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”.

The estimation of such a sentence is “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 Walker (No 2)

Details

AGLC: R v Walker (No 2) [2021] ACTSC 46
Case: [2021] ACTSC 46
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory considered the case of R v Walker (No 2), where Russell Walker was acquitted of intentionally inflicting grievous bodily harm due to mental impairment. The court was tasked with determining the appropriate sentence that would have been imposed had the accused been found guilty. Given the nature of the offence and Walker's chronic schizophrenia, the court was required to navigate the complexities of sentencing in light of his significantly reduced moral culpability. The presiding judge, Mossop J, approached the task by considering the Verdins principles, which require a nuanced consideration of the purposes of sentencing, the objective seriousness of the offence, and the subjective circumstances of the offender.

The court detailed the extensive background of Walker, including his deprived upbringing, chronic mental health issues, and history of criminal behaviour. Walker's mental health condition, which includes schizophrenia, significantly diminishes his moral culpability for the offence. The court highlighted that Walker's chronic schizophrenia means that a custodial sentence would weigh more heavily on him, but also noted that the controlled prison environment could potentially improve his mental health. The court also emphasised the importance of protecting the community and the potential for rehabilitation, despite the challenges posed by Walker's condition. After considering the objective seriousness of the offence and relevant precedents, the court concluded that a sentence of six years imprisonment, backdated to the date of Walker's custody, was the appropriate nominated term.

In summary, the court ordered that the nominated term under s 302(2) of the Crimes Act 1900 (ACT) be six years, starting from 28 June 2019, and directed the registrar to notify the ACAT of these orders. This decision reflects the court's careful balancing of the various sentencing considerations in light of Walker's unique circumstances.

Orders