Director of Public Prosecutions v Connors (No 2)
[2022] ACTSC 280
•11 October 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v Connors (No 2) |
Citation: | [2022] ACTSC 280 |
Hearing Dates: | 10 October 2022 |
DecisionDate: | 11 October 2022 |
Before: | Loukas-Karlsson J |
Decision: | See [37] |
Catchwords: | CRIMINAL LAW – JURISDICTION – PRACTICE AND PROCEDURE – pleas of not guilty by way of mental impairment – determination of appropriate consequential orders – consideration of appropriate nominated term of imprisonment |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 30, 302, 304, 323, 324, 327, 329, 381 |
Cases Cited: | DPP v Connors [2022] ACTSC 279 |
Parties: | Director of Public Prosecutions (Prosecution) Douglas Roy Connors (Accused) |
Representation: | Counsel S Saikal-Skea (Plaintiff) J De Bruin (Accused) |
| Solicitors ACT Director of Public Prosecutions (Prosecution) ACT Legal Aid (Accused) | |
File Number: | SCC 234 and 235 of 2021 |
LOUKAS-KARLSSON J:
Introduction
On 10 October 2022, I made orders entering verdicts of not guilty by way of mental impairment for five charges:
a) Count 1: CC 2021/4223 – aggravated burglary contrary to s 312 of the Criminal Code 2002 (ACT) (Criminal Code). The offence has a maximum penalty of 20 years imprisonment.
b) Count 2: CC 2021/2533 – damage property contrary to s 403 of the Criminal Code. The offence has a maximum penalty of 10 years imprisonment.
c) Count 3: CC 2021/6257 – assault occasioning actual bodily harm contrary to s 24 Crimes Act 1900 (ACT) (Crimes Act). The offence has a maximum penalty of 5 years imprisonment.
d) Count 4: CC 2021/2534 – threat to kill contrary to s 30 of the Crimes Act. The offence has a maximum penalty of 10 years imprisonment.
e) Transfer Charge: CAN 2535/21 – possess an offensive weapon with intent contrary to s 381 of the Crimes Act. The offence has a maximum penalty of one year imprisonment.
In the reasons for making those orders, I indicated that count 2 would be dealt with on the basis that it is not a serious offence for the purposes of the statutory scheme relating to special verdicts by reason of mental impairment.
At the time of making the orders, I indicated that I would reserve the question of what further orders should be made in relation to those verdicts in accordance with ss 323, 324 and 329 of the Crimes Act.
Those sections govern the orders that a Court may (or must) make once a verdict of not guilty for reason of mental impairment is entered. Those sections relevantly provide:
323 Supreme Court orders following special verdict of not guilty because of mental impairment—non-serious offence
(1) If an accused has been charged with an indictable offence other than a serious offence and a special verdict of not guilty because of mental impairment is returned or entered, the Supreme Court may —
(a) make an order requiring the accused to submit to the jurisdiction of the ACAT to enable the ACAT to make recommendations as to how he or she should be dealt with; or
(b) make any other orders it considers appropriate.
…
324 Supreme Court orders following special verdict of not guilty because of mental impairment—serious offence
(1)This section applies if an accused is charged with a serious offence and a special verdict of not guilty because of mental impairment is returned or entered by the Supreme Court.
(2)The Supreme Court must—
(a) order that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or
(b) if, taking into account the criteria for detention in section 308, it is more appropriate—order that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015.
329 Magistrates Court orders following finding of not guilty because of mental impairment—serious offence
(1)This section applies if an accused is charged and the Magistrates Court makes a finding of not guilty because of mental impairment.
(2)The Magistrates Court must—
(a) order that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or
(b) if, taking into account the criteria for detention in section 308, it is more appropriate—order that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015.
Given my findings in Director of Public Prosecutions v Connors [2022] ACTSC 279 (Connors (No 1)), s 323 applies to count 2, s 324 to counts 1, 3 and 4, and s 329 in relation to the transfer charge.
If I form the view that an order should be made detaining the accused in custody for immediate review under s 323 or s 324, I must indicate the sentence I would have imposed had the accused not been acquitted: s 302 Crimes Act. In relation to the transfer charge, s 304 of the Crimes Act imposes a similar obligation.
What consequential orders should be made?
In relation to counts 1, 3 and 4 and the transfer charge it was uncontroversial between the parties that the appropriate order was that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015 (ACT) pursuant to s 324 or s 329 of the Crimes Act.
Having reviewed the medical evidence, that is plainly the appropriate order.
