Director of Public Prosecutions v Stacker (No 2)
[2025] ACTSC 29
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Stacker (No 2) |
Citation: | [2025] ACTSC 29 |
Hearing Date: | 10 February 2025 |
Decision Date: | 12 February 2025 |
Before: | Taylor J |
Decision: | See [85]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment – not guilty because of mental impairment – prosecution agreed special verdict should be entered – whether accused should be detained in custody – referral to ACAT – schizophrenia – aggravated robbery – firearms offence – drive motor vehicle without consent – serious offences – where offender has significant family support |
Legislation Cited: | Crimes Act 1900 (ACT) ss 300, 308, 321, 323, 324, 327, 328 Criminal Code 2002 (ACT) ss 27, 28, 29, 310(b), 318(2) Firearms ACT 1996 (ACT) s 43(1) Mental Health Act 2015 (ACT) ss 108, 324(2) Road Transport (Driver Licensing) Act 1999 (ACT) s 31(1) Supreme Court Act 1993 (ACT) pt 8, ss 68D, 68E |
Cases Cited: | DPP v Barker [2023] ACTSC 378 DPP v Kakar [2023] ACTSC 236; 380 FLR 258 DPP v Mapiou [2024] ACTSC 323 R v Aleer [2016] ACTSC 75 R v Stacker [2017] ACTSC 240 R v Stacker [2019] ACTSC 219 R v Yeaman [2021] ACTSC 252; 294 A Crim R 510 |
Parties: | Director of Public Prosecutions ( Crown) Dylan Stacker ( Offender) |
Representation: | Counsel E Bayliss ( DPP) G Le Couteur ( Offender) |
| Solicitors ACT Director of Public Prosecutions Legal Aid ACT ( Offender) | |
File Numbers: | SCC 40 of 2024 SCC 41 of 2024 |
TAYLOR J:
Introduction
1․On 10 February 2025, Dylan Stacker (the accused) entered pleas of not guilty because of mental impairment to the following counts:
(a)Count 1: CC2023/7244 – aggravated robbery, contrary to s 310(b) of the Criminal Code 2002 (ACT). The offence has a maximum penalty of 2,500 penalty units, imprisonment for 25 years or both;
(b)Count 2: SCCAN2024/29 – unauthorised possession or use of a firearm, contrary to s 43(1) of the Firearms Act 1996 (ACT). The offence has a maximum penalty of 500 penalty units, imprisonment for 5 years or both; and
(c)Count 3: CC2023/7245 – drive motor vehicle without consent, contrary to s 318(2) of the Criminal Code. The offence has a maximum penalty of 500 penalty units, imprisonment for 5 years or both.
2․The accused also entered a plea of not guilty because of mental impairment to a charge transferred to this court in accordance with pt 8 of the Supreme Court Act 1933 (ACT). The transferred charge is unlicensed driving (CAN2023/7247) contrary to s 31(1) of the Road Transport (Driver Licensing) Act1999 (ACT). The offence has a maximum penalty of 20 penalty units. I am satisfied pursuant to ss 68D and 68E of the Supreme Court Act that it is in the interests of justice to deal with the transferred charge as part of these proceedings. This Court has the same functions as the Magistrates Court in relation to transferred charges: R v Aleer [2016] ACTSC 75 at [100]; s 68E Supreme Court Act.
3․The entry of a plea of not guilty because of mental impairment requires consideration of the provisions which set out the Court’s task upon the entry of such a plea. In accordance with ss 321 and 327 of the Crimes Act 1900 (ACT), the prosecution agreed in this instance that a special verdict should be entered for each count on the indictment as well as for the transferred charge. Additionally, the Court must consider that the entry of a special verdict of not guilty because of mental impairment is appropriate.
4․With the consent of the accused, the prosecution tendered a bundle of material. Included in the material was a report from forensic psychiatrist, Dr Joey Le, dated 20 January 2025 and a report from Associate Professor Andrew Carroll dated 30 July 2024. Both experts confirmed that the accused has a long-standing diagnosis of schizophrenia, a mental impairment pursuant to s 27 of the Criminal Code. Further, both experts concluded that the accused’s mental impairment had an effect contemplated by s 28 of the Criminal Code at the time the offending conduct occurred.
