The King v Bonney
[2023] NTSC 5
•17 January 2023
CITATION:The King v Bonney [2023] NTSC 5
PARTIES:THE KING
v
BONNEY, Clyde
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:21646225
DELIVERED: 17 January 2023
HEARING DATES: 18 January 2022; 15 March 2022; 29 April 2022; 30 May 2022
SUBMISSIONS: 24 June 2022; 4 July 2022; 26 July 2022; 24 November 2022; 13 January 2023.
JUDGMENT OF: Blokland J
CATCHWORDS:
CRIMINAL LAW – MENTAL IMPAIRMENT – Finding of not guilty by
reason of mental impairment.
MENTAL IMPAIRMENT – whether person should be declared liable for
supervision or be released unconditionally – accused subject to Queensland
parole order and supervised by Northern Territory Correctional Services –
Consideration of the utility of the operation of two regimes of supervision –
whether restrictions on person kept at a minimum – whether liability for
supervision consistent with maintaining and protecting the safety of the
community if two regimes operate.
Statutes
Criminal Code 1983 (NT) ss 43H, 43I, 43ZLA, 43ZM, 43ZN
Mental Health and Related Services Act 1998 (NT) s 77
Cases
R v KMD [2015] NTSC 31
REPRESENTATION:
Counsel:
Crown:S Lapinski/C Ingles
Accused:T Collins
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:North Australian Aboriginal Justice Agency
Judgment category classification: B
Judgment ID Number: BLO2301
Number of pages: 27
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe King v Bonney [2023] NTSC 5
No.21646225
BETWEEN:
THE KING
Appellant
AND:
CLYDE BONNEY
Respondent
CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 17 January 2023)
Background
The issue here is whether Clyde Bonney should be declared liable to supervision or released unconditionally.
Both counsel for the Crown and counsel for the accused previously agreed Clyde Bonney was not guilty by reason of mental impairment. The Court accepted those pleas and recorded findings of not guilty because of mental impairment.[1]
Mr Bonney was charged on indictment with two counts: one of assault a worker ‘VV’ in the performance of his duties with the circumstance of aggravation that VV suffered harm, and one further count of assault a worker ‘RF’ with the same circumstance of aggravation, that RF suffered harm. Both counts were charged under s 188A(1)(2)(a) of the Criminal Code (NT).
The form of harm suffered by VV included a sore mouth, bruised left eye socket, bites and bruising. The form of harm suffered by RF was a neck injury which required time off work.[2]
The date of the offending was 31 July 2016. VV and RF were nurses in the mental health unit at Alice Springs hospital when Clyde Bonney was an inpatient.[3] At that time he was involuntarily detained due to suffering paranoid schizophrenia. The formal diagnosis was a psychotic disorder and resolved delirium. The conclusion of both parties in this Court that he was not guilty on the basis of mental impairment was therefore unsurprising. Nor was it surprising the Chief Medical Officer recommended dismissal of the charges in the Local Court. He was discharged on medications: 100mg of paliperidone by monthly injection, 6mg of paliperidone at night and perindopril and atorvastatin. When in the community, the anti-psychotic medication is given in the form of a depot injection, monthly.[4]
After a finding of not guilty on the basis of mental impairment the Court must either declare him liable to supervision or release him unconditionally.[5] There is a significant procedural history which has some relevance to the overall conclusion. In my view when all of the circumstances are considered, Clyde Bonney should be released unconditionally.
Procedural History
After the commission of the offences, a summons was issued for Clyde Bonney’s attendance at the Local Court. After three summonses were issued, presumably because he could not be located, a warrant was issued for his arrest to bring him before the Local Court. His first appearance in the Local Court was on 5 July 2017. He was granted bail and excused from appearance on the next occasion.
