The State of Western Australia v Chokolich
[2024] WASC 346
•20 SEPTEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CHOKOLICH [2024] WASC 346
CORAM: QUINLAN CJ
HEARD: 19 SEPTEMBER 2024
DELIVERED : 19 SEPTEMBER 2024
PUBLISHED : 20 SEPTEMBER 2024
FILE NO: INS 298 of 2017
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
STEVEN JOHN CHOKOLICH
Respondent
Catchwords:
Criminal law – Accused unfit to stand trial for murder subject to custody order – Application to set limiting term of custody order – Custody order made under repealed legislation – Transitional provisions – Procedure to be followed – Effect of mandatory sentencing provisions
Legislation:
Criminal Code, s 279
Criminal Law (Mental Impairment) Act 2023 (WA), s 7, s 8, s 38, s 50, s 51, s 261, s 262, s 263, s 264, s 266
Result:
Limiting term set as the duration of respondent's life
Category: A
Representation:
Counsel:
| Applicant | : | A J Finn with R F Owen SC |
| Respondent | : | K J Farley SC |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | Legal Aid WA |
Cases referred to in decision:
Gore v The State of Western Australia [2017] WASCA 163
R v Behari [2011] SASC 111
The State of Western Australia v Chokolich [2018] WASC 220
Table of Contents
Introduction and overview
Some preliminary procedural issues
Mr Chokolich's attendance at today's hearing
Mr Chokolich's legal representation
Statutory context
General overview of the CLMI Act
Special proceedings
Limiting terms
Objects, principles and paramount consideration of the CLMI Act
Transitional provisions
Procedure on an application under s 261 of the CLMI Act
The requirements of s 50 of the CLMI Act
Mental impairment not to be taken into account in setting limiting term
The proper construction of s 50 of the CLMI Act in cases of murder
The relevance of mandatory sentences to s 50 of the CLMI Act
Does s 50 require the Court to determine a minimum non-parole period?
Circumstances of the charged offence
Mr Chokolich's personal circumstances
Victim submission
Best estimate of the sentence that would have been imposed
Conclusion and order
QUINLAN CJ:
(This judgment was delivered extemporaneously and has been edited to correct grammar and infelicities of language and to include full references to relevant evidence and authorities.)
Introduction and overview
Steven John Chokolich was charged on indictment that on 4 October 2016 he murdered his mother, Barbara Anne Chokolich, contrary to s 279 of the Criminal Code.
Mr Chokolich has long suffered from severe, treatment‑resistant schizophrenia. He was first diagnosed when he was 17 years old. Mr Chokolich is now 69 years old. His many decades of mental illness, and their consequences for his life and the life of others, have been nothing short of tragic.
On 20 July 2018, Hall J found that, due to Mr Chokolich's serious mental illness, he was not fit to stand trial. His Honour made a custody order with respect to Mr Chokolich pursuant to s 19(4) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (repealed Act).[1]
[1] The State of Western Australia v Chokolich [2018] WASC 220.
A custody order under the repealed Act operated as a form of 'Governor's pleasure' detention.[2] That is, a custody order was a form of indefinite detention that was discharged only if, and when, the mentally impaired accused was released by the Governor under a release order (either unconditionally, or when the conditions under a release order ceased to apply).[3]
[2] Repealed Act, s 24.
[3] Repealed Act, s 35, s 38.
The repealed Act was repealed by the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act). The CLMI Act commenced operation on 1 September 2024.
In general terms, the CLMI Act removes the 'Governor's pleasure' model of indefinite detention for persons made subject to custody orders following a finding of unfitness or an acquittal on account of their mental impairment. It does this by requiring a court that makes a custody order to set a limiting term for the order, being the best estimate of the term of imprisonment or detention that the court would have imposed if the court were sentencing the person for the offence on a plea of guilty and did not take into account any mental impairment of the person.[4] Subject to the jurisdiction of this Court to make an extended custody order, a custody order ceases to have effect when its limiting term expires.[5] A custody order may also be cancelled prior to the expiration of the limiting term by order of the court that made the custody order[6] or by an order of the Mental Impairment Review Tribunal (Tribunal).[7]
[4] CLMI Act, s 50.
[5] CLMI Act, s 51(a).
[6] CLMI Act, s 51(b), s 74.
[7] CLMI Act, s 51(c), s 73(1)(d)(iii).
The CLMI Act includes transitional provisions for setting limiting terms for existing custody orders (made under the repealed Act).[8] Section 261 of the CLMI Act provides that, subject to certain deeming provisions,[9] the Director of Public Prosecutions (Director) must apply to the court that made an existing custody order for the court to set a limiting term for the order.
