R v G, H - [2018] SADC 103

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v G, H
[2018] SADC 103
Reasons for Decision of His Honour Judge McEwen
5 October 2018
CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT
Detention under division 7 of the Crimes Act 1914 (Cth).
Criminal Code Act 1995 (Cth) s 80.2C(1); Crimes Act 1914 (Cth) s 20BJ, referred to.

R v G, H
[2018] SADC 103

G, H was charged with four counts of Advocating Terrorism. Contrary to s 80.2C(1) of the Criminal Code Act 1995 (Cth). On 24 September 2018 a jury found the physical elements proved, but found him not guilty on the grounds of mental impairment.
The consequences of those jury verdicts fall to be determined under division 7 of the Crimes Act 1914 (Cth), especially s 20BJ which is as follows:
20BJ Acquittal where person mentally ill
(1)Where a person has been charged with a federal offence on indictment and the person is acquitted because of mental illness at the time of the offence, the court must order that the person be detained in safe custody in prison or in a hospital for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged.
…
(4)Despite subsection (1), the court may, if in the court’s opinion it is more appropriate to do so than to make an order under subsection (1), order the person’s release from custody either absolutely or subject to conditions to apply for such period as the court specifies in the order, not exceeding 3 years.
(5)The conditions may include:
(a) a condition that the person remain in the care of a responsible person nominated in the order; and
(b) a condition that the person attend upon a person nominated, or at a place specified, in the order for assessment of the person’s mental illness, mental condition or intellectual disability and, where appropriate, for treatment.
(6)Where a person has been released from custody subject to conditions, the person or the Director of Public Prosecutions may, at any time, apply to the court to vary those conditions.
That is the provision which sets out the power of the court to deal with G,H. Division 7 goes on to provide powers and duties to the Attorney-General. If the court detains a person under s 20BJ(1) the Attorney-General must, as soon as practicable, consider whether the person should be released from detention; and must reconsider that issue at least six-monthly. There follows a series of provisions enabling the Attorney-General to order absolute or conditional release of the person. Importantly, division 7 goes on to provide that if the Attorney-General orders conditional release and conditions are breached, the Attorney-General can revoke the conditional release order.
Those provisions, providing wide powers to the Attorney-General to ensure compliance with conditional release orders, are in contrast to the powers granted to the Court under s 20BJ. That provision does not include a mechanism for returning a person to court in the event of breach of condition, and does not provide any power to the court to revoke conditional release.
This appears to be a deficiency in the legislation. If the court detains a person in safe custody, in a prison or hospital pursuant to s 20BJ(1), this brings into play a detailed scheme whereby the Attorney-General promptly and regularly reviews that detention. If the Attorney-General exercises the discretion to release a person upon conditions, there are provisions of the Crimes Act which provide for monitoring and enforcing those conditions, if necessary by way of revoking the conditional release and returning the person to safe custody.
However, if a court proceeds under s 20BJ(4) and orders conditional release, there is no statutory provision for review or enforcement of the conditional release, ordered by the court. On the face of the legislative scheme, a person granted conditional release by the court, could breach any one or more of the conditions imposed by the court, with impunity. There is no power granted to the Commonwealth Director of Public Prosecutions to return the matter to the court, and there is no power granted to the court to revoke the conditional release. The Crimes Act is silent on the topic of the monitoring or enforcement of court ordered conditions of release.
It is against that legislative background that I need to consider the appropriate orders to make in relation to G, H. The material before me includes reports of Dr Paul Furst, Forensic Psychiatrist and Head of the Forensic Community Mental Health Service, dated 6 February 2017, 27 March 2018, and 26 September 2018. Dr Furst was called to give some brief evidence to supplement those reports. I also have a report of Dr Danny Sullivan, Consultant Forensic Psychiatrist, dated 18 June 2018. G, H has a long and complex history of forensic mental health issues dating back to 1997 when he was admitted to Glenside Campus of the Royal Adelaide Hospital for expressing paranoid beliefs about Mossad, the Federal Police, the mafia, and Hezbollah. In 1998 he was found not guilty of a charge of unlawful wounding on grounds of mental incompetence.
In 2000 he was subject to a community treatment order, and a restraining order for the protection of his first wife.
In 2012, Judge Lovell found G, H mentally incompetent to stand trial on a series of charges of dishonesty. He was declared liable for supervision under Part 8A of the Criminal Law Consolidation Act 1935 (SA). A limiting term of four years was fixed and he was released on license with extensive and detailed conditions imposed by Judge Lovell. Those detailed conditions were reviewed and varied by Judge Lovell on 13 December 2013.
