R v T, JA

[2013] SADC 12

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v T, JA

[2013] SADC 12

Reasons for Decision of His Honour Judge Tilmouth

13 February 2013

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY - DISEASE OF THE MIND, MENTAL DISEASE OR MENTAL INFIRMITY

The defendant pleaded not guilty by reason of mental incompetence to a charge of causing harm with intent - court satisfied that the accused was mentally unfit to stand trial.  Proper disposition and appropriate limiting term considered.

Criminal Law Consolidation Act 1935 (SA) s 24(1), s 269GA(2), s 269J, s 269, 269NB(5), s 269O(2), s 269Q(1), s 269R, s 269RQ, s 269T, s 269T(2); Criminal Law (Sentencing) Act 1988 (SA) s 10; Mental Health Act 2009 (SA) s 16; R v Behari (2011) 110 SASR 147, referred to.
R v Draoui (2008) 101 SASR 267; R v T (1999) 75 SASR 235; Veen v The Queen (No 2) (1987-88) 164 CLR, applied.

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - TIME SPENT IN CUSTODY

The defendant spent a long period of time on remand in prison before a limiting term was imposed, rather than in detention in a mental institution.

Held: It was appropriate to take into account the time spent in prison when fixing the appropriate limiting term and it was further appropriate to take account of the hardship experienced by a mentally impaired defendant so detained.

Criminal Law Consolidation Act 1935 (SA) s 269O(1)(b)(i), s 269V, s 269X, s 269X(1)(b), s 269X(1)(b)(i); R v Terrill SACCA, 17 July 1991, Jud No. 2968, unreported, BC9100355; R v Gooley (1996) 66 SASR 380; R v Rostom (1995) 83 A Crim R 58; R v Liddy (No 2) (2002) 84 SASR 231; R v Van Gelder [2003] SASC 98; R v Smith (1998) 98 A Crim R 442; R v Priestly (2002) 38 MVR 186; R v Durocher-Yvon (2003) 58 NSWLR 581; R v Brady (2005) 241 LSJS 218; R v Israil [2002] NSWCCA 255; R v Kiltie (1974) 9 SASR 452; Winter v Samuels (1976) 72 LSJS 312; State of Western Australia v Chapman [2012] WASCA 203; R v Andrews [2012] QCA 266; R v Wiskich (2000) 207 LSJS 431, referred to.
R v McLaren (2009) 105 SASR 29; R v Sumner [2010] SASC 43; R v Behari (2011) 110 SASR 147; R v Kiltie (1974) 9 SASR 452; R v Tsiaras [1996] 1 VR 398, applied.

R v T, JA
[2013] SADC 12

The criminal proceedings

1. The defendant is before the court charged with an aggravated form of causing harm with intent to cause harm, contrary to section 24(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).  This offence carries a maximum penalty of 13 years imprisonment.

2. She has been declared unfit to plead to the offence.  The court is now asked to fix a ‘limiting term’ under the mental impairment provisions of the CLCA.  Regrettably she was detained in custody in the Adelaide Women’s Prison since her arrest on 3 March 2011, before being transferred to James Nash House on 3 December 2012, and later to a closed ward at the Glenside Hospital.  As will appear later much of that time was spent in what is described as ‘more secure and isolated’ areas.

   The background facts

3. The circumstances of the offence were that the victim (who was aged 30 at the time) commenced a relationship with the defendant around June 2010.  It was characterised by numerous verbal arguments, for which the police were at times called to intervene.  Soon thereafter the defendant moved into live with the victim at his Seaton address.  They broke up when she moved out on 28 February 2011.  However, during the early hours of Wednesday 2 March she showed up unannounced.  She had been drinking alcohol beforehand and she may have also taken some drugs.  An argument quickly developed.  He asked her to take her belongings and to get out of the house.  She thereupon walked into the kitchen, picked up a knife and stabbed him twice to the chest.  He sustained a superficial stab wound to the top left-hand side and a more serious stab wound to the top right-hand side of the chest, some three centimetres deep. This did not compromise the heart or lungs and from which he made a full physical recovery, although he remains somewhat traumatised by the events.  He was treated overnight in the emergency department of the Queen Elizabeth Hospital.

