R v Wolf

[2008] SADC 137

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v WOLF

[2008] SADC 137

Reasons for Decision of His Honour Judge Tilmouth

21 October 2008

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY

DISEASE OF THE MIND, UNFITNESS TO STAND TRIAL

Accused pleaded not guilty by reason of mental incompetence to charges of aggravated serious criminal trespass in places of residence and theft - consideration of psychiatric evidence of accused's mental state at time - court satisfied that accused was unfit to stand trial.

Discussion of the principles applicable to fixing the appropriate limiting term.

Criminal Law Consolidation Act 1935 (SA) s269M, s269), s269Q, s269R, s269T, referred to.
R v Wiskich (2000) 207 LSJS 431; R v McGlynn (2004) 87 SASR 440; R v Draoui [2008] SASC 188, applied.

R v WOLF
[2008] SADC 137

Judge Tilmouth
Criminal

1. Adrian Siegmund Wolf is before the court on an information dated 4 August 2008, charged on four counts.  For reasons that will become apparent, these are to be resolved in accordance with the mental impairment provisions (Part 8A), of the Criminal Law Consolidation Act 1936 (SA) (the “Act”).

2. The first count charges aggravated serious criminal trespass in a place of residence, committed on 23 January 2008 in Port Pirie.  The particulars are that he entered and remained in an aged persons’ home as a trespasser, with the intention of committing theft therein[1].  The second count charges theft on the same date and on the same occasion, in the amount of $20[2].  The third is another aggravated serious criminal trespass in a place of residence committed shortly after the first, on the same day, in different premises.  The fourth count charges theft of a candle stick from the residence referred to in count three, to the value of about $50.

   [1]    Section 170(2) Criminal Law Consolidation Act 1935 (SA).

   [2] Section 134(1) Criminal Law Consolidation Act 1935 (SA).

3. Counts 1 and 2 occurred at about 2.15 am on Wednesday 23 January.  A disturbance in the reception area of the nursing home was detected by staff.  Mr Wolf was caught searching through a drawer and promptly ushered to the entrance.  He handed a member of the staff a plastic coin bag containing a $20 note taken from that drawer.  He told her that he gained entry through a hole in the flywire screen of the back door.  Damage was estimated at about $50. There was no suggestion of resistance by him. 

4. The events on counts 3 and 4 took place about fifteen minutes later, when Mr Wolf was again detected inside a lounge room of a nearby house.  On this occasion he was seen to be ducking behind a lounge holding a candle stick.  He was forcibly detained, pending the arrival of police who were called.  Damage was caused to a window through which he entered, estimated in this instance at about $300.  When the police attended he was sitting on the front porch, arrested and taken to the Port Pirie Police Station.  They located a basket of clothes and a backpack some fifty metres from the door, containing his wallet.

5. When interviewed, he told the investigating officer of entering the first premises because he was hungry and wanted food.  In relation to the second entry he told them that he had the candle stick, because he wanted to light up the room, as it was dark and he could not see.  He has been held in custody since then, specifically in relation to this offending, albeit that some of this was spent in James Nash House. 

6. Mr Wolf was first arraigned before the court sitting in its Port Augusta circuit sessions, on 4 August 2008.  His counsel entered pleas of not guilty on his behalf, exercising a discretion as he was entitled, pursuant to s269W of the Act.  Reports before the court confirm that he is unable to instruct counsel in relation to Part 8A issues.

7. When the matter came on again in Port Augusta, via video link to James Nash House on 22 August 2008, counsel on both sides were agreed on the course to be followed, in the proper disposition of these charges. First, based on the report of Dr M Reid a psychiatrist dated 16 May 2008, expressing the opinion that Mr Wolf was unfit to stand trial or capable of providing instructions, the parties invited the court to proceed pursuant to s269M Part A ss(5), which it did, by terminating the investigation into his fitness to be tried and by recording a finding that he was mentally unfit to stand trial.

8. The court was then invited and proceeded to find the objective elements of the offences as laid, were established on the basis of the above facts (so much was conceded by the defence).  Upon being so satisfied, the court then proceeded to record a finding to that effect and declared the defendant liable to supervision under Part 8A of the Act, according to the procedures provided for by s269M Part B ss(2). Subsequently the court raised with the respective counsel for the parties whether the objective elements in relation to count 4 could be satisfied, given there was no evidence of “dealing” with the candle stick in any of the ways contemplated by s130 of the Act.   As it happens the Director of Public Prosecutions entered a nolle prosequi when the hearing resumed in October.  The court thereupon rescinded any order or declaration previously made by it in relation to that count under Part 8A. 

9. That then directs attention to the questions of fixing a limiting term and of supervision in relation to the remaining three counts.  The two options available pursuant to s269O, are to commit to detention, or release on licence.  The defendant has a long history of offending, commencing in Brisbane in April 1996, involving breaches of bond, breaches of bail, property offences and the like.  He is now 28 years of age and comes from South Western Queensland.  He has received a disability support allowance for over ten years, secondary to the brain injury suffered in a car accident when he was very young. 

10. At this point another report dated 30 July 2008, submitted by Dr Maria Tomasic a consultant psychiatrist, becomes relevant.  She interviewed Mr Wolf on 23 July 2008 at James Nash House.  He was assessed as mildly intellectually retarded, with an IQ of 75 and a reading age of 9 years.  He has associated difficulty with learning and short term memory, simple planning tasks and thinking.  He is also hepatitis B and C positive.  To compound matters, there is a history of extensive alcohol and drug abuse.  He was admitted to James Nash House on 1 July 2008, following transfer from prison by the Department for Correctional Services. 

