R v Davey - [2006] SASC 177

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DAVEY
[2006] SASC 177
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Anderson)
16 June 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - OTHER MATTERS
Appellant convicted of offences of assault occasioning actual bodily harm, carry an offensive weapon, aggravated robbery and four counts of threaten harm – appellant found mentally unfit to stand trial – ss 269H and 269M(A) of the Criminal Law Consolidation Act 1935 – objective elements admitted – sentencing Judge made a supervision order releasing appellant on licence – s 269O(1) – limiting term of 10 years fixed – s 269O(2) – whether reasons given by sentencing Judge in fixing limiting term adequate – whether limiting term was manifestly excessive in the circumstances – discussion of Part 8A of the Criminal Law Consolidation Act 1935 – discussion of factors to be taken into account in setting limiting term under s 269O(2) – whether sentencing Judge failed to make allowance for admission of objective elements of offence – consideration of relevance of admission of objective elements to fixing of limiting term – appeal allowed – limiting term reduced to 8 years and 6 months.
Criminal Law Consolidation Act 1935 (SA) s 269H, s 269M, s 269O, s 269P, s 269T, s 269W; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A, referred to.
R v Burfield (No 3) [2006] SASC 97; R v Weiss [2005] SASC 338; R v Bartholomaeus [2006] SASC 13; Cameron v The Queen (2002) 209 CLR 339; Thompson v The Queen (2005) 157 A Crim R 385, applied.
Papps v Police (2000) 77 SASR 210; R v T (1999) 75 SASR 235; R v Place (2002) 81 SASR 395; R v Tsiaras [1996] 1 VR 398; Siganto v The Queen (1988) 194 CLR 656; R v Shannon (1979) 21 SASR 442, considered.

R v DAVEY
[2006] SASC 177
Court of Criminal Appeal Bleby, Gray and Anderson JJ
BLEBY J:
Introduction

The circumstances giving rise to this appeal are adequately described in the reasons for judgment of Gray J. I will not repeat them.
I agree with Gray J that the reasons given by the trial Judge for fixing the limiting term that he did are inadequate. Gray J has explained why that is so. This Court must therefore reach its own conclusion by applying the relevant principles to determine what an appropriate range for the limiting term should be, and then to determine whether the term in fact fixed was manifestly excessive.
The brief reasons are, nevertheless, indicative of error, in that it is apparent that the Judge did not make any allowance for the effective admission by the appellant of the objective elements of the offence. For reasons which will become apparent, that omission constituted an error.
The general purpose behind the enactment of Part 8A of the Criminal Law Consolidation Act relating to mental impairment is described by Gray J. I agree with that analysis. In particular, a limiting term fixed under s 269O(2) of the Act is not and should not be regarded as punishment. It sets the maximum period during which the defendant can remain subject to the supervision of the Court in the application of processes of treatment for and possible recovery from the mental incapacity which he or she suffers. It also sets the maximum term during which attempts can be made to rehabilitate the defendant into the life of the community. If that process is satisfactorily completed in less time, the supervision order can be revoked.[1] If, at the end of the period, the defendant is still a risk to himself or to the community, the processes provided for in the Mental Health Act 1993 can then apply in the same way as they apply to any other citizen.
[1] Section 269P, Criminal Law Consolidation Act 1935.
The fixing of a limiting term
The principal focus of the argument in this case was on the effect of s 269O(2) and the footnote appended to it:
(2) If a court makes a supervision order, the court must fix a term (a limiting term) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court's opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established¹.
…
Note—
1 The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant's mental impairment.
The exclusion from consideration of the defendant’s mental impairment must mean that a number of matters which would normally favour leniency or mitigation of the sentence are necessarily excluded from consideration.[2] That presents a difficulty, but the Court must do the best it can in fixing the limiting term “by reference to” the sentence that would have been imposed if the defendant had been found guilty of the relevant offence, without taking into account the mental impairment.
[2] R v Burfield(No 3) [2006] SASC 97 at [24].
In determining what would have been appropriate for a sentence, there are certain factors referred to in s 10 of the Criminal Law (Sentencing) Act 1988 which will have a substantial influence on that determination regardless of the defendant’s mental impairment. The seriousness of the offence and the injury, loss or damage resulting from it are clearly matters which have a substantial bearing on the length of any sentence and, in this case, on the length of any limiting term. Other factors in this category include the aspect of protection to the community against the performance or repetition of the act constituting the offence. Other such factors include the age, means (if relevant at all) and physical condition of the defendant.
In my opinion there is also an aspect of general deterrence which will relate to the objective element of the offence. In this respect one might contrast the situation of sentencing a person for an offence where that person has a mental impairment but not one which attracts the operation of Part 8A of the Criminal Law Consolidation Act. Where the reason for committing the offence is related to or substantially influenced by such a mental impairment, factors of general deterrence may assume little relevance. Indeed, such a factor may lessen the moral culpability of the offence.[3] However, where mental impairment is expressly excluded from consideration there will often be a public interest in deterring people generally from committing certain types of offences, especially those with which this appellant was charged. In those circumstances, depending on the nature of the offence, an element of general deterrence will be relevant to fixing a notional sentence and hence a limiting term under s 269O of the Criminal Law Consolidation Act.
[3] Thompson v The Queen (2005) 157 A Crim R 385 at 396, [53] and the cases cited therein.
