ms Trevorrow’s DNA was found on the knife. The defendant had admitted to a number of witnesses that she had “got” Leila Trevorrow.
As to the wounds inflicted to Charisma Clarke, the prosecution case is that the defendant was a party to the assault upon Ms Clarke which caused the injuries to her. She had four stab wounds to her chest and back. She suffered significant blood loss and required emergency treatment. She received a lacerated liver and bruising of the left kidney.
The prosecution accept that, in considering the appropriate limiting term, the Court should treat the offending on the basis that the defendant was a party to a joint enterprise to cause Charisma Clarke serious bodily harm with intent to cause such harm.
The defendant was arrested, taken into custody, and has remained in custody since 1 January 2008. During that time, she has been examined on a number of occasions by Dr Raeside, who has provided four reports to the Court. She was also examined by a forensic psychologist, Ms Karen Heseltine.
Fitness to stand trial
When Dr Raeside examined the defendant in March 2008, he observed that the doctors at Glenside considered her to be prone to psychosis, that she had anger management problems, that she was impulsive, and that she required anti‑psychotic medication.
The question of the defendant’s fitness to stand trial was the subject of a hearing before me on 22 June 2009. Reports of Dr Raeside, dated 24 March 2008, 6 February 2009, 11 May 2009 and 17 June 2009 were admitted by consent. Reports of Ms Karen Heseltine dated 22 September 2008 and 19 June 2009 were also admitted by consent.
Dr Raeside gave evidence. He is a legally qualified medical practitioner who practises as a consultant forensic psychiatrist. He has been working in the area of forensic psychiatry since 1991. Prior to entering private practice, he was employed by the South Australian Forensic Mental Health Service as a psychiatrist dealing with the treatment of prisoners and probationers. In his opinion the defendant is unfit to stand trial. She suffers from a schizo-affective disorder and a personality disorder and has a past history of significant substance abuse. He considered that she has a chronic psychiatric illness, significant cognitive impairment due to large doses of anti‑psychotic medication, and possible underlying mental retardation. She is unlikely to improve sufficiently over the period of 12 months from 17 June 2009 to be fit to stand trial.
Ms Heseltine concluded that the defendant suffers a mental illness, that she is unable to understand the nature of the charges or the process of a trial. In her opinion, the defendant is unfit to stand trial.
Dr Raeside confirmed that the defendant is unfit to stand trial, as she is not able to follow the course of proceedings or to instruct her lawyer adequately. Even if she were to be treated in James Nash House, there is only a very slim chance that she would be able to understand the nature of the proceedings, be able to give instructions to her counsel, or understand the advice she was given, even after six months of treatment.
I am satisfied, on the balance of probabilities, that, pursuant to s 269M(3) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”), the defendant is mentally unfit to plead and mentally unfit to stand trial.
The objective elements
On 9 November 2009, the day on which the trial of the objective elements was to commence, Ms Downey, who represents the defendant, did not contest the objective elements with respect to the charges of causing serious harm with intent to cause serious harm of Leila Trevorrow and Charisma Clarke. The facts, as I have summarised them, were admitted, and I was satisfied beyond reasonable doubt that the objective facts in respect of the two counts had been proved. I declared the defendant liable to supervision and ordered the provision of three reports, pursuant to s 269Q and 269T of the Act.
The further psychiatric reports
In his report, dated 20 January 2010, Dr Raeside concludes that the current psychiatric state of the defendant is that she continues to suffer psychotic symptoms which have been controlled by prescribed medication. He concludes that she has a severe mental disorder and she is at risk of relapsing. In the past, she has engaged in violent behaviour, including ideas of self-harm. He considers it would be appropriate for her to spend some time as an in-patient in James Nash House before commencing any gradual reduction in security in preparation for a return to the community. She requires appropriate medication and psychological therapy.
Dr Ferris, who has treated the defendant over a period of time, has concluded that the defendant presents with significant negative symptoms of her chronic schizo-affective disorder. Dr Ferris is of the view that a transfer to James Nash House would be beneficial for the defendant’s treatment, even though the defendant does not wish to leave the Adelaide Women’s Prison. Dr Ferris is of the opinion that the defendant would best be managed in the in-patient environment of James Nash House. The defendant is not currently able to adequately manage herself in the community. Dr Ferris considers that the defendant is of a higher risk of relapse of her psychosis if she is not treated at James Nash House. Dr Ferris believes that a slow transition through the rehabilitation wards at James Nash House is necessary in further assessing the defendant’s mental state. Further treatment at James Nash House will assist the defendant in acquiring the skills for successful social functioning and reintegration into the community.
Mr Bell, a forensic psychologist, agrees with the views expressed by Dr Ferris. He considers that at James Nash House the defendant would become the focus of an intense multi-disciplinary review of her mental health and risk history, with a view to minimising her recidivism risk.
I have also had regard to the victim counselling report. As a result of the incident, both Ms Trevorrow and Ms Clarke suffered the effects of psychological and physical trauma. I note that both Ms Trevorrow and Ms Clarke are concerned about their personal safety, that of their family and of the community.
The limiting term
Part 8A of the Act is primarily concerned with the safety of the community. In R v Bober (No 3) Gray J observed:[1]
The scheme is primarily beneficial in operation…the purpose of the scheme is to provide justice and a degree of mercy to persons suffering from a mental impairment in their interaction with the criminal justice system.
[1] [2010] SASC 31.
The scheme is in place to ensure that the defendant receives appropriate treatment for his or her mental condition.[2] However, the scheme must also reflect the seriousness of the crime. The Act stipulates that in arriving at the limiting term, the Court must ignore matters personal to the defendant. Section 269O(2) of the Act provides:
If a court makes a supervision order, the court must fix a term (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 offence of which the objective elements have been established.