11. Dr Tomasic diagnosed Mr Wolf as suffering chronic psychosis, related either to the previous head injury, or to schizophrenia, the latter being the most likely.  In addition she assessed him as having “a relatively poor prognosis and at the higher risk of re-offending”.  He remains on small doses of anti‑psychotic medication which she considered ought to be increased.  She also considered he required “comprehensive community mental health management and follow up”. 

12. Another report was submitted by the experienced psychiatrist Dr Raeside, of 28 July 2008, suggesting Mr Wolf was getting worse with age.  Dr Raeside further considered it was likely he would never be fit to plead.  He also regarded him as a risk to the general community.  A report of the psychologist Mr Balfour of 30 July 2008, following clinical interview on 21 July 2008, records Mr Wolf “originates from a dysfunctional family background characterised by maternal alcoholism, parental separation, neglect and abuse” and as having few recreational interests.  He suffers from chronic boredom and has anger management problems, an issue referred to in some of the earlier reports as well.  Mr Balfour doubted that he currently suffered from schizophrenia, whilst stressing it was necessary for a psychiatrist to determine “if he has a treatable psychotic illness”.  He did believe that Mr Wolf’s release into the community could be managed by participation in a supervised and highly structured rehabilitation program, but that his management would be a challenge nevertheless.  He outlined a recommended program in some detail.

13. The court is obliged by virtue of s269O(2), to fix a limiting term, that would in the court’s opinion be “equivalent to the period of imprisonment … that would … have been appropriate if the defendant had been convicted of the offences of which the objective elements have been established”, without taking into account the mental impairment. 

14. It may be accepted that the trespass offences of this kind are prevalent and that they are treated seriously by the courts because of that.  These were aggravated offences (counts 1 and 3) in that it was likely persons would be present in those premises.  They were certainly not trivial, although they are far from the most serious examples of the kind.  His intrusion in relation to the home concerned in count 3 must have been quite frightening.  On the other hand in a case such as this, personal deterrence has little role to fulfil: R v Wiskich[3].  Having acknowledged these considerations, the offences were clearly committed for nothing more than the short‑sighted purpose of finding a small amount of money to buy food.  In neither instance was the defendant aggressive; in fact he was very submissive at the aged care facility and he openly confessed what he had done. 

    [3] (2000) 207 LSJS 431 at 457-458.

15. It is clear the court is required when fixing the appropriate limiting term or terms, to assess the equivalent head sentence otherwise appropriate: R v McGlynn[4].  It is equally clear that the admission of the objective elements of the offences, is not the same as entering a plea of guilty, for the purpose of attracting a discount on the sentence otherwise given: R v Draoui[5].   As the prosecution conceded, the offences are so inter-related that it is appropriate to proceed by way of imposing one single sentence to encompass all three offences.  The maximum penalties provided for are life imprisonment (counts 1 and 3) and 10 years imprisonment (count 2).

    [4] (2004) 87 SASR 440.

    [5] [2008] SASC 188 at [26] and [70].

16. The defendant suffered brain injury at age six or seven months, for which he received compensation.  That is under the control of the Public Trustee in Queensland.  He lives in a house purchased with the proceeds, with his father.  Although the circumstances are somewhat unclear, he must have come to Port Pirie to see his mother, who was dying.  Apart from this consideration, in fixing the appropriate limiting term, the court takes into account his lack of self‑control due to his mental condition, and lessened volitional capacity, as well as his impulsive and undisciplined offending.

17. There is also a report before the court dated 29 July 2008, satisfying the requirements of s269Q and 269R of the Act, prepared by a social worker of the Forensic Health Service at James Nash House, consequent upon interviews with the victims and next-of-kin. This supports the view that it would be in his best interests if he was to move to Queensland to reside with his father. The other reports also appear to take that view and the submissions of both counsel accepted that premise. Finally a report was submitted satisfying the requirements of s269Q. This focuses on the current antipsychotic treatment regime, to which the defendant responds. It also refers to an elaborate treatment program and for his supervised accommodation in the community which has been arranged, and recommends his speedy return to his father in Queensland. The accommodation arrangements are detailed in an annexed report by a social worker.

18. In all the circumstances, doing the best one can in difficult circumstances such as this case presents, one single limiting term of imprisonment of 14 months is fixed, pursuant to s269O.  As the defendant has been in custody for effectively nine months, that will be reduced to a limiting term of five months, to commence from today.  There will be an order for his release on licence, substantially on the terms submitted by both counsel, as follows:  

    1.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.

    2.That the defendant continues to receive and take his medication current at the date of this Order, unless and until otherwise directed by the Director or the nominee, and thereafter to receive medication as directed by the Director or the nominee.

    3.That the defendant submit to random screening of his blood at the direction of the Director, or the nominee, to ensure compliance with medication.

    4.That the defendant not use, possess or administer any drug which is not 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.

    5.That the defendant not consume alcohol.

    6.That upon release on licence, 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.

    7.That, at the discretion of the Director and at a time when the Director sees fit, the defendant’s case management be transferred to a regional community health team and that the defendant comply with all directions from that team.

    8.That in relation to all matters other than the treatment and monitoring of the defendant’s mental health, the defendant be under the supervision of a Community Corrections Officer, assigned by the Parole Board of South Australia and comply with such directions as may be given by that officer or the Board.

    9.That the defendant is to obey the directions of his Community Corrections Officer, in particular in relation to drug and alcohol rehabilitation, vocational training and counselling and that he submit himself, when required, at least monthly, to any random breath and/or urine analysis testing to ensure compliance with the terms of this order.

    10.That during the term of the licence the defendant reside at 3/58 Warren Avenue, Blair Athol, South Australia, or elsewhere as directed by the Director or the nominee.

    11.Without limiting the effect of Section 269P of the Act, the defendant and the Director of Public Prosecutions (on behalf of the Crown) 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.