R v W, LR - [2008] SADC 166

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v W, LR
[2008] SADC 166
Reasons for Decision of His Honour Judge Tilmouth
3 December 2008
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY
DISEASE OF THE MIND, UNFITTNESS TO STAND TRIAL
Accused pleaded not guilty by reason of mental incompetence to charges four charges - consideration of psychiatric evidence of accused's mental state at the time - court satisfied that accused was mentally incompetent to commit offences. Proper disposition and appropriate limiting term, considered
Criminal Law Consolidation Act 1935 s 269M, s269O, s269Q, s269R, s269T, s269V, referred to.
R v Wiskich (2000) 207 LSJS 431; R v McGlynn (2004) 87 SASR 440, applied.
R v Draoui [2008] SASC 188, distinguished.

R v W, LR
[2008] SADC 166
The charges

W, LR is before the court charged with four offences, committed on 22 June 2007 in the vicinity of Tea Tree Plaza. The first an aggravated assault on a Mr H, the second the false imprisonment of Ms S, the third the false imprisonment of a child R, and the fourth an aggravated offence of threatening to cause harm with respect to Ms S. The issues for determination are the appropriate disposition of these charges, pursuant to the “mental impairment” provisions under Part 8A of the Criminal Law Consolidation Act 1935 (SA).
The factual basis for sentencing
The assault occurred in the yard of Mr H shortly after 8.00am. W, LR, armed with a knife, was seen crouching and then trotting across the front lawn towards a kitchen, down the side of the house. Mr H asked him to “go away” as he noticed the knife. Soon after he departed but not before pushing past Mr H, causing him to stumble and fall. A short time late W, LR confronted staff at a nearby service station by approaching the front counter asking an attendant to call the police “cause there were people out there that were going to get him”. Then he forcibly entered the front passenger seat of a stationary vehicle driven by Ms S. Her five year old son R was in the rear. Whilst armed with a pistol he demanded she drive him wherever he wanted to go. During the course of the journey into the city he threatened her a number of times and his behaviour was quite erratic and frightening.
Police were alerted and approximately half an hour afterwards the vehicle was stopped near the intersection of North Terrace and King William Streets, where he was arrested. They were advised he had only been released from James Nash House eight weeks earlier and that he was psychiatrically unwell. He has been in custody since then.
Part 8A of the Act
Issues have arisen under Part 8A concerning the defence of mental impairment. W, LR was diagnosed by the forensic psychiatrist Dr Schirripa in a report dated 22 August 2008, as suffering from “schizoaffective disorder” (bipolar) together with a significant history of substance abuse, particularly amphetamine, as well as an antisocial personality disorder. Dr Schirripa expressed the view in an earlier report of 16 May 2008, that he was suffering from “mental illness” as defined in s 269A of the Act. This comprised a psychotic episode in the context of untreated schizoaffective disorder, characterised by a “break with reality and associated disorganised behaviour and thinking … [having] the subjective effect of experiencing significant paranoia and persecutory delusions”.
On 12 November 2007 W, LR pleaded not guilty to the above offences. There was some delay, due to one psychiatrist changing his opinion on the question of mental impairment. Eventually when the hearing came before the court again on 7 July 2008, he elected for trial by judge alone, pursuant to the specific regime provided for in Part 8A. An order was then made under s 269FA(5), the prosecution and defence agreeing, dispensing with or otherwise terminating the investigation into his competence to commit the offences. A finding was then recorded that he was mentally incompetent to commit the offences, and subsequently a finding pursuant to s 269FB(2) was made that the objective elements in relation to those offences were established.
Consequently the court made orders pursuant to s 269FB finding him not guilty of those offences and directed verdicts be entered accordingly. It then made a declaration that he was liable to supervision under Part 8A. That then led to the inquiries required by s 269R and s 269Q, relating to reports from the Minister as to diagnosis, prognosis and treatment plans, including victim and next-of-kin reports, respectively. Orders were also made pursuant to s 269T(2) for the preparation of at least three expert reports by a different psychiatrist or other appropriate expert, on the mental condition of the defendant and the possible effects of any proposed disposition on his behaviour.
The matter next came before the court on 1 September 2008, when another report was submitted by the psychiatrist Dr Raeside, who continues to provide ongoing treatment to W, LR. Although only 26 years of age, he noted W, LR already “had a turbulent period over the last six years with recurrent violent and dangerous offending, amphetamine abuse, findings of mental incompetence, difficulty coping in the community due to ongoing drug use and poor compliance with psychiatric treatment …”. Dr Raeside expressed some optimism about the future prognosis, despite the “stormy past with recurrent lapses and offending”, principally because W, LR appeared to have far greater insight and an acceptance for the need to master the problems confronting him. Dr Raeside suggested he would benefit from a further period of time at James Nash House in order to “consolidate the gains” and to provide a focus on relapse prevention, as well as addressing the ongoing drug problems, whilst acknowledging “he was currently well settled in the Adelaide Remand Centre”.
On the resumed hearing of 24 September, in addition to the above materials, the court received what the parties accepted as a “s 269R(1) report”, authored by a social worker attached to the Forensic Mental Health Services at James Nash House. However, as the next-of-kin could not be contacted, the case was again adjourned to enable this requirement to be fulfilled: s 269R(1)(a).
