R v Aranyi - [2013] ACTSC 169

The accused is not guilty because of mental impairment.

The accused be detained in custody until the ACT Civil and Administrative Tribunal orders otherwise.

Proceedings stood over to 9:30am on 21 August 2013 for any further evidence and submissions as to the sentence that would have been imposed had the accused been found guilty of the charge.

On 2 April 2012 the accused, Gabor Laslo Aranyi, killed his mother, Ms Otillia Aranyi, by strangling her. The fact that the accused killed his mother and the circumstances in which he killed her are not in dispute. Those circumstances are set out in the Crown’s case statement (Exhibit A). Taken from that statement, supplemented by the report dated 26 July 2012 of Dr SH Allnutt, consultant forensic psychiatrist (Exhibit C), this is what happened.

At about 2 pm on 2 April 2012 the deceased reminded the accused that he had an appointment with the Woden Mental Health Service to keep. He did not intend to keep the appointment. He went into the bathroom of the home in which they lived together to smoke a cigarette. She followed him into the bathroom and tried to pull him out of the bathroom by taking one of his arms. After about 15 minutes he left the bathroom and went into the kitchen. She followed him into the kitchen and tried to push him out of the kitchen. As she was within arm’s reach of him, he grabbed her around her neck with both of his hands, then he tripped her so that she fell on to the kitchen floor and then he applied continuous pressure to her throat with both of his hands until she stopped breathing. Then he left her where she had fallen and he went to the bathroom and had a shower. At some time later he returned to the kitchen with a pillow and he placed the pillow under her head.

At 8.49 pm ACT Ambulance Service sent an ambulance to the home in which the deceased and the accused had lived together in response to the accused’s telephone call to the service for help for the deceased.

At 8.56 pm two paramedic ambulance officers arrived in the ambulance at the accused’s home. They were taken to the home’s kitchen by the accused where they found the body of the deceased lying on the kitchen floor, with a pillow under her head. On examination, one of the paramedic ambulance officers considered her to be deceased. The other paramedic ambulance officer called police.

At some time between 8.56 and 9.45 pm police arrived at the accused’s home. After arrival, police interviewed the accused. The interview was recorded. I have not been given a transcript of the interview.

At 9.45 pm police took the accused from his home to the City Police Station. At the police station, he was examined by a forensic medical officer and considered fit to be interviewed. Again, police interviewed the accused. This interview, like the earlier one, was recorded. I have not been given a transcript of this interview.

At about 1.00 am on 3 April 2012 a doctor of ACT Health attended at the accused’s home and at 1.10 am, after examining the body of the deceased, declared the deceased’s life to be extinct.

At 3.17 am the accused was charged with the murder of the deceased by manual strangulation, contrary to section 12 of the Crimes Act 1900 (ACT).

Later on 3 April 2012 the accused was taken before a magistrate in the Magistrates Court and an order, pursuant to section 309(1) of the Crimes Act 1900 (ACT), was made that the accused be taken to an approved health facility for treatment for his mental disorder. Accordingly, the accused was taken to and admitted into the adult mental health unit of the Canberra Hospital.

At some time between 3 April 2012 and 17 April 2012 the ACT Civil and Administrative Tribunal ordered that the accused be subject to a psychiatric treatment order. I have not been given a copy of this order.

On 17 April 2012 the accused was interviewed by Dr J Kasinathan, forensic psychiatrist, and Ms G Sharp, forensic psychologist, at the adult mental health unit for an assessment of his mental health. After referring to his personal history, his medical, particularly psychiatric, history, his alcohol and drug use history and his account of what he had done, Dr Kasinathan and Ms Sharp concluded that:

“Mr Aranyi is a 32 year old Australian male who does have a serious mental illness. The presence of a mental illness was demonstrated by the presence of delusions, hallucinations, serious disturbance of thought form and behaviour indicating the presence of the above symptoms.

From the information available to the writers, it is the writers’ opinion within reasonable medical certainty that Mr Aranyi has a psychiatric diagnosis, as per DSM IV TR American Psychiatric Association 2000, consistent with paranoid schizophrenia. Given the persistence of psychotic symptoms, which in retrospect have been present for at least nine months, coupled with the relative absence of substances since November 2011, there are no reasonable grounds to maintain that Mr Aranyi has a substance induced psychosis.

