R v Walker (No 2)

[2021] ACTSC 46

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Walker (No 2)
Citation:	[2021] ACTSC 46
Hearing Date:	25 March 2021
Decision Date:	26 March 2021
Before:	Mossop J
Decision:	See [18]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – indicative sentence – intentionally inflicting grievous bodily harm – not guilty by reason
of mental impairment – where a sentence of imprisonment would have been imposed if the accused had not been acquitted – Verdins principles – reduction of moral culpability by reason of chronic schizophrenia – deprived background – nominated term
of six years
Legislation Cited:	Criminal Code 2002 (ACT), s 28 Crimes Act 1900 (ACT), ss 302, 324 Crimes (Sentencing) Act 2005 (ACT), s 7 Mental Health Act 2015 (ACT), s 180
Cases Cited:	Jovanovic v The Queen [2015] ACTCA 29 R v Islam (Unreported, ACT Supreme Court, Mathews AJ, 25 May 2011). R v Kelly [2018] ACTSC 332; 87 MVR 127 R v Ophel [2019] ACTSC 325 R v Verdins [2007] VSCA 102; 16 VR 269 R v Walker [2021] ACTSC 42
Parties:	The Queen (Crown) Russell Walker (Detained person)
Representation:	Counsel
R Christensen (Crown) J White SC (Detained person)
Solicitors
ACT Director of Public Prosecutions (Crown)
ACT Legal Aid (Detained person)
File Number:	SCC 41 of 2020
MOSSOP J:
Introduction

1.    Yesterday I ordered that the special verdict that the accused is not guilty because of mental impairment be entered in relation to the charge against Russell Walker of intentionally inflicting grievous bodily harm: see R v Walker [2021] ACTSC 42 (Walker). That is a verdict contemplated by s 28(7) of the Criminal Code 2002 (ACT). Where such a verdict is returned or entered, the Supreme Court must do one of the two things contemplated by s 324(2) of the Crimes Act 1900 (ACT). In this case, it was uncontroversial that I should order that Mr Walker be detained in custody for immediate review by the ACAT under s 180 of the Mental Health Act 2015 (ACT). Having regard to the nature of the offending

and the evidence as to Mr Walker’s chronic schizophrenia, I was positively satisfied that

this was an appropriate order to make, and I did make that order. I will refer in the balance

of these reasons to Mr Walker as “the detained person”.

2. Following the making of that order, s 302 of the Crimes Act required me to indicate whether, if the accused had not been acquitted, I would have imposed a sentence of imprisonment. Yesterday I indicated for the purposes of that section that I would have imposed a sentence of imprisonment. That had the effect that, under s 302(2), I was

obliged to “nominate a term … in respect of that offence, that is the best estimate of the

sentence [I] would have considered appropriate if the accused were a person who had

been found guilty of that offence”.

1. The estimation of such a sentence is “a very difficult and artificial task”: R v Kelly [2018]

ACTSC 332; 87 MVR 127 at [64]. One fundamental matter giving rise to the difficulty is that a determination of the degree of moral culpability is critical to the determination of an appropriate sentence, yet a finding in accordance with s 28 of the Criminal Code means that the detained person lacks any significant degree of moral culpability for the commission of the relevant offence.

4.    The approach that I take to the task is that identified by Burns J in R v Ophel [2019] ACTSC 325 at [6]. That involves proceeding as if the verdict was a verdict of not guilty simpliciter and hence, giving full weight to the mental impairment suffered by the detained person at the time of the offending.

5. This has the effect that the emphasis given to the various purposes of sentencing in s 7 of the Crimes (Sentencing) Act 2005 (ACT) will be significantly different from the emphasis

that would be given in a case where an offender’s mental health condition did not

significantly reduce the offender’s moral culpability.

6.   The starting point must be consideration of the maximum penalty which is a critical sentencing parameter. The maximum penalty is a sentence of imprisonment of 20 years.

7.   Regard must be had to the purposes of sentencing. The dominant purposes are the protection of the community, promotion of rehabilitation, recognition of harm done to the victim and the community. Specific deterrence also has some relevance.

8.    Regard must be had to the objective features of the offending. The facts in relation to the offending are set out in the reasons that I gave yesterday: see Walker at [11]-[30]. The range of objective seriousness of the offence of intentionally inflicting grievous bodily harm may vary widely, largely because of the range of injuries that constitute grievous bodily harm. The present case involves the infliction of grievous bodily harm at the upper end of the spectrum of such harm. The evidence at trial indicated that the victim suffered a 15 cm wound to his chest and that without prompt and effective medical treatment he would have died. It is not of the gravity of the harm inflicted in R v Islam involving multiple stab wounds resulting in tetraplegia: R v Islam (Unreported, ACT Supreme Court, Mathews AJ, 25 May 2011) (Islam). However, the attack was with a large knife directed to the chest of the victim

and it is only fortuitous that the attack did not cause the victim’s death. The attack was

objectively unprovoked.

9.    I have taken into account the matters in the victim impact statement which was tendered and read to the court without objection. The long-term psychological consequences of the offending are of the type that would be expected from such a grievous, life-threatening incident.

10. The objective gravity will also usually be assessed by reference to the offender’s moral

culpability for the offending. Having regard to my finding that the offender did not know
that his conduct was wrong, his moral culpability must be considered to be low.

