R v Stevens - [2012] SADC 178

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v STEVENS
[2012] SADC 178
Reasons for Ruling of His Honour Judge Soulio
13 December 2012
CRIMINAL LAW
Investigation into fitness to stand trial - decided that defendant unfit to stand trial - decided that the objective elements were established beyond reasonable doubt - supervision order made - defendant currently serving sentence of imprisonment for offences of indecent assault and gross indecency.
Defendant detained and limiting order of one year and six months to operate concurently with sentence of imprisonment.
Criminal Law Consolidation Act 1935 Part 8A; Criminal Law (Sentencing Act) 1988 s 18A, referred to.
R v Draoui (2008) 101 SASR 267, considered.

R v STEVENS
[2012] SADC 178
Introduction

The defendant, Michael Stevens, was charged with two counts of aggravated possessing child pornography and one count of possessing child pornography, contrary to s 63A(1)(a) of the Criminal Law Consolidation Act 1935 (CLCA). Following a visit by police to the defendant’s home address on 8 October 2009, two notes hand written by the defendant, were located which detailed sexual acts upon a child, and which constitute Counts 1 and 3. Police also located images on the defendant’s computer which constitute child pornography and relate to Count 2.
Question of Fitness to Plead
In a report of 1 November 2010, Mr Broomhall, a psychologist, had expressed the opinion that the defendant had the intellectual capacity of a six or seven year old, and was not fit to stand trial within the meaning of s 269H CLCA. Mr Broomhall reiterated that opinion in his report of 16 January 2012.
A similar opinion was expressed by Dr Scamps, a clinical neuropsychologist, in her report of 27 January 2011. She said:
In terms of his ability to understand the nature of the proceedings, or to follow the evidence or the course of proceedings, it is my opinion that Mr Stevens would have significant difficulty with this. The neuropsychological assessment found that his working memory was significantly impaired. Working memory is an important and basic cognitive function required for the processing of information. If working memory is impaired, it is likely the person will have significant trouble taking in complex conversations, processing information and problem-solving, and committing such information to memory. I expect that Mr Stevens would have significant difficulty following and understanding the proceedings of the court. His memory was impaired when learning short stories, and this suggests that the information that he hears in court is unlikely to be processed or encoded to memory adequately. … He does not have the capacity to exercise his procedural rights or to understand the nature of the proceedings.
The opinions of Mr Broomhall and Dr Scamps, to which I have referred, were supported by that of Dr Raeside, forensic psychiatrist, in his report of 8 November 2011 where he said:
However, I would concur with the previous psychological assessments that Mr Stevens is unfit to plead, instruct, and to stand trial. Whilst he appears to have a…

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 Stevens

Details

AGLC: R v Stevens [2012] SADC 178
Case: [2012] SADC 178
Decision Date: 13 December 2012

CaseChat Overview and Summary

The defendant, Michael Stevens, was charged with two counts of aggravated possessing child pornography and one count of possessing child pornography under the Criminal Law Consolidation Act 1935. The charges followed a police investigation into material found in Stevens' possession. The court had to determine whether Stevens was fit to stand trial and, if so, whether the objective elements of the offences were established. The court also had to decide on the appropriate sentence and conditions for any supervision order.

The court heard expert evidence from psychologists and a psychiatrist, all of whom concluded that Stevens had a significant intellectual disability, rendering him unfit to stand trial. This was confirmed when the prosecution conceded that Stevens was unfit to stand trial. The court found that the objective elements of the offences were established beyond reasonable doubt. The court considered reports from various experts and the Parole Board, which indicated that Stevens posed a high risk of sexual reoffending. The court also heard a victim impact statement from a social worker who reported that the victims and their family were traumatised and wished to be protected from Stevens.

The court decided that Stevens should be detained under a supervision order, given his unfitness to stand trial and the high risk of reoffending. The court fixed a limiting term of one year and six months, to run concurrently with Stevens' current sentence of imprisonment. The court concluded that releasing Stevens on licence would not be appropriate, given the circumstances and the need to protect the community and the victims.

Orders