There are other aspects of sentencing which will have a variable effect on the fixing of the limiting term depending very much on the nature of the mental impairment. For example, there may be certain aspects of the defendant’s character which are independent of or not influenced by the mental impairment. The nature and extent of the defendant’s criminal record that is relevant may depend on the timing of past offences. For example, offences committed after the development of the mental impairment may well carry little weight, whereas offences committed before the mental impairment might carry more. Where the mental impairment is one of gradual onset some caution must obviously be exercised. The mental impairment of the appellant, based on the reports available to the trial Judge, manifested itself in a severe cognitive impairment resulting from a traumatic brain injury. His antecedent record shows convictions for offences committed after the infliction of that injury. Such convictions, if indeed they were properly recorded, must be viewed with great caution. Even offences committed before the onset of the mental impairment, depending on its nature, may be such that the defendant either has no knowledge of those offences or is not in a position to appreciate their significance.
Factors such as contrition and remorse will vary greatly according to circumstances. In the case of the appellant, he has a chronic and permanent brain injury. His insight into his behaviour is described as “fairly superficial”. His disability is manifested by a loss of memory and bizarre behaviour, possibly related to a change in personality brought on by the head injury. In these circumstances contrition and remorse will have no bearing. On the other hand, a person who has a mental impairment defence such as schizophrenia but who, after treatment, is perfectly fit to stand trial, may well be able to demonstrate genuine contrition and remorse which will affect the notional sentence and hence the limiting term.[4] The same can be said of elements of personal deterrence and punishment. To some who suffer a mental impairment, those factors will have relevance and meaning. To the present appellant they probably will not.[5]
[4] See, for example R v Weiss [2005] SASC 338 at [32].
[5] Similar observations were made in Thompson v The Queen (2005) 157 A Crim R 385 at 396, [54].
The circumstances of this case
Gray J has described the circumstances of each of the relevant offences. I will not repeat them. The armed robbery and threatening harm offences were particularly serious. They formed part of a course of conduct. In sentencing it would be appropriate to fix a single sentence for that offending under s 18A of the Criminal Law (Sentencing) Act. Likewise, in fixing a limiting term, it would be appropriate to treat that offending as one course of offending for the purpose of fixing a notional single term. The other offences were quite separate and discrete. They warranted cumulative terms with the application of the totality principle if that was appropriate.
I agree with Gray J for the reasons that he gives that a starting point of between 10 and 12 years would be appropriate. This period is influenced largely by the seriousness of the offending, the need to protect the community and matters of general deterrence based on the nature of that offending. In the circumstances, I would place little weight on the appellant’s antecedents and personal deterrence and punishment. Questions of contrition and remorse are not relevant. These factors attract little or no weight because of the nature of the appellant’s mental impairment.
In fixing a notional starting point for a limiting term of 11 years the trial Judge, in my opinion, acted appropriately.
The effect of agreeing the objective elements
The question arises whether there should be a discount for the fact that the objective elements of the offence were not the subject of a normal trial. Part B of s 269M of the Act requires the Court to “hear evidence and representations put to the Court by the prosecution and the defence”, and only to make the relevant finding if the Court is satisfied beyond reasonable doubt that the objective elements are established. In this case, that was done by the prosecution tendering, by consent, the relevant declarations relating to each offence, and the Judge being satisfied to the requisite degree upon considering those declarations. The consent was given by the appellant’s counsel exercising the powers conferred on him by s 269W(1) of the Act. That sub‑section provides:
(1)If the defendant is unable to instruct counsel on questions relevant to an investigation under this Part, the counsel may act, in the exercise of an independent discretion, in what he or she genuinely believes to be the defendant's best interests.
The note to s 269O(2) requires the Court to fix a limiting term by reference to the sentence that would have been imposed if the defendant had been “found guilty” of the relevant offence. Normally that would be by one of two ways: on the defendant’s own admission by entering a plea of guilty, or by a finding of guilty by a jury or by a judge sitting alone. In the case of mental impairment, a plea of guilty or admission by that means is not possible. The Court is bound to conduct an inquiry into the objective elements. However, by admitting into evidence by consent the relevant declarations and by consenting to a finding that the objective elements are proved beyond reasonable doubt, the defendant, through his counsel, was adopting a process which was equivalent in all material respects to a finding of guilty of those objective elements on the defendant’s own admission. The defendant should be treated as if he were capable in law of making his own decision to plead guilty to the charges if he were not mentally incapable of standing trial. This has been recognised by a number of judges of this Court.[6] In fixing the limiting term the defendant should be afforded such consideration as he or she would have been if a plea of guilty had been entered. There is no suggestion that the trial Judge did that. In failing to do so, he erred.
[6] See R v Weiss [2005] SASC 338 (Bleby J); R v Bartholomaeus [2006] SASC 13 (Layton J); R v Burfield (No 3) [2006] SASC 97 (Gray J).
In my opinion, it does not matter that the effective admission is made by the defendant’s counsel. Counsel for this purpose and in these circumstances is the statutory agent of the defendant.[7]
[7] Section 269W(1), Criminal Law Consolidation Act.
There remains for consideration how such an admission should be treated in fixing the limiting term.
A majority of the High Court[8] in Cameron v The Queen[9] reaffirmed the dictum of Gleeson CJ, Gummow, Hayne and Callinan JJ in Siganto v The Queen[10] concerning the effect of a plea of guilty where they said:
[A] plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case.
The second aspect includes inconvenience to witnesses and reduction of court delays. The majority in Cameron[11] added, however, that taking into account the saving of the community the expense of a trial can only be justified if it can be seen as an expression of willingness on the part of the offender to facilitate the course of justice.
[8] Gaudron, Gummow and Callinan JJ.
[9] (2002) 209 CLR 339.
[10] (1988) 194 CLR 656 at 663-4, [22].