[8] CLMI Act, pt 14, div 2, sub-div 5.
[9] CLMI Act, s 261(4), s 262.
The application before me is such an application. It is the first such application to be determined under the CLMI Act. I am required to set a limiting term for Mr Chokolich's existing custody order, being the best estimate of the term of imprisonment that the court would, in all of the circumstances, have imposed if the court were sentencing Mr Chokolich and he had pleaded guilty to the charge of murder at the earliest opportunity and his mental impairment was not taken into account.
For the reasons that follow, in my view, the best estimate of the term of imprisonment that the court would have imposed in those circumstances is a term of life imprisonment.
I will therefore set the limiting term for Mr Chokolich's custody order as the duration of Mr Chokolich's life. The CLMI Act does not, I find, require, or permit, the Court to determine what would have been the minimum non‑parole period of a term of life imprisonment. Indeed, under the CLMI Act there is no minimum period of a custody order.
Whether Mr Chokolich's custody order will be cancelled at any time in the future is a matter for the Tribunal.[10]
[10] CLMI Act, s 51(c), s 73(1)(d)(iii). As Mr Chokolich's custody order has already been in operation for longer than 12 months, the jurisdiction of the Court to cancel the custody order under s 74 of the CLMI Act has itself now ceased (see CLMI Act, s 73(3)).
Some preliminary procedural issues
Mr Chokolich's attendance at today's hearing
Mr Chokolich is currently being managed at the Frankland Centre operated by the State Forensic Mental Health Service. Other than a brief appearance at the beginning of the hearing (by video‑link), he did not attend the hearing before me today.
In that regard, Mr Chokolich's legal representative, Ms Farley SC, tendered a report of Dr Arti Parmar, Consultant Psychiatrist, dated 17 September 2024. Dr Parmar provided the opinion that, given Mr Chokolich's complex psychiatric and co‑morbid physical health problems, increasing age, frailty, biological and psychological symptoms of dementia, and ongoing psychotic symptoms, attending court was not in his interests and was likely to lead to a deterioration in his mental state.
Pursuant to s 263(2) of the CLMI Act, if the person subject to the existing custody order has been given notice of the hearing to set a limiting term but does not attend the hearing, the court may, as it considers appropriate, proceed with the hearing.
I am satisfied that Mr Chokolich was given notice of today's hearing (by letter from the Court dated 4 September 2024). I spoke with Mr Chokolich at the commencement of the hearing and he confirmed that he did not wish to attend the balance of the hearing. I am satisfied that Mr Chokolich's non‑appearance today is amply explained by Dr Parmar's report and that it was appropriate to proceed with the hearing in his absence. In that regard, I am satisfied that it would have been detrimental to Mr Chokolich's health for him to attend the hearing any longer than he did and that his interests were properly represented by a legal practitioner.
Mr Chokolich's legal representation
Mr Chokolich was represented at the hearing by Ms Farley SC, of Legal Aid WA, pursuant to a grant of legal aid.
The CLMI Act makes the following provision in relation to legal representation of a person subject to an existing custody order:
266.Legal representation of person subject to existing custody order
(1)If it appears to the court that a person subject to the existing custody order should have legal representation for the purposes of proceedings under this Subdivision, the court may (on application or its own initiative) adjourn proceedings until the person is represented by a legal practitioner.
(2)If the person is unable to instruct their legal practitioner, the legal practitioner may exercise an independent discretion and, in doing so, must act in a way that they reasonably believe to be in the person's best interests.
(3)If there is a question as to the extent to which the person is able to instruct a legal practitioner or is able to make admissions, the question must be determined by the court.
Ms Farley SC advised the Court that she was unable to obtain instructions from Mr Chokolich, due to his psychiatric condition. This was confirmed by Dr Parmer, who advised in her report that Mr Chokolich is unlikely to be able to instruct his legal representative in any meaningful way or to follow court proceedings. On the evidence before me, I am satisfied that Mr Chokolich is unable to provide any meaningful instructions or to personally make admissions. No question arises under s 266(3) as to the extent of Mr Chokolich's ability in that regard. That is, this is not a case in which the person may be able to provide instructions or make admissions in relation to some issues but not others.
In those circumstances, in my view s 266(2) applied to all issues in the application. That is, Mr Chokolich's legal practitioner was empowered to exercise an independent discretion in relation to any issue in the application, in a way that she reasonably believed to be in Mr Chokolich's best interests.
