R v Wyatt
[2017] ACTSC 87
•26 April 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Wyatt |
Citation: | [2017] ACTSC 87 |
Hearing Date: | 4 April 2017 |
DecisionDate: | 26 April 2017 |
Before: | Robinson AJ |
Decision: | Offences referred for restorative justice. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Restorative justice – Arson offences – Property offences – Explanation of restorative justice – Purposes of restorative justice – Reasons for referring offender to restorative justice – Impact of restorative justice on victim – Significant time elapsed between offences and restorative justice referral |
Legislation Cited: | Crimes Act 1900 (ACT) s 309 Crimes (Restorative Justice) Act 2004 (ACT) ss 22, 23, 24, 25 Mental Health Act 2005 (ACT) |
Cases Cited: | R v Forrest [2016] ACTSC 321; 11 ACTLR 311 |
Parties: | The Queen (Crown) Scott Wyatt (Offender) |
Representation: | Counsel Ms K Mackenzie (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Numbers: | SCC 42 of 2017, SCC 43 of 2017 |
ROBINSON AJ:
On Sunday 13 February 2011, the Meche Nightclub on Northbourne Avenue was open and trading. A number of patrons were in attendance. At about 1.30 am, there was a large explosion which occurred in the men’s toilet cubicles inside those premises.
The nightclub was evacuated and police and the fire brigade attended to assist distressed patrons and investigate the explosion, as did the Bomb Response Team. There was significant damage to the property and no doubt trading losses eventuated.
Later that same night, at about 3.45 am, a second explosion occurred at the ICBM Nightclub which was also trading at that time. Those premises adjoin the Meche Nightclub on Northbourne Avenue. Again, there was property damage and trading losses. Police, including the Bomb Response Team, also attended to the patrons and investigated the explosion.
At ICBM, police spoke to Mr Scott Wyatt, who complained of ringing in his ears and feeling dizzy. He was transported to hospital for treatment.
At about 4.00 am, police attended the Calvary Hospital and arrested Mr Wyatt, who later participated in a record of interview. In that interview, he denied any involvement in the Meche and ICBM Nightclub incidents.
Mr Wyatt was released from police custody.
In November 2011, police made further inquiries concerning Mr Wyatt but no charges were laid.
On 13 January 2017, Mr Wyatt attended Gungahlin Police Station where he expressed a desire to speak to police about the Meche Nightclub. He told police that he had recently met the Lord and wanted to confess. He was taken to an interview room where he produced a substance, which he said was “ice”, and a capped syringe.
Mr Wyatt then participated in a record of interview during which he admitted causing the explosions at the Meche and ICBM Nightclubs and stated that his intention was not to harm life but to damage the buildings.
Mr Wyatt was then arrested and charged with offences, paraphrased as follows:
(a)Cause damage to a building on 13 February 2011, namely, Meche Nightclub, by explosive and intend to cause damage contrary to s 404(1) of the Criminal Code 2002 (ACT) (Criminal Code). This offence carries a penalty of 15 years’ imprisonment, 1 500 penalty units or both.
(b)Cause damage to a building on 13 February 2011, namely, ICBM Nightclub, by explosive and intend to cause damage contrary to s 404(1) of the Criminal Code. This offence carries a penalty of 15 years’ imprisonment, 1 500 penalty units or both.
(c)Possess drug of dependence on 13 January 2017, contrary to s 169(1) of the Drugs ofDependence Act 1989 (ACT). This offence carries a penalty of two years’ imprisonment, 50 penalty units or both.
Since his arrest on 13 January 2017, Mr Wyatt has been in custody at the Alexander Maconochie Centre (AMC).
On 19 January 2017, Dr Renate Mundl made a report to the Court under s 309 of the Crimes Act 1900 (ACT). The report was made for the purposes of emergency detention under the Mental Health Act2015 (ACT). That report said in part:
Reasons for Referral
[Mr Wyatt] was referred to our hospital following his self-presentation to the police to confess about a crime he had committed in 2011 because “the spirit of the lord told him to attend so he will be safe etc”.
Presenting Symptoms / Treatment / Outcome
[Mr Wyatt] was admitted to the Mental Health Short Stay unit for the purpose of providing urgently needed mental health treatment under the Mental Health Act for an acute psychotic episode. He also admitted to IV ICE use and his urine drug screening was still positive for amphetamine 2 days later. He also had a fractured [r]ight arm due to a self-inflicted injury (“practicing martial arts after having taken ICE”).
With treatment and enforced abstinence from illegal substances he has improved significantly over the period of a few days. Although he continues to talk about believing in God and God having told him to present to the police in order to be free beside some other subtle low grade psychotic beliefs, no psychotic behaviour has been observed on the ward over the last few days. He is well organised, appropriately responsive to other co-patients, his fluid and food intake is appropriate and he enjoyed watching TV without any non-verbal signs suggestive of psychotic thinking or behaviour. His conversation has become more rational and he has not shown any signs of aggression. He is happy to continue with the current medication and be followed up by the mental health service.
