R v Turner - [2009] SADC 44

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v TURNER
[2009] SADC 44
Reasons for the Order of His Honour Judge Soulio
14 April 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 liable to supervision – limiting term of 5 years – supervision order made releasing defendant on licence on conditions decided by the court and specified in the licence.
Criminal Law Consolidation Act 1935 Part 8A, referred to.

R v TURNER
[2009] SADC 44

The defendant Daniel Lee Turner was charged with two counts of robbery, the first committed on 10 June 2007, and the second on 24 June 2007. The maximum penalty for each offence is imprisonment for 15 years.
Circumstances of the Offending
On 10 June 2007 at about 6.45pm the defendant rode his motorcycle into the forecourt of the Liberty service station on Henley Beach Road. Upon entering the shop section he demanded money and cigarettes and threatened to get a gun and shoot the victims if they failed to comply with his demand. The victims handed over money from the till and packets of cigarettes. Two weeks later on 24 June 2007 at about 2pm he again rode his motorcycle into the forecourt of the service station. One of the victims from the earlier robbery was working that day and he said to her “do you remember me”. She did recognise him and she ran to the roadway to seek assistance from passing motorists. The defendant walked into the shop and took money from the till and cigarettes and then rode away on his motorcycle.
In the days following the defendant behaved in an increasingly delusional manner, claiming to be the millionaire owner of a motorcycle gang and owner of the Adelaide Casino. Ultimately a member of his family notified the Mental Health Service Crisis Team. As a result police attended at the defendant’s address on 27 June 2007 and the defendant was detained pursuant to a Mental Health Order and transported to the psychiatric unit at The Queen Elizabeth Hospital. The defendant required inpatient psychiatric hospitalisation over a period of six weeks during which time he remained psychotic and his behaviour and mental state fluctuated. The defendant was released from The Queen Elizabeth Hospital on 3 August 2007, and was then arrested by police who had been notified of the release date.
The Objective Elements of the Offence
On 25 February 2008 Mr Turner pleaded not guilty in this Court, to both charges.
Pursuant to s269B of the Criminal Law Consolidation Act (the Act), an investigation into a defendant’s mental competence to commit an offence, or into whether elements of the offence have been established, is to be conducted before a jury unless the defendant has elected to have the matter dealt with by a Judge sitting alone. Such election is not made pursuant to s7 of the Juries Act. Here the election was made by an oral application.
Pursuant to s269E(2) of the Act, I proceeded first with the trial of the objective elements of the offences. I considered the declarations tendered, and having heard submissions from counsel for the Director of Public Prosecutions and counsel for the defendant, who conceded that the objective elements were proved, I found that the objective elements of the offences were proved beyond reasonable doubt.
Mental Incompetence
The matter finally came on for determination, after a number of hearings, on 25 February 2009. The process for investigation by the Court of the defendant’s mental competence is governed by Part 8A of the Act.
The defendant who is now 24 years old began to develop mental health problems following a serious assault at the age of 14. He suffered a post-traumatic stress disorder, and was later diagnosed as suffering attention deficit hyperactivity disorder and oppositional defiant disorder. He suffered a significant decline in mental health following the abuse of illicit and prescription drugs which precipitated a manic episode with associated psychotic features including grandiose and paranoid delusional ideas, psychotic thought disorder, and disturbed behaviour.
At the request of counsel for the accused Dr Raeside, an experienced psychiatrist, provided a report dated 22 January 2008 in relation to the defendant’s mental competence to commit the offences.
Dr Raeside concluded that the accused had experienced a psychotic episode at the time of the commission of the offences, either related to a Schizophreniform Disorder or simply drug induced, which persisted during the course of and subsequent to those offences.
Dr Raeside concluded that the defendant was suffering from a mental impairment whether the psychosis was drug induced or not. Dr Raeside was of the opinion that the defendant was “significantly impaired in his ability to reason with a moderate degree of sense and composure about the wrongfulness of his behaviour because of his mental impairment.”
Counsel for the prosecution sought an order for the provision of a further psychiatric report pursuant to s269WA of the Act enquiring into the defendant’s mental competence to commit the offences. Ultimately, Dr Bastiampillai provided a report dated 12 May 2008 and reached a similar conclusion to that of Dr Raeside.
