R v W, D - [2006] SADC 27

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v W, D
Reasons for the Orders of Her Honour Judge Shaw
23 March 2006
CRIMINAL LAW
Sentencing - mental incompetence - fixing a limiting term.
Criminal Law Consolidation Act Part 8A; Criminal Law (Sentencing) Act s.18A, referred to.
Perugini v The Police [2004] SASC 154, considered.

R v W, D
[2006] SADC 27

On the 9th day of June 2004, DMW was charged with the following offences:
1.Carrying an Offensive Weapon, namely that on the 8^th day of June, 2004 at Thevenard, without lawful excuse, the defendant carried an offensive weapon, namely a knife.
2.Attempted Aggravated Serious Criminal Trespass in a Place of Residence, namely that on the 8^th day of June, 2004 at Thevenard, while in possession of an offensive weapon, namely a knife, the defendant attempted to enter the place of residence of CS as a trespasser, with the intention of committing an offence therein, namely an offence against the person, when other persons were lawfully present inside the residence and knowing of their presence therein.
3.Common Assault, namely that on the 8^th day of June 2004, at Thevenard, the defendant assaulted CS.
4.Damaging Property, namely that on the 8^th day of June 2004, at Thevenard, the defendant knowing that she had no lawful authority to do so, intentionally or with reckless indifference damaged a door, the property of CS.
5.Assaulting a Police Officer, namely that the defendant, on the 8^th day of June 2004, at Thevenard, assaulted Matthew Liam Walton, a police officer, acting in the execution of his duty.
The defendant was remanded in custody until the 22^nd of June 2004, when she entered into a bail agreement and were released from custody.
While the defendant was on bail for these five (5) offences, she reoffended. She has also been charged with the offences of:
6.Arson, namely that on the 19^th day of July 2004 at Thevenard, knowing that she had no lawful authority to do so, the defendant intentionally or with reckless indifference damaged by fire a house the property of MEW, the said damage exceeding $30,000.
7.Threatening Life, namely that on the 19^th day of July 2004 at Thevenard, without lawful excuse, the defendant threatened to kill or endanger the life of JW, intending to arouse a fear that the threat was likely to be carried out, or being recklessly indifferent as to whether such a fear was aroused.
She was arrested on 19^th day of July 2004 for these offences.
By committing the offences of Arson and Threatening Life, the defendant breached the conditions of the bail agreement which she entered into on the 22^nd day of June 2004.
The defendant has been held in custody for these offences since her arrest on the 19^th day of July 2004.
Upon arraignment, the defendant pleaded not guilty to all of the charges.
An issue arose as to the defendant’s mental competence to have committed the alleged offences. I have followed the procedures prescribed by Part 8A of the Criminal Law Consolidation Act 1935 in the hearing and determination of the issue of mental competence.
Pursuant to Section 269B of the Criminal Law Consolidation Act on the 2^nd of September 2005, the defendant elected to have her trial dealt with by a judge sitting alone, in respect of those indictable matters.
Pursuant to Section 269F on the 17^th of October 2005, I decided that the defendant’s mental competence to commit the charged offences was to be tried first.
At the trial of the issue of the defendant’s mental competence, I received into evidence medical reports from three psychiatrists, namely Dr Begg dated 22 March 2005 and 31 May 2005, Dr O’Brien dated 2 August 2005 and Dr Raeside dated 11 February 2005 and 12 September 2005.
On the 11^th of October 2005, I was informed by Counsel for the Prosecution, Ms Moxon, and Defence Counsel, Ms Waldron, that it was agreed that the defendant was mentally incompetent to commit the charged offences and that I should record a finding to that effect.
On the 17^th day of October 2005, the defendant was arraigned in this court and pleaded not guilty to the indictable offences I just mentioned. I concluded that it had been established on the balance of probabilities that the defendant was mentally incompetent to commit the offences, at the time of all of the charged offences.
I recorded a finding to that effect.
Additionally, on the 17^th day of October 2005, I heard submissions from Ms Moxon for the Prosecution and from your Counsel Ms Waldron in relation to the question whether the Court should find that the objective elements of each of the alleged offences were established. I concluded that pursuant to section 269F B(3), the objective elements of each alleged offence had been proved beyond reasonable doubt.
I found the defendant not guilty of each offence. I declared that the defendant is liable to supervision under part 8A of the Criminal Law Consolidation Act. Pursuant to Section 269T of the Act, I ordered that three psychiatric reports be obtained to assist in the determination of what orders I should make under Division 4 of Part 8A of the Act.
I have considered all of the reports from the psychiatrists as to that matter.
I gave permission for the psychiatrist, Dr Nambier to provide the required Minister’s report. He was also to address the requirements pursuant to section 269T of the Act.