In relation to count 2, in my view, in light of the fact that the accused will already be detained in custody for immediate review by the ACAT, the appropriate order is that there will be no order.
In the result, in accordance with ss 302 and 304 of the Crimes Act I must indicate whether I would have imposed a term of imprisonment and, if so, indicate the term of imprisonment that I would have imposed for counts 1, 3 and 4 and the transfer charge.
Having regard to the seriousness of the conduct, I would have imposed a term of imprisonment for all of those offences had the accused not been acquitted.
Indicative Sentence
The approach to be taken in relation to determining the indicative sentence was summarised by Mossop J in R v Walker (No 2) [2021] ACTSC 46 (Walker (No 2)) at [3]-[5]:
The estimation of such a sentence is “a very difficult and artificial task”: R v Kelly [2018] ACTSC 332; 87 MVR 127 at [64]. One fundamental matter giving rise to the difficulty is that a determination of the degree of moral culpability is critical to the determination of an appropriate sentence, yet a finding in accordance with s 28 of the Criminal Code means that the detained person lacks any significant degree of moral culpability for the commission of the relevant offence.
The approach that I take to the task is that identified by Burns J in R v Ophel [2019] ACTSC 325 at [6]. That involves proceeding as if the verdict was a verdict of not guilty simpliciter and hence, giving full weight to the mental impairment suffered by the detained person at the time of the offending.
This has the effect that the emphasis given to the various purposes of sentencing in s 7 of the Crimes (Sentencing) Act 2005 (ACT) will be significantly different from the emphasis that would be given in a case where an offender’s mental health condition did not significantly reduce the offender’s moral culpability.
(emphasis added)
I adopt that approach in relation to these offences.
In coming to the appropriate sentence for each of the offences I must have regard to the maximum penalty for each offence. The fact that the offences occurred in the context of family violence is also relevant. As the prosecution correctly submitted, s 34B of the Crimes (Sentencing) Act 2005 (ACT) applies to the offences on the indictment which occurred in the family violence context. I have had regard to those matters.
That consideration does not, however, apply in relation to the transfer charge which occurred outside the complainant’s residence while police attempted to arrest the accused.
The facts underpinning the relevant conduct were outlined in Connors (No 1). As is clear from that judgment, the accused entered the complainant’s residence after being refused entry and making threats, including that he was “going to take [the complainant’s] life”. At the time of the relevant conduct, he was holding a machete and a smaller knife. While in the residence, the accused was again asked to leave by the complainant but refused.
It is in this context that the accused pushed the complainant into a wall and punched her in the face and made the threat to kill which included the words “I’m going to take your life, slut”.
It is clear that the offences against the complainant were serious. While the Court did not have before it a Victim Impact Statement, I accept that the complainant has understandably expressed genuine fear of the accused. It is clear that this type of offending would have had a significant impact on the victim. In particular, the accused was armed with a machete at the time of the offending and made the threat to kill while in possession of the knife.
This must have been a terrifying experience for the victim.
The accused’s moral culpability for the offending conduct must be assessed as low due to his mental condition. As I indicated in Connors (No 1), I accepted the evidence of the medical experts that the accused was not aware of the wrongfulness of his conduct and was not able to control his actions.
In relation to the subjective circumstances of the accused, counsel submitted that the following matters were relevant:
a) Mr Connors is 36 years of age.
b) Mr Connors was raised by his mother and grandmother. He had no contact with his father.
c) Mr Connors completed year 7. He told Dr Allnutt that he experienced problems learning because the teachers would not teach him because he was “black”.
d) During high school Mr Connors was bullied for his race.
e) Mr Connors left school at about the age of 12 or 13.
f) (Mr Connors left home at about aged 13 or 14. He was homeless following the death of his grandmother.
g) Mr Connors told Dr Allnutt that he could not recall if he was sexually abused. Mr Connors has to Ms Felicity Riddle, a psychologist, that he was "raped” by several members of his community and family between the ages of 8 and 13 years old. Mr Connors also told Ms Riddle that he mentioned the matter to his mother, however, she did not believe him.
h) Mr Connors had only one significant relationship and that had been with the complainant.
i) Mr Connors and the complainant have five children.
j) In 2012, Mr Connors and the complainant had a son that was stillborn. Mr Connors experienced significant difficulties following this traumatic experience.
Consideration
It is clear that the principles outlined in R v Verdins [2007] VSCA 102; 16 VR 269 apply in this case. The accused’s mental health condition significantly reduces his moral culpability for the offending conduct. While, in this case, the only appropriate order is an order detaining the offender in custody, his mental health condition significantly reduces the need for specific deterrence. It also means that this case is not an appropriate vehicle for general deterrence.
