R v T

R v T
[1999] SASC 429

Court of Criminal Appeal: Doyle CJ, Debelle and Wicks JJ

DOYLE CJ. These appeals raise a number of issues under Part 8A of the Criminal Law Consolidation Act 1935 (“the Act”). Part 8A deals with mental impairment.
The first issue is whether the defendant elected to have an investigation, into whether the objective elements of an offence had been established, conducted by a judge sitting alone. If there was no such election, the proceedings have miscarried in a fundamental respect.
The second issue raises the question of how, in the case of a person found to be mentally unfit to stand trial, the court satisfies itself that no defence to a charge could be established on the assumption that the defendant’s mental faculties were not impaired at the time of the alleged offence.
The third issue raises the question of how the court fixes what the Act describes as a limiting term in relation to a person found unfit to stand trial and in relation to whom the court has decided to make a supervision order.

Facts

The appellant was charged with four counts of endangering life contrary to s 29(1) of the Act. I will refer to him as T. In essence, on four separate occasions on 14 February 1997 he threw a rock at a passing motor vehicle which struck the vehicle. I set out the particulars of the first count as an example:
“[T] on 14 February 1997, near Wirrulla, without lawful excuse, threw a rock at Steven William Coe, whilst he was driving his motor vehicle knowing that the act was likely to endanger the life of Steven William Coe, intending to endanger his life or being recklessly indifferent thereto.”
The depositions before the sentencing judge disclose that the appellant and a co-offender were travelling with others in a motor vehicle that broke down on the Eyre Highway approximately 64 kilometres east of Ceduna. The appellant and his co-offender left the vehicle and started walking towards Ceduna. It was while walking towards Ceduna that they threw rocks at passing vehicles, apparently in a misguided attempt to obtain a ride to Ceduna. They then returned to the broken down vehicle where they were apprehended by the police.
The depositions made by the drivers of the motor vehicles in question indicate that one of them was travelling at about 90 kilometres an hour when the rocks were thrown, and another was travelling at about 80 kilometres an hour. One of these two states that the windscreen of his motor vehicle was smashed, and but for evasive action that he took the rock in question might have hit him in the head. The other states that the rear passenger window of his motor vehicle was smashed. The other two drivers had slowed down when the rocks were thrown. It appears that they were travelling fairly slowly when the rocks were thrown. One of them states that the driver’s window of his vehicle was smashed. The other states that his windscreen was smashed. That being so, the rocks must have been thrown with considerable force. The depositions indicate that two Aboriginal men threw the rocks. There is no doubt that T was one of them. One cannot tell from the statements which of them threw which rocks.
T was interviewed by the police the following day. The record of interview contains admissions by T. However, the record of interview indicates that T had only a limited understanding of what was being put to him. Without the assistance of other evidence, one cannot tell from the record of interview whether the responses of T are due to language difficulties, to cultural factors, or to mental impairment. It later transpired that T was suffering from mental impairment.
The information charging T with four offences came before a judge of this court. There was an obvious doubt about T’s fitness to stand trial and about his mental competence to commit the offences. The Judge made orders under Part 8A of the Act for the provision of expert reports.
T was represented by counsel at each stage. Section 269W of the Act provides as follows:
“If the defendant is unable to instruct counsel on questions relevant to an investigation under this Part, the counsel may act, in the exercise of an independent discretion, in what he or she genuinely believes to be the defendant’s best interests.”
The reports that the Judge received disclosed that T was about 22 years of age and was a man of full Aboriginal descent. His parents lived in the Indulkana community in the far north of the state. The effect of the expert opinions provided to the Judge was that T was suffering from moderate to severe intellectual disability and cognitive deficits. The cognitive deficits were permanent. T’s cognitive impairment was consistent with irreversible brain damage attributable to long term petrol sniffing. His mental impairment was likely to be longstanding and also was irreversible. T had little understanding of his situation, and of the possible consequences of his actions in throwing the stones at motor vehicles.
The Judge decided, with the concurrence of counsel for the prosecution and for the defence, to order an investigation of T’s mental fitness to stand trial: see s 269J of the Act. He made these orders before he had received the reports upon which the above summary draws. The reports that the Judge received revealed that T was unfit to stand trial. Accordingly, and again with the agreement of counsel, the Judge exercised the power conferred by s 269M.A(5) to dispense with an investigation into T’s fitness to stand trial, or to terminate that investigation, and proceeded to record a finding that T was mentally unfit to stand trial.
That finding brought into play s 269M.B. That provides as follows:
“(1) If the court records a finding that the defendant is mentally unfit to stand trial, the court must hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether a finding should be recorded under this section that the objective elements of the offence are established.
(2)... If the court is satisfied that -
(a)the objective elements of the offence are established beyond reasonable doubt; and
(b).... there is, on the evidence before the court, no defence to the charge that could be established on the assumption that the defendant’s mental faculties were not impaired at the time of the alleged offence,
the court must record a finding that the objective elements of the offence are established and declare the defendant to be liable to supervision under this Part; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.”
It is to be noted that that provision requires the court to be satisfied that the objective elements of the offence are established, and that no defence could be established. The provisions of s 269B are relevant to this procedure. Subsection (1) of that provision provides as follows:
“An investigation under this Part by the Supreme Court or the District Court into -
(a).... a defendant’s mental competence to commit an offence or a defendant’s mental fitness to stand trial; or
(b)whether elements of the offence have been established,
is to be conducted before a jury unless the defendant has elected to have the matter dealt with by a judge sitting alone.”
