R v Kelly
[2018] ACTSC 332
•4 December 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kelly |
Citation: | [2018] ACTSC 332 |
Hearing Date: | 3 December 2018 |
ReasonsDate: | 4 December 2018 |
Before: | Murrell CJ |
Decision: | A special verdict of not guilty by reason of mental impairment is entered. The accused is to be detained in custody for immediate review by ACAT pursuant to s 324(2)(a) of the Crimes Act 1900 (ACT). In relation to the culpable driving offence, the nominated term is two years and six months’ detention commencing 4 June 2017. In relation to the attempted murder offence, the nominated term is six years’ detention commencing 4 June 2018. |
Catchwords: | CRIMINAL LAW – VERDICT OF NOT GUILTY BY WAY OF MENTAL IMPAIRMENT – culpable driving causing grievous bodily harm – attempted murder – whether the Court considers a verdict of not guilty by way of mental impairment is appropriate – s 321(2) of the Crimes Act 1900 (ACT) – whether the accused was mentally impaired pursuant to s 28 of the Criminal Code 2002 (ACT) CRIMINAL LAW – VERDICT OF NOT GUILTY BY WAY OF MENTAL IMPAIRMENT – SERIOUS OFFENCES – whether the Court considers it appropriate to make an order for detention – ss 324(2) and 308 of the Crimes Act CRIMINAL LAW – NOMINATED TERM – s 302 of the Crimes Act – whether the Court would have imposed a sentence of imprisonment if the accused had not been acquitted – what the nominated term of sentence would be if the accused had been found guilty – “best estimate” of a hypothetical term – sentencing purposes – moral culpability of an accused under a mental impairment – objective and subjective seriousness of the offences |
Legislation Cited: | Crimes Act 1900 (ACT) ss 12(1), 29(4), 302, 308, 321, 324 Criminal Code 2002 (ACT) ss 27, 28, 44 Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 5 |
Cases Cited: | R v AN [2005] NSWCCA 239 R v AB [2015] NSWCCA 57 R v Steurer [2009] ACTSC 150 |
Text Cited: | Explanatory Memorandum, Crimes (Amendment) Bill 1999 (ACT) |
Parties: | The Queen (Crown) Ashley Paul Kelly (Accused) |
Representation: | Counsel Mr S Drumgold (Crown) Ms J Campbell (Accused) |
| Solicitors ACT DPP (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 294 of 2017; SCC 295 of 2017 |
Murrell CJ
Offences
On 3 December 2018, the accused pleaded not guilty by way of mental impairment to the following offences committed on 4 June 2017:
(a)Culpable driving (negligent driving) causing grievous bodily harm to Mr Boers contrary to s 29(4) of the Crimes Act 1900 (ACT) (the Crimes Act).
(b)Attempted murder of Mr Windsor contrary to ss 12(1) of the Crimes Act and s 44 of the Criminal Code 2002 (ACT) (the Criminal Code).
In accordance with s 321(2)(b) of the Crimes Act, the prosecution agreed to the Court entering special verdicts.
Consequently, pursuant to s 321(2)(a) of the Crimes Act, the Court must consider whether verdicts of not guilty because of mental impairment are appropriate.
Facts
Culpable driving causing grievous bodily harm to Mr Boers
At 6:50 AM on 4 June 2017, Mr Boers was cycling to work. At the intersection of Coronation Drive and Commonwealth Avenue, he stopped at a red light. Having previously cycled the route, Mr Boers realised that the traffic light was not weight triggered to respond to lighter vehicles and that his bicycle would not trigger the countdown to a green light. Consequently, he checked for oncoming traffic before turning right and cycling onto Coronation Drive, knowingly disobeying the red light signal.
The accused observed this transgression from his car. He followed Mr Boers down Coronation Drive, reducing his speed to around 25 km/h as he approached the rear of Mr Boers’ bicycle and then maintaining that speed.
Mr Boers noticed the accused’s car behind him and moved as far left on the road as possible, wishing to make way for the accused’s vehicle. The accused began to verbally abuse Mr Boers, demanding that he “get off the road” and honking his horn. Mr Boers motioned for the accused to drive around him, but the honking became more aggressive.
