Director of Public Prosecutions v Mapiou
[2024] ACTSC 323
•22 October 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Mapiou |
Citation: | [2024] ACTSC 323 |
Hearing Date: | 26 August 2024, 29-30 August 2024 |
Decision Date: | 22 October 2024 |
Before: | Baker J |
Decision: | See [154] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – murder –– preventing carrying out of forensic procedure – plea of not guilty by reason of mental impairment – prosecution agrees special verdict of not guilty by way of mental impairment should be entered – effect of nominated terms under s 302 of the Crimes Act 1900 (ACT) considered – special verdict entered– accused detained in custody for the immediate review of the ACAT – nominated terms imposed for both offences. |
Legislation Cited: | Crimes (Forensic Procedures) Act 2000 (ACT), s 63 Crimes (Sentencing) Act 2005 (ACT), ss 7, 33 Crimes Act 1900 (ACT), ss 12, 302, 303, 321, 323, 324 Criminal Code 2002 (ACT), ss 27, 28 Mental Health Act 2015 (ACT), s 180 |
Cases Cited: | Assafiri v R [2007] NSWCCA 159 DPP v Barker [2023] ACTSC 378 DPP v Kakar [2023] ACTSC 236; 380 FLR 258 MT v R [2021] ACTCA 26; 17 ACTLR 22 R v Klobucar (No 2) [2016] ACTSC 53 R v McHugh (1987) 1 NSWLR 588 R v Stephens [2024] NSWCCA 170 R v TL [2017] ACTCA 18 R v Walker (No 2) [2021] ACTSC 46 Starmer v R [2008] NSWCCA 27 |
Texts Cited: | DS Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014) Standing Committee on Justice and Community Safety (Legislative Scrutiny Role), Scrutiny Report, Report 19, 27 May 2014 Presentation Speech for the Mental Health (Treatment and Care) Amendment Bill 2014 (Hansard, 15 May 2014) |
Parties: | Director of Public Prosecutions ( Crown) Aleu Mapiou ( Accused) |
Representation: | Counsel T Hickey ( DPP) K Ginges ( Accused) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ( Accused) | |
File Numbers: | SCC 142 of 2023, SCC 356 of 2024 |
BAKER J:
Overview
On 11 November 2022, Aleu Mapiou (the accused) was admitted to the High Dependency Unit (HDU) of the Adult Mental Health Unit (AMHU) of the Canberra Hospital, following a significant deterioration in his mental health. Police and the accused’s family were concerned that the accused might harm himself or others. Tragically, these fears were realised when, shortly after 11pm on 12 November 2022, the accused attacked and killed Dusko Culibrk (the victim), who was another admitted patient in the HDU of the Canberra Hospital at that time.
Police were immediately called to the hospital following the attack. After arresting the accused, police took him to the ACT Watch House, where they attempted to take forensic swabs of the accused’s hands. Before police could take any swabs, the accused put moisturiser on his hands, resisting the police’s attempts to collect forensic material from him.
As a result of these events, the accused was charged with one count of murder, contrary to s 12 of the Crimes Act 1900 (ACT) (CAN 2022/11188), and one count of preventing the carrying out of forensic procedure, contrary to s 63 of the Crimes (Forensic Procedures) Act 2000 (ACT) (CAN2022/11591) (the transferred charge).
The accused entered a plea of not guilty by way of mental impairment to murder, and has, through his counsel, indicated that he is also not guilty by reason of mental impairment to the transferred charge. The prosecution agreed that it is appropriate for a special verdict of not guilty by way of mental impairment to be entered with respect to both charges.
Having thoroughly reviewed the material, which includes opinions from experts retained by the prosecution and the accused, I have concluded that it is appropriate to enter special verdicts of not guilty by way of mental impairment for both counts. Indeed, no other verdict could be contemplated in view of the clear, contemporaneous psychiatric evidence relating to the accused’s mental state, both before and after 12 November 2022.
In view of the seriousness of the offending, and ongoing concerns about the risk posed by the accused, I have ordered that the accused be detained in custody for immediate review by the ACT Civil and Administrative Appeals Tribunal (the ACAT) under s 180 of the Mental Health Act 2015 (ACT).
As I have made an order for the detention of the accused, the law requires me to indicate the term that is the “best estimate” of the sentence that would have been appropriate if the accused were a person who had been found guilty at law of these offences: s 302 of the Crimes Act. This term will function as the limit on the period that the accused may be detained as a result of committing these offences.
For the reasons outlined below, I have concluded the appropriate nominated terms are as follows:
(a)On the charge of murder, a sentence of imprisonment for 20 years.
(b)On the transferred charge of preventing the carrying out of forensic procedure, a sentence of imprisonment for three months, which will be accumulated by one month upon the sentence imposed for murder.
The overall term will expire on 12 December 2042. These terms are the ‘upper limit’ on the period of time that the accused may be detained as a result of the commission of these offences. Within this upper limit, the continued detention or release of the accused will be at the discretion of the ACAT, on the basis of the ACAT’s ongoing reviews of the accused.
Factual background
Sources
The evidence in the proceedings, which was adduced by consent, included transcripts of interviews with hospital staff and police, medical records of the accused and the deceased, witness statements, medical and expert reports, the video of the forensic procedure dated 13 November 2022 and the corresponding forensic report, victim impact statements, records relating to an incident that occurred while in custody, a letter from the accused, character references of the accused and the autopsy report. In addition, the parties provided a document entitled “Agreed Summary of the Evidence”. I have been assisted by the Agreed Summary, and have also carefully considered the evidence that was adduced.
On the basis of that material, I have made the following findings of fact.
The accused
The accused was born in Sydney. He has five sisters and two brothers. He is of Sudanese descent, his family having come to Australia as refugees.
The accused was raised in Laguna, in the Western Suburbs of Sydney until he was seven years old, when his parents divorced. The accused then lived with his mother in Canberra, until January 2022, when the accused’s mother returned to South Sudan, to be with her family.
The accused was a talented basketballer and attended an elite basketball academy when he was younger. The accused struggled academically and dropped out of high school shortly after beginning Year 12. Character references tendered on behalf of the accused described the accused prior to his mental illness as a gentle, shy and compassionate young man.
Events in the months leading up to the offending
The material before the Court indicates that the accused's mental health first began to deteriorate shortly after his mother returned to Africa. At this time, the accused was 17 years old.
In April 2022, while living in Canberra, he would talk to himself, laugh inappropriately, barricade himself in his bedroom and exhibit paranoid behaviour. On one occasion, he walked into a roommate’s room with a knife and told his roommate that he was being followed through his phone.
In May 2022, the accused attended his sister's wedding in Queensland. Around this time, he became agitated and tried to jump out of a moving car. He recounted violent stories of things he believed had happened to him in Sudan, which had not, in fact, occurred. He was arrested by Queensland police for fighting in the street and was admitted to hospital for a six-hour mental health assessment.
Between May and October 2022, there was an incident where the accused was angry and smashed the family's plates and glasses. He expressed suicidal thoughts. His sister took him to a general practitioner and a referral was made to a psychiatrist. On one occasion, the accused held a knife and threatened his sister's husband. Throughout this period, the accused showed signs of extreme depression and stress.
In October 2022, the accused moved back to Canberra. He saw a general practitioner in Canberra and was referred to another doctor but refused to attend.
The accused continued to exhibit concerning behaviours throughout November 2022, including paranoia and hearing voices.
Events immediately leading up to the offending
On 11 November 2022, the accused’s sister called ACT police from Brisbane. She told police that she was concerned that the accused had not been engaging with mental health services, and that the accused was paranoid and delusional. She said that she was worried that the accused was becoming a safety risk to himself, and to their brother, with whom the accused lived.
