R v Draoui - [2008] SASC 188

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DRAOUI
[2008] SASC 188
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan, The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice Anderson)
9 July 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ACCUSED UNFIT TO PLEAD OR INCAPABLE DURING TRIAL - OTHER MATTERS
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - PLEA OF GUILTY, CONTRITION AND CO-OPERATION
Appeal against terms of supervision order and length of limiting term - appellant charged with numerous offences of dishonesty - appellant found mentally unfit to stand trial - trial judge found the objective elements of the charges proved - trial judge made a supervision order under Part 8A of the Criminal Law Consolidation Act 1935 - pursuant to s 269O(2) of the Act, trial judge set limiting term of 10 years - whether limiting term was manifestly excessive - held by Sulan J (Doyle CJ, Duggan, Vanstone and Anderson JJ agreeing), limiting term not manifestly excessive - whether trial judge was required to take into account fact that appellant did not contest the finding that the objective elements proved - held by Vanstone J (Doyle CJ, Duggan, Sulan and Anderson JJ agreeing) overruling R v Davey (2006) 95 SASR 63, an acknowledgment of guilt is not to be equated with an admission of objective elements and there is no rule of law or practice requiring credit to be given - whether condition of residency was unduly onerous - held by Sulan J (Doyle CJ, Duggan, Vanstone and Anderson JJ agreeing) condition appropriate in circumstances - whether conditions enabling detention of appellant at discretion of Director of Forensic Mental Health Services valid - held by Sulan J (Doyle CJ, Duggan, Vanstone and Anderson JJ agreeing) allowing appeal on this ground, Part 8A creates scheme in which Court has power to impose conditions - conditions in question effectively delegate Court's power to the Director, which is beyond the scope of Part 8A - per curiam: conditions in question in supervision order struck out - supervision order otherwise affirmed.
Criminal Law Consolidation Act 1935 ss 269F, 269G, 269H, 269M, 269N, 269O, 269P, 269Q, 269S, 269T, 269U, 269W, 269Y, 269ZB; Criminal Law (Sentencing) Act 1988 s 10; Mental Health Act 1993 s 12, referred to.
Cameron v The Queen (2002) 209 CLR 339; Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251; R v T (1999) 75 SASR 235, applied.
R v Davey (2006) 95 SASR 63, not followed.
R v Place (2002) 81 SASR 395; R v Shannon (1979) 21 SASR 442; R v Ta [2002] VSCA 142; Siganto v The Queen (1998) 194 CLR 656, discussed.
Pillay v The Queen (2006) 167 A Crim R 312; R v Adami (1989) 51 SASR 229; R v Bartholomaeus [2006] SASC 13; R v Burfield (No 3) [2006] SASC 97; R v Cavanagh [1999] SASC 418; R v Carpentieri (2001) 81 SASR 164; R v D [2003] QCA 547; R v Dubois (2004) 88 SASR 304; R v Hoerler [2003] NSWSC 1187; R v McLachlan [2004] SASC 277; R v Musolino [2004] SASC 89; R v Powell (2001) 81 SASR 9; R v Weiss [2005] SASC 338; R v Winchester (1992) 58 A Crim R 345, considered.

R v DRAOUI
[2008] SASC 188
Court of Criminal Appeal: Doyle CJ, Duggan, Sulan, Vanstone and Anderson JJ

DOYLE CJ: I have had the advantage of reading the reasons prepared by Sulan J and Vanstone J. I agree with the reasons of each of them.
Accordingly, I would order that conditions 10, 11 and 12 of the licence on which Mr Draoui was released be struck out. Apart from that, I would dismiss the appeal.
DUGGAN J: I agree with the reasons prepared by Sulan J and Vanstone J.
I would allow the appeal for the limited purpose of striking out conditions 10, 11 and 12 of the licence. I would not reduce the limiting term fixed by the District Court judge.
SULAN J: This is an appeal against the length and terms of a supervision order fixed by the District Court pursuant to Part 8A of the Criminal Law Consolidation Act 1935 (‘the Act’). The appeal is brought pursuant to s 269Y(2) of the Act, which provides that an appeal lies against a supervision order in the same way as an appeal against sentence.
Background
By Information dated 20 November 2003, the appellant was charged in the Magistrates Court with two counts of false pretences. It was alleged that, between 10 April 2000 and 10 July 2000, the appellant caused the National Australia Bank to endorse cheques by fraudulently pretending that assets and income on an application for credit were true and correct. The appellant misinformed the bank about his asset position and his income. The total amount the subject of the two offences was about $203,000.
Additionally, on 7 April 2004, the appellant appeared in the District Court and pleaded not guilty to 82 offences which alleged 67 counts of false pretences, five counts of fraudulent misappropriation, four counts of forging cheques, five offences of uttering cheques knowing them to have been forged and one count of fraud other than false pretences. One of the counts of fraudulent misappropriation was subsequently withdrawn. It was alleged that these offences occurred between 8 September 2000 and 2 May 2002.
The information of 20 November 2003 was transferred from the Magistrates Court to the District Court, to be heard together with the District Court information.
