R v Chemhere - [2021] ACTSC 45

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Chemhere
Citation:	[2021] ACTSC 45
Hearing Date:	29 March 2021
Decision Date:	29 March 2021
Reasons Date:	31 March 2021
Before:	Loukas-Karlsson J
Decision:	See [43]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Pleas of not guilty because of mental impairment – proof of offences – determination of mental impairment – consequential orders –
referral to the ACAT
Legislation Cited:	Crimes Act 1900 (ACT) ss 300, 321, 323(1)(a) Criminal Code 2002 (ACT) ss 27, 28, 403(1), 404(1) Evidence Act 2011 (ACT) s 191 Mental Health Act 2015 (ACT) Supreme Court Act 1933 (ACT) s 68C
Cases Cited:	R v Aleer [2016] ACTSC 75 R v Andison [2021] ACTSC 32 R v Edet [2020] ACTSC 276 R v Griffiths [2020] ACTSC 51 R v Singsathitsuk [2021] ACTSC 26
Parties:	The Queen (Prosecution) Peter Isheunesu Chemhere (Accused)
Representation:	Counsel
M Dyason (Prosecution) J White SC (Accused)
Solicitors
ACT Director of Public Prosecution (Prosecution)
Legal Aid ACT (Accused)
File Number(s):	SCC 270 of 2020; SCC 271 of 2020
LOUKAS-KARLSSON J:
Introduction

1. On 29 March 2021 the accused pleaded not guilty by way of mental impairment to the following offences allegedly committed on 12 May 2020:

(a) 1 count of Arson (causing damage to a building by fire) contrary to s 404(1) of the Criminal Code 2002 (ACT) (Criminal Code) (CC2020/5799). The maximum penalty for this offence is imprisonment for 15 years, a fine, or both.
(b) 6 counts of Damaging property contrary to s 403(1) of the Criminal Code

(SCCAN2021/4, SCCAN2021/5, SCCAN2021/6, SCCAN2021/7,
SCCAN2021/8, SCCAN2021/9). The maximum penalty for this offence is imprisonment for 10 years, a fine, or both.

2. In accordance with s 321(2)(b) of the Crimes Act 1900 (ACT) (Crimes Act), “the Prosecution agrees to the entering” of the special verdict that the accused is not guilty
of the offences because of mental impairment.
3. Pursuant to s 321(1)(a) of the Crimes Act, the Court must consider whether verdicts of not guilty because of mental impairment are appropriate.

Approach to the Evidence and Directions in a Special Hearing by Judge Alone

4. All of the evidence was admitted by consent. There was no sworn evidence or cross- examination of any witnesses. The special hearing is a trial by judge alone and must be conducted in accordance with s 68C of the Supreme Court Act 1933 (ACT). See: R v Griffiths [2020] ACTSC 51 at [24]-[28].

Agreed Statement of Facts

5. As part of the Prosecution Tender Bundle (Exhibit 1), the Court received an ‘Agreed
Statement of Facts’ pursuant to s 191 of the Evidence Act 2011 (ACT) in relation to
establishing each of the offences on the indictment.
6. At around 5:00AM on 12 May 2020, the Accused was at the Woden Hotel (the Hotel) and used an unknown implement to light a fire in the building. The Hotel was closed at the time due to the COVID-19 pandemic and there were…

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 Chemhere

Details

AGLC: R v Chemhere [2021] ACTSC 45
Case: [2021] ACTSC 45
Decision Date

CaseChat Overview and Summary

In the case of R v Chemhere, the accused, Peter Isheunesu Chemhere, pleaded not guilty by way of mental impairment to charges of arson and damaging property. The case was heard and decided by Loukas-Karlsson J on 29 March 2021. The legal issues revolved around the determination of mental impairment and the consequential orders. The court considered the evidence presented and agreed statements of facts, which detailed the accused's actions on the day in question.

The court found that the accused was suffering from a mental impairment, specifically schizophrenia, at the time of the alleged offences. The accused's mental state prevented him from knowing the nature and quality of his conduct and from understanding that his conduct was wrong. The court was satisfied that the accused could not control his conduct due to his mental impairment. Consequently, the court entered special verdicts of not guilty by reason of mental impairment for each of the offences.

Following the special verdicts, the court considered the appropriate disposition under the Crimes Act. The court determined that the offences did not meet the definition of a'serious offence' and, therefore, considered the provisions of s 323 of the Crimes Act. The court made orders for the accused to submit to the jurisdiction of the ACAT to enable the ACAT to make recommendations as to how he should be dealt with.

In summary, the court found the accused not guilty by reason of mental impairment for the charges of arson and damaging property and ordered that the accused submit to the ACAT for further recommendations.

Orders