The power in s 266(2) of the CLMI Act is a significant feature of the Act. Identical provision is made in s 38 of the CLMI Act in relation to legal representation of an unfit accused in proceedings under div 3 of pt 3 of the CLMI Act (including special proceedings under pt 3, div 3, sub‑div 3). The manifest purpose of each of these provisions is to ensure that a person subject to the CLMI Act has the benefit of legal representation, notwithstanding that the person is unable to instruct their legal practitioner. The provisions also ensure that any court dealing with a person under the CLMI Act has the benefit of independent and considered submissions identifying, and confining the proceedings to, the real issues, including by making appropriate admissions as to factual matters.
The independent discretion reposed in legal practitioners under the CLMI Act is therefore vitally important. Not only does the CLMI Act ensure that legal practitioners are authorised to exercise that discretion in the best interests of their client, notwithstanding the inability of their client to give instructions, the efficacy of the operation of the Act as a whole depends upon them doing so.
Before turning to the issues in this application, it is appropriate to set out the relevant statutory provisions.
Statutory context
To properly understand the transitional provisions and the application before me today, it is necessary to appreciate the context of the CLMI Act as a whole, and in particular its prospective operation in relation to persons with mental impairment who are charged with offences.
General overview of the CLMI Act
As noted earlier, under the terms of the repealed Act a mentally impaired accused subject to a custody order was to be detained until released by an order of the Governor. There was no maximum, or limiting, term to such a period of detention. At the same time, there was no minimum period of detention under the repealed Act that applied before the Governor could make a release order, with or without conditions.[11]
[11] Repealed Act, s 35.
Custody orders under the repealed Act could be made both in relation to persons who were not mentally fit to stand trial[12] and persons who were acquitted on account of unsoundness of mind.[13] There was, however, a significant difference between persons who were not mentally fit to stand trial and persons who were acquitted on account of unsoundness of mind. That difference was that persons in the latter category (that is, persons acquitted on account of unsoundness of mind) had necessarily been subject to a trial for the offence charged and the court will necessarily have found that, save for the question of the accused's criminal responsibility on account of mental impairment (under s 27 of the Criminal Code), the factual elements of the charged offence were proven beyond reasonable doubt.
[12] Repealed Act, s 16(5), s 19(4).
[13] Repealed Act, s 20, s 21, s 22.
In the case of an accused person who was not mentally fit to stand trial under the repealed Act there was no such trial and no finding in relation to the factual elements of the charged offence (although in determining whether to make a custody order, the court was required to have regard to 'the strength of the evidence against the accused').[14] There was no mechanism under the repealed Act by which a person who was not mentally fit to stand trial could be found not guilty of the charge, on the basis that the elements of the offence could not be proven or there was some defence that was available.
Special proceedings
[14] Repealed Act, s 16(6), s 19(5),
The CLMI Act significantly alters the consequences of a finding that a person is unfit to stand trial. In accordance with the provisions of the CLMI Act, where a person is unfit to stand trial (following an opportunity to become fit),[15] the court must either discharge the accused from the charge or order that a special proceeding under pt 3, div 3, sub-div 3 take place (special proceeding).[16]
[15] CLMI Act, s 35.
[16] CLMI Act, s 37. The accused may only be discharged in relation to a charge of a simple offence or an indictable offence that was to be tried summarily (compare s 37(2) and s 37(3)).
The purpose of a special proceeding is for the court to decide the charge against the accused on the evidence available.[17] Section 41(2) and (3) provide:
[17] CLMI Act, s 41(1).
(2)In deciding the charge the court may find that the accused –
(a)is not guilty (other than as described in paragraph (b)); or
(b)is not guilty on account of mental impairment under The Criminal Code section 27; or
(c)committed the offence charged or another offence which, on the charge, the accused might be found to have committed.
(3)To find that the accused committed an offence, the court must be satisfied beyond a reasonable doubt.
Significantly, if a finding is made under s 41(2)(a) (that is, the accused is not guilty) the accused is entitled to a judgment of acquittal.[18] Similarly, if a finding is made under s 41(2)(b), the court must enter a judgment of not guilty on account of mental impairment and make an order under pt 5 of the CLMI Act.[19] If a finding is made under s 41(2)(c), the court must not enter a judgment of conviction but must make an order under pt 5 of the CLMI Act.[20]
[18] CLMI Act, s 43(1) & (4).
[19] CLMI Act, s 43(2) (4) & (5).
[20] CLMI Act, s 43(3) & (5).
Pursuant to s 46(1) of the CLMI Act, if a court must make an order under pt 5 of the CLMI Act, the court must:
(a)make a custody order; or
(b)make a community supervision order; or
(c)order that the person be released unconditionally.
