R v Brown (No 2)
[2022] ACTSC 179
•25 February 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Brown (No 2) |
Citation: | [2022] ACTSC 179 |
Hearing Date(s): | 25 February 2022 |
DecisionDate: | 25 February 2022 |
Before: | Elkaim ACJ |
Decision: | (a) The matter is adjourned to allow the Crown to obtain further assessment of the offender’s mental impairment. (b) The matter is listed for mention at 9:30 am on 15 March 2022. (c) The matter is listed for further hearing on 25 May 2022. (d) Bail is continued on the same conditions. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Plea of Guilty – where the offender relies on a medical opinion that indicates the offender is not guilty due to mental impairment – where the offender maintains a plea of guilty despite the medical opinion – whether a judge should accept or reject the plea of guilty – matter adjourned to allow the Crown to obtain further medical assessment of the offender |
Legislation Cited: | Criminal Code 2002 (ACT) s 27 |
Cases Cited: | R v Naden [2013] NSWSC 541 Meissner v The Queen (1995) 184 CLR 132; A Crim R 308 |
Parties: | The Queen (Crown) J Brown (Offender) |
Representation: | Counsel T Hickey (Crown) J Purnell SC (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Aulich Criminal (Offender) | |
File Number(s): | SCC 84 of 2020 |
Elkaim ACJ
This matter was originally before me on the 15 October 2021. On that date, an adjournment was sought on behalf of the offender in order to obtain some medical material that was not present.
There was also no pre-sentence report. I took the view that the pre-sentence report would be helpful. Accordingly, I adjourned the matter until a new sentence date of 25 February 2022 was obtained. In the meantime, medical material was gathered. For present purposes, the significant part of that material is a report by Prof Boer, a psychologist, who provided a supplementary report dated 13 February 2022 which was served on the Crown on 16 February 2022.
In my view, the report is very significant. At line 581 of the report, Prof Boer says:
On balance, at the time of the offending behaviour, it is my opinion that Mr Brown was suffering from a mental impairment, under the meaning set out in Section 27 of the [Criminal Code 2002 (ACT)], with this mental impairment being a mental illness, namely Major Depressive Disorder and Alcohol Use Disorder, the combination of which had the effect that Mr Brown did not know that his conduct in relation to his offending behaviour at the time of the offences was wrong, as he could not reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, was wrong at the time of the offences; and furthermore that Mr Brown could not control his conduct in relation to his offending behaviour at the time of the offences.
When I read that, it immediately struck me that what Prof Boer was saying was that Mr Brown at the time of committing these offences was not guilty by reason of a mental impairment. This is entirely inconsistent with a plea of guilty.
I raised the matter immediately at the commencing of today’s hearing. The Crown told me that it was anticipated that the paragraph was not relied upon. Mr Purnell SC said that it was relied upon, but only in relation to mitigation and the application of the Verdins principles. This left me distinctly uncomfortable. Either Mr Brown had a mental impairment or he did not. If he did, then his plea should not in my view be accepted. If he did not, then the view of Prof Boer is open to question.
The matter of R v Naden [2013] NSWSC 541 is a decision of Price J in which his Honour looks into the question of whether a plea should be accepted. His Honour quoted Meissner v The Queen (1995) 184 CLR 132; A Crim R 308, in which Brennan, Toohey and McHugh JJ said at page 41:
...A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty... A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence...
What this means that if Mr Brown was of sound mind and understanding when he entered the plea, then I would be bound to accept it. If he was not, I would not accept it. I suggested that Prof Boer be asked in simple terms if it was his view that Mr Brown of sound mind and understanding on the 25 August 2021 when he entered the plea.
In the course of giving my reasons in respect to an adjournment application by the Crown, the Crown has pointed out that there is a distinction between a person of sound mind and a person who might be suffering from a mental impairment. I am not sure that there is a distinction. In my view, a person who is mentally impaired may very well be not of sound mind. That is a question for a doctor.
I asked for a question to be put to Prof Boer as to whether or not it was his view that Mr Brown had a mental impairment as at the date of the plea. The Crown remained concerned that there was still a possibility that whatever the answer was given, that I might accept the plea.
Mr Purnell SC, no doubt wanting to have an equal opportunity to say something, pointed out to me that when the plea was entered, it was done on instructions. No doubt, those taking the instructions would have been very alert to whether or not Mr Brown was intoxicated or otherwise apparently suffering from any unsoundness of mind.
There is of course such a thing as a functioning alcoholic. I do note that there is however some evidence that Mr Brown was not drinking since 20 February. Nevertheless, the possibility that he remains with a mental impairment having regard to the MRI scan and the opinion of his general practitioner, Dr Shah, must remain.
The Crown essentially wants its own opinion. If the report had not arrived on the Crown’s desk so recently, I would have refused the adjournment. Ultimately, I think the adjournment should be granted and I think that the Court will benefit from having another view to that of Prof Boer. Therefore, I will grant an adjournment.
I wish to tell the persons in court, other than the press, who fall either in the category of family and friends of Mr Brown or family and friends of the victim. You are all entitled to expect that justice will be done swiftly and without undue delay. Mr Brown faces a prison sentence. Mr Purnell SC has made his intent clear that he wishes an Intensive Correction Order to be granted.
The mental health of Mr Brown is a very important question on that subject alone. If the Court is going to not impose a prison sentence, which would otherwise almost be automatic, it will need proper and fully considered medical evidence. I apologise to all the members of the families that there will be a delay. That just has to be.
I make the following orders:
(a) The matter is adjourned to allow the Crown to obtain further assessment of the offender’s mental impairment.
(b) The matter is listed for mention at 9:30 am on 15 March 2022.
(c) The matter is listed for further hearing on 25 May 2022.
(d) Bail is continued on the same conditions.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Elkaim. Associate: Date: |
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