The Judge proceeded to make a finding that the objective elements of each offence were established beyond reasonable doubt, and that no defence to the charge could be established. His reasons for that finding record that both counsel submitted that that finding should be made. The transcript also records a discussion with counsel about the manner in which the court was to proceed. The discussion focussed upon the proof of the relevant facts. Both counsel agreed to the tender of the depositions. It is clear from the transcript that both counsel wished the Judge to deal with the matter expeditiously, and that both counsel wished the Judge to deal with the matter sitting without a jury.
However, the fact is that there is no formal record of an election having been made under s 269B(1), nor is there an election pursuant to s 7 of the Juries Act 1927.
As I have said, the Judge proceeded to find that the objective elements were established and that no defence to the charges could be established. Accordingly, as required by s 269M.B(2) the Judge declared T to be liable to supervision under Part 8A.
The Judge then ordered the provision of further expert reports as required by s 269Q. The Judge was also provided with material relating to the victims of the offence under s 269R.
The Judge then had to consider the exercise of the powers conferred by s 269O. That provision provides as follows:
“(1).. The court by which a defendant is declared to be liable to supervision under this Part may -
(a)release the defendant unconditionally; or
(b).... make an order (a ‘supervision order’) -
(i).... committing the defendant to detention under this Part; or
(ii) releasing the defendant on license on conditions decided by the court and specified in the licence.
(2)... If a court makes a supervision order, the court must fix a term (a ‘limiting term’) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court’s opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established1.
(3)At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.
1....... The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant’s mental impairment.”
I mention that pursuant to s 5(2) of the Act, the note to the section is to be treated as forming part of the text of the Act unless the note clearly has no substantive effect. My view is that the note is intended to have a substantive effect.
The Judge made a number of findings. He was satisfied that T had suffered irreversible brain damage as a result of petrol sniffing. There was no evidence of a formal psychiatric disorder. The brain damage was significant and irreversible. There was a serious doubt about T’s ability to function independently in the community. He was at risk of further offending due to his impulsive nature, arising from the brain damage.
On the material before him the Judge did not consider it possible to permit T to return to Indulkana. The material before the Judge indicated that petrol sniffing was a significant problem in the community. There were few if any resources available to the police and to other community groups to deal with the problem at Indulkana. The Judge took the view that if T were to return to the community it was likely that he would continue to engage in petrol sniffing and would cause himself further harm.
However, to complicate things, the Judge also found that T was not suitable for long term placement in detention. There were no programmes of treatment available that were suitable for T. He would not receive satisfactory treatment during detention.
To make things worse, the Judge was satisfied that T was a risk to the community as a result of anti-social behaviour attributable to petrol sniffing and alcohol abuse. The situation is a tragic one, and I record here the Judge’s conclusions on the point:
“Nor can I permit continuing damage to the community by the antisocial behaviour that is induced by petrol-sniffing and alcohol abuse. Not only are there no resources being devoted to the overcoming of the problem, but there is simply no institutional resources available to deal with the difficulties that this defendant now obviously faces. He does not suffer a psychiatric disorder, so mental health areas offer no assistance. He suffers from irreversible brain damage. Neither James Nash House nor other custodial institutions can offer any form of appropriate long term care. There is nowhere suitable for him to go.
In short, it appears our community is neither treating the problem, nor the destructive results of petrol sniffing in remote aboriginal communities. We are just allowing a significant and potentially valuable human resource in the community, through lack of interest, lack of concern, lack of resources, systematically to destroy itself, while at the same time casting on the scrap heap of society, with no resources whatever to care for them, people who become permanently debilitated by the process.”
The Judge was satisfied that he could not release T unconditionally. Nor did he consider, on the information available to him, that it was appropriate to release T on licence to return to the community at Indulkana. The Judge did not have available to him reports under s 269T which he considered were required before he could release T on licence, but he said that in any event he did not think that a release on licence would be appropriate. The recent death of T’s father eliminated the prospect of appropriate supervision by him.
The Judge therefore concluded that he was constrained to make a supervision order. He regretted having to do so. He knew that this would not secure for T appropriate treatment, and that at the expiry of the limiting term T would be released unconditionally with no community support service to assist him.
The Judge then turned to the fixing of a limiting term. The essence of the Judge’s reasoning appears from the following passages:
“It seems fairly clear that these were not planned or designed attacks well in advance, but they were none the less for that, an offence, had they been committed by a person capable of committing the offence. No-one was seriously hurt, fortunately, but there was great potential for death or serious bodily injury. That was obvious from not only the possibility of direct hit by the rocks on a person driving the vehicle or a passenger in the vehicle, but the risk of the driver losing control, particularly of a heavy vehicle, and causing great risk to his own life and the well-being of other road users, quite apart from any injuries suffered from broken glass and rocks entering the vehicle.
The information suggests that there was great anxiety inflicted upon the drivers and passengers of the vehicles concerned. They were serious offences, but they did not involve, as many offences of this nature do, the use of firearms. I would need to take into account considerations of both personal and general deterrence if I were fixing a penalty. I take into account that there were four separate offences, but that these were part of a course of conduct for which a single sentence would be appropriate under s18A of the Criminal Law (Sentencing) Act.”
The Judge then fixed a limiting term of three years and six months from 6 July 1998.