On the 19^th day of December 2005, I received psychiatric reports from Dr Nambier dated 18 November 2005, Dr O’Brien dated 29 November 2005 and Dr Czechowicz dated 30 November 2005.
I also received a report from the Central Northern Adelaide Health Service dated 29^th November 2005 setting out the effects of these offences on the defendant’s sister CAS, the defendant’s daughter JW, and the defendant’s mother MEW.
Having considered the psychiatric reports, I am not satisfied that it is appropriate to release the defendant unconditionally. Your counsel quite properly and appropriately did not suggest that I should do so.
I am now required to deal with you pursuant to Section 269O of the Criminal Law Consolidation Act. Sub-section 2 provides that if the court makes a supervision order, the court must fix a limiting term equivalent to the period of imprisonment or supervision that would have been appropriate had the defendant been convicted of the offences in question. The limiting term must be fixed by reference to the sentence that I would have imposed had the defendant been found guilty of the relevant offences without taking into account her mental impairment.
I turn now to the defendant’s personal circumstances.
The defendant is a thirty–nine year old single woman who prior to her arrest had been residing in Thevenard near Ceduna. The defendant had been receiving a Disability Support Pension as she had not worked for many years due to a diagnosis of Schizophrenia. She is the fourth of five children. Her father died of strychnine overdose five years ago. Her eldest sibling, died due to a self-inflicted gunshot wound prior to her birth. Her next eldest sister is ten years the defendant’s senior and she has a younger brother two years her junior.
Both the defendant’s parents were regular alcohol users. This led to the defendant witnessing domestic violence by her father towards her mother. The defendant was also a victim of that alcohol related domestic violence.
The defendant has a daughter J who was born when the defendant was in her mid twenties. At times the defendant looked after her daughter but her capacity to care for J had been questioned. The defendant’s daughter was removed from her care by the Child Youth and Family Services. The defendant’s sister CAS was formally declared the guardian of J.
The defendant has been diagnosed as suffering from Paranoid Schizophrenia. This mental illness first manifested itself in about 1992 in the context of a disordered personality formation. Thereafter there have been a number of episodes, which did not persist. However an admission to hospital in 1994 showed that the defendant suffered from a prolonged delusion of a sexual nature. In 2004 there was a further episode of psychosis at which time it was considered that the defendant’s symptoms supported the diagnosis of Paranoid Schizophrenia.
Since the defendant began residing in Ceduna her psychiatric follow up was fraught with difficulties due to the remoteness of that location. The defendant had numerous admissions to hospital. She also spent time in prison in relation to her disturbed behaviour. She does not have a significant history of recent alcohol or illicit drug use. However I note that the defendant had previously experimented with amphetamines and also with marijuana.
The defendant’s mental illness occurs against a background of early childhood abuse, pervasive symptoms consistent with borderline personality traits and is associated with outbursts of violent behaviour.
The defendant has had several previous admissions to Glenside Psychiatric Hospital. One year prior to the current offences, the defendant was admitted to that hospital as a result of a detention order. At the time of the commission of the Arson offence in mid 2004, the defendant had been concerned about how she did not want her daughter J to go through the suffering that she herself had experienced.
On several occasions prior to 2005, in the context of her clinical review, the defendant made multiple accusations about people who had sexually abused her. She also alluded to the sexual abuse of her daughter. Some of her own experiences may well have been true. However, in relation to the repeated accusations involving many perpetrators, I am of the view that at least some of those accusations are part of the defendant’s consistent delusional system.
The Psychiatric report provided by Dr Czechowicz indicates that the defendant’s more florid delusional ideas have been somewhat lessened by neuroleptic treatment. However, he is of the opinion that over the past year, even with treatment, the defendant has not regained complete insight and that her delusional ideas prevent her from organising a normal life for herself. It is also evident that she lacks insight in relation to her own capacity to look after her daughter.
The defendant has been diagnosed as suffering from schizophrenia in the past and this mental illness persists. Psychiatrists continue to treat her condition as set forth in the reports before me.
In the course of the defendant’s treatment whilst in James Nash House, she has passed through a graded level of supervision, going from the more closely observed Aldgate Ward, to Birdwood and on to “The Grove” Ward located at Glenside Campus.
The defendant’s current treating psychiatrist has a proposal for treatment which includes a considerable period of inpatient treatment.
In arriving at the appropriate limiting term, I have had regard to all the matters in the reports and to the submissions of counsel. I find that the defendant is mentally impaired by a chronic psychiatric illness and that treatment of this illness is complicated by a borderline personality disorder. This condition is characterised by the defendant holding chronic and well entrenched delusional beliefs regarding sexual abuse and victimisation. As a result of such beliefs the defendant is aggressive and prone to dangerous behaviours toward other people.