In summary, in respect of all the offences, the appellant borrowed money and purchased goods on credit and by cheque from various financial institutions and individuals, with the borrowings and credit being obtained under false pretences and the cheques being dishonoured or forged. During the relevant time, the appellant’s only regular source of income was unemployment benefits. The conduct the subject of the charges arose out of the appellant’s transactions with finance companies and other businesses in respect of certain purported commercial ventures. The appellant was a friend of many of the proprietors of the businesses with which he dealt. The majority of the offences related to transactions concerning the commencement of a wholesale nut business in August 2001, called ‘Absolutely Nuts’.
On 5 April 2004, the appellant made an application for trial by judge alone. Between 7 April 2004 and 20 November 2006, the matter was repeatedly adjourned for investigation into whether the appellant was mentally fit to stand trial. Over that time, a number of psychiatric and neuropsychological reports were obtained. On 20 November 2006, the trial Judge was satisfied on the balance of probabilities that, pursuant to s 269H of the Act, the appellant was mentally unfit to stand trial on any of the charges.
Pursuant to s 269M, the trial Judge then considered whether the objective elements of the offences had been established. The appellant consented to the Crown tendering the declarations of the prosecution witnesses and did not seek to cross-examine any of those witnesses. On 15 March 2007, the trial Judge recorded findings that the objective elements of each offence charged had been proved beyond reasonable doubt. On the same day, the trial Judge declared the appellant liable to supervision under Part 8A of the Act.
On 27 September 2007, in accordance with s 269O(2), the Judge fixed a limiting term of 10 years. Pursuant to s 269O(1)(b)(ii), the Judge made a supervision order releasing the appellant on licence upon various conditions.
In considering the limiting term to be fixed, the trial Judge said:
Your conduct in the years 2000 to 2002 that I have described had devastating consequences on some of those who suffered from it. There has been a sum close to half a million dollars lost by banks, financiers and operators of businesses, including small businesses. A number of those are unhappy with my finding regarding your unfitness to stand trial. The man who supplied you with nuts to the value of nearly $175,000 which were never paid for has been severely traumatised by your conduct and its aftermath. He said he has lost his business, money that he and his father had put into the business, and his house. He has had to start all over again. He has had to deal with the embarrassment of having his business go into receivership, having developed a sound reputation over years of trading. He has found his experience “financially and emotionally crippling”. He is frustrated and disillusioned with the justice system which he considers has failed to do anything about your conduct. Other people who suffered from your conduct have expressed similar sentiments about you and the finding regarding your fitness to stand trial.
No money has been repaid to any of the victims of your conduct. So far as I am aware no offer has been made to do so.
He concluded:
The limiting term that I must fix must be equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would have been appropriate if you had been convicted of the offences of which the objective elements have been established.
I consider that it is appropriate to fix a single limiting term, and that an appropriate limiting term in your case, and in the circumstances of the conduct of which I have found the objective elements established, is a period of 10 years.
Grounds of Appeal
The appellant appealed on three grounds. First, that the limiting term of 10 years is manifestly excessive. Secondly, that the residency condition of the licence is unduly restrictive. Thirdly, that condition 10 of the licence, in its present terms, is either ‘invalid or excessive’.
Ground 1 – Manifestly Excessive
Section 269O(2) of the Act provides:
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 established.
The note to the section provides:
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.
In fixing a limiting term, the court must fix a term which is equal to the term of imprisonment to which the defendant would have been sentenced had he or she been convicted of the offence. The setting of a limiting term by equating that term to the sentence which would have been imposed is somewhat artificial. Nevertheless, the words of the section are plain. This Court has previously decided that the length of the limiting term is to be equated to the head sentence of imprisonment that would have been imposed on conviction.[1]
[1] Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251.
Mr Stokes, who appeared for the appellant, made two submissions as to why the length of the limiting term is manifestly excessive. First, he submitted that the term is manifestly excessive when the length of the limiting term is compared with lengths of imprisonment imposed in other comparable cases. Secondly, he submitted that the trial Judge failed to reduce the length of the term on account of the appellant having agreed to the witness statements being tendered and having waived any right to cross-examine witnesses, which resulted in a significant saving of time and cost to the prosecution and the Court.
He also submitted that the actual losses incurred amounted to approximately $300,000, not $500,000, as found by the trial Judge, as some amounts had been recovered and there had been partial restitution. It appears that the Judge failed to take into account that the actual loss to the supplier of nuts was $68,000, not $175,000. There had been a repayment of some of the monies obtained fraudulently. Furthermore, the actual loss to the National Australia Bank was $103,349.09. The actual total loss was, therefore, in the vicinity of $300,000.
The gravamen of the offences was that they involved numerous fraudulent transactions over a long period. The victims included the appellant’s friends who had placed their trust in him. Although the Judge may have made an error in concluding that the actual loss was in the vicinity of $500,000 rather than $300,000, the length of the limiting term was, nevertheless, not manifestly excessive in the circumstances.
As to Mr Stokes’ first submission, he referred the Court to a number of authorities involving defalcations totalling losses to victims varying from about $240,000 to $2 million. Other than the submission that the Judge failed to have regard to the appellant’s co-operation in not contesting the objective factors, Mr Stokes did not point to an error in the Judge’s reasoning. His submission that the period of the limiting term was excessive was based on a comparison with sentences in other cases.[2]
[2]See R v Cavanagh [1999] SASC 418; R v Powell (2001) 81 SASR 9; R v Musolino [2004] SASC 89; R v McLachlan [2004] SASC 277; R v Dubois (2004) 88 SASR 304.
