R v Ophel
[2019] ACTSC 325
•8 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ophel |
Citation: | [2019] ACTSC 325 |
Hearing Date: | 17 April 2019 |
DecisionDate: | 8 May 2019 |
Before: | Burns J |
Decision: | See [31]-[37] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Indicative Sentence – five counts attempted murder – not guilty by reason of mental impairment – consideration of s 302 Crimes Act 1900 (ACT) |
Legislation Cited: | Crimes Act 1900 (ACT), s 302 Criminal Code 2002 (ACT), div 2.3.2 |
Cases Cited: | R v Kelly [2018] ACTSC 332 R v Klobucar (No 2) [2016] ACTSC 53 |
Parties: | The Queen (Crown) Alex Ophel (Offender) |
Representation: | Counsel R Khazma (Crown) J Robertson (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender) | |
File Number: | SCC 344 of 2017 |
BURNS J
Alex Ophel, on 27 March 2019 you were found by a jury not guilty on five counts of attempted murder by reason of mental impairment. After the jury returned their verdicts, I ordered that you be detained in custody for immediate review by the ACAT. It is now my responsibility, pursuant to the provisions of s 302 of the Crimes Act 1900 (ACT) (the Crimes Act), to indicate whether, if you had not been acquitted by reason of mental impairment, I would have imposed sentences of imprisonment and, if so, to nominate the best estimate of the sentence I would have considered appropriate if you had been found guilty of these offences.
A limited number of such proceedings have been conducted by Judges at first instance in this Court. In R v Klobucar (No 2) [2016] ACTSC 53, a case of a verdict of not guilty of the offence of murder by reason of mental impairment, Penfold J considered that she was required to hypothesise a situation where the accused's mental condition was not sufficiently severe to permit a mental impairment verdict and, in the particular circumstances of that case, not sufficiently severe to justify a verdict of manslaughter by reason of diminished responsibility.
In effect, her Honour equated her obligation under s 302 to hypothesising a situation where the issue of mental impairment was raised and rejected by the jury. In my respectful opinion, this is not the correct way to approach the exercise required by s 302. It is instructive to briefly consider what occurs in sentencing an offender where no issue of mental impairment under div 2.3.2 of the Criminal Code 2002 (ACT) (the Criminal Code) arises. The fixing of a sentence for an offence where no issue of acquittal by reason of mental impairment arises requires the court to consider all relevant circumstances of the offence and the individual offender.
Where a mental illness suffered by the offender ameliorates, as a matter of fact and degree, the moral culpability of such an offender, the court must bring that circumstance to bear in the sentencing process. It must do so by fully acknowledging the extent of the accused person's illness and its actual effect on the accused. In my opinion, this is what s 302 requires me to do. I must sentence you as if no pleas of not guilty by reason of mental impairment had been entered and you had been convicted after a trial following ordinary pleas of not guilty.
To hypothesise a lower level of impairment for the purpose of nominating a term under s 302 would be unfair to an accused person, uncertain in operation and add a layer of artificiality to what has been said to be, to some extent, already an artificial task. The artificiality to which I refer is to that which Murrell CJ referred in R v Kelly [2018] ACTSC 332, when her Honour observed that a determination of the degree of an offender's moral culpability is crucial to the determination of sentence. However, the effect of jury verdicts of not guilty by reason of mental impairment is that an accused is not morally responsible for the commission of the acts which form the basis of the charges.
In my opinion, this suggested artificiality is largely avoided, at least for practical purposes, by completely disregarding the verdicts of not guilty by reason of mental impairment and nominating a sentence as if the accused person had been convicted by the jury on a plea of not guilty simpliciter. In approaching s 302 in this way, the Court will give full weight in the ordinary way to the effect of an accused person's mental illness upon their moral culpability when arriving at a nominated term.
A finding that a person is not guilty of an offence by reason of mental impairment is a legal concept. Such a determination does not necessarily reflect a factual position that the accused had no moral culpability for their acts. Of course, it may reflect such a position, but alternatively the finding may simply reflect the fact that the accused has satisfied one of the tests required to be satisfied to permit the verdict. In each case, for the purposes of the criminal law, the person is taken to have no moral responsibility.
