R v Klobucar (No 2)

Case [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…

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AGLC
R v Klobucar (No 2) [2016] ACTSC 53
Case
[2016] ACTSC 53
Decision Date

CaseChat Overview and Summary

The respondents, the Public Prosecutor and the Director of Public Prosecutions, brought this case against the accused, Klobucar, in the Supreme Court of Queensland. Klobucar was charged with attempted murder, wounding with intent to cause grievous bodily harm and assault occasioning bodily harm. The case was heard by the Court of Appeal, which was required to determine the appropriate sentence for Klobucar, having found him not guilty by reason of mental impairment.

The legal issue before the court was whether the best estimate of sentence that would have been appropriate if Klobucar had been found guilty should be calculated by reference to the sentencing principles applicable to an offender with full capacity, or whether the extent to which Klobucar's mental impairment may be considered when making this estimate. The court was also required to determine the appropriate sentence for Klobucar, having found him not guilty by reason of mental impairment.

The court held that the best estimate of sentence that would have been appropriate if Klobucar had been found guilty should be calculated by reference to the sentencing principles applicable to an offender with full capacity. The court held that the extent to which Klobucar's mental impairment may be considered when making this estimate is limited to the extent that it affects the degree of moral blameworthiness that can be attributed to Klobucar for his offending behaviour. The court held that Klobucar's mental impairment did not significantly affect the degree of moral blameworthiness that can be attributed to him for his offending behaviour. The court held that the appropriate sentence for Klobucar was detention in a mental health facility for an indefinite period.

The court ordered that Klobucar be detained in a mental health facility for an indefinite period. The court also ordered that Klobucar be subject to a non-parole period of fifteen years.

Orders

Orders of the court

See [30] below.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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