Then the car engine roared as the accused accelerated his car into the rear wheel of Mr Boers’ bicycle. The bicycle buckled under the force of the car. Mr Boers was thrown backwards onto the car bonnet, against the front passenger’s side pillar. The car then decelerated abruptly, propelling Mr Boers forward and throwing him several meters from the car. He landed face-first on dirt adjacent to the road.
The accused’s vehicle came to a halt 20 meters away. The accused exited the car, saying “You got what you fucking deserved. You shouldn’t be on the road, you fucking idiot … You went through a red light”. The accused returned to his car and left.
Although injured, Mr Boers managed to take a photograph of the accused’s vehicle with his mobile phone. A friend who happened to be in the vicinity came to his aid and then police and ambulance officers arrived.
Attempted murder of Mr Windsor
Meanwhile, about 750 meters east of Mr Boers’ location and, presumably, within minutes of the first offence, the accused observed Mr Windsor running or walking on the shared pedestrian/cycle path that runs parallel to Alexandrina Drive. He was listening to music through his headphones.
The accused mounted the grass verge that separated the path from the road and drove along that path directly at Mr Windsor, approaching him from the rear at a speed of at least 49 km/h to 59 km/h. Nothing lay between the accused’s path and Mr Windsor; there was a clear line of sight.
The car struck Mr Windsor, forcing him onto the bonnet. His head and right elbow struck the front passenger side of the front windscreen with significant force. The inertia from the impact threw Mr Windsor 21.3 meters from the point of original impact.
Mr Windsor lay unresponsive on the path. He coughed up thick blood and his breathing was laboured. The accused did not stop. He continued to drive along Alexandrina Drive towards the city.
Eventually, the accused returned to where police and ambulance officers were attending to Mr Boers. Mr Boers identified the accused’s car to the police officers as the one that had struck him.
As the accused approached the scene, he rolled down his windows and yelled, “arrest that fuckwit” and “he ran a red light”.
First Constable Wise gestured to the accused to pull over, which he did. She observed that his front windscreen was cracked. The car engine remained running. She asked the accused to turn off the engine. The accused fled. First Constable Wise yelled “stop!”, but the accused ignored that injunction.
For disobeying that command, the accused was charged with failing to comply with a police officer’s request or signal under s 5 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT). The prosecution invited the Court to dismiss this charge because s 321 applies only to indictable offences. This matter will be taken into account in relation to the offence of culpable driving.
Injuries
Mr Boers was admitted to the Canberra Hospital with the following injuries:
(a)A minimally displaced fracture of the anterior superior endplate of the fifth lumbar vertebral body; and
(b)Bony fragments in the neural (nerve) exit foramen of the fourth and fifth lumbar vertebrae.
Mr Windsor was admitted to the Canberra Hospital and conveyed to the Intensive Care Unit. Mr Windsor suffered:
(a)A severe traumatic brain injury with significant bleeding to both sides of his brain;
(b)A comminuted displaced mandible fracture on the left side and a fracture at the mandibular angle on the right side;
(c)A proximal fibular fracture on the right side;
(d)An orbital fracture of the medial wall, retro-orbital and peri-orbital haematoma on the left side;
(e)Lacerations and abrasions to his temple, elbow, forehead and knee; and
(f)Post-traumatic stress amnesia for more than one month.
In the opinion of Dr Parekh, the injuries were “potentially life threatening, with life-changing consequences’. Both Dr Parekh and Dr Adeline Hodkinson, Director of the Brain Injury Rehabilitation United at the Liverpool Hospital, considered that, as a result of his injuries, it was likely that Mr Windsor would experience long term intellectual disabilities.
The statutory scheme relating to mental impairment
Section 321 of the Crimes Act provides:
321 Supreme Court—plea of not guilty because of mental impairment
(1) This section applies if an accused pleads not guilty because of mental impairment to an indictable offence before the Supreme Court.
(2)The Supreme Court must enter a special verdict that the person is not guilty of the offence because of mental impairment if—
(a) the court considers the verdict appropriate; and
(b) the prosecution agrees to the entering of the verdict.
The first issue is whether the accused was suffering from a mental impairment at the time of the offences, and whether that mental impairment had an effect described in s 28(1) of the Criminal Code.
Mental impairment is defined in the Criminal Code as follows:
27 Definition—mental impairment
(1) In this Act:
mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
…
28 Mental impairment and criminal responsibility
(1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that—
(a) the person did not know the nature and quality of the conduct; or
(b) the person did not know that the conduct was wrong; or
(c) the person could not control the conduct.
