R v WILLIAMS No. Sccrm-97-190 Judgment No. S6440

[1997] SASC 6440

R   v   WILLIAMS

Court of Criminal Appeal:  Matheson, Duggan and Nyland JJ

DUGGAN J

The appellant was presented on an information charging him with murder.

At the commencement of his trial his counsel advised the trial judge that the appellant wished to raise the defence of mental incompetence. In the exercise of the discretion conferred by s269E(2) of the Criminal Law Consolidation Act, 1935 (the Act) the trial judge decided to proceed first with the trial of the objective elements of the offence.   After hearing the evidence adduced by the prosecution the jury found that the objective elements of the offence had been established.

After returning that verdict the jury proceeded to determine the question of the appellant’s mental competence.  After hearing the evidence the jury found that the appellant was mentally incompetent to commit the offence.  The court recorded a finding that he was not guilty of the offence and declared that he was liable to supervision under Part 8 of the Act.

The learned judge then turned his attention to s269O of the Act which 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 licence 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 established. 1

(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.”

The trial judge rejected a submission by Mr Braithwaite, counsel for the appellant, that the “period of imprisonment” referred to in s269O(2) was the non-parole period which would have been imposed if the appellant had been found guilty of the offence.  His Honour took the view that the appropriate period was the head sentence, in this case the mandatory sentence of life imprisonment.   Accordingly, in making the supervision order under subsection (2), he fixed a “limiting term” extending over the prisoner’s life.  The appellant argued on appeal that the judge erred in following this course.

The appeal was heard in conjunction with a case stated by Perry J (Question of Law Reserved for the Full Court (No 1 of 1997)) which raised a similar issue.   I repeat in this judgment what I said about the matter in answering the question raised in the case stated.

Mr Millsteed QC, for the Director of Public Prosecutions, submitted that the expression “period of imprisonment” in s269O(2) refers to the head sentence and not to any non-parole period which might have been imposed.  Mr Tilmouth QC, counsel for the accused on the case stated, and Mr Braithwaite submitted that it refers to the non-parole period which would have been appropriate and that the phrase “the aggregate period of imprisonment and supervision” refers to the non-parole period coupled with the period of supervision the person would have been subjected to after release on parole if he had been found guilty and sentenced for the offence.

The phrase “the period of imprisonment” in subsection (2) refers to the sentence of imprisonment which would have been passed by the court if the accused had been convicted.   This cannot be anything other than the head sentence.  The fixing or extending of a non-parole period is included in the definition of “sentence” in the Criminal Law (Sentencing) Act 1988, no doubt for purposes such as the appeal process. However s32 of the Sentencing Act makes a clear distinction between the sentence of imprisonment and the consequential order fixing a non-parole period.  The approach to the task of sentencing “is to impose a sentence appropriate to the offence in all the circumstances and then but only then, to fix a minimum term in the light of the duration of the sentence imposed”.  (R v Governor of Her Majesty’s Gaol at Pentridge; Ex Parte Cusmano [1966] VR 583 at 587. See also Power v The Queen (1974) 131 CLR 623).

Section 269O refers to “the aggregate period of imprisonment and supervision” and Mr Tilmouth and Mr Braithwaite argued that this must refer to the aggregate of the non-parole period and the time which the accused would be likely to serve under supervision on parole after release.  They submitted that this was an argument in favour of construing the word “imprisonment” as being a reference to the non-parole period.  However if this argument were correct, the court would be involved in making an estimate as to the length of time a person was likely to be on parole.   In my view the legislature did not intend that the court should endeavour to estimate the time during which a particular accused might be subject to supervision as a parolee.  This is a matter which, in many cases, can only be properly assessed at the expiration of the non-parole period and, in any event, it is an exercise beyond the common experience of the courts.  In my view the most likely explanation for the inclusion of the words in parentheses in subsection (2) is that the drafter overlooked the fact that a sentence of imprisonment followed by a bond with supervision is no longer a sentencing option in this State.

For these reasons I think the learned trial judge was correct in fixing the limiting period by reference to the head sentence which would have been

mposed if the appellant had been found guilty of the offence.

I would dismiss the appeal.

Matheson J

I would dismiss the appeal for the reasons given by Duggan J.

Nyland J

I agree that the appeal should be dismissed for the reasons expressed by Duggan J.