An examination of the facts in each case referred to by Mr Stokes demonstrates the difficulty in comparing sentences. In each case, the conduct was different. The personal circumstances of each offender varied, as did the effect of their conduct upon victims. The Court in determining the length of a limiting term is prohibited from taking into account a person’s mental impairment at the time of the offending, which further demonstrates the difficulty of comparing the length of a sentence with the length of a limiting term.
In this case, having regard to the conduct, the period over which it continued and the extent of the losses and the effect of the conduct upon the victims, the length of the limiting term cannot be regarded as manifestly excessive. The period is at the higher end of the range for this offending but, in my view, the period is within the acceptable range and is not manifestly excessive.
The second submission of Mr Stokes was that the period of the limiting term is excessive as no reduction was given on account of the appellant’s consent to the witness statements being tendered in respect of the trial of the objective elements, so as not to require the witnesses to be called. Mr Hinton QC, who appeared for the respondent, accepted that in Davey’s case,[3] this Court held that where a defendant agrees the objective elements of an offence or offences with which he has been charged, it would be appropriate to acknowledge such co-operation by a reduction in the limiting term in the same way as a sentence would be reduced to take account of a plea of guilty. The Judge did not refer to the appellant’s co-operation in consenting to the tendering of the witness statements. Mr Hinton agreed that prima facie the Judge had erred. Mr Hinton submitted that it was not mandatory to afford a defendant a discount in sentence in return for a defendant pleading guilty.
[3] R v Davey (2006) 95 SASR 63.
I have read the reasons of Vanstone J. I agree with Vanstone J that the admission of the objective elements of the offence is not to be equated with a plea of guilty. I also agree that the terms of s 269O do not admit such consideration. I agree that it is not appropriate to reduce a limiting term for the reasons that a defendant does not contest, either on instruction to their counsel or counsel acting pursuant to s 269W, the objective facts.
Ground 2 – Residency Condition
The ninth condition of the licence requires:
That during the period of his release on licence the defendant reside at 4 Colman Road Campbelltown in the State of South Australia or at such place as directed (but within South Australia) from time to time by his supervising officer.
The appellant lives with his wife. They are supported by their children. Mr Stokes submitted that the appellant should be able to shift residence with the approval of his treating psychiatrist, or his supervising officer, rather than as directed by his supervising officer. He submitted that the appellant is not a danger to the community in a manner that would warrant such a restriction on his residential arrangements.
Section 269S of the Act provides:
In deciding whether to release a defendant under this Division, or the conditions of a licence, the court must apply the principle that restrictions on the defendant's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
Conditions as to residency in terms akin to those of the ninth condition are, in many cases, a necessary part of a supervision order. As a general rule, the need to both protect the public and facilitate the rehabilitation of a defendant requires supervising authorities to be able to direct the movements and living arrangements of persons subject to supervision orders.
Mr Stokes submitted that the condition was unduly onerous. He accepted that before changing residence it is appropriate that the appellant obtain approval from his supervising officer, but argued that he should not be required to move residence upon the direction of a supervising officer. The appellant requires ongoing treatment. Persons who are released on licence initially require close supervision and ongoing treatment. If a direction were given which was unduly onerous or unfair, the appellant could apply to the Court to vary the condition. Although it was open to the Judge to require the appellant to seek approval to change residence, rather than be required to change residence if so directed, it cannot be said the condition is unduly onerous. The condition that he reside in South Australia at such place as directed by his supervising officer is appropriate. I would not interfere with the condition.
Ground 3 – Detainment Condition
Conditions 10, 11 and 12 provide:
10.That the defendant be detained at James Nash House or other approved treatment centre at the discretion of the Director or the nominee if:-
(a) The Director or the nominee is satisfied that the defendant has breached any of the conditions numbered 2, 3, 4, 7 or 8 of this order, or
(b) The Director or the nominee is concerned that any action or pattern of behaviour on the defendant’s part is likely to lead to a breach of any of the conditions numbered 2, 3, 4, 7 or 8 of this order
PROVIDED THAT the defendant shall not be detained at James Nash House unless the Director or the nominee is of the opinion that he requires a level of security that cannot be provided at some other approved treatment centre.
11.If the defendant is detained at James Nash House or other approved treatment centre pursuant to condition numbered 10 hereof, such detention or detainment shall not be for a continuous period that exceeds 14 days and shall not be for a number of periods that total more than 28 days without application to this Court pursuant to section 269U of the said Act.
12.Where the defendant is detained at James Nash House or other approved treatment centre pursuant to condition numbered 10 hereof, the Director shall forthwith upon each detention notify the Attorney-General, the Registrar of this Court and the Director of Legal Services Commission of South Australia.
Mr Stokes submitted condition 10 is proscribed by s 269U of the Act, which provides:
(1) If a person who has been released on licence under this Division contravenes or is likely to contravene a condition of the licence, the court by which the supervision order was made may, on application by the Crown (which may be made, in a case of urgency, by telephone), review the supervision order.
(2) After allowing the Crown and the person subject to the order a reasonable opportunity to be heard on the application for review, the court may—
(a)     confirm the present terms of the supervision order; or
(b)     amend the order so that it ceases to provide for release on licence and provides instead for detention; or
(c)     amend the order by varying the conditions of the licence, and make any further order or direction that may be appropriate in the circumstances.