(2) For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.
(3) The question whether a person was suffering from a mental impairment is a question of fact.
(4) A person is presumed not to have been suffering from a mental impairment.
(5) The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment.
…
Was the accused under a mental impairment at the time of the offences?
The Court was furnished with the psychiatric reports of Professor Greenberg and Dr Furst.
Background
At the time of the offences, the accused was 32 years old. He was married in 2014 but separated in 2015. There was a two year old child of that relationship. Previously, the accused had been in a lengthy relationship with another partner.
In October 2017, the accused was assessed as having a low average to average intellectual ability and as more severely impaired in processing speed and aspects of executive function, including planning and task completion.
The accused had an unhappy childhood, involving physical abuse by his mother and stepfather, and bullying and serious violence by his older brother. One report stated that the accused’s mother suffered from manic depression. The accused was subjected to abuse by his uncle, who also introduced him to drugs.
The accused experienced learning difficulties and misbehaved at school.
The accused has a history of attention-deficit hyperactivity disorder (ADHD), poor concentration and memory. He may have an acquired brain injury as a result of being kicked to the head or sustaining other trauma to the head. Since childhood, the accused has suffered from depression, low energy levels, anxiety and suicidal ideation.
From 11 to 13 years of age, the accused engaged in “chroming” from aerosol cans. This may have been by way of attempting suicide. From 13 to 18 years of age, he drank to excess and smoked a large quantity of cannabis on a daily basis. At 18 years of age, he was admitted to Canberra Recovery Services and rehabilitated from illicit substance abuse. The accused said that he had been free of illicit substances for a decade prior to the offences. After the offences, the accused was tested for alcohol and particular drugs, and no alcohol or drugs were detected on the analysis. He was not tested for opioids.
Professor Greenberg expressed concern about relatively recent use by the accused of prescribed and non-prescribed opioid medication and considered that the accused may have suffered from an opioid use disorder. However, in the absence of evidence supporting that suspicion, I proceed on the basis that the offences were unrelated to drug abuse.
The accused first experienced psychotic symptoms when sniffing from aerosol cans, but continued to have episodes of hallucinations in his 20s and 30s, decades after he ceased that practice. He was prescribed Olanzapine, an antipsychotic medication used to treat schizophrenia and bipolar disorder, but ceased using it at least two to three months prior to the offences. At the time of the offences, the accused was not being actively case managed, although he occasionally consulted his general practitioner.
The accused has never held permanent work in the open labour market. He has been unable to cope with the stress of interacting with fellow workers. In relation to his cognitive/mental health problems, for the past 12 or 13 years he has received a disability support pension.
Evidence of Dr Richard Furst
Dr Richard Furst assessed the accused at the Alexander Machonochie Centre (AMC) on 2 May 2018. He reported the following matters.
The accused claimed that, in the days immediately prior to the offences, he was hallucinating, seeing a childhood acquaintance who had a patch over his left eye “turn to brass”. He could not sleep. He said:
I kept walking. Walking all night. I thought the world was about to end. I thought people were doing a séance. I thought Korea was about to engage. I walked back to the cottage. My Partner’s house. Got in the car. I tried to go South. I couldn’t find the road. People were coming out to do exercises in the morning. I hadn’t slept. There was a push bike in front of me. I couldn’t get around him. I clipped him. Came out to see if he was okay and if he knew he was okay. He called me a retard. I kept on driving. Trying to head South. I thought Canberra was going to be obliterated by the Koreans or by the Devil.
…
I saw some people running on the road. I didn’t stop. I ran into them. I thought at the last second that it might be a Demon. All these things were going on. I thought that my ex-girlfriend was going to kill herself … I couldn’t sleep. I was driving to get out of there [Canberra]. I kept driving back to my ex-partner’s place at Ainsley. The police turn up and arrested me … I was I’m well [sic]. I should not have been driving on the road at the time.
The accused also told Dr Furst that, at the time of the offences, he had been suffering from delusions of grandeur. He had thought that witches were performing séances and rituals relating to his former partner. He had believed that “there was a war between Good and Evil” and had thought that he was “on a mission from God” and that “the bikies and the Aryan Brotherhood were trying to recruit” him.