At approximately 11:06am that morning, police arrived at the accused’s house and spoke to the accused’s brother outside the front of the house. The accused’s brother told police that he was concerned about the accused’s behaviour. The accused’s brother explained that the accused had been pacing back and forth while holding a knife and saying things like “we are all going to die”. The accused’s brother handed police a note which the accused had written. In the note, the accused spoke about killing someone.
Police attempted to engage the accused in discussion for about thirty minutes. They received little to no response from the accused. The police formed the view that the accused might be at risk of harming himself or another person and made the decision to take him to hospital under an emergency apprehension.
At about 12:27pm, police transported the accused to the Canberra Hospital and transferred him to the care of hospital staff. Blood samples were taken, which on later screening tested positive for caffeine. Cannaboids were indicated but not confirmed and tetrahydrocannabinol was not detected.
Upon admission, the accused underwent an initial mental health screening assessment with a nurse, who recommended the accused be seen for immediate mental health admission. After a further assessment at about 4:45pm, a psychiatric registrar decided to admit the accused to the HDU, which is designed for patients who are more acutely unwell and require closer observation and intense treatment.
At about 8:30am the following morning, a psychiatrist saw the accused in the HDU. That psychiatrist formed the impression that the accused was experiencing a “first episode psychosis” and determined that the accused’s involuntary detention should be extended.
Later that morning, the accused was put in a de-escalation suite, as he was then in a state of agitation. The accused tried to escape the room. He put a couch on a table, climbed onto the couch and pulled one of the lights from the ceiling down. He swung the light by the cable to which it was attached, banging on the glass and the doors. Police were called and took the accused to a secure room, where he was injected with sedating antipsychotic medication.
At about 6:00pm, the accused’s ex-girlfriend met the accused in the visitor’s area of the AMHU. (She had not been allowed in earlier that day because of the accused’s condition.) She said that the accused was “distressed, confused, very agitated and very fidgety”.
The victim was walking around the visitor’s area at this time. The victim was 38 years old. The victim had been managed on a psychiatric treatment order (PTO) for diagnoses of schizophrenia, dissocial and other personality disorders and depression. He had been admitted to the HDU about three weeks prior as a result of breaching that PTO.
The victim introduced himself to them as ‘Jesus’. The victim brought the accused sandwiches and said “Oh, here bro. Take some more bro. You need more muscle bro.” The accused’s ex-girlfriend said he was constantly walking past them, staring at them and laughing. The accused told his ex-girlfriend that he was “scared of [the victim]” and that “he knows. Like, he can see through everything. He’s intelligent and, like, I’m scared of him.” The accused also told his ex-girlfriend “I can’t be here”.
In the HDU, nurses take rounds every 15 minutes. At about 9:45pm, one of the nurses doing the rounds noticed the accused was not in his room. However, she later saw the accused and the victim talking in the victim’s room. The accused and the victim were told to come out of the victim’s room if they wished to socialise, which they did. At about 10:00pm, the victim went to speak to another patient, then returned to sitting with the accused at around 10:30pm. At about 10:45pm, the victim and the accused were seen sitting together in the TV room.
The death of the victim
At about 11:15pm, two nurses who were doing rounds noticed that neither the accused nor the victim were in the TV room. The accused’s room was also empty. They went to the victim’s room and saw the door was closed. One of the nurses tapped her swipe card in order to see into the room. (The window had switchable glass and was blurred until the panel was swiped with a hospital card).
When she looked through the panel, the nurse saw the accused carrying the victim. The victim’s head and neck were slumped. The nurse screamed and ran to the nursing station to activate a Code Blue (an emergency resuscitation call). The other nurse then looked through the glass and saw the accused standing above the victim with his arms around the victim’s body, trying to move his body. The victim was slumped in a sitting position on the floor.
The accused opened the door. He seemed calm. There was blood next to the door and on the accused’s gown. The second nurse pressed a Code Black (an assault duress call) and ran back to the nursing station. The accused followed, running and yelling “that was self-defence, that was self-defence”.
Other staff rushed to the ward to help in response to the Code Black. The Medical Emergency Team began performing cardiopulmonary resuscitation (CPR) on the victim. At 12:21am, after about 54 minutes of CPR (including with adrenaline and a defibrillator), medical staff pronounced the death of the victim.
The accused is arrested
In the meantime, the Acting Nurse Unit Manager saw the accused following the two nurses to the nurses’ station. There was blood on the accused’s clothes.
The Acting Unit Nurse Manager and a security guard asked the accused what had happened. The accused did not respond. The Acting Unit Nurse Manager tried to move the accused into the de-escalation suite. The accused initially refused to move, and paced around the TV lounge. The accused then returned to the victim’s room, where medical staff were attempting to resuscitate the victim.
The Acting Unit Nurse Manager followed the accused. With the assistance of additional security guards, he moved the accused into the de-escalation suite. Once in the de-escalation suite, the accused lay on his stomach and put both hands behind his back, completely unprompted. The accused then moved around, becoming increasingly agitated. After a while, a decision was made to restrain the accused while another nurse administered a sedating medication.
At about 12:19am, police arrived at the AMHU. At about 1:10am, police woke the accused and arrested him. The police cautioned the accused and placed paper bags over his hands before escorting him into the police vehicle. While in the vehicle, the accused tried to rip open the bags on his hands. Police put more bags over the accused’s hands and warned him that he may be restrained if he continued his actions. The accused arrived at the Watch House at about 1:44am.
At about 2:50am, a forensic medical practitioner examined the accused for his fitness to be interviewed. The medical practitioner said that the accused “was initially calm and cooperative” and “responded to questions in a rational and coherent manner”. He also said the accused “could hear and respond appropriately to requests”. However, when the medical practitioner asked the accused further questions about his medical history, the accused responded “not until the cuffs come off”. The medical practitioner formed the opinion that the accused was fit to be interviewed.
At about 5:03am, police removed the accused’s handcuffs and told him to place his hands on the bench in front of him in order to conduct fingernail scrapings and hand swabs (an interim forensic procedure having been ordered by a Magistrate). Immediately after the accused took the bags off his hands, he reached over to the hand moisturiser nearby and put it on his hands. Police directed the accused to stop but he continued. Police reached forward and tried to pull the accused’s hands apart but he resisted them and rubbed his hands together. This is the conduct that gave rise to the transfer charge: preventing carrying out of forensic procedure. Police restrained the accused.
At about 11:55am at the watch-house, the accused banged his head against a window and was moved to a padded cell for an hour. He was also reported to have tied a T-shirt around his neck at this time.
Subsequent medical examinations
The medical practitioner who previously examined the accused was present during the forensic procedure. He concluded that all injuries visible on the accused had been present for more than 24 hours before the examination.
A few days later, Professor Duflou, a forensic pathologist, performed an autopsy on the victim’s body. Professor Duflou observed that the victim had multiple blunt force injuries to his face and scalp and a fractured hyoid bone, likely caused by strangulation, although he stated that there were difficulties in making a firm diagnosis of neck compression due to the apparent rapid deterioration of the victim’s body after death. Professor Duflou concluded that the direct causes of death were “multiple blunt force head and neck injuries (likely asphyxial component)”.
Victim Impact Statements
Five of the victim’s family members provided powerful victim impact statements detailing their grief since the victim’s death. These statements were read out in Court by [redacted].
The victim’s mother described her son as a “very generous” and “sensitive” person. She spoke of not being able to “imagine life without him”. His father described the victim as “gentle and generous” as well as “very innocent, honest, sensitive”. The victim’s uncle spoke of him as being “so nice and beautiful”. His cousin described the victim as having “a kind heart”.
The grief which the victim’s family suffers, and will continue to suffer, is evident in these family statements. As the statements describe, the victim’s family has been “completely destroyed” by the victim’s death. Their hearts have been broken by their loss. None of them have been able to sleep properly since the death. The victim’s sister has been housebound since the victim’s death.