I observe, at this point, that, as under the repealed Act, a custody order under the CLMI Act may be made both in relation to persons who are not fit to stand trial and persons who are acquitted on account of unsoundness of mind. Unlike the position under the repealed Act, however, in all such cases the court will necessarily have been satisfied that the factual elements of the charged offence have been proven beyond reasonable doubt (either at a trial or a special proceeding). That is, in all cases there will have been a determination of the facts underlying the charged offence.
Limiting terms
Where a custody order is made under the CLMI Act, either in relation to a person who is not fit to stand trial or a person who is acquitted on account of unsoundness of mind, the court is now required to set a limiting term.
The relevant provisions are s 50 and s 51 of the CLMI Act. Those sections provide:
50.Limiting term for custody order
(1)In this section –
term of detention means a term of detention under the Young Offenders Act 1994;
term of imprisonment means term as defined in the Sentencing Act 1995 section 85(1).
(2)If a court makes a custody order, the court must set a limiting term for the order, being the best estimate of the term of imprisonment or term of detention that the court would, in all the circumstances, have imposed if –
(a)the court were sentencing the person for the offence; and
(b)any mental impairment of the person were not taken into account.
(3)For the purposes of subsection (2), the court must assume that –
(a)the person had pleaded guilty to the charge at the earliest opportunity; and
(b)there is no other option but to impose a term of imprisonment or term of detention.
(4)The limiting term commences on the day on which the order is made unless the court, after taking into account any time that the person has already spent in custody in relation to the offence, orders that the term be taken to have commenced on an earlier day.
51.When custody order ceases to have effect
A custody order has effect until the earliest of the following –
(a)its limiting term expires;
(b)it is cancelled under section 74;
(c)if a leave of absence order applies to the person subject to the custody order – an order of the Tribunal under section 73(1)(d)(iii) cancelling all of the conditions of the leave of absence order comes into effect.
I will return to these provisions later. It is sufficient for present purposes to note that, in relation to custody orders made under the CLMI Act after its commencement, the court conducting the exercise under s 50(2), will necessarily have determined the facts underlying the charged offence (either at a trial or a special proceeding).
The CLMI Act provides no minimum term for a custody order. Once a custody order is made the order must be reviewed by the Tribunal and is subject to periodic reviews.[21] Subject to the Tribunal having first made a leave of absence order under s 77 of the CLMI Act (which it can do at any time), a custody order may be cancelled prior to the expiration of the limiting term by order of the court that made the custody order[22] or by an order of the Tribunal.[23]
Objects, principles and paramount consideration of the CLMI Act
[21] CLMI Act, s 66.
[22] CLMI Act, s 51(b), s 74.
[23] CLMI Act, s 51(c), s 73(1)(d)(iii).
The CLMI Act expressly provides for its objects, the principles applicable to those performing functions under the Act and its paramount consideration. In that regard, s 7 and s 8 provide:
7.Objects and principles
(1)The objects of this Act are as follows –
(a)to ensure the protection of the community;
(b)to ensure persons with mental impairment who are charged with an offence –
(i)are identified early in their contact with the justice system; and
(ii)are given a reasonable opportunity to become fit to stand trial; and
(iii)are given a fair hearing even if they are unfit to stand trial in accordance with ordinary procedures; and
(iv)are not found to have committed the offence unless, on the evidence available, it can be proved to the ordinary criminal standard of proof that the person committed the offence; and
(v)are subject to the least possible interference with their rights and dignity;
(c)to ensure that persons who are subject to supervision orders –
(i)are afforded procedural fairness in relation to the administration and management of those orders; and
(ii)are reintegrated into the community in a safe manner.
(2)A person performing a function under this Act (including when constituting or a member of a court or tribunal) must have regard to the following principles –
(a)that persons with mental impairment should be subject to the least possible restriction on their freedom consistent with the protection of the community;
(b)that persons with mental impairment in the justice system should have access to advocacy services;
(c)that persons with mental impairment in the justice system should be provided with the best possible treatment, care and support;
(d)that persons with mental impairment in the justice system should be dealt with in a manner that is culturally appropriate;
(e)that persons with mental impairment in the justice system should not be subject to outcomes under this Act that restrict their freedom more severely than if they had been convicted of the offence that they have been found to have, or are alleged to have, committed;
(f)that there should be special provision to ensure the fair treatment of children with mental impairment who have been found to have, or are alleged to have, committed offences;
(g)that detaining a child with mental impairment for an offence, whether before or after the child is found to have committed the offence, should only be used as a last resort and, if required, should only be used for as short a time as is necessary;
(h)that the detention of a child, if required, should be in a facility that is for, and suitable for, children;
(i)that if a child who has not reached the age of 16 years is detained in a facility in which an adult is detained, the child should not be exposed to contact with an adult detained in the facility;
(j)that if a child who has reached the age of 16 years is detained in a facility in which an adult is detained, the child should not share living quarters with an adult detained in the facility;
(k)that victims of offences committed by persons with mental impairment should have the opportunity to be acknowledged and heard;
(l)that the role of carers and families in the treatment, care and support of persons with mental impairment should be recognised.
