R v Stein - [2012] VSC 487

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0033 of 2012

THE QUEEN

JOHN STEIN

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 & 19 June, 10 September 2012
DATE OF RULING:	8 October 2012
CASE MAY BE CITED AS:	R v Stein
MEDIUM NEUTRAL CITATION:	[2012] VSC 487

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CRIMINAL LAW – Culpable driving – Found unfit to be tried pursuant to Crimes (Mental Impairment & Unfitness to be Tried) Act 1994 – Found to have committed the offence –Supervision order made – No available services available in an appropriate place – Satisfied as to a practicable alternative to prison – Non custodial supervision order made.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G. Silbert SC	Office of Public Prosecutions
For the Accused	Mr G. Georgiou	Rob Stary Lawyers

HIS HONOUR:

John Stein has been found unfit to be tried pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1994 (‘the Act’), and subsequently a jury has found that he committed the offence of culpable driving. As a result of that finding, I declared him subject to supervision pursuant to s 18(4) of the Act. The nominal period of that supervision order is ten years, although the order for supervision itself is indefinite.

The status of the jury finding pursuant to s 18(3)(a) constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence for which the finding relates. It follows that John Stein does not fall to be sentenced for the crime of culpable driving because he is a person whose disposition is to be determined under the Act. Such disposition is governed by s 26 of the Act.

A person may be made subject either to a Custodial Supervision Order in these terms:

(2) A supervision order may—
(a) commit the person to custody (custodial supervision order)—
(i)subject to subsection (3), in an appropriate place; or
(ii)subject to subsection (4), in a prison; or

(b) release the person on conditions decided by the court and specified in the order (non-custodial supervision order).

Sub-section (3) states:

“The court must not make a supervision order committing a person to custody in an appropriate place or (b) providing for a person to receive services in an appropriate place or from a disability service provider, the Secretary of the Department of Human Services, or the Secretary of the Department of Health, unless it has received a certificate under s 47 stating that the facilities or service necessary for the order are available”.

And (4):
”The court must not a supervision order committing a person to custody in a prison unless it is satisfied there are no practicable alternatives in the circumstances”.

I have received a certificate pursuant to s 47 over the signature of the Executive Director of Disability Services of the Department of Human Services making it clear, without…

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 Stein

Details

AGLC: R v Stein [2012] VSC 487
Case: [2012] VSC 487
Decision Date: 8 October 2012

CaseChat Overview and Summary

In the case of R v Stein, the defendant was charged with driving a motor vehicle while under the influence of alcohol and drugs, causing death. The matter was heard in the Supreme Court of Victoria. The defendant was assessed to be unfit to be tried due to mental impairment, as per the Crimes (Mental Impairment & Unfitness to be Tried) Act 1994. Despite being unfit to be tried, the court found that the defendant had indeed committed the offence.

The primary legal issues before the court were whether a supervision order could be made in the absence of appropriate services in the defendant’s preferred location, and if a practicable non-custodial alternative to prison could be implemented. The court had to balance the need for public safety and the defendant’s rights under the relevant legislation. The court concluded that it was possible to make a supervision order even if the services were not available in the preferred location, provided a practicable alternative to imprisonment could be found. The court was satisfied that such an alternative existed in this case.

After considering the evidence and the submissions, the court determined that a supervision order was appropriate. The court found that the services necessary for the defendant’s management were available in an alternative location, and a practicable non-custodial alternative to prison could be implemented. Consequently, the court made a supervision order, ensuring the defendant’s management in a secure and appropriate setting while addressing the public safety concerns. The court’s decision provided a balanced approach, accommodating both the defendant’s needs and the need for public protection.

Orders