5․I have carefully reviewed the material and for the reasons that follow concluded that the entry of a special verdict of not guilty because of mental impairment for the three counts on the indictment and the transferred charge, is appropriate.
6․The consequence of that finding in relation to the counts on the indictment is a consideration of ss 323 and 324 of the Crimes Act as to whether the accused should be detained in custody for review by the ACT Civil and Administrative Tribunal (ACAT) under s 108 of the Mental Health Act 2015 (ACT) or ordered to submit to the jurisdiction of the ACAT to allow for the making of an order under the Mental Health Act.
7․A finding of not guilty because of mental impairment with respect to the transferred charge results in the need to consider s 328 of the Crimes Act.
8․The accused has been in custody for a 15-month period, 5 months of which is solely referrable to the counts on the indictment.
9․The accused has conceded that the counts on the indictment and the transferred charge are established on the prosecution case. Included in the prosecution bundle of material was an agreed statement of facts. Notwithstanding that concession, the Court must be satisfied that the entry of a special verdict of not guilty because of mental impairment is “appropriate”. As Baker J identified in DPP v Mapiou [2024] ACTSC 323 at [99] the entry of a special verdict will be appropriate when:
(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].
10․I now turn to consider those matters.
Determination on liability
11․Like Baker J in DPP v Kakar [2023] ACTSC 236; 380 FLR 258 at [142], DPP v Barker [2023] ACTSC 378 at [54] and Mapiou at [100], for abundant caution I record that I have directed myself in accordance with the agreed directions contained in Annexure “A”.
12․The elements of each offence are contained in Annexure “B”.
Agreed statement of facts
13․Around 7:50am on 20 July 2023, Ms M contacted ACT Police Operations to report that her vehicle, a white 2020 Hyundai 130 (the Vehicle), was stolen from her address in the suburb of Kambah. The Vehicle contained Ms M’s gym bag, air pods and her handbag.
14․Ms M had left the Vehicle running in her driveway to warm up and when she returned to her driveway, the Vehicle was no longer there. In the intervening period, the accused got into the Vehicle and drove it from Ms M’s residence, knowing that the Vehicle was not his and he did not have permission to drive it.
15․At about 9:20am, Mr E was working behind the front counter of the Independent Grocers of Australia (IGA) store located at the Swinger Hill Shops in Mawson. The store manager, Mr S, was also present.
16․Mr E and Mr S observed the accused enter the store and walk directly to the front counter.
17․The accused was described as being six foot two, slim, wearing a black jacket, black pants, and black gloves with a white cloth covering his face and head.
18․The accused produced a black revolver type handgun from his left pocket. While pointing the firearm at Mr E and Mr S, the accused stated words to the effect of, "where is the manager?".
19․Mr E replied, “what do you want?” to which the accused responded with words to the effect of, "I want your safe". Mr E advised the accused that all the cash was kept in the till and proceeded to open the till, lift the tray and place the money tray on the counter.
20․The accused continued to point the firearm at Mr E and Mr S while taking all the notes from the till. The accused said, “is that all?” to which Mr S responded, “that’s our only money. We don’t have much cash in the morning”. The accused appropriated approximately $230.
21․The accused then left the IGA, placing the firearm back into his left jacket pocket and the cash into his right jacket pocket. As he walked out, the accused said, “how are you doing?” to another customer.
22․A short time later, Mr E and Mr S exited the store and observed the accused driving the Vehicle out of the carpark and turning right onto Ainsworth Street, Mawson.
23․At this time, the accused was not the holder of an Australian driver licence or exempted by regulation from holding an Australian driver licence.
24․At about 10:09am the accused arrived at Woden Westfield. Between 10:09am and 10:15am, the accused walked through the shopping centre and purchased a packet of cigarettes and a lighter.
25․At about 10:15am, a taxi driver, Mr P, observed the accused walking up to his taxi. Mr P asked the accused, “can I help you?”. The accused did not respond and walked away some three to five metres. The accused then returned to the taxi, sat in the taxi and said words to the effect of, “take me to Kambah”. Mr P told the accused, “I’m second in the queue”. The accused said, “never mind” and got out of the vehicle. At that time, Mr P observed a firearm tucked into the back of the accused’s belt. At around 10:17am, Mr P called the police to report this occurrence.