Psychiatric reports
The Court received four expert reports in relation to the accused, from two different experts. The experts were of the unanimous opinion that the accused is not guilty by way of mental impairment pursuant to ss 27 and 28 of the Criminal Code 2002 (ACT) of both offences.
Associate Professor Carroll and Professor Greenberg were each of the opinion that at the time of the incident (the killing of the victim and the destruction of forensic material on the accused’s hands), the accused was suffering from an acute episode of schizophrenia, such that he was unable to reason with a moderate degree of sense and composure about the wrongfulness of his conduct. However, they disagreed about whether the accused was able to control his conduct.
Dr Carroll’s first report
Introduction
Associate Professor Carroll prepared a report dated 7 March 2024 at the request of the accused’s legal representatives.
Associate Professor Carroll conducted a psychiatric assessment of the accused on 12 February 2024 via audio-visual link with the Alexander Maconochie Centre (AMC). Associate Professor Carroll conducted two interviews with the accused on this day. Associate Professor Carroll was also provided with the Case Statement, a Fitness to Plead Report, the brief of evidence, the accused’s medical records, an email regarding the accused’s academic performance, and a brief history created by the accused’s guardian. He was also provided with expert reports from a forensic pathologist and a forensic biologist.
Associate Professor Carroll described the accused’s demeanour in the interview as “cooperative” and “polite”. The accused’s speech was “normal”, and said that the accused did not seem to be experiencing any hallucinations or delusions.
The accused’s account to Associate Professor Carroll
In his interview, the accused told Associate Professor Carrol that when his mother returned to South Sudan in January 2022 that “it was a bit hard for [him].” He said that he first started hearing voices “a bit after that”.
The accused stated he could not recall much of his admission to the hospital. He remembered that “the thoughts were telling me inside you’re in danger, I thought he [the accused’s brother] was trying to kill me”. He also recalled feeling “very scared” and “caged in” during his time in the psychiatric ward. The accused remembered trying to escape from the ward several times and being “angry” about being locked inside as he “didn’t know what they were going to do”. He recalled that after seeing his ex-girlfriend, he tried to escape as he thought he would be assassinated by people in the yard, and that voices were telling him to escape.
When asked about the death of the victim, the accused said he “kinda blacked out” and that he “couldn’t trust anyone, I thought I was in danger”. The accused had some recall of watching television with the victim and going into a room with him. He said “I felt scared, I was trying to protect myself, that’s what I believed at the time. My thoughts were telling me don’t trust this guy, he’s like the others trying to get rid of me”.
On direct questioning by Associate Professor Carroll, the accused explained that he felt he needed to kill the victim as this was the only way in which he could protect himself from assassination. The accused did not recall the conversation he had with the victim, or what he did to harm the victim, but the accused did not deny that he carried out the acts which caused the victim’s death.
The accused said his next memory was seeing the nurses perform CPR on the victim. He described himself as being “in shock”. The accused did not recall taking the bags off his hands after being arrested or applying moisturiser when the police attempted to take swabs. However, he did not deny that this occurred.
The accused told Associate Professor Carroll that he had used alcohol “a little bit sometimes” in the past. He denied using any drugs other than cannabis, which he said that he started using in his mid-teens. The accused recalled using cannabis about two to three times a week prior to his arrest. The accused told Associate Professor Carroll that he does not intend to use cannabis again for physical health reasons, but maintained that it has “not really” negatively impacted on his mental health.
The accused told Associate Professor Carroll that he accepted his diagnosis of schizophrenia, which, he recognised, causes him to suffer from “psychosis [and] paranoia” when he is unwell. The accused told Associate Professor Carroll that he intended to take clozapine “possibly for the rest of [his] life” as he “didn’t want to get sick again”. The accused told Associate Professor Carroll that he does not believe he has suffered symptoms such as feeling in danger, hearing voices or other abnormal experiences since he started taking clozapine. The accused said “I don’t want to go back to that ever again, feeling that I’m in danger”. Associate Professor Carroll believed that this statement demonstrated “good retrospective insight into his past psychotic symptoms”.
Opinion
Associate Professor Carroll was of the opinion that as of 12 November 2022, the accused “was in the midst of his first psychotic episode due to the onset of Schizophrenia (DSM-5 295.90)”. He stated that the accused’s schizophrenia has been active since at least the first part of 2022, and this illness is now in remission.
Associate Professor Carroll did not believe that it was likely the accused “malingered his symptoms”. His reasons for so concluding included that the accused’s symptoms were observed by multiple clinicians in multiple different clinical contexts, that his description of specific symptoms was consistent with known “schizophreniform psychopathology” and that the accused did not endorse all possible symptoms that were put to him.
Associate Professor Carroll considered that it was unlikely that the accused suffered from “cannabis induced psychosis”. In this respect, he noted that the quantities of cannabis used by the accused did not appear to be at the higher end, his symptoms continued even months after he was placed in a drug free environment, and his symptoms over the months prior to November 2022 “did not fluctuate in the way that would be expected with a drug induced psychosis”.
Associate Professor Carroll observed that “at the relevant time [the accused] was in the grip of a powerful persecutory delusional system whereby he believed that multiple people in his environment were trying to kill him.” He explained that it was also likely that the accused was suffering from “various hallucinatory phenomena that are likely to have reinforced the strength of his belief in those persecutory delusions”. In this respect, Associate Professor Carroll referred to evidence of the accused’s highly agitated state soon after his admission to hospital, and that the accused had specifically mentioned being scared of the victim in the hours leading up to killing him. He concluded that “it [is] more likely than not that at the relevant time [the accused] believed that the victim was intending to kill him imminently and that the only way that he could avoid that fate was to kill the victim”.
Associate Professor Carroll considered that whilst the accused might have known his behaviour was legally wrong, the accused likely “reasoned that his behaviour was morally reasonable because it was the only way that he could prevent himself from being ‘assassinated’ by the victim”. He considered that this “severe impairment of moral reasoning” was “a direct consequence of the acute symptoms of schizophrenia”. Associate Professor Carroll noted that this diagnosis is consistent with the accused’s subsequent behaviour in claiming his actions were “self-defence” and in submitting to the police.
However, Associate Professor Carroll found that it was more likely than not that the accused did know the nature and quality of his conduct. He noted there was nothing to the contrary to suggest that he was unable to control his conduct.
In relation to the charge of preventing the carrying out of a forensic procedure, Associate Professor Carroll noted that the accused “remained profoundly psychotic with a high degree of pervasive, psychotic suspiciousness regarding his environment”, and was in a “profoundly fearful state due to his delusional belief that at least some of the people around him intended him harm”. Associate Professor Carroll concluded that the accused’s disturbed mental state, secondary to acute schizophrenia, meant that he was unable to properly reason about the moral wrongfulness of his actions in preventing the carrying out of a forensic procedure.
Professor Greenberg’s First Report
Introduction
At the request of the prosecution, Professor Greenberg prepared a report dated 25 June 2024, based on his psychiatric assessment of the accused on the morning and afternoon of 17 June 2024. Those interviews were conducted in person from the AMC. Dr Greenberg had available to him the Case Statement, police statements, documents from the police brief of evidence, medical records, defence documents, education documents and handwritten notes from the accused.
The accused’s account to Professor Greenberg
The accused told Dr Greenberg that in the six to twelve months leading up to the incident:
… my mental health was declining. I wasn’t myself. My brothers were worried. I was delusional. I was unable to think properly. I was lacking in myself. Believed the sun was coming to the earth soon. People talking bad things about me. Just talking badly about me.
He claimed that he had been hearing voices and seeing shadows. He thought someone was trying to kill him. At one point he barricaded himself in a room as he thought the world was going to end.