At the material time of the index offence, Mr Aranyi was under the influence of psychotic symptoms and delusional beliefs which influenced his judgment and likely contributed to the alleged offence. The content of his delusional beliefs involved his mother. He believed that she was possessed by the Devil and he was a messenger of God doing God’s bidding. In the writer’s opinion, Mr Aranyi has the mental illness defence open to him”.

On 15 June 2012 and again on 13 July 2012 the accused was interviewed by Dr SH Allnutt, forensic psychiatrist, for an assessment of his mental health. In a lengthy and detailed report, Dr Allnutt, after reciting excerpts from the psychiatric reports and records from 20 December 1999 to 1 April 2012 related to the offender, concluded that:

“In my opinion, at the time when I saw the defendant, he was manifesting symptoms consistent with a chronic paranoid schizophrenia. He has a long history of contact with mental health services with multiple presentations characterised by persecutory delusions, delusions of misidentification and grandiose delusions. In addition to that, he presented to me with form of thought disorder, in the form of a mild poverty of thought with flat affect. He has pursued a relatively socially isolated lifestyle. He has not pursued meaningful gainful employment. He has remained relatively, in my view, isolated and dependent on his mother through his life as a consequence of his mental illness.

...

at this point, I would not diagnose him with a personality disorder. I noted others have diagnosed him with a schizoid personality disorder, however, in a person with schizophrenia, one would make a preferential diagnosis of schizophrenia, rather than underlying diagnosis of a schizoid personality disorder. It is likely that his mental illness has been aggravated by ongoing substance abuse and probably exacerbated by that.

At the material [time] that the alleged offending occurred, the defendant was suffering a chronic psychiatric illness, a condition of a severe nature; that being active symptoms of paranoid schizophrenia characterised by delusions of persecution and misidentification, (believing that his mother was the Devil and in some way harming him), ideas of reference (seeing signs in the colour of her car, 666 on the radio, messages from the television, reading meaning into shapes of clouds), grandiose delusions, (he believed that he could influence events such as both human and natural events and disasters, that he was a messenger of God). Given his presentation when he saw me, manifesting some mild symptoms of thought blocking or poverty of thought, and it is probable that he was also experiencing thought process problems at the material time that the alleged event as manifested by communication difficulties.

Thus, there are reasonable grounds to conclude that at the material time that the alleged offending occurred, the defendant was manifesting a mental impairment.

In my view the mental impairment was not of a nature or severity that it impacted on his capacity to know the nature and quality of his actions, that is, that he likely understood and he had the capacity to understand that strangling somebody could potentially harm them and probably had an awareness that strangling somebody would potentially kill them.

...

While he is unable to provide a clear account of his thought processes at the time that he strangled his mother, and is somewhat vague as to his underlying motivation, I believe that having regard to the information that he has provided about his internal thought processes and perceptions and thoughts about himself and his environment to draw conclusions, it is possible he saw himself as being right in acting in his manner that he did as a consequence of a right afforded him by a deity such as God, (a delusional and moral justification) and he was engaging with someone that he perceived as inherently evil.

It is also possible that his response was impulsive and that at the material time, he reacted, driven by such strong feelings, longstanding feelings of resentment and frustration towards his mother that had built up over time as a consequence of his underlying delusional beliefs about her. On this basis, the defendant could be regarded as having a mental illness that caused him to lose control of his actions.

...

Overall, on balance of probabilities, I believe there are reasonable grounds to conclude that he has a defence of mental impairment.”

In due course, on 25 October 2012 the accused appeared before a Magistrate in the Magistrates Court for a case management hearing in respect of the proceedings. On his being arraigned with the charge of murdering the deceased, he pleaded not guilty to the charge because of mental impairment. He was committed to this court to stand his trial and he was remanded in prison, bail refused pending his trial. He has remained in prison since his arrest on 2 April 2012.

