R v Webb - [2012] SADC 181

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WEBB
[2012] SADC 181
Reasons for Ruling of His Honour Judge Soulio
17 December 2012
CRIMINAL LAW
Investigation into fitness to stand trial - decided that defendant unfit to stand trial - decided that the objective elements of offence established beyond reasonable doubt - limiting term of five 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 Draoui 101 SASR 267, considered.

R v WEBB
[2012] SADC 181
Introduction

The defendant, Harry Peter George Webb, was charged with one count of aggravated robbery, contrary to s 137(1) of the Criminal Law Consolidation Act 1935 SA (CLCA), committed on 2 May 2011.
Circumstances of the Offending
On Monday 2 May 2011 two female employees were working at the Seaton North Pharmacy at 228 Tapleys Hill Road Seaton. At about 3pm the defendant, wearing a cloth covering his face, entered the premises and approached the counter. The defendant revealed the knife he was holding and said to the employees “Neltraxone tablets.” When asked what the tablets were for, the defendant said they were for alcohol.
The defendant waved the knife towards one of the employees in a threatening manner and yelled out “Hey, don’t pick up the phone.” One employee threw the defendant a packet of Campral tablets. The defendant examined the tablets, placed five dollars on the counter and walked out of the pharmacy.
The pharmacy employees activated the emergency alarm, following which police attended. They subsequently arrested the defendant nearby, and transported him to hospital.
The Hearing
On 14 November 2011 during arraignments in this Court, the defendant pleaded guilty to the charge. However I had concerns about his mental competence, and capacity to instruct, and gave leave to withdraw the guilty plea. A psychiatric report was ordered and the matter proceeded to an initial hearing on Friday 8 June 2012.
I received a report dated 20 October 2011 from Dr Nambiar, a forensic psychiatrist, who, in relation to the question of the defendant’s mental competence to commit the offence, stated:
Your client appeared to have a very good recollection of what occurred, apart from some lack of detail when discussing what happened in the chemist shop. Your client clearly understands that what he did was wrong, that is was unlawful and that although not with much planning, the idea had come upon him some hours earlier than the actual offence and that he had in a fairly disorganised way, attempted to take on the persona of a robber with a disguise and a weapon.
Despite your client’s possible intellectual disability and possible autistic spectrum disorder, I find no evidence of any other psychiatric illness. More specifically I do not feel that there is any evidence to support a diagnosis of Schizophrenia.
It is my opinion that your client did know the nature and quality of his conduct, did know that his conduct was wrong and was able to control his conduct. Therefore, it is my opinion that your client does not have a mental impairment defence available to him. The defendant did know the nature and quality of his conduct, did know his conduct was wrong and was able to control his conduct. Therefore, it is my opinion that your client does not have a mental impairment defence available to him.
However, in relation to the defendant’s fitness to stand trial, Dr Nambiar made the following comments:
Given your client’s concrete thinking and probable low IQ and difficulty with communication and an ability to express himself, I would expect that on the balance of probability he would be unable to exercise his procedural rights.
Your client has limitations with regards to his intellect and his levels of anxiety increase dramatically when in social and/or formal situations that he would have difficulty to participate in his defence. I would suggest that this is directly related to his low IQ and possible autistic spectrum disorder and that on the basis of this it is my opinion that he would be unfit to stand trial.
Dr Nambiar then went on to say:
The court may choose to qualify this further via a psychological opinion whereby psychometric testing can be applied in order to, with more certainty, ascertain his level of intellectual functioning.
Pursuant to s 269J, if there are reasonable grounds to suppose that a person is mentally unfit to stand trial, the Court may order an investigation into the defendant's mental fitness to stand trial. On the basis of Dr Nambiar’s comments there were reasonable grounds, within the meaning of s 269J, to suppose that the defendant was mentally unfit to stand trial. I proceeded with an investigation of the defendant’s mental fitness to stand trial.[1]
[1] Pursuant to s 269M CLCA.
Pursuant to s 269B CLCA an investigation into a defendant’s mental competence to commit an offence, or a defendant’s mental fitness to stand trial, or into whether the objective elements of the offence charged 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. Here, the election was made by counsel on behalf of the defendant.[2]
[2] Pursuant to s 269W CLCA.