The accused told Professor Greenberg that he had no memory from the time of watching TV with the victim on 12 November 2022 until he was later arrested by the police. When asked about the victim’s death, he said “I don’t remember much felt unsafe.” He recalled feeling “pretty scared” when he was admitted to hospital and “trying to get out”. He also remembered feeling like people were coming after him and feeling “paranoid”. He recalled watching a movie prior to being arrested. After watching the movie, he said he felt “scared. I was in danger from people there. I didn’t know him. There was an Asian guy there. He had a knife. They took it off him. I was in danger, so I wanted to get out”.
The accused told Professor Greenberg he thought he killed the victim as he was “in fear of [his] safety”, and that he “didn’t think [he] was going to get out the room.” In response to a question about why he felt he could control himself in the room the accused replied “paranoid thoughts wouldn’t stop”. He said he “acted out for [his own] safety”, but also said he didn’t remember the incident.
When asked why he put on moisturiser o his hands when the police removed the bag from his hands, the accused replied “something like … don’t no [sic]. Something told me to do it. Inside my head. Just had the thought”. When interrogated further if his intent was to interfere with evidence he said “I don’t believe I did. I wasn’t myself. I don’t know why my intention was there.” The accused could not recall telling the nurses that he had assaulted the victim in self-defence.
The accused told Professor Greenberg that he began drinking alcohol and using cannabis around the age of 15 or 16. He denied the use of any other drugs. The accused told Dr Greenberg that he did not currently participate in any drug and alcohol counselling sessions, and did not see a need to join any programs in the future. He also stated that his doctor told him that alcohol and cannabis affected his mental health, but when asked if he agreed with this statement, he said “in a way. I’m not sure”.
Opinion
Professor Greenberg concluded that the accused was “suffering from an episode of acute psychotic schizophrenic illness at the time of the offences” and that he met the diagnostic criteria for schizophrenic disorder. In particular, Professor Greenberg was satisfied that the accused experienced paranoid delusions that he would be harmed or killed and that he was being monitored or tracked by someone or something at that time. Professor Greenberg was of the view that in light of the accused’s clinical history and subsequent prescription of Clozapine, the accused’s illness should be considered treatment resistant, in partial remission.
Professor Greenberg identified a number of possible reasons why the accused may not have been able to remember the alleged offences. These included that the accused was intentionally withholding information; that he subconsciously suppressed the traumatic memories due to his paranoid psychotic state of mind at the time; that he has a poor memory; that he had difficulty remembering details of what occurred in his psychotic state; or that he had cognitive deficits as a result of his schizophrenia. Professor Greenberg was ultimately of the opinion that whilst there “may be an element of [the accused] withholding some information”, the accused’s failure to recall any details of the alleged offences “cannot be solely attributed to any [of] the possible causes listed above with any degree of certainty”.
On balance, Professor Greenberg was of the opinion that the accused did not know the nature and quality of his conduct at the time he killed the victim. He was also of the opinion, on balance, that although the accused knew that killing the victim was legally wrong, he did not know it was morally wrong, explaining:
In my opinion he likely could not reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, was wrong because he was suffering from a mental impairment where he lost touch with reality and acted on paranoid delusions and possibly auditory hallucinations in a psychotic state at that time.
On balance, Professor Greenberg concluded that the accused could not control his conduct as he was likely “being compelled to act on his psychotic beliefs where he likely lost control of his senses”.
Professor Greenberg stated that his opinion in this respect was unaffected by evidence that the accused was oriented in time and place and that he attempted to engage in bargaining in relation to his circumstances (such as refusing to cooperate “until the cuffs come off”). Professor Greenberg explained that individuals with an episode of active schizophrenic psychosis may “have numerous capacities and abilities which are not necessarily directly affected by their mental illnesses”, whilst other capacities “which involve thought processes, perception and content beliefs” may be “directly affected by the psychotic mental illness”. Similarly, Professor Greenberg considered that when the accused “washed his hands”, he was suffering from “acute psychotic paranoid beliefs and was likely acting on those beliefs”. Professor Greenberg explained that the accused “had lost touch with reality for this specific area of mental functioning (delusions of content of thought) and he stated that he feared that he would be killed or harmed at this time”.
Apart from relatively minor matters relating to his assessment of the accused’s upbringing, family history and the extent of the accused’s drug use, Professor Greenberg largely agreed with Associate Professor Carroll’s opinion as to the accused’s psychiatric diagnosis and the defence of mental impairment.
However, Professor Greenberg disagreed with Associate Professor Carroll’s conclusion that the accused has good insight into his schizophrenic illness. Professor Greenberg was of the view that the accused’s insight was poor. In this respect, Professor Greenberg noted that in July 2023, the accused was alleged to have diverted his Clozapine tablets and considered that the accused “still has residual guardedness and suspicious demeanour which may indicate residual paranoia”. Professor Greenberg also noted that were some inconsistencies in the accused’s accounts of whether his auditory hallucinations disappeared with psychiatric treatment.
Professor Greenberg also disagreed with Associate Professor Carroll’s conclusions as to whether the accused was able to control his conduct. Professor Greenberg was of the opinion that the intensity of the accused’s beliefs significantly impaired the accused’s ability to control his conduct at the time of the killing and his interference with the carrying out of a forensic procedure.
Supplementary Report of Dr Carroll
Introduction
After receiving Associate Professor Carroll’s first report, the accused’s legal representatives requested an addendum report addressing the accused’s potential risk should he be released back into the community. The accused legal representatives provided Associate Professor Carroll with a copy of Professor Greenberg’s first report.
In response, Associate Professor Carroll conducted a further face-to-face interview with the accused at the AMC on 23 May 2024, and provided a supplementary report dated 12 August 2024.
Opinion
Associate Professor Carroll described the accused as “cooperative” and noted that he displayed warmth and did not appear to be guarded towards him.
Associate Professor Carroll stated that the accused now appears to be free of psychotic symptoms. Associate Professor Carroll confirmed his view that the accused’s insight was “good”, that he accepted his diagnosis of schizophrenia and understood the possibility of future relapse. Associate Professor Carroll recorded that the accused understood the value of taking antipsychotic medication to manage his symptoms and recognised the need to take such medication for the foreseeable future. However, the accused failed to recognise the danger posed to himself by using cannabis.
Associate Professor Carroll noted that the accused’s mental health had continued to improve in the months since his last assessment in February. He concluded that this bodes “well for the future however there are at this stage a number of unknowable factors relevant to future risk”.
Associate Professor Carroll utilised the HCR-20-V3 guidelines (a set of professional guidelines relating to risk factors related to general violence in persons with a mental disorder) to assess the risk of the accused posing a danger to the community. He concluded that the accused would belong to the “moderate category” of case prioritisation/risk for future violence. Associate Professor Carroll noted that it was difficult to assess dynamic risk factors in the structured setting of a prison, and said that the accused would need to be assessed in the “real-world”, particularly in relation to his compliance with medication, desistance from cannabis and psychosocial stability.
Associate Professor Carroll concluded that the risk of releasing the accused into the community at this time was “significant and in need of appropriate management”.
Supplementary Report of Dr Greenberg
Introduction
Professor Greenberg prepared a supplementary report dated 25 August 2024, in response to the supplementary report of Associate Professor Carroll. In addition to the materials previously provided, Professor Greenberg also considered letters of instruction, the report of Associate Professor Carroll dated 12 August 2024 and an AMC Incident Report dated 25 July 2024, which reported that the accused had thrown boiling water at another inmate.
Opinion
Professor Greenberg referred to the inconsistency in the accounts given by the accused regarding the quantities of cannabis and alcohol the accused used prior to his offending, but he ultimately concurred with Associate Professor Carroll that there “was likely significant alcohol and cannabis usage which played a significant role in precipitating or triggering the onset of his mental illness”.
Professor Greenberg agreed with Associate Professor Carroll that the accused has responded well to treatment in that his positive symptoms of schizophrenia (delusions, hallucinations and disorganised thoughts) have largely resolved. However, he noted that the accused continues to display ongoing negative and cognitive symptomatology since receiving treatment. He was of the view that these symptoms were not likely to respond to medication and would necessitate other treatments in future.