On the day after the offences, the accused was reviewed at the Adult Mental Health Unit of the Canberra Hospital (AMHU). He made “odd spontaneous comments and was not making sense [thought disorder]”, and presented as rude. He was observed to be praying and he stared intensely at the assessment team. He said that he felt unsafe in hospital and he attempted to leave. His presentation was described as psychotic. He had no insight into his apparent psychosis and his judgment appeared to be impaired. In the following days he was thought disordered and his behaviour and affect were inappropriate.
The accused was given antipsychotic medication and appeared to improve. At this stage, it was thought that the accused had suffered from a psychotic episode that was either induced or exacerbated by the use of drugs, or was stress related.
On 8 June 2017, the accused was discharged to the AMC. However, his condition deteriorated rapidly. On 14 June 2017, he was observed to be actively psychotic. He was behaving oddly, stripping naked and spitting for no apparent reason. He was incommunicative and appeared to be disorientated. He stated “I’m ready to die”.
He was readmitted to the AMHU at the Canberra Hospital. On 15 June 2017, he continued to present with florid psychotic symptoms. He was diagnosed as suffering from an acute psychotic episode, although some concern was expressed about behaviour inconsistent with that diagnosis. His symptoms gradually diminished.
On 22 June 2017, the accused was transferred from the AMHU to the Dhulwa Mental Health Unit, with a diagnosis of schizophrenia, paranoid type. In July 2017, his symptoms settled. He remained in the Unit until 30 August 2017, when he was transferred to the AMC. Thereafter, from time to time he was noted to have disordered thoughts or other psychotic symptoms.
When the accused was seen by Dr Furst in May 2018, his mood was reasonably stable, he was lucid and he was not deluded or preoccupied with good and evil.
It was Dr Furst’s opinion that the accused suffered from schizophrenia. The diagnosis of schizophrenia was based on the symptoms of paranoid thinking, hallucinations, mood disturbance, thought disorder, bizarre behaviour, and impaired psychological function. Because of the suggestions of mood elevation and grandiosity, Dr Furst included differential diagnoses of schizoaffective disorder and bipolar affective disorder. Schizophrenia is a chronic psychotic illness that is thought to be biologically driven and which benefits from a multiple of multidisciplinary approach to treatment. Dr Furst said that the accused had relatively poor insight into his psychotic illness, especially when unwell.
Dr Furst also diagnosed the accused are suffering from a substance abuse disorder. It was Dr Furst’s opinion that the history of substance abuse “likely accounts for some observed cognitive deficits on neuropsychological examination [non-verbal reasoning, including working memory and processing speed. Executive function including planning and abstract reasoning]”.
Dr Furst reported that:
In my opinion, Mr Kelly did not know that his alleged conduct was wrong, as his acute delusions, thought disorder and severe mood disturbance prevented him from reasoning about the wrongfulness of his alleged conduct with a moderate degree of sense and composure.
He probably also lacked the capacity to control himself at the time in question, believing he was on a “mission from God” and was “the chosen one”.
Dr Furst noted that, within the AMC, the accused experienced difficulties in his social interactions with other detainees.
The evidence of Professor David Greenberg
Professor Greenberg did not examine the accused, and reported on the basis of the background information that was made available to him.
Professor Greenberg noted that, when the accused was admitted to Canberra Hospital with suicidal thoughts in 2002, he was diagnosed with borderline/antisocial personality traits, but no psychosis was evident. Similarly, a 2002 neuropsychological report referred to “impulse and anger control” issues, but did not refer to a psychotic condition. In 2006, medical notes referred to borderline personality disorder and violence.
Between 2006 and 2017, there was limited, if any, contact between the accused and ACT mental health services. However, in 2012, his general practitioner diagnosed him with a probable drug-induced psychotic disorder.
In 2017, the accused had occasional contact with ACT mental health services “due to psychotic symptoms in the context of illicit substance use and psychosocial stressors".
Professor Greenberg viewed the police record of interview conducted on 4 June 2017, seven or eight hours after the offences were committed, and the record of forensic procedure conducted at the conclusion of the interview. He noted the erratic behaviour of the accused, his labile mood and the incoherent and confusing account that he gave. The accused stated that he had been attempting to save the person on the bicycle from the Devil. He said that he did not remember colliding with a pedestrian. He made numerous bizarre statements.