Dr Nambiar suggested that the defendant was be assessed by Dr Wood, a neuropsychologist. Dr Wood, in a report dated 24 April 2012 relevantly said:
Mr Webb is a person who is currently functioning within the intellectually handicapped range … The present assessment and the information provided lead to the conclusion that the client’s mental competence at the time of the alleged incident in the pharmacy was impaired. This conclusion is based upon the fact that the client is a person who is intellectually handicapped and has a diagnosed chronic psychiatric disorder which led to his inability to control his conduct.
His statement to the police investigator indicates that he did not fully comprehend the full import of his actions. There is evidence from the police report that he may have been under the influence of one or more substances which had the potential to impair the client’s judgement and ability to regulate his impulses. It is important to point out that persons of very limited intellect have difficulty in controlling their impulses and their judgement is often impaired.
Because of the client’s significant intellectual impairment it is very doubtful that he has the cognitive ability to comprehend the details of the legal proceedings. The grounds for this conclusion are that a combination of intellectual handicap and the marked impairment of learning and memory make it difficult for him to remember what has transpired and be in a position to comprehend the issues or to exercise his procedural rights.
The decision as to whether it has been established that the defendant is mentally unfit to stand trial is to be made on the balance of probabilities.[3]
[3] Pursuant to s 269MA(3) CLCA.
The Director of Public Prosecutions (DPP) ultimately accepted that the defendant was mentally unfit to stand trial. Having taken into account the opinions of Dr Nambiar and Dr Wood, and with the consent of both prosecution and defence, I terminated the investigation into the defendant’s fitness to stand trial, recorded a finding that the defendant was mentally unfit to stand trial.[4]
[4] Pursuant to s 269MA(5)(b) CLCA.
Objective Elements
I then proceeded to the trial of the objective elements of the offence.[5] I received declarations tendered by consent, and, on the basis of a concession by counsel for the defendant, I was satisfied that the objective elements of the offence was established beyond reasonable doubt. I declared the defendant be liable to supervision.[6]
[5] Pursuant to s 269MB CLCA.
[6] Pursuant to s269MB(2) CLCA.
Division IV Disposition
Reports, to which I refer below, were provided pursuant to ss 269Q(1), 269T(2) and 269R(1) CLCA. Further submissions were made by both counsel for the prosecution and counsel for the defendant on 5 December 2012.
Dr Venkatanarasimhacharya
Dr Venkatanarasimhacharya, a psychiatrist, examined the defendant on 24 October 2012. In his report of the same date, Dr Venkatanarasimhacharya noted that the defendant had moved into his own unit at Taperoo in March 2012, and that since moving away from his neighbours was no longer stressed. Dr Venkatanarasimhacharya reported that the defendant spent most of his time at home on his computer or watching movies. The defendant acknowledged using marijuana on a regular basis. His current stressors related to his inability to leave home due to his home detention restrictions. On 17 October 2012, the defendant removed his home detention bracelet and attended at a police station.
Dr Venkatanarasimhacharya described the defendant’s conversation as coherent and appropriate to the context. Dr Venkatanarasimhacharya did not consider that the defendant suffers from a psychotic illness such as schizophrenia. He accepted that the defendant suffers a mild intellectual disability and said that the defendant’s history of anxiety is long standing and complicated which clinically might amount to a generalised anxiety disorder. Dr Venkatanarasimhacharya noted a history of longstanding issues with self-esteem, and of physical and verbal abuse by the defendant’s mother.
Dr Venkatanarasimhacharya expressed concern that the defendant attends various GP practices seeking medication for anxiety, resulting in him using multiple medications. He suggested that the defendant see a regular GP to achieve consistency in his management, and also recommended that the GP refer the defendant to a psychologist to provide ongoing support.
Dr Venkatanarasimhacharya highlighted the importance of the defendant attending DASSA sessions and noted that, given the defendant’s low IQ, it may be appropriate that management by Disability SA be put in place.
Dr Venkatanarasimhacharya concluded that the defendant requires regular treatment, ongoing care and supervision, active monitoring of his mental health, and psychosocial support, and that there should be communication between care providers. He also suggested licence conditions requiring abstinence from marijuana and alcohol, reinforced by drug testing.
