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 no other persons present inside the Hotel. The fire resulted in damage to the interior of the Hotel as well as damage to the external walls of the building. The ACT Fire Service attended and extinguished the fire.
7. After seeing the ACT Fire Service arrive at the Hotel, the Accused then walked around the Westfield Shopping Centre in Woden (the Shopping Centre). At approximately 5:23AM, the Accused was near the Australian Red Cross store in the Shopping Centre and proceeded to set material contained in a public rubbish bin on fire. Damage was caused to the bin as a result of this action.
8. At approximately 5:29AM, the Accused was outside the McDonalds restaurant at the Shopping Centre. The Accused walked towards a public rubbish bin outside the McDonalds restaurant and set material contained within the bin on fire. As a result of this action, damage was caused to the rubbish bin.
9. The Accused then walked towards the front of the Hoyts Cinema at the Shopping Centre. At approximately 5:32AM, the accused walked over to a public rubbish bin out the front of the cinema and lit material within the bin on fire. Damage was caused to the rubbish bin as a result.
10. At approximately 5:41AM, the Accused out the front of TK Maxx at the Shopping Centre. The Accused proceeded to light material within another public rubbish bin on fire and consequently caused damage to the rubbish bin.
11. At approximately 6:06AM, the Accused had moved towards the front of the Liquorland store at the Shopping Centre. The Accused then lit material contained within a public rubbish bin on fire. Damage was caused to the bin as a result.
12. The Accused then walked to the taxi rank out the front of the Shopping Centre at approximately 6:07AM. The Accused then lit material within a public rubbish bin on fire and caused damage to the rubbish bin.
13. At approximately 12:00PM, police located and arrested the Accused.
Exhibits
14. The following documents were tendered and marked as exhibits at the hearing on 29 March 2021:
(a)
Prosecution Tender Bundle, which included the Agreed Statement of Facts and a Psychiatric Report of Dr Richard Furst dated 3 February 2021, commissioned by Counsel for the accused (the Furst Report).
(b)
A Psychiatric Treatment Order in respect of the accused dated 1 March 2021.
(c) ACAT Review Report dated 18 February 2021. (d)
Letter from Mr Leba Anthony Awad, Client Coordinator of Canberra Recovery Service dated 24 February 2021.
Psychotic, Homeless and Discharged by ACT Health
15. The Furst Report contains the following observations in relation to the accused’s ACT
Health records:
In my opinion, the actions of the psychiatrists ‘treating’ Mr Chemhere between
February and April 2020, and ACT Health generally, by discharging him on three occasions in a psychotic state without stable accommodation and without any feasible discharge plan were reprehensible and negligent in the extreme. Furthermore, it is only through good luck, rather than good management, that neither Mr Chemhere nor any member of the community were seriously injured or killed as a consequence of
those grossly deficient episodes of ‘care’ and poorly thought out discharge plans.
These issues require further investigation beyond the scope of Mr Chemhere’s
criminal proceedings, akin to an independent root cause analysis, in order to improve the systems currently in place in The Canberra Hospital and related community mental health services, especially in relation to the discharge planning process for chronically psychotic and dangerous patients who are still mentally ill, are homeless and pose an unacceptable risk at the time of discharge.
Furthermore, I am of the firm opinion that the failure of The Canberra Hospital to adequately treat Mr Chemhere and to detain him as a mentally ill person in the hospital (as they ought to have done according to their duty of care and the broad provisions of the Mental Health Act) was the indirect but substantive cause of the
arson offences and property damage offences in question at the Quality Hotel…
Procedure and Statutory Scheme Relating to Mental Impairment
16. Section 321 of the Crimes Act provides for the entry of a special verdict:
321 Supreme Court—plea of not guilty because of mental impairment
(1) This section applies if an accused pleads 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.
17. In R v Aleer [2016] ACTSC 75 at [13] Refshauge J set out the appropriate procedure as follows:
(1) The accused should be arraigned in the usual way.
(2) If they plead not guilty by reason of mental impairment, the Prosecution should be
asked if it agrees to the entry of a special verdict. Such agreement need not be in writing.
(3) If not, the trial proceeds in the usual way (as in for example, R v McGuckin [2014]
ACTSC 242).
(4) If so, then the court must consider whether a verdict is appropriate.
(5) The Prosecution must prove its case, beyond reasonable doubt, that the accused has committed the physical acts of the offence charged which would constitute the offence if done intentionally and voluntarily and with any particular fault element, such as intent or knowledge, specified as an element of the offence, but is not required to negative any such fault element, other than where objective evidence raises such an issue, such as mistake, accident, lack of specific intent, or knowledge of the particularity necessary to constitute the offence that is an element of the offence itself, or self-defence, in which case the Prosecution must negative that issue beyond reasonable doubt: R v Ardler [2004] ACTCA 4; 144 A Crim R 552 at [90]
(6) Such evidence may be adduced in statements tendered and admitted into evidence if consent is given to such a procedure under ss 148 or 190 of the Evidence Act 2011 (ACT).