(3) When an application for review of a supervision order is made, the court may issue a warrant to have the person subject to the order arrested and brought before the court and may, if appropriate, make orders for detention of that person until the application is determined.

Mr Stokes submitted that s 269U sets a code for the treatment of persons on licence and with respect to the revocation of that licence in the event of any breach of the terms of the licence. He contended that condition 10 is invalid by virtue of the fact that it exceeds the scope of s 269U. He submitted the condition has the effect of conferring the statutory power of the Court to review the supervision order upon the Director of Forensic Mental Health Services, or his nominee. He submitted that this condition is beyond power.
Mr Hinton submitted that Part 8A of the Act is a statutory code dealing with ‘mental incompetence’ as a defence and dealing with the consequences that follow a determination of mental incompetence. He submitted that s 269U does not provide adequate protection to the community in the case of an emergency, where it would be impractical to obtain an order of the Court to review the supervision order. I will return to that submission later in these reasons.
This is the first occasion upon which the Court of Criminal Appeal has considered the appropriateness of this form of licence condition. Similar conditions have been imposed by judges in previous cases, but in those cases it does not appear that the imposition of such a condition was contentious.
Part 8A
In considering whether Part 8A of the Act is a statutory code, it is necessary to have regard to the sections contained in that part.
Section 269O provides that if a defendant is declared liable to supervision, the Court can release the defendant unconditionally or commit the defendant to detention. Alternatively, the Court can release the defendant on licence on conditions determined by the Court. Section 269O(1) is in the following terms:
269O – Supervision
(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.
The discretion to impose conditions is widely expressed. Mr Hinton contended that it is not appropriate to treat a grant of discretionary power, widely expressed, as subject to limitations where no such limitations are contained in the grant. The extent of the discretion provided by s 269O is, however, to be construed having regard to the other provisions of Part 8A.
Section 269P empowers the Court to vary or revoke a supervision order during the limiting term. Section 269Q provides that if the defendant is liable to supervision, the Minister must provide to the Court a report of a psychiatrist or appropriate expert as to the prognosis and diagnosis of the defendant’s mental condition and treatment plan. If a supervision order is made, the Minister must report to the Court within 12 months about the treatment the defendant has undergone and any change in prognosis since the last report.
Section 269S directs the Court to apply the principle that restriction on the freedom of a defendant is to be kept to a minimum, consistent with the safety of the community.
Section 269T specifies the matters to which the Court should have regard in determining whether to release a defendant, or whether to commit the defendant to detention or release the defendant on licence, and the extent of the conditions imposed as part of the licence. Those matters include the nature of the defendant’s mental impairment, whether the defendant is, or would be, if released, likely to endanger another person or other persons generally, whether there are adequate resources available for the treatment and support of the defendant in the community, whether the defendant is likely to comply with the conditions of a licence, and any other matters that the Court thinks relevant.
The Court cannot release a defendant or significantly reduce his or her degree of supervision unless the Court has considered three expert reports prepared by different psychiatrists, or other appropriate experts, on the defendant’s mental condition and possible effects of the proposed action on the behaviour of the defendant. The Court is required to consider the report most recently submitted to the Court by the Minister and to consider a report on the attitude of the defendant’s next of kin and the victim (or their next of kin).
In the Second Reading Speech,[4] the then Attorney-General referred to the then current law, which was a combination of common law and legislation, as operating badly, as being archaic and leaving those who are detained as mentally ill with few effective rights. The statutory reforms he proposed, which were first enacted, in part, in 1992, took away from the Executive the authority to release mentally impaired detainees on licence, and empowered the relevant court to decide those questions. Throughout the Second Reading Speech, the Attorney‑General referred to the Court as being empowered to determine a person’s mental competence. It is for the Court to determine the level of supervision of those who are found to be either unfit to plead due to mental incompetence, or mentally incompetent at the time of the offence. It is clear that it was intended that the Court have the responsibility for dealing with and supervising those persons found to be mentally incompetent or unfit to plead.
[4] Hansard Legislative Council, Wednesday, 27^th September 1995.
The purpose of Part 8A is to provide a scheme for the detention of or release of defendants who suffer a mental impairment, consistent with the requirement that the restrictions on a defendant’s freedom and personal autonomy should be kept to a minimum, and consistent with the safety of the community.
Any restrictions upon a defendant’s liberty can only be imposed by the Court. It is the Court which determines whether a person can be released on licence and the conditions to be imposed upon a licence. Section 269U gives the Court power to review a supervision order if a licensee has contravened or is likely to contravene a licence condition. That power can be exercised on application by the Crown without the licensee being heard. In cases of emergency, the application can be made by telephone.
Section 269U(3) empowers the Court to issue a warrant for the arrest of the person. The Court may order the person to be detained pending the determination of an application for review. The section provides that an arrested person must be brought before the Court. Section 269U(2) requires the Court to provide the Crown and the person the subject of any application a reasonable opportunity to be heard before the Court decides whether to confirm the present supervision order, amend it by ordering the person to be detained, or vary the licence conditions.
