R v Robinson
[2004] VSC 505
•10 December 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1499 of 2003
| THE QUEEN |
| v |
| DAVID MARK ROBINSON |
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JUDGE: | KELLAM J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12, 13, 14 and 29 July 2004 (with further written submissions dated 31 November and 2 December 2004). | |
DATE OF JUDGMENT: | 10 December 2004 | |
CASE MAY BE CITED AS: | R v Robinson | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 505 | |
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CRIMINAL LAW – Detention order – Acquittal of accused on charges of attempted hijacking of an aircraft and other offences involving injury to aircraft crew on grounds of mental illness – Order made for detention in psychiatric hospital – Period of detention –Principles to be applied in determination of period of detention - Crimes Act (Commonwealth) ss.20BJ(1) - Crimes (Mental Impairment and Unfitness to be Tried) Act (Victoria) 1997 ss.27(1), 35.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr M.P. Cahill | Solicitor to the Director of Public Prosecutions (C’th) |
| For the Defendant | Mr P. Morrissey | Patrick Dwyer |
TABLE OF CONTENTS
Background
The Commonwealth Legislation
The Victorian Legislation
The decision in R v Goodfellow
The Nature of the Offences
The mental illness suffered by Mr Robinson
Conclusion
HIS HONOUR:
Background
On 29 May 2003, and whilst gripped by a psychotic belief that it was his God‑appointed task to release the devil from the Walls of Jerusalem in Tasmania, thus ushering in the Battle of Armageddon which would free the world of evil, David Robinson attempted to hijack a Qantas aircraft.
On his trial in July this year and after hearing compelling and unanimous evidence from three psychiatrists to the effect that he was, at all relevant times, suffering from previously undiagnosed paranoid schizophrenia, the jury found Mr Robinson not guilty of the charge of attempting to hijack an aircraft. The jury also found him not guilty of two charges of committing an act of violence against crew members of the aircraft, namely, the attempted murder of one and the infliction of grievous bodily harm on another crew member.
The verdict of not guilty of these charges was found by the jury to be on the basis that they were satisfied that Mr Robinson suffered from mental illness at the time of the offences. The question now to be determined is for what period of time I should order that Mr Robinson be detained in a forensic psychiatric hospital.
The Commonwealth Legislation
Division 7 Part 1B of the Crimes Act (Cth) (1914) (the Commonwealth Act) provides for the circumstances whereby a person charged with an indictable Federal offence is acquitted because of mental illness at the time of the offence. Section 20BJ(1) of the Commonwealth Act provides as follows:
“Where a person has been charged with a Federal offence on indictment and the person is acquitted because of mental illness at the time of the offence, the court must order that the person be detained in safe custody in prison or in hospital for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged.”
The maximum penalty for the crime of attempted hijacking is life imprisonment.
Immediately after the verdict of the jury I ordered that Mr Robinson be detained in the Thomas Embling Hospital. However, I adjourned the question of what “period” should be specified in the order for further submission by counsel for the DPP and for Mr Robinson.
The legislative scheme which was inserted by Parliament in the Commonwealth Act in 1990 to deal with the circumstances of acquittal of a person by reason of mental illness is as follows. The period fixed by the Court under s.20BJ is the limit of the period for which the person the subject of an order may be detained. Where the Court makes a detention order under s.20BJ(1) the Attorney‑General of the Commonwealth is required to consider as soon as practicable whether the person should be released from detention and must, whilst the person is in detention, thereafter reconsider the matter every six months.
Section 20BL(2) provides that the Attorney‑General must not order a person’s release from detention unless the Attorney‑General is satisfied that the person is not a threat or a danger either to himself or herself or to the community.
Any release order made by the Attorney‑General under s.20BL remains in force for five years or for the period of detention fixed by the Court whichever is the lesser. Such a release order may include amongst other things, conditions as to continuing psychiatric treatment. Furthermore the release order may be revoked in the event of the breach of such conditions. If the person is due to be released because the period of detention has ended the Attorney‑General is required by s.20BP of the Commonwealth Act to notify the mental health authorities of the relevant State of the proposed release of the person.
