R v Telford - [2009] SADC 32

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TELFORD
[2009] SADC 32
Reasons for the Order of His Honour Judge Lovell
30 March 2009
CRIMINAL LAW
Investigation into mental competence to commit an offence - decided that at the time of the conduct alleged to give rise to the offences the defendant was suffering a mental impairment - decided that the objective elements were established beyond reasonable doubt - defendant declared to be mentally incompetent to commit the offences and declared to be liable to supervision - limiting term of 6 years 4 months and 2 weeks fixed - supervision order made releasing defendant on licence on conditions decided by the court and specified in the licence.
Criminal Law Consolidation Act 1935 ss 19(1), 19(2), Part 8A, referred to.

R v TELFORD
[2009] SADC 32
Introduction

The defendant Mark Damien Telford was charged with one count of serious criminal trespass and one count of dishonestly taking property without the owner’s consent committed on the 20 July 2007 in addition to one count of aggravated robbery committed on the 5 August 2007.
The Offending
On 20 July 2007 the defendant entered the residence of Ms Rathnam as a trespasser and committed a theft. He took a CD player, portable television, DVD player, clothes dryer and microwave oven.
On 5 August 2007 the defendant entered the BP Service Station at Smithfield and threatened the console operator with two knives. He stole approximately $178 on that occasion.
Background of Offending
In relation to the first two charges, the victim was Ms Rathnam who had been previously in a relationship with the defendant. Upon return to her home on 22 July she discovered that a window to the bathroom at the rear of the premises had been smashed. She noted that her television, DVD player, microwave, clothes dryer and stereo system were missing. The value of items was approximately $600.
When the defendant was spoken to by the police he said that she had been unfaithful to him and that he was upset and decided to break into her house and take the items to get back at her.
On 5 August 2007 Ms Dinon was working behind the console of a BP Service Station at Smithfield. The defendant entered the premises and pulled out from underneath his jumper two steak knives and demanded that Ms Dinon hand over money. She handed to the defendant a number of loose coins and notes totalling approximately $178.
Police attended the premises of the defendant later that night and observed that he was wearing clothing similar to the clothing as seen worn by the offender on the surveillance footage. They also observed two steak knives on the lounge room floor. The defendant denied committing the offence.
Psychiatric Background
The defendant has an extensive past psychiatric history of paranoid schizophrenia that first became evident during a period of incarceration in 1994. At that time the defendant was in Mobilong Prison. He was transferred to James Nash House because of acute psychosis manifested by auditory hallucinations of a persecutory and paranoid nature, visual hallucinations, vivid nightmares, paranoid delusions and a general thought disorder. Since the defendant was released he has had other inpatient admissions usually at times when he has been incarcerated. The clinical notes of the defendant indicate a history of fluctuation in his mental state due most likely to alcohol and substance abuse that has affected his behaviour but also aggravated by his underlying psychotic disorder.
After committing the robbery at the service station the defendant was arrested and eventually detained at the Adelaide Remand Centre. This occurred on the day after the alleged offence. The defendant was immediately placed on a suicide risk assessment care plan due in part at least to his unstable mental state. He reported hearing voices despite maintaining that he had been compliant with medication. Dr Raeside reviewed the defendant on 14 August 2007 at the Remand Centre and formed the opinion that the defendant was experiencing an acute psychotic relapse of schizophrenia with paranoia hallucinations and thought disorder. His medication was changed but he remained psychotic; eventually on 21 August 2007 he was detained under the Mental Health Act and admitted to Glenside Hospital whilst awaiting a bed in James Nash House. The defendant remained there until 15 January 2008 when he returned to the Adelaide Remand Centre.
During the admission to James Nash House the defendant’s mental health improved particularly with the introduction of Clozapine.
The Proceedings
The procedure for an investigation by the court in relation to a defendant’s mental competence is governed by Part 8A of the Criminal Law Consolidation Act.
The matter came on before me for determination on 19 December 2008.
Pursuant to section 269F I proceeded with the trial of the defendant’s mental competence. In relation to the question of whether the defendant was mentally competent to commit the three offences the reports of Dr Raeside dated 24October 2008 and 2December 2008 and the reports of Dr Czechowicz dated 23 May 2008 and 31 October 2008 were tendered.
The medical evidence was unanimous in supporting the defence of mental incompetence. The DPP conceded the question of mental incompetence.
Having viewed the psychiatric reports, pursuant to section 269 FA (3) (a) and (5) (b) I found on the balance of probabilities that the defendant was mentally incompetent to commit all three offences
Ms Smith who appeared for the DPP then tendered the declarations in relation to all charges. I considered the question of the objective elements of all three offences and pursuant to section 269FB (2) made a finding beyond reasonable doubt that all objective elements had been established. I note that Mr Dixon, counsel for the defendant, conceded that the objective elements of all three offences had been established beyond reasonable doubt.