The election under s 269B

Mr M Gray QC, counsel for T, submits that no election was made under s 269B to have the Judge sitting alone deal with T’s fitness to stand trial, or with the issues that arise under s 269M.B. On that basis he submits that the proceedings have miscarried in a fundamental respect.
The making of an election under s 269B is an important matter. It will require careful consideration by counsel in such a case. The responsibility cast upon counsel by 269W is a significant one. It is desirable that an election be made in terms, and recorded by the Judge. That was not done in the present case. However, from the transcript it is clear that counsel for T intended to make that election, and in fact did so. An affidavit by counsel at trial, filed after the conclusion of submissions on appeal, confirms that counsel intended to elect for trial by judge alone. An election does not require any particular form. While it is desirable, as I have already said, that it be made in terms and be recorded by the Judge, that is not essential.
In the course of his submissions Mr Gray appeared to submit that the making of an election was controlled by s 7 of the Juries Act. It suffices to say that I am satisfied that that section has no application to an election under s 269(B). A reading of the provisions of s 7 is sufficient to indicate that the process of election would not work at all if it were controlled by s 7.

The finding that there was no defence

Mr Gray submitted that the finding by the Judge, under s 269M.B(2)(b), that no defence to the charges could be established, was erroneous.
His submission was that for the purposes of that provision a defence in T’s case included the absence of knowledge that his act was likely to endanger life and the absence of an intent to endanger life, or the absence of reckless indifference as to whether life was endangered. In short, his submission was that the court could not be satisfied that no defence to the charge could be established unless the court was satisfied that T knew that his act was likely to endanger life, and intended to endanger life or was recklessly indifferent as to whether life was endangered. His submission was that, on the facts, the court could not have been so satisfied.
I reject that submission. In my opinion the provision cannot be read as requiring proof of the mental element of the offence in question. To so read the provision would be to require the court, in effect, to make a finding like a finding of guilt. If one thing is clear about the provision, it is that it is not intended to require proof of intention or other mental elements. As well, requiring the court to make a finding about intent, on the assumption that T’s mental faculties were not impaired, would be to require the court to embark upon an almost impossible, and seemingly pointless enquiry. It is difficult to see how the court could approach the matter. It is also significant that s 269A(1) contains a definition of “subjective element”. A subjective element of an offence means
“...voluntariness, intention, knowledge or some other mental state that is an element of the offence.”
The same provision has a definition of “objective element”. That means
“...an element of an offence that is not a subjective element.”
The fact that s 269M.B(2) requires the Court to consider whether the objective elements of the offence are established, and says nothing about the Court being satisfied about the subjective elements, is to my mind a very strong suggestion that the submission advanced by Mr Gray should be rejected.
I accept the submission made by Mr Gray that the application of s 269M.B(2)(b) gives rise to some difficulty. The difficulty is inherent in the concept of a defence in the criminal law. The concepts utilised by the criminal law, coupled with the obligation on the prosecution to prove guilt beyond reasonable doubt, combine to make it difficult to speak with any precision of defences in the criminal law. Nevertheless, that is often done. As Mr Gray pointed out, there is no simple answer to the issues raised by this provision. Even some of the so-called defences such as provocation and self defence raise mental elements. It is no answer to say that the provision must refer to defences like these defences, on the basis that they involve no consideration of mental elements, and that it is the absence of an issue relating to a mental element that identifies the defences to be considered under the provision.
