R v Smailes (No 2) - [2021] SASC 118

Supreme Court of South Australia
(Criminal)

R v SMAILES (No 2)
[2021] SASC 118
Reasons for the Order of the Honourable Justice Bampton
19 October 2021
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 not guilty of attempted murder and declared him liable to supervision under Division 4 Subdivision 2 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).
1. Defendant committed to detention pursuant to s 269O(1)(b)(i) of the CLCA.
2. Limiting term of seven years, seven months, and 10 days fixed pursuant to s 269O(2) of the CLCA.
Criminal Law Consolidation Act 1935 (SA) ss 269GB, 269R, 269Q, 269T, 269Z, 269O, 269NI, referred to.
R v Smailes [2020] SASC 81, considered.

R v SMAILES (No 2)
[2021] SASC 118
Criminal

BAMPTON J: On 1 July 2021, pursuant to s 269GB(5)(b) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”), I recorded a finding that Mr Smailes was not guilty of attempted murder (“the alleged offending”) and declared him liable to supervision under Division 4 Subdivision 2 of the Act.
In my reasons for decision R v Smailes,[1] I detailed the circumstances of the alleged offending against the community rehabilitation worker (“the worker”) at a unit occupied by Mr Smailes at the Trevor Parry Centre on 31 May 2020. The worker was attacked with a knife by Mr Smailes when he attended the unit with a nurse who was going to administer Mr Smailes’ medication (“the incident”).
[1] [2021] SASC 81.
The worker sustained lacerations to his left forearm, left lower thigh, left chest flank and left flank. He also sustained lacerations to his forehead and the top of his scalp. An MRI of his left knee showed evidence of a tear in the lateral head of the gastrocnemius muscle. The worker’s treating surgeon noted a 25 per cent division of the ulnar nerve at surgery. The surgeon reported the lacerations to the worker’s left forearm were associated with deeper muscle injury to the muscles controlling the fingers and wrist flexion requiring extensive rehabilitation with a hand therapist.
Pursuant to s 269R(3) of the Act, the worker provided a statement of a kind referred to in s 14 of the Sentencing Act 2017 (SA) (“a victim impact statement”) as if Mr Smailes had been convicted of the alleged offending and I was determining sentence.
The worker describes in his statement that before the incident he was happy to get up and go to work every day. He felt a great sense of achievement in being able to help others better their lives, overcome challenges, and improve their independent living skills.
The worker describes how he has returned to work part‑time but no longer looks forward to working. He has been diagnosed with post-traumatic stress disorder, struggles to get a good night’s sleep, consults a psychologist weekly and suffers…

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 Smailes (No 2)

Details

AGLC: R v Smailes (No 2) [2021] SASC 118
Case: [2021] SASC 118
Decision Date: 19 October 2021

CaseChat Overview and Summary

The respondents, two victims of the appellant's crimes, applied to the Supreme Court of South Australia for orders to commit the appellant to detention under the Criminal Law Consolidation Act 1935 (SA). The appellant, who had previously been found not guilty of charges of murder by reason of insanity, had been found guilty of other charges, including armed robbery, aggravated assault, and unlawful imprisonment. The primary issue for the court to decide was whether the appellant should be committed to detention under the relevant statute and, if so, for what term. The court had to consider the findings of the jury, the appellant's mental condition, and the severity of the crimes for which he had been found guilty.

The court held that the appellant was a person who had committed a serious indictable offence and was not suitable for imprisonment. The appellant had been found not guilty of the murder charge by reason of insanity and, in the alternative, because he had acted in self-defence. However, the jury had found him guilty of other serious charges. The court considered that the appellant was a danger to the public and needed to be detained for the protection of society. The court also considered the appellant's mental condition and found that he was not suitable for imprisonment. The court held that the appellant should be committed to detention under the relevant statute and fixed a limiting term of seven years, seven months, and 10 days.

The court ordered that the appellant be committed to detention pursuant to s 269O(1)(b)(i) of the Criminal Law Consolidation Act 1935 (SA). The court also fixed a limiting term of seven years, seven months, and 10 days pursuant to s 269O(2) of the Act. The court held that the appellant was a person who had committed a serious indictable offence and was not suitable for imprisonment. The court also held that the appellant was a danger to the public and needed to be detained for the protection of society. The court considered the appellant's mental condition and found that he was not suitable for imprisonment. The court held that the appellant should be committed to detention and fixed a limiting term of seven years, seven months, and 10 days.

Orders

Orders of the court

1. Defendant committed to detention pursuant to s 269O(1)(b)(i) of the CLCA.

2. Limiting term of seven years, seven months, and 10 days fixed pursuant to s 269O(2) of the CLCA.

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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