The Victorian Legislation
The Commonwealth legislative scheme can be compared with the scheme introduced in 1997 in the State of Victoria by the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (the State Act) which applies when a person has been found not guilty of a State offence on the ground of mental impairment. Under that legislative scheme a court must declare that such a person is liable to supervision under the State Act or must order the person to be released unconditionally. A supervision order is for an indefinite term[1], but the Court must fix a nominal term to be calculated by reference to the maximum penalty of the offence of which the person has been found not guilty. The nominal term provides a date at which a major review of the supervision order must be undertaken by the Court[2]. The issue of when (if ever) the person may be released from a custodial supervision order is determined by considerations relevant to the safety of the public. Section 32(2) of the State Act provides that the Court must not vary a custodial supervision order to a non-custodial supervision order unless satisfied that the safety of the person or members of the public will not be seriously endangered as a result of such release.
[1]Section 27(1).
[2]Section 35.
However, although a nominal term is fixed, the scheme involves a process of graduated steps towards final revocation of orders if the person is demonstrating either recovery from his or her illness, or improvement in his or her condition such that he or she is not a serious endangerment to the community. This graduated process commences with a leave program of up to three days per week, which may granted by the Forensic Leave Panel (a body chaired by a Supreme Court judge). If leaves granted by the panel demonstrate that the person is not a danger to the community, the court may thereafter, upon application, make an order granting extended leave from the place of detention for up to 12 months. The next step is for the court, if it is satisfied that there will be no serious endangerment to the person or the public, to grant a non-custodial supervision order. Those orders are usually subject to stringent conditions. Finally, in some circumstances, the progress made by a person may be such that the court is satisfied that the person or the public will not be endangered by revocation of the non-custodial supervision order.
Since the introduction of the State Act the experience of the Courts has been that some forensic patients make rapid improvement after being provided with appropriate psychiatric treatment and medication and can commence the gradual process contemplated by the Act. Some patients are able to achieve sufficient insight into their condition to enable them to be placed on a non-custodial supervision order but may not be able to move to a position where the court can be satisfied that a non-custodial supervision order should be revoked. Other forensic patients have been found to have psychiatric conditions of such severity, that they are resistant to any treatment or medication and such persons are likely to remain detained pursuant to a custodial supervision order for a considerable period of time. It will be observed therefore that the scheme of the legislation is that the psychiatric condition of the patient and the question of the safety of the community is the matter of greatest relevance. The responsibility for the determination of such matters was transferred from the Executive to the courts by the enactment of the State Act.
The State Act was amended by the Mental Health Legislation (Commonwealth Detainees) Act 2004. This Act received royal assent on 16 June 2004. As is clear from the Second Reading Speeches[3] introducing the Bill into Parliament, the intention of the amending act was to ensure that persons who were found not guilty of a Commonwealth offence on the ground of mental illness could be provided with involuntary mental health treatment by Victorian approved mental health services, and thus be provided with the same treatment as a person who has been found not guilty of a State offence by reason of mental impairment. However, in order to avoid inconsistency with the Commonwealth Act, the power of the court to grant extended leave, and to make non-custodial supervision orders, and/or to revoke a non-custodial supervision order does not apply to a person found not guilty of a Commonwealth offence on the ground of mental illness. The decision to release such a person from detention remains within the discretion of the Attorney-General for the Commonwealth during the period of detention ordered by the Court.
[3]Minister for Health, Ms B. Pike 13 May 2004 Legislative Assembly.
I have referred to the relevant Commonwealth and State legislation in some detail because of the issue of what is the appropriate criteria to be applied to the determination of the period of detention to be ordered in the case of Mr Robinson under the Commonwealth Act.
The decision in R v Goodfellow
R v Goodfellow[4] is the only reported decision relating to the construction of s.20BJ(1) of the Commonwealth Act. Hunt CJ at Common Law, in his judgment observed[5] that the length of the detention period under s.20BJ(1) is not dictated expressly by “any estimate of the sentence which would have been imposed if the person had been found guilty”. He contrasted this with the requirement of s.23 of the Mental Health (Criminal Procedure) Act (NSW) which provided that New South Wales courts must nominate “a limiting term” which represents the “best estimate of the sentence” which would have been appropriate in circumstances where an accused person was found not fit to plead by reason of mental impairment.