Professor Greenberg noted that, on 19 and 20 June 2017, the accused had reported that on the day of the offence he had begun to hallucinate, experience delusions, had “thought it was Judgement [sic] Day” and that he was “on a mission from God”. He described “nudging” Mr Boers, causing him to fall. The accused claimed that he had believed that he was warning Mr Boers about “the end of the world”. In relation to Mr Windsor, he said that he had intended to drive close to him and swerve at the last-minute. However, when the time came to swerve his vehicle, the accused had a “split-second thought” that Mr Windsor was, in fact, a demon and for that reason the accused had run his vehicle into Mr Windsor.
Professor Greenberg’s conclusions differed from those of Dr Furst. In particular, Professor Greenberg said that schizophrenics did not usually have an insight into their delusions; rather, they believed their delusions to be true. Professor Greenberg was sceptical about the accused’s claim that he had “chronic delusions” and noted the report by psychiatrists at Dhulwa that the accused had insight into his condition.
Having reviewed the accused’s presentation and diagnoses longitudinally, Professor Greenberg found it challenging to provide any diagnostic certainty, or even an impression as to the correct diagnosis. Nevertheless, Professor Greenberg concluded that, at the time of the offences, it is likely that the accused had “some form of psychotic episode”, although his presentation was “most unusual” because of his rapid response to treatment and the degree of apparent insight into his mental state. Professor Greenberg noted other diagnostic comorbidities, including significant personality problems, executive cognitive functioning deficits and opioid use disorder (which Professor Greenberg considered to be a likely comorbid diagnosis).
On balance, Professor Greenberg considered that, at the time of the offences, it was likely that the accused did know the nature and quality of his conduct (he was able to drive a motor vehicle and negotiate fairly complex motor and sensory tasks) but did not know that the conduct was wrong (was unable to reason with a moderate degree of sense and composure about whether a reasonable person would see it as wrong) and could not control the conduct (because his thoughts were influenced by psychotic impulsivity).
Consideration
There is no doubt that, when the accused drove his vehicle at Mr Windsor, he intended to kill him. Nor is there any doubt that, when the accused drove his vehicle at Mr Boer, he was driving in a manner that was grossly negligent and that, as a result of the impact, Mr Boer sustained serious injury.
On the balance of probabilities, I accept that, in the period leading up to and at the time of the offences, the accused was suffering from a mental impairment, being a florid psychotic condition (quite possibly, schizophrenia) that had the effect that he did not know that his conduct was wrong (in that he was unable to reason with a moderate degree of sense and composure about whether a reasonable person would see the conduct as wrong) and that he could not control the conduct (because his thoughts were governed by delusions).
Consequently, in relation to each charge, I consider that a verdict of not guilty by reason of mental impairment is appropriate and, in each case, the special verdict will be entered.
Appropriate order under the Crimes Act
Pursuant to s 324(2) of the Crimes Act, the Court must make one of two orders:
(2) The Supreme Court must—
(a) order that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or
(b) if, taking into account the criteria for detention in section 308, it is more appropriate—order that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015.
Section 308 provides a set of criteria for determining whether to order detention.
308 Criteria for detention
For this part, other than division 13.5 (except section 335), in making a decision which could include an order for detention, the Supreme Court or Magistrates Court shall consider the following criteria:
(a) the nature and extent of the accused’s mental impairment, including the effect it is likely to have on the person’s behaviour in the future;
(b) whether or not, if released—
(i) the accused’s health and safety is likely to be substantially impaired; or
(ii) the accused is likely to be a danger to the community;
(c) the nature and circumstances of the offence with which the accused is charged;
(d) the principle that a person should not be detained in a correctional centre unless no other reasonable option is available;
(e) any recommendation made by the ACAT about how the accused should be dealt with.
Having regard to the fact that the accused has a chronic condition that is likely to affect his behaviour in the future, the associated risk of danger to the community, and the very serious nature and circumstances of the offences, I consider an order under s 324(2)(b) of the Crimes Act to be inappropriate and that the accused should be detained in custody for immediate review by the ACAT under the Mental Health Act 2015 (ACT) (Mental Health Act). I will make an order under s 324(2)(a) of the Crimes Act. The parties agreed that such an order is appropriate.
Nominated term
The Crimes Act provides:
302 Limitation on orders and detention—acquittals
(1) If, under section 323 or 324, the Supreme Court makes an order that the accused be detained in custody for immediate review by the ACAT, the court must indicate whether, if the accused had not been acquitted, it would have imposed a sentence of imprisonment.