Then, on 17 May 2013 the accused appeared before me in this court on the Crown’s pre-trial application for an order that the trial be a judge alone trial rather than a judge and a jury trial. I was given the Crown’s case statement (Exhibit A), the report of Dr Kasinathan and Ms Sharp (Exhibit B), and the report of Dr Allnutt (Exhibit C). The reason for the Crown’s application is that the offence of murder is an “excluded offence” (see Schedule 2 of the Supreme Court Act 1933 (ACT)) and must, prima facie, be tried by a judge with a jury (see sections 68A and 68B of the Supreme Court Act 1933 (ACT)), yet section 321 of the Crimes Act 1900 (ACT) provides that, if an accused person pleads not guilty because of mental impairment to an indictable offence before the Supreme Court, the court must enter a special verdict that the accused person is not guilty of the offence because of mental impairment if the court considers the verdict to be appropriate and if the Crown agrees to the entering of the verdict.

Section 68A of the Supreme Court Act 1933 (ACT) is headed “Trial by jury in criminal proceedings” and provides that:

Criminal proceedings shall be tried by a jury, except as otherwise provided by this part.

Section 68B of the Act is headed “Trial by judge alone in certain criminal proceedings” and provides that:

(1) A criminal proceeding against an accused person for an offence other than an excluded offence must be tried by a judge alone if:

(a) the person elects in writing to be tried by a judge alone; and

(b) the person produces a certificate signed by a legal practitioner stating that:

(a) the legal practitioner has advised the person in relation to the election; and

(b) the person has made the election freely; and

(c) the election and certificate are filed in the court before:

(a) the person, or the person’s legal representative, knows the identity of the judge for the person's trial; and

(b) any time limit prescribed under the rules; and

(d) if there is more than 1 accused person in the proceeding:

(a) each other accused person also elects to be tried by a judge alone; and

(b) each other accused person’s election is made in relation to all offences for which that person is to be tried in the proceeding; and

(c) none of the offences for which any other accused person is to be tried is an excluded offence.

(2) An accused person who elects to be tried by a judge alone may, at any time before the person is arraigned, elect to be tried by a jury.

(3) If an accused person makes and then withdraws an election, the person may not make another election.

(4) In this section:

“excluded offence” means an offence against a provision mentioned in an item in schedule 2 (Trial by judge alone - excluded offences), part 2.2, column 3 of an Act mentioned in the item, column 2.

Schedule 2 to the Act is headed “Trial by judge alone - excluded offences” and among many others, murder, contrary to section 12 of the Crimes Act 1900 (ACT), is an “excluded offence”.

However, Part 13 of the Crimes Act 1900 (ACT) is headed “Unfitness to plead and mental impairment”. Division 13.3 is part of Part 13 and it is headed, “Supreme Court - special verdict of not guilty because of mental impairment”. This Division contains sections 321 to sections 324. These sections provide that:

321 Supreme Court - plea of not guilty because of mental impairment

(1) This section applies if an accused please 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.

322 Explanation to jury

If, on the trial by jury of an accused charged with an indictable offence, evidence is adduced that tends to establish that the accused is entitled to a special verdict of not guilty because of mental impairment, the court shall explain to the jury the verdicts that may be returned at the trial and the legal and practical consequences of those verdicts.

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 orders the Supreme Court may make under subsections (1) and (2) include the following:

(a) that the accused be detained in custody until the ACAT orders otherwise;
(b) that the accused submit to the jurisdiction of the ACAT to enable the ACAT to make a mental health order.

324 Supreme Court orders following special verdict of not guilty because of mental impairment - serious offence

(1) If an accused is charged with a serious offence and a special verdict of not guilty because of mental impairment is returned or entered, the Supreme Court shall order that the accused be detained in custody until the ACAT orders otherwise unless, in consideration of the criteria for detention in section 308, it is satisfied that it is more appropriate to order that the accused submit to the jurisdiction of the ACAT to enable the ACAT to make a mental health order.

(2) If the Supreme Court is satisfied under subsection (1), it shall make an order accordingly.

In R v Smith (2012) ACT SC146, Refshauge J said of section 321 that:

“This is, so far as I can tell, a unique provision which is not replicated in any other Australian jurisdiction. Further, so far as I have been able to find, there are no cases which have dealt with this provision despite its introduction into the Crimes Act in 1994 then as section 428(O). At that stage, there was no mention of it in the presentation speech and the explanatory memorandum to the Crimes (Amendment) Bill 1994 (ACT) effectively paraphrased it as follows at [7]:

New section 428(O) covers a plea of not guilty by reason of mental illness and provide that a verdict can be entered by the court if it considers the verdict appropriate and the prosecution agrees to the entering of the verdict. This provision means a consent verdict can be entered.”