[4](1994) 33 NSWLR 308.
[5]At 313.
The New South Wales Court of Criminal Appeal in Goodfellow concluded that when making an order pursuant to the Commonwealth Act, the length of the period referred to by s.20BJ(1) should be fixed by reference to the sentence which would have been imposed if the person had been found guilty. The court concluded that no account should be taken of that person’s mental illness or any state of mind aggravated by that mental illness. Hunt CJ at common law said[6]:
“No assistance as to the intention of the legislature can be gained from either the Explanatory Memorandum or either of the Second Reading Speeches. The absence of any reference in the statute to some other criterion for fixing the length of the detention period suggests to me that the only logical approach available is to fix that period by reference to a sentence which would have been imposed if the person had been found guilty – and this notwithstanding the departure by the draftsmen of s.20BJ in this regard from its apparent model in the State Act. Unfortunately, as the criticism of it from around Australia has demonstrated, the logic of the whole of Part 1B is so flawed that such an assumption must only be made with care, but in my view it is the assumption which should be made in relation to s.20BJ. Such an approach would necessarily exclude any account being taken of that person’s mental illness or any state of mind aggravated by that mental illness.”
[6]At 311.
Allen J in his judgment set out his observations as to what he saw to be the correct approach to the construction of s.20BJ(1) of the Commonwealth Act as follows[7]:
“On what basis or bases is a court required by that section to fix the period of safe custody to determine what the period should be? The only guidance given is that the period so fixed must be one ‘not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged’. What is the policy implicit in that laconic restriction? I can seen none other than a person who has committed what would have been a crime but for his mental illness (criminal conduct) should not be kept in custody upon it being found that he has so acted (that is upon him being found not guilty on the ground of mental illness) for longer than the sentence which would have been imposed had he been found guilty. Any restraint on his liberty, because of mental illness, thereafter would be a matter for the general law – not the civil law. Accordingly the period of safe custody determined in respect of the criminal conduct must not exceed the maximum period of imprisonment that could have been imposed if the person had been convicted.”
[7]At 313.
He concluded that any other approach to s.20BJ(1) would frustrate its “manifest intention” and he suggested that accordingly s.20BJ(1) can be read as follows:
“Where a person has been charged with federal offences on an indictment and the person is acquitted because of mental illness at the time of the offence, the court must order that the person be detained in safe custody in prison or in a hospital for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of all the offences charged.”
The decision in R v Goodfellow being a decision of the Court of Appeal of the Supreme Court of New South Wales, is accordingly of powerful, persuasive value in terms of the consideration of the task which is before me.
Indeed, all the more so because in that case the Court was exercising federal jurisdiction. R v Parsons[8] makes it clear that state courts should give a consistent meaning to a Commonwealth statute. See also R v Gardiner[9].
[8][1983] 2 VR 499 at 506 and 509.
[9]27 ALR 140.
Thus if one is to exclude any consideration of the fact that Mr Robinson was mentally ill at the time of the attempted hijack and to take no account of his state of mind caused by his psychotic illness, as is submitted by the prosecution to be the consequence of the approach taken by the Court of Criminal Appeal of New South Wales in R v Goodfellow, it is apparent that a substantial period of detention would be required in this case. A consideration of the nature of the offences is necessitated by this approach.
The Nature of the Offences
As I have observed, the offence of attempted hijacking carries a maximum penalty of life imprisonment. The offence of attempted murder also carries a maximum penalty of life imprisonment. The maximum penalty for intentionally inflicting grievous bodily harm is 15 years’ imprisonment. There can be no doubt that, Mr Robinson’s conduct, explicable as it is by his mental illness of florid paranoid schizophrenia, was objectively serious. Hijacking has been described by the High Court as a most serious offence calling for severe and stern punishment[10]. From an objective viewpoint, Mr Robinson engaged in considerable planning. That planning involved the bizarre behaviour of travelling throughout Australia looking for a woman “dressed in scarlet and crimson” who would lead him to the devil, but also included the manufacture of wooden weapons, to avoid airport security with which he intended and did commence his attack on aircraft staff. Likewise, he took aerosol hairspray onto the airplane. He intended to use the hairspray as flammable spray to set fire to all the people on the aircraft. Furthermore, he pursued his attack upon the airline staff and caused most unpleasant physical injury and no doubt severe emotional trauma to both of them.