Dr Raeside
Dr Raeside, a forensic psychiatrist, interviewed the defendant on 20 August 2012. The defendant reported being paranoid at times, but in Dr Raeside’s opinion such thoughts did not appear to be of delusional intensity.
Dr Raeside expressed concerns about the multiplicity of medication prescribed to the defendant, and the defendant’s continued abuse of alcohol and marijuana.
Dr Raeside referred to the reports of Dr Wood and Dr Nambiar. He concurred with Dr Nambiar’s diagnosis which, as I have already said, concluded that there was no evidence of a past or current psychotic illness such as schizophrenia, nor any current evidence of a major depressive disorder or a significant anxiety disorder. However, Dr Raeside acknowledged that it is likely that the defendant has ongoing depressive and anxiety symptoms secondary to stress.
Dr Raeside concluded that the most significant diagnostic factors are the defendant’s mild intellectual disability and possible Asperger’s Syndrome. He said that the defendant does not require inpatient psychiatric treatment. He did suggest however that in order to enhance functioning within the community, the defendant be case managed by Disability SA to enable him to engage in the community, and to assist in obtaining sheltered employment. Dr Raeside also suggested ongoing participation in drug and alcohol programs, and recommended further psychiatric follow-up in order to rationalise the medication the defendant is currently prescribed.
Dr Rose
Dr Rose, a forensic psychiatrist, interviewed the defendant on 16 August 2012. In her report dated 17 September 2012, she described the defendant as having a mild to moderate intellectual disability, and as having limited social skills, a lack of support, and being vulnerable to exploitation. She reported that the defendant had no friends and few interests. The defendant told her he enjoyed being in the Remand Centre because of the social aspect. She expressed the opinion that the defendant’s deficits are due to an intellectual disability, and issues of dependency, noting the defendant’s abuse of illicit substances and alcohol. She expressed the opinion that the defendant suffers from an avoidant personality disorder. She also expressed concern regarding the unusual combination of medications the defendant is currently prescribed, and recommended this be reviewed.
Dr Rose suggested that the defendant continue to see a psychiatrist for monitoring of his mental health and for prescriptions of medication, and recommended the defendant continue drug and alcohol counselling, along with regular testing for alcohol and illicit drugs.
Dr Rose said that the defendant’s IQ falls within the range which makes him eligible for services provided by the Intellectual Disability Services Council. She expressed the opinion that, without such services, the defendant’s compliance with any licence conditions is likely to be poor.
Community Corrections – Bail Compliance Report
In a report dated 7 June 2012, the defendant’s Home Detention Case Manager, Ms Costigan, reported on the defendant’s compliance with home detention bail conditions. She noted that the defendant is currently unemployed, and lives alone, but has a supportive family. She stated that the defendant had been polite and friendly to home detention officers, and had complied with home detention rules.
She noted that the defendant had seven urine tests between 10 March 2011 and 16 January 2012, with one returning a positive result to opiates. She reported that on 10 February 2012 the defendant was arrested for being drunk, and throwing a brick through a neighbour’s window. As a result, the defendant was re-housed by Housing SA to the Taperoo address.
Ms Costigan said the defendant had discussed feelings of isolation and loneliness due to the restrictions of his current bail conditions. She said he has periods where he lacked motivation and often appeared depressed. She noted that despite the defendant finding it difficult to comply with home detention conditions, he had in fact largely complied.
Victim/Next of Kin Report
In considering the appropriate disposition of this matter regard must be had to a victim and next of kin report. I received a report from Ms Bone, dated 19 July 2012. When interviewed, both employees of the pharmacy graciously stated that they hoped the defendant would receive the help he needs, and were content for the Court to proceed with making any licence conditions that may be of assistance to the defendant. Both, however, requested a condition that the defendant be prevented from attending at the pharmacy in question.
The defendant’s mother asked that the Court give consideration to requiring the defendant to undergo assessment by Disability SA, that he be assisted with financial management and work opportunities, and that he receive support and assistance as well as regular medical reviews.
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 offence. The limiting term is to be fixed on the basis of the head sentence that would have been imposed.
The defendant is now 25 years old He lives alone in Housing SA accommodation. He attended several different schools until the age of 16 years, after which he had a few unskilled jobs, rarely lasting more than days. I have referred to his mental health, and level of functioning in some detail.