On 30 June 2017 the Local Court requested a certificate from the Chief Health Officer under s 77 of the Mental Health and Related Services Act 1998 (NT).[6]
The Crown submissions make the point that the Local Court ordered the s 77 certificate before the prosecution had indicated the Crown position on the question of dealing with the matter summarily or whether there would be an application to refer the matter to this Court.[7]
The s 77 certificate, which was based on the Crown Facts,[8] found that Clyde Bonney was mentally impaired at the time of committing the offences. In accordance with procedures under the Mental Health and Related Services Act, the certificate recommended dismissal of the charges. That certificate was provided to the Local Court on 11 September 2017.[9]
On 21 December 2017 the Crown formally objected to summary jurisdiction.[10] The prosecution relied on s 131A of the Local Court (Criminal Procedure) Act 1928 (NT) to make the case that the matter should not be heard summarily.[11]
The Crown submissions explain that this matter, including the s 131A argument had been adjourned a number of times in the Local Court. Clyde Bonney had been excused from attendance on many occasions provided he was legally represented. On 16 February 2018 the North Australian Aboriginal Justice Agency (NAAJA) sought leave to withdraw from the record because their service had lost contact with him and had information that he had gone to Queensland. Leave was granted for NAAJA to withdraw and a warrant was issued for his arrest on 23 February 2018.[12]
Ultimately the Local Court ruled in favour of the Crown’s application under s 131A of the Local Court (Criminal Procedure) Act. The Local Court committed Clyde Bonney to this Court on 4 May 2018.[13] He was allowed bail at that time.
The first mention in this Court was on 6 June 2018 at the call over of criminal matters. Clyde Bonney failed to sign his fresh Supreme Court bail and a warrant was issued on 8 June 2018. Counsel for Mr Bonney stated ‘Unfortunately Mr Bonney disengaged with his legal service providers and a warrant was issued for his arrest on 6th of June 2018 after his matters had been committed to the Supreme Court’.[14] The Court file indicates the warrant was issued on 8 June 2018. The matter was again mentioned on 4 July 2018. Mr Bonney was excused from attending on that date, which is unusual given a warrant had already issued.
On 19 September 2018 Clyde Bonney was arrested on the warrant issued on 8 June 2018. Bail was granted on conditions. The conditions of bail were varied when he appeared before the Court on 19 September 2018 to include a residential condition that he reside with RM at Canteen Creek Community. On that occasion he appeared via video-link from Tennant Creek. The indictment charging the current two counts was filed on 9 October 2018. On 22 November 2018 the bail conditions were again varied to provide that he reside with JC and BM. It is not precisely clear what occurred at each mention of this matter, though it may be accepted the case was adjourned on a number of occasions in the call-over list to allow the defence to obtain a psychiatric report.[15] On 19 December 2018 the matter was given a trial listing of 6 August 2019 for four days.[16]
On 30 April 2019 the Court was notified a special hearing may be required solely on the grounds of fitness unless the parties could agree facts.[17]
On 8 May 2019 the matter was again mentioned. The trial date of 6 August 2019 was vacated and the matter listed for a special hearing on 9 August 2019. At a mention on 22 July 2019, the special hearing scheduled for 9 August 2019 was vacated. The Court was advised Clyde Bonney had been remanded in custody in Mt Isa. The indication from his lawyer was that he would be psychiatrically assessed. A warrant was issued on that date.[18]
The Court does not have a full record of all that took place with Clyde Bonney in Queensland. The date of the offending in Mt Isa was 9 May 2019.[19] The Queensland antecedents note that he was dealt with in the Mt Isa District Court on 21 May 2020 for the offences obstruct a police officer, serious assault of a person over 60 and going armed so as to cause fear and wounding. The total term of imprisonment imposed was three years. The Mt Isa Court ordered that he be released to parole on 21 May 2020, subject to conditions. The order was to remain in force until 8 May 2022.[20] He was permitted to travel back to the Northern Territory with a travel permit from the Queensland authorities on or around October 2020.[21]
On 15 April 2021 Clyde Bonney appeared in this Court after being arrested on the previous warrant. The matter was adjourned for various assessments and he was bailed on 18 May 2021 on conditions which included supervision, residence and reporting. He was again granted bail on 30 May 2021. Attempts were made by the Court to order or obtain further reports. On 9 August 2021 the matter was adjourned for a breach of bail application. He was dealt with on 10 August 2021 and pleaded guilty to a conditional breach of bail (breaching the curfew condition at 5:55am) and sentenced to one day imprisonment, being time already served. Fresh bail was granted with a series of conditions set. A further variation was made in relation to the residential condition on 1 December 2021. The parole order was revoked on 1 February 2022. His counsel advised the Court the breach of his parole was for presenting unwell in the community and not being welcome in some of the houses of family members that he visited. This was during a period which is acknowledged relates to his lack of medication due to Covid restrictions and complications. No one would pick him up to obtain his injection at that time.[22] He has been in custody since 2 February 2022.
