R v T, DCH - [2009] SADC 12

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v T, DCH
[2009] SADC 12
Reasons for Sentence of His Honour Judge Tilmouth
17 February 2009
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY
DISEASE OF THE MIND, UNFITNESS TO STAND TRIAL
Accused pleaded not guilty by reason of mental incompetence to two charges - consideration of psychiatric evidence of accused's mental state at the time - court satisfied that accused mentally incompetent to commit offences. Proper disposition and appropriate limiting term, considered.
Criminal Law Consolidation Act 1935 Part 8A, referred to.
R v Draoui [2008] SASC 188, applied.

R v T, DCH
[2009] SADC 12
The charges

The defendant entered pleas of not guilty on grounds of mental impairment, on one count of aggravated robbery and one count of robbery, both committed in close proximity to each other in the central business district of Adelaide on the 14^th of October 2007.
Factual Background
Both offences related to offences related to separate convenience stores, situated close to Rundle Mall at its Pulteney Street end. The first took place at about 6:15 am, on this Sunday morning. The defendant was seen to enter the store. He behaved strangely and lingered for about 10 minutes or so before walking out in full view of the counter attendant, taking with him just under $140 worth of goods, mostly cigars. The attendant went after him, yelling out “stop, give me the stock back”. The defendant thereupon turned around, picked up a glass bottle lying on the pavement and threatened the attendant with it. He backed off as the defendant threw the bottle to the ground, smashing it. As it happens the defendant left behind his mobile telephone and it was through this that his commission of the offence was easily detected. The circumstances of aggravation are constituted by the threat with the bottle.
The second offence was committed at 8:20pm that night, in strikingly similar circumstances. On this occasion he walked out of the second store with just under $50 worth of goods, essentially cigarettes. The Manager gave chase demanding “give me what you took”. The defendant then tried to run across the road, pushed past the manager, who then grabbed him, dragged him to the ground, put him in an arm lock and kept him thus until the police arrived.
During the course of an interview of the 19^th November 2007, the defendant effectively admitted committing the offences, maintained he was going through a “kind of spiritual psychosis” and said he dumped the items around the corner from the first store. He described feeling “insane in the head”.
Issues of mental impairment
The defendant is a man now in his late 20’s. He was first diagnosed as suffering from psychosis in early 2006. This followed the break-up in a relationship, the loss of a job and the consequential abuse of psychotic drugs. He was hospitalised at this time for a month, again in mid 2006 and for a third time in September 2006, initially for a manic episode and then manic relapse. He was admitted again to the Queen Elizabeth Hospital in mid 2007, diagnosed with a manic relapse of bi-polar disorder and was subsequently detained at the Royal Adelaide Hospital “due to his level of thought disorder and clear psychosis”.
He was prescribed anti-psychotic drugs and it is clear that significant problems developed in complying with his prescribed medication. There were further admissions to hospital again in August and September 2007, consequent upon a diagnosis of schizoaffective disorder. He was also admitted to hospital in October 2007 following his arrest by the police who were called to the second store.
Mental impairment
In a report dated 1^st August 2008, the experienced forensic psychiatrist Dr Raeside concurred with the diagnosis of chronic schizoaffective disorder, with evidence of acute relapse. He concluded there was “clear evidence that [he] was suffering from an acute relapse of psychosis at the time of the alleged offences, which would constitute a mental impairment”. His opinion was that the defendant was:
“… unable to reason with a moderate degree of sense and composure about the wrongfulness of it, with his thinking being significantly influenced by delusional ideas, auditory hallucinations, and psychotic thought disorder”.
The same conclusion was effectively drawn by Dr Tomasic a consultant psychiatrist, in her report of the 21^st October 2008. Although she considered the defendant had an adequate understanding of the nature of his actions, she was of the view he was “not able to reason with a moderate degree of sense and composure about the wrongfulness of his actions”, because he “believed he was communicating telepathically with others and had permission to take the goods”.