(2) If, under subsection (1), the Supreme Court indicates that it would have imposed a sentence of imprisonment, it must nominate a term (a nominated term) in respect of that offence that is the best estimate of the sentence it would have considered appropriate if the accused were a person who had been found guilty of that offence.
(3) In nominating a term in relation to an offence, the Supreme Court may, as it considers appropriate, take into account the periods (if any) for which the person has been detained in relation to the offence, before or after the special hearing.
(4) A nominated term in relation to an offence takes effect on the day the Supreme Court nominates the term unless the court—
(a) after taking into account any periods mentioned in subsection (3), nominates an earlier day; or
(b) orders that the term take effect on a later day so as to be served consecutively with (or partly concurrently and partly consecutively with) another term nominated for the person under this part or a sentence of imprisonment imposed on the person.
In relation to each offence, the Court is enjoined to determine the “best estimate” of the sentences that it would have considered appropriate if the accused had been found guilty of the offences. The purpose of doing so is to ensure that a mentally impaired accused person is detained for no longer than a mentally unimpaired person would have been detained: Explanatory Memorandum, Crimes (Amendment) Bill 1999 (ACT) at 5.
The estimation of such a sentence is a very difficult and artificial task. A determination of the degree of moral culpability is critical to the determination of an appropriate sentence. In effect, a finding of mental impairment means that the mental disability from which the accused was suffering at the time of the offences was such that he is not morally responsible for the commission of the offences. Had the accused’s disability been present at a lower level, he may have been found guilty but the mental impairment may have reduced his moral culpability and the sentence that was imposed. Given that considerations such as premeditation and planning reflect on moral culpability, such considerations may be largely irrelevant when deciding a nominated term. In R v Klobucar (No 2) [2016] ACTSC 53 at [27], Penfold J took a different approach; her Honour considered that her task was to consider the sentence that would have been appropriate had the accused’s mental impairment been present, but insufficiently severe to require a mental impairment verdict.
Regardless of which is the correct approach to the issue of moral culpability, some sentencing considerations are undoubtedly relevant. In New South Wales, it has been held that, when determining the limiting term for a particular offence, courts should adopt and apply all the statutory and common law principles that apply to the sentencing of a person convicted of that offence: R v AN [2005] NSWCCA 239 (AN) at [13], and the same general approach should apply in this jurisdiction.
First, the maximum penalty for each offence is always a critical sentencing parameter. In the case of attempted murder (like murder), the maximum penalty is life imprisonment. In the case of culpable driving causing grievous bodily harm, the maximum penalty is ten years’ imprisonment.
Second, the Court must consider the sentencing purposes that are relevant under s 7 of the Crimes (Sentencing) Act2005 (ACT) (Sentencing Act). In the present case, specific deterrence may have some relevance. However, the dominant purposes are the protection of the community, promotion of rehabilitation and recognition of the harm done to the victims and the community. Of these, the paramount consideration must be the protection of the community. That is the primary purpose of the “nominated term” provisions: R v Steurer [2009] ACTSC 150. Indeed, in Steurer, Penfold J stated that the protection of the community was the sole purpose. The nature of the order itself, which permits ongoing monitoring by ACAT, builds in considerations of rehabilitation.
In New South Wales, it has been held that the statutory sentencing purpose of punishment is a relevant consideration, although purposes such as general deterrence and denunciation may be irrelevant to an offender with a mental illness or disability: see AN, as well as R v AB [2015] NSWCCA 57. For my part, I find it hard to see how the sentencing purpose of punishment could apply in circumstances where there is no moral culpability in the conventional sense.
Third, the Court must consider the relevant objective and subjective features of the crimes, including those specified in s 33 of the Sentencing Act.
In relation to the crime of the attempted murder of Mr Windsor, relevant considerations include the following:
(a)It was a sudden and horrific assault on a stranger who was going about his morning exercise activity that occurred without any warning or any contribution on the part of the victim.
(b)It involved the use of a vehicle: a weapon readily capable of killing another.
(c)It occurred in a very public place and had the capacity to impact others, at least psychologically.
(d)The victim sustained very serious brain injuries and it is likely that he will remain significantly impaired for life. Inevitably, he must also have suffered serious psychological and emotional consequences.
(e)The incident was attributable to mental impairment and there is no evidence that drugs were involved.
(f)The accused is remorseful and has some insight into his mental impairment and the connection between the offence and his mental impairment. Recently, he inquired of his lawyer as to the condition of the victims and expressed sadness and remorse. He has acknowledged responsibility.
(g)The accused advances very strong subjective circumstances. He was the victim of a highly dysfunctional and abusive childhood. He suffers from a range of psychological and cognitive deficits.
(h)The accused is engaging with treatment.
(i)The Court is not aware of prior relevant offending.
(j)The accused will find imprisonment more difficult because of his mental impairment and other cognitive problems.
(k)The accused cooperated with the authorities. While sentencing discounts under ss 35A and 36 of the Sentencing Act are available only in relation to accused persons who are found guilty, the accused’s general cooperation should be taken into account and inform the nominated term.
Attempted murder is an offence that captures a wide range of conduct and a wide range of outcomes. For example, some cases of attempted murder may involve no weapon and result in no injury to the victim. On the other hand, the maximum sentence that is applicable to attempted murder is also applicable to murder, which involves the ultimate injury. It is not inevitable that all crimes of attempted murder are considered to be less objectively serious than the completed crime of murder: R v Duffy [2014] ACTCA 53 at [65]–[76].
The Crown provided a table of other cases of murder and attempted murder where the verdict was not guilty by reason of mental impairment. Probably because of the limited number of cases and the great variety of circumstances that they encompassed, no pattern is apparent in relation to the setting of a nominated term. However, as one would expect, in relation to offences of murder, the nominated terms were generally higher.
In relation to the crime of culpable driving, relevant considerations include the following:
(a)The degree of negligence was extreme; it involved deliberately driving at a person in what appeared to be a bizarre overreaction to a minor traffic violation but which was, in fact, a “protective” response to a delusion.
(b)The victim was verbally abused at the time of the offence and when the accused returned to the scene.
(c)The offence occurred in a very public place and had the capacity to impact others, at least psychologically.
(d)The accused failed to stop after the incident. He later returned to the scene, abused the victim and again left.
(e)The injuries were serious, including several serious fractures to the spine. It is unlikely that the victim will fully recover and likely that he will suffer from ongoing pain and discomfort. Fortunately, he has been able to return to work. Although there was no evidence to this effect, I have no doubt that the victim would have suffered serious psychological trauma.
(f)The incident was attributable to mental impairment and there is no evidence that drugs were involved.
(g)The accused is remorseful and has some insight into his mental impairment and the connection between the offence and his mental impairment. He has acknowledged responsibility.
(h)The accused advances very strong subjective circumstances.
(i)The accused is engaging with treatment.
(j)The Court is not aware of prior relevant offending.
(k)The accused will find imprisonment more difficult because of his mental impairment and other cognitive problems.
(l)The accused cooperated with the authorities.
The Crown provided a table of cases setting out sentences that have been imposed for culpable driving offences. The circumstances of the cases varied considerably. In relation to more serious offences, the starting point for the sentence (before discounting for a plea of guilty) was often in the range of two to four years.
Although the offences were part of the same course of conduct and were committed within minutes of each other, some degree of accumulation of the sentences is necessary to recognise the different criminality involved in the two offences. The overall sentence should reflect the overall criminality.
Had the accused been tried and found guilty, the severity of the circumstances of the offences means that I would have imposed sentences of imprisonment for each offence. My “best estimate” of the sentences that I would have imposed are:
(a)For the offence of culpable driving causing grievous bodily harm to Mr Boers—two years and six months’ imprisonment.
(b)For the offence of attempted murder of Mr Windsor—six years’ imprisonment, accumulated by 12 months on the culpable driving sentence, giving a total sentence of eight years’ imprisonment.
I would have backdated the total sentence of seven years’ imprisonment to 4 June 2017, when the accused was arrested.
Orders
In relation to each offence, I enter a special verdict of not guilty by reason of mental impairment.
In relation to each offence, I make an order under s 324(2)(a) of the Crimes Act that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act.
In relation to the offence of culpable driving causing grievous bodily harm to Mr Boers, I nominate a term of two years and six months’ detention commencing on 4 June 2017.
In relation to the offence of attempted murder of Mr Windsor, I nominate a term of six years’ detention commencing on 4 June 2018.
| I certify that the preceding eighty-one [81] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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