8.Paramount consideration
The paramount consideration of a person when performing a function under this Act (including when constituting or a member of a court or tribunal) is the protection of the community.
Transitional provisions
The transitional provisions in pt 14 of the CLMI Act provide that a custody order under the repealed Act in effect immediately before the commencement day (existing custody order) has effect as if it were a custody order made under pt 5.[24]
[24] CLMI Act, s 254.
Part 14, div 2, sub-div 5 of the CLMI Act makes provision for the setting of limiting terms for existing custody orders. In that regard s 261 provides:
261.Application to set limiting term
(1)As soon as practicable after commencement day, the Director of Public Prosecutions must apply to the court that made the existing custody order for the court to set a limiting term for the order.
(2)The court must hear and determine the application as soon as practicable.
(3)The Director of Public Prosecutions need not comply with subsection (1) while the person subject to the existing custody order is not a resident of the State.
(4)This section does not apply if section 262 applies to the existing custody order.
As recognised in s 261(4), s 262 provides for there to be, in effect, a 'deemed' limiting term in certain cases of murder and manslaughter. Section 262 provides:
262.Limiting term in cases of murder and manslaughter
(1)If the person subject to the existing custody order is subject to it because they were acquitted, on account of unsoundness of mind, of murder or manslaughter, the limiting term for the order is the duration of the life of the person, and that term has effect as if set by a court under section 50.
(2)The person or the Director of Public Prosecutions may apply to the court that made the existing custody order for the court to set a limiting term for the order.
I observe that s 262 does not apply to a case such as the present, where the existing custody order was made with respect to a person charged with murder by reason of the person being not fit to stand trial. Hence the present application by the Director under s 261.
Section 263 deals with certain procedural matters, some of which I addressed above in relation to Mr Chokolich's attendance at today's hearing. I also observe that s 263 also makes provision for notification of, and statements or submissions by, victims of the offences in respect of which the existing custody order was made. In the application before me, I received a submission from Mr Chokolich's sister, who was a victim of the offence.
Section 264 provides:
264.Court to set limiting term
(1)If an application is made under section 261, the court must set a limiting term for the existing custody order under section 50.
(2)If an application is made under section 262, the court may set a limiting term for the existing custody order under section 50 that is not the duration of the life of the person if satisfied that –
(a)a life term would be clearly unjust given the circumstances of the offence and the person; and
(b)the person is unlikely to be a threat to the safety of the community when released from custody.
(3)The limiting term is taken to have commenced on the day on which the existing custody order was made unless the court, after taking into account any time that the person had spent in custody in relation to the offence before the order was made, orders that the term be taken to have commenced on an earlier day.
I will address a number of issues as to the proper construction of s 50 of the CMLI Act, and the transitional provisions, in cases of murder later in these reasons. It suffices for present purposes to observe that, unlike in the case of a custody order made under the CLMI Act after its commencement, in the case of an application under s 261 in relation to an existing custody order made with respect to a person charged with murder or manslaughter by reason of the person being not fit to stand trial, there is no provision for a special proceeding. Accordingly, there will not have been a determination of the facts underlying the charged offence.
For that reason, on an application to set a limiting term under s 261 of the CLMI Act, it will be necessary for the court hearing the application to determine the facts upon which the court is to make the best estimate of the term of imprisonment that the court would have imposed if it were sentencing the person for the offence (pursuant to s 50(2)).
It is appropriate, therefore, to further address the procedure to be adopted in an application under s 261 of the CLMI Act.
Procedure on an application under s 261 of the CLMI Act
Section 42 of the CLMI Act gives the court a wide latitude in the conduct of a special proceeding, including dispensing with a hearing entirely, albeit that the court is to endeavour to conduct the proceeding as if it were an ordinary criminal proceeding. Nevertheless, the power to dispense with a hearing (confirmed in s 42(5)) means that, in an appropriate case, a special proceeding could be conducted 'on the papers'.
There is no comparable provision in relation to an application under s 261 under the transitional provisions, where a court is required to set a limiting term for an existing custody order.
In my view, and for the reasons that follow, the correct approach in such a case, and the approach adopted on this application, is as follows.