Professor Greenberg remained of the view that the accused remains guarded and suspicious, and noted that the accused provided limited information to questions. Professor Greenberg also remained of the opinion that the accused “has relatively limited insight into this mental illness”. In this respect, Professor Greenberg described the accused’s insight into the danger of substance use as “questionable”.
Professor Greenberg concluded that without the support of adequate mental health safeguards, it is “more likely than not” the accused will pose “a potential significant risk for further violence to the community”. He stated that the accused should not be assessed as suitable for direct release into the community, especially as there would be ongoing uncertainty as to whether the accused would comply with taking his medication.
Evidence of Professor Carroll and Associate Professor Greenberg
Associate Professor Carroll and Associate Professor Greenberg gave concurrent evidence in the proceedings before me. Prior to giving evidence, both experts had read the accused’s medical records which had been produced to the Court under subpoena. The most recent of those records was dated April 2024.
Generally speaking, the oral evidence of the experts accorded with their reports on matters of significance. The experts confirmed that the accused has been diagnosed with schizophrenia, that schizophrenia is a lifelong condition, and that the accused’s mental impairment caused him to “lose touch with reality” at the time of the offences. The experts also confirmed that they had different perspectives as to the sequelae of the accused’s condition, including as to the accused’s insight into his illness and the accused’s prospects of recovery, but agreed that these differences were “subtle” and “matters of degree”.
Legislation
The term “mental impairment” is defined in s 27 of the Criminal Code as below:
27Definition – mental impairment
(1)In this Act:
mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
(2)In this section:
mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli.
(3)However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
Section 28 of the Criminal Code provides:
28 Mental impairment and criminal responsibility
(1)A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that—
(a)the person did not know the nature and quality of the conduct; or
(b)the person did not know that the conduct was wrong; or
(c)the person could not control the conduct.
(2)For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.
(3)The question whether a person was suffering from a mental impairment is a question of fact.
(4)A person is presumed not to have been suffering from a mental impairment that had an effect mentioned in subsection (1).
(5)The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment that had an effect mentioned in subsection (1).
(6)The prosecution may rely on this section only if the court gives leave.
(7)If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must—
(a) for an offence dealt with before the Supreme Court—return or enter a special verdict that the person is not guilty of the offence because of mental impairment; or
(b) for any other offence—find the person not guilty of the offence because of mental impairment.
Section 321 of the Crimes Act provides:
321Supreme Court – plea of not guilty because of mental impairment
(1)This section applies if an accused pleads not guilty because of mental impairment to an indictable offence before the Supreme Court.
(2)The Supreme Court must enter a special verdict that the person is not guilty of the offence because of mental impairment if—
(a)the court considers the verdict appropriate; and
(b)the prosecution agrees to the entering of the verdict.
Determination as to liability
A verdict or finding of not guilty by reason of mental impairment will be “appropriate” where:
(i)The Court is satisfied beyond reasonable doubt that the elements of the offence are proved, noting s 29 of the Criminal Code, which provides that a person “cannot rely on a mental impairment to deny voluntariness or the existence of a fault element, but may rely on mental impairment to deny criminal responsibility”; and
(ii)The Court is satisfied on the balance of probabilities that, when carrying out the conduct required for the offence, the accused was suffering from a mental impairment that had the effect that the accused did not know the nature and quality of the conduct, or the accused did not know that the conduct was wrong, or the accused could not control the conduct (s 28 of the Criminal Code).
See DPP v Kakar [2023] ACTSC 236 at [132(5)] and DPP v Barker [2023] ACTSC 378 at [53].
I have previously concluded that it is not necessary for directions to be recorded by a judge in determining whether a verdict under s 321 of the Crimes Act is “appropriate”: see Kakar at [139]-[142] and Barker at [54]. However, as in Kakar and Barker, for abundant caution, I record that I have directed myself in accordance with the directions contained in Annexure “A”.
The elements of each offence are extracted in Annexure “B”. As the prosecutor submitted, it is plain that the physical elements of the murder charge are satisfied. The only reasonable inference is that the accused violently assaulted the victim causing multiple blunt force injuries on his face and scalp, and that the accused caused soft tissue injuries within the victim’s neck, and possibly fracturing his thyroid bone. Although the accused immediately claimed to have been acting in self-defence, the accused had no injuries which might have been consistent with him acting in self-defence. The accused appears to have no memory of the events, and does not now contend that he was acting in self-defence.
It may readily be inferred from the injuries sustained by the victim that the accused struck the victim with considerable force. It may also be inferred from these injuries that the accused intended to kill the victim. There is no dispute that the accused’s acts were the sole cause of the victim’s death.
The elements of the transfer charge are also established. The accused immediately grabbed the moisturiser and rubbed it on his hands as soon as the paper bags were taken off by police. In doing so, he intentionally hindered the carrying out of a forensic procedure.
Accordingly, I am satisfied on the basis of the unchallenged evidence that the elements of each charge have been proved beyond reasonable doubt.
The question that remains is whether I am satisfied that the accused was suffering from a mental impairment which had the effect that the accused did not know the nature and quality of the conduct; or that he did not know that the conduct was wrong; or that he could not control the conduct: s 28(1) of the Criminal Code.
The experts are of the unanimous opinion that the accused is suffering from schizophrenia, which is a mental impairment within the meaning of s 27 of the Criminal Code, and that the impairment was of such a nature he did not appreciate that the conduct was wrong.
There is no basis upon which this evidence could be rejected. The diagnosis, and the effect of the impairment, are supported by the contemporaneous observations of medical personnel both before, and after, the commission of the offences.
As the experts described, the accused was suffering from a mental impairment which had caused him to “lose touch with reality”. The accused was in a psychotic state and was acting on paranoid delusions. As Associate Professor Carroll explained, these delusions led the accused to believe that the victim was intending to kill him imminently and that the only way that he could avoid that fate was for him to kill the victim first. Further, the accused likely “reasoned that his behaviour was morally reasonable because it was the only way that he could prevent himself from being ‘assassinated’ by the victim”. Although the accused believed this as a result of his mental illness, there is no suggestion in the evidence that these fears were reasonably based on anything that the victim had done.
I am satisfied on the balance of probabilities that, as a result of his mental impairment, the accused did not know that his conduct in killing the victim was wrong. Alternatively, I am satisfied that, as a result of his impairment, the accused did not know the nature and quality of his conduct. Specifically, his delusions were such that he could not appreciate that he was not in fact acting in self-defence.
As I have concluded that the accused was suffering from a mental impairment and that the impairment was of such a nature that he did not appreciate that his conduct was wrong, s 28 of the Criminal Code is satisfied. Accordingly, I am satisfied that a special verdict that the accused is not guilty of the offence of murder is appropriate.
I find that the conduct relating to the transfer charge is also attributable to the accused’s mental illness for the reasons explained by the experts. As the experts explained, a consciousness of wrongdoing is not inconsistent with the finding of not guilty by reason of mental impairment. The accused had lost touch with reality. As Associate Professor Carroll described, the accused as in a “profoundly fearful state” arising from his delusional beliefs that people around him intended to harm him. Accordingly, I am satisfied that a special verdict is also appropriate for the transfer offence.
In these circumstances, it is not necessary for me to determine whether s 28 was also satisfied on the basis that the accused was not able to control his conduct, as was the view of Professor Greenberg, but not Associate Professor Carroll. As the experts were not cross-examined on this issue, I decline to comment further on this question.
Consequential orders
Whether the accused should be detained in custody (s 324 of the Crimes Act)
I am now required to determine whether the accused should be detained in custody pursuant to s 324(2) of the Crimes Act. Section 324 of the Crimes Act provides:
324Supreme Court orders following a 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.