[10]R v Sillery (1980) 180 CLR 353 at 357, 362 and 363.
Thus, on any view and excluding the consideration of the mental illness suffered by Mr Robinson, his conduct must be seen as extremely serious. The prosecution submits that the Court must fix the period by reference to the sentence which would have been imposed if the person had been found guilty. R v Goodfellow is authority for the proposition that an order of detention must not exceed the maximum period of imprisonment that could have been imposed if the person had been convicted of the offences charged[11]. Looked at in this manner, R v Goodfellow clearly establishes that the maximum penalty which might have been imposed if the person had been convicted of the offences charged is a ceiling upon the limit of detention under the Act. I do not understand R v Goodfellow to be authority for the proposition that the maximum period of detention which may be ordered in the case with which I am concerned is life imprisonment but rather it is authority for the proposition that the length of the period of detention should be no more than the length of any sentence of imprisonment which would have been imposed in all the circumstances had Mr Robinson been found guilty. That much is clear. However, the prosecution asserts that I should take no account of the nature of the mental illness suffered by Mr Robinson in fixing such a term. Mr Cahill of counsel relies upon the statement of Hunt CJ referred to by me in paragraph 16 above where his Honour said that the only logical approach was to fix the period of detention by reference to a sentence which would have been imposed if the person had been found guilty. Likewise, as Allen J said in R v Goodfellow[12]:
“Where the person to be dealt with under s.20BJ has been found not guilty on the grounds of mental illness of a number of offences the task of the court is to determine what, in the light of the maximum total imprisonment provided by the legislature for all those offences would be the total imprisonment appropriate by way of sentence had he been found guilty of all the offences.”
[11]See R v Goodfellow per Allen J at 314.
[12]At p.313.
Upon consideration of the issues raised in this case I became troubled as to how one might determine the appropriate period which might have been fixed as a total term of imprisonment for the offences committed by Mr Robinson if he had been found guilty. As is apparent from general principle, the issue of culpability would be relevant to the determination of the appropriate sentence. As stated by Gibbs CJ in Sillery v The Queen[13] in dealing with the crime of hijacking:
“It is true that hijacking is generally a most serious crime, which ought to be punished by severe penalties as Article 2 of the Convention recognises. However, even in the case of such a crime there may exist wide differences in the degree of culpability of particular offenders, so that in principle there is every reason for allowing a discretion to the judge of trial to impose an appropriate sentence not exceeding the statutory maximum. One may compare, for example, the case of an unarmed drunken man who seeks to take control of an aircraft by the use of his fists with that of a terrorist armed with a bomb. … The provision of a maximum punishment would allow the trial judge to exercise a proper discretion as to sentence in the light of all the circumstances, and this is particularly desirable where a number of different acts, some much more blameworthy than others, fall within the definition of the crime.”
[13]180 CLR 353 at 357.
Whilst it is true that the case of Sillery was concerned with the issue of whether imprisonment for life was a mandatory or a maximum punishment for the offence of hijacking, the recognition that there are ranges of culpability in relation to such an offence is a matter relevant to the question before me. For example, what would the situation be if Mr Robinson at the time of committing his offences was suffering from serious psychiatric illness but not to such an extent to attract the defence of mental impairment? In such circumstances the sentencing judge would be required, in fixing sentence, to take into account his state of mind at the time of the offence in consideration of the issue and the degree of culpability of Mr Robinson. Furthermore, does one assume that Mr Robinson would have pleaded guilty, thus attracting a discount for his plea? Would one have to take into account in his favour his cooperation with police in his interview and his ready confession of the relevant elements and facts of the offence? What effect would such matters have upon the maximum sentence that might be imposed and has to be notionally considered? If one is to ignore totally the issue of his mental illness then considerations of general and specific deterrence would have to be given their full weight rather than be appropriately considered in accordance with the principles of cases such as R v Tsiaras[14] and Parnis v R[15]. On any view it is apparent that if one is to ignore the issue of mental illness in relation to the commission of the offence in this case, in which the illness lies at the root of the behaviour of Mr Robinson, the exercise in question is artificial indeed. Accordingly, I have grave difficulty in undertaking the notional process of establishing what sentence of imprisonment would have been imposed upon Mr Robinson had he been found guilty of the offences in question without any consideration of the nature of his mental illness or his state of mind at the time of the offence.
[14][1996] 1 VR 398.
[15](1993) 126 ALR 423 at 425.
The mental illness suffered by Mr Robinson
The evidence given at the trial of Mr Robinson consisted of evidence from Mr Douglas Bell, a highly regarded consultant psychiatrist who is the Assistant Clinical Director of the Victorian Institute of Forensic Mental Health, and of Dr Nicholas Owens, a consultant psychiatrist who works with the Community Forensic Mental Health Service, and Dr Lester Walton, who is a highly experience forensic psychiatrist. That evidence was to the unanimous effect that Mr Robinson, at the time of the offences, was suffering from a previously undiagnosed paranoid schizophrenia. He had, at the time, received no treatment for his illness. He was almost immediately after his arrest certified under s.16(3)(b) of the Mental Health Act 1986 at the Melbourne Assessment Prison and some days later admitted to the Thomas Embling Hospital where he remained until 5 January 2004 before being returned to prison. He was commenced on antipsychotic treatment with Olanzapine and began to settle into the ward environment. Clearly he was floridly psychotic at that time as in consequence of calculations arrived at by him by means of “obscure religious formulae” he asserted that Armageddon would occur on 14 June 2003. Mr Robinson predicted that on this date there would be earthquakes and scorpions flying through the air. Ultimately, these dates passed without incident and as the months passed, he slowly began to gain some insight into his florid state of psychosis and into the enormity of the actions he had taken whilst under its influence.
By the time the trial of this matter took place, significant improvement in the condition of Mr Robinson had been observed. However, he was in prison upon remand in the months leading up to trial and it was only upon the verdict of the jury that I directed that he be detained in the Thomas Embling Hospital.
In all the circumstances and because I was troubled as to whether the issue of his mental illness both at the time of the offence and now should be totally excluded from any consideration of the appropriate term of detention to be imposed I decided to obtain a progress report after Mr Robinson had been detained for three months at the Thomas Embling Hospital and to enable further submission on the part of counsel. The progress report of Dr Bell, dated 15 November 2004, was provided to me shortly thereafter and to each of counsel for the prosecution and for Mr Robinson. Dr Bell had been involved in psychiatric assessment of Mr Robinson soon after his arrest. It will be recalled that Mr Robinson was transferred as a security patient under the Mental Health Act to the Thomas Embling Hospital on 5 June 2004 and was returned to prison on 5 January 2004. Since Mr Robinson returned to the Thomas Embling Hospital following his trial on 14 July 2004, Dr Bell has been his treating psychiatrist. He has made significant improvement whilst on antipsychotic medication. Dr Bell states that his “persisting residual delusional symptoms have, as far as can be determined through both his individual psychiatric interview and general observation of his presentation within his ward environment, now fully resolved.” He has expressed considerable distress and regret regarding what happened, and indicates a strong sense of acceptance of ownership of the responsibility for his offence and the consequences of his actions for his victims. Dr Bell considers that the long term prognosis for Mr Robinson is very good given the satisfactory resolution of his positive psychotic symptoms in relation to his treatment thus far.
Mr Morrissey of Counsel provided further submissions upon receipt of the report of Dr Bell whereby he submits that the evidence of Dr Bell is such that “it permits the Court to draw conclusions which are more optimistic than usual, and opens the way to the imposition of a fixed term which is significantly shorter than might otherwise be indicated”. Thus, Mr Morrissey submits, I can take the present circumstances of Mr Robinson’s crimes mental illness into account in fixing the appropriate term.