First, the court's function under s 261 and s 264 of the CLMI Act is to 'set a limiting term for the existing custody order under section 50'. As reflected in s 50 the limiting term is the best estimate of the term of imprisonment that the court would, in all the circumstances, have imposed if, inter alia, it were sentencing the person following a plea of guilty at the earliest opportunity. The task in s 50, in essence, requires the court to undertake a hypothetical sentencing exercise, based upon the various assumptions provided for in the section.
In those circumstances, in my view, the procedure to be adopted on an application under s 261 should follow, as far as is practicable, but with the necessary modifications, the procedure and legal principles applicable to a sentencing hearing in the court. This is consistent with the application of the Criminal Procedure Act 2004 (WA) (Criminal Procedure Act) generally to proceedings under pt 3 and pt 5 of the CLMI Act, with necessary modifications.[25]
[25] CLMI Act, s 14.
Of course, one of the 'necessary modifications' to that procedure is that it is not necessary for the person to plead to the charge. That is because in the setting of the limiting term, the court must assume that the person has pleaded guilty at the earliest opportunity.[26] The balance of the process, however, is to be conducted in accordance with the Sentencing Act 1995 (WA) (Sentencing Act), and the ordinary legal principles applicable to sentencing.
[26] CLMI Act, s 50(3)(a).
This has a number of consequences.
First, the court must find the facts of the offence charged. In doing so, in accordance with s 15 of the Sentencing Act, the court 'may inform itself in any way it thinks fit'.
Following usual practice, and consistent with s 129(3) of the Criminal Procedure Act, the State must state aloud the material facts for the purposes of the hypothetical sentencing exercise. The court may also receive any further material in relation to those facts such as the State brief prepared for the purposes of the hearing.
Again, following usual practice, the respondent to the application may contest any aspect of the facts alleged by the State, save that, as the court must assume that the person has pleaded guilty, the person could not contest the facts in a manner that would traverse the plea of guilty. Beyond that, however, it would be open to the person to contest the facts for the purposes of the hypothetical sentence.
As reflected in the discussion at the beginning of these reasons, the role of the person's legal practitioner may assume particular importance at this point, where the person is unable to give instructions. In such a case, the legal practitioner can, and should, exercise an independent discretion as to whether the facts are accepted for the purposes of the hypothetical sentencing exercise.
Where facts relevant to sentence remain in dispute, the court hearing an application under s 261 must determine those disputed factual issues. In accordance with usual principles, in relation to facts adverse to the person, or aggravating factors for the purposes of sentence, the State will bear the onus of proof beyond reasonable doubt.
The court will also, to the extent necessary, make findings of fact in mitigation or circumstances personal to the person. In relation to facts in mitigation, the person will bear the onus to establish those facts on the balance of probabilities.
Finally, in an appropriate case, it may be necessary for the court to conduct a trial of issues for the purposes of the hypothetical sentencing exercise.
The requirements of s 50 of the CLMI Act
Section 50(2) requires the court to determine the 'best estimate' of the term of imprisonment that the court 'would, in all the circumstances, have imposed', based on certain assumptions. The task is necessarily a hypothetical exercise, given the assumptions that the court is required to make by both s 50(2) and s 50(3) of the CLMI Act.
The use of the word 'would' in s 50(2) is significant. The court is not asked to determine what sentence could, or should, have been imposed on the person. The court is required to determine the best estimate of the term of imprisonment as if the court were in fact sentencing the person based on the specified assumptions, including that the person pleaded guilty at the earliest opportunity and that any mental impairment of the person were not taken into account. The court setting the limiting term, in essence, 'stands in the shoes' of a hypothetical sentencing court.
Of course, the term of imprisonment that the hypothetical sentencing court 'would have' imposed is the sentence the court would in fact have imposed by applying the Sentencing Act, and in particular s 6 of that Act, in light of ordinary sentencing principles.
In that regard, the 'offence' for which the best estimate of the term of imprisonment is determined is the offence 'charged'. This follows from the assumption that the person pleaded guilty to the 'charge', that is the 'allegation in a prosecution notice or indictment that a person has committed an offence'.[27] In the present case, for example, the 'charge' and, thus the offence, is the offence of 'murder' (and not, for example, any statutory alternatives that might have been applicable at trial).
[27] Criminal Procedure Act, s 3.
Accordingly, applying s 6(2)(a) of the Sentencing Act, the sentence that the court would have imposed must be determined taking into account the 'statutory penalty for the offence'. Again, in the present case, the 'statutory penalty for the offence' is that for the offence of murder. I will return to this in a moment.
Similarly, the 'best estimate' of the sentence that would have been imposed will, in accordance with s 6(2) of the Sentencing Act, take into account the circumstances of the commission of the offence, any aggravating factors and any mitigating factors.
