SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v G, H
[2019] SASCFC 71
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Doyle and The Honourable Justice Hughes)
27 June 2019
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
On 24 September 2018, a jury found the appellant not guilty by reason of mental impairment of four counts of advocating terrorism contrary to s 80.2C(1) of the Criminal Code Act 1995 (Cth). A Judge of the District Court ordered the appellant be detained in safe custody in a prison for a period of three years pursuant to s 20BJ of the Crimes Act 1914 (Cth).
The appellant contends that the obligation under s 20BJ to fix a period of detention “not exceeding the maximum period of imprisonment that could have been imposed” creates an obligation on the court to devise a notional sentence as if the appellant had been convicted of the charges, based on ordinary sentencing principles. The appellant submits that this notional sentence then acts as the maximum period referred to in s 20BJ. The appellant submits that the Judge’s reasons revealed no such task had been undertaken and that the process error enlivened a right in the appellant to have the discretion re-exercised.
Held per Hughes J (Peek and Doyle JJ agreeing):
1. The Judge erred in failing to devise a notional sentence having regard to ordinary sentencing principles when setting the period of detention pursuant to s 20BJ of the Crimes Act 1914 (Cth).
2. The sentence that would have been imposed in accordance with ordinary sentencing principles informs the court’s consideration of the appropriate period of detention.
3. The “maximum period of imprisonment that could have been imposed” contemplated by s 20BJ of the Crimes Act 1914 (Cth) refers to the legislatively prescribed maximum period of imprisonment for the relevant offence(s).
4. While the identified process error entitles the appellant to a fresh consideration of the period of detention, the exercise of that discretion would result in the same or a greater period of detention. Accordingly, the appeal is dismissed.
Crimes Act 1914 (Cth) s 20BJ, s 20BK, s 20BL; Criminal Law Consolidation Act 1935 s 269O; Mental Health (Criminal Procedure) Act 1990 (NSW) s 21, s 23; Acts Interpretation Act 1915 (SA) s 19; Criminal Code Act 1995 (Cth) s 80.2C, referred to.
R v Goodfellow (1994) 33 NSWLR 308; Kentwell v The Queen (2014) 252 CLR 601; R v Behari (2011) 110 SASR 147; House v The King [1936] HCA 40; (1936) 55 CLR 499; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357; R v T (1999) 75 SASR 235; R v Monks [2019] SASCFC 47; Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251; R v Draoui (2008) 101 SASR 267; Veen v The Queen (1979)…
Continue reading R v G, H
Sign in free to access the full text
- AGLC
- R v G, H [2019] SASCFC 71
- Case
- [2019] SASCFC 71
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court concerned the interpretation of the elements of the offences charged, particularly the requirement for an "action or threat of action involving a physical attack" and the intention to advance a political, religious, or ideological cause. The Court was also required to consider whether the appellant's conduct, as depicted in the video and described in the particulars of the charges, met these statutory requirements. The appellant's mental state and the impact of his prior supervision order were also implicitly relevant to the context of the charges.
The Court analysed the wording of the charges, which alleged an "action or threat of action involving a physical attack" with the intention of advancing a political, religious, or ideological cause. The Court considered the nature of the appellant's statements in the video, which explicitly called for violence against Jewish individuals and threatened attacks on specific Palestinian Authority figures. The Court found that the appellant's pronouncements constituted a "threat of action" and that the stated intention to liberate the Palestinian people satisfied the requirement of advancing a political, religious, or ideological cause. The Court's reasoning focused on the plain meaning of the statutory language and the clear intent expressed by the appellant in his online communication.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.