In 2007, the defendant was convicted of two counts of failing to comply with a restraining order, and was placed on a bond to be of good behaviour for nine months with conditions. In 2011 he was released on conditional licence for 12 months, with supervision, after being charged with two counts of assaulting police, but found mentally incompetent to commit the offences. In 2011, he was fined after being convicted of possessing cannabis.
The current offending is very serious. The maximum penalty for aggravated robbery is imprisonment for life. Had I been required to sentence the defendant I would have imposed a single penalty of imprisonment for five years. There can be no discount on the basis of the concession made by counsel for the defendant that the objective facts of the offence are made out.[7] Accordingly the limiting term must be five years.
[7] R v Draoui (2008) 101 SASR 267 at [88].
Options
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 subject to conditions.[8]
[8] Section 269O CLCA.
In deciding whether to release the defendant under this Division, or in deciding the conditions of a licence, the Court must apply the principle that restriction of the defendant’s freedom and personal autonomy should be kept to a minimum, consistent however with the safety of the community, including, of course, the victims of his offending.[9]
[9] Section 269S CLCA.
Having considered the material to which I have earlier referred, and on the basis of the opinions expressed by Dr Venkatanarasimhacharya, Dr Raeside and Dr Rose, and the defendant’s compliance with home detention bail requirements as reported by Ms Costigan, I have come to the view that it is not appropriate that the defendant be detained. However, it is not appropriate that he be released unconditionally. Rather, he is to be released on licence subject to a number of strict conditions. I note that the course I have adopted was not opposed by counsel for the DPP.
Licence Conditions
Various recommendations have been made relating to the future supervision of the defendant. On the basis of those recommendations, counsel for the DPP 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. I incorporate them into the following orders:
Orders
1.That the defendant be subject to a supervision order pursuant to s 269O(1)(b)(ii) of the Act.
2.That the defendant be released on licence subject to the following conditions:-
(a)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.
(b)That the defendant be under the supervision of a Community Corrections Officer assigned by the Parole Board of South Australia and comply with the lawful directions of that officer or the Board with respect to non-medical matters. To effect initial contact the defendant is to report to the Port Adelaide Office of the Department for Correctional Services at Customs House, 220 Commercial Road, Port Adelaide, within two working days of signing this order.
(c)That the defendant continue to receive his medication current at the date of this order, and further, that any alteration or reduction in such medication not occur without the approval of the Director or the nominee.
(d)That the defendant submit to random screening of his blood at the direction of the Director or the nominee, to ensure compliance with medication.
(e)That the defendant not use, possess or administer any narcotic or psychotropic drug unless medically prescribed by a legally qualified medical practitioner, and further, that any drugs which are prescribed to the defendant by a medically qualified practitioner be possessed or administered by the defendant only at prescribed or recommended dosages.
(f)That the defendant not consume alcohol.
(g)That the defendant’s case be managed by the Forensic Community Team and that the defendant comply with all the lawful directions of that team, particularly with respect to attendances at all appointments nominated by that team.
(h)That, at the discretion of the Director or nominee and at such time when the Director or nominee sees fit, the defendant’s case management be transferred to a local Community Mental Health Team and that the defendant comply with all directions from that team.
(i)That the defendant shall submit himself for breath and or urine testing as directed by his Community Corrections Officer, for the purpose of determining whether there is present in his body any illicit or non-prescribed drug.
(j)That the defendant reside initially at Unit 21, 8 Lawhill Court, Taperoo, and that he not thereafter change his residence without the permission of the Parole Board.
(k)That the defendant not depart or attempt to depart from the State of South Australia without the prior written permission of the Parole Board.
(l)That the defendant not attend at the Seaton North Pharmacy at 228 Tapleys Hill Road Seaton North any time or approach any of the staff employed from time to time at that pharmacy or communicate with them.
3.That 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, that person who becomes so aware, shall immediately notify the Director of Public Prosecutions of that opinion.
3AThat 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 3 above, the Director of Public Prosecutions may make an application to this Court for a review of the supervision order which in cases of urgency may be made at short notice.
4.That the defendant, the Director of Public Prosecutions (on behalf of the Crown) and the Parole Board shall be at liberty to apply at any time and from time to time, as they may be advised, at short notice to the other to vary or revoke this order or seek any other order in substitution thereof.