R v Singsathitsuk
[2021] ACTSC 26
•26 February 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Andison |
| Citation: | [2021] ACTSC 32 |
| Hearing Date: | 26 February 2021 |
| Decision Date: | 26 February 2021 |
| Before: | Elkaim J |
| Decision: | See [26] |
| Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Pre-trial hearing – determination of mental impairment – referral to ACAT |
| Legislation Cited: | Crimes Act 1900 (ACT) ss 300, 321, 323(3)(b), 324 Criminal Code 2002 (ACT) ss 27, 28, 404(1) Mental Health Act 2015 (ACT) |
| Cases Cited: | R v Singsathitsuk [2021] ACTSC 26 |
| Parties: | The Queen (Crown) Daniel James Andison (Accused) |
| Representation: | Counsel |
| S Jerome (Crown) H Hayunga (Accused) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) | |
| ACT Legal Aid (Accused) | |
| File Number: | SCC 158 of 2019 |
| ELKAIM J: |
1. The accused, Mr Daniel Andison, was arraigned before me this morning. He pleaded not guilty by reason of mental impairment to the offence of causing damage by fire to a building, [redacted], intending to cause, or being reckless about causing damage to that building (s 404(1) of the Criminal Code 2002 (ACT)).
2. The matter essentially proceeded by way of documentary evidence, included in both Exhibits A, B and 1.
3. The relevant legislation is to be found in Part 2.3 of the Criminal Code 2002. Section 27
contains the relevant definitions of “mental impairment” and “mental illness”. Section 28
is as follows:
28 Mental impairment and criminal responsibility
(1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had
the effect that—
(a) the person did not know the nature and quality of the conduct; or (b) the person did not know that the conduct was wrong; or (c) the person could not control the conduct. (2) For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.
(3) The question whether a person was suffering from a mental impairment is a question of
fact.(4) A person is presumed not to have been suffering from a mental impairment. (5) The presumption is displaced only if it is proved on the balance of probabilities (by the
prosecution or defence) that the person was suffering from a mental impairment.(6) The prosecution may rely on this section only if the court gives leave. (7) If the trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must—
(a) for an offence dealt with before the Supreme Court—return or enter a special verdict that the person is not guilty of the offence because of mental impairment;
or
(b) for any other offence—find the person not guilty of the offence because of mental impairment.
4. The next relevant legislation is s 321 of the Crimes Act 1900 (ACT), which states:
321 Supreme Court—plea of not guilty because of mental impairment
(1) This section applies if an accused pleads not guilty because of mental impairment
to an indictable offence before the Supreme Court.(2) The Supreme Court must enter a special verdict that the person is not guilty of the offence because of mental impairment if—
(a) the court considers the verdict appropriate; and (b) the prosecution agrees to the entering of the verdict.
5. The Crown has indicated that it agrees to the entering of a verdict of not guilty because of mental impairment.
The Crown’s concession is soundly based. It is derived from the reports of Dr Reid and
Dr Furst (all included in Exhibit 1). There is a difference between the opinions of the two doctors although their ultimate conclusion is the same. Dr Reid is a neuropsychologist. Dr Furst is a psychiatrist.
7. In the opinion of Dr Reid the accused did not know that his conduct was wrong. He said this in his report:
His lack of ability to reason and make rational choices was greatly affected by his extremely limited verbal skills, capacity to make judgments and to control his emotions at the time. These had a further impact on his behaviour where he has problems with impulse control and would not have been able to inhibit the impulse of his emotionally charged thoughts at the time. Due to his impaired mental state and his emotional state at the time I am of the opinion he would not be capable of appreciating the wrongness of his conduct at the time. He does however currently show some awareness of the wrongness of his actions as a result of him being more stable mentally due to the introduction of medication. I am of the opinion his mental state at the time was such that his impulses could not be reasoned with and he would not have been able to weigh up and evaluate the consequences of the offence.
With regard to the impact of being held in custody I am of the opinion this would have an adverse affect of Mr Andison's mental health as he is in isolation with regard to being able to communicate well with others. He is also vulnerable to exploitation. Furthermore, he does not have the social skills to be able to communicate adequately with fellow prisoners placing him at risk of abuse.
8. Dr Furst, on the other hand, thought that the accused probably did know his actions were wrong but that he probably was not able to control his conduct when he committed the offence. He said this:
His capacity to tell witnesses about what he had done means he understood the nature and quality of his actions/conduct. Although he has a very low level of intellectual function, I am at the opinion that he probably understood it was wrong to set fire to his pillow, i.e. he was probably not acting under the influence of delusional thinking or hallucinations; however, this possibility cannot be completely discounted in the presents of an emerging schizophrenic illness. Specifically, it is possible but not likely that he was hearing voices [auditory hallucinations] at the time that were commanding in nature, as he disclosed such hallucinatory experiences happening during that period when he spoke to Dr Kasinathan at the AMC in August.