26․The accused then entered another taxi that was being driven by Mr G. The accused sat in the front seat of the taxi and used abusive language. Mr G asked, “where to?” and the accused said, “Kambah, near the shops”. Mr G observed the accused talking to himself and recalled the accused saying that, “somebody was calling him [the accused]”. At around 10:25am, Mr G dropped the accused at his requested location.
27․Police attended to the accused who was located sleeping in a bus shelter on Marconi Crescent, Kambah. Police woke the accused. The accused opened his eyes and started to get up. The accused began to move, and police observed the handle of a firearm in the accused’s jacket pocket. Police formed the impression that the accused reached for the firearm.
28․At about 11:25am, the accused was arrested after a struggle with police. During that struggle, the accused said, “I’m done, just shoot me”.
29․Upon searching the accused, police located and seized a black plastic revolver style replica firearm in his front left jacket pocket. The accused said to police, “I’ve just had enough man, I’ve just had enough”.
30․At about 12:25pm, police located the Vehicle on the grass verge outside [redacted], Garran. A fingerprint obtained from the rear passenger side door handle was positively identified as the left thumb print of the accused.
31․Police located the accused’s mobile phone on the driver’s seat of the Vehicle.
32․A black glove located near the Vehicle was seized by police and sent for forensic testing. Forensic Biologist, Jennifer Stone, concluded in relation to a tape lift of the interior cuff of the glove, that there was “extremely strong support for the proposition that [the accused] is a contributor to the DNA profile obtained”.
33․The accused was taken to the ACT Watch House. On arrival, the accused was assessed by Dr Quercini and was deemed “fit for interview”. The accused did not participate in a record of interview.
34․On 30 August 2023, the accused called a friend from the Alexander Maconochie Centre. The accused told his friend that, “I wasn’t in the right mindset when I done it. I was fucking – I wasn’t myself. Like, that’s why I had to go to the psych ward and all that shit”.
35․On 19 October 2023, Forensic Firearm and Tool Mark Examiner, Daniel Paine, prepared a report in relation to the firearm and the shells/cartridges received. Mr Paine concluded the following:
(a)The exhibit air pistol, FEN500618808, conforms to the definition of an airgun as defined in the Firearms Act 1996 (ACT) and is therefore within the definition of a firearm pursuant to that Act.
(b)The exhibit shells, FEN500618817, do not conform to any definition in the Firearms Act 1996 (ACT).
36․The accused was not authorised by licence or permit to possess or use a firearm.
37․I am satisfied based on the facts alleged by the prosecution and agreed to by the accused that the elements of each count on the indictment as well as the transferred offence are established beyond reasonable doubt.
Mental impairment
38․Having concluded that the conduct of the accused establishes the elements of the offences, I now turn to whether the accused was suffering from a mental impairment at the time of the offending which had the effect set out at s 28(1) of the Criminal Code:
(a)that he did not know the nature and quality of the conduct; or
(b)that he did not know that the conduct was wrong; or
(c)that he could not control the conduct.
39․An accused 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: s 28(2) of the Criminal Code.
40․The accused is presumed not to have been suffering from a mental impairment that had an effect as described in s 28(1) of the Criminal Code. The presumption is displaced only if it is proved on the balance of probabilities that the accused was suffering from a mental impairment which had an effect mentioned in s 28(1).
Mental impairment
41․Mental impairment is defined in s 27 of the Criminal Code as follows:
27 Definition—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.
42․AP Carroll and Dr Le conducted separate assessments of the accused while he was in custody and were provided with material recording the accused’s history of mental ill-health. The reports prepared by AP Carroll and Dr Le are comprehensive and include significant medical and personal histories. AP Carroll described the accused as “a 29 year old man with very significant neurodevelopmental and psychiatric disabilities”. Both AP Carroll and Dr Le confirmed the accused’s long-standing diagnosis of schizophrenia.
43․The reports detailed that in the lead up to the offending the accused’s compliance with his medication regime for the management of his schizophrenic symptoms was problematic. From mid-June 2023, the accused failed to attend for the administration of a depot injection. The accused began to “self-medicate” with Xanax (a benzodiazepine). The offending occurred on 20 July 2023. Following his arrest and charge, a urinalysis conducted on 24 July 2023 confirmed the presence of benzodiazepines, and did not detect amphetamine, cannabis, cocaine or opiates.