Pursuant to s 269ZB, if a person who is committed to detention escapes or is absent from the place of detention without proper authority, that person may be arrested without warrant and returned to the place of detention by a police officer or an authorised person. If there are proper grounds to suspect that a person released on licence has contravened or failed to comply with a licence condition, a Judge may issue a warrant to have the person arrested and brought before the Court. In my view, the Act provides that any decisions concerning the release on licence of a person subject to Part 8A shall be supervised by the Court. The Act provides that any requirement that a person remain or be returned to detention is to be determined solely by the Court. Part 8A of the Act provides a comprehensive code for dealing with persons who have engaged in conduct which, but for their mental impairment, would result in their conviction for a criminal offence.
The Detainment Conditions
Returning to the detainment conditions in this case. The effect of conditions 10 and 11 of the licence is that if the Director, or his nominee, is satisfied that the appellant is in breach or is likely to be in breach of his licence conditions (the wording being in similar terms to s 269U), at the discretion of the Director or his nominee, he can be detained at James Nash House or another approved treatment centre for up to 14 days without any requirement that he be presented to a court or given the opportunity to be heard. The effect of conditions 10 and 11 is that the appellant can be deprived of his liberty by administrative act without the opportunity to be heard. To hold the conditions valid would be to give the Director, or his nominee, wider powers of detention than those given to the Court pursuant to s 269U.
I referred earlier to Mr Hinton’s submission that the s 269U procedure may not be sufficient for the protection of the community in an emergency situation in which a person is suffering from a psychotic episode and presenting an immediate danger to the community. He submitted s 269U did not deal with that situation and, therefore, the Court’s general power to impose conditions under s 269O applied. He argued that the purpose of Part 8A was to provide for the protection of the community in respect of those who commit criminal acts, but are found to be mentally incompetent. Mr Hinton submitted that the narrow interpretation of s 269O urged by Mr Stokes would limit the effect of Part 8A and be contrary to the legislative intent in enacting Part 8A. He referred to the wide powers of the Court, which I have discussed earlier, to impose licence conditions to ensure that the community is adequately protected. He submitted that s 269O provides the Court with a wide discretion and conditions 10 and 11 are within the ambit of the discretion the legislation intended.
I do not agree. The words of s 269U and s 269ZB are clear. The power to issue a warrant for a person’s arrest and then to detain that person is an extensive intrusion into the person’s liberty. Parliament recognised that persons subject to licence conditions imposed by the Court, pursuant to Part 8A, may be required to be detained urgently. Section 269U provides the procedure for a person’s immediate detention. Section 269ZB provides for the arrest of a person who has escaped or is absent from a place of detention without authority. In my opinion, it was never intended that the Court’s power could be delegated to the Director of Forensic Mental Health Services, or any other person, by imposing a condition such as condition 10 of the licence. If Parliament’s intention was to empower the Director of Forensic Mental Health Services, or his nominee, to direct the detention of a defendant for up to 14 days without giving the person an opportunity to be heard, that power must be expressly provided.
As to the submission that s 269U does not adequately protect the community in the case of an emergency, that submission overlooks, first, the provisions of the Mental Health Act 1993 (‘the MHA’) and, secondly, that condition 10 still requires a direction to be obtained from the Director or his nominee. It may prove just as difficult in an emergency to obtain such a direction from the Director or his nominee as it would to obtain an order from the Court.
Further, s 12 of the MHA provides that a person can be detained upon the order of a medical practitioner who is satisfied that the person has a mental illness which requires immediate treatment, that such treatment is available in an approved treatment centre, and the person should be detained in the interests of his or other persons’ safety. Nothing in Part 8A of the Act limits the operation of the MHA. It follows that the emergency situation postulated by Mr Hinton is well provided for by application of s 12 of the MHA. If a person is detained under s 12 of the MHA and the person is in breach of a supervision licence condition, proceedings can be instituted, forthwith, under s 269U of the Act. The Court can then consider the appropriate orders which should be made.
In any event, it is not for this Court to supplement perceived difficulties in the practical administration of the Act by the imposition of a licence condition, with the far-reaching consequences to which I have referred.
Section 269U prescribes the procedures required in the case of a contravention or likely contravention of a licence condition. Condition 10 purports to give power to the Director or his nominee to detain the appellant if the Director or his nominee considers him to be in contravention or likely contravention of certain licence conditions. Such a condition is beyond that authorised by Part 8A of the Act.
I observe that, in imposing the conditions, the Judge was following the form of draft conditions submitted to him by prosecuting counsel. Mr Stokes, who also appeared for the appellant in the first instance, did not oppose the imposition of the conditions in that form, which I understand were in a form which had been imposed in prior cases without challenge. The Judge was not requested to consider the matter.
It follows that it was beyond the power of the sentencing Judge to impose condition 10. I would allow the appeal on Ground 3 and strike out the condition. It follows that conditions 11 and 12 must also be struck out.
Conclusion
I would dismiss the appeal on the first and second grounds. It follows that I would not reduce the limiting term imposed by the Judge. I would allow the appeal in respect of the third ground and strike out conditions 10, 11 and 12 of the licence.
VANSTONE J: Applying the mental impairment provisions of the Criminal Law Consolidation Act 1935 (CLCA), a judge of the District Court found that the appellant was mentally unfit to stand trial and found the objective facts of the charges proved. The judge then made a “supervision order” and was required to fix a limiting term. The terms of the order and the length of the limiting term were the subject of appeal.