This is not the occasion to sort out all of the problems that arise under this provision. It suffices to say that I am satisfied that the provision does not require the court to be satisfied that the intent necessary to establish guilt of the offence in question must be established before the relevant finding can be made. I have already referred to some of the matters that lead me to that conclusion. I would add to them the fact that the provision refers to a defence, and the fact that it refers to a defence to be established, presumably referring to something to be established by the defendant. Whatever the precise meaning of all this may be, I am satisfied that it does not include proof of intent.

For those reasons I would reject this ground of appeal.

The limiting term

I have already referred to the Judge’s reasoning in relation to the fixing of the limiting term. Mr Gray submitted that the Judge erred in taking account of personal and general deterrence. He relied upon the well-known cases which indicate that in the case of a person of seriously diminished responsibility, the question of general deterrence in particular is to be given less weight: see Mason-Stuart v The Queen (1993) 61 SASR 204. He submitted that in this respect the Judge had erred in principle.
Mr Gray also relied upon some further evidence, put before this Court without objection by the prosecution, relating to the wish of T’s family to have him home, and their willingness to care for him. Some of this material supports the view that T probably suffered from an intellectual impairment from birth, and that that has been worsened by his petrol sniffing. This hypothesis finds some support in the expert reports available to the Judge. The material that emanates from the family, and some other material put before the court on appeal, suggests that it may be possible to devise a suitable treatment or management plan for T within the community in which he ordinarily lives.
In my opinion the Judge did not err in the approach that he took to the fixing of a limiting term. I consider that s 269O makes it clear, by note 1, that in fixing the limiting term the court must not take account of the defendant’s mental impairment. That meant that it was not appropriate to consider the mental impairment from which T was suffering, and accordingly it was not appropriate to sentence him on the basis that he was a person of seriously diminished responsibility. In fixing the limiting term it was appropriate for the Judge to have regard to all matters that would usually be relevant to the fixing of a sentence for the offence, but not to have regard to matters that were based upon or arose out of T’s mental impairment.
It may be that in fixing the limiting term the court does not engage in exactly the same process that it does when imposing a sentence. Note 1 requires the court to fix a limiting term “by reference to the sentence that would have been imposed.” But, in my opinion, one cannot say that the Judge should not have regard to a matter such as general and personal deterrence when fixing a limiting term under this provision. I agree that the result may seem harsh, but the terms of the provision are clear. As well, it is important to bear in mind the flexible regime for treatment that is envisaged under Part 8A. There is no denying the impact that the fixation of a limiting term might have on T. But it is relevant to bear in mind that the limiting term does no more than fix the period during which T may be subjected to restraints under Part 8A.
I therefore reject this criticism of the Judge’s reasoning.
There are two further points that should be made. Section 269S provides as follows:
“In deciding whether to release a defendant under this Division, or the conditions of a licence, the court must apply the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.”
As I understand the provision, it was a provision that the Judge had to consider when deciding, pursuant to s 269O(1), whether to release the defendant unconditionally or whether to release the defendant on licence. However, once the Judge had decided that neither course of action was appropriate, and that T must be committed to detention, s 269S no longer had any part to play.
Section 269T refers to a number of matters to which the Court must have regard “In deciding proceedings under this Division...” The Division there referred to is Division 4 of Part 8A of the Act. Division 4 deals with the disposition of persons declared to be liable to supervision. Included among the matters to which the Court must have regard is
“(a).. The nature of the defendant’s mental impairment.”