Mental impairment not to be taken into account in setting limiting term
This is, of course, subject to the express requirements of s 50 of the CMLI Act itself. In that regard, one of the significant assumptions upon which the best estimate of the hypothetical sentence must be determined is that the court setting the limiting term must not take into account any mental impairment of the person. That assumption (or counter‑factual) may be relevant to the circumstances of the offence, mitigatory factors (such as the effect that the person's mental impairment would have had on their culpability) and, indeed, potentially factors that might have resulted in a longer term of imprisonment.
This assumption may, in a particular case, raise difficult issues in relation to the mental element of a particular offence. That is, there may be a certain artificiality in making findings of fact for the purposes of the hypothetical sentencing exercise, for example, in relation to the intention of the person at the time of the acts constituting the offence, where the person's mental state was affected by their mental impairment. In such a case, the assumption that the person has pleaded guilty to the charge required by s 50(3)(a) may sit uncomfortably with the actual circumstances of the charged offence itself.
Nevertheless, the court setting the limiting term must do the best it can in the circumstances. The court's task is, after all, to arrive at a 'best estimate' in relation to certain assumptions that may operate in tension. It may be, for example, that, notwithstanding the assumption that the accused has pleaded guilty to the charge, the court must arrive at the 'best estimate' without making a particular finding in relation to the mental element of the offence. Of course, in such a case, the court must nevertheless arrive at the best estimate on the assumption that the person is guilty of the offence charge.
While much will depend upon the circumstances of each particular case, some general observation in this context may be made.
In R v Behari,[28] Kourakis J (as his Honour then was) made the following observations concerning the limiting term provision in the Criminal Law Consolidation Act 1935 (SA):[29]
The second aspect of the statutory context is the degree of mental impairment which is a necessary condition for the making of a supervision order. Supervision orders and limiting terms are made either because an accused is not mentally competent or is unfit to stand trial. An accused is not mentally competent if he does not know the nature and quality of the conduct alleged to give rise to the offence, or does not know that the conduct is wrong or is unable to control the conduct. An accused is mentally unfit to stand trial if his or her mental processes are so distorted or impaired that he or she is unable to understand, or respond rationally, or to give rational instructions to the exercise of procedural rights, or is unable to understand the nature and course of the proceedings.
It is a consequence of the conditions for making supervision orders and limiting terms that they will commonly, although not necessarily, be made with respect to persons who, by reason of their mental state, are either unlikely to have formed a guilty intention or, if an intention were formed, are likely to have acted in a state which the common law may have accepted as one of diminished responsibility for the purpose of sentencing. In those circumstances it would be problematic to take into account the mental state which accompanied the objective elements as part of the required hypothetical sentencing exercise. The very mental impairment which renders the accused unfit to stand trial would make a determination of the mental state very difficult. Indeed, it may be self-contradictory to do so, because the mental state may not be a culpable one.
The third aspect of the statutory context to which I refer is the very nature of supervision orders and limiting terms. They are prophylactic and remedial in nature. The tension which arises when sentencing persons with mental impairments under the criminal law between the mitigating effect of their diminished responsibility on the one hand and the increased need for community protection on the other is ameliorated by fixing a limiting term because the Act allows for release into the community on licence and ultimately discharge when there is no longer any risk to the community. Those options are not available under criminal sentencing regimes.
It follows, in my view, that in fixing a limiting term the court must proceed as if it is sentencing for an offence constituted by the objective elements it has found but where it has been left in ignorance of the mental state of the accused. It can neither reduce the limiting term by reason of diminished responsibility nor increase it by reason of callous premeditation or disregard for the suffering of the victims. In that way, fixing a limiting term will not be plagued by the difficulty of ascertaining the relevant guilty mental state to which I have referred nor will the period during which the psychiatric care is provided be reduced on account of diminished responsibility arising out of the very mental condition which requires treatment.
…
However, exclusion of any consideration of the mental element of a defendant, which is necessary by reason of the very nature of the function of fixing a limiting term, does not require exclusion of his or her antecedents. The family and social circumstances and previous good character of a defendant are distinct matters which must still be taken into account.
[28] R v Behari [2011] SASC 111 (R v Behari).
[29] R v Behari [11] ‑ [14], [16] (Kourakis J) (footnotes omitted).
There are material differences between the provisions of the CLMI Act and the Criminal Law Consolidation Act 1935 (SA). In particular, under the Criminal Law Consolidation Act 1935 (SA) the limiting term is determined on the assumption that the person 'had been convicted of the offence of which the objective elements have been established',[30] rather than, as under the CLMI Act, that the person 'had pleaded guilty to the charge at the earliest opportunity'. In that regard, the subjective intention of the accused is expressly excluded from the court's hypothetical sentencing exercise under the Criminal Law Consolidation Act 1935 (SA).