In the first instance a court of three judges heard the appeal. One of the principal arguments of the appellant was that the judge erred in failing to reduce the limiting term on account of the fact that the appellant took no issue with the objective elements of the offence. Reference was made to R v Davey (2006) 95 SASR 63, a decision of the Court of Criminal Appeal, for the proposition that, in these circumstances, a limiting term should be reduced in much the same way as would be a sentence upon a plea of guilty, and that failure to do so amounted to an error of law.
Recognising that it might be necessary to reconsider the decision in Davey, a court of five was convened to hear further argument on the matter. That was done on the basis that the two additional members of the court would familiarise themselves with the arguments advanced at the original hearing and would pass judgment on all grounds of appeal.
My conclusion is that in this respect Davey was wrongly decided. In support of that position I shall refer to the general scheme of the mental impairment provisions, to the particular provision requiring the fixing of a limiting term, to the leading cases concerned with giving credit for pleas of guilty and to the judgments in Davey itself.
Part 8A CLCA, entitled “Mental Impairment”, was introduced by the Criminal Law Consolidation (Mental Impairment) Amendment Act 1995, Act No 91 of 1995. Building on the common law concepts of insanity and fitness to plead, it replaced them with mental competence to commit offences and mental unfitness to stand trial. The Part provides a regime by which those issues are to be investigated. Persons found to be mentally incompetent to commit an offence, or mentally unfit to stand trial, are to be “declared liable to supervision under this Part”. (See CLCA s 269F.B(3) and s 269G.B(3) and, for persons mentally unfit to stand trial, s 269M.B(2) and s 269N.B(3).)
If a “supervision order” is to be made in respect of such a person, the court is required by s 269O to fix a “limiting term”, during which time the defendant will be subject to supervision. As will be seen, the length of it is to be reckoned by reference to the sentence which, in other circumstances, might have been imposed, but its purpose is quite different.
Section 269O CLCA provides as follows:
269O—Supervision
(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.
The reference in s 269O(2) to “the period of imprisonment … that would … have been appropriate if the defendant had been convicted of the offence …” must be taken to attract the factors enumerated in s 10 Criminal Law (Sentencing) Act 1988, so far as they “are relevant and known to the court”: s 10(1) Sentencing Act. For the reasons which follow I consider that the factor found in s 10(1)(g) – the fact of a plea of guilty – cannot be relevant to the task contemplated by s 269O(2) CLCA.
In my opinion the words “… a term … equivalent to the period of imprisonment … that would … have been appropriate if the defendant had been convicted …” in s 269O(2) cannot accommodate the reduction in sentence which would have been given to a defendant who had pleaded guilty. What the section requires is an exercise or calculation which is hypothetical. It is hypothetical first, because in determining what sentence would otherwise have been imposed no account is to be taken of the defendant’s mental impairment and second, because it is based on the premise that the defendant had been found guilty of the offence. He has not been. Under the legislative framework he has either been found mentally incompetent and therefore not guilty, or mentally unfit to stand trial.
It would be contrary to the thrust of the legislation to assume those two false premises as required, but then have regard to the way the trial of the objective elements was conducted and use that conduct to reduce the figure otherwise reached. I say that because to do so would be to go behind one of the false premises which the judge is required to act upon and to build into it an antecedent step. This would require the judge to reason in this way: I am to determine the sentence I would pass for this offence if a mentally sound person (otherwise of the defendant’s characteristics) were found guilty of it, but because he made admissions on his trial of the objective elements, I shall go further and incorporate an assumption that he was found guilty on his own confession. To me this is illogical. Therefore I do not think the way the trial of the objective elements was conducted is permitted by the section to play any part in the hypothetical calculation of the sentence.
I do not consider this result is either harsh or surprising. A court fixing a limiting term under this section is not imposing a penalty. The purpose of the supervision order is not to penalise, but to both protect the public and to secure to the defendant such supervision and treatment as is available and appropriate. As Doyle CJ said in R v T (1999) 75 SASR 235 at 242:
As well, it is important to bear in mind the flexible regime for treatment that is envisaged under Pt 8A. There is no denying the impact that the fixation of a limiting term might have on [the defendant]. But it 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.
Furthermore, s 269P allows the court, at a later time, to “vary or revoke a supervision order” and to substitute any other order which might have been made in the first instance. Therefore, if a supervision order is found to be unnecessarily restrictive, its terms can be varied.

I digress to say that there may be difficulty in having regard to some of the other factors relating to the defendant listed in s 10(1) Sentencing Act. For example, s 10(1)(j) (deterrent effect), (k) (adequate punishment) and (m) (rehabilitation) can only be applied to this task at the cost of some further artificiality. Reference to the defendant’s mental impairment, 10(1)(l), is, as mentioned, specifically precluded by the Note to s 269O(2) CLCA. Arguably, that would mean that nothing about his mental condition should be taken into account when addressing the s 269O task.
In addition to the foregoing, I consider that an acknowledgment of guilt is not to be equated with an admission of facts. A defendant either pleads guilty (for any one of a number of reasons) or he does not. A plea of guilty with its accompanying submission to the court’s punishment, is an indivisible concept. As seen, it earns special mention in s 10(1)(g) of the Sentencing Act. In my view it cannot be reduced to one of its constituent parts and then translated into the context of a trial under the mental impairment sections of the CLCA.
