R v T No. SCCRM-99-6 Judgment No. S378

R v T
[1999] SASC 378

Nyland J

In this matter the accused (hereinafter referred to as T) was charged with the offence of attempted murder of N on 2 August 1998, or in the alternative with the offence of wounding with intent to do grievous bodily harm. T is a female person born on 19 February 1982. As she was a youth at the time of the commission of the alleged offence, she initially appeared in the Adelaide Youth Court. On 21 December 1998, an order was made pursuant to s 17(3) of the Young Offenders Act 1993 (YOA) that T be committed for trial to the Supreme Court.
Upon her arraignment, T pleaded not guilty to the charges against her. The issue of mental competence to commit the alleged offences was then raised by the defence. On 19 February 1999, following an election to be tried by judge alone, I conducted the trial of the objective elements of the offences. Neither the Director of Public Prosecutions (DPP) nor the defence called any oral evidence. In lieu thereof, by consent, I received copies of all of the declarations filed by the Director in this matter.
Ms Juttner, who appeared for the DPP on the trial then outlined the circumstances of the alleged offence. She described the victim as a male person aged 67 years. He resided alone at Tailem Bend with his dog. It was alleged that at about 12.30 am on 2 August 1998, he heard a knock on his front door. He answered the door to find T standing outside with a large dog. T appeared to be distressed. She was crying and she made a complaint that she had been raped. She asked if she could have some help and asked to use the telephone. N let her into his house. He showed her where the telephone was, which was near the kitchen/lounge area of the house. T followed N into the kitchen. At some stage he gave her a glass of water. T then went into the lounge room. At that stage, N decided to contact the police himself. As he was reaching for the telephone book he heard T’s voice behind him. As he started to turn around he felt a thump on his back by his shoulder blades. He saw that T had a large knife in her right hand which was raised and pointed at him. A struggle then ensued. N wrestled with T, and he sustained injuries in the struggle.
N was subsequently examined by Dr Entwhistle, a medical practitioner who described his injuries as:
“... a right anterior chest wound above the right breast, approximately 150 millimetres long and very deep, about 40 to 50 millimetres. This wound had not penetrated through to the muscle tissue. N is a very large man with a good reserve of adipose tissue. I believe the wound would have been more severe if he had not had as thick a layer of adipose tissue.
I also saw that he had another wound to his left forearm, a 100 millimetres wound on the radial aspect of his wrist, also quite deep, about 12 to 20 millimetres.
There was also another small wound or graze on his left forearm.”
Miss Davey, who appeared for T, indicated that she did not wish to make any submissions with respect to the objective facts following which I made a finding pursuant to s 269G A(2) of the Criminal Law Consolidation Act 1935 (CLCA) that the objective elements of the offence of attempted murder had been established. I then proceeded to hear evidence and representations on the issue of mental competence, pursuant to s 269G B(1) of the CLCA.
By consent I received a report of Dr Maria Tomasic dated 15 November 1998, a report of Dr McEvoy dated 31 December 1998, and a further report of Dr McEvoy dated 10 February 1999. Both Dr Tomasic and Dr McEvoy expressed the opinion that T was suffering from a mental illness at the time of the commission of this crime. The contents of those reports were not disputed. I found that T was not guilty of the crime but that she was liable to supervision pursuant to the provisions of s 269G B(3) of the CLCA. Section 269O of the CLCA provides that where a defendant is declared to be liable to supervision, the Court may release a defendant unconditionally or a make a supervision order either committing the defendant to detention or releasing the defendant on licence on conditions decided upon by the court and specified in the licence.
Section 269O (2) states:
“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.” (emphasis added)
The footnote to the section states that 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 into account the defendant’s mental impairment.
In view of T’s age, the starting point for the determination of the appropriate limiting term is the YOA. There is, however, no reference in that Act to the issues of mental impairment or mental incompetence, nor is there any reference in the YOA or the CLCA as to the interaction between those Acts on those topics. The YOA does, however, establish a special regime for young offenders. It is inconceivable that mentally impaired youths should be excluded from the more enlightened approach to the treatment of the mentally impaired and intellectually disabled in the criminal justice system as a result of the reforms contained in Part 8A of the CLCA.