[2] R v Draoui (2008) 101 SASR 267, 281.
The note to that section provides:
The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant’s mental impairment.
The application of sentencing principles has limited relevance to the orders a court makes pursuant to Part 8A of the Act. In R v T,[3] Doyle CJ discussed the process undertaken in the fixing of a limiting term:[4]
…In fixing the limiting term it was appropriate for the Judge to have regard to all matters that would usually be relevant to the fixing of a sentence for the offence, but not have regard to matters that were based upon or arose out of [the defendant’s] mental impairment.
It may be that in fixing the limiting term the Court does not engage in exactly the same process that it does when imposing a sentence. Note 1 requires the Court to fix a limiting term “by reference to the sentence that would have been imposed”. But, in my opinion, one cannot say that the Judge should not have regard to a matter such as general and personal deterrence when fixing a limiting term under this provision. I agree that the result may seem harsh, but the terms of the provision are clear. As well, it is important to bear in mind the flexible regime for treatment that is envisaged under Pt 8A…[I]t is relevant to bear in mind that the limiting term does no more than fix the period during which [the defendant] may be subjected to restraints under Pt 8A.
[3] R v T (1999) 75 SASR 235.
[4] Ibid, 242.
If consideration is given to the way in which the Act operates, then there is a logical explanation for excluding from consideration, matters relating to the defendant’s mental impairment in determining the length of the limiting term. The Act does not seek to impose a penalty upon a defendant who is unfit to plead or is declared mentally incompetent. However, section 269S does require that, in setting a limiting term, the Court is to ensure that curtailment of a defendant’s freedom is kept to a minimum, consistent with the safety of the community.
Time spent in custody
Whether time spent in custody prior to the setting of the limiting term is to be taken into account was not considered in Draoui. While s 269O prohibits the Court from having regard to the personal circumstances of the defendant, the Act remains silent as to whether or not in fixing the limiting term, time already spent in custody will be taken into account.
Although the relevant provisions to the setting of a limiting term are contained within a penal statute, it has been made clear that Part 8A is not a regime intended to be of a punitive nature. Nonetheless, it should be interpreted as a statute which affects the liberty of the subject in the sense that it acts to curtail the freedom of the defendant for the length of the limiting term.
The approach adopted in relation to the interpretation of penal statutes is also followed in the interpretation of statutes which affect the liberty of the subject. In Watson v Marshall[5] which concerned a provision of the Mental Health Act 1959 (Vic) and relating to the detention of a person, Walsh J at 629 (paraphrasing Griffith CJ In McLaughlin v Fosbery[6]) said:
…in the interpretation of an Act which affects personal liberty, supposition as to the intention of the legislature has no place and…the function of the Court is limited to interpreting and giving effect to its will as expressed in the statute.’
[5] (1971) 124 CLR 621.
[6] (1904) 1 CLR 546 at 559.
In Director of Public Prosecutions (Cth) v WJB [7], a case which concerned the interpretation of parole orders pursuant to s 19AQ of the Crimes Act 1914 (Cth), Debelle J referred to the remarks of Gibbs J in Beckwith v The Queen[8]:
The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences. The rule is perhaps one of last resort.
[7] [2000] SASC 364, [15].
[8] (1976) 135 CLR 569 at 576
Prior J further observed that a penal statute should not afford a construction which would lead to unfairness:[9]
Of course, a penal statute must be construed strictly and in favour of the subject if the language of the statute, after close examination, remains ambiguous or doubtful; Beckwith v The Queen (1976) 135 CLR 569 at 576. However that does not mean that the ordinary principles of construction do not apply or that the penal statute should be given a construction which would lead to unfairness. In this case if the construction arrived at by the sentencing Judge is right it would be unfair to those who breached their parole and who are immediately sentenced to be imprisoned for more than three months compared with those who breached their parole but managed to avoid the sentencing process until the non-parole period had expired.
[9] [2000] SASC 364, [33].
In the present case, there is no ambiguity or doubt as to the language of the statute. The statute remains silent on the issue of whether any period of time spend in custody prior to determining that a person is mentally competent should be taken into account in setting a limiting term. On one view, the time already spent in custody has little or no relevance to setting a limiting term. However, there is no reason, in principle, that time spent in custody should not be taken into account. If time spent in custody were not taken into account, it could lead to unjust and illogical consequences. It would also be contrary to s 269S of the Act which requires the Court to ensure that the curtailment of the defendant’s liberty is kept to a minimum, consistent with the safety of the community.
In setting limiting terms there should be consistency, insofar as is possible, in the period a person is to be incarcerated for particular alleged offending. If, for example, a defendant was on bail until the limiting term was set, there would be an injustice in imposing the same length of limiting term to someone who had been in custody for some length of time.

In this case, the defendant has been in custody for over two years. If that period were not taken into account in setting the limiting term, she would effectively have her freedom curtailed for over two years longer than if she had been on bail. In the circumstances, I consider that regard should be had to time spent in custody prior to setting the limiting term.
If the defendant can satisfy the Court that she should be released on licence, that can occur at any time during the limiting term. If, at the conclusion of the limiting term, she has not been released and she is still mentally unfit to be released into the community, the provisions of the Act can be utilised to ensure that she remains in a closed environment.
The conduct in this case was grave. The consequences to the victim were serious. Knives were used during an affray and both victims suffered multiple stab wounds which could have resulted in their death.
The objective facts of this case place it in the more serious type of conduct of this nature. In setting the limiting term, I have had regard to the period that the defendant has been in custody. I fix a limiting term of seven years.