In R v Ta [2002] VSCA 142 the Victorian Court of Appeal was asked to reduce a sentence in recognition of admissions made by the appellant at trial, which narrowed the issues at trial to “a very small compass”. Phillips CJ (with whom Ormiston JA and Eames JA agreed) was not prepared to compare this situation with cases concerned with giving credit for a plea of guilty. His Honour said (at [27]) that he found “unhelpful” the analogy with cases dealing with reductions for guilty pleas.
However, I acknowledge that in Davey this Court held, in three separate judgments, that there is sufficient equivalence between a plea of guilty on the one hand and the defendant’s conduct in taking no objection either to tender of the prosecution witness statements, or to the finding that the objective elements were proved, on the other, to justify a reduction to the limiting term. In Davey the decisions to proceed in that way were taken by counsel in the exercise of an independent discretion to act in the defendant’s best interests, given him by s 269W CLCA. That being the case, I would interpret the decision as going so far as to find that a reduction to the limiting term must be made where the objective facts are not disputed. It would follow that it is an error of law not to make such a reduction.
I turn then to the principal authorities in this jurisdiction relevant to giving credit for a plea of guilty. For the reasons which follow I question whether the conclusion reached in Davey is consistent with the decision in Cameron v The Queen (2002) 209 CLR 339, which it purports to follow, and in R v Shannon (1979) 21 SASR 442. If it is not, then even were there no statutory barrier to giving credit for the stance taken with respect to the objective elements, credit could not be justified as a matter of principle.
In Cameron, the leading High Court case on the issue, the Court considered the rationale for taking into account in mitigation of sentence the fact that a person had pleaded guilty to the offence. In the joint judgment of Gaudron, Gummow and Callinan JJ the judges emphasised (at 343) the importance of the principle that, whereas a plea of guilty to a charge could amount to a factor in mitigation, a person convicted after a trial is not to be penalised for having exercised his right to trial. Justice Kirby (at 358) who concurred in the result, recognised the same principle. The learned authors of the joint judgment were at pains to point out that if credit were to be given for, broadly, saving the community the expense of a trial, the basis had to be, not merely the savings made, but, more particularly, the “willingness of the offender to facilitate the course of justice” (at 343). Were it otherwise, the principle that no person should be discriminated against for exercising the right to trial would be offended.
I note that the expression “willingness to facilitate the course of justice” reflected the words used in the judgment of King CJ in Shannon at 444-453. In Shannon, a court of five judges was convened to consider the question whether credit could be given for a plea of guilty, as distinct from the offender’s remorse or contrition. In the passages cited, the former Chief Justice emphasised the necessity for maintenance of the rule that a person must not be penalised for pleading not guilty, at the same time recognising a long-standing preparedness in the criminal courts to reward remorse, contrition, repentance and a willingness to serve the public interest by reducing the sentence to reflect the plea of guilty. He acknowledged the practical ends which were served by so doing. King CJ formulated propositions (at 452-453) concerning circumstances in which a plea of guilty might be taken into account in mitigation of sentence. That could be done 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 conductive to the public purposes which the sentencing judge is seeking to achieve.
The Chief Justice also noted (at 453) that a sentencing judge was not bound to make a reduction to the sentence. Wells J, with whom Zelling J concurred, supported the conclusions of the Chief Justice. Mohr J concurred in the judgment of the Chief Justice. That there remains a discretion as to whether to give credit for a plea seems to be accepted at least in Queensland and New South Wales: see R v D [2003] QCA 547; R v Hoerler [2003] NSWSC 1187; Pillay v The Queen (2006) 167 A Crim R 312, 319.
In the joint judgment in Cameron a passage from Siganto v The Queen (1998) 194 CLR 656 at 663-664 was cited, which, standing alone, might suggest that the rationale for giving credit extended to the mere saving of expense. The court in Siganto 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.
However Siganto was a case in which a central question was whether the sentencing judge had penalised the defendant for contesting the charge of rape. It was in that context that the judges comprising the majority briefly encapsulated the rationale for taking into account a guilty plea. In Cameron, in the joint judgment, the opportunity was taken of both expanding on that statement and qualifying it. It was said (at 343):
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.
In my respectful opinion, having regard to the context in which the statement in Siganto was made and comparing that with the comprehensive analysis of the topic in Cameron, the common law is now clear that it would be inappropriate to base a reduction to a sentence solely on what was called in Siganto “the pragmatic ground”. Rather, it is necessary to have regard to the subjective matter of the willingness of the offender to facilitate the ends of justice.
On the same topic, Kirby J in Cameron (at 360) expressed the view that the “main features of the public interest, relevant to the discount for a plea of guilty, are ‘purely utilitarian’” (citing R v Winchester (1992) 58 A Crim R 345 at 350). However, taking that objective consideration as a basis for giving credit was not supported by the judgment of the majority of the High Court.
There might be thought to be doubt as to whether Cameron applies without qualification in this State in relation to pleas of guilty, because s 10(1)(g) Sentencing Act obliges the court to have regard to the fact that the defendant has pleaded guilty to the charge. In R v Place (2002) 81 SASR 395, 424, Doyle CJ, Prior, Lander and Martin JJ observed that the fundamental principle referred to in Cameron remained unaffected by the enactment of the Sentencing Act and that it had been accepted “on more than one occasion” that (at least at the time of enactment) s 10 reflected the common law. (R v Adami (1989) 51 SASR 229, 231 and 233 and R v Carpentieri (2001) 81 SASR 164, 167 provide examples.) It may be observed that their Honours went on, at [77]-[79] to express a tentative preference for the “views expressed by Kirby J [in Cameron] and King CJ [in Shannon] that, in the absence of subjective criteria such as contrition, a sufficient rationale is found in the public interest based on ‘purely utilitarian’ considerations”. It was noted that the rationale for affording credit for a guilty plea was not the subject of submissions in the appeal and it was not necessary to decide the issue. In those circumstances there is no need to explore the possibility that this court took a view of the judgment of King CJ at odds with the one expressed here.