Although this ruling is principally directed to the offending covered by the indictment, previous and other offending is also relevant. However, as far as I am aware, there has not been a finding of mental impairment made previously. Clyde Bonney’s record of offending has been tendered on this file during bail applications and variations. Other offending has some relevance to the question of risk assessment, protection of the community and whether there is a need for further custodial or non-custodial supervision orders. However, care must be taken as there is little or no indication that his other offending was committed while suffering a psychotic episode as is the case with the subject offending. Dr Sullivan noted the 2019 charges in Queensland were related to alcohol intoxication. In May 2020, his mental health diagnosis was noted by the Mt Isa Community Mental Health Services.[23] The facts comprising the offending in Mt Isa in 2019 are set out later in these reasons. The offences are serious offences although not necessarily in the higher levels of gravity for offending of that kind. Although the total head sentence set by the Mt Isa District Court was three years imprisonment, he was granted parole the day after being dealt with, effectively immediately.
Aside from that offending, there are several charges in Queensland mostly well in the past, for assaults, sexual assaults, public order offences and breaches of court orders. His Northern Territory antecedents reveal assaults, driving including drink driving offences, breaches of bail and other orders, property offences and possessing, carrying or using controlled weapons.[24]
Should Clyde Bonney be declared liable for supervision?
The Court has received the following psychiatric reports:
·Report by Dr Danny Sullivan dated 19 June 2021;
·Report of Dr Sam Calvin dated 15 October 2021; and
·Report of the Barkly Mental Health Services dated 25 November 2021.
The parts of the reports relevant to the current question before the Court may be summarised as follows. As at 25 November 2021, Mr Bonney was 45 years old. He is an Aboriginal male from Canteen Creek. His first language is Alyawarr. Dr Sullivan considered his English adequate for the report purposes.
At the time of the report from the Barkly Mental Health Service, November 2021, he was on bail residing at the Barkly Work Camp in Tennant Creek. He is single with one adult daughter and grandchildren who reside in Epenarra. He told Dr Sullivan he had two children who he had not seen for some years.[25] Clyde Bonney told Dr Sullivan he had a mental illness which deteriorated when he did not take his medication. This occurred inside his head and involved a voice uttering negative comments. He was frightened of the voices. It made him paranoid. He said he had not heard the voices for some years because he had been compliant with his medication.
At the time of Dr Calvin’s interview, Clyde Bonney was living with his niece in Tennant Creek. He told Dr Calvin he had supported himself through the disability support pension for years. He had worked on a cattle station doing various odd jobs. He grew up on a cattle station with nine siblings and five half siblings. His father was a stockman and he has reasonably pleasant childhood memories. He has been single for the past 20 years and has had sporadic contact with his daughter who is around 25 years old. He was married for three years and recalled he was extremely paranoid about his wife which led to their separation.
Clyde Bonney told Dr Calvin he attended school until he was 15 and did not think he had any developmental problems or learning disabilities. He spent most of his time in earlier life working at the cattle station and engaging in other activities such as weekly hunting.
The reports all confirm Clyde Bonney has an established diagnosis of schizophrenia. He also has many other medical, primarily metabolic problems, including hypertension, type II diabetes, chronic kidney disease stage I, hypertriglyceridemia, abnormal liver function tests, fatty liver and hearing impairment. He was noted by health providers to have a mental illness dating back to at least 2009-2010. He was admitted to a psychiatric unit briefly in October 2009 and was discharged with a diagnosis of personality change due to head trauma, combined labile and aggressive type. He was reviewed sporadically by mental health services in the context of hallucinations. He suffers from a comorbid alcohol use disorder. Dr Sullivan queried the possibility of cognitive impairment.