[11] (2002) 209 CLR 339 at 343.
Kirby J also recognised that remorse is not, as such, a pre‑condition for a discount for a plea of guilty.[12] Rather, his Honour included genuine remorse and repentance, along with the saving of prosecution and judicial resources as being aspects of the public interest to which weight must be given in determining the nature and extent of any discount.
[12] Ibid at 360-1.
This Court had earlier laid down the following propositions in R v Shannon:[13]
(1)A plea of guilty may be taken into account in mitigation of sentence where –
(a) it results from genuine remorse, repentance or contrition, or
(b) it results from a willingness to co‑operate in the administration of justice by saving the expense and inconvenience of a trial, or the necessity of witnesses giving evidence, or results from some other consideration which is in the public interest; notwithstanding that the motive, or one of the motives, for such co‑operation may be a desire to earn leniency,
and where to allow the plea a mitigatory effect would be conducive[14] to the public purposes which the sentencing Judge is seeking to achieve.
(2)A plea of guilty is not of itself a matter of mitigation where it does not result from any of the above motives, but only from a recognition of the inevitable, or is entered as the means of inducing the prosecution not to proceed with a more serious charge.
…
[13] (1979) 21 SASR 442 at 452-453, 459-460.
[14] The reference to “conductive” at 453 would, in light of the repetition of that sentence at 460, appear to be a misprint.
I do not see that proposition as being inconsistent with what the High Court said in Cameron. In particular, I view the judgment of the majority in Cameron as requiring an expression of willingness on the part of the offender to facilitate the course of justice as being met by the opening words of sub-para.(1)(b) of the passage quoted above from Shannon. If anything this court, consistent with the views expressed by Kirby J, requires the mitigation to be based on a requirement to serve the public interest, rather than the personal interests of the offender.
Section 10(1) of the Criminal Law (Sentencing) Act treats as separate matters for consideration in fixing a sentence the degree to which the defendant has shown contrition for the offence[15], the fact of a plea of guilty[16] and the degree to which the defendant has co‑operated in the investigation of the offence.[17] All those matters are therefore separately relevant, without qualification. However, the weight to be given to the plea of guilty, or its equivalent in this case, should nevertheless depend on the extent to which it is seen as an expression of willingness to facilitate the course of justice.
[15] Section 10(1)(f), Criminal Law (Sentencing) Act 1988.
[16] Section 10(1)(g), Criminal Law (Sentencing) Act 1988.
[17] Section 10(1)(h), Criminal Law (Sentencing) Act 1988.
The allowance in this case
In my opinion it was appropriate that some allowance be made in this case for the appellant’s co‑operation in agreeing to the tender of the declarations and in consenting to a finding of proof of the objective elements beyond reasonable doubt. There is no reason to think that this was other than through a willingness to co‑operate in the administration of justice or to facilitate the course of justice.
I have already indicated that questions of remorse and contrition were not relevant. That must limit the scope of any possible discount. As I have previously indicated, however, that is not to say that it may not be relevant in some cases of mental impairment.
In all the circumstances I would discount the notional 11 year term by a period of 18 months. That results in a term of 9 years and 6 months. However, credit must be given for the period of one year that the appellant was in custody before the trial Judge fixed the limiting term. In those circumstances the limiting term is properly fixed at 8 years and 6 months from the date fixed by the trial Judge, namely 27 October 2005.
I would allow the appeal for the purpose of varying in that manner the limiting term fixed by the trial Judge.
GRAY J
This appeal concerns the consequences of a finding that an accused is not guilty on the ground of mental unfitness to stand trial.
Sean Phillip Davey, the appellant, was charged with the offences of assault occasioning actual bodily harm committed on 28 February 2001, carry an offensive weapon without lawful excuse committed on 27 September 2004, aggravated robbery committed on 15 October 2004, and four counts of threatening harm, each committed on 15 October 2004.
Section 269H of the Criminal Law Consolidation Act 1935 (SA) addresses mental unfitness to stand trial and provides:
A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is—
(a)unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
(b)unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c)unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.

Section 269M governs the procedure to be followed when a judge proceeds first with the trial of a defendant’s mental fitness to stand trial. That section provides:
If the trial judge decides that the defendant's mental fitness to stand trial is to be tried first, the court proceeds as follows.
A—Trial of defendant's mental fitness to stand trial
(1)     The court—
(a)     must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental fitness to stand trial; and
(b)     may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.
(2)The power to require an examination and report under subsection (1)(b) may be exercised—
(a)     on the application of the prosecution or the defence; or
(b)     if the judge considers the examination and report necessary to prevent a possible miscarriage of justice—on the judge's own initiative.
(3)At the conclusion of the trial of the defendant's mental fitness to stand trial, the court must decide whether it has been established, on the balance of probabilities, that the defendant is mentally unfit to stand trial and—
(a)     if so—must record a finding to that effect;
(b)     if not—must proceed with the trial in the normal way.
(5)     The court may, if the prosecution and the defence agree—
(a)     dispense with, or terminate, an investigation into a defendant's fitness to stand trial; and
(b)     record a finding that the defendant is mentally unfit to stand trial.
On 30 June 2005, the trial Judge determined that Mr Davey was mentally unfit to stand trial on each of the charges.
Section 269M(B) addresses the procedure to be followed after a finding of mental unfitness to stand trial:
B—Trial of objective elements of offence
(1)If the court records a finding that the defendant is mentally unfit to stand trial, the court must hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether a finding should be recorded under this section that the objective elements of the offence are established.
(2)If the court is satisfied beyond reasonable doubt that the objective elements of the offence are established, the court must record a finding to that effect and declare the defendant to be liable to supervision under this Part; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.
(3)On the trial of the objective elements of an offence under this section, the court is to exclude from consideration any question of whether the defendant's conduct is defensible.
The Judge in the present case proceeded to the hearing of the objective elements trial and found the objective elements for each offence proved beyond reasonable doubt. Pursuant to section 269M(B)(2), the Judge declared Mr Davey to be liable to supervision under part 8A of the Criminal Law Consolidation Act.
The procedure then to be followed is addressed in section 269O:
(1)The court by which a defendant is declared to be liable to supervision under this Part may—
(a)     release the defendant unconditionally; or
(b)     make an order (a supervision order)—
(i)      committing the defendant to detention under this Part; or
(ii)releasing the defendant on licence on conditions decided by the court and specified in the licence.
(2)If a court makes a supervision order, the court must fix a term (a limiting term) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court's opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established¹.
(3)At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.
Note—
1The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant's mental impairment.
In the exercise of his discretion, the Judge made a supervision order releasing the defendant on licence on conditions specified in the order. The Judge reasoned:
After taking into account the reports of the psychiatrists, Dr Nambiar and Dr O’Brien, and the psychologist, Mr Bell, and other relevant evidence, I have formed the opinion that the Defendant should be released with conditions applying. Before fixing those conditions I need to determine the limiting term required by s269O(2) of the Act.
Pursuant to section 269O(2), the Judge then proceeded to fix a limiting term of 10 years. His reasons for doing were brief and were as follows:
The offence of Aggravated Robbery was a serious offence. The Defendant robbed a Delicatessen at North Haven of about five hundred dollars. During the course of the robbery, the Defendant threatened staff with a knife.
The four Counts of Threatening Harm were also serious criminal offences. After leaving the Delicatessen, the Defendant was observed on a train. The Police boarded the train at Largs Bay. When he was approached, the Defendant produced a knife. The Defendant threatened the Police with the knife. It was this conduct, directed at four Policemen, which is the subject of the four Counts of Threatening Harm.
The charge of assault occasioning actual bodily harm arose as a result of the Defendant assaulting Christopher Marron in the Ungarra General Store. As a result, Mr Marron attended the Tumby Bay Hospital, where he was treated for injuries to his ribs, swelling to the right side of his head and a laceration.
Finally, with respect to the charge of carrying an offensive weapon, the Police arrested the Defendant on 27 September 2004. Whilst at the Adelaide City Watch-house, the Defendant was searched and the Police located a butcher knife with a 15 centimetre blade in the inside pocket of his jacket.
With respect to all of these offences, I consider than an appropriate limiting term, had the Defendant been convicted of the offences, is ten years. I have taken into account that the Defendant has been in custody for twelve months, in determining the length of the limiting term.
This appeal is a challenge to the length of the limiting term fixed by the Judge. The appellant contends that the Judge erred in failing to give reasons for the length of the limiting term imposed; that the Judge erred in failing to consider the reduction available for agreeing the objective elements of the offences, thereby avoiding the need for trial of fact in relation to those elements and that the limiting term was manifestly excessive.
Consideration of the issues on appeal
Adequacy of Reasons
The brief reasons given by the Judge have given rise to difficulty on the hearing of this appeal.
Counsel for the appellant, in an attempt to discern the Judge’s process of reasoning, drew the court’s attention to the transcript of proceedings, where the Judge discussed various approaches with counsel in relation to the fixing of the limiting term.
However, interchange with counsel during submissions is not an adequate substitute for reasons. Any tentative reasoning that may be disclosed may change. The transcript of submissions is an unreliable source for discerning the Judge’s reasons for fixing the limiting term. The transcript allows speculation and little more.
One purpose for the provision of reasons is to allow an appellate court to perform its function of review. Another is to allow a person, the subject of an order, the opportunity to understand the reasons for any loss of liberty. Yet another reason is to allow public transparency for the orders made. The victims of the appellant’s conduct are entitled to know the reasons for the Judge’s order.
In Papps v Police, it was observed:[18]
[18] Papps v Police (2000) 77 SASR 210 at 218-219 (footnotes omitted).
The courts have encountered difficulty in articulating a test to determine whether or not reasons are adequate. Much must depend upon the circumstances of each case. As was said in Lawson v Lee, the reasons must be “coherent, intelligible and comprehensive”. But there is more. The reasons must be adequate to allow an appellate court to perform its function and they must be such that justice is seen to be done. As was said in Sun Alliance Insurance Ltd v Massoud:
“The adequacy of the reasons will depend upon the circumstances of the case. But the reasons, will, in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reasoning upon which the decision is based; or
(b)justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
In the present case, the limiting term related to offences alleged to have been committed in February 2001, September 2004 and October 2004. The conduct in February 2001 and September 2004 neither bore relation to each other nor to the conduct the subject of the alleged offences committed in October 2004. However, the five offences alleged to have been committed in October 2004 can be seen as part of an ongoing course of conduct.
The Judge’s reasons do not disclose by what process he arrived at a limiting term of 10 years. The reasons would not allow the appellant, if he had the capacity, to understand the reasons for the Judge’s order. The reasons do not provide the necessary public transparency. The reasons are therefore inadequate.
The Limiting Term
Before discussing whether the limiting term set by the Judge is manifestly excessive, it is necessary to consider the legislative scheme. In the following observations, I have drawn on my reasons in Burfield No 3.[19]
The Legislative Scheme
[19] R v Burfield (No 3) [2006] SASC 97.