When the matter came before me on 14 July 2008, the Director of Public Prosecutions conceded that Mr Turner was mentally incompetent to commit the offences charged.
The prosecution and defence jointly submitted that I should dispense with any further investigation into the defendant’s mental competence. Having considered the reports of Dr Raeside and Dr Bastiampillai I agreed and declared that the defendant was mentally incompetent to commit the offences.
Pursuant to s269FB(3) of the Act, I found the defendant not guilty of the offences and declared the defendant to be liable to supervision under part 8A of the Act.
Division Four Disposition
Thereafter reports were provided pursuant to s269Q(1), s269T(2) and s269R of the Act following which further submissions were made both by counsel for the Director and counsel for the accused.
Dr Bastiampillai provided a report dated 22 August 2008 in which he expressed the opinion that there was no evidence that the defendant posed an acute risk based on his current mental state. The defendant was no longer taking illicit drugs and was in relatively stable accommodation. Dr Bastiampillai considered that there was a risk of relapse if Mr Turner was unsupervised.
Dr Bastiampillai considered that the defendant required administration of maintenance mood stabiliser medication under the supervision of a community health team and that the defendant should be seen by a psychiatrist within the mental health team on a monthly basis for the duration of the period on medication.
He also recommended that in order to reduce the risk of further offending and relapse, Mr Turner should abstain from the use of alcohol, and should be under the supervision of the Department for Correctional Services. He also suggested that the defendant should be specifically required to attend psychiatric appointments as directed by the Director of Forensic Mental Health Services or his nominee.
Dr Schirripa prepared a report dated 30 October 2008 focusing on the defendant’s mental condition at that time, and the management needs and likely effect of any proposed management upon the defendant’s mental state. Dr Schirripa said that the defendant was not suffering from any manic or depressive symptoms. Dr Schirripa said that the defendant requires ongoing psychiatric treatment with antipsychotic and mood stabilising medication, and expressed the view that abstinence from illicit substances was crucial. He considered that the defendant should undergo regular urine testing by an experienced Community Corrections Officer to ensure compliance.
Dr Schirripa also expressed the view that Mr Turner required intense community mental health follow up to ensure he complied with his medication regimen and recommended that the treating team should apply for a Community Treatment Order through the Guardianship Board. He agreed with the treatment recommendations outlined earlier by Dr Raeside, and more recently by Dr Bastiampillai. Dr Schirripa concluded that provided the defendant continues to receive psychiatric treatment and remains abstinent from illicit substances, the risk of re-offending is quite low.
Dr Rose, another psychiatrist, provided a report dated 11 November 2008. Dr Rose considered that the defendant’s presentation was consistent with a psychotic illness. She considered that he had minimal insight into the nature of his illness and the impact of it and described him as minimising his offending behaviour and showing no remorse. She describes his judgment as being impaired across a range of areas. Dr Rose expressed the view that the defendant requires ongoing psychiatric follow up, antipsychotic medication, abstinence from illicit drugs and monitoring of that, abstinence from alcohol, and social follow up in terms of his living situation.
I have now received a report dated 30 March 2009 from the defendant’s Community Corrections Officer. He reports that after some initial non-compliance with reporting conditions, the defendant has reported for supervision regularly. The defendant is described as ashamed and remorseful and as having recognised the impact of that behaviour upon the victims of his offending. The defendant is now in full-time employment as a forklift driver. He has not resumed the use of any illicit drugs.
Ms D’Alessandro, a senior social worker from the Forensic Mental Health Service, provided a s269R report. The defendant’s family are supportive of him. The victims of the defendant’s offending are concerned at the prospect of him re-offending, and have requested a condition of any release on licence restricting the defendant from approaching the family, their business, and indeed the suburb of Torrensville.
Fixing the Limiting Term
Where a supervision order is made, a limiting term must be fixed equivalent to the period of imprisonment or supervision, or the aggregate period of imprisonment and supervision that would have been appropriate if the defendant had been convicted of the offences. Further, the limiting term is to be fixed on the basis of the head sentence that would have been imposed.