When the matter first came on for hearing before the court in November 2008, both reports were tendered by consent pursuant to s 269F(A)(1) and s 269WA(1) of the Criminal Law Consolidation Act 1935 (SA), respectively. With their concurrence the court proceeded to dispense with any further investigation into the defendant’s mental incompetence to commit the offences and recorded a finding that he was mentally incompetent to commit those offences, in accordance with s 269F(A)(5) of the Act.
The court then received the declarations submitted during the committal process. Counsel accepted the factual basis as summarised above, that the objective elements of both offences were satisfied and that it was appropriate to make declarations pursuant to s 269F(B)(3) by recording findings that the defendant was not guilty of either offence and that he was therefore liable to supervision under Part 8A of the Act, which orders the court proceeded to make.
The court then ordered three separate reports to be prepared, pursuant to s 269T(2)(a) of the Act and it made orders for the provision of a report by the Minister as required by s 269Q thereof. The matter was adjourned to enable those reports to be furnished and to obtain the appropriate report setting out the views of the victims and the defendant’s next of kin as required by s 269R(1).
When the matter resumed in January 2009, the parties accepted those sections had then been complied with, as will now appear. First a report of the consultant psychiatrist attached to the Cramond Clinic of the Queen Elizabeth Hospital, Dr Bastiampillai of 10 December 2008 was submitted. This confirmed the diagnosis of “schizoaffective disorder-bipolar type”, that the condition was currently in remission, although there continued to be residual depressive symptoms which were said to have improved in recent times. It also reported illicit drugs were no longer being used by the defendant, that he was currently under treatment and taking anti-psychotic medication. This was supplemented by a further report of 19 January 2009 which suggested the prognosis for recovery had improved whilst the defendant continued to take his prescribed medication, but that he would continue to need treatment according to an appropriate “care plan”.
A second report written by the consultant forensic psychiatrist Dr Nambiar of 17 December 2008 was also tendered. This reported the defendant “responded very well to medication” and that there was an improved prognosis for the future. He was quite satisfied the defendant’s condition had stabilised and that he was receiving adequate treatment at the present time. Dr Nambiar did not consider he was in need of detention, as he considered “that community management is appropriate”.
A third report considered was that of Dr Tomasec of 14 January 2009. She noted the defendant’s condition had settled with no present evidence of psychotic symptoms. Despite the previous history of non-compliance, she considered he should remain in the community, although he “requires assertive follow-up … to ensure he remains adequately treated and any deterioration is detected early”. She emphasised that the defendant required an appropriate rehabilitation program. Finally the court received a report of a senior social worker attached to the Forensic Mental Health Service of James Nash House, containing the necessary victim and next of kin information.
Disposition of the case
Both counsel submitted the appropriate course was to proceed to release the defendant on licence rather than detain him and to then fix the appropriate limiting term or terms. At this point of the exercise, having declared the defendant liable to supervision, the court must proceed to consider whether he should be released unconditionally – which is clearly inappropriate in this case – or alternatively to make a supervision order first and then commit the defendant to detention or alternatively release him on licence on specified conditions. Section 269O(2) requires the court to proceed by making a supervision order first and then to fix a limiting term equivalent to the period of imprisonment or supervision (or 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 were established.
When deciding whether to release, and when considering what conditions are appropriate, the court is required to “apply the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community”: s 269(S). At all those respective stages the court is required to consider if, he is likely to endanger other persons if released, whether there are adequate resources available for his treatment and support into the community and whether he is likely to comply with the conditions of licence if so released.
The opinions of Dr Bastiampillai were supported by Dr Raeside in his own report of 17 December 2008. Dr Raeside considered the defendant had “responded very well to medication”, was now “quite satisfied” his condition had been stabilised and that he was receiving adequate treatment and supported the view for ongoing assistance. Dr Raeside did not consider it was necessary for this purpose to commit the defendant. He preferred the option of community management. He emphasised the need for continuing supervision. In her report of 14 January 2008 Dr Tomasec supported this view but emphasised that “case management is essential”.
Given that the reports for practical purposes are unanimous and given that the defendant has now proved to be compliant with his medication, which was a significant problem in the past, that his condition is stable, well managed and under control and a regime for treatment and support is well established, the only proper disposition of this matter is by proceeding to release him on licence.