Part 8A, of which section 269O is a part, was introduced into the Criminal Law Consolidation Act by the Criminal Law Consolidation (Mental Impairment) Amendment Act 1995 (SA). Prior to the insertion of Part 8A, the common law provided that, on a defendant being found either unfit to plead or else not guilty by reason of insanity, the court was obliged to order that detention be at the pleasure of Her Majesty.
Commentators suggested that such orders were too severe and inhumane. Commentators also suggested that this produced the undesirable result that only those charged with the gravest of crimes would invoke these defences. This would happen because those charged with lesser crimes would fear being detained for a longer period than the term of imprisonment that would be imposed if they did not suffer from a mental illness.[20]
[20] State of South Australia, Parliamentary Debates, House of Assembly, 21 November 1995, p.617-620, (The Hon SJ Baker), State of South Australia, Parliamentary debates, House of Assembly, 23 November 1995, p.737-739 (Ms White).
The South Australian legislature enacted Part 8A, following legislative change in other jurisdictions, to give South Australia’s law a degree of consistency with the laws of other jurisdictions and also with international legal instruments to which Australia was a party.[21]
[21] These instruments included the International Covenant on Civil and Political Rights and the UN Draft Guidelines and Principles for the Protection of the Mentally Ill.
The Criminal Law Consolidation (Mental Impairment) Amendment Act intended to reform the criminal law of South Australia by adopting the High Court’s common law definition of mental illness, by removing the prospect of indefinite detention, and by also removing what was described as archaic and offensive language. The legislation also defined the role of judge and jury when mental competence or mental fitness to stand trial was at issue. The legislation separated the question of whether a defendant suffered from a mental impairment from the question of whether the objective elements of an offence had been committed. The operation of Part 8A was designed to remove the suggested harshness of the common law, which, as it stood, left the mentally ill with limited rights.
One of the primary purposes of Part 8A was to provide courts with power to make the most appropriate order once a court had found a defendant unfit to plead or not criminally responsible because of mental impairment. The court, pursuant to section 269O, was given the option to release the defendant unconditionally or to make a supervision order.
As discussed earlier, following the making of a supervision order, a court is required to fix a limiting term. In this process, a court cannot consider the mental impairment of a defendant nor set what would be the equivalent of a non-parole period.
The legislation does not discriminate against a person who suffers mental impairment or who is not fit to plead. The legislation provides a humane regime for the treatment of the mentally impaired. Part 8A provides flexibility with respect to a person detained under a supervision order
Section 269P of Part 8A provides that a supervision order can be varied or revoked at any time. Section 269T provides the court with power, when determining whether an order should be varied or revoked, to consider the issue of mental impairment. Importantly, Part 8A provides that, if a defendant is sufficiently rehabilitated before the expiration of the limiting term, application can be made to vary or revoke a supervision order.
If a defendant, at the end of the limiting term, is still a danger as a result of mental infirmity, application can be made pursuant to the provisions of the Mental Health Act 1993 (SA) for continued detention.
It is within this context that the note to section 269O(2) must be considered. The legislature intended that the court fix a limiting term having regard to the gravity of the objective conduct whilst allowing for a supervision order to be varied or revoked on a consideration of a defendant’s ongoing rehabilitation. The limiting term is not intended to be punishment. A defendant has not been found guilty. Rather, a limiting term ensures that a defendant receives the appropriate period of detention or control and supervision relevant to the conduct the subject of the charge. It also enables treatment to be provided, and it allows the community to be protected whilst a defendant receives treatment. It does not unfairly disadvantage a defendant to fix a limiting term without considering mental impairment.
Notwithstanding that the rationale for fixing a limiting term is clear, the process of doing so has been described as an “artificial exercise”.[22] To fix a limiting term by reference to a sentence that would have been imposed had the defendant been found guilty of the relevant offence without taking account of mental impairment is necessarily contrived. Mental impairment is relevant to many factors that could arise in the sentencing process. The description of “artificial” is apt.
[22] R v Weiss [2005] SASC 338 at [9] (Bleby J).
Since the insertion of Part 8A into the Criminal Law Consolidation Act, there has been limited judicial discussion of section 269O(2). Doyle CJ briefly discussed the fixing of a limiting term in R v T.[23]
I consider that s 269O makes it clear, by note 1, that in fixing the limiting term the court must not take account of the defendant’s mental impairment. That meant that it was not appropriate to consider the mental impairment from which [the defendant] was suffering, and accordingly it was not appropriate to sentence him on the basis that he was a person of seriously diminished responsibility. In fixing the limiting term it was appropriate for the Judge to have regard to all matters that would usually be relevant to the fixing of a sentence for the offence, but not to have regard to matters that were based upon or arose out of [the defendant’s] mental impairment.
It may be that in fixing the limiting term the Court does not engage in exactly the same process that it does when imposing a sentence. Note 1 requires the Court to fix a limiting term “by reference to the sentence that would have been imposed”. But, in my opinion, one cannot say that the Judge should not have regard to a matter such as general and personal deterrence when fixing a limiting term under this provision. I agree that the result may seem harsh, but the terms of the provision are clear. As well, it is important to bear in mind the flexible regime for treatment that is envisaged under Pt 8A…[I]t is relevant to bear in mind that the limiting term does no more than fix the period during which [the defendant] may be subjected to restraints under Pt 8A.
These observations suggest that, whilst a court does not engage in entirely the same process when fixing a limiting term as it does when imposing a sentence, personal and general deterrence are factors that can be considered.
[23] R v T (1999) 75 SASR 235.