Pursuant to the provisions of s 29(1) of the YOA the court is empowered with the discretion to treat the offender either as a youth or as an adult for sentencing purposes. That section provides:
“Subject to this Act, where a youth is committed to the Supreme Court or the District Court for trial, and is found guilty on trial in that court, or is committed to the Supreme Court or the District Court for sentence, that court, on sentencing the youth, may -
(a)     deal with the youth as an adult; or
(b)     ...
(c)     ...”
T has, however, not been found guilty on trial, nor has she been committed for sentence. As a matter of statutory interpretation, this section does not apply to T. As the specific provision of the YOA which would enable T to be dealt with as an adult does not apply, Miss Davey submitted that T’s limiting term was to be fixed by reference to the sentence which would be imposed in accordance with the objects and statutory policies of the YOA and which provided for a maximum period of detention of three years. This argument, however, overlooks the fact that in fixing a limiting term of a supervision order pursuant to s269O of the CLCA, the court must fix a limiting term equivalent to the sentence which would have been imposed had the defendant been found guilty of an offence. For the purpose of setting the appropriate term the court is to approach the task as if it were sentencing the offender for the criminal charge regardless of the mental impairment, and that is so whether the offender be an adult or a youth. The discretion as to whether to treat the defendant as a youth or an adult is part of the sentencing process which applies to a youth charged with a serious crime. In other words, in this case, the limiting term should be fixed by reference to the sentence that would have been imposed on T for the offence of attempted murder and without taking into account her mental impairment. This includes the decision to treat her as an adult as opposed to a youth for sentencing purposes.
If a youth is sentenced as an adult, certain consequences flow from the exercise of the discretion in this manner. The most significant distinction is that if treated as a youth the court is prevented from imposing a period of detention in excess of three years [s 23(2) YOA]. If treated as an adult, the only limitation on sentence is that provided by the legislation with respect to the particular crime in question. This does not, however, exclude the defendant’s age as a relevant consideration as it is a factor to be taken into consideration with respect to general sentencing principles: R v C (1998) 72 SASR 391 at 395 to 396; see also s 10 Criminal Law (Sentencing) Act 1988. Furthermore, although the policy embodied in the YOA of not taking general deterrence into consideration is still applicable where a youth is being sentenced as an adult [R v C (supra) at 396] deterrence with respect to other youths remains a relevant factor to be taken into account [s3(2a)(b) YOA]. The decision to treat an offender as an adult is likely to result in a more substantial term of supervision being imposed than if treated as a youth. This will not always be the case, however, and in some situations the manner in which the discretion is exercised may make no practical distinction.
In the course of submissions, both counsel referred to the decision of R v N & P [SASC CCA S6565 delivered 26 February 1998, unreported]. That case was concerned with the manner in which the discretion pursuant to s 29 of YOA should be exercised. Doyle CJ summarised the approach to be taken by a court in the following terms (at 7-8):
“... a court will sentence a youth as an adult when, bearing in mind the gravity of the offence or the history of the youth’s offending, the statutory objects and policies will best be achieved by sentencing the youth as an adult.
...
It is not simply a matter of sentencing a youth as an adult to enable the court to impose a heavier sentence than the Youth Court could impose, although often that will be the consequence of the decision to sentence a youth as an adult. Nor is it simply a matter of sentencing a youth as an adult to enable the court to take account of deterrence of other youths, although that will be a consequence of the decision. Nor is it simply a matter of saying that an offence is a relatively serious one, and therefore the youth should be sentenced as an adult, although once again a decision to sentence as an adult will often be because of the seriousness of the offence. As I have already said, it is a matter of deciding that, in the light of the seriousness of the offence or of the history of offending, the implementation of the statutory objects and policies requires that the court sentence the youth as an adult.”