At this stage the defendant is at risk of constituting a danger to people associated with the care of her daughter including her brother-in-law Mr S. At this stage at least, the defendant needs ongoing close supervision in secure hospital surroundings.
Currently the defendant is subject to closely supervised care at James Nash House. Plans to start neuroleptic Clozapine are being investigated but to date this has not been implemented. On the 18^th of November 2005, the defendant continued to show signs of active psychotic symptoms, namely auditory hallucinations and persistent delusions.
In the short term, the defendant will need to be closely supervised. In the long term it is envisaged that a stage will be reached when the defendant can return to the community.
The defendant continues to lack insight into her mental illness, due to persistent and pervasive psychiatric symptoms.
Ongoing treatment is likely to produce a change for the better. Upon the basis of the reports before me, it is too early to make a more detailed prognosis because the course of the illness cannot be reasonably predicted beyond the next three months.
Ms Waldron on behalf of the defendant, submitted that there are three important issues to be considered in determining what limiting term I should impose.
Firstly, the relevant provisions of the Act require the court to fix a limiting term that would have been appropriate if the defendant had been convicted of the offences with which she is charged. Ms Waldron asked me to backdate the order for detention from when the defendant was taken into detention.
The second issue is whether the length of the limiting term ought to be reduced by reason of the defendant’s co-operation with the police from the outset and the defendant’s admissions which avoided the need for a hearing that required the giving of oral evidence.
Thirdly, Ms Waldron submitted that had the defendant been mentally ill as at the time of the commission of both sets of offences, then the limiting term fixed ought to be ordered to run concurrently. The submission was that the offences were inextricably linked because of the defendant’s underlying mental illness at the time of both sets of offences.
Ms Moxon on behalf of the Prosecution submitted that the limiting term for each set of offences ought to be made cumulative.
On 19^th December 2005, pursuant to Section 269O(i)(b) I made a supervision order committing the defendant to detention. I adjourned the matter to enable me to fix a limiting term.
I now fix a limiting term, namely the term which I would have imposed if the matter had proceeded in the ordinary course.
I have taken into account the contents of the declarations in relation to the seriousness of the offences, the medical reports and next of kin report to which I have referred and to the submissions of counsel.
The maximum penalty for Carrying an Offensive Weapon is $2,000 fine or imprisonment for 6 months. The maximum penalty for Attempted Aggravated Serious Criminal Trespass in a Place of Residence is 12 years imprisonment. The maximum penalty for Common Assault is imprisonment for two (2) years. The maximum penalty for Damaging Property worth over $30,000 is imprisonment for life. The maximum penalty for Assaulting a Police Officer is two (2) years imprisonment. The maximum penalty for Arson where the damage exceeds $30,000 is life imprisonment. The maximum penalty for Threatening Life is ten (10) years imprisonment.
The offences are serious. The penalties fixed by Parliament make plain that I must have regard to the principles of general deterrence. Because of the defendant’s mental condition, the principles of personal deterrence are of less significance, but nevertheless they are important.
In fixing the limiting term, I have taken into account the period that the defendant has already spent in custody and I have reduced the limiting term that I intend to impose so as to give the defendant the full benefit of the period during which she has been held on remand. I have also had regard to the totality principle in relation to the limiting term that I propose to fix.
I would have treated the offences committed on the 8^th day of June 2004 and on the 19^th day of July 2004, as part of a single episode. I find that each set of offences and the two sets of offences form part of an ongoing course of conduct and were “occasioned by a common cause”, namely the defendant’s mental illness.[1]
[1] Perugini v The Police [2004] SASC 154, [14]
In deciding to approach each of the sets of offences upon this basis, I have taken into account the need to reflect the overall gravity of the offending in the limiting term that I fix.
For the offences committed on the 8^th day of June 2004, I would have fixed concurrent sentences which would have resulted in a sentence to be served of 3 years 8 months. For the offences committed on the 19^th day of July 2004, I would have fixed concurrent sentences which would have resulted in a sentence of imprisonment to be served of 4 years 11 months. I would have determined that the sentences in respect of both sets of offences be served concurrently. I do not propose to backdate the limiting term. I propose to reduce the limiting term that I would have otherwise imposed, by 20 months to take into account the period during which the defendant has been held in custody following her arrest on the 19^th of July 2004. Pursuant to Section 269O and having regard to section 18A of the Criminal Law (Sentencing Act), which permits the fixation of a single sentence in relation to all of the offences, I fix a single limiting term of 3 years and 3 months in respect of all offences, to commence from today.