It is also clear to me that, as was the case in Walker (No 2), the accused’s ongoing mental health condition will mean that a sentence of full-time imprisonment will weigh more heavily on him. It is also clear that he will be able to access the treatment that he needs in a controlled environment.
It is further apparent to me that the accused has significant subjective circumstances that may moderate the sentence that would otherwise be imposed. In particular, the accused was sexually abused as a child and has clearly had a traumatic upbringing.
Against these matters though, I must balance the seriousness of the offending conduct and the impact on the complainant.
Counsel for the prosecution provided a table of comparative cases for similar offences, including referring me to the case of R v Tonna (No 1) [2020] ACTSC 360. In that case the offender was sentenced for six offences including aggravated burglary, assault occasioning actual bodily harm and two counts of contravening a family violence order. The offender was sentenced to 2 years and 4 months imprisonment. The sentences were suspended on the entering of a drug and alcohol treatment order. The starting points for the sentence for aggravated burglary and assault occasioning actual bodily harm (prior to the discount for the plea of guilty) were 15 months and 11 months respectively.
Counsel for the prosecution also referred me to R v Randall Williams [2016] ACTSC 389 and R v Loulanting [2015] ACTSC 172. In both cases the offenders were sentenced to terms of imprisonment for various charges, including having made threats to kill within a family violence context. In both cases the starting point for the sentence for threat to kill was over two years.
Counsel for the accused referred me to the case of R v Catanzariti [2020] ACTSC 326 where a sentence of 21 months and 21 days was imposed with respect to an offence of aggravated burglary.
I note that there is not insignificant difficulty in applying comparative cases to situations where the offender has no moral culpability for the offences due to his mental health condition. In any event, there is a wide range of offending for offences of this type.
Counsel for the accused correctly submitted that the sentences imposed would need to be structured to reflect the fact that all of the offences formed what was in effect part of a single course of conduct. Nevertheless, there will need to be some cumulation to reflect the individual offences, especially in relation to the threat to kill which occurred in the complainant’s bedroom while the accused was armed.
The parties agreed that as at 11 October 2022, the accused has spent 511 days un custody due to this offending. The commencement point of the indicative sentence will be backdated accordingly.
To deal with the appropriate cumulation, I would have dealt with the offences otherwise than in numerical order.
Had the accused been found guilty the sentences I would have imposed would have been as follows:
a) In respect of count 1: CC 2021/4223, the sentence I would have imposed would have been one year and six months imprisonment backdated to 18 May 2021.
b) In respect of count 4: CC 2021/2534, the sentence I would have imposed would have been one year and six months commencing on 18 August 2022.
c) In respect of count 3: CC 2021/6257, the sentence I would have imposed would have been one year commencing on 18 August 2023.
d) In respect of the transfer charge: CAN 2535/21, the sentence I would have imposed would have been three months imprisonment commencing on 18 July 2024.
The overall sentence would have been three years and five months imprisonment.
I will make orders providing the nominated term for the sentence for each of the offences and indicating the starting date for each of the nominated sentences in accordance with ss 302 and 304 of the Crimes Act.
Addendum
I note that this case has demonstrated once again the unclear boundary in relation to what is a serious offence for the purpose of the relevant provisions. As has been noted previously by members of the Court, additional guidance on which offences are serious would be useful: see, for example, R v Smith [2012] ACTSC 146; 269 FLR 233.
Orders
I make the following orders:
1. Following the entering of verdicts of not guilty by way of mental impairment for counts 1, 3 and 4 and the transfer charge, pursuant to ss 324 and 329 of the Crimes Act 1900 (ACT) (Crimes Act), the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015 (ACT).
2. Following the entering of a verdict of not guilty by way of mental impairment for count 2, the appropriate order is that there be no further order.
3. The nominated terms under s 302(2) of the Crimes Act 1900 (ACT) for the counts on the indictment are as follows:
a. Count 1: CC 2021/4223, one year and six months imprisonment commencing on 18 May 2021.
b. Count 3: CC 2021/6257, one year imprisonment commencing on 18 August 2023.
c. Count 4: CC 2021/2534, one year and six months imprisonment commencing on 18 August 2022.
4. The nominated term under s 304(2) of the Crimes Act 1900 (ACT) for the transfer charge CAN 2535/21 is three months imprisonment commencing on 18 July 2024.
5. The Registrar is directed to notify the ACAT of the orders made on 10 October 2022 and 11 October 2022.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson Associate: Andrew Ray Date: 12 October 2022 |
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