In relation to the 2016 hospital admission, during which the subject offending took place, treatment was initially for delirium, secondary to a urinary infection. He displayed psychotic symptoms in the form of religious ideations and paranoid beliefs regarding nursing staff. It was unclear if this paranoia was a consequence of psychotic illness or delirium due to sepsis. He became very paranoid of staff, hostile and aggressive, lashed out at security and was loud and abusive. He had perceptions of and a real fear of being killed. He absconded from the medical ward and was found to be running out on the road and had to be apprehended by police. He was cleared medically and transferred to the psychiatric unit. He continued to have delusional thought and auditory hallucinations which were telling him to defend himself from staff as he felt staff were trying to kill him.[26]
The facts relevant to the offending conduct on 31 July 2016 note that he attempted to exit the ward and became increasingly angry “kicking the doors and screaming out for help.” The nursing staff approached him, “to try to calm him down”. He then punched VV in the face and threw several more punches at both victims while they were trying to restrain him and bit one several times before VV pressed the duress alarm and received assistance from other staff. It is noted in the psychiatric reports that nine staff members were required to restrain Clyde Bonney, during which time they received further injuries including bites and bruising.[27]
It is clear Clyde Bonney has a significant psychiatric diagnosis of schizophrenia and a history of chronic alcohol misuse, although it has been noted that alcohol misuse has not been of such significance of late. He has a criminal history in both the Northern Territory and Queensland for offences of violence, although the most recent Queensland offending from 2019 does not indicate a deterioration of his psychiatric condition, but rather that he was heavily intoxicated. His parole officer in Queensland described the facts of that offending, as follows:[28]
Police facts indicate that Bonney was heavily intoxicated in a homeless shelter (Topsy Harry) when another occupant was cooking himself dinner. Bonney had asked the co-occupant to cook him dinner but was declined. Bonney threw a pot of boiling water at the co-occupant, scolding his chest. The co-occupant ran away and Bonney followed him with a knife he had taken from the kitchen bench. Bonney chased him and stabbed him in the back, causing two wounds. And one of those was at the back of his right armpit, about 6.5 cm deep and the other one was at the left back of his chest, about 1 1/2cm deep. He required hospitalisation for about one week. Bonney obstructed QPS when being arrested.
A number of remarks from the reports indicate that his mental illness can be managed appropriately, provided he takes his medication. The Barkly Mental Health Service report notes that on review in March 2017 Dr Turnbull made no changes to Clyde Bonney’s management plan. On review by Dr Hickey on 8 June 2018, Dr Hickey said “if he takes his tablets he does not hear the voices and is happy to keep taking them”. Dr Hickey also noted that “it is difficult at this point to say more than confirm his schizophrenia diagnosis is likely, that he needs ongoing treatment and that fortunately he is compliant with that treatment and has enough insight to be so”.[29]
When Mr Bonney relocated to Tennant Creek from Mount Isa, he came under the care of the Barkly Mental Health Service. He was classed as a voluntary client and was not under any orders of the Mental Health and Related Services Act. In the time that he was residing in Tennant Creek he had two negative tests for alcohol.[30]
At the time of the report from the Barkly Mental Health Service he was receiving his antipsychotic medication in the form of a depot injection given on a monthly basis and was reported as always accepting of the medication administration. On one occasion he could not be located but was found with assistance and with no concerns expressed by the service.
The Barkly Mental Health Service concluded as follows:
TREATMENT IF NOT ON COURT ORDER:
If the Court ordered that Mr Bonney was no longer subject to a supervision order, his medication would not change, nor would the timeframes for review. He has historically been accepting of his medication as noted above, and while I have been administering Mr Bonney’s medication over the past 12 months there has never been any reluctance from him to take his medication. On the one occasion when I could not locate Mr Bonney, I liaised with corrections who were helpful in supporting me find him through their tracking system and he was found with nil concerns. Mr Bonney has not required a Community Management Order (CMO) under the Mental Health and Related Services Act 1998 to compel medication adherence.
Mr Bonney has, in the past, been able to receive his medication in the community, namely in Canteen Creek and should be able to do so again. A psychiatrist would be able to review Mr Bonney every 3 months during visits to Canteen Creek. However Mr Bonney has been transient in the past and, should he be so again, it would make regular follow up challenging.
Dr Calvin reports on the static risk factors for violence, including Clyde Bonney’s history of violence and antisocial behaviours, past alcohol abuse and the presence of schizophrenia, past violent attitudes and poor responses to supervision. In relation to the dynamic factors, Dr Calvin points to a reduction noting that at the time of his report Clyde Bonney was relatively stable from a psychiatric point of view. He said his illness appears to have improved, he has responded positively to medication and his alcohol use has reduced. The main areas of concern have been his precarious living situation, itinerant lifestyle and limited family support. Minor changes to the dynamic risk factors can increase his profile from the moderate to high risk category. He concludes therefore that sufficient supports and plans need to be in place. These include ensuring a stable living situation, ensuring he has sufficient personal support, receiving ongoing antipsychotic medication and engaging with the mental health team.