44․The expert reports considered the influence of the use of Xanax on the accused’s psychotic state at the time the offences occurred and concluded that while such use complicated the management of his symptoms, it was unlikely to have significantly contributed to the “re-emergence of psychotic symptoms”.
45․AP Carroll explained:
235․Based on all of the evidence, it is likely that he suffered a relapse of his underlying schizophrenia due to subtherapeutic antipsychotic plasma levels over the weeks prior to the day of the alleged offending.
236․Complicating the picture was his substance abuse which at that stage appears to have especially been focused on the very potent benzodiazepine Xanax. Although there was some methamphetamine use he had not used for a fortnight or so prior to the alleged offending and that does not appear to have been a relevant factor. I could find no evidence that his psychotic state on the relevant day was a "substance-induced psychosis"; rather, it was a relapse of a primary schizophrenic illness.
237․The exact relationship between his Xanax use and his psychotic symptoms appears to have been complex: it is likely that his Xanax use escalated in order to self-medicate his more intense psychotic symptoms. Conversely however it is also possible that at times he was suffering from acute benzodiazepine withdrawal symptoms which are known to result in psychophysiological overarousal and may therefore have further aggravated his psychotic symptoms and feelings of distress. Withdrawal from alcohol (which neurochemically acts in a very similar way to benzodiazepines), which he also appears to have been intermittently abusing, may have played a similar role.
46․Dr Le expressed the following opinion:
These symptoms are attributable to the longstanding psychiatric illness. Whilst he was recorded as being relatively free from positive symptoms of psychosis between May and June 2023, it is more likely than not that the non-administration of a dose of long-acting injectable antipsychotic in late June 2023, apparently due to his refusal, and the subsequent decompensation experienced by Mr Stacker, had a material contribution to the alleged offending. It is documented at assessment on 21 July, the day after the alleged offending, that Mr Stacker refused the most recent long-acting injection due on 28 June. The effect of this is that he likely had insufficient serum levels of antipsychotic treatment for at least three weeks before the alleged offending, and possibly longer.
Although Mr Stacker reported regular alcohol and benzodiazepine use, and an instance of methamphetamine use leading up the alleged offence, it is unlikely that these factors were a significant contribution to the re-emergence of psychotic symptoms.
47․It is beyond doubt that the accused has a mental impairment as defined by s 27 of the Criminal Code, namely schizophrenia. I am satisfied that the psychotic symptoms he was experiencing at the time the offending occurred were referrable to that mental impairment.
Not guilty by reason of mental impairment
48․Mental impairment and criminal responsibility are governed by s 28 of the Criminal Code which 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.
49․The expert reports differed as to the pathway for the common conclusion that, at the time of the offending, the accused’s mental impairment had an effect contemplated by s 28 of the Criminal Code. Dr Le determined that the accused did not know the conduct was wrong, while AP Carroll concluded that the accused’s capacity to control the conduct was “significantly impaired”.
50․Dr Le considered that the effect of the accused’s mental impairment at the time of the offending was such that he did not know that the conduct was wrong in that he could not reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, was wrong:
It is this writer’s opinion that Mr Stacker was labouring under a sufficiently serious defect of reason that it was impossible for him to have been making any of his decisions with a moderate degree of sense or composure.
Mr Stacker’s delusional beliefs that he was being persecuted by a Secret Society, referential delusions containing messages from number plates around him, derogatory hallucinations that were longstanding, and command hallucinations urging him on immediately before the armed robbery, had the combined effect of substantially impairing his capacity to reason that the alleged conduct was wrongful.
These symptoms are attributable to the longstanding psychiatric illness. Whilst he was recorded as being relatively free from positive symptoms of psychosis between May and June 2023, it is more likely than not that the non-administration of a dose of long-acting injectable antipsychotic in late June 2023, apparently due to his refusal, and the subsequent decompensation experienced by Mr Stacker, had a material contribution to the alleged offending. It is documented at assessment on 21 July, the day after the alleged offending, that Mr Stacker refused the most recent long-acting injection due on 28 June. The effect of this is that he likely had insufficient levels of antipsychotic treatment for at least three weeks before the alleged offending, and possibly longer.
…
In this writer’s opinion, Mr Stacker was unable to reason with a moderate degree of sense and composure that the alleged conduct was wrongful, and accordingly, he did not know that the conduct was wrong.
