R v Klobucar (No 2)

[2016] ACTSC 53

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Klobucar (No 2)

Citation:

[2016] ACTSC 53

Hearing Date:

30 March 2016

DecisionDate:

30 March 2016

Before:

Penfold J

Decision:

See [30] below.

Catchwords: 

CRIMINAL LAW – GENERAL MATTERS – Criminal Liability and Capacity – verdict of not guilty by reason of mental impairment – best estimate of sentence that would have been appropriate if accused found guilty – extent to which mental impairment may be considered for purposes of best estimate.    

Legislation Cited:

Crimes Act 1900 (ACT), ss 302(1), 302(2), 302(3), 302(4), 307, 308, 315(c), 322, 324(1)(a), 324(1)(b), Pt 13

Mental Health Act 2015 (ACT), ss 180, 180(3)(a), 183

Cases Cited:

R v Paul JohnMcDermott (2003) 172 FLR 1

R v Steurer [2009] ACTSC 150

R v Verdins (2007) 16 VR 269

Parties:

The Queen (Crown)

Danny Klobucar (Offender)

Representation:

Counsel

Mr M Fernandez with Ms A Jamieson-Williams  (Crown)

Mr R Livingston (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Sharman  Lynch Solicitors (Offender)

File Number:

SCC 214 of 2014

1. Danny Klobucar was tried for the murder of Miodrag Gajic. On 24 March 2016, the jury returned a verdict of not guilty by reason of mental impairment. Accordingly, I indicated under s 302(1) of the Crimes Act 1900 (ACT) that, if Mr Klobucar had not been acquitted, I would have imposed a sentence of imprisonment, and having regard to the matters referred to in s 308 of the Crimes Act, made an order under s 324(1)(a) of that Act that Mr Klobucar be detained in custody for immediate review by the ACT Civil and Administrative Tribunal (ACAT) under s 180 of the Mental Health Act 2015 (ACT).

1. This matter had been discussed with counsel some time before the jury retired to consider its verdict, for the purposes of determining what I would tell the jury, as required by s 322 of the Crimes Act, about the consequences of the various possible verdicts. In the course of that discussion, no submissions were made to the effect that it would be more appropriate to make the other available order, that is, an order under s 324(1)(b) that Mr Klobucar submit to the jurisdiction of the ACAT to allow ACAT to make a mental health order or a forensic mental health order under the Mental Health Act. 

1. The matters referred to in s 308 of the Crimes Act (referred to, bizarrely enough, as “criteria”), are:

(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…