Dr Calvin considers a custodial term likely to be onerous for Clyde Bonney and he would recommend a non-custodial disposition. Clyde Bonney requires long-term specialist care and a multidisciplinary approach. It is essential he continues his antipsychotic medications and the medications to deal with his significant medical co-morbidities. He should also maintain abstinence from alcohol use and his prognosis hinges upon his ongoing engagement with mental health services, abstinence from alcohol and having a supportive network around him.
Section 43I of the Criminal Code provides:
Effect of findings under this Division
(1)If an accused person is found not guilty of the offence charged, the court must discharge the accused person.
(2)If an accused person is found not guilty because of mental impairment, the court must:
(a)declare that the accused person is liable to supervision under Division 5; or
(b)order that the accused person be released unconditionally.
(3) If the court makes a declaration under subsection (2)(a), the court may also make the interim orders it considers just, including one or more of the following orders:
(a) an order for the bail of the accused person;
(b)an order that the accused person be remanded in custody (whether in a custodial correctional facility or another place the court considers appropriate);
(c)an order for the examination of the accused person by a psychiatrist or other appropriate expert;
(d)if the court makes an order referred to in paragraph (c) – an order that a report of the results of the examination be produced before the court. Part IIA Mental impairment and unfitness to be tried Division 3 Unfitness to stand trial Criminal Code Act 1983 57
(3A)The court must not make an interim order under subsection (3)(b) remanding the accused person in custody in a custodial correctional facility unless the court is satisfied there is no practical alternative given the circumstances of the accused person.
(4)If an accused person is found guilty of the offence charged or an offence that he or she may be found guilty alternatively of, the court must record the jury's verdict and proceed to deal with the conviction and sentencing of the accused person in the normal way.
In accordance with s 43I(2) Criminal Code the Crown seeks a declaration that Clyde Bonney is liable to supervision. On behalf of Clyde Bonney, the Court is asked to order his release unconditionally. Division 7 of Part IIA of the Criminal Code sets out the relevant principles governing this question. Section 43ZLA Criminal Code defines ‘order’ to include an order to declare that a person is liable to supervision,[31] and an order to release an accused person unconditionally.[32]
Section 43ZM of the Criminal Code effectively provides that the Court must apply the principle of the least restrictive means consistent with community protection:
Principle court to apply when making order
In determining whether to make an order under this part, the Court must apply the principle that restrictions on a supervised person’s freedom and autonomy are to be kept to the minimum that is consistent with maintaining and protecting the safety of the community.
The matters the Court must take into account are set out in s 43ZN(1)(a)-(g) of the Criminal Code:
43ZN Matters court must take into account when making order
(1)In determining whether to make an order under this Part, the court must have regard to the following matters:
(a)whether the accused person or supervised person concerned is likely to, or would if released be likely to, endanger himself or herself or another person because of his or her mental impairment, condition or disability;
(b) the need to protect people from danger;
(c)the nature of the mental impairment, condition or disability;
(d)the relationship between the mental impairment, condition or disability and the offending conduct;
(e)whether there are adequate resources available for the treatment and support of the supervised person in the community;
(f)whether the accused person or supervised person is complying or is likely to comply with the conditions of the supervision order;
(g) any other matters the court considers relevant
I will address the matters the Court must take into account. However, the highly unusual setting of the subject offending and the fact it occurred in 2016, over five years ago is of some relevance to the overall context. I have already discussed the concerning offending which took place in 2019, though there have also been lengthy periods when Clyde Bonney has been on bail, compliant and offence free save for some breaches of bail conditions.
Whether likely to endanger himself or others because of his mental impairment, condition or disability
The Crown points to the facts of the subject offending, as well as the offending in Mt Isa to show Clyde Bonney can be a danger to others. He has the diagnosis of alcohol dependence and chronic schizophrenia. Without his medication, he hears voices which tell him to perform negative actions. He is sometimes frightened of those voices. He has previously attempted suicide or self-harmed as a result of the effect of the voices. He suffers paranoia to the point where he thinks people will attack him. This causes serious anger and aggression.