Regardless of whether the offender is to be treated as a youth or an adult, the court is to exercise its powers by reference to the objects and statutory policies embodied in the YOA. The principal object of the YOA is to secure for young offenders, the “care, correction and guidance necessary for their development into responsible and useful members of the community and the proper realisation of their potential” [s 3(1) YOA]. The statutory policies expressly incorporated in the legislation include making youth “aware of his or her obligations under the law and of the consequences of breach of the law” [s 3(2)(a) YOA] and providing adequate protection to the community against “violent or wrongful acts” [s 3(2)(c) YOA].
In relation to the circumstances of the individual case, the specific statutory policies include preserving and strengthening “family relationships between a youth, the youth’s parents and other members of the youth’s family”, avoiding unnecessary withdrawal from the “youth’s family environment” and “avoiding unnecessary interruption of the youth’s education or employment’ [s 3(3) YOA].
The statutory policies embodied in the YOA indicate an emphasis on the rehabilitation of the individual offender but not at the expense of the protection of the community and the weight to be attached to each of these factors will obviously vary according to circumstances of the individual case.
In this case, the Crown has submitted that for the purpose of fixing a limiting term, T should be dealt with as an adult. Ms Juttner referred to the gravity of the offence, the maximum penalty for which is life imprisonment [s 270A(3)(a) CLCA]. Ms Juttner also referred to T’s history of offending which includes two prior offences of assault occasioning actual bodily harm, for which she was sentenced to two good behaviour bonds on 17 September 1997 and 14 May 1998 respectively and the offence of carry an offensive weapon. Ms Juttner further submitted that in fixing the limiting term it was a relevant consideration that T was on two bonds to be of good behaviour at the time this offence was committed.
In my view, the gravity of this crime is such that it is appropriate for a term to be fixed on the basis of a sentence imposed on T as an adult. This was a violent unprovoked act on a relative stranger in his own home and the injuries sustained by him were serious. N continues to suffer from flashbacks and his normal life style has been difficult. I bear in mind T’s prior offences. Although serious, it is clear that they were part and parcel of a long standing illness behaviour leading up to the commission of the present offence. It is regrettable that there was not some earlier identification of the seriousness of T’s problems and consequent psychiatric intervention which might have averted this particular crime. T was, however, aged only 16 at the time she committed this crime and even now she is aged only 17. In addition to her age, and mental impairment, there are a number of mitigating factors to be taken into account.
T’s prior history is set out in some detail in the various medical reports and it is unnecessary to repeat the details thereof. I mention, however, that she has been the victim of physical and sexual abuse since an early age and has a history of significant depression, suicide attempts, violence and psychotic symptoms. T has been detained since the date of her arrest. Initially she was detained at the Magill Training Centre and since at either James Nash House or Glenside hospital. T continues to be significantly mentally impaired. There has been a considerable delay in the resolution of the suggested treatment plan to manage her condition. This has been the subject of a number of hearings before me which involved oral evidence from Dr Tomasic, Ms Kenny, a social worker with Family and Youth Services, and Professor Barratt, Clinical Director of the Eastern Community Mental Health Services. The problems which have arisen are, to a large extent, due to the lack of any suitable facility in this State for the care of young and/or female, mentally impaired persons. I understand, however, that the issues which have arisen with respect to T’s care are now being appropriately addressed.
I have been provided with a further report from Dr Tomasic dated 1 September 1999. This indicates that proposals for T’s future care, which includes the opportunity to attend the Magill Training Centre to facilitate her education and interaction with other young people, have now been put in place. It is therefore appropriate to bring this matter to finality. I make a supervision order pursuant to s269O(1)(b)(i) that T be committed to detention. Taking into account the period for which T has already been detained, I fix a limiting term of four years.

[1999] SASC 378

10 September 1999