   Part 8A CLCA

4. It emerged during the course of the proceedings that the defendant suffers from significant mental health problems, particularly a schizoaffective disorder of a longstanding nature, so the question of her fitness to stand trial was put in issue. On 26 September 2011 her then counsel made an early admission that the objective elements of the offence were proven. Orders were made on 1 May 2012 for an investigation into her fitness to plead pursuant to s 269J of the CLCA.  In a report of 20 September 2011 the psychiatrist Dr Raeside, confirmed the diagnosis of schizoaffective disorder, which he considered the defendant suffered from at the time of the offence.  Nevertheless he was of the view that she was able to reason with a moderate degree of composure as to the wrongfulness of her actions, so that in his opinion she was not mentally impaired at the time.  He did however consider she was unfit to plead owing to ‘her chronic underlying psychotic illness, cognitive impairment, and likely a mild intellectual disability as well’.  In the meantime there was an application for bail, which was successful.  As matters transpired the proposed place of residence proved unsuitable, so the defendant remained in custody.

5. In his report of 3 July 2012, the psychologist Mark Reid also expressed the view that he did not believe the defendant was fit to stand trial.  He considered she demonstrated ‘features of a frontal lobe disorder with the features of disinhibition, impulsivity, preservative speech and lability of mood’.

6. In light of these opinions the court ordered a report under s 296X(1)(b) of the CLCA as to whether there was any practical alternative other than to commit the defendant into custody. Dr Milosevic of the Forensic Mental Health Service of SA confirmed that as of 10 August 2012 the defendant was subject to a Level 2 Community Treatment Order pursuant to s 16 of the Mental Health Act 2009 (SA), which expires on 18 June 2013. It appears likely that when she is released into the community, similar orders would be made. In this respect Dr Milosevic said the defendant’s mental health requirements required an assertive community care team, but that such facilities were not presently available to her and still further there ‘is no guarantee that [the defendant] would be accepted into care’. She concluded:

   Prison appears to be the only place where her treating team has had the opportunity to deliver medication on a predictable basis because [she] is not able to evade the treating team.

7. In a subsequent report of 13 October 2012, Dr Milosevic expressed the opinion that it would take many years for the defendant to recover fully from her current condition and reiterated that she required ‘supported accommodation with 24 hour supervision in the community to overcome her lack of insight and to continue her antipsychotic therapy’.  A report from the Exceptional Needs Unit of 23 August 2012 advises there was no such facility currently available within the community.  That intractably continues to be the situation to the present time.

8. On 31 August 2012 the court recorded a finding that the objective elements of the above offence was established as required by s 269GA(2), and then proceeded to make orders facilitating a Minister’s report required by s 269Q(1) of the CLCA.  Counsel for the prosecution indicated its willingness to provide the victim and next-of-kin report as required by s 269R thereof. Those orders followed a concession by Ms Litster for the prosecution that the defendant was unfit to stand trial, a concession properly made pursuant to s 269NB(5). The court thereupon recorded a finding to that effect.

   Supervision order

9. In October 2012, orders were made for the preparation of two further expert reports pursuant to s 269T(2). A victim and next-of-kin report dated 10 December 2012 were received in compliance with s 269R. Further reports dated 23 August 2012 (Dr Begg) and 31 October 2012 (Dr Raeside) were submitted in satisfaction of s 269RQ and s 269T of the CLCA.

10. The consensus emerging from the various reports were, broadly stated:

    .the defendant remains unfit to stand trial on account of the schizoaffective disorder with a contributory effect from underlying frontal lobe damage and she is likely to remain so for up to 12 months;

    .it may take one or two years before she is sufficiently well to benefit from treatment;

    .she is given antipsychotic medication every two weeks with significant limitations on her freedom of movement;

    .she requires supported accommodation with 24 hour supervision in order to fully engage in antipsychotic therapy;

    .the opportunity to deliver appropriate medication on a predictable basis has nevertheless ‘failed to produce major improvement in her overall condition and stability’;

    .the defendant is unlikely to voluntarily comply with community based therapy or to take the appropriate antipsychotic medication.

11. Section 269O(2) of the CLCA next required the court to proceed to make a ‘supervision order’, which it did based on the above material.