Where an offence is not a “serious offence”, the Court may make an order for detention under s 323 of the Crimes Act, which provides:
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.
(2)If—
(a)the Supreme Court makes an order under subsection (1) (a); and
(b)the ACAT notifies the court of its recommendations;
the court shall, in consideration of the ACAT’s recommendations, make any further orders it considers appropriate.
(3)The Supreme Court may make the orders that it considers appropriate, including—
(a)that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or
(b)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.
As part of my consideration whether to make an order under ss 323 and/or 324, I must consider the following criteria as set out in s 308 of the Crimes Act:
308Criteria for detention
For this part, other than division 13.5 (except section 335), in making a decision which could include an order for detention, the Supreme Court or Magistrates Court shall consider the following criteria:
(a)the nature and extent of the accused’s mental impairment, including the effect it is likely to have on the person’s behaviour in the future;
(b)whether or not, if released—
(i) the accused’s health and safety is likely to be substantially impaired; or
(ii) the accused is likely to be a danger to the community;
(c)the nature and circumstances of the offence with which the accused is charged;
(d)the principle that a person should not be detained in a correctional centre unless no other reasonable option is available;
(e)any recommendation made by the ACAT about how the accused should be dealt with.
The charge of murder is a “serious offence” within the meaning of s 324(1) of the Crimes Act. The term “serious offence” is defined in s 300 of the Crimes Act (which applies to pt 13 of the Crimes Act) as:
(a)an offence punishable by imprisonment for longer than 1 year if the factual circumstances of the offending involve actual or threatened violence and substantial risk of harm to another person; or
(b)an offence against section 27(3) or (4).
Note Serious offence is defined differently for div 13.4 (see s 325)
The offence of murder clearly satisfies the above definition. Both parties agree that I should make an order under s 324(2)(a) for the detention of the accused with respect to that charge.
The transferred charge of preventing the carrying out of forensic procedure is not a serious offence within the meaning of s 324 of the Crimes Act. However, it was agreed by both parties that as the accused will be detained under s 324 with respect to the offence of murder, it would also be appropriate for the accused to be detained with respect to the transferred offence pursuant to s 323 of the Crimes Act.
I have considered the criteria set out in s 308 of the Crimes Act, in particular, the seriousness of the charged offences (particularly the charge of murder), the opinions of the medical experts that the accused is at risk of further psychotic episodes, and that the accused requires further assessment before he could be safely released into the community. Having considered these matters, I agree that the only appropriate order is for the accused to be detained in custody for the immediate review of the ACAT with respect to both offences.
The nominated terms
As I will make an order for the accused’s detention under ss 323 and 324 of the Crimes Act, I am required to set “nominated terms” under s 302 of the Crimes Act, which states:
302Limitation on orders and detention—acquittals
(1)If, under section 323 or 324, the Supreme Court makes an order that the accused be detained in custody for immediate review by the ACAT, the court must indicate whether, if the accused had not been acquitted, it would have imposed a sentence of imprisonment.
(2)If, under subsection (1), the Supreme Court indicates that it would have imposed a sentence of imprisonment, it must nominate a term (a nominated term) in respect of that offence, that is the best estimate of the sentence it would have considered appropriate if the accused were a person who had been found guilty of that offence.
(3)In nominating a term in relation to an offence, the Supreme Court may, as it considers appropriate, take into account the periods (if any) for which the person has been detained in relation to the offence, before or after the special hearing.
(4)A nominated term in relation to an offence takes effect on the day the Supreme Court nominates the term unless the court—
(a)after taking into account any periods mentioned in subsection (3), nominates an earlier day; or
(b)orders that the term take effect on a later day so as to be served consecutively with (or partly concurrently and partly consecutively with) another term nominated for the person under this part or a sentence of imprisonment imposed on the person.
I discussed the purpose and effect of nominated terms in my decision in Kakar at [182]-[196]. In summary, a nominated term does not constrain the ability of the ACAT to release a person who has been found not guilty by reason of a mental impairment where the person no longer presents a significant risk to themselves or the community: Kakar at [195]. Rather, a nominated term operates as a limit on the duration of detention that may follow from a finding of not guilty by reason of mental impairment. This gives effect to Parliament’s intention that the accused not be detained “for a period longer than the period of imprisonment which would have been imposed for the relevant offence in normal criminal proceedings”: Kakar at [192], citing the Presentation Speech, Crimes (Amendment) Bill 1999 (Hansard, 22 April 1999 at pp 1126–1127).
Although Parliament’s purpose in providing for nominated terms is clear, the determination of “the best estimate of the sentence [the Court] would have considered appropriate if the accused were a person who had been found guilty of that offence” remains notoriously difficult.
I am satisfied beyond reasonable doubt that the accused intended to kill the victim. In making this finding, I have borne in mind the submission of counsel for the accused that I should approach the accused’s admission that he felt that he needed to kill the victim to protect himself from assassination with caution, as the accused has a limited memory of the incident. However, even disregarding this admission, it is clear that the accused had this intention. So much is apparent from the extreme violence and force that the accused inflicted, particularly when considered in the context of the nature of the delusions that he suffered (namely, that the accused believed that the victim intended to assassinate him).
A significant feature of the present offending was the victim’s acute vulnerability. At the time of the attack, the victim had been deprived of his own liberty for his own protection and/or the protection of others owing to his own mental impairment. The victim was not free to leave. The assessment of the objective seriousness of the offending must recognise the victim’s extreme vulnerability. There is no suggestion that the accused knew of this vulnerability, but, considered objectively, he ought to have known of the victim’s vulnerability: s 33(1)(gb) of the Crimes (Sentencing) Act 2005 (ACT).
There is no evidence of any actual provocation by the victim (the accused’s ex-girlfriend’s report that the victim was “staring” at the accused falls well short of provocation): s 33(1)(q) of the Sentencing Act. Nor is there any evidence that the victim posed any actual risk to the accused. To be clear, these are not matters that aggravate the offending; rather, there was nothing by way of mitigation in the offending.
For the reasons outlined at [198]-[202] of Kakar, I remain of the view that the accused’s mental impairment should not be disregarded when determining the “best estimate” of the sentence which would have been imposed. As a result of his psychotic delusions, the accused believed that he was at imminent risk of death if he did not first kill the victim. The accused’s moral culpability for his conduct is substantially reduced. The need for general deterrence, specific deterrence, denunciation and punishment is low, as is the need to hold the accused accountable for his actions: s 7 of the Sentencing Act. However, as in Kakar and Barker, the reduction of the accused’s moral culpability has been entirely offset by the risk that he poses to the community.
Contrary to the accused’s counsel’s submission, I am satisfied beyond reasonable doubt that the accused remains a danger to the community. Although Associate Professor Carroll and Professor Greenberg disagreed about the precise assessment of the accused’s prognosis, they agreed that, at least at the present time, the accused continues to present a serious risk to the community. The experts agreed that, in the case of the accused, schizophrenia will be a life-long condition. When acting under the influence of that impairment, the accused, whilst in a highly supervised environment, violently killed another person. Unless the accused’s mental impairment is effectively treated, he will remain at risk of the commission of further acts of violence.
Whilst there are some indications that the accused has responded well to the treatment to date, it is not possible to conclude that this treatment will be equally effective on any release into the community. Professor Carroll explained:
There [are] certain things that simply need to be tested out … for example, the - one of the key issues here is about substance use. Now I don’t think in the circumstances we can just take at face value [the accused’s] report that “I’m not going to take cannabis anymore because my lawyer said it was a bad idea’.
That’s a great start. But that needs to be tested out. You know, there needs to be some rehabilitative therapeutic risk taking over a significant period of time for that to be tested out. He said he will take his medication. That needs to be tested out. So you know, sometimes words – words are one thing but conduct is another and we need to actually gather the data over time as part of the rehabilitative plan before we can be more confident about his release back into the community.
