R v Whiting - [2016] SADC 83

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v WHITING
[2016] SADC 83
Reasons for the Order of Her Honour Judge McIntyre
21 July 2016
CRIMINAL LAW
Investigation into mental competence to commit offences - 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 3 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 WHITING
[2016] SADC 83
Circumstances of Offending

Tommy John Whiting was charged on information with one count of aggravated causing harm with intent to cause harm on 12^th day of August 2014 at Northfield.
Mr Whiting and his victim are known to each other. Mr Whiting was living at the victim’s house. On 12^th August 2014 Mr Whiting walked up to the victim in the kitchen and hit him in the right eye with his fist. There was no apparent reason for this however the victim says that prior to this attack Mr Whiting was acting in a very strange manner. Shortly after this first attack, and again for no apparent reason, Mr Whiting again hit his victim in the face. He then grabbed his victim around the neck as if he was going to strangle him. Mr Whiting then struck the victim with a metal mop across the back of the head multiple times. Mr Whiting appeared to be very agitated and angry.
The attack ended when there was a knock at the front door and Mr Whiting went to answer it. The victim was able to run out of the house and down the street. Mr Whiting ran after him and was heard to yell “I am going to get him”. The police were called and Mr Whiting was arrested. He has remained in custody since.
Psychiatric background
Mr Whiting is a 50 year old man. He has been diagnosed with schizophrenia. He has a history of anti-social personality disorder and a long standing history of illicit substance abuse mainly amphetamine, methamphetamine and cannabis. He has had a lot of trouble with homelessness which has made management of his psychiatric condition particularly difficult. He has been managed largely through a general practice clinic in the Adelaide CBD. He was non-compliant with his medication at the time of the offending. The circumstances of the offending and Mr Whiting’s psychiatric history raised the possibility of mental competence issues.
Mental competence
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 1935 (“The Act”).
Reports were obtained from Dr Narain P Nambiar, consultant forensic psychiatrist, dated 14 August 2015 and 3 February 2016. These reports addressed Mr Whiting’s mental competence at the time of the offending. As a result of those reports the Director of Public Prosecutions conceded that Mr Whiting lacked the mental competence to commit the offence with which he was charged.
The defence did not contest the declarations and the objective elements of the offence were admitted under s 269W of the Act.
I considered the declarations, the submissions and concessions made by counsel together with the reports of Dr Nambiar. In view of this and, specifically Dr Nambiar’s opinion that Mr Whiting was suffering an acute relapse of schizophrenia at the time of the offending, I made a declaration on 24 February 2016 that Mr Whiting was not guilty of the offence but was liable to supervision under s 269GB(3) of the Act. Having made that declaration I proceeded to order reports under s 269Q, R and T of the Act.
In addition to the reports of Dr Nambiar I received the following further reports in consequence of the orders that I made, these were as follows;
·Dr Jules Begg, psychiatrist dated 4 April 2016;
·Dr Andris Kalnins, consultant forensic psychiatrist dated 30 and 31 March 2016; and
·A victim and next of kin counselling report from Ms Ann D’Alessandro of the forensic mental health service at James Nash House dated Friday 22 April 2016.
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 Mr Whiting had been convicted of the offence of which the objective elements have been established. This is the limiting term.
There is no rule requiring credit to be given for the admission of the objective elements.
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.
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 offence of aggravating causing harm with intent to cause harm the maximum penalty is 13 years imprisonment.
I note Mr Whiting’s antecedent report shows a large number of prior convictions but only two prior assaults both committed in 2002 to 2003. These were not of such seriousness as the present matter.
This offending is serious. The victim was attacked in his own home. There is no explanation for the offending other than Mr Whiting’s mental health issues. It is clear that this was a traumatic and disturbing incident for the victim. He thought that he was going to be killed. He sustained an injury to the back of his head which required stitches, a cut to his left arm also requiring stitches and an injury to his right hand. He continues to suffer from headaches. In addition he experiences psychological issues as a result of the offending and requires ongoing psychiatric treatment. He remains fearful of Mr Whiting despite an intervention order imposed in the Magistrates’ Court. The victim has left his former home in order to alleviate these concerns.
General deterrence is an important consideration in matters of this type but, given Mr Whiting’s illness, this is less of a factor than might otherwise be the case.
Since Mr Whiting has been in custody and subject to regular medication he has become more stable. He appears to have developed an insight into his offending, his illness and the need for treatment. He has been in custody since his arrest on 13 August 2014 but has served a 5 month custodial sentence during that time. He is entitled to credit of 1 year 6 months, 1 week and 1 day for the time spent in custody.
Taking all of these matters into account and giving credit for the time spent in custody I fix a limiting term of 3 years commencing 22 July 2016.
Consideration of release on licence
In considering whether to release Mr Whiting on licence, section 269T of the Act requires me to take into account a number of factors. These include the nature of his mental condition, the likelihood of his endangering others, whether there are adequate resources available for the treatment and support in the community and whether he is likely to comply with the conditions of a licence. The court must also consider at least three psychiatric reports and any report on the attitude of the next of kin and the victims of the defendant’s conduct.
Having carefully considered the reports provided in this matter I consider that Mr Whiting’s mental state has stabilised since his arrest. He has been compliant with his medication and has developed insight into his offending and illness. This reduces his risk of reoffending. Both Dr Begg and Dr Kalnins state in their reports that Mr Whiting’s offending risk would increase if there was non-compliance with medication and that it is important that he abstain from illicit substances and alcohol. They both consider that these issues could be addressed in the community with appropriate management.
Taking all of these matters into account I formed the view that it is appropriate to release Mr Whiting on licence with appropriate conditions. However, Dr Begg says that Mr Whiting is unlikely to initiate contact and participate in rehabilitation unless he has a point of contact that will provide him with the necessary direction. It was further clear that Mr Whiting needs appropriate and stable housing on his release from custody. Accordingly I adjourned the making of any supervision order to enable enquiries to be made about suitable housing and to establish an appropriate mental health plan to be established. Those matters having been addressed and, following discussion with counsel as to the terms of the supervision order, I will make orders in terms of the draft orders signed by me today.