    Limiting term

12. Now the court must fix a limiting term equivalent to the period of imprisonment that would in its opinion have been appropriate if the defendant was convicted of the offence of which the objective elements are established.  What is involved in this stage of the Part 8A process is described in R v T:[1]

    [42]… I consider that s 269O makes it clear, by note 1, that in fixing the limiting term the court must not take account of the defendant's mental impairment. That meant that it was not appropriate to consider the mental impairment from which T was suffering, and accordingly it was not appropriate to sentence him on the basis that he was a person of seriously diminished responsibility. 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 to have regard to matters that were based upon or arose out of T's mental impairment.

    [43]      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. There is no denying the impact that the fixation of a limiting term might have on T. But it is relevant to bear in mind that the limiting term does no more than fix the period during which T may be subjected to restraints under Pt 8A.

    [1] (1999) 75 SASR 235 at 242

13. Expressed in another way the task confronting the court: R v Behari:[2]

    …is sentencing for an offence constituted by the objective elements it has found but where it has been left in ignorance of the mental state of the accused. It can neither reduce the limiting term by reason of diminished responsibility nor increase it by reason of callous premeditation or disregard for the suffering of the victims.

    [2] (2011) 110 SASR 147; [2011] SASC 111; BC201105157 at [14]

14. As a question of general principle the existence of mental illness may render inappropriate or moderate the influence of general or specific deterrence,[3] and may in addition mean a custodial sentence will weigh more heavily on the offender.[4]  The condition may bear on the level of danger to the community the offender presents and the appropriate manner of rehabilitation.[5]  It was submitted on behalf of the defendant that consistently with these principles, specific deterrence was of less significance in this case.  However it is the principles referred to in the above cases of R v T and R v Behari that must be applied.

    [3]    R v Anderson [1981] VR 155, 160-161, R v Scognamiglio (1991) 56 A Crim R 81, 85, R v Champion (1992) 64 A Crim R 244, 254-5, R v Hemsley [2004] NSWCCA 304, [20-23], R v Tsiaras [1996] 1 VR 398, R v Welling [2005] NSWCCA 318, [32]

    [4]    R v Smith (1987) 44 SASR 587, 589, R v Pearson [2004] NSWCCA 129 at [43], R v Leatherbarrow (1992) 13 Cr App R (S) 632, 633, R v Tsiaras [1996] 1 VR 398

    [5]    R v Lauristen (2000) 22 WAR 442, 457-458, R v Tsiaras [1996] 1 VR 398

15. It is clear enough that the underlying psychotic episode was the direct cause of the subject offence.  The mental impairment suffered by the defendant was described by Drs Begg and Raeside as chronic, with fluctuating severity.  The diagnosed schizoaffective disorder involves extremes of mood, hallucinations, delusions, disordered thinking and impulsive behaviour.  The defendant is said to pose a threat of safety to others as well as herself.  She has poor insight into her mental condition and the seriousness of her offending.  The consensus is that there is a need for 24 hour daily supervised treatment outside the prison system.  The various opinions expressed by the experts clearly connect the current offence within the mental disorder.  They also support the conclusion that there is a present need to protect the public.

16. There was a suggestion during the course of submissions by prosecuting counsel that the principles of general application, were modified because Part 8A was engaged.  In R v Draoui[6] it was held that in determining the length of a limiting term, the sentencing court is prohibited from taking into account the defendant’s mental impairment at the time of the offending.[7] It was further held that although s 269O(2) attracts the factors enumerated in s 10 of the Criminal Law (Sentencing) Act 1988 (SA), it did not do so for the purpose of discounting the otherwise appropriate limiting term on account of an early admission of the objective elements.

    [6] (2008) 101 SASR 267

    [7]    At [23] per Sulan J; Doyle CJ, Duggan J, Vanstone J and Anderson J agreeing

17. In this case, the mitigating matters personal to the defendant, the objective seriousness of the offence and the corresponding need to protect the community remain important considerations: R v Behari.[8]  Nevertheless principle dictates that a sentence (including a limiting term) should not be increased beyond what is proportional to the crime merely in order to extend the period of protection for the community:  Veen v The Queen (No 2).[9]

    [8] (2011) 110 SASR 147 at [18]

    [9] (1987-1988) 164 CLR 465 of 472

    The present case

18. Returning to the facts of this case, it can be seen this was a particularly nasty assault, even though the victim made a full recovery.  The defendant could not offer any explanation for what occurred and claims to have no recollection of the incident.  She was apprehended at the scene and initially denied any knowledge of the events, but soon admitted she fought with the victim.