If anything, the effect of s 302, as I see it, is to require me to strip away any artificiality in the jury verdicts and to make factual findings in the usual way. It may be expected that in most, if not all, cases concerning the application of s 302, the importance of sentencing considerations such as deterrence and punishment will be significantly ameliorated or even eliminated. This will depend on factual findings in the s 302 process. On the other hand, considerations such as protection of the public may assume greater importance.
The Facts
The evidence about the events which formed the basis of the charges was largely unchallenged. In the period of at least three years leading up to 25 August 2017, you began to experience violent thoughts, including thoughts of sexual violence. As time went on, you developed a belief in a higher purpose which was outside your control. The evidence concerning this belief is, perhaps unsurprisingly, confused. It appears that this higher purpose was to be achieved through hurting people.
I am satisfied that your violent ideation and your belief that you were subject to a higher purpose which was outside of your control were the subject of the insidious onset of schizophrenia. There is now no doubt that you suffer from a serious mental illness, which is best described as schizophrenia. I am satisfied that on 25 August 2017, you were delusional to the extent that you could be described as psychotic. By that, I mean that you had lost the ability to appreciate the difference between reality and delusion.
I am satisfied on the balance of the psychiatric evidence that on 25 August 2017 you felt compelled by your delusion to attack fellow students at the
Australian National University (ANU). I am further satisfied that your ability to understand that your conduct was wrong was severely diminished by reason of your mental illness. You had, for some short period prior to 25 August 2017, contemplated committing an act of violence to give effect to this higher purpose.
At one point, you thought about trapping people inside a bathroom at the ANU by standing at the door with a weapon, such as a baseball bat or a gun, and then killing them. You also thought about killing other students with an axe. Approximately one week prior to 25 August 2017, you decided to carry out a plan to kill other students using a baseball bat and you began to make preparations. You then changed your mind, but on 24 August 2017 you decided to try to kill as many people as possible with a baseball bat.
You had a baseball bat readily available to you at your home. You mixed some coffee with port in a bottle and purchased some masking tape and a piece of cardboard with the intention of covering the window in the classroom so that no one could see you. On the morning of 25 August 2017, you had breakfast as normal and your father drove you to the University. You took with you the baseball bat, the masking tape and cardboard and the mixture of coffee and port in the bottle, all contained in a duffel bag.
You went to the library where you sent messages on Facebook. The previous evening you had also sent messages on Facebook. Your plan was to kill everyone in your statistics tutorial except for one female student who you planned to rape and then you planned to run around the campus covered in other people's blood. You consumed a small amount of the coffee and port mixture, but a test carried out later that day by the police did not detect alcohol in your body. You were not affected by any illicit drug.
Shortly after 9.00 am on 25 August 2017, you entered the tutorial room carrying your duffel bag which contained the baseball bat and other material. You were the last student to attend the classroom. At this stage the class had already begun. You made your way to the back of the classroom and sat in front of a computer in the furthest row away from the door. The door of the tutorial room could only be operated by use of a swipe card. All of the students and the tutor were in possession of such cards, as were you. After approximately 10 minutes, you took the baseball bat out of your bag and started attacking your fellow students and your tutor.
Zihao Ju, also known as Pride Ju, sustained injuries to his head, including a right parietal depressed skull fracture, a right parietal scalp laceration and a right parietal haematoma. Expert evidence was made to the effect that a significant amount of force would be required to cause the skull fracture. In addition, he also sustained injuries to his fingers while protecting his head. As a consequence of those injuries, a small part of one of his fingers had to be surgically removed.
Ruyi Fan, also known as Rita Fan, also sustained injuries to her head, including a right parietal scalp laceration. A blow from the baseball bat to her arm resulted in a non-displaced fracture of the distal third of the left ulna. Expert evidence was led to the effect that a significant amount of force was required to cause that fracture.
Dongqing Li, also known as Holly Li, sustained a mild traumatic brain injury, a contusion to the front right frontotemporal scalp region, a large welt over the front of her chest and blurred vision.
Hang Fang, also known as Connie Fang, sustained fractures to both her left and right arms. Evidence was led that a significant amount of force would be required to cause the fracture to Ms Fang's left arm. Surgery was required to repair that fracture.
Jean-Luc Gallo sustained minor head injuries.