In my opinion, the most relevant consideration in relation to the connection between his mental impairment, i.e. his intellectual disability, relates to his capacity to control his conduct. People with intellectual disability often have difficulty processing information, solving problems and controlling impulses. They also struggle in relation to consequential thinking and emotional control, especially when frustrated. There was a previous history of frustration and associated behavioural disturbance, including property damage and fire-lighting. Therefore, I would consider it more likely than not that Mr Andison's capacity to control his conduct on the day in question was significantly impaired by virtue of his intellectual disability and related cognitive deficits, satisfying the third leg of the legislation under section 28(1)(c).
(Sic)
9. It is not necessary for me to decide which of the medical opinions I prefer. This is because they both fall within the bounds of s 28(1).
10. There is no evidence, expert or otherwise, to counter the ultimate opinion of the two medical practitioners.
11. Accordingly, I am satisfied on a balance of probabilities that at the time when the offences were committed the accused was suffering from mental impairment so as to render him not criminally responsible as required under s 28 of the Criminal Code.
12. The next step is to decide if the Crown has proved its case beyond reasonable doubt, at least in respect of the physical elements of the offence. To this end the Crown tendered a number of statements of persons who attended the scene of the fire.
13. The scene was the residence where the accused lived. It can be seen in the photographs in Exhibit B. The landlord of the house was ACT Housing. The tenant was
Canberra Men’s Centre INC, an organisation providing accommodation to persons
such as the accused.
14. There are also frank admissions made by the accused. It appears that he set fire to the pillows in his bedroom as an act of frustration reflecting the absence of any rugby league on the television or as a measure of his loneliness. He said to one witness:
I burnt it down. I burnt my house down.
15. The elements of arson are that the accused engaged in conduct, he intended to engage in that conduct and his conduct caused damage to a building by fire. Finally it is necessary for the accused to have been reckless about causing the damage.
16. I am satisfied, and no submission was made to the contrary, that the physical elements of the offence have been proved beyond reasonable doubt.
The next step is to decide if the offence was “serious” as defined in s 300 of the Crimes
Act. The definition is as follows:
serious offence means—
(a) an offence involving actual or threatened violence and punishable by imprisonment for longer than 12 months; or (b) an offence against section 27 (3) or (4).
18. Fortunately no person was hurt in or as a result of the fire. The Crown submitted that I should make a finding that the offence was serious because of the extent of the damage caused (about $91,000) and the harm that might have been caused to Good Samaritans and the Fire Brigade members.
19. I accept that generally speaking arson can be a serious act. I do not agree however that this act of arson should be defined as serious within s 300. The accused set fire to his pillow as an act of frustration. The fire got out of hand. He was not, despite his own admission, setting fire to the house. No persons were hurt nor is there any suggestion that any person was susceptible to injury.
Section 300 refers to “actual or threatened violence”. There was no actual violence in
the accused setting fire to his pillow. It was a simple act of frustration. There was
certainly a potential for persons to be injured but ‘potential’ is not necessarily consistent
with threatened violence.
21. Accordingly, I find that the offence was not a serious offence. This conclusion is consistent with the approach I took in R v Singsathitsuk [2021] ACTSC 26.
22. The final step is the ultimate disposition of the matter. The Crown suggested that the accused be ordered to submit to the jurisdiction of the ACAT under s 323(3)(b) of the Crimes Act. I note that had I found the offence to be serious the Crown submission would have been the same, other than that the referral would have been pursuant to s 324.
23. The Crown, fairly and appropriately, did not suggest that the accused be detained for immediate review.
24. Ms Hayunga, on behalf of the accused, suggested that there was no need for the referral to ACAT because the accused was already living within a regime governed by a NDIS plan which appeared to be operating successfully. The plan can be found within Exhibit 1. There are a number of other documents in the exhibit confirming the progress being made by the accused.
Notwithstanding the accused’s current situation, I am of the view that the referral to
ACAT should still be made, noting that ACAT will take into account the accused’s
current circumstances. Although I cannot see any specific reason why the accused should not continue under the existing regime, I still think it appropriate that ACAT,
bearing in mind it’s specialist knowledge of matters of this sort, be the body to
determine the appropriate measures to be taken.
26. I make the following orders:
(a) A verdict of not guilty by reason of mental impairment is entered in respect of the offence of arson contrary to s 404(1) of the Criminal Code 2002 (CC2018/7911) (b) Pursuant to s 323(3)(b) of the Crimes Act, Mr Andison is ordered to submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015. This order is made in respect of the above offence of arson. I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.
Associate:
Date:
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