On the other hand, Mr Cahill of Counsel who has provided a written response to the defendant’s written submissions which are dated 2 December 2004, contends that the improvement in Mr Robinson’s mental state does not mandate the fixing of a shorter period of detention that would otherwise be appropriate. He submits that the seriousness of Mr Robinson’s illness, which is severe and longstanding, and the grievous nature of his offending, indicate that the Court should impose a substantial period of detention for the protection of Mr Robinson and the community. Mr Cahill points out that once the term of detention fixed by the Court expires, Mr Robinson must be released and he submits that this consideration warrants a conservative approach to the fixing of the term. In particular, he relies upon a conclusion expressed by Dr Bell in his report that although Mr Robinson’s delusional symptoms have resolved, Dr Bell considers that his mental state will require to have recovered for a long time before his re-integration into the community can be considered. He submits that the apparent resolution of delusional symptoms and his good prognosis should not weigh heavily in the fixing of Mr Robinson’s term of detention but are matters which the Attorney-General should properly take into account when conducting the statutory periodic reviews.
Conclusion
In my view, I am bound to follow the decision of R v Goodfellow in the construction of s.20BJ of the Commonwealth Act in determining what is the maximum period of detention which may be imposed under the Act. As stated above, I accept that the effect of R v Goodfellow is that where a person has been charged with federal offences on indictment and the person is acquitted because of mental illness at the time of the offence, the Court must order that the person be detained in safe custody in a prison or in a hospital for a period specified in the order not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offences charged. However, in the determination of such a period I consider I am obliged to consider the nature of the offence and the culpability of the offender. Those matters would be relevant in terms of fixing the maximum period of imprisonment which could have been imposed upon him. Thus I conclude that the issue of the mental illness suffered by Mr Robinson is relevant to the issue of culpability and in terms of the assessment of the sentence which would have been imposed upon him had he been found guilty. That conclusion does not appear to me to be inconsistent with R v Goodfellow.
The scheme of the Commonwealth Act however is totally different from the scheme of the humane Victorian Act and thus I accept, in accord with what I conclude to be the basis of the conclusion of the Court in R v Goodfellow, that the fixing of the term of detention excludes account being taken of the nature of the mental illness suffered by Mr Robinson, or of its prognosis, as a matter separate to the consideration of such matters in relation to determining what the maximum sentence may have been had Mr Robinson been found guilty of the offence. That means, in my view, that the matters which have been referred to in the most recent report of Dr Bell are matters which will be relevant for consideration by the Attorney-General of the Commonwealth when he comes to conduct his six monthly periodic reviews of Mr Robinson during the term of detention, but are not relevant for my consideration in the determination of the term of detention to be fixed.
Doing the best that I can to balance all of the factors which are appropriate to be taken into account in this case, I conclude that the appropriate term of detention to be imposed in this matter is a term of 13 years. I am satisfied that any term of imprisonment which might have been imposed upon Mr Robinson upon his conviction for the three offences in question would not exceed this term when all of the relevant circumstances, including his level of culpability were taken into account.
Mr Robinson has now been in detention either in prison or in hospital since 29 May 2003. Taking into account this matter in accordance with the principles of R v Renzella[16] I conclude that the appropriate term of detention is 12 years to commence from the date of the commencement of such detention after the verdict of the jury being 14 July 2004. Accordingly, the order I make is that pursuant to s.20BJ of the Crimes Act 1914 (Cth) David Mark Robinson be detained at the Thomas Embling Hospital for a period of 12 years from 14 July 2004. Furthermore, I request that the Commonwealth Office of Public Prosecutions inform the Attorney-General of this decision and provide him with copies of all medical reports tendered before the Court and request that the initial consideration contemplated by s.20BK of the Crimes Act 1914 (Cth) be undertaken as soon as possible.
[16](1997) 2 VR 88 at 96 – 97 per Winneke P.
I conclude by observing that despite the comments made by Hunt CJ in R v Goodfellow that the logic of the whole of Part 1B of the Commonwealth Act is so flawed that assumptions as to the approach to be taken by courts can be made only with care, no alteration has been made to the legislation. Consideration might be given by the Commonwealth to making appropriate amendments to the legislation. One might argue that the approaches taken in Victoria and in Queensland in recent years are humane and reflect a more modern approach to the problems created by the commission of offences by persons who are not responsible for their conduct by reason of mental illness.
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