19. The defendant is a 45 year old woman of Aboriginal descent.  Her people come from the Ceduna area on the West Coast.  Not a great deal is known about her background.  She left home when she was aged 15 or 16 and was expelled from school.  She has a number of court appearances over the years for various offences commencing in 1986, but has not been subjected to a prison sentence or a supervision order under Part 8A of the CLCA beforehand.  Of particular relevance to the current charge is a conviction for assault occasioning actual bodily harm in 1997 for which she was placed on a bond under supervision, a basic assault in 2000 with the same outcome and an assault in late 2010 or early 2011, for which she was again placed on a bond with supervision.

20. The defendant has suffered from serious and protracted mental health problems since the age of 16.  Between 1985 and 2005 there were multiple psychiatric hospitalisations due to episodes of psychosis, frequently precipitated by non-compliance with her medication regime – hence the Community Treatment orders.  She was originally diagnosed with schizophrenia, a diagnosis later altered to schizoaffective disorder.  This condition was compounded by problems with polysubstance abuse.  It is reported that she has had a rather disorganised life and that there is a history of alcohol, heroin and cannabis abuse ‘over many years starting in her teens’.  She has been in receipt of a disability support pension since 1994 and is reported to have been studying literacy and numeracy at Tandanya at one time.

21. The majority of the time spent in detention by the defendant was in the prison system, mostly in the management or ‘D’ wing on ‘intensive case management with no movement outside or any association with other prisoners’.  For reasons that will appear shortly, it is appropriate to give that circumstance some weight in fixing the limiting term.

22. In all the circumstances an appropriate limiting term is one of two years and three months.  Since the defendant has been in custody since 3 March 2011, that must be taken into consideration, in this particular instance by reducing the limiting term to reflect the time in which the defendant was in custody or otherwise detained: R v McLaren,[10] R v Sumner,[11] R v Behari.[12]  The limiting term of two years and three months will therefore be reduced by one year 11 months and ten days, to one of three months and twenty days.

    [10] (2009) 105 SASR 29 at [23]

    [11] [2010] SASC 43 at [36]

    [12]   Above at [17]

    Hardship in the prison system

23. An issue arose during the course of submissions as to the extent that imprisonment itself, as well as the particular difficulties of imprisonment faced by the defendant, bear upon the limiting term.  A central premise of Part 8A of the CLCA is that those declared mentally incompetent or incapable of standing trial, are meant to be dealt with outside the prison system, unless there is no other practical alternative. Sections 269V and 269X make this clear. The former places a defendant committed to detention under Part 8A and thereby placed in the custody of the Minister responsible for the administration of the Mental Health Act, who may direct that a defendant be placed under ‘the custody, supervision and care of another’, but may not direct the defendant be kept ‘in custody in a prison’ unless ‘there is no practical alternative: s 269V(2) CLCA.  Equally under the latter provision a court embarking upon a Part 8A proceeding cannot commit a defendant ‘to an appropriate form of custody’ other than prison unless ‘satisfied that there is … no practical alternative’: s 269X(1)(b) & (2)(b) CLCA.

24. Part 8A itself refers to ‘detention under this Part’ rather than to imprisonment: s 269O(1)(b)(i). As Vanstone J pointed out in R v Draoui:[13]

    A court fixing a limiting term under this section is not imposing a penalty. The purpose of the supervision order is not to penalise, but to both protect the public and to secure to the defendant such supervision and treatment as is available and appropriate.

    [13] (2008) 101 SASR 267 at [68]

25. The substantial remand in the prison system in this instance came about only because there was no alternative facility outside the prison system available to the defendant until December 2012.

26. As a question of general principle a sentencing court can take account of hardship in prison, depending on the circumstances:  R v Terrill,[14] R v Gooley,[15] R v Rostom,[16] R v Liddy (No 2),[17] R v Van Gelder.[18]  On the other hand the fact that a defendant may have difficulty in relating to other prisoners and therefore kept in protective custody, does not of itself provide a basis to reduce an otherwise appropriate sentence: R v Partridge.[19]  However in R v Priestley,[20] it was said that it was proper to reduce the non-parole period where the sentence had to be served in protective custody because of the nature of the offences.

    [14]   SACCA, 17 July 1991, Jud No. 2968, unreported, BC9100355

    [15] (1996) 66 SASR 380; 186 LSJS 33

    [16] (1995) 83 A Crim R 58

    [17] (2002) 84 SASR 231; 223 LSJS 305; 135 A Crim R 468; [2002] SASC 306; BC200207034 (CCA)

    [18] [2003] SASC 98

    [19] (2008) 102 SASR 233; 259 LSJS 67; [2008] SASC 323; BC200810295 at [49]-[50]

    [20] (2002) 38 MVR 186; [2002] SASC 438; BC200207985 (CCA) and see R v Durocher-Yvon (2003) 58 NSWLR 581; [2003] NSWCCA 299; BC200306267

1. What then of a mentally impaired defendant detained in the prison system only because appropriate external facilities were not available?  It has been held that restrictions imposed on a defendant in a particular section of a gaol are not to be taken into account unless they have some particular effect on the defendant different from those on other prisoners to whom they also apply: R v Smith.[21]  Indeed a sentencing court is not required to give weight to the fact that the defendant is kept in solitary confinement where that resulted from his own actions: R v Brady.[22]

   [21] (1998) 98 A Crim R 442

   [22] (2005) 241 LSJS 218; [2005] SASC 277; BC200505231 (CCA), 22 July 2005

2. These considerations do not apply in the circumstances of this defendant.  As Bray CJ acknowledged in R v Kiltie:[23]

   If the community has failed to make proper provision for the care and oversight of people like the applicant, it is not for the criminal law to attempt to fill the gap.  To do so confuses the functions of a gaol and an asylum, and of a judge and a psychiatrist.  Imprisonment in gaol is a punishment in itself and one which the applicant, by reason of his race and temperament, may be expected to feel severely.

   Remarkably similar views were expressed by Jacobs J in Winter v Samuels:[24]

   The Courts, however, exist to punish according to the law those convicted of offences.  I see no reason why it should not be said, and said firmly, in this State, as it was recently said in England “that Her Majesty’s Courts are not dustbins into which the social services can sweep difficult members of the public.  Still less should Her Majesty’s judges use their sentencing powers to dispose of those who are socially inconvenient.  If the Courts become disposers of those who are socially inconvenient, the road ahead would lead to the destruction of liberty.  It should be clearly understood that her Majesty’s judges stand on that road barring the way”.[25]

   [23] (1974) 9 SASR 452 at 453 appeared in R v Masolatti  (1976) 14 SASR 124 at 125, 129 & 130

   [24] (1976) 72 LSJS 312 at 318

   [25]   In re Dawn Clarke (1975) 61 Cr App R 320 at 323

3. In R v Tsiaras,[26] the Victorian Court of Criminal Appeal held that:

   … psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person of mental health.

   This statement of principle has since been widely cited with approval:  R v Israil,[27] State of Western Australia v Chapman,[28] R v Andrews,[29] and R v Wiskich.[30]

   [26] [1996] 1 VR 398 at 400

   [27] [2002] NSWCCA 255 at [26] per Spigelman CJ, Simpson J and Blanch AJ agreeing

   [28] [2012] WASCA 203 at [132]

   [29] [2012] QCA 266 at [30]

   [30] (2000) 207 LSJS 431 at [29]

4. Given the court must ‘apply the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to a minimum consistent with the safety of the community’ under s 269S of the CLCA and on the basis of the above cited authorities, it is therefore appropriate to take into account in fixing a limiting term, both that the defendant was detained in the prison system rather than a mental institution and the particular conditions under which she was so kept.

   Formal orders

5. The formal order of the court is that a limiting term of three months and 20 days is fixed to commence from today, during which the defendant is committed to detention under Part 8A of the CLCA as required by s 269O(1)(b)(i) thereof.