I turn to the judgments in Davey. All three judges agreed that the reasons given by the primary judge were inadequate and that it was therefore necessary to consider the supervision order afresh. Bleby J began by referring to the general purpose underlying Part 8A of the CLCA, which was introduced in 1995. He noted that a limiting term should not be regarded as punishment. He referred to the terms of s 269O(2) and the Note to it and observed that the reference in the Note to the “sentence that would have been imposed if the defendant had been found guilty” imported to the task many of the factors found in s 10 of the Sentencing Act although, expressly, not the defendant’s “mental condition” (s 10(1)(l)). Bleby J accepted (at 66) that Mr Davey’s insight into his behaviour was “fairly superficial” and therefore contrition and remorse had no bearing. His Honour found (at 68) that:
… 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.
It follows from what I have earlier set out that I respectfully disagree. In my view there is no such equivalence.
His Honour went on to discuss Cameron, implicitly accepting its unqualified application in this state. He acknowledged the force of the joint judgment in Cameron to the effect that the saving of expense could only be mitigatory if seen as an expression of willingness on the part of the defendant to facilitate the course of justice. His Honour considered that was consistent with the decision in Shannon to which I have already referred. His Honour further found that in the case of Mr Davey there was “no reason to think that [the tender of the declarations and the decision not to contest the objective elements] was other than through a willingness to co-operate in the administration of justice or to facilitate the course of justice.” He then found that the eleven year “notional” term should have been reduced by a period of eighteen months on account of that willingness.
I pause to say that the court having accepted that the defendant’s insight into his behaviour was “fairly superficial” and bearing in mind that the defendant was found unfit to stand trial, then remembering that the co-operative course taken by counsel was taken in the exercise of his independent discretion, as opposed to on instructions, it is difficult to see how those forensic decisions could be seen to demonstrate a willingness to facilitate the course of justice. I do not think that describing counsel as the defendant’s “statutory agent” (at 68) assists in reaching that conclusion.
In his judgment, Gray J examined the legislative scheme. Like Bleby J, he acknowledged that the limiting term is not intended to be punishment (at 74). Gray J set out (at 79-80) the passages from Cameron in both the joint judgment and that of Kirby J to which I have already referred. He then addressed (at 78) the question of whether a reduction could be made by analogy with the principle governing pleas of guilty. He referred to decisions of single judges fixing limiting terms; those of Bleby J in R v Weiss [2005] SASC 338 and Layton J in R v Bartholomaeus [2006] SASC 13 and to his own decision in R v Burfield (No 3) [2006] SASC 97. At 81 Gray J appears to have concluded that the analogy between a plea of guilty and admission of objective facts was a valid one and that a reduction based purely on utilitarian grounds was justified. He determined that the same reduction as suggested by Bleby J was appropriate.
In his judgment, Anderson J agreed with the reasons of both Bleby J and Gray J. His Honour alluded to the reference in Siganto to the “pragmatic ground” of the community being spared the expense of a trial. It was on that basis that his Honour concurred in a reduction to the limiting term in recognition of the forensic decisions taken by Mr Davey’s counsel.
On my reading of the reasons of the members of the court in Davey, only Bleby J acknowledged the force of Cameron’s case such that, absent contrition or remorse, credit for a plea of guilty could be given only where it reflected a subjective willingness to facilitate the course of justice.
In the light of these considerations, my conclusion is that to the extent that the court in Davey purported to apply Cameron without requiring any demonstration that the relevant admissions flowed from the defendant’s willingness to facilitate the course of justice, it erred.
But in any event, for the reasons earlier given I do not consider either that admission of the objective elements of an offence is to be equated with a plea of guilty, or that the terms of s 269O admit of such a consideration. Moreover, an acknowledgement of the objective elements of an offence in the context of a Part 8A inquiry (particularly where the defendant was unfit for trial) would not likely proceed from any of these motivations. Indeed, where the defendant is unable to instruct counsel and counsel takes decisions in the exercise of the independent discretion, as permitted by s 269W, it would, in my view, be incongruent to afford credit to the defendant.
In my view Davey was wrongly decided in this respect and should now be overruled. It is wrong in principle to afford credit to a person found to be liable to supervision on account of his admission of, or failure to contest, the objective facts of a charge. It follows that not only is there no rule of law or practice requiring credit to be given, but, additionally, credit should not be given as an exercise of discretion.
In respect of the wider question of whether the limiting term was manifestly excessive and in respect of the other two grounds of appeal, I agree with the reasons given by Sulan J. I would join in the orders his Honour proposes.
ANDERSON J: I would also allow the appeal only for the purpose of striking out conditions 10, 11 and 12 of the licence. Apart from that, I would dismiss the appeal. I agree with the reasons proposed by Sulan J and Vanstone J.