You were overcome and physically restrained by a number of members of your tutorial. These people are to be commended for their actions. Police were called and subsequently arrived and took you into custody. You have been in custody since that time.
Consideration
The maximum penalty for the offence of attempted murder, contrary to s 12(1) of the Crimes Act and s 44 of the Criminal Code, is life imprisonment. As the Crown submitted, the maximum penalty reflects the value which our community places on human life. Attempted murder carries the same maximum penalty as the substantive offence of murder.
The two offences differ, of course, in that in the offence of attempted murder, the victim has not died. That does not mean that the offence of attempted murder will inevitably be viewed as less objectively serious than the completed crime of murder. The survival of the victim is a factor relevant to the objective seriousness of the offence, but it is not determinative in that regard. The offence of attempted murder requires an intention to kill, whereas the completed crime of murder may be satisfied by a reckless indifference to human life or intention to inflict serious harm.
Were it not for your mental illness and its significant effect upon your mental functioning on 25 August 2017, these offences would be objectively serious examples of the offence of attempted murder. The offences were both premeditated and planned. You made preparations relating to your choice of weapon as well as obtaining materials to block the windows of the tutorial room so that you would not be seen.
Your plan, of course, was entirely unrealistic. Nevertheless, it must be acknowledged that these offences were planned and premeditated. You chose the particular tutorial for these offences because the tutorial room was isolated and many of the students were small females. You used a potentially lethal weapon to commit the offences and with respect to some of the victims, you inflicted very serious injuries.
The Crown submitted that you had motives for committing these offences, including your aversion to the tutor conducting the class, an interest or obsession with school shooters, or general life stressors. I reject these propositions. Consistent with the verdicts returned by the jury and the preponderance of the psychiatric evidence, I am satisfied that you had no motive for committing these offences, other than satisfying the imperative placed upon you by your delusion.
I am satisfied that your moral culpability for these offences is very significantly diminished by reason of your mental illness and its effect upon you on 25 August 2017. Both general and specific deterrence should be significantly moderated as sentencing considerations. I must balance against these considerations with the need for protection of the public. In that regard, you have been subject to treatment for your schizophrenia since you have been held in custody. There is evidence that from time to time you have been resistant to treatment.
It appears that your symptoms are ameliorated, if not entirely eliminated, by adherence to your medication regime. There must, however, be a risk of your presenting further danger to the public in the future either by reason of you failing to comply with your treatment or by reason of your symptoms worsening. You will clearly need to be closely medically monitored for some years.
I accept the Crown's submission that although these offences formed part of the same course of conduct and were committed within what is, in reality, seconds of each other, some degree of accumulation of sentence is appropriate. It is appropriate in order to recognise the different criminality involved in the multiple offences with multiple victims.
I also propose to reduce the aggregate nominated sentence by a period of 20 months in order to reflect the periods that you have spent in custody prior to finalisation of these matters. I will also take into account that the evidence of the Crown's non-expert witnesses was not challenged, evidencing a willingness on your part to facilitate the administration of justice.
Indicative Sentence
For the purposes of s 302(1), I indicate that if you had not been found guilty of these offences by reason of mental impairment, I would have imposed sentences of imprisonment.
With regard to Count 1 (CC 2017/11806), I nominate a term of
eight years' imprisonment for the purposes of s 302(2) commencing today, 8 May 2019, and expiring 7 May 2028.
With regard to Count 7 (CC 2017/11803), I nominate a term of
five years and six months' imprisonment commencing 8 November 2023 and expiring 7 May 2029.
With regard to Count 3 (XO 2018/31424), I nominate a term of
four years and six months' imprisonment commencing 8 November 2025 and expiring on 7 May 2030.
With regard to Count 5 (CC 2017/11804), I nominate a term of
three years' imprisonment commencing 8 May 2028 and expiring 7 May 2031.
Finally, with regard to Count 9 (XO 2018/31303), I nominate a term of
three years' imprisonment commencing 8 May 2029 and expiring 7 May 2032.
This equates to an aggregate head sentence of 12 years' imprisonment which I would reduce by 20 months to achieve an aggregate sentence of
10 years and four months' imprisonment commencing today, 8 May 2019, and expiring 7 September 2029. Needless to say, but for your mental illness, these sentences would have been considerably longer.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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