51․AP Carroll determined that the effect of the accused’s mental impairment was such that at the time of the offending he could not control his conduct:
244․On 20 July 2023 Mr Stacker was in a severely psychotic state due to a relapse of his schizophrenia. There was likely some degree of worsening in terms of restlessness, impulsivity and agitation due to benzodiazepine (and possibly alcohol) withdrawal, but I consider the impact of that to be minor compared to the clear effects of his various acute schizophrenic symptoms.
245․He was suffering from thought insertion symptoms whereby he was hearing other people’s thoughts inside his head.
246․Most notably, he was persistently hearing frightening voices which were both derogatory and threatening. He believed that the voices were going to arrange for bikie gang members to attack him in some way and hence was desperate to leave Canberra in order to avoid that fate. The only way he could think of achieving that was by carrying out the robbery to obtain some money. Ultimately the voices also encouraged him to carry out the robbery.
247․As well as the persecutory delusions relating to the voices he was suffering from referential delusions whereby he thought that a secret society was in some transmitting messages to him via numberplates, which he also found very distressing.
248․By that stage he had lost insight into the fact that these various mental experiences were likely secondary to schizophrenia and was genuinely frightened and intensely distressed by them.
249․In this state of mind, it is more likely than not that Mr Stacker was in a state of acute desperation and was significantly impaired in terms of self-control. His behaviours were motivated by acute fear, secondary to acute psychotic symptoms.
250․Notwithstanding the fact that the relevant behaviour involved some degree of purposive behaviour (such as fetching the fake gun and covering his face), for the reasons outlined in paragraphs 244-249, in my opinion because of his mental impairment (schizophrenia) it is more likely than not that Mr Stacker was unable to control his conduct that constituted all of the offending with which he is charged.
52․AP Carroll determined that the auditory command hallucinations and the intense mental experiences of the accused, saw his conduct motivated by an acute fear which significantly impairment his capacity for self-control.
53․An accused whose capacity for self-control is “significantly impaired” would not meet the test establishing an absence of criminal responsibility contained in s 28 of the Criminal Code. In R v Yeaman [2021] ACTSC 252; 294 A Crim R 510 at [132], Murrell CJ observed with respect to s 28(1)(c) of the Criminal Code, that a person who could not control their conduct “refers to ‘no ability to control conduct’ rather than ‘significantly reduced ability to control conduct’”. AP Carroll’s finding that the accused suffered from a ‘significant impairment in self-control’ at the time of the offending would not be sufficient to displace the presumption contained in s 28(5) of the Criminal Code.
54․In considering whether the accused knew the conduct was wrong, AP Carroll stated:
242․Notwithstanding Mr Stacker’s account that he did not stop to think about whether the behaviour would be considered wrongful, in my opinion he was able to retain the knowledge that driving away in a car that did not belong to him would be seen by other people as wrongful.
243․His account of the subsequent robbery and the behaviour during the robbery (including for example deliberately covering his face) clearly indicates that he knew that his conduct in demanding money whilst holding a “fake gun” would be considered by other people to be wrongful.
55․In his report, AP Carroll identified the symptoms displayed by the accused at the time of the offending including his impaired capacity to control himself, the presence of command hallucination, his acute state of fear and desperation. Dr Le similarly highlighted those symptoms as part of his own conclusion.
56․Dr Le addressed the difference in conclusions as between the two experts:
The only area where there is a difference of opinion relates to Mr Stacker’s lack of capacity to control his behaviour. A/Prof Carroll wrote that “in this state of mind, it is more likely than not that Mr Stacker was in a state of acute desperation and was significantly impaired in terms of self-control. His behaviours were motivated by acute fear, secondary to acute psychotic symptoms,” at [249].
The writer agrees with A/Prof Carroll’s assertion that Mr Stacker was experiencing a state of acute distress that was causally related to his mental impairment. The effect of this impairment was not, however, a deficit for self-control. In this writer’s opinion, the impairment related to Mr Stacker’s capacity to reason that the behaviour was wrongful.
There was otherwise no material difference between this writer’s opinion, and that of A/Prof Carroll, in relation to Mr Stacker’s eligibility for a defence of mental impairment.
57․This is the only area of “dispute” between the experts. The identification by both experts of identical symptomology at the time of the offending is compelling. In those circumstances, AP Carroll’s overall conclusion does not undermine Dr Le’s determination as to the effect of the accused’s mental impairment. The factors considered by AP Carroll to be demonstrative of significant impairment in the accused’s capacity for self-control are factors which are clearly capable of influencing an assessment of his capacity to reason with a moderate degree of sense and composure.
58․In determining whether the accused is not criminally responsible for the offending, I must consider whether the accused’s mental impairment had an effect set out at s 28(1) of the Criminal Code. Both reports, notwithstanding AP Carroll’s overall conclusion, support a finding that the accused did not know the conduct was wrong by reference to the s 28(2) of the Criminal Code. Having reviewed the expert medical reports and preferring the conclusion reached by Dr Le, I am satisfied on the balance of probabilities that the accused’s mental impairment, namely schizophrenia, had the effect that he did not know his conduct was wrong at the time the offending conduct occurred.
59․Accordingly, I am satisfied that the entry of a special verdict of not guilty because of mental impairment is appropriate for each charge on the indictment and the transferred charge.
Should the accused be detained in custody?
Serious offences
60․The orders available in circumstances where the entry of a special verdict is appropriate depend on the nature of the offence. It must first be determined if a charge that is the subject of a special verdict is a “serious offence”. The definition of “serious offence” is at s 300 of the Crimes Act.
serious offence means—
(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.
61․Aggravated robbery attracts a maximum penalty of 2,500 penalty units, imprisonment for 25 years or both. The offence of aggravated robbery is inherently violent and accordingly, is a serious offence.
62․The unauthorised possession of a prohibited firearm is an offence which attracts a maximum penalty of 500 penalty units, imprisonment for 5 years or both. The prosecution submitted that it ought to be considered a serious offence because of the maximum penalty and the circumstances that accompanied possession; the weapon was possessed insecurely in public, was visible to members of the public and caused sufficient alarm for police to be called. In this instance, I am satisfied that the offence should be properly regarded as a “serious offence”.
63․The characterisation of the aggravated robbery offence and the unauthorised possession of a prohibited weapon offence as serious offences, enlivens the application of s 324 of the Crimes Act. This section provides:
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.
64․Section 308 of the Crimes Act provides:
308 Criteria 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.
65․The offending was certainly serious, involving a threat of violence and the possession of a firearm which sensibly caused alarm. The victims of the aggravated robbery would have undoubtedly experienced fear and anxiety because of the conduct directed to them.
66․The parties highlighted that Mr Stacker’s condition has responded very positively to treatment. He has remained compliant with a medication regime designed to manage his mental impairment and has achieved a level of stability during a lengthy period in a custodial environment. AP Carroll recorded when he assessed Mr Stacker in July 2024:
229․…These symptoms do appear to respond well to antipsychotic medication and his schizophrenia is not “treatment-resistant”.
…
238․[F]rom the perspective of his schizophrenia, Mr Stacker is doing well. He describes however a markedly impoverished lifestyle within the prison and the current context is likely to be further entrenching his already significant institutionalisation.
67․Dr Le similarly reported that at the time of his assessment of Mr Stacker in December 2024, the accused was not experiencing referential symptoms, was compliant with the treatment regime available to him while in custody and voluntarily engaging with Custodial Health Services at the Alexander Maconochie Centre which included access to a psychiatrist. Mr Stacker has been in regular receipt of psychiatric medication while in custody.
68․Significantly, AP Carroll acknowledged that:
29․He accepts his diagnosis of schizophrenia and was able to give a very clear account of past psychotic symptoms that he, on reflection, was able to attribute to his mental illness. He told me that he is accepting all treatment that his [sic] recommended to him within the prison and indicated willingness to continue with that after release over the longer-term. His insight was thus very good.
69․The prosecution submitted that given the accused committed these offences against the backdrop of not taking his medication for a month prior to the offending, there is a basis for concern as to his capacity to self-manage his medication regime in the community. AP Carroll considered this issue and concluded:
229․…his capacity to independently manage his schizophrenia over the long term appears to be limited and he has required a high level of support from services.
70․Material tendered by counsel for Mr Stacker demonstrated that he has significant pro-social support now available to him in the community. Mr Stacker’s mother is very much engaged in his treatment and care and has a history of advocacy on his behalf in relation to his access to services in the community. She is well placed to do so with a strong professional background in community sector services that assist vulnerable members of the community. The role of Mr Stacker’s mother was identified by AP Carroll to be a positive factor. AP Carroll referred to clinical notes which record the accused’s mother to be the first person to recognise any decline in the accused’s mental health and she reports her concerns accordingly.