Pursuant to section 269 FB (3) I made a finding that the defendant was not guilty of the three offences and declared that he was liable to supervision under Part 8A of the Criminal Law Consolidation Act, having found that he was mentally incompetent to commit the three offences mentioned above.
I then made an order for further reports pursuant to ss 269Q and 269R.
Supervision Order
In making a supervision order I must fix a term equivalent to the period of imprisonment or 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. This is the limiting term. I note an acknowledgement of guilt is not to be equated with an admission of the objective elements and therefore there is no rule requiring credit to be given for the admission of the objective elements.
I note that a limiting term is not and should not be regarded as punishment. The limiting term sets the maximum period during which a defendant should remain subject to the supervision of the court in the application of the processes of treatment for possible recovery from the mental incapacity suffered
In setting a limiting term a court cannot consider the mental impairment of a defendant and cannot set what would be the equivalent of a non-parole period.
In relation to the trespass offence the maximum penalty is fifteen years imprisonment. The maximum penalty for aggravated robbery is life imprisonment and the maximum penalty for theft is ten years imprisonment.
I note the antecedent report shows considerable contact with the police. Of concern was the offending in 1994 for which the defendant received a sentence of imprisonment of four years and six months and fifteen days with a non-parole period of twenty-two months. Since 1996 he has largely kept out of trouble apart from some street offences.
The maximum penalties indicate that the offending is serious. In relation to the trespass offending the victim was the defendant’s ex-girlfriend. She apparently remains frightened as the previous relationship had been somewhat turbulent.
I note that the aggravated robbery charge was committed two weeks after the commission of the offences of trespass and theft and whilst the defendant was on bail. As put to me by the DPP the defendant chose a soft target, namely a service station where there was a female working alone at night. Two steak knives were brandished at the victim when the demands were made for money. The use of knives to commit the robbery was dangerous and frightening for the victim. Clearly both general and personal deterrence have a considerable role to play given the antecedent history of the defendant.
I note that in relation to time in custody the defendant was arrested for the offences of serious criminal trespass and theft on the 20 July 2007. Bail was granted on the following day. The offence of aggravated robbery was committed on 5 August 2007. The defendant was arrested later that night and refused bail. He remained in custody until he was granted home detention bail on 20 February 2008. Home detention bail was breached and the defendant was taken back into custody on 29 February 2008 and he has remained in custody since that time.
Leaving aside the nine days when on home detention bail the defendant has been in custody since 5 August 2007.
I must impose one limiting term. However I indicate that whilst I would have made the sentences in relation to the serious criminal trespass and theft concurrent I would have made the sentence for aggravated robbery cumulative upon the sentence imposed for the other two offences.
I am unable to give credit for admission of the objective elements of the offences. I will give some credit for the defendant’s cooperation and admissions in relation to the offending of 20 July 2007.
Taking all those matters into account I fix a limiting term of 8 years. I must then take into account the time that the defendant has spent in custody. I allow 19 months and 2 weeks for time already spent in custody. That leaves a limiting term from today’s date of 6 years, 4 months and 2 weeks.
Consideration of Release on Licence
Medical Evidence
I received the following reports:
·Dr Czechowicz dated 27 February 2009,
·Victim & Next of Kin Counselling Report dated 18 February 2009,
·Psychiatric Report of Dr Nambiar dated 3 February 2009 and
·Psychological Report from Mr John Bell dated the 27 January 2009.
Recent Assessments
Dr Nambiar a consultant psychiatrist interviewed the defendant on 29 January 2009 at James Nash House. Dr Nambiar has been involved in his psychiatric care whilst he had been in custody on previous occasions.
On examination the defendant did not display any formal thought disorder; he was not distracted by any hallucinatory experiences. Dr Nambiar thought the defendant had regained relatively good insight in relation to his illness. He noted that the defendant did not appear to be experiencing any major side effects from the medication. The defendant told Dr Nambiar that he thought the current combination of treatment had brought about the best state of mind that he had experienced in a long time.
Overall Dr Nambiar thought that the defendant had a number of poor prognostic factors that were largely historical. However he noted that the current response to treatment and his familiarity with the Northern Mental Health Services meant that if he were to comply with treatment and continue under a supervision order the prognosis would be relatively good. He noted that it was important for the defendant to avoid illicit substances and to comply with treatment as directed by his treating psychologist. He should live with his mother.
Dr Czechowicz in his report of 27 February 2009 agreed in general terms with that view.
Mr Bell, a psychologist, interviewed the defendant on 23 January 2009. He was well known to him as he had treated the defendant many times in order to provide psychological services both in the custodial setting of James Nash House and on an outpatient basis.
Mr Bell endorsed the treatment plan and noted that the defendant had insight into your drug and alcohol abuse.
