R v Bartel

[2008] VSC 423

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1744 of 2008

THE QUEEN

v

LEE MAREE BARTEL

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 October 2008
DATE OF RULING:	6 October 2008
CASE MAY BE CITED AS:	R v Bartel
MEDIUM NEUTRAL CITATION:	[2008] VSC 423

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Criminal law – s 28 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 – nominal term of supervision order for attempted murder.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M. Lincoln	Office of Public Prosecutions
For the Defendant	Mr P.J. Morrissey	Clarebrough Pica

HIS HONOUR:

1. I have directed a verdict of acquittal in favour of Ms Bartel on attempted murder (s 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (“the Act”)) and have ordered that she is liable to supervision (s 23(a) of the Act) and ordered that she is committed to custody in an appropriate place (s 26(2)(a) of the Act). I am obliged to set a nominal term for the duration of the supervision order.

1. Mr Lincoln for the Crown submitted that as a result of s 28(1) of the Act (set out below), attempted murder would carry a nominal period equivalent to the maximum term of imprisonment available for the offence, namely 25 years (s 321P of the Crimes Act 1958). That argument is based on the proposition that in s 3 of the Sentencing Act1991, serious offences included the offence of murder.

1. As a catch-all, in that section of the Sentencing Act1991 the following paragraph appears:

(f)  “An offence of conspiracy to commit, incitement to commit or attempting to commit, an offence referred to in any of the preceding paragraphs;”

1. It was submitted that sub-paragraph (f) would “pick up” the offence of attempted murder and thus compel the interpretation contended for.

1. Mr Morrissey for Bartel submitted that s 28 could be interpreted so that s 28(1)(c) applied. It is useful to set out the whole of s 28(1):

28 Nominal term of supervision order

(1) The court must set a nominal term of a supervision order in accordance with the following table—

Offence person found not guilty of because of mental impairment or found at special hearing to have committed

Nominal term

(a) murder or treason

25 years

(b) a serious offence (within the meaning of the Sentencing Act 1991) other than—

(i) murder; or

(ii) an offence against section 20 of the Crimes Act 1958 (threats to kill)

(c)  any other offence for which there is a statutory minimum term of imprisonment

(d) any other offence punishable by imprisonment but for which there is no statutory maximum term

a period equivalent to the maximum term of imprisonment available for the offence

a period equivalent to half the maximum term of imprisonment available for the offence

a period specified by the court

1. It became clear in argument that there are a number of anomalies that arise pursuant to the interpretation pressed by Mr Lincoln. For instance, the nominal term for conspiracy to murder or incitement to murder would be life. These two offences would be the only offences for which “life” was the nominal term. No other offence which carries life imprisonment is a serious offence within the meaning of s 3 of the Sentencing Act 1991[1] but would be anomalous, in their own right, because they do fit within s 28(1)(c)or (d).

   [1]For example, s 71 of the Drugs Poisons and Controlled Substances Act 1981.

1. However when regard is had to the fact that in s 28(1)(b) of the Act, murder has been excluded from the definition of a serious offence for the purpose of s 28(1) of the Act, then it must follow that so do those offences that would ordinarily be caught by (f) of the definition of “serious offence” pursuant to s 3 of the Sentencing Act 1991.  If murder itself is not a “serious offence” for these purposes then incitements, conspiracies and attempts are not either.  It also follows that the anomaly presented by the offences mentioned above also applies to incitement and conspiracy to commit murder.

1. The appropriate nominal term for attempted murder is twelve and a half years.

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CERTIFICATE

I certify that this and the 2 preceding pages are a true copy of the reasons for Ruling of Coghlan J of the Supreme Court of Victoria delivered on 6 October 2008.

DATED this fifteenth day of October 2008.

Associate