(7) The Court must be provided with such expert evidence as would satisfy it that the accused is mentally impaired, sufficient to meet the criteria set out in s 28 if the Criminal Code, which may also be achieved by the tender of reports from appropriately qualified medical experts. This does not need to be proved beyond reasonable doubt. The Court, however, needs to be satisfied that the mental impairment has been made out to a standard sufficient to justify the potential significant interference with the freedom and liberty of the accused.
(8) Once these matters are satisfied, it would appear that this would meet the criteria that
the entry of a special verdict was appropriate.18. The approach outlined by Refshauge J in R v Aleer has subsequently been followed in R v Griffiths [2020] ACTSC 51 at [14], R v Edet [2020] ACTSC 276 at [5], R v Singsathitsuk [2021] ACTSC 26 and R v Andison [2021] ACTSC 32. It is the approach that I have adopted in this matter.
Elements of the Offences
19. There was no dispute between the Prosecution and Counsel for the accused as to the physical elements of each of the offences. The evidence to be relied upon by the Prosecution to establish the physical elements of each of the offences beyond reasonable doubt were set out in the Agreed Statement of Facts.
20. The elements for the offence of Arson (Count 1) are:
(a) The accused engaged in conduct; (b) The accused intended to engage in that conduct; (c) The accused’s conduct caused damage to a building by fire; (d) The accused intended to cause damage to the building or the accused was reckless about causing damage to the building.
21. The element for the offence of Damaging Property (Counts 2-7) are
(a) The accused engaged in conduct; (b) The accused intended to engage in that conduct; (c) The accused’s conduct caused damage to property; (d) The accused intended to cause damage to the property or any other property, or the accused was reckless about causing damage to the property or any other property; (e) The damaged property belonged to someone else; (f) The accused was reckless as to whether the property belonged to someone else.
22. On the basis of the Agreed Statement of Facts, I am satisfied that the prosecution has proven beyond reasonable doubt that the accused committed the physical elements relevant to each of the seven offences on the indictment. See: R v Griffiths [2020] ACTSC 51 at [35].
Mental Impairment
23. The next stage of the inquiry is whether the accused was suffering from a mental impairment at the time of the offences, and secondly, whether that mental impairment had an effect as described in s 28(1) of the Criminal Code.
The definitions of “mental impairment” and “mental illness” are contained within s 27
of the Criminal Code and the subsequent impact of mental impairment on criminal
responsibility is addressed in s 28 of the Criminal Code:27 Definition—mental impairment
(1) In this Act:
mental impairment includes senility, intellectual disability, mental illness, brain
damage and severe personality disorder.
(2) 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 external stimuli.
…
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.
…
Mental Impairment – Consideration
The Furst Report was written with respect to the accused’s mental state at the time of
the offences relating to 12 May 2020.
26. The accused is 33 years old and was born in Zimbabwe. The accused completed primary and high school in Zimbabwe with no indications of learning difficulties or childhood psychiatric disorders arising. The accused commenced smoking cannabis on a regular basis from the age of 12 years and would only drink alcohol occasionally.
27. In 2005 when the accused was 17 years old, the accused migrated to Australia. It
was after relocating to Australia that the accused’s mental health symptoms
deteriorated and he began to experience both hallucinations and delusions. The
hallucinations involved female and male ‘voices’ that would command the accused to
perform actions. The delusions often exhibited religious themes and at times involved the accused believing he was the son of God or at other times believing he or others were the Devil.
28. The accused was first diagnosed with schizophrenia in 2006. It was also in 2006 that the accused had his first psychiatric admission to the Canberra Hospital when he was 18 years old. Since that time, the accused has had numerous psychiatric admissions and has been treated with various antipsychotic medications.
29. In the months preceding the offences, the accused had been admitted to the Adult Mental Health Unit at the Canberra Hospital on multiple occasions and was reported to have been experiencing acute agitation, delusional thoughts and hallucinations. The treating team discharged the accused notwithstanding the accused was still often responding to hallucinations and did not have any accommodation within the community. The last discharge from the Adult Mental Health Unit before the offending occurred on 28 April 2020, although the accused was again still exhibiting agitated behaviour and was to be discharged into homelessness.
30. The Furst Report noted that
…the failure to detain Mr Chemhere and treat him adequately led to his psychotic
illness persisting, including obvious acute psychotic symptoms and his bizarre delusionally-motivated illness in the form of schizophrenia on 12/05/2020, was insightless and was incompetent in the most extreme sense, i.e. he was unable to make rational choices because of his acute psychosis at the time.
