R v Behari - [2011] SASC 111

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v BEHARI
[2011] SASC 111
Reasons for Sentence of The Honourable Justice Kourakis
26 May 2011
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - MENTAL HEALTH, HOSPITAL SECURITY ORDERS, ETC - GENERALLY
Defendant mentally unfit to stand trial - whether in fixing a limiting term Court must proceed as if sentencing for offence constituted by objective elements in ignorance of mental state of accused - whether antecedents should be considered - whether time in custody taken into account.
Held: in fixing a limiting term Court must not take into account mental state of accused at time of offending - antecedents must be considered - time in custody should be taken into account.
Acts Interpretation Act 1915 (SA) s 19; Criminal Law Consolidation Act 1935 (SA) s 269H, s 269N(3), s 269O, referred to.
R v Sumner [2010] SASC 43, applied.
R v Bober (No 3) (2010) 107 SASR 165, not followed.
Veen v The Queen (1979) 143 CLR 458; R v McLaren (2009) 105 SASR 29, considered.

R v BEHARI
[2011] SASC 111
Criminal

KOURAKIS J: Demal Behari, I have found that you are mentally unfit to stand trial. I have also found that you engaged in conduct constituting the objective elements of three offences of attempted murder, an offence of causing serious harm, an offence of endangering life and an offence of creating a risk of bodily harm. The conduct occurred over a period of about 30 minutes in which residents of and visitors to Snowtown were terrorised. It has left the victims and their families and many others in the township permanently traumatised.
Shortly after midday on 1 April 2009 you were in Snowtown in your four-wheel drive motor vehicle. You saw Janet Teague and her mother, Mavis Kerley, in a Toyota Camry. You initially drove past them but then returned, stopping your vehicle across from where they were parked. You stared at them for a while before again driving off. Ms Teague and Ms Kerley then drove out of Snowtown. They were travelling at about 110 kilometres per hour when Janet Teague saw you following her in your four-wheel drive. You sped up and drove your vehicle into the rear of Ms Teague’s Camry. Ms Teague pulled over to the left-hand side of the road and you pulled up your four-wheel drive in front of the Camry. Mavis Kerley and Janet Teague got out of the car to assess the damage. You approached them saying “you follow me”. You then ran towards Ms Kerley holding a knife. You slashed the knife once across her neck causing her to fall backwards on to the ground. You then ran towards Ms Teague and slashed her throat several times. She attempted to fight you off using her arms and legs. When you desisted both Ms Teague and Ms Kerley ran into the car. They drove into the Snowtown Police Station arriving there at about 1:20 pm.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Behari

Details

AGLC: R v Behari [2011] SASC 111
Case: [2011] SASC 111
Decision Date: 26 May 2011

CaseChat Overview and Summary

The case of R v Behari involved the defendant, who was found to be mentally unfit to stand trial for a criminal offence. The court was required to determine appropriate sentencing orders, including custodial and hospital security orders. The primary issue before the court was whether, in fixing a limiting term, it must proceed as if sentencing for the offence constituted by its objective elements, in ignorance of the mental state of the accused. Additionally, the court had to consider whether antecedents should be taken into account and if time already spent in custody should be factored into the sentencing decision.

The court held that in determining a limiting term, the mental state of the accused at the time of the offence should not be considered. Instead, the court must focus on the objective elements of the offence. The court found that antecedents must be considered in the sentencing process, as they provide context and insight into the defendant's background and history. Finally, the court ruled that time already spent in custody should be taken into account, ensuring that the defendant does not receive a disproportionate sentence that does not reflect the time already served.

The court's decision underscores the importance of focusing on the objective elements of the offence when determining a limiting term and highlights the need to consider antecedents and time already spent in custody to ensure a fair and balanced sentence. The court's ruling provides clarity for future sentencing decisions involving defendants who are mentally unfit to stand trial.

Orders