That deficiency was addressed with the provision of a report dated 13 October 2008. These express the hope for a sentence after a relatively short term in James Nash House. It is evident the court does not have the power to make such an order. The statutory remit is limited to determining whether detention or release on licence is the most appropriate disposition under s 269O(1)(b)(i) or (1)(b)(ii). Thereafter the defendant is under the control of the Minister so far as the particular place of detention is concerned, under s 269V.
Consideration of the appropriate disposition
The case came on again on 19 November 2008 when the Court received a further report of Dr Nambiar dated 11 November. This contemplates review for W, LR in approximately three months time. In the meantime it suggests an assessment, “looking at options for treatment, ultimately in the community and what form of step-down program we can provide, given the limited resources available to us”. It also speaks of poor compliance with treatment programs in the past as presenting “barriers to successfully rehabilitating W, LR in the community”. This he predicts may take “a considerable period of time”. For those reasons he suggested continuing detention in James Nash House, until a care plan could be formulated and implemented.
The maximum penalty for aggravated assault is four years imprisonment, for an aggravated offence of threatening to cause harm it is seven years imprisonment, and for the two counts of false imprisonment – an offence at common law – the sentence is at large. The court is required to fix a limiting term by reference to the objective elements of the offence and by ignoring the issue of mental impairment.[1]
[1] s 269O note 1, but see s 19(2)(6) Acts Interpretation Act 1915 CSA
The offences in their cumulative effect and impact on those affected, were quite serious, particularly the false imprisonment charges. They were aggravated by the inconsistent and highly terrifying nature of the defendants actions, as well as by the presence of a small child in the car.[2] These events, described by the prosecutor as a “carjacking”, have become a disturbingly increasing feature of criminal activity these days, and therefore call for strong deterrent sentences. It must also be born in mind that they were committed shortly after release on licence on 10 April 2007.
[2] s 10(1)(ed) Criminal Law (Sentencing) Act 1988 (SA)
Mental impairment and the question of deterrence
Although the court cannot take into account the defendant’s mental impairment as such, under general sentencing principles, it is entitled to have regard to the fact that it is sentencing a mentally impaired person. In the case of R v Wiskich[3] the Court of Criminal Appeal (Martin J, Prior and Williams JJ agreeing) reviewed extensively the authorities in point, one of them being this passage from the judgment of Gleeson CJ in R v Engert:[4]
In truth however, for the reasons given at the commencement of this judgment, the question of the relationship, if any, between the mental disorder and the commission of the offence, goes to circumstances of the individual case to be taken into account in the application of the relevant principles. The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system.
[3] (2000) 207 LSJS 431; [2000] SASC 64
[4] (1995) 84 A Crim R 67 at 71, Allen and Sully JJ agreeing, quoted by Martin J at 451
Martin J came to the conclusion in Wiskich that:[5]
In sentencing persons suffering from mental disorders it is important to bear in mind the general observations of Gleeson CJ in Engert to which I have already referred. The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender's thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes, an infinite variety of circumstances will arise in which competing considerations must be balanced.
[5] Above at 457-458
This decision has since been cited with approval in R v Lange[6] and R v Halsey,[7] and was applied by the New South Wales Court of Appeal in R v Z.[8] There the court held the presence of a mental illness could mean a court will place less emphasis on both specific and general deterrence and may well impact on the level of culpability, on the level of danger the offender presents to the community and on the fact that a custodial sentence may weigh more heavily on that person. As a question of general principle the existence of mental illness may render inappropriate or moderate the influence of general or specific deterrence,[9] may mean a custodial sentence will weigh more heavily on the offender,[10] and may bear on the level of danger to the community the offender presents and the appropriate manner of rehabilitation.[11]
[6] [2007] SASC 359 at [38] per Doyle CJ, Debelle and Nyland JJ concurring
[7] [2008] SASC 171 at [22] per Gray J, White and David JJ agreeing
[8] (2006) 167 A Crim R 436 per Beazley JA at [70], Howie J agreeing at [136], Adams J at [103] in dissent
[9] 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] NSW CCA 228 at [33-36], R v Green (1992) 13 Cr App R(S) 613, 615, R v Pitt [2005] NSW CCA 304, [20-23] R v Tsiaras [1996] 1 VR 398, R v Welling [2005] NSW CCA 318, [32]
[10] R v Smith (1987) 44 SASR 587, 589, R v Pearson [2004] NSW CCA 129 at [43], R v Leatherbarrow (1992) 13 Cr App R (S) 632, 633, R v Tsiaras [1996] 1 VR 398.
[11] R v Lauritsen (2000) 22 WAR 442, 457-458, R v Tsiaras [1996] 1 VR 398.
It was submitted on behalf of the defendant that consistently with these principles, specific deterrence was of less significance in this case. It is clear enough that the underlying psychotic episode was the direct cause of the subject offences. How then do these accepted sentencing principles stand against the requirements of s 269O?