As to the appropriate conditions, various recommendations were made in the several reports. Based on these the parties furnished draft conditions in which they both concur, clearly giving effect to the recommendations of the experts. Those conditions, incidentally, pay due regard to the decision of the Court of Criminal Appeal in R v Draoui.[1]
[1] (2008) 101 SASR 267
In those circumstances the conditions of licence will be as drafted and later varied during the course of oral submissions as follows.
1. That the defendant be released on licence subject to the following conditions :-
(a)that during the period of his release on licence, the defendant be under the supervision of an Officer of the Department for Correctional Services appointed by the Parole Board of South Australia and obey all lawful directions of his supervising officer with respect to non-medical matters; and for that purpose the defendant is to report initially to the Office of the Department for Correctional Services at 220 Commercial Road, Port Adelaide, within two working days.
(b)That the defendant obey all reasonable directions of his supervising Correctional Services officer with respect to attendance at programs and counselling as directed, and that he reside where directed by his supervising officer, initially [address supplied].
(c)That the defendant be under the care and supervision of the Clinical Director of the Forensic Mental Health Service of South Australia (‘the Director’) or a consultant psychiatrist nominated by him, and that the defendant comply with all directions of the Director or his nominee in relation to his psychiatric treatment, including directions as to the taking of medication, attendance at appointments, and as to his compliance with the treatment plan devised for him under Section 269Q of the Act.
(d)That the defendant comply with all lawful directions given to him by his Case Manager and other mental health staff of the Community Mental Health Service nominated by the Director or his nominee to monitor his mental health supervision.
(e)That the defendant not use, possess or administer any narcotic or psychotropic drug or any drug which is not medically prescribed for his use by a legally qualified medical practitioner, and that he take any such prescribed medication only at the prescribed or recommended dosages.
(f)That the defendant submit himself for urinalysis as directed by his supervising Correctional Services officer, for the purpose of determining whether there is in his body any illicit or non-prescribed drug.
(g)That the defendant comply with all directions of his treating psychiatrist or his nominee to submit himself for blood-testing to monitor his compliance with taking prescribed oral medication.
(h)That the defendant not leave the State of South Australia without permission from his treating psychiatrist and his Parole Board supervisor.
The appropriate limiting term
Having proceeded to this point in the Part 8A process, the final obligation is to fix a limiting term or terms, appropriate to the two offences. It was suggested by counsel for the defence and not contested by the prosecution, that it is open to fix one single term, reflecting the total criminal conduct entailed in both offences. As they were committed on the same day, arose out of precisely the same underlying mental cause and were remarkably similar in execution, the court proposes to take that course.
Although the court cannot take into account the defendant’s mental impairment as such, it can weigh the particular deterrent affect or otherwise, any limiting term might have: R v W, LR.[2] The court must set the equivalent head sentence otherwise appropriate to this offence, and it is not entitled to view the early admission of the objective elements as being equivalent in any respect to an early plea of guilty so far as attracting a discount on the sentence otherwise appropriate is concerned: R v Draoui.[3] It is however entitled to take into account his admissions.
[2] [2008] SADC 166
[3] Above at [26] and [70]
In this case although the evidence was strong the defendant effectively made full admissions. The offences were spontaneous, disorganised, ill-considered, nonsensical and almost certainly likely to result in his detection and capture, which proved to be the case. They concerned the theft of items for which he had no particular need and for that reason were rather pointless.
On the other hand, offences of robbery on soft targets such as these are all to prevalent and increasing levels of violence such as that displayed in relation to the first count, call for strong deterrent penalties. The console operator in relation to that count took things particularly badly, as the robbery has had a distinct and lasting effect upon him. The offences attract maximum penalties of life and fifteen years imprisonment, respectively.
The defendant has no previous convictions whatsoever nor has he been in custody for any period of time in relation to this matter. In the combined circumstances the court considers one single limiting term of four years to be appropriate for both offences.
A limiting term of four years is therefore fixed pursuant to s 269O(2) of the Act.