The Queen v KMD

Case [2015] NTSC 31

R v KMD [2015] NTSC 31

PARTIES:THE QUEEN

v

KMD

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:21319440

DELIVERED:  3 June 2015

JUDGMENT OF:  RILEY CJ

CATCHWORDS:

CRIMINAL LAW – Mental Impairment – Unfit to plead – Found not guilty by reason of mental impairment – Supervision order – Term fixed for supervision order – Equivalent to the period of imprisonment that would have been appropriate if found guilty – Normal sentencing principles applied as per R v Morton (2010) 27 NTLR 114 – s 43Z, s 43ZG Criminal Code

CRIMINAL LAW – Mental Impairment – Unfit to plead – Found not guilty by reason of mental impairment – Supervision order – Custodial or Non-custodial supervision order – Matters to take into account – Likely to endanger other persons because of mental impairment – The need to protect people from danger – Psychiatric risk assessment – History of mental impairment – Lack of treatment – Continuing deluded beliefs – Change in deluded belief not enough – Behaviour since offending – Risk remains high – Custodial supervision order imposed – s 43ZA, s 43ZN Criminal Code

CRIMINAL LAW – Mental Impairment – Unfit to plead – Found not guilty by reason of mental impairment – Supervision order – Custodial supervision order imposed – appropriate place – CEO (Health) certificate – facilities and services available for custody, care and treatment – s 43ZA Criminal Code

R v Morton (2010) 27 NTLR 114, applied.

Criminal Code 1983 (NT), ss 43X, 43ZG, 43ZJ, 43ZA, s 43ZN.

REPRESENTATION:

Counsel:

Plaintiff:P Usher

Defendant:D Grace QC with G McMaster

Chief Executive Officer

Department of Health:                 G Macdonald

Solicitors:

Plaintiff:Office of the Director of Public Prosecutions

Defendant:Ward Keller

Chief Executive Officer

Department of Health:                 Solicitor for the Northern Territory

Judgment category classification:    B

Judgment ID Number:  Ril1506

Number of pages:  25

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

R v KMD [2015] NTSC 31

21319440

BETWEEN:

THE QUEEN

Plaintiff

AND:

KMD

Defendant

CORAM:     RILEY CJ

REASONS FOR JUDGMENT

(Delivered 3 June 2015)

Introduction

  1. KMD was charged with eight offences arising out of events that took place in Virginia, a rural area of Darwin, on 7 May 2013. On 1 May 2014 I declared that KMD was unfit to stand trial and that she was not likely to become fit to stand trial within a 12 month period. I did so pursuant to s 43T and s 43R of the Criminal Code 1983 (NT).

  2. The finding that KMD was unfit to plead was based upon the reports of three independent psychiatrists who each concluded that she suffered from a delusional disorder. The first relevant delusion was that there were threats to her life from a wide range of people. The second, and most significant for present purposes, was that her son was being sexually assaulted and was in danger of further sexual assault by her former husband and other people.…

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AGLC
R v KMD [2015] NTSC 31
Case
[2015] NTSC 31
Decision Date

CaseChat Overview and Summary

The case of The Queen v KMD involved a dispute regarding the appropriate term and supervision order for the defendant, KMD, who was found not guilty by reason of mental impairment. The matter was heard by the Supreme Court of the Northern Territory. The legal issues centred around determining the appropriate custodial or non-custodial supervision order for KMD, considering her history of mental impairment, lack of treatment, and the risk she posed to others. The court had to consider whether a custodial supervision order was necessary to protect the public, and if so, whether the appropriate place for such supervision was available.

In delivering its judgment, the court noted KMD’s history of mental impairment and her lack of treatment, which contributed to her delusions and actions. The court assessed the risk KMD posed to the community, finding it high due to her continuing deluded beliefs and past behavior. The change in her deluded beliefs was not deemed sufficient to mitigate the risk. The court also considered the victim impact statement from Mr Iversen, who suffered significant physical and psychological harm due to KMD's actions. The court concluded that a custodial supervision order was necessary to protect the public and ordered that KMD be placed in a facility that could provide appropriate custody, care, and treatment.

The court found that the appropriate term for KMD should be backdated to the date of the offence, 7 May 2013. The final orders imposed a custodial supervision order on KMD, to be served in an appropriate place as determined by the CEO of Health, ensuring that KMD would receive necessary treatment and supervision to manage her mental impairment and reduce the risk to the community.

Orders

Orders of the court

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Background

Background to the litigation

The final victim impact statement I have is from Mr Iversen. He provided a vivid description of the dramatic and terrifying events of the day. At one point he thought he had been shot. In fact he received facial lacerations from the glass that had shattered. When the chase was over and he was being attended to by paramedics he felt chest pain and it was later confirmed he suffered a heart attack. He believed he was going to die. His physical recovery took place over seven months. He was very concerned that supporters of KMD might wish to harm him and he suffered panic attacks. He could not concentrate on anything. He was diagnosed with post-traumatic stress disorder. He has ongoing counselling. He has suffered significant financial loss including lost income, the cost of counselling, medical bills and the like.The background of KMD I have been provided with a substantial amount of information regarding KMD. Most of that is recorded in the detailed psychiatric report of Dr Smith of 18 November 2013. KMD is an articulate and intelligent person. She was described by Dr Smith as being a “driven and obsessive historian”. She is from Bachelor, a town to the south of Darwin, and she grew up partially in a fishing camp and on a station. She has good memories of her childhood. She described being proud of her mixed settler heritage. Her father was a commercial fisherman and later ran Twin Hill station. She and her sister were sent to a private boarding school in Melbourne where she studied from year 8 to year 12. She felt that she did not fit in at school and she was homesick. She finished school with lower marks than she had expected. She had thought about going to university to study anthropology and archaeology but was unable to do so. Eventually she obtained a scholarship to learn to fly helicopters and she trained in Kununurra at the age of 18 and 19 years. She did not complete her helicopter training after falling out with her trainer. She did some work at the Bachelor Institute with her mother and she had other employment. She did eventually obtain her commercial pilot’s licence at the age of 25 years. However she was unable to obtain flying opportunities. Her relationship with RL was an on and off relationship. They were apart for some four years between 2001 and 2005 but got back together again. When they were together RL developed his own grading business and she worked with him. She became pregnant with their son. After his birth they had relationship counselling. Eventually they separated. After the separation she met her current partner, Mr Cash, in 2008 and they continue the relationship. There is one child of that relationship, a young boy, and no concern has been suggested regarding his well-being. KMD does not have any prior convictions of relevance. In particular she does not have a history of violence. Before these incidents she was a law-abiding citizen. Her conduct on 7 May 2013 is explained by her mental impairment. Her actions resulted from her deluded but genuinely held beliefs regarding the welfare of her son. She has not seen her son since that day. She has been in custody throughout the intervening period. The “appropriate term” which I determine for the purposes of s 43ZG of the Criminal Code should be backdated to 7 May 2013 to reflect that fact.[1]The Term – s 43ZG of the Criminal Code

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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