Then the Criminal Code 2002 (ACT) comes into play. Chapter 2 of the Code is headed “General principles of criminal responsibility”. Chapter 2 contains sections 6 to 67. Section 7 provides that:

Criminal Code 2002 - Sect 7

Application - ch 2

This chapter applies to all offences against this Act and all other offences against territory laws.

and section 8 provides that:

Criminal Code 2002 - Sect 8

Delayed application of ch 2 to certain offences

(a) Despite section 7, the provisions of this chapter (other than the applied provisions) do not apply to a pre-2003 offence unless:

(a) the offence is omitted and remade (with or without changes); or

(b) an Act or subordinate law expressly provides for the provisions to apply to the offence.

(b) To remove any doubt, a power to make subordinate laws for an Act includes power to make subordinate laws applying this chapter to, or displacing the application of subsection (1) to, offences against subordinate laws under that Act.

(c) In interpreting the applied provisions in relation to an offence, the other provisions of this Act may be considered.

(d) In this section:

“omitted and remade” - an offence is not omitted and remade if it is amended without being omitted and remade.

pre-2003 offence means an offence in force before 1 January 2003.

(e) This section expires on the default application date.

and section 10, which is headed “Applied provisions and default application date” defines “applied provisions” to include, inter alia, Division 2.3.2. Accordingly, Division 2.3.2 applies to the offence of murder.

Division 2.3.2 of the Criminal Code is headed “Lack of capacity - mental impairment”. This Division contains sections 27 to 29. These sections provide that:

Criminal Code 2002 - sect 27

Definition - mental impairment

(a) In this Act:

“mental impairment” includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.

(b) 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.

(c) However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.

Criminal Code 2002 - sect 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.

(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.

(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.

Criminal Code 2002 - sect 29

Mental impairment and other defences

(1) 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.

(2) If the trier of fact is satisfied that a person carried out conduct because of a delusion caused by a mental impairment, the delusion itself cannot be relied on as a defence, but the person may rely on the mental impairment to deny criminal responsibility.

In R v Steurer (2009) ACT SC150, a case before the introduction of Schedule 2 into the Supreme Court Act 1933 (ACT), Penfold J said that:

[48]. Under s 321 of the Crimes Act, where an accused pleads not guilty because of mental impairment to an indictable offence before the Supreme Court, the 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.

[49]. Thus the necessary steps in this trial are as follows. First, the prosecution must prove Mr Steurer’s conduct, being the killing of his father but not including any mental element of the offence, beyond reasonable doubt. If this is not done, then Mr Steurer is entitled to an ordinary verdict of not guilty. If it is done, the question then becomes Mr Steurer’s responsibility for that conduct. Unless the prosecution has already done so, the defence may then point to evidence suggesting a reasonable possibility that Mr Steurer was suffering from a mental impairment such that he cannot be held criminally responsible for his conduct. If:

(a)     evidence suggesting a reasonable possibility of a mental impairment is identified; and
(b)     I am satisfied on the balance of probabilities that Mr Steurer was suffering from such a mental impairment; and
(c)     I consider appropriate a verdict of not guilty because of mental impairment; and
(d)     the prosecution agrees to the entering of that verdict;

then I must enter a special verdict that Mr Steurer is not guilty because of mental impairment.

I agree, with respect, with what her Honour said.

In R v Smith, supra, Refshauge J said, as to the procedure under section 321 of the Crimes Act 1900 (ACT), that:

[11]. As to the procedure and the obligation of the court, I am left to consider the approach in somewhat of a vacuum. Nevertheless, it seems to me that the following is appropriate.

[12]. In my view, the accused must be arraigned and the issue only arises if he or she then enters the plea contemplated under section 321(1). That is quite clear from the terms of the section...

[13]. The prosecutor’s agreement to a special verdict should then be invited or announced. I see no reason why that needs to be in writing though the prosecution may wish to do that...

[14]. The question then is what the court needs to do in order to come to the conclusion that the special verdict is appropriate. It seems to me that this would require the court to have some information about the facts giving rise to the offence.

…

[19]. The other aspect seems to be the evidence of mental impairment. The court should be provided with such expert evidence as would satisfy it that the accused is mentally impaired sufficient to meet the criteria in section 28 of the Criminal Code...

I agree, with respect, with what his Honour said.

Following the introduction of Schedule 2 into the Supreme Court Act 1933 (ACT), there appears to be tension between section 68A and 69B and Schedule 2 of the Supreme Court Act 1933 (ACT) on the one hand and section 321 of the Crimes Act 1900 (ACT) on the other hand. Thus, the question is this, if an accused person is charged with an “excluded offence”, as specified in Schedule 2 to the Supreme Court Act 1933 (ACT), and the accused person enters a plea of not guilty because of mental impairment, pursuant to section 321 of the Crimes Act 1900 (ACT), to the charge, must there be a trial by a judge and a jury pursuant to section 68A of the Supreme Court Act 1933 (ACT) or may the Supreme Court deal with the proceedings pursuant to section 321 of the Crimes Act 1900 (ACT)?

Today, 8 August 2013, the accused appeared before me for arraignment with the charge of murder. On his being arraigned with the charge, he pleaded not guilty to it because of mental impairment. So the question raised by the Crown’s pre-trial application falls to be considered.

If a person charged on indictment for having committed an offence which is not an “excluded offence” appears in the Supreme Court for arraignment, one or other of these things may happen:

(1) the person may object to the indictment by demurrer, claiming that it is bad in law, for example, that it does not disclose an offence known to law (see generally R v Glynn (1994) 33 NSWLR 139; 71 A Crim R 537), in which event the issue raised by the demurrer will be decided by a judge;

(2) the person may apply to quash the indictment, claiming that the court does not have jurisdiction to try the offence or that the indictment causes prejudice or embarrassment or that the indictment is an abuse of process, in which event the issue raised by the application will be decided by a judge;

(3) the person may plead autrefois convict or autrefois acquit, claiming to have been lawfully convicted or acquitted, as the case may be, of the offence charged in the indictment, in which event the issue of whether the person has been so convicted or acquitted will be decided by a judge;

(4) the person may plead not guilty to the charge, in which event there would be a trial by a judge and a jury or, if the person elected to be tried by a judge without a jury, there would be a trial by a judge alone;

(5) the person may plead guilty to the charge, in which event there would not be a trial but there would be a sentencing proceedings before a judge; or

(6) the person may plead not guilty because of mental impairment, in which event, if the Crown did not agree to a verdict of not guilty because of mental impairment, or if the court did not consider that verdict to be appropriate, there would be a trial by a judge and a jury or, if the person elected to be tried by a judge without a jury, there would be a trial by judge alone, but, if the Crown agreed to a verdict of not guilty because of mental impairment and the court considered that verdict to be appropriate, there would not be a trial and the court would enter a special verdict of not guilty because of mental impairment.

This begs this question: What happens if a person charged on indictment for having committed an “excluded offence” pleads not guilty because of mental impairment? Must there be a trial by a judge and a jury or may the judge alone deal with the proceedings?

The first point to be made is that section 321 of the Crimes Act 1900 (ACT) applies when an accused person pleads not guilty because of mental impairment to an indictable offence before the Supreme Court. The scope of the section is very wide. The section applies to all indictable offences charged on indictment before the Supreme Court. An “excluded offence” is not excluded from the scope of the section by the words of the section or the words of Schedule 2. If Parliament wished to exclude an “excluded offence” from the scope of the section, all that Parliament needed to do was to insert the words “other than an excluded offence” after the word “offence” in the section.

The second point to be made is that section 321 of the Crimes Act 1900 (ACT) was in operation before Schedule 2 was introduced into the Supreme Court Act 1933 (ACT). It must be taken that Parliament knew of the scope and operation of section 321 of the Crimes Act 1900 (ACT) and it must be assumed that Parliament did not intend to limit the scope and operation of the section by Schedule 2 of the Supreme Court Act 1933 (ACT).