In November 2015, Judge Muscat remanded G, H in custody, following non-compliance with his licence conditions. On 26 May 2016 Judge Muscat revoked the licence, and ordered he serve the balance of the limiting term in detention. In his brief extempore remarks, Judge Muscat noted:
It is plain from the reports that [G, H] has remained resistant to treatment for his paranoid schizophrenic illness. He has frequently experienced symptoms of psychosis and in my view is unlikely to adhere to his licence conditions. Furthermore, he poses a high risk to members of the community if he were to be released back into the community at this time.
The psychiatric reports document various admissions to Glenside Ward and to James Nash House, and treatment pursuant to community treatment orders, the extended care unit, and the community mental health team. G, H has persistently expressed bizarre and paranoid beliefs on a number of subjects. At times he has avoided his medication regime, then taken deliberate and rational steps to avoid detection. At times he has told Dr Furst that his bizarre claims are lies to doctors, to escape punishment by the courts. He has reported to Dr Furst drinking 10-12 whiskeys a day and smoking a bag of cannabis every day. On other occasions he has denied ever using drugs. He has been found in possession of knives.
The numerous reports and the materials relied on in those reports document a lengthy history of a variable mental condition, interspersed with non-cooperative behaviour and attitudes, and troubling, and sometimes dangerous behaviour.
The conduct that was the subject of the four charges, of advocating terrorism, and for which the jury found the physical elements proved, occurred in late 2015. He produced four videos which were uploaded to his Facebook page. In the main, the videos could be described as bizarre rants. However, they certainly advocate dangerous and violent behaviour, including gesticulations and demonstrations, where he brandishes a knife, a tomahawk, and a chainsaw.
He was found to be mentally impaired at the time of the making of those videos. Dr Furst and Dr Sullivan agree that at the relevant time he was suffering from paranoid schizophrenia and was unable to reason with a moderate degree of sense and composure as to the wrongfulness of his conduct.
As to G, H’s present condition, Dr Furst’s view is:
I remain of the view that there is no psychiatric benefit for [G, H] to be committed to detention in a secure mental health facility as he has been mentally stable for such a long time and he does not need rehabilitation to develop daily living skills as he has always remained a fairly capable man in the community despite his mental illness.
Dr Furst makes a number of sensible and practical recommendations about conditions that could be imposed upon [G, H] if he is to be released into the community. Dr Furst then expresses the view:
If the court sees fit to grant [G, H] release on licence with conditions that are similar to the suggestions above, then I believe that there is a good chance that he will remain mentally well and will pose a relatively low risk of re-offending.
Dr Furst’s evidence included the following exchange with me:[1]
[1]    T47.18 –T49.11, 27 September 2018.
HIS HONOUR
Q. Under part 8A there are methods of ensuring compliance with the various conditions, aren't there, and you've talked about some of them.
A.    Yes, only in the sense that as we understand it if somebody is on licence there is no authority to enforce anything in the community, only that if someone was in breach of those conditions we report that back and that's really the -
Q.    Report it to who.
A.    Back to the DPP and it's brought back to the court.
Q.    That what I'm talking about.
A.    Yes.
Q.    You use the phrase 'it may be a heavy-handed approach', we have to differ about that.
A.    I am not necessarily speaking about this matter but in other matters sometimes it can be for what might be technical breaches of a licence.
Q. What I think you're saying is that that's kind of a last resort and you can often use persuasion or even these other tools under the Mental Health Act and community treatment orders to get compliance, short of sending it back to court via the DPP; is that a fair take.
A.    Yes.
Q.    But the examples you gave were in terms of medication, weren't they.
A.    Yes.
Q.    We both know - you certainly know it and I know it, from reading your reports - that this man has had a long history, correct.
A.    Yes, your Honour.
Q.    He hasn't always been compliant, not only with medication but other things.
A.    Yes.
Q.    So let's say there was a condition about weapons or drugs or not making bizarre threats or utterances, any of those, and it looked like that was starting to go off the rails. Under 8A that would probably be the sort of thing that might be referred to the DPP.
A.    Absolutely, your Honour.
Q. The dilemma I have here is that there doesn't seem to be that mechanism under s.20BJ which is news to me, it might be news to you.
A.    It was news to me. Having looked at that section, not being familiar with it and that's why I asked to be very much guided by the court. It is out of our experience.
Q.    It is out of mine. Medication isn't the only potential threat of public safety with someone with a mental impairment, is it.
A.    No, that's true. In [G,H’s] case the risk that he poses to others, though, is very much linked to his mental illness. So when he's acutely ill and not being treated he is high risk. When he is being treated and having his medication he is low risk. The medication is not the only thing but it is quite an important thing.
Q.    Do you see why I'm concerned to release someone on a number of conditions; not having firearms or weapons, not taking drugs, not using alcohol, not threatening people, when most of those conditions if he breaches them there's nothing you or I can do about it.