While it is the case that the Crown position can be supported to some degree from the reports and the general history, the risk to himself and others is substantially mitigated with medication. There is no material to suggest the Queensland offending was due to a deterioration of his mental state. He was intoxicated and the offending appears to have originated from disagreement over cooking and tensions in the shelter where he was staying.
There is no established connection between mental impairment and his previous offending. It may well be that given the social deterioration and social exclusion experienced by people with mental illness, especially untreated and undiagnosed mental illness, that there is a link between his illness and other offending. However, in the recent and current circumstances of being treated, even those risks are well controlled. In the time he was assisted by Barkly Health Services there was only one occasion where he could not be found immediately. While there are some reservations given his at times, transient lifestyle, those reservations have not materialised in any significant way and all the indicators suggest that he is compliant with medication and other necessary treatments.
The need to protect people from danger
Whatever risks remain with Clyde Bonney, they have been substantially reduced through his compliance. The risk to others may increase due to changes in any dynamic factors as assessed by Dr Calvin, and in those circumstances the risk to others can be high. Mr Bonney does have family and he can reside within Elliott where he has that family support.[33] The Court is advised family members are keen to have him reside in Elliott with them. In the next year, if released, he will be on a parole order which may direct where he resides. Even though he is at times itinerant, he has primarily lived in remote areas and mostly in the Barkly region. This provides the potential for the management of risks and harm reduction given more limited social circumstances which may prove to be a negative influence.
Nature of mental impairment, condition or disability
The Crown acknowledges Clyde Bonney was compliant with the medication regime, but points out he lives an itinerant lifestyle. The nature of his mental impairment when he is not treated has been discussed above. He has schizophrenia and hears troubling voices. The records note he has been variously in Tennant Creek, Epenarra, Canteen Creek, Cairns, Mt Isa, Palm Island and Stewart Creek.
While Clyde Bonney has lived or visited all of those places, he has primarily been in the Barkly Regional Council Area of the Northern Territory. It was regrettable that he went to Mt Isa when this matter was being processed in the Local Court, though noting Mt Isa is an area many people from the Barkly have ties with. As discussed, he has mainly been in the Barkly area and plans to live with family in Elliott where the Court is assured he will be welcomed by them. He will not reside there until he is released on parole. In short, the nature of the illness is serious but it is and can be managed well without a custodial supervision order or non-custodial supervision order.
Relationship between mental impairment, condition or disability and offending conduct
The offending was directly caused by the mental impairment. The certificate issued under s 77 of the Mental Health and Related Services Act, made this clear from the outset. All of the other evidence confirms this was the case.
Whether there are adequate resources available for the treatment and support of the supervised person in the community
The reports from Dr Calvin and the Barkly Mental Health Service confirm there are adequate resources available for treatment and support of Clyde Bonney. The Crown points out this is subject to stable accommodation being found. Housing is difficult to secure in remote areas, the Barkly in particular, but I have taken the support of family in Elliott to indicate Clyde Bonney will have a place to stay once he is released.[34] He has previously managed to stay in contact with Barkly Mental Health Service for review and to be medicated. Elliott is a much larger centre than Canteen Creek. It is safe to infer service delivery by the Barkly Mental Health team will be not a greater burden in Elliott than was the case in Canteen Creek.
Whether the accused person or supervised person is complying or likely to comply with the conditions of the supervision order.
The indications here are mixed. On the one hand Clyde Bonney has previously complied with bail and parole orders, with some conditional breaches, though on one occasion, albeit in 2018/2019 he left the jurisdiction and went to Mt Isa. Both Dr Calvin and Dr Sullivan think it is likely he would try and comply with the conditions of a supervision order, but this would be reliant on stable housing being available and abstinence from alcohol. Dr Calvin thinks the main areas of concern are his living situation, itinerant lifestyle and family support with a diminished ability to cope with stress.[35] The current indications are he will have access to family accommodation and support.[36] He principally resides in the Barkly region, hence although itinerant at times, he would generally be in reach of services provided to the Barkly region.