In these circumstances, I do not consider it productive to resolve the subtle disagreement between Professor Greenberg and Associate Professor Carroll as to the accused’s precise prognosis in the immediate or long-term future. Nor is it necessary or appropriate for me to resolve or comment upon the various matters which led to the expert’s differing views on this issue (including the circumstances in which it was alleged that the accused threw a cup of boiling water at another inmate, or the extent of his apparent insight into his offending and/or whether the assessment of that insight may have been affected by cultural considerations). It suffices for me to conclude that, at present, I am satisfied beyond reasonable doubt that the accused remains a significant risk to the community.
In Kakar at [204(8)], I accepted that circumstances of detention would be a greater burden on the accused, as a person with a schizophrenic disorder, than on a person without that condition. However, in Kakar, it was envisaged that there would be long-term psychiatric care before any release could be contemplated: Kakar at [208]. There is no such positive indication in the present case. There is no evidence that detention will have a significant adverse effect on the accused’s mental health. Indeed, the purpose of the accused’s ongoing detention will be to support the accused in his recovery. In those circumstances, I have not taken into account the circumstances of detention as a matter that should militate the sentence to be imposed.
The accused’s counsel submitted that the Court should also consider ameliorating the sentence to be imposed by reason of the accused’s disadvantaged background. Although the accused made no reference to any disadvantage in his childhood in his interviews with the psychiatrists, in their character references, various family members and friends spoke of the disadvantage which characterised the accused’s upbringing. In particular, in her character reference, the accused’s mother spoke of how the accused’s parents and older siblings had spent 13 years in a refugee camp in Kenya, and the domestic abuse (physical and financial) which she suffered at the hands of the accused’s father once they arrived in Australia.
I am satisfied that the accused grew up in an environment that was substantially disturbed by the reverberating effects of trauma. However, as the accused’s counsel properly acknowledged, in circumstances where the accused’s moral culpability has already been substantially reduced by reason of his mental impairment, this matter does not carry any significant additional weight in the determination of the sentence that would otherwise have been imposed.
The accused was young (18 years old) at the time that he committed the offences, and remains a young man at this time. At law, youth is recognised as a significant factor in determining the sentence to be imposed. This remains the case even when an offender is over the age of 18 at the time the offences were committed (such that Part 8A of the Sentencing Act does not apply): R v TL [2017] ACTCA 18 at [39]; see also R v Stephens [2024] NSWCCA 170 at [19]–[20], per Hamill J (“There is no bright line in relation to youth in the context of sentencing”), and the cases cited therein.
The weight to be given to the sentencing purpose of rehabilitation must be prioritised when dealing with young offenders: see MT v R [2021] ACTCA 26; 17 ACTLR 22 at [54]. I have taken into account the accused’s youth in determining the “best estimate” of the sentences that should be imposed. However, the weight to be given to youth is again ameliorated by the need to protect the community.
There is some evidence of remorse: s 33(1)(w) of the Sentencing Act. The accused told Dr Carroll that he felt “gutted” over the death of the victim. He also reported to Dr Carroll that acknowledging the incident that caused the death of another “doesn’t feel good”. In his letter to the Court dated 28 August 2024, the accused said “there is nothing I can say that justifies the murder and I am deeply apologetic”. I have taken into account these expressions of remorse. I have also taken into account the evidence of the accused’s prior good character: s 33(1)(m) of the Sentencing Act.
Importantly, the “best estimate” of the sentences that would have been imposed must also take into account the gravity of the offences that were committed. The offence of murder is the gravest offence for which the law provides. It carries a maximum penalty of life imprisonment. It is necessary to recognise the harm which has resulted from the accused’s acts, which have taken a human life. As the victim impact statements eloquently described, the victim was a generous man whose love brought joy to his immediate and extended family. His loss has devasted them all.
The prosecution provided me with a table of comparative cases. As both counsel acknowledged, none are truly comparable to the present case. For example, it is clear that the offending is less serious than the gratuitous violence that was occasioned in Kakar, and the accused is much younger than the offender in Kakar, but the acute vulnerability of the present victim also must be acknowledged. It is not fruitful to engage further in an unedifying comparison of the criminality involved in the different cases, particularly where they are so few in number.
Finally, as the prosecution accepted, the “best estimate” of the sentence to be imposed should take into account the accused’s assistance to the administration of justice, in particular, by his acceptance that the elements of each offence were established. I have reduced each nominated term to take into account this matter: ss 33(k) and 35A of the Sentencing Act.
Taking into account all of the considerations above, I have concluded that the best estimate of the sentence that would have been imposed for the offence of murder, that is, after taking into account the assistance to the administration of justice, is a sentence of imprisonment of 20 years.
The transfer offence of preventing the carrying out of a forensic procedure carries a maximum penalty of imprisonment for two years, a fine of $32,000 or both. The accused’s counsel submitted that the sentence for the forensic procedure offence should be “wholly concurrent” with the sentence for murder, and that “if it weren’t being dealt with in this circumstance, it would be a good behaviour bond in the community”. I do not accept this submission. The context in which this offence occurred, namely, in circumstances where the accused had just killed a man, are serious. Taking into account the matters outlined above concerning the accused’s mental impairment, his youth, background, character and the assistance which his plea afforded to the administration of justice, I am of the view that the best estimate of the sentence that would have been imposed for this offence is imprisonment for 3 months.
The accused has spent 710 days in pretrial custody. Section 302(3) of the Crimes Act provides that:
In nominating a term in relation to an offence, the Supreme Court may, as it considers appropriate, take into account the periods (if any) for which the person has been detained in relation to the offence, before or after the special hearing.
Section 302(4) provides that a nominated term is to take effect on the day that the term is nominated unless the court “after taking into account any periods mentioned in subsection (3), nominates an earlier day”, or “orders that the term take effect on a later day so as to be served consecutively with (or partly concurrently and partly consecutively with) another term nominated for the person under this part or a sentence of imprisonment imposed on the person”.
In R v Klobucar (No 2) [2016] ACTSC 53 at [18], Penfold J observed that s 302(3) appeared to be “intended to permit the court to take into account periods of pre-trial custody in determining its best estimate of the sentence that would have been imposed”. However, her Honour continued:
… that provision refers only to custody before or after a special hearing, not a trial, but special hearings are conducted only where an accused is unfit to plead (in s 315C) …
For this reason, her Honour did not backdate the sentence, but rather reduced the nominated term by the period of pre-trial custody.
I took a different approach in Kakar and backdated the sentence to take into account the pre-trial custody. Backdating was also employed by Mossop J in R v Walker (No 2) [2021] ACTSC 46. However, Penfold J’s observations in Klobucar were not drawn to my attention in Kakar, and do not appear to have been drawn to the attention of Mossop J in Walker (No 2).
With respect to Penfold J, I do not agree that backdating is only available where an accused has been found not guilty by reason of mental impairment following a special hearing (that is, where the accused has been found unfit to be tried).
By reason of s 302(1), s 302 only applies where the Court has ordered the detention of a person under ss 323 or 324. Section 323 and 324 have no application to special hearings. Sections 318 and 319 of the Crimes Act govern the making of an order for detention following a special hearing. The power to specify a nominated term following a special hearing under ss 318 and 319 is found in s 301 of the Crimes Act.
Accordingly, if ss 302(3) and (4) were read as limited to orders made in special hearings, those provisions could have no operation. Such an interpretation should be avoided: DS Pearce and RS Geddes, Statutory Interpretation in Australia (LexisNexis, 8th ed, 2014) at [2.39].