The third point to be made is the distinction between sections 321 and 322 of the Crimes Act 1900 (ACT). Section 321 of the Crimes Act 1900 (ACT) applies when an accused person pleads not guilty because of mental impairment on arraignment for an indictable offence, in which case, if the required conditions are satisfied, the judge must enter a special verdict of not guilty because of mental impairment, whereas section 322 applies if, when during a trial by a judge and a jury of an accused charged with an indictable offence, evidence is adduced which tends to establish that the accused is entitled to a special verdict of not guilty because of mental impairment, the judge must explain to the jury the verdicts that may be returned in the trial and the legal and practical consequences of those verdicts with the jury returning the verdict, whether guilty, not guilty, or not guilty because of mental impairment. It is clear that “the Supreme Court” and “the court” in section 321 does not mean a judge with a jury.

In my opinion, if a person charged on indictment before the Supreme Court pleads not guilty to the charge, whether or not the offence is an “excluded offence” specified in Schedule 2 of the Supreme Court Act 1933 (ACT), because of mental impairment, the court, that is the judge, must, that is, is required to, enter a special verdict of not guilty because of mental impairment if the court considers that verdict to be appropriate and the prosecution, that is the Crown, agrees with the entering of that verdict.

As to whether the accused at the time when he killed his mother was suffering from a mental illness, I must decide whether:

(1) he did not know the nature and quality of his conduct, that is, in other words, he did not know what he was doing; or

(2) he did not know that his conduct was wrong because he could not reason with a moderate degree of sense and composure about whether his conduct, as seen by a reasonable person, was wrong, that is, in other words, he could not distinguish between right and wrong; or

(3) he could not control his conduct, that is, in other words, he did not have any real control over what he was doing.

I accept the opinion of Dr Kasinathan and Ms Sharp and the opinion of Dr Allnutt and I consider that, at the time when he killed his mother, the accused did not know that what he was doing was wrong and that, at that time, he did not have any real control over what he was doing.

I consider, having regard to the opinion of Dr Kasinathan and Ms Sharp and the opinion of Dr Allnutt that a verdict of not guilty because of mental illness is an appropriate, indeed the only appropriate, verdict. I note that the Crown by the Crown Prosecutor agrees to the entering of a verdict of not guilty by reason of mental impairment.

Accordingly, I enter a verdict that the accused is not guilty of the offence of murder of his mother committed on 1 April 2012 because of mental impairment.

As required by section 324(1) of the Crimes Act 1900 (ACT), I order that the accused be detained in custody until the ACT Civil and Administrative Tribunal orders otherwise, as I am not satisfied that it is more appropriate to order that he submit to the jurisdiction of the Tribunal to enable it to make a Mental Health Order.

Having made an order pursuant to section 324 of the Crimes Act 1900 (ACT), I am required to do two things:

(1) to indicate whether, if the accused had not been acquitted, I would have imposed a sentence of imprisonment upon him for the offence (see section 302(1)); and

(2) to nominate the term in respect of the subject offence that is the best estimate of the sentence that I would have considered appropriate if the accused had been found guilty of the offence (see section 302(2)).

As to the question whether I would have imposed a sentence of imprisonment upon the accused had he not been acquitted of the offence, I can say without hesitation that I would have imposed a sentence of imprisonment.

As to the question what would have been the sentence that I would have imposed upon the offender had he been found guilty of the offence, I realise that, in answering this question, I would consider the evidence and submissions that I would consider if I were determining the sentence to be imposed upon an offender in normal criminal proceedings (see section 307 of the Crimes Act 1900 (ACT)). Although, as I have said, I have the Crown’s case statement (Exhibit A), the report of Dr Kasinathan and Ms Sharp (Exhibit B) and the report of Dr Allnutt (Exhibit C), I may not have all of the evidence upon which the Crown wishes to rely or the evidence upon which the accused wishes to rely, so I stand over this question to 9.30 am on 21 August 2013 for any further evidence and submissions.
I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.
Associate:
Date: 20 August 2013

Counsel for the applicant:
Solicitor for the applicant:
Counsel for the respondent:
Solicitor for the respondent:
Date of hearing:  17 May 2013
Date of judgment:  8 August 2013

Citations

R v GABOR LASLO ARANYI [2013] ACTSC 169 (8 August 2013)

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