Section 269O(2) obliges a court to fix a term equivalent to “the period of imprisonment ... that would, in the court’s opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established”. However, note (1) makes it plain that the equivalent term is to be fixed “by reference to” the sentence that would have been imposed. The phrase “by reference to” introduces some elasticity into the process.
The application of section 269O(2) in the present case required the Judge to consider the terms of imprisonment that would have been appropriate if Mr Davey had been convicted of each of the offences of which the objective elements had been established. In that respect, in the circumstances before the Judge, separate consideration was required in regard to the conduct of 2001, the conduct of September 2004 and the course of conduct giving rise to the five counts in October 2004. This would be followed in the ordinary course by consideration of whether the terms of imprisonment would have been concurrent or cumulative. Then a consideration of whether one sentence should be imposed pursuant to 18A of the Criminal Law (Sentencing) Act 1988 (SA) could have been be undertaken. This Court is left to speculate as to the course followed by the Judge under appeal.
The Circumstances
Assault Occasioning Bodily Harm
The circumstances of the count of assault occasioning actual bodily harm were that Mr Davey approached the victim in a general store at Ungarra on a weekday morning. Mr Davey questioned the victim about an alleged debt and then without warning struck the victim to the back of the head. When the victim had fallen to the ground, Mr Davey kicked his back three or four times. Subsequently, the victim was taken to the hospital, where he was found to have sustained fractured ribs, contusions to the lower lip, laceration to the left cheekbone, and swelling and bruising behind the right ear.
The maximum penalty for an offence of assault occasioning actual bodily harm is a term of imprisonment for five years.
Carrying an Offensive Weapon
The count of carrying an offensive weapon without lawful excuse arose in circumstances where Mr Davey had been arrested and taken to the Watch-house. Upon being searched, Mr Davey was found to be in possession of a butcher knife with a 15-centimetre blade. The maximum penalty for this offence is a term of imprisonment of six months. Mr Davey had been convicted of carrying an offensive weapon in 1994 and of being in possession of a firearm without a licence in 1998.
Aggravated Robbery and Threatening Harm
With regard to the objective elements established with respect to the count of aggravated robbery, the conclusion can be reached that the conduct was serious. Mr Davey approached the counter of a suburban delicatessen, demanded cash and produced a knife. He placed the knife and a white plastic bag on the counter and repeated his demand for money. The proprietor took money from a cash register and placed about $500 in the white bag. Mr Davey then ran from the shop to the railway station and boarded a train.

The counts of threatening behaviour relate to events on the train. Police officers approached Mr Davey whilst he was seated in a train carriage. There were other passengers in the carriage. The police noted that Mr Davey had his right hand inside the front of his jacket. An officer approached Mr Davey and asked that he leave the train. Mr Davey then took his hand from his jacket. He was holding a large silver-bladed hunting knife. Mr Davey stayed seated and brandished the knife at the police officers. Nearby passengers moved away. Police officers requested Mr Davey to put the knife down and not to move. Mr Davey refused.
Mr Davey then moved into the aisle of the train. He held the knife with the blade pointing towards the police officers. The police officers warned passengers sitting in nearby seats to get down. At about this time, the train stopped at a station and the police requested passengers to leave. Some did so. At this point Mr Davey moved further toward the police officers. They again directed him to put the knife down but he again refused to do so.
A police officer drew a firearm with the muzzle pointed towards the floor. Again, Mr Davey threatened the officer with the knife. The officer told Mr Davey that if he refused to drop the knife he would be sprayed with capsicum spray. Mr Davey refused and raised the knife. At this stage, police officers were helping passengers leave the train and Mr Davey pointed the knife towards some of the passengers, telling them to get off.
Mr Davey moved closer towards the police officers, who again told him not to move and asked him to put the knife down. Mr Davey continued toward the police with the blade of the knife pointing toward them. At that point, passengers had cleared the area behind Mr Davey and the police officer levelled his firearm at Mr Davey’s chest. Again, police officers told Mr Davey to put the knife down and not to move. By this time, Mr Davey was extremely agitated and was swinging around to face away from the officers and then back to the officers.
A police officer sprayed Mr Davey with capsicum spray directly into his face. He was sprayed a number of times but appeared to be no more than mildly disorientated. At this time, the police left the carriage, leaving Mr Davey as the only person remaining on board. Mr Davey then informed the police officers that they would have to shoot him to get him off the train. STAR group officers arrived, removed Mr Davey from the train and restrained him.
The incident giving rise to the count of aggravated robbery and the counts of threatened harm are serious matters. The conduct was part of an ongoing course of conduct relating to the offence and the attempted escape. However, this does not diminish the seriousness of the conduct in threatening the police officers. Viewed objectively, both the aggravated robbery and the threatening harm offences were serious and called for a lengthy term of imprisonment.
Guidance from Sentencing Authorities
Counsel for the appellant submitted that the appropriate starting point, for sentencing for an offence of aggravated robbery is six to eight years.[24] This submission faces the immediate difficulty that other sentences inevitably have regard to the mental state of a defendant. Are there good rehabilitation prosects? Are contrition and remorse evident? What is the extent of a defendant’s criminal culpability? Is there a need for personal deterrence? Each of these questions demonstrate the relevance of a particular defendant’s mental state to the sentencing process.
[24] R v Place (2002) 81 SASR 395 at 429.
The Victorian Court of Appeal discussed the relevance of serious psychiatric illness to sentencing in R v Tsiaras:[25]
Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.
[25] R v Tsiaras [1996] 1 VR 398 at 400.