There was a suggestion during the course of submissions that these principles of general application, were modified because Part 8A was engaged, and because of the reasoning process undertaken in the recent decision of a bench of five judges, in R v Draoui.[12] They 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.[13] 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. In so concluding the court reasoned:[14]
[65] The reference in s 269O(2) to "the period of imprisonment ... that would ... have been appropriate if the defendant had been convicted of the offence" must be taken to attract the factors enumerated in s 10 of the Criminal Law (Sentencing) Act 1988 SA, so far as they "are relevant and known to the court": s 10(1) of the Sentencing Act. For the reasons which follow I consider that the factor found in s 10(1)(g) -- the fact of a plea of guilty -- cannot be relevant to the task contemplated by s 269O(2) of the CLCA.
[66] In my opinion the words "a term ... equivalent to the period of imprisonment ... that would ... have been appropriate if the defendant had been convicted" in s 269O(2) cannot accommodate the reduction in sentence which would have been given to a defendant who had pleaded guilty. What the section requires is an exercise or calculation which is hypothetical. It is hypothetical, first, because in determining what sentence would otherwise have been imposed no account is to be taken of the defendant's mental impairment and, secondly, because it is based on the premise that the defendant had been found guilty of the offence. He has not been. Under the legislative framework he has either been found mentally incompetent and therefore not guilty, or mentally unfit to stand trial.
[12] (2008) 101 SASR 267
[13] At [23] per Sulan J; Doyle CJ, Duggan J, Vanstone J and Anderson J agreeing
[14] per Vanstone J; Doyle CJ, Duggan J, Sulan J and Anderson J agreeing
Now s 10 of the Sentencing Act, in relevant respects provides:
Division 2—GENERAL SENTENCING POWERS
10—Matters to be considered by sentencing court
(1)A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…..
(j)the deterrent effect any sentence under consideration may have on the defendant or other persons;
(l)the character, antecedents, age, means and physical or mental condition of the defendant;…
Generally speaking then, the considerations to be found in s 10(1)(j) and (l) – the deterrent effect of any sentence and the mental condition of the defendant – must remain relevant to the task contemplated by s 269O(2), because these considerations are not hypothetical and they are known to the court. Even though no account is to be taken of the defendant’s mental impairment as such, the deterrent effect of any proposed sentence and the mental condition of the defendant are known and ascertainable and therefore do not stand in the same category for this purpose as s10(1)(g). They also retain relevance insofar as they bear upon the defendant’s capacity to appreciate the quality and significance of his criminal conduct and the need – if it exists – to protect the community. These considerations may also bear upon the questions of detention, or release on licence. That conclusion is supported by s 269T(1) which provides that in proceedings relating to disposition of persons declared to be liable to supervision, the court should have regard to the nature of the defendant’s impairment as well as any other matters the court thinks relevant.
The result of this analysis is that the court is entitled when fixing a limiting term pursuant to s 269O(2), to take into account the deterrent effect (general and specific) of any proposed limiting term, and the defendant’s appreciation of his wrong doing, balanced against the seriousness of the offence(s) and the level of danger presented to the community. In this case, although to a certain extent the effectiveness of personal deterrence is to be doubted, and thus remains a relevant consideration, it is a factor overshadowed by the objective seriousness of the offences and as things presently stand, the overriding need to protect the community.
What is the appropriate limiting term?
When it comes to fixing the limiting term, these offences were particularly serious. As mentioned, at this stage of the Part 8A process, the court is required to assess the equivalent head sentence otherwise appropriate: R v McGlynn.[15] It must bear in mind that the early admission of the objective elements, is not treated as equivalent to entering an early plea of guilty so far as attracting a discount on the sentence otherwise appropriate: R v Draoui.[16] The offences clearly constitute, as the prosecutor acknowledged, one of a continuing course of conduct whose underlying cause was the delusional mind of the defendant himself. There are a number of signs that he is coming to a greater realisation and insight to what he has done, no doubt spurred by a period of 16 months in which to reflect in the Adelaide Remand Centre, in less than ideal circumstances in light of his illness, and less than satisfactory conditions, and later for the past several months, in James Nash House. This seems to have spurred an impetus to change and thus a better prognosis for the future, than his record in the past would otherwise suggest. In all the circumstances the court considers one single head sentence for all offences of four years and nine months would have been otherwise fixed, to be reduced by 17 months and two weeks, since he has been held in custody since 22 June 2007. Accordingly the court fixes a limiting term of three years and three months and two weeks.
[15] (2000) 87 SASR 440
[16] (2008) 101 SASR 267 at [26] and [70]
Detention order or release on licence?

Having declared the defendant liable to suspension, the court is required to decide whether to release him on licence, or order he be detained, as required by s 269O. For that purpose it must not proceed to unduly restrict his freedom, and must consider that task “consistent with the safety of the community”.[17] The plain fact of the matter is that the most recent expert reports are so qualified, that it would simply be premature and inappropriate in the current state of affairs, for him to be released into the community, with the corresponding high risk to the community that carries with it. Accordingly, the court determines the appropriate course is to order detention, bearing in mind of course, that he can if circumstances change following the planned reviews, apply for a variation or revocation of the order under s 269P.
[17] Section 269S