R v Sumner

Case [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

  1. 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.

  2. I will return to the events of that morning in more detail later in these reasons.

  3. 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

  4. The defendant’s counsel elected trial by judge alone.  The defendant’s fitness to plead was the first issue to be determined.

  5. 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.

  6. 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…

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R v Sumner [2010] SASC 43
Case
[2010] SASC 43
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CaseChat Overview and Summary

In R v Sumner, the defendant was found mentally unfit to plead and mentally unfit to stand trial in relation to charges of two counts of attempted murder. The case was heard by the Supreme Court of South Australia, where the defendant was declared liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA). The court made a supervision order pursuant to s 290O(2) releasing the defendant on licence and fixed a limiting term of seven years. The key legal issue for the court was whether the time already spent in custody could be taken into account in the fixing of a limiting term.

The court held that the time already spent in custody could be taken into account when fixing a limiting term. The defendant had been in custody for approximately one year and eight months before the making of the supervision order. The court considered the defendant’s extensive history of mental health issues, including diagnoses of bipolar disorder, major depressive disorder, and borderline personality disorder. The court also noted the defendant’s voluntary admission to Glenside Hospital on two occasions, her rejection of medical advice for further in-patient management, and her use of cannabis and alcohol to self-medicate. The court concluded that the defendant’s mental health issues were a significant factor in her offending behaviour and that the limiting term should reflect the need for ongoing supervision and treatment.

The court ordered that the defendant be released on licence with a limiting term of seven years. The defendant was also ordered to comply with certain conditions, including that she reside at a specified address, attend counselling sessions, and refrain from using drugs or alcohol. The court considered that the supervision order would provide the defendant with the necessary support and treatment to manage her mental health issues and reduce the risk of reoffending.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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