In this respect, it may also be noted that the Explanatory Statement to the Mental Health (Treatment and Care) Amendment Bill 2014 (which introduced the relevant amendments to s 302) described the effect of the amendments (at p. 209) as:
As an addition to section 302 of the Crimes Act 1900 (ACT) (Limitation on orders and detention – acquittals), new subsections (3) and (4) seek to further clarify limitations on detention, requiring the courts to take into account any additional periods for which the person has been detained in relation to the offence.
The day the nominated term takes effect is also clarified in subsection (4) of the Crimes Act 1900 (ACT) as either the day the term is nominated or an earlier day nominated by the Supreme Court.
There is no indication in this Explanatory Statement, or other extrinsic material, such as the Presentation Speech or the Scrutiny Report, that the legislature’s intention in drafting s 302 was to limit the power of the Court to backdate a nominated term only where a special hearing has been held: Standing Committee on Justice and Community Safety (Legislative Scrutiny Role), Scrutiny Report, Report 19, 27 May 2014 and Presentation Speech for the Mental Health (Treatment and Care) Amendment Bill 2014 (Hansard, 15 May 2014) at pp 1539 - 1543.
Accordingly, whilst ss 302(3) and 302(4) are poorly drafted, I am satisfied that their evident intent is to permit the backdating of the sentence for a nominated term that is made following the making of an order for detention under ss 323 or 324 of the Crimes Act. Bearing in mind the text and purpose of s 302, I do not consider that the reference to a special hearing in those provisions should be read as limiting the application of those subsections to nominated terms that are imposed after a hearing where an accused has been found unfit to be tried. To avoid future uncertainty, I will direct that a copy of this judgment be sent to the Attorney General by the Registrar of this Court, for the legislature to consider clarifying the effect of this provision.
There are distinct advantages to the Court backdating a sentence rather than reducing the sentence to be imposed to take account of pretrial custody: Starmer v R [2008] NSWCCA 27 at [10], citing R v McHugh [1985] 1 NSWLR 588 and Assafiri v R [2007] NSWCCA 159. Where a sentence is backdated, there is greater transparency, and the community will be better able to understand the effect of the term that is imposed. Accordingly, I will backdate the nominated term to be imposed with respect to the offence of murder by 710 days.
As the offending relating to the transfer offence arose out of, and was closely connected to the offending that gave rise to the offence of murder, the term for the offence of preventing the carrying out of a forensic procedure will be largely, but not entirely, concurrent with the nominated term for the offence of murder and will similarly take the period of pretrial custody into account.
Concluding comment
I conclude these proceedings by conveying the condolences of this Court to everyone who has suffered, is suffering, and will undoubtedly continue to suffer, as a result of this tragedy.
Orders
For the above reasons, the following orders are made:
(1)A special verdict of not guilty by way of mental impairment is entered under s 321(2) of the Crimes Act 1900 (ACT) in respect of the following offences:
(a)Count 1 (CAN2022/11188), that the accused murdered Dusko Culibrk.
(b)Count 2 (CAN2022/11591), that the accused prevented the carrying out of a forensic procedure.
(2)I order that the accused be detained in custody for immediate review by the ACAT under s 180 of the Mental Health Act 2015, pursuant to s 324(2)(a) of the Crimes Act 1900 (ACT).
(3)I impose the following nominated terms:
(a)Count 1 (CAN2022/11188): 20 years imprisonment, backdated by the period of pretrial custody of 710 days to commence on 13 December 2022 and expire on 12 December 2042.
(b)Count 2 (CAN2022/11591): 3 months imprisonment, backdated by the period of pretrial custody of 710 days to commence on 13 November 2022 and expire on 12 February 2023.
(4)A copy of this judgment is to be sent to the Attorney General by the Registrar of the Court, for the legislature to consider clarifying the effect of s 302 of the Crimes Act 1900 (ACT).
| I certify that the preceding one hundred and fifty-five [155] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: |
ANNEXURE A – DIRECTIONS
Onus and Standard of Proof
The burden of proof of the guilt of the accused is placed squarely on the prosecution. The accused is presumed to be innocent unless and until the prosecution persuades me that the accused is guilty of the elements of the offence beyond reasonable doubt.
It follows that if I am left unable to decide whether the prosecution has proved its case, in relation only to the physical elements of the offence, beyond reasonable doubt, even though I might suspect that the accused committed the offence, the accused is entitled to the benefit of that doubt and I must find him not guilty simpliciter.
Mental impairment
To enter a verdict of not guilty by reason of mental impairment, I must be satisfied, on the balance of probabilities, that when carrying out the conduct required for the offence, the accused was suffering from a mental impairment that had the effect that—
(a) he did not know the nature and quality of the conduct; or
(b) he did not know that the conduct was wrong; or
(c) he could not control the conduct.
A “mental impairment” includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
A “mental illness” is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli.
However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
Fact Finding
The facts that I find must be based on the evidence. In this case, that includes the evidence included in the Prosecution Tender Bundle, which was tendered without objection.
In assessing the evidence, I must apply my common sense. I must do so with an open and unbiased mind, hearing the evidence clinically and dispassionately and not letting emotion enter into the decision-making process. The prosecution and the accused are entitled to my verdict free of partiality, prejudice, favour or ill will.
Inferences
I may draw reasonable inferences from the facts that I find are established. I must examine any possible inference to ensure that it is a justifiable inference, and I must not draw an inference from the direct evidence unless it is a rational inference in all of the circumstances.
Expert evidence
In this case, reports of Associate Professor Andrew Carroll and Professor David Greenberg were tendered as expert evidence.
The value of any expert opinion very much depends on the reliability and accuracy of the material which the expert used to reach his or her opinion. It also depends on the degree to which the expert analysed the material upon which the opinion was based, and the skill and experience brought to bear in formulating the opinion given. Experts can differ in the level and degree of their experience, training and study, yet each can still be an expert qualified to give an opinion where that opinion is based on that witness’s specialised knowledge.
In the present case, expert evidence was admitted to provide me with information and an opinion on the mental impairment of the accused in relation to the criteria set out in s 28 of the Criminal Code 2002 (ACT). These topics are within each experts’ expertise but are likely to be outside the experience and knowledge of the average lay person.
The expert evidence is before me as part of all the evidence to assist me in determining whether the prosecution has proved the charges beyond reasonable doubt.
I bear in mind that if, having given the matter careful consideration, I do not accept the evidence of the experts, I do not have to act upon it. This will be particularly so if the facts upon which the opinion is based do not accord with the facts as I find them to be. I am also, to a degree, entitled to take into account my common sense and my own experiences if they are relevant to the issue upon which the expert evidence relates.
The accused did not give evidence
The accused has not given any evidence in response to the prosecution case. However, as outlined above, the prosecution bears the onus of satisfying me beyond reasonable doubt that the accused is guilty of the physical elements of the offences charged. There is no obligation on an accused person to give or call evidence in a criminal trial, nor in a hearing under s 321 of the Crimes Act. The accused is presumed to be innocent until I am satisfied beyond reasonable doubt by the evidence led by the prosecution that he is guilty of the physical elements of the offences charged (and I am satisfied either of the matters listed in s 321(2) of the Crimes Act or of the fault elements of the offences charged).
It follows that the accused is entitled to say nothing and make the prosecution prove his guilt to the high standard required. I cannot use the accused’s decision not to give evidence in any way at all during the course of my deliberations, nor can I use it as strengthening the prosecution case or in assisting the prosecution to prove its case beyond reasonable doubt. I must not speculate about what might have been said in evidence if the accused had given evidence.
ANNEXURE B – ELEMENTS
The elements of the offence of murder are:
(i) The accused carried out conduct.
(ii) When carrying out the conduct the accused intended to cause the death of any person; or with reckless indifference to the probability of causing the death of any person.
(iii) The conduct caused the death of another person.
The elements for the transferred charge of preventing the carrying out of forensic procedure are:
(i) The accused intentionally obstructed, hindered or resisted a police officer.
(ii) The police officer was carrying out a forensic procedure.
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