A.    Yes, I absolutely understand your Honour's concern and that's something we share because, as I outlined, South Australia has that unique system and in actual fact whilst some people would argue the South Australian system means mental health patients are more controlled by Corrections than elsewhere, for those who work there it is fine, it is useful because his mental health and treatment and those conditions around behaviour, associates, weapons, drugs and those sorts of things are managed through Corrections who deal with that on a daily basis.
The critical issue in this matter is whether G, H should be detained in safe custody in prison or hospital, or whether it is more appropriate to order his release from custody subject to conditions. In other words, whether to proceed under s 20BJ(1) or s 20BJ(4).
I accept the opinions expressed by Dr Furst in his recent report and his evidence. Dr Furst is an experienced forensic psychiatrist with a long history of dealing with G, H. He is well placed to make the assessment and recommendations that he has made. His assessment of the risk posed by G, H. is somewhat guarded, as it must be, given G, H’s complex and difficult history and the impossibility of making an absolute prognosis. Moreover, importantly, Dr Furst’s belief that there is a good chance of a relatively low risk of re-offending is premised upon G, H’s release into the community being subject to a number of important conditions.
Section 20BJ of the Crimes Act enables the court to impose conditions, and does not explicitly restrict the range of those conditions. In my view, it does empower me to impose conditions along the lines recommended by Dr Furst. These are similar to those imposed by Judge Lovell under the state legislation. I consider if G, H were to be released into the community it would be critically important to have those types of conditions in place. Those conditions would be crucial in minimising the risk that G, H may pose to the community.
However, if I release G, H into the community with those conditions, there would be no mechanism ensuring his compliance. I note the evidence that there are alternative mechanisms for ensuring he takes medication. I also note that there is always a power to commit G, H under the Mental Health Act 2009 (SA), should his mental condition deteriorate to the extent that intervention is justified.
However, there are a range of other conditions that Dr Furst recommends, and which I consider would be necessary, that would not be backed up by the Mental Health Act or community treatment orders. For most of the conditions that are contemplated, including not possessing a firearm or an offensive weapon, abstaining from drugs, not engaging in threatening or dangerous conduct, not uploading inappropriate material to the internet, etc., there is no mechanism for the enforcement of these court imposed orders. This strikes me as a curious omission from the legislation that should be addressed. However, for this case, that is the legislative scheme I must proceed under.
As against that, if I detain G, H in safe custody, the Attorney-General must, as soon as practical, consider whether or not he should be released from detention. Such consideration would necessarily entail obtaining and considering a report from a psychiatrist. In this case, I expect that would be the recent opinions of Dr Furst. That material is all readily available. It would then be open to the Attorney-General, if he sees fit, to release G, H on appropriate conditions, which would be subject to the Crimes Act provisions relating to enforcement of those conditions. That mechanism would be an important part of the protection afforded to the public by the imposition of the conditions. Whereas, if I were to release G, H upon conditions, that mechanism would be entirely absent. Accordingly, the protection afforded to the public by the imposition of the court ordered conditions would be totally illusory.
Mr Jolly argues that if I take that approach, G, H is effectively being unfairly deprived of conditional release (at least at this stage) due to what appears to be an omission in the drafting of the legislation. To the extent those submissions have any potential merit, it is outweighed by the following:
Firstly, I need to apply the legislation as it is.
Secondly, the need for strict conditions arises from G, H’s chronic and troubling psychiatric history, together with his inability or unpreparedness to comply with conditions that have been imposed in the past.
Thirdly, he will very promptly have the prospect of being released on conditions, pursuant to the statutory requirement that the Attorney-General give consideration of that issue as soon as practicable.
Fourthly, there is the conduct here. Mr Jolly submits it should be seen at the lower end of the spectrum of advocating terrorism, and further argues:[2]
…the content is clearly rambling and incoherent. The degree to which it could be seen as an efficacious exhortation to terrorism is doubtful. Any reasonable observer would conclude that the author was not presenting a balanced and reasoned viewpoint
[2] Defence Submissions on Section 20BJ(1) Crimes Act 1914 (Cth).
Of course, the difficulty with this submission is that the cohort likely to be influenced by the advocating of terrorism are not necessarily reasonable observers, and probably not scrupulous to only being influenced by balanced and reasonable viewpoints. On the contrary, rambling and incoherent rants which exhort violent behaviour, certainly have the capacity to influence susceptible individuals.
Fifthly, and most importantly, the paramount consideration in my view, needs to be community safety. I would not be affording the community the protection it deserves if I were to release G, H pursuant to a long list of crucial conditions, most of which no-one would be in a position to enforce.
G, H has been in custody in relation to these matters since 15 December 2016.
Having regard to all of the above, especially the paramount consideration of safety of the community, I order, pursuant to s 20BJ(1) that G, H be detained in safe custody in a prison for a period of three years commencing forthwith.
It is not for me to determine how much of that time he actually spends in custody.