The medical evidence satisfies me that you should be released on licence subject to the conditions suggested in the report namely ongoing psychiatric treatment, ongoing compliance with anti-psychotic medication and abstinence from alcohol and illicit drugs.
I have taken into account the victim impact statements in the matter and in particular the report of 18 February 2009 prepared on behalf of the victims and next of kin.
Terms of Licence
The DPP submitted proposed terms of a licence. Generally speaking the terms proposed by the DPP follow the recommendations made by the psychiatrist and psychologist. It also takes into account in a general way what is contained within the Victim and Next of Kin Counselling Report of 18 February 2009. I have had particular regard to that report. Clearly the DPP and indeed Mr Dixon for Mr Telford in making their submissions have taken into account the wishes of the victims and have attempted to accommodate those wishes as far as is practicable.
Mr Dixon indicated that the defendant supported almost entirely the conditions contained within the draft order for release on licence. Indeed he indicated that the defendant understood his problem with alcohol and wished to have in the licence a condition that he not consume alcohol. The only difficulty raised by Mr Dixon related to restrictions in the defendant attending the premises of what is known as Club 84 and The Gully. Apparently Ms Rathnam, who has mental health problems of her own, attends both these facilities and is frightened that she may see the defendant at those premises. That presents a dilemma, as it is important that the defendant receives the support of the social activities provided by these services as well.
Mr Dixon helpfully suggested that an order could be fashioned whereby the defendant could attend Club 84. He informed me that it was open Mondays, Wednesdays, Thursdays and Fridays and the defendant was content to be restricted to attending those premises on two days per week, namely the Thursdays and Fridays. He accepted he would not attend at The Gully. I think that was a helpful suggestion.
Taking all matters into consideration I make the following orders:
I fix a limiting term of 6 years, 4 months and 2 weeks commencing today, 30 March 2009
I order that you be released on licence on the following conditions.
1.That the defendant be under the care and direction of the Clinical Director, Forensic Mental Health Service, (“The Director”) or a consultant psychiatrist nominated by him or her (“the nominee”), and obey any directions given to him from time to time with regard to medical and psychiatric treatment and medication.
2.That the defendant is not to consume any medication or drug unless prescribed or recommended by his treating psychiatrist or other legally qualified medical practitioner and then only strictly in accordance with the dosage prescribed or recommended.
3.That the defendant is not to consume alcohol or consume or use any illicit drug or prohibited substance.
4.That the defendant is to submit to random breath, blood or urine testing, as required by his supervising officer or treating psychiatrist, for the purpose of monitoring any consumption or use of alcohol, illicit drugs or prohibited substances and for the purpose of ensuring his compliance with prescribed medication.
5.That upon release on licence, the defendant’s case be managed by the Forensic Community Team and that the defendant comply with all the lawful directions given by that team, particularly with respect to attendance at appointments nominated by that team.
6.That, at the discretion of the Director and at a time when the Director sees fit, the defendant’s case management be transferred to an appropriate Community Mental Health Team and that the defendant comply with all the lawful directions given by that team.
7.That in relation to all matters other than the treatment and monitoring of the defendant’s mental health, the defendant be under the supervision of a Community Corrections Officer, assigned by the Parole Board of South Australia, for the purposes of supervision, including but not limited to directions regarding his place of residence and supervision and attendance at rehabilitation and other programs, in accordance with the recommendations of the defendant’s treating psychiatrist.
8.That during the term of the licence the defendant reside with his mother or elsewhere as directed by the Director or nominee and/or his Community Corrections Officer.
9.That the defendant not approach or communicate, either directly or indirectly, with Judith Rathnam.
10.That the defendant not enter, remain or come within 100 metres of The Gully facility at 4 Smart Road, Modbury, South Australia.
11.That the defendant not enter, remain or come within 100 metres of Club 84 facility at 84 Yorktown Road, Elizabeth Park, South Australia on Mondays and Wednesdays.
12.That the defendant not approach or communicate, either directly or indirectly, with Melissa Dinon, and that he not enter, remain or come within 100 metres of the BP Service Station at 43 Main North Road, Smithfield, South Australia.
13.That the defendant not be violent or threatening towards anyone.
14.In the event that the Director, or the Director’s nominee, or the Presiding Member of the Parole Board or the Presiding Member’s nominee, is of the opinion that the defendant has contravened, or is likely to contravene, a condition of this order, the Director, or the Director’s nominee, or the Presiding Member of the Parole Board or the Presiding Member’s nominee shall notify forthwith the Director of Public Prosecutions of that opinion.
15.If the Director of Public Prosecutions is notified by the Director or the Director’s nominee or the Presiding Member of the Parole Board or the Presiding Member’s nominee in accordance with order 14 above, the Director of Public Prosecutions shall forthwith make an application to this Court for a review of the supervision order which in cases of emergency may be made at short notice.