71․I observe here that in 2017 and 2019 Mr Stacker was sentenced in this Court in relation to multiple offences, some not dissimilar to the offences subject of these proceedings. He was not dealt with in those proceedings by the entry of a special verdict and while his mental impairment diagnosis was referenced, his use of drugs was determined to be the primary driver of his offending behaviour: R v Stacker [2017] ACTSC 240 and R v Stacker [2019] ACTSC 219. Counsel for Mr Stacker acknowledged his criminal history and tendered material which revealed that at the time of some of his prior criminal conduct, the relationship he relied upon with community mental health service providers had entirely broken down. A letter of apology from ACT Canberra Health Services to Mr Stacker’s mother was also tendered. The letter acknowledged the breakdown of that relationship as well as the need for Mr Stacker and his mother to be better supported. Mr Stacker is now supported by a community mental health team apparently better informed as to his needs and challenges.
72․A letter tendered authored by an employee of Liveability Australia outlined their engagement with Mr Stacker which includes contact seven days a week. An affidavit affirmed by Mr Stacker’s mother confirmed that he was entitled to three hours of daily support as part of a National Disability Insurance Scheme package. Mr Stacker has stable accommodation available to him in the community. While only five months of the 15 month period in custody is referrable to this offending, it is nonetheless a period of time within which Mr Stacker’s mental impairment has significantly stabilised.
73․The circumstances of the offending demonstrate some of the serious risks for Mr Stacker and for the community if his illness is not properly managed. He has now spent some considerable time under restraint, the benefit of which has been the achievement of stability in his mental health, alongside further development of Mr Stacker’s insight into his illness.
74․The mental impairment suffered by Mr Stacker is chronic and life-long. It will require management for the rest of his life.
75․There is no crystal ball that might provide a guarantee of the effect of Mr Stacker’s mental impairment on him into the future. It is a mental impairment that is likely to continue to have a substantial effect upon him and potentially his behaviour because of its very nature. That said, access to medical professionals and supports which facilitate his compliance with a medication regime are undoubtedly critical to mitigating any negative effects of his mental impairment. Mr Stacker has both substantial support and access to professionals in the community and has achieved a level of stability arising from his management in custody. His insight bodes well for his engagement in the community. A person with insight into their illness and who can acknowledge its influence on their thoughts and conduct, is more likely to engage with treatment and supports which assist them to manage that illness.
76․It is significant that Mr Stacker’s mental impairment is not “treatment resistant” and his mother has proven to be a powerful advocate on his behalf. The extent of Mr Stacker’s insight into his mental impairment and his ongoing compliance with medication are significant factors which effect a consideration of the likelihood of him presenting a danger to the community. All of these factors combine to reduce the likelihood that his behaviour will be adversely affected by his mental impairment and accordingly, the likelihood that he will be a danger to the community because of his mental impairment.
77․The release of Mr Stacker into the community so that he may be supported in the way I am satisfied is available to him is a “reasonable option” in all of the circumstances.
78․Having considered the criteria outlined in s 308 of the Crimes Act, I am satisfied that it is more appropriate to order that Mr Stacker submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order pursuant to s 324(2) of the Mental Health Act.
Non-serious offence
79․The accused has also been charged with the offence of driving a motor vehicle without consent, conceded by the prosecution in the circumstances to be a non-serious offence.
80․Section 323 of the Crimes Act deals with non-serious offences:
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.
81․For the reasons outlined above I am satisfied that it is appropriate to make an order in relation to this charge pursuant to s 323(3)(b) requiring Mr Stacker to 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 in relation to the offence of driving a motor vehicle without consent.
Transfer charge
82․Finally, I turn to the transferred charge CAN2023/7247, unlicenced driving, which arises from the same factual circumstances as the indicted offences.
83․The transferred offence in this matter is non-serious. Section 328 of the Crimes Act applies and gives discretion as to whether to make an order after the entry of a special verdict for a non-serious offence. The court “may” make an order detaining an accused or requiring them to submit to the jurisdiction of the ACAT. The provision also empowers the court to make “any other order it considers appropriate”: s 328(1)(b).