The offender pleaded guilty in the Magistrates Court to the two counts of arson and was committed for sentence to the Supreme Court. That sentencing hearing is currently fixed for 5 May 2017.
The offender is now 31 years old. He has an extensive criminal record. There is obviously reason to believe he has a significant problem with “ice”.
Crimes (Restorative Justice) Act 2004 (ACT).
This matter has been listed before me at the request of the offender for the purpose of seeking an order that the two arson offences above be referred for restorative justice under the Crimes (Restorative Justice) Act2004 (ACT) (Restorative Justice Act).
The Supreme Court is empowered to make such an order only upon satisfaction of a number of criteria under the Act. In R v Forrest [2016] ACTSC 321; 11 ACTLR 311 (Forrest) at [4]–[34], Refshauge J set out a comprehensive analysis of the Act and its objectives, but that was in a context where both parties consented to the referral. I will not reproduce that entire analysis save for referring to aspects involved in the Crown’s submissions below.
I make the following findings on the balance of probabilities with respect to each offence:
(a)The offender is an eligible offender. The offences relate to money or property. The offences are serious. I take the offender to have pleaded guilty to offences carrying punishment in excess of 14 years’ imprisonment.
(b)There is an eligible victim. The owner of the premises is an eligible victim as is any lessee and/or operator of the business. That may be comfortably inferred from the statement of facts.
(c)Each of the offender, and the owner/lessee/operator of the business, have the intellectual capacity to participate in the restorative process.
(d)The offender has had the restorative justice process explained to him, as required by s 25 of the Act.
The Crown did not consent to the order for referral.
Where the offender has pleaded guilty to the offence, but the Crown does not consent to an order for restorative justice, the parties agree that the Court may nevertheless exercise a discretion as to whether to make such an order: see ss 22, 23 and 24 and table 22 item 4 of the Act.
In the Crown’s submission, in the exercise of the discretion conferred by the Act, an order should not be made.
Discretion
It is appropriate to start by noting that there is an obvious interplay between the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) and the Restorative Justice Act.
It will be remembered that by s 7(1) of the Sentencing Act, sentences are imposed upon offenders for the following purposes:
(a)to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;
(b)to prevent crime by deterring the offender and other people from committing the same or similar offences;
(c)to protect the community from the offender;
(d)to promote the rehabilitation of the offender;
(e)to make the offender accountable for his or her actions;
(f)to denounce the conduct of the offender;
(g)to recognise the harm done to the victim of the crime and the community.
Under s 33 of the Sentencing Act, directly relevant considerations include ss 33(1)(w) and 33(1)(y):
33 Sentencing—relevant considerations
(1) In deciding how an offender should be sentenced (if at all) for an offence, a court must consider whichever of the following matters are relevant and known to the court:
...
(w) whether the offender has demonstrated remorse;
...
(y) if the offender has accepted responsibility for the offence to take part in restorative justice under the Crimes (Restorative Justice) Act 2004—that fact;
The genuinely well motivated initiation of, and then participation in, the process of restorative justice, may well provide the opportunity and the occasion for an offender to demonstrate to the Court acceptance of responsibility and remorse for the offending. This may be in high contrast to submissions made from the bar table by counsel at a sentencing hearing or the uncorroborated remarks made by an offender to third parties whose duty it is to report to the Court.
The Crown would accept the content of the last paragraph formulated by me, but calls attention to the fact that, that content sees the process of restorative justice from the point of view of the offender and not the victim. The Crown says that the Restorative Justice Act is not even-handed overall. Rather, that legislation looks more at the content of the process from the point of view of the victim. The Crown bases its submission on s 6 of the Restorative Justice Act which sets out the objects of the Act. These are:
(a)to enhance the rights of victims of offences by providing restorative justice as a way of empowering victims to make decisions about how to repair the harm done by offences;
(b)to set up a system of restorative justice that brings together victims, offenders and their personal supporters in a carefully managed, safe environment;
(c)to ensure that the interests of victims of offences are given high priority in the administration of restorative justice under this Act;
(d)to enable access to restorative justice at every stage of the criminal justice process without substituting for the criminal justice system or changing the normal process of criminal justice;
(e)to enable agencies that have a role in the criminal justice system to refer offences for restorative justice.
On the other hand, counsel for the offender draws attention to the Explanatory Statement which accompanied the original Bill in 2004, and which was drawn upon by Refshauge J in Forrest at [6]. In particular, counsel emphasises the third paragraph of that extract:
The restorative justice scheme also aims to have a constructive impact upon the offender. The Bill would require offenders to take responsibility and to engage constructively to make amends for their wrongdoing. It provides offenders with an opportunity to re-engage with the community through a redemptive action with the victim, public administration and people closely associated with the victim and the offender.