The intention of the legislature is clear. The court, when fixing a limiting term, is obliged to undertake the hypothetical task prescribed by section 269O(2). The court must assess the sentence that would have been appropriate in respect of the crime of which the objective elements have been established. The court must work through the exercise of determining that hypothetical sentence, excluding from consideration the effects of the defendant’s mental impairment on the sentencing process. This may lead to the fixing of limiting terms that approach the higher end of the range of sentences that may be imposed. Generally, as observed in Tsiaras, factors affected by mental impairment would mitigate rather than aggravate the sentence to be imposed.[26]
[26] R v Burfield (No 3) (2006) SASC 97 at [24].
The artificiality of the section 269O approach is underscored when attempts are made to make use of sentences imposed for similar conduct. The range of penalties that may have been imposed for offences arising out of similar factual circumstances must be assessed with great care. Other cases are likely to be of limited use.
The Limiting Term
These considerations would suggest that, excluding considerations relating to Mr Davey’s mental impairment, a hypothetical sentence in the range of eight to ten years in respect of the offence of aggravated robbery and the offences of threatening harm could be expected. The assault occasioning actual bodily harm would, in the circumstances, result in a hypothetical sentence of one to two years’ imprisonment, and the offence of carrying an offensive weapon would hypothetically result in a short term of imprisonment of some months. Having regard to the above considerations and the principle of totality, one could expect a total head sentence in the order of ten to twelve years. In these circumstances, it may be concluded that the Judge identified a starting point for the fixing of the limiting term within the appropriate range. A starting point of 11 years was appropriate.
Reduction on Account of Agreeing the Objective Elements
It is possible to infer from the remarks of the Judge that no reduction on account of the steps taken toward agreeing the objective elements of all charges was made. This inference should be drawn because of the risk of an injustice to the appellant.
Is it proper to make a reduction in these circumstances? In Weiss,[27] Bleby J, when fixing a limiting term, observed:[28]
I must take into account Mr Weiss’ co-operation with the police, his ready admission of the objective elements of the offences and what I am satisfied is his genuine and heartfelt contrition to those he traumatised so severely on 29-30 January 2004. On the other hand, if fixing a sentence, I would have to give significant weight to factors of personal and general deterrence. These are multiple and serious offences.
In Bartholomaeus,[29] Layton J, when fixing a limiting term, observed:[30]
There are also other factors which I have taken into account which would operate to reduce the individual sentences, particularly the attempted murder. I consider it appropriate to make allowance for the fact that the defendant, who is currently on medication and is able to make a decision, has instructed his counsel that the objective elements of the offences were accepted. This is not the same as a discount which is taken into account for pleas of guilty, as indeed there are no such pleas. On the other hand there are analogous benefits which flow from such admission of objective elements, albeit that the case against him on the objective elements was very strong.
I have also had regard to his clear expressions of contrition and remorse including his personally expressed apology to [the victim] made in Court on the day of submissions.
[27] R v Weiss [2005] SASC 338.
[28] R v Weiss [2005] SASC 338 at [32].
[29] R v Bartholomaeus [2006] SASC 13.
[30] R v Bartholomaeus [2006] SASC 13 at [76]-[77].
In Cameron v The Queen,[31] the High Court made reductions in sentence following pleas of guilty. Gummow and Callinan JJ observed:[32]
[31] Cameron v The Queen (2002) 209 CLR 339.
[32] Cameron v The Queen (2002) 209 CLR 339 at 343 (footnotes omitted).
It is well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. In Siganto v The Queen it was said:
"a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case."
It should at once be noted that remorse is not necessarily the only subjective matter revealed by a plea of guilty. The plea may also indicate acceptance of responsibility and a willingness to facilitate the course of justice.
Although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial. The distinction between allowing a reduction for a plea of guilty and not penalising a convicted person for not pleading guilty is not without its subtleties, but it is, nonetheless, a real distinction, albeit one the rationale for which may need some refinement in expression if the distinction is to be seen as non-discriminatory.
It is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another's plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the pragmatic and objective ground that the plea has saved the community the expense of a trial. However, the same is not true if the plea is seen, subjectively, as the willingness of the offender to facilitate the course of justice.
Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing.
This treatment of the matter is consistent with what in their joint judgment in Castlemaine Tooheys Ltd v South Australia Gaudron and McHugh JJ identified as the general considerations which result in particular treatment being treated as discriminatory. One aspect of the legal notion of discrimination "lies in the unequal treatment of equals". The "equals" here are those required to plead guilty or not guilty; they stand as equals before the criminal law and processes of Western Australia. But is the differential treatment of such persons and the unequal outcome with respect to sentence the product of a distinction which is appropriate and adapted to the attainment of a proper objective, here the facilitation of the course of justice by the willingness of the accused to plead in a particular fashion? The answer, as indicated above, is in the affirmative.
The rationale for making a reduction on account of a plea of guilty was also considered by Kirby J:[33]
The true foundation for the discount for a plea of guilty is not a reward for remorse or its anticipated consequences but acceptance that it is in the public interest to provide the discount. Nevertheless, where genuine remorse is established to the satisfaction of the sentencing judge, it may be in the public interest to mitigate punishment further as a reinforcement for the prisoner’s resolve to avoid repetition of such conduct in the future and as an example to others. However “remorse” is not, as such, a precondition for the provision of a discount for a plea of guilty. There are other features of the public interest that need to be given weight.
The main features of the public interest, relevant to the discount for a plea of guilty, are “purely utilitarian”. They include the fact that a plea of guilty saves the community the cost and inconvenience of the trial of the prisoner which must otherwise be undertaken. It also involves a saving in costs that must otherwise be expended upon the provision of judicial and court facilities; prosecutorial operations; the supply of legal aid to accused persons; witness fees; and the fees paid, and inconveniences caused, to any jurors summoned to perform jury service…
It also encourages the clear-up rate for crime and so vindicates public confidence in the processes established to protect the community and uphold its laws. A plea of guilty may also help the victims of crime to put their experience behind them; to receive vindication and support from their families and friends and possibly assistance from the community for injuries they have suffered. Especially in cases of homicide and sexual offences, a plea of guilty may spare the victim or the victim’s family and friends the ordeal of having to give evidence.
[33] Cameron v The Queen (2002) 209 CLR 339 at 360-361 (footnotes omitted).
In Burfield (No 3), I reached the conclusion that a reduction on account of co-operation was appropriate. Having referred to the remarks of Kirby J in Cameron, I concluded: [34]
This rationale has equal application to Mr Burfield’s co-operation in the present case. Consideration of public policy allows a reduction for cooperation and the admission of the objective elements of an alleged offence when fixing a limiting term.
…
If I were to sentence Mr Burfield for the crime of attempted murder without taking account of his mental impairment, I would find little to mitigate the sentence that I should impose. The crime would be very grave. He continues to threaten his mother. She has and continues to experience much suffering. I would have fixed a notional head sentence of 14 years’ imprisonment. I would in the event of co-operation with the authorities have made a reduction of one and a half years. I would have backdated the sentence to 10 September 2004.
[34] R v Burfield (No.3) [2006] SASC 97 at 23], [45].
In Mr Davey’s case, counsel for the Crown submitted that it was inappropriate to make any reduction on account of the conduct of the appellant in agreeing the objective elements of each of the offences. Counsel contended that in the circumstances of mental illness this was very much the responsibility of counsel and that no credit should be given to the appellant. Counsel pointed out that the provisions of section 269M(B) contemplated a trial of the objective elements and required that the court must be satisfied that the objective elements have been proved beyond reasonable doubt and must do so on evidence placed before it.
Counsel for the Crown further submitted that an inconsistency would arise if a limiting term were reduced on account of a defendant agreeing the objective elements of the offence. Counsel argued that as the offence of murder carries a mandatory sentence of life imprisonment, a person found not guilty of murder by reason of mental impairment would also be given a limiting term of life. It was counsel’s contention that this would lead to an inconsistency, in that limiting terms could be reduced on utilitarian grounds except in the case where the established objective elements were those of the offence of murder.
The anomaly referred to in this submission is an anomaly that also arises on sentencing. A defendant found guilty of murder cannot have his life sentence reduced on account of a plea of guilty or, for that matter, for any contrition and remorse. This is the inevitable effect of a mandatory sentence.
Counsel for the appellant submitted that it would be unjust not to make some reduction for cooperation. Counsel accepted that this would be based purely on utilitarian grounds, as contrition and remorse would, in the circumstances of the present case, have no relevance with regard to the nature of the appellant’s mental illness. Counsel pointed out that the appellant had throughout acknowledged the objective elements and been successful on the issue of unfitness to plead. Counsel further emphasised that when the Judge was contemplating what sentence would have been imposed, having reference to the offences of which the objective elements had been established, a reduction would have been made for cooperation.
The utilitarian considerations allow for a reduction to be made on account of a defendant’s cooperation when fixing a limiting term. In the present case, the appellant’s conduct undoubtedly saved considerable time and cost. That conduct has allowed court time to be available for other litigants. Such conduct is to be encouraged for the utilitarian reasons identified in Cameron.
In the circumstances it is appropriate to make a reduction of 18 months from the starting point of 11 years. The learned Judge was in error not to do so.
Conclusion
Having reviewed all the circumstances, I consider that the Judge was correct to fix a starting point for the limiting term of 11 years. However, that starting point should be reduced to nine years and six months on account of the appellant’s conduct in agreeing to the objective elements of the charged offence. A further reduction of 12 months should be made on account of the time spent by the appellant in custody before the fixing of the limiting term. The resultant limiting term of eight years and six months should commence on 27 October 2005, the day on which the Judge fixed the limiting term to commence.
The Judge ordered the immediate release of the appellant on licence. That aspect of the Judge’s order has not been the subject of appeal. As earlier pointed out, in the event of the appellant, at the termination of the limiting term, continuing to suffer mental infirmity giving rise to a danger to the community, application can be made for his further detention pursuant to the provisions of the Mental Health Act.
This appeal should be allowed for the purposes of reducing the limiting term to a period of eight years and six months.
ANDERSON J: In this matter I have had the advantage of reading the draft reasons for judgment of both Bleby and Gray JJ.
I agree with both their Honours that the reasons given by the trial Judge as to how the limiting term was fixed are inadequate.
I also agree that from the Judge’s reasons it is clear that no allowance was made for the concession made by the appellant relating to the objective elements of the offence.
In the circumstances, both their Honours have indicated that any discount is to be limited to the appellant’s cooperation in relation to the aspects of the objective elements of the offence. In particular, the discount should not include any allowance for the aspect of remorse and contrition.
The aspect of remorse and contrition is only one ingredient of the discount. The High Court in Siganto v R referred to by Gray J in his reasons, speaks of the aspect of cooperation as the “pragmatic ground”, that is, the community being spared the expense and time of a trial. When that aspect is isolated from the other factors including remorse and contrition and a willingness to facilitate the course of justice, I think that in the circumstances of this case it is accurately reflected by a reduction of 18 months.

I therefore agree that a limiting term of eight years and six months should be fixed, and that that term should commence on 27 October 2005.