31. Dr Furst also concluded that the accused suffers from chronic and treatment resistant
schizophrenia, satisfying the criteria within the DSM-5 and that the accused’s mental
impairment pre-existed the commission of the offences. Dr Furst opined that the accused knew the nature and quality of his conduct, insofar as he was aware of his actions. However, Dr Furst concluded that the accused did not know the conduct was wrong as the accused was labouring under delusional beliefs at the time and lacked insight into his thoughts, delusions and hallucinations. Dr Furst also determined that as the accused was psychotic at the time of the offences, the accused lacked the capacity to control himself.
32. In written submissions, the Prosecution submitted that on the balance of probabilities, the accused was suffering a mental impairment, namely schizophrenia, at the time of the alleged offending on 12 May 2020. The Prosecution also submitted that the criteria under s 28(1) and (2) of the Criminal Code were satisfied to render the accused not criminally responsible of each offence.
33. I am satisfied that the accused was suffering from a mental impairment, namely schizophrenia, in the period leading up to and at the time of the offences. On the balance of probabilities, I am also satisfied that at the time of the offences the
accused’s mental impairment had the effect that he did not know that the conduct was
wrong, in that he was unable to reason with a moderate sense of degree and composure about whether the conduct, as seen by a reasonable person, is wrong. I
am also satisfied on the balance of probabilities that the accused’s mental impairment
had the effect that the accused could not control the conduct when carrying out the
offences.34. Consequently, in relation to each of the offences, I consider that a verdict of not guilty because of mental impairment is appropriate. I enter a special verdict of not guilty by reason of mental impairment for each offence.
Disposition
35. The Prosecution and Counsel for the accused agreed that none of the offences met
the definition of a ‘serious offence’ within the meaning of s 300 of the Crimes Act.
That position has been confirmed by this Court in R v Andison [2021] ACTSC 32 and R v Singsathitsuk [2021] ACTSC 26. I am also of the view that the none of the
offences satisfy the meaning of ‘serious offence’ contained within s 300.
36. Consequently, the final step for disposition directs the Court to consider s 323 of the Crimes Act. That section states the following:
325 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 Supreme Court may make the orders that it considers appropriate, including—
(a) that the accused be detained in custody for immediate review by the ACAT under
the Mental Health Act 2015, section 180; or(b) that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act
2015.
37. Counsel for the accused submitted that no referral to the ACAT was necessary. In written submissions, Counsel for the accused noted that the accused is currently being managed in the community and is responding well to his current antipsychotic medication. Counsel for the accused also noted that the accused was currently admitted to Canberra Recovery Service. It was submitted on behalf of the accused that there was no necessity for a referral to the ACAT in circumstances where the accused was already known to the tribunal and being managed accordingly.
38. Counsel for the accused also tendered a Psychiatric Treatment Order dated 1 March 2021 confirming that the accused must comply with any determination made by the Chief Psychiatrist or delegate for a period of 6 months unless sooner revoked.
39. A Tribunal Review Report dated 18 February 2021 was also tendered on behalf of the Accused. The Tribunal Review Report contained a thorough report from Dr Joseph Garside and a Psychiatric Treatment Plan and Location Determination to determine the nature of the psychiatric treatment to be given to the accused and confirm where the accused is to attend to receive treatment, care and support.
40. A letter under the hand of Mr Leba Anthony Awad, Client Coordinator of the Canberra Recovery Services dated 24 March 2021 was also tendered on behalf of the accused. The letter confirmed that the accused had been admitted into Canberra Recovery Service on 20 June 2020 and had successfully completed Induction, recovery level 1 and recovery level 2. The letter noted that the Accused will complete the re entry phase of the program and graduate on 31 March 2021 and after that time, he will move into the Canberra Recovery Service halfway house for extra support for up to 12 weeks.
Conclusion
41. Notwithstanding the submission by Counsel for the accused that a referral to the ACAT was not necessarily required, I am of the view that a referral to the ACAT should be made in this case.
42. While there does not appear to be any obvious reason why the accused should not continue under the existing regime it is nevertheless the ACAT, taking into account its specialist knowledge, that is the appropriate tribunal to determine the proper measures to be undertaken in this case. See: R v Andison [2021] ACTSC 32 at [25].
Orders
43. I make the following orders:
(a) Special verdicts of not guilty by reason of mental impairment are entered in respect of the offence of arson (causing damage to a building by fire) contrary to s 404(1) of the Criminal Code (CC2020/5799) and the six offences of damaging property contrary to s 403(1) of the Criminal Code (SCCAN2021/4,
SCCAN2021/5, SCCAN2021/6, SCCAN2021/7, SCCAN2021/8, SCCAN2021/9).
(b) Pursuant to s 323(1)(a) of the Crimes Act, Mr Chemhere is ordered to submit to the jurisdiction of the ACAT to enable the ACAT to make recommendations as to how he should be dealt with. I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson.
Associate: Rhiannon McGlinn
Date: 31 March 2021
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