The defendant is 24 years of age. He was born in Western Australia and raised in Adelaide. His parents separated when he was three years old. He maintained some contact with his father until the age of 12 but lost contact with him thereafter. His mother had a number of subsequent relationships and he did not have any difficulty with those men. He progressed reasonably well at school until he commenced smoking marijuana in year 11, although there had apparently been earlier diagnoses, as I have said, of attention deficit hyperactivity disorder and oppositional defiant disorder. He suffered a serious assault when he was 14 years of age and was diagnosed with post-traumatic stress disorder thereafter. He has a long history of using cannabis, and later amphetamines. He is the father of a young child. His former partner has taken his daughter to live interstate. He entered a second relationship, which was subsisting at the time of the offending behaviour. That partner was also a drug user.
The defendant’s antecedent report discloses a short but intensive history of adult offending by way of driving and related offences including driving under disqualification. His only relevant previous offending was as a 16 year old when he was dealt with on two counts of aggravated serious criminal trespass non-residential, and was placed on a bond to be of good behaviour without a conviction being recorded. There was no other offending until the driving offences commenced when he was 19 years of age.
It is clear from the s269R report that the victims of the defendant’s offending were significantly affected by his behaviour. The offences are serious although no weapon was used. Had I been required to sentence him, I would have proceeded pursuant to s18A of the Criminal Law (Sentencing) Act and imposed a single penalty. I would have imposed a head sentence of imprisonment for five years.
Options
Section 269O of the Act provides that once a defendant has been declared liable to supervision, the Court may release him unconditionally or make a supervision order either committing the defendant to detention or releasing the defendant on licence on conditions.
Section 269S of the Act provides that in deciding whether to release the defendant under this Division, or the conditions of a licence, the court must apply the principle that restriction on the defendant's freedom and personal autonomy should be kept to a minimum consistent with the safety of the community.
Having considered the material to which I have earlier referred, on the basis of the opinions expressed by Dr Bastiampillai, Dr Schirripa, and to some extent of Dr Rose, and having regard to the fact that the defendant is now employed, has remained drug free and has a programme in place for the provision of antipsychotic medication, I have come to the view that it is not appropriate that Mr Turner be detained. Nor is it appropriate that he be released unconditionally.
He is to be released on licence subject to a number of strict conditions I will impose.
I note the course that I have adopted was not opposed by counsel for the Director of Public Prosecutions.
Licence Conditions
Various recommendations have been made in the reports prepared by examining psychologists, relating to the future supervision of the defendant. On the basis of those recommendations counsel for the Director of Public Prosecutions and counsel for the defendant jointly drafted conditions giving effect to the recommendations. After careful consideration, and some amendment, I regard the suggested conditions as the appropriate basis upon which the defendant is to be released on licence.
The defendant will be released on licence subject to the following conditions:
1.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.
2.That the defendant obey all reasonable directions of his supervising Correctional Services Officer with respect to attendance at programs and counselling as directed and as to his place of residence.
3.That the defendant reside at 57 Hartley Road Flinders Park and notify his supervising Correctional Services Officer of any proposed change of address prior to changing his residential address.
4.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 abide by 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.
5.That the defendant comply with all lawful directions given to him by his Key Worker and other mental health staff of the Community Mental Health Service nominated by the Director or his nominee to monitor his mental health supervision.
6.That the defendant not consume alcohol nor 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.
7.That the defendant submit himself for urinalysis and/or breath testing, as directed by his supervising Correctional Services Officer, for the purpose of determining whether there is in his body any alcohol or any illicit or non-prescribed drug.
8.That the defendant not leave the State of South Australia without permission from his treating psychiatrist and his Parole Board supervisor.
9.That the defendant not approach or contact, either directly or indirectly, Le Lem, Tin Vo, Ngee Tan on Van Vo.
10.That the defendant not attend at the business premises at 239 Henley Beach Road Torrensville.
11.That the defendant not attend within the area of Torrensville bounded by South Road, Henley Beach Road, Hardys Road and the Torrens River.
12.That the defendant not be violent or threatening towards any person.
13.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.
14.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 13 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.