84․The prosecution submitted that the appropriate outcome is for the charge to be dismissed. In light of the maximum penalty for the offence, the circumstances which attended to its commission and the period that Mr Stacker has spent in full-time custody since the offence occurred as well as the outcome for the serious offences, I am satisfied that the non-serious transferred charge should be dismissed.
Orders
85․I make the following orders:
(1)A special verdict of not guilty because of mental impairment is entered for the following offences:
a) Count 1: CC2023/7244 – aggravated robbery, contrary to s 310(b) of the Criminal Code 2002 (ACT).
b) Count 2: SCCAN2024/29 – unauthorised possession or use of a firearm, contrary to s 43(1) of the Firearms Act 1996 (ACT).
c) Count 3: CC2023/7245 – drive motor vehicle without consent, contrary to s 318(2) of the Criminal Code 2002 (ACT).
(2)A finding of not guilty because of mental impairment is entered for transferred charge CC2023/7247 and the charge is dismissed.
(3)In relation to CC2023/7244, SCCAN2024/29 and CC2023/7245 the accused is to submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic order under the Mental Health Act 2015 (ACT).
| I certify that the preceding eighty-five [85] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: Date: |
ANNEXURE A – AGREED DIRECTIONS
Onus and standard of proof
1․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
2․To enter a verdict of not guilty because 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.
3․A “mental impairment” includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
4․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 (such as drug or alcohol use).
5․However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
Fact finding
6․The facts that I find must be based on the evidence. In this case, that includes the evidence included in the Agreed Tender Bundle, which was tendered without objection.
7․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
8․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
9․In this case, reports of Associate Professor Carroll and Dr Le were tendered as expert evidence.
10․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.
11․In the present case, the 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.
12․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.
13․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
14․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 Act1900 (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 offence charged, including both the physical and fault elements (although noting 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”). 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 OF THE OFFENCES
Aggravated robbery – contrary to s 310 Criminal Code 2002 (ACT)
1․The accused appropriates something;
2․The accused intends to appropriate something;
3․The something that is appropriated is ‘property’;
4․The accused is reckless as to the fact that what is appropriated is property;
5․The property belongs to another person;
6․The accused is reckless as to the fact that the property belongs to another person;
7․The appropriation is dishonest according to the standards of ordinary people;
8․The accused knows the appropriation is dishonest according to the standards of ordinary people;
9․At the time the accused appropriates the property, the accused intends to permanently deprive the person to whom the property belongs of the property;
10․When committing the theft, or immediately before committing the theft, or immediately after committing the theft, the accused uses force on someone else or threatens to use force then and there on someone else;
11․The accused intends to commit theft or escape from the scene when using force or threatening to use force;
12․The accused has an offensive weapon with him at the time of committing the robbery; and
13․The accused intends to have an offensive weapon with him at the time of committing the robbery.
Unauthorised possession or use of a firearm – contrary to s 43(1)(a)(iii) Firearms Act 1996 (ACT)
1․The accused possesses or uses 1 or 2 things;
2․The accused intends to possess or use 1 or 2 things;
3․The thing possessed or used is a firearm;
4․The accused is reckless as to whether the thing possessed or used is a firearm;
5․The accused is not authorised by licence or permit to possess or use each of the firearms; and
6․The accused is reckless as to whether he / she is not authorised by licence or permit to possess or use each of the firearms.
Drive motor vehicle without consent – contrary to s 318(2) Criminal Code 2002 (ACT)
1․The accused drove a motor vehicle;
2․The accused intended to drive the motor vehicle;
3․The motor vehicle belonged to another person;
4․The accused was reckless as to the fact that the motor vehicle belonged to another person;
5․The driving was dishonest according to the standards of ordinary people;
6․The accused knew the driving was dishonest according to the standards of ordinary people;
7․The motor vehicle had been dishonestly taken from the person to whom it belonged without that person’s consent; and
8․The accused was reckless as to the fact that the motor vehicle had been dishonestly taken from the person to whom it belonged without that person’s consent.
Drive unlicenced – contrary to s 31(1) Road Transport (Driver Licensing) Act 1999 (ACT)
1․The defendant drove a motor vehicle;
2․On a road or road related area;
3․The defendant was not the holder of an Australian Driver’s licence; and
4․The defendant was not exempted by regulation from holding an Australian Driver’s licence.
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