Evidence
It is convenient at this point to take account of the evidence given on the application by Ms Kelly Lokan. She is employed as an administrative and evaluation support officer and is also a court liaison representative for the Restorative Justice Unit. Ms Lokan herself has undergone training through the Victorian Association of Restorative Justice
Ms Lokan was called by counsel for the offender to give practical content to the process usually followed by “convenors”. She gave evidence that a careful initial assessment of the offender as suitable is a condition necessary to implement the process. She also gave evidence of what I would describe as a ‘softly softly’ incremental approach to victims of crime to see whether they were interested in participation in the process. If there was interest in the approach (and this may take time as well as explanations from the convenor) then a conference might take place . The witness continued:
Conferences can take place in two different ways, the first way is through a face to face conference which would involve the responsible person and the people who were affected by the matter going through a process of a structured discussion about what happened, who had been impacted by it and also whether or not something could be done to help make amends or to fix the harms that had occurred. The other type of conference, which is not commonly known about, is something called an indirect process and indirect processes happen for a wide number of reasons but that essentially occurs where the communication is not in the same room. It might be [by] … written correspondence.
Ms Lokan went on to deal with the benefits flowing to both parties from a conference. This evidence was, at least at an abstract level, uncontroversial.
In cross-examination though, Ms Lokan was taken to the facts of this particular case. The thrust of that cross-examination was along the lines that the offender is currently in AMC. Ms Lokan explained that the system is equipped to deal with this situation, although some victims would not want to travel to a gaol for a conference. An indirect process might be put in place. The cross-examination focussed on the actual crimes and the victims and the lengthy period which had expired since the crime. A sudden and violent event had occurred and time had passed. There would inevitably be a risk that approaching the victims at this time would run the risk of triggering distressing memories of that event, memories which were now distant. The questions were answered by Ms Lokan by conceding that those risks are present but that the training and experience of the skilled convenors and their ‘softly softly’ approach minimised those risks, and that there were occasions when victims received comfort from the process even many years after a distressing event. The Crown drew the attention of the witness to many other avenues open to achieve a similar result for victims.
Crown’s Submissions
In argument, the Crown put the following submissions. First, the discretion has to be exercised in accordance with the objects of the Restorative Justice Act. The objects of the Restorative Justice Act are more predominantly focussed on justice for victims than they are on the benefits that may be derived by the offender from the offender’s participating in the process.
Next, there are many other ways to measure and corroborate taking responsibility for one's offending and the consequences of that offending, and demonstrating remorse as a result. That would include the simple giving of evidence in the witness box and any corroboration that may be involved such as a sincere apology written to the victim. The victim may or may not wish to attend court in response to that. The victim also may or may not wish to furnish a victim impact statement to the court.
Next, the risk in this case of the victim reliving the event is a very lively one. The approach of the convener, even through an inch by inch approach, handled in a professional way, guided by previous learning and training on the subject, could not eliminate that risk.
Next, the risk present in this case is substantial because the incident itself was sudden and violent, compared for example, with the stealing of a car or even a burglary where no-one was at home.
By way of a further complication, in this case, the offender is in custody awaiting sentence, which means that any facilitating of the conference directly would be difficult, although it could be done in an indirect manner as explained by the witness.
Further, if there were victims who wished to take part in a restorative justice process even after the sentencing, that could still be done.
It is said by the Crown that, taking all these matters into account, in this case, the discretion should not be exercised in favour of a referral at least at this stage.
Consideration
It can be seen that, at least in this case, the Crown’s submissions do not canvass the benefits to be derived by the offender from his or her participation with restorative justice and tend to apply a subjective cost/benefit analysis to the perceived benefits to the victim and to the community.
This is not the occasion to embark upon a treatise on restorative justice, nor a consideration of its impact upon re-offending or victim satisfaction. However, its underpinnings are usually explained by the fact that crime causes harm to people, to relationships and to the involved community, and that the traditional notion that crime is committed against the state is not given prominence.
Restorative justice is concerned with the attempt to repair the harm to the victim, relationships and the community done by the offending. There are many different models and regimes that seek to achieve that result. Those models and regimes necessarily have to interact with the parallel sentencing regime applicable in any given jurisdiction.
Here, we are concerned with the Restorative Justice Act and the Sentencing Act. The Restorative Justice Act has been in place in the ACT since 31 January 2005. Its coverage has now expanded to adults. The features of the current regime are set out in the Forrest decision above. For the purposes of this case, the following matters should be emphasised. First, the process requires the participation of both the victim and the offender. Second, the process is entirely voluntary for both offenders and victims and those participants can withdraw from that process at any time. Third, in the case of a serious offence, the process can commence only after criminal proceedings have been initiated and the offender has either pleaded guilty or has been found guilty. Fourth, the regime is in no way focussed upon the offender achieving a benefit in the sentencing process at the expense of the victim and the community. It is not a zero sum game. Fifth, the legislature has put in safeguards which it believes are appropriate to manage the risk of further harm to the victims.
With these matters in mind, there is little downside in a referral of the offences to restorative justice provided that the necessary pre-conditions are met. As recorded above, those pre-conditions have been met in this case. Disingenuous applications for a referral need to be weeded out at the outset, but whether the application will progress further through the actual process after referral is dependent on different forces.
Order
I order that the two offences of arson above be referred for restorative justice under the Restorative Justice Act.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson. Associate: Date: |
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