Any other matters the Court considers relevant
The Court has previously had conflicting material about Clyde Bonney’s status, in terms of the status of the Queensland parole order and his time in custody. This had required requests for clarification from counsel out of the ordinary session of the Court.[37]
The Court’s registry in Alice Springs had information that Clyde Bonney was being held on a Queensland matter and his earliest release date would be 24 January 2024. This information was not correct. Counsel for Clyde Bonney has since advised, and counsel for the Crown has not disagreed, that parole supervision was transferred from Queensland to Northern Territory Correctional Services. Northern Territory Correctional Services revoked his parole, but not due to any criminal behaviour. It was in part due to the difficulties of obtaining medication during Covid restrictions. This problem also affected people who reside in town camps. He exhibited behaviours that led him to being excluded by family in Tennant Creek.[38] He is currently eligible for parole on the Queensland matter but cannot apply for it until this matter is finalised.[39]
If he is released on parole he will be subject to supervision by Community Corrections. Consequently, he could be the subject to two regimes of supervision at the one time. This would be unnecessarily confusing. If he is declared liable to supervision, under the Criminal Code he could be subject to either a custodial supervision order or a non-custodial supervision order. The Crown indicates it would likely prefer a non-custodial supervision order, but that cannot be considered a definite result of being declared liable for supervision. The Crown has pointed out certain weaknesses in the case to support any community supervision order.
I agree that Clyde Bonney may from time to time experience compliance difficulties, mostly with respect to conditions, no matter which regime he is ultimately placed on. Overall, given his periods of compliance with bail and parole, it is in my view preferable that he be subject only to one form of supervision.
My conclusion may have been different if Clyde Bonney did not already have a relationship with the Barkly Mental Health Services. Although there may from time to time be difficulties, the Barkly Mental Health Services have reported him being compliant with appointments. He has been a voluntary patient. The Barkly Mental Health Services did not think even a Community Management Order under the Mental Health and Related Services Act was necessary. When he returned to the Territory from Queensland and lived at Epenarra, Clyde Bonney complied with parole directions from 21 May 2020. His parole officer reported:[40]
Mr Bonney has been residing in the Northern Territory with a travel permit since October 2020. This has been renewed a couple of times. Collateral Checks confirmed that he has been compliant with medication and has not been identified to have elevated risk noting family and cultural supports and as such our office has been happy to renew the permit whilst he was awaiting the outcome of a request to transfer his supervision to the Northern Territory. This process is lengthy and entails QLD corrections initiating contact with NT parole for approval to transfer. NT are within their discretion to advise of an unwillingness to accept transfer.
Clyde Bonney later applied and was granted permission to reside in Tennant Creek until parole was revoked in February 2022. So far as the Court is aware, he did not offend at these times and was compliant with his medication. I am mindful of his other offending, especially in Queensland in 2019 but in my view that should not be permitted to completely dominate the question currently before the Court, as the effect of his mental illness on that offending is unknown.
It is appreciated conditions of parole are more closely directed to reducing the risks of re-offending rather than treatment. However, parole orders often have regard to any treatment regime which appears to have previously been the case when Mr Bonney was on parole.
This statutory regime creates “a strong legislative presumption in favour of liberty of the subject”.[41] Plainly this is to be balanced with the safety of the community. In this instance where the offending took place in 2016, notwithstanding unrelated offending in 2019, neither a custodial supervision order nor a non-custodial supervision order would be an appropriate disposition. A custodial supervision order would represent the exercise of a peculiar form of injustice. This offending took place while he was being treated for a severe mental illness. The Certificate of the Chief Health Officer was clear that it was a case of impairment and recommended dismissal of the charges. Dr Calvin considered a custodial term would be onerous on Clyde Bonney. He can be treated successfully for the mental impairment. A non-custodial supervision order would have little or no utility beyond what would be required of Clyde Bonney if he were on parole supervision. It is true as the Crown submits that a non-custodial supervision order would provide a better integration of services and provide a holistic model of care. The most optimal treatment services as envisaged by Dr Calvin are unlikely to be available in any remote setting.
It is likely to be confusing for Clyde Bonney if he is subject to both a parole order with conditions and a non-custodial supervision order with additional conditions. The two regimes have different consequences for any breach of conditions. Clyde Bonney’s response to conditions in the past has been mixed. Two regimes risk setting him up to fail. He has now been in custody for almost 12 months on this matter. To continue to be subject to two regimes will mean he will be subject to further periods of imprisonment without proper justification. He is unable to apply for parole while this matter is outstanding. This has the potential to lead to substantial injustice. In any event, keeping the restrictions to a minimum consistent with community safety,[42] requires only one regime upon release. I see no barrier to him returning as a voluntary patient, even though there could be no objection to him being subject to parole conditions which encourage treatment.