Other matters to be considered are the likelihood of the defendant endangering another person if released, the adequacy of resources available for treatment and support of the defendant in the community, and the likelihood of the defendant complying with the conditions of the licence. If this provision applied to the fixing of the limiting term in relation to T, the whole exercise has gone around in a circle, because having been directed by Note 1 to s 269O to disregard the defendant’s mental impairment, the Court is then required by s 269T(1)(a) to have regard to the nature of the defendant’s mental impairment. Bearing in mind the specific provision found in Note 1 to s 269O, I have concluded that s 269T(1)(a) must be treated as inapplicable to the fixing of a limiting term. Parliament must be taken not to have intended to contradict itself. I consider that the resolution of the problem lies in the approach that I have referred to. It does make sense to fix a limiting term without reference to mental impairment, but to consider the mental impairment for all other purposes under Division 4.

It can be seen from this that there are some difficulties with the operation of Division 4 that warrant further legislative consideration.
I turn now to the question of whether the Judge erred fixing the limiting term that he fixed, taking into account further material now before the Court.
T was to be sentenced on the basis that he was a first offender. He is a young man of full Aboriginal descent. The further material put before the court indicates that if released into the community he will have the support of his family. In light of the material before the court, it is probably appropriate to take into account the fact that even if the mental impairment due to petrol-sniffing is ignored, T was a person of limited intellectual capacity. The further material also indicates that T’s family, and the community with which they are associated, are willing to provide support to T if he were permitted to return to the community. There are a number of contingencies involved in this. To some degree what is proposed depends upon the support of particular groups, and the provision of funding, none of which can be guaranteed. To some extent the theme of the material is also that T is not a risk to himself or to the community when he is with his own family, but the material before the Judge indicates that that is an unduly optimistic assessment of the position.
In the end, I am not persuaded, even when the further material is taken into account, that the Judge is shown to have erred. I consider that he was right to take the view that it was not appropriate to release T unconditionally. On the material available so far, it is not really possible to fashion satisfactory conditions for a release on licence. I consider that the Judge rightly concluded that he had no choice but to commit T to detention. The limiting term that the Judge fixed was not excessive, having regard to the seriousness of the offences committed.
I have already referred to the concern that the Judge expressed about the fact that no suitable treatment appears to be available for T either while in detention or if returned to his community. I can only say that I share that concern. The material before the Court makes me think that, if some greater certainty can be produced in relation to the management of T if he were returned to his family, it might be appropriate for the Court to exercise its power under s 269P(1) to vary the supervision order and to order that T be released on licence. But a more definite proposal would have to be put forward than is before the Court at present. I can only suggest that those who act for T should give careful consideration to utilising this procedure, in the hope that the present impasse can be resolved.

Other matters

The appeals in this case are brought pursuant to s 269Y of the Act. Section 269Y(1) provides that an appeal lies against a declaration that a defendant is liable to supervision in the same way as an appeal against a conviction. The finding that no defence to the charge could be established for the purposes of s 269M.B(2)(b) was an essential preliminary to the declaration that T was liable to supervision. So was the decision by the Judge to try the matter without a jury. Accordingly, both of these matters were appropriately raised by way of an appeal against that declaration. Section 269Y(2) provides than an appeal lies against a supervision order in the same way as an appeal against sentence. The fixing of a limiting term is an essential part of a supervision order under s 269O. Accordingly, the appeal against the fixing of the limiting term was appropriately brought in the same way as an appeal against sentence.

Conclusions

For those reasons, the appeal should be dismissed. It appears that there are no facilities for providing appropriate treatment for T while in detention or if released into his community. This is a matter which, if true, calls for urgent attention by the authorities. It is wrong that T should be confined for the balance of the limiting term, simply because no treatment for him can be made available. For reasons that I have indicated, there also appears to be a need to review the relationship between the various provisions of Division 4 of Part 8A. The case is a sad one. I can well understand the bewilderment felt by T’s family, far from Adelaide, about the course of events. It is not surprising that they would have difficulty comprehending what has happened. I can only say that I hope that some means can be found of returning T to his family and community, on the basis of a licence incorporating an appropriate plan of management.
DEBELLE J. I have had the advantage of reading the draft reasons of the Chief Justice. I agree with those reasons. I agree the appeal should be dismissed.
WICKS J. For the reasons given by the Chief Justice, I agree with the order he proposes. I have nothing to add.

[1999] SASC 429

21 October 1999