11. So far as the subjective circumstances of the offender are concerned:

(a)	The detained person is a 30-year-old man. He has been in an on-again, off-again de facto relationship for eight or nine years. He has a six-year-old son from that relationship. He has an 11-year-old daughter from a prior relationship with whom he has no contact. He has two older sisters and one older brother. His parents are divorced. His mother lives in Canberra, his father in Sydney.
(b)	He witnessed domestic violence as a child on a regular basis. He and his siblings were raised by his mother who was an alcoholic. He grew up in poverty in Western Sydney. He attended school until Year 11. He worked for Woolworths after leaving school and then between the ages of 22 and 24 years he worked as a scaffolder. He was unemployed at the time of his arrest.
(c)	His mental health problems commenced in his late teens. When he was 18 or 19 he was first admitted as a mental health inpatient, being paranoid and reporting hearing voices. He has been medicated with antipsychotic drugs. He was treated by the Penrith Community Mental Health Team up until 2015. His significant history of paranoia, delusions and drug use up until the date of the offending is set out in the reports of Dr Furst, dated 8 June 2020 and Dr Allnut, dated the 8 December 2020.
(d)	He has a history of using cannabis since age 11, alcohol since 13 or 14 and amphetamines since the age of 15.
(e)	He was taken into custody on the day of the offending, 28 June 2019, and has been in custody since that time. Whilst in detention he has been compliant with medical treatment which has substantially reduced the effects of his underlying condition of schizophrenia, although some symptoms remain.
(f)	He has a significant criminal history in New South Wales, including a sentence

of 30 months’ imprisonment from 2010 for wounding a person with intent to cause grievous bodily harm, a sentence of 12 months’ imprisonment for assault

occasioning actual bodily harm committed in 2015, and a sentence of three years imprisonment for reckless wounding committed in 2015.
(g)	The sentence for wounding with intent to cause grievous bodily harm in 2010 arose out of an attack by a group of other people upon a person who was drinking at a hotel in Rooty Hill.
(h)	The sentence for reckless wounding in 2015 involved the detained person exiting a train, waving a knife around acting erratically and thrusting a knife in

the face of a stranger causing a wound underneath the person’s left eye and

two relatively minor cuts to his throat.

(i)       He has in the past demonstrated a lack of insight into his mental health condition. The letter of apology written by the detained person and tendered yesterday does demonstrate some insight into his condition. However, having regard to his history, it cannot be said with confidence that he will retain insight into his condition in the future and it cannot be said that such insight will lead him to comply with a suitable medical regime for the control of his schizophrenia when outside a custodial environment.

Consideration

12. This is clearly a case in which it is necessary to have regard to the six different ways

identified in R v Verdins [2007] VSCA 102; 16 VR 269 in which the detained person’s mental health may affect the appropriate sentence. The detained person’s mental health

condition reduces his moral culpability for the offending conduct. For the purposes of the

present exercise, the detained person’s mental health condition does not alter the kind of

sentence that should be imposed because the only appropriate sentence is a custodial one involving full-time detention. General deterrence is eliminated as a sentencing consideration because of the severity of the symptoms and the lack of moral culpability for the offending. His ongoing chronic schizophrenia means that a sentence of full-time detention will weigh more heavily upon him. Even in the absence of specific evidence to that effect, I accept that for a person with chronic schizophrenia of the duration and severity demonstrated by the expert evidence, even where that is largely controlled by medication, the circumstances of detention will be a greater burden than for a person without that condition. I am not satisfied that imprisonment would have a significant adverse effect upon his mental health. On the contrary, the controlled environment within the prison will ensure that he regularly receives appropriate medication and this will result in an improvement and stabilisation of his mental health condition.

13. It is also necessary to take into account his deprived background and his early introduction to illicit drugs which will not have made it any easier for him to address his mental health conditions or make progress within society.

14. Because of his history of offending and poor control of his symptoms of schizophrenia, protection of the community must be a very significant sentencing consideration, even in circumstances where moral culpability for the offending is lacking. His prospects of rehabilitation appear to be largely linked with his capacity to control his symptoms of schizophrenia and the potential for such long-term rehabilitation must be considered to be guarded at best. That is because of his history of drug use and the difficulty of maintaining an appropriate medication regime outside a detention environment

15. I was referred, in particular, to two sentencing decisions in relation to the offence of intentionally inflicting grievous bodily harm. They were Jovanovic v The Queen [2015] ACTCA 29 (a sentence of 10 years and nine months where the maximum penalty was 20 years) and Islam (where the sentence was nine years at a time when the maximum penalty was 15 years). Neither of these cases involved significant reductions in moral culpability

due to the offender’s mental health. While they do not of themselves establish a clear

pattern of sentencing, I have taken them into account.

16. Having identified and had regard to these matters, the history of previous similar offending and the poor history of control of his psychiatric condition, his history of lacking insight into his psychiatric condition and the gravity of the current offending all indicate that a significant sentence of full-time detention would be appropriate.

17. Had the detained person been found guilty, my best estimate of the sentence that I would

have imposed is a sentence of six years’ imprisonment. That sentence would have been

backdated to the date upon which the offender went into custody, namely 28 June 2019. The nominated term will be identified as starting on that day pursuant to s 302(4)(a) of the Crimes Act.

18. The orders of the Court are:

1. The nominated term under s 302(2) of the Crimes Act 1900 (ACT) is six years. The nominated term commences on 28 June 2019.

2.       The registrar is directed to notify the ACAT of the orders made on 25 and 26 March 2021.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 7 April 2021