The finding of not guilty on both counts by reason of mental impairment is confirmed. The order will be that under s 43I of the Criminal Code Clyde Bonney is released unconditionally.
---------------------------
[1] Criminal Code 1983 (NT), s 43H. On 22 June 2021 counsel for the Crown advised the Court the Crown was yet to determine whether to accept the plea of not guilty by way of mental impairment after considering a report from Dr Sullivan of 19 June 2021. A search of the Court file indicates the finding was likely made on 28 June 2021. However the Crown submissions state it was not until the receipt of all psychiatric reports, concluding on 25 November 2021 that agreement was reached. See Crown Submissions on s 43I of the Criminal Code, 25 July 2022 at [15]. Whatever is the correct position on the date, the matter has proceeded on the basis of a finding of not guilty by reason of mental impairment.
[2] Report, Dr Sullivan, 19 June 2021 at [22]-[25].
[3] Crown submissions on section 43I of the Criminal Code, 25 July 2022 at [1].
[4] Barkly Mental Health Service Report, 25 November 2021, 1-2.
[5] Criminal Code, s 43I(2).
[6] Crown Submissions on section 43I of the Criminal Code, 25 July 2022 at [1].
[7] Crown Submissions on section 43I of the Criminal Code, 25 July 2022 at [2].
[8] Submissions of the accused person, filed 24 June 2021 at [3].
[9] Submissions of the accused person, filed 24 June 2021 Annexure 1.
[10] Submissions of the accused person, filed 24 June 2021 at [3], fn 1.
[11] Crown Submissions on section 43I of the Criminal Code at [2] suggests s 131A of the Criminal Code formed the basis of the application, however I have regarded that as a simple mistake. In this context it would not make sense that the application was made under s 131A of the Criminal Code.
[12] Crown Submissions on section 43I of the Criminal Code at [3]-[4].
[13] Notice of Committal to the Supreme Court, 4 May 2018.
[14] Submissions of the accused person, filed 24 June 2021 at 3.
[15] Crown submissions on s 43I of the Criminal Code at [8].
[16] Ibid.
[17] Schedule 2 document, Crown at 16.
[18] Crown submissions on s 43I of the Criminal Code, 25 July 2022 [9]-[12].
[19] Exhibit P1, bail application, 23 April 2021 before Southwood J.
[20] Submissions of the accused person, filed 24 June 2021 annexure two, Form 31, Court ordered parole order, 21 May 2020.
[21] Submissions of the accused person, filed 24 June 2021, annexure three.
[22] Submissions of the accused person, filed 24 June 2021 at [11]-[15].
[23] Report of Dr Sullivan, 19 June 2021 at [29].
[24] Exhibit, P1, Bail Application, 23 April 2021 before Southwood J; Report of Dr Sullivan, 19 June 2021 at [27].
[25] Although Dr Sullivan considered his English adequate, it is of some concern no interpreter assisted given all that is now known about miscommunication these circumstances. It is difficult to know whether inconsistent history given by a person may be linked to language issues or be the product of miscommunication. It is not revealed whether other report writers worked with an interpreter.
[26] Report, Dr Sullivan, 19 June 2021 at [33]-[40].
[27] Ibid at [22]-[24].
[28] Submissions of the accused person, filed 24 June 2021, annexure 3.
[29] Report, Barkly Medical Health Service, 25 November 2021 at 2.
[30] Ibid.
[31] Criminal Code; s 43ZLA(a).
[32] Criminal Code; s 43ZLA(b).
[33] Email, Ms Collins, 24 November 2022; Email, Ms Collins, 13 January 2023.
[34] Email, Ms Collins, 13 January 2023.
[35] Report, Dr Calvin, 15 October 2021 at 7.
[36] Email, Ms Collins, 24 November 2022; 13 January 2023.
[37] Email correspondence of 24 November 2022; 13 January 2023.
[38] Email, Ms Collins, 13 January 2023.
[39] Ibid.
[40] Submissions of the accused person, filed 4 July 2022, annexure 1.
[41] R v KMD [2015] NTSC 31 at [37].
[42] Criminal Code, s 43ZM.
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