R v Rasmussen (No 2)

[2018] SASC 183

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v RASMUSSEN (No 2)

[2018] SASC 183

Reasons for the Orders of The Honourable Justice Bampton

29 November 2018

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - INSANITY AND MENTAL IMPAIRMENT

Where the Court previously recorded a finding that the defendant was mentally incompetent to commit the offence of murder – objective elements of the offence of murder conceded.

In finding the defendant not guilty of the offence of murder but liable to supervision under div 4 sub-div 2 of the Criminal Law Consolidation Act 1935 (“the CLCA”):

1. Pursuant to CLCA s 269FB(2), finding recorded that the objective elements of the offence of murder are established beyond reasonable doubt;

2. Pursuant to CLCA s 269FB(3), defendant found not guilty of the offence of murder and declared liable to supervision under CLCA div 4 sub-div 2;

3. Supervision order made committing the defendant to detention pursuant to CLCA s 269O(1)(b);

4. Limiting term of life fixed pursuant to CLCA s 269O(2).

Criminal Law Consolidation Act 1935 (SA) div 4 sub-div 2, s 269F, s 269O, s 269R, s 269Q; Sentencing Act 2017 (SA) s 14, referred to.
R v Rasmussen [2018] SASC 164, considered.

R v RASMUSSEN (No 2)
[2018] SASC 183

Criminal

1. BAMPTON J:      On 23 October 2018, I recorded a finding pursuant to s 269FA(3)(a) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) that it had been established on the balance of probabilities that Mr Rasmussen was, at the time of the alleged offence, mentally incompetent to commit the offence of murder.

2. Having made that finding, on 29 November 2018 I heard evidence and representations from the prosecution and the defence, pursuant to s 269FB(1), relevant to the question of whether the Court should find the objective elements of the offence of murder established beyond reasonable doubt.  Mr Rasmussen, through his legal counsel, conceded that the evidence contained in the declarations relied on by the prosecution established beyond reasonable doubt the objective elements of the offence of murder.

3. In his report dated 20 April 2016, the forensic pathologist Dr Gilbert stated that Mr McPhillips’ death appears to have resulted from stab wounds sustained to his chest, particularly those to the heart and right lung. Dr Gilbert stated that one of the stab wounds to the heart would have produced rapid blood loss into the chest cavity or the loss of blood pressure and consciousness occurring within one or two minutes of infliction, such that death would have followed very quickly. Those stab wounds were inflicted by Mr Rasmussen. Accordingly, I recorded a finding pursuant to s 269FB(2) of the CLCA that the objective elements of the offence of murder are established beyond reasonable doubt.

   Not guilty finding and declaration

4. Having found the objective elements established, pursuant to s 269FB(3) of the CLCA I found Mr Rasmussen not guilty of the offence of murder and declared him liable to supervision under Division 4, subdivision 2 of the CLCA.

5. Having found Mr Rasmussen liable to supervision, I made a supervision order committing him to detention pursuant to s 269O(1)(b) of the CLCA.

6. Pursuant to s 269R(3) of the CLCA, prior to fixing a limiting term, Mr and Mrs McPhillips, the parents of Heath McPhillips, furnished the Court with a statement of a kind referred to in s 14 of the Sentencing Act 2017 (SA) (a victim impact statement) as if Mr Rasmussen had been convicted of the offence of murder and I was determining sentence. Mr and Mrs McPhillips spoke of the trauma and anguish that their family has suffered and continues to endure at the death of their much loved son.

7. Pursuant to s 269O(2) of the CLCA, I fix a limiting term of life (being the term of imprisonment that would have been imposed if Mr Rasmussen had been convicted of the offence of murder).

8. Upon making the supervision order, the Minister for Health and Wellbeing must provide the Court with a report from a psychiatrist regarding Mr Rasmussen’s diagnosis, prognosis and suggested treatment plan pursuant to s 269Q of the CLCA.