R v Ophel - [2019] ACTSC 325

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ophel

Details

AGLC: R v Ophel [2019] ACTSC 325
Case: [2019] ACTSC 325
Decision Date: 8 May 2019

CaseChat Overview and Summary

The matter of R v Ophel involved the accused, Ophel, who was charged with five counts of attempted murder. The case was heard in the Supreme Court of the Australian Capital Territory. The central issue was whether the court should impose an indicative sentence under section 302 of the Crimes Act 1900 (ACT) given that the accused had been found not guilty by reason of mental impairment. This decision was influenced by the legal requirement to balance the principles of justice, deterrence, and rehabilitation in sentencing, particularly when the accused's mental state at the time of the offence was a mitigating factor.

The court had to determine the appropriate legal framework for sentencing in circumstances where the accused was deemed not guilty due to mental impairment, despite having committed the acts that constituted the charges. The key legal question was whether the court could impose an indicative sentence that would reflect the seriousness of the crimes attempted, while also considering the accused's mental health issues. The court examined the purpose of indicative sentences and whether they could be applied in cases where the accused was found not guilty by reason of mental impairment. It was necessary to balance the need for accountability and deterrence with the requirements of compassionate justice for individuals with mental impairments.

In its reasoning, the court concluded that while the accused was not guilty by reason of mental impairment, the gravity of the attempted murders warranted a sentence that reflected the severity of the acts. The court held that an indicative sentence could still be appropriate to ensure that the accused's actions did not go unaddressed and to maintain public confidence in the justice system. The court emphasised the importance of considering the impact of the crimes on the victims and society, as well as the need for the accused to receive appropriate treatment and rehabilitation. The court ultimately decided to impose an indicative sentence, taking into account the mitigating factor of the accused's mental impairment. The orders specified the conditions under which the indicative sentence would be applied, ensuring that the accused would receive necessary treatment and supervision.

Orders

Orders of the court

See [31]-[37]

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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