[30] Criminal Law Consolidation Act 1935 (SA), s 269O.
That is not the case under the CLMI Act, where the court must assume that the person has 'pleaded guilty to the charge' (which will include all of the necessary elements of the offence). Where the charge involves an act done with a specific intent, for example, the 'best estimate' must therefore be made upon the assumption of such an intention, although, as I have said, beyond that assumption, it may not be possible to make any particular finding as to the person's mental state at the time of the offence.
Subject to this qualification, and consistent with the approach reflected in R v Behari, the following general propositions would apply to the application of s 50 of the CLMI Act in relation to any mental impairment of the person:
(a)the person's mental impairment 'can neither reduce the limiting term by reason of diminished responsibility nor increase it [for example] by reason of callous premeditation or disregard for the suffering of the victims';[31] and
(b)beyond the impact of mental impairment, s 50(2)(b) of the CLMI Act does not otherwise require exclusion of the person's antecedents. The family and social circumstances and previous good character of the person are distinct matters which must still be taken into account.
[31] R vBehari [14] (Kourakis J).
The proper construction of s 50 of the CLMI Act in cases of murder
As noted above, the sentence that the court would have imposed must be determined taking into account the 'statutory penalty for the offence', which, in the present case, is murder.
In that regard, the statutory penalty for murder is set out in s 279 of the Criminal Code. Relevantly, s 279(4) provides:
(4) A person, other than a child, who is guilty of murder must be sentenced to life imprisonment unless –
(a) that sentence would be clearly unjust given the circumstances of the offence and the person; and
(b) the person is unlikely to be a threat to the safety of the community when released from imprisonment,
in which case, subject to subsection (5A), the person is liable to imprisonment for 20 years.
Pursuant to s 90 of the Sentencing Act, a court that sentences an offender to life imprisonment for murder must either set a minimum period that the offender must serve before being eligible for parole (minimum non-parole period) or order that the offender must never be released.
This raises two general issues of statutory construction in relation to the application of s 50 in cases of murder:
(a)the application of mandatory terms of imprisonment to the 'best estimate' of the sentence the court would have imposed; and
(b)where the court's 'best estimate' of the sentence that the court would have imposed is life imprisonment, whether s 50 permits, or requires, the court to determine the minimum non‑parole period that would have been set for that sentence.
The relevance of mandatory sentences to s 50 of the CLMI Act
Subject to the exceptional circumstances identified in s 279(4)(a) and (b), the sentence of life imprisonment for murder is a mandatory sentence.
Consistent with my earlier observations in relation to the court's task in arriving at a 'best estimate' of the term of imprisonment that a sentencing court would (rather than could or should) impose, in a case in which a mandatory term would have applied in all of the circumstances, that best estimate will require the limiting term to be set for the term that would have been required as a mandatory term.
That is, on its proper construction, s 50 of the CLMI Act requires that if, on the assumptions required by that section, a mandatory term of imprisonment would have been imposed, then the limiting term must be set as the duration of that mandatory term.
In the case of a charge of murder, therefore, unless the court setting the limiting term is satisfied that s 279(4)(a) and (b) of the Criminal Code would have been satisfied, the court must set the limiting term as the life of the person. Given the 'exceptional' nature of a sentence other than life imprisonment generally,[32] it can be expected that the circumstances in which a limiting term on a charge of murder will be set as a term other than the duration of the person's life will be equally exceptional. Indeed, this will be particularly so, given the requirement to exclude from consideration the person's mental impairment. That is because a person's mental impairment at the time of committing an offence (while falling short of s 27 of the Criminal Code) might otherwise have been the principal reason for concluding that it would have been 'clearly unjust given the circumstances of the offence and the person' to have imposed a sentence of life imprisonment.
[32] See Gore v The State of Western Australia [2017] WASCA 163 (Gore v The State of Western Australia) [40] (Mazza, Mitchell & Beech JJA).
This construction of s 50 is consistent with the transitional provisions in s 262 and s 264(2) of the CLMI Act, that, in effect, deem the limiting term for an existing custody order to be the duration of the life of the person, if the person is subject to that custody order because they were acquitted, on account of unsoundness of mind, of murder or manslaughter. In such a case, the person may apply to the court to set a limiting term, but the court may only set a limiting term that is not for the duration of the life of the person if the court is satisfied of the matters in s 264(2)(a) and (b) of the CLMI Act. The terms of s 264(2)(a) and (b) of the CLMI Act mirror precisