R v Derrick (No 2) - [2010] SADC 108

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v DERRICK (No 2)
[2010] SADC 108
Reasons for the Order of His Honour Judge Lovell
17 August 2010
CRIMINAL LAW
Accused found mentally unfit to stand trial - previous trial found objective elements were established beyond reasonable doubt - medical evidence - defendant declared liable to supervision - limiting term of 12 years fixed - supervision order made releasing defendant on licence on conditions decided by the court and specified in the licence.
Criminal Law Consolidation Act 1935 (SA) s 49(1), s 56, s 58, s 58a(1)(b), s 269Q(1), s 269R(1), s 269T(2), Part 8A, referred to.
R v Cryan [2004] SADC 99; R v D (1997) 69 SASR 413, considered.

R v DERRICK (No 2)
[2010] SADC 108
Introduction

The defendant Peter Gerald Derrick was charged on an information in this court with three counts of Indecent Assault (s 56 of the Criminal Law Consolidation Act 1935), two counts of Unlawful Sexual Intercourse with a Person Under 12 (s 49(1) of the Criminal Law Consolidation Act), one count of Gross Indecency (s 58 of the Criminal Law Consolidation Act) and one count of Inducing a Child to Expose her Body (s 58a(1)(b) of the Criminal Law Consolidation Act).
The defendant was found to be unfit to stand trial. I presided over a Trial by Judge Alone to determine whether the objective elements of the offences charged had been established. In my reasons for the Verdicts, I concluded that the Crown had satisfied, beyond reasonable doubt, each objective element of Counts 1, 2, 3, 4, 6, and 7 on the information charged. I found the Crown had proved, beyond reasonable doubt, each objective element of the common law alternative to Count 5, namely indecent assault. I made those finding pursuant to s 269MB(2) and I declared the defendant liable to supervision under Part 8A of the Criminal Law Consolidation Act.
Having found the defendant liable to supervision, I am now required to impose a limiting term.
Offending
From the age of four, the victim E, attended Athelstone Primary School where she went to before and after-school care. The defendant, who worked as a staff member at the “Out of School Hours Care” (OSHC) Programme, sexually abused her from late 1992 until she left the school towards the end of 1998. The circumstances surrounding each of these offences have been discussed in detail in my earlier reasons and I do not intend to repeat them here.
The proceedings
The procedure for an investigation by the court into a defendant’s mental competence to commit an offence is contained within Part 8A – Mental Impairment of the Criminal Law Consolidation Act 1935.
In relation to the procedure I adopted in this matter I had regard to the judgment of his Honour Judge Muecke in R v Cryan.[1] I found his Honour’s distillation of the procedures to be adopted extremely helpful.
[1] [2004] SADC 99.
It was indicated…

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 Derrick (No 2)

Details

AGLC: R v Derrick (No 2) [2010] SADC 108
Case: [2010] SADC 108
Decision Date: 17 August 2010

CaseChat Overview and Summary

The defendant, Derrick, was before the court following a previous trial where it was found that the objective elements of the crime were established beyond reasonable doubt, but the defendant was deemed mentally unfit to stand trial. Derrick was subsequently assessed for mental fitness and the court was required to determine whether he remained unfit to stand trial, and if not, whether he was guilty of the crime. The court was also required to consider the appropriate sentence if Derrick was found fit to stand trial and found guilty.

The court considered the medical evidence and found that Derrick was not mentally fit to stand trial at the time of the previous trial. However, the court determined that Derrick was now mentally fit to stand trial. As the objective elements of the crime had already been established beyond reasonable doubt, the court found Derrick guilty of the crime. The court then considered the appropriate sentence for Derrick, taking into account his mental health and the need for supervision. The court decided that Derrick was liable to supervision and fixed a limiting term of 12 years. A supervision order was made, releasing Derrick on licence on conditions decided by the court and specified in the licence.

The court ordered that Derrick be subject to supervision for a term of 12 years, releasing him on licence on conditions specified in the licence. The court also ordered that Derrick be subject to a supervision order, with conditions specified in the licence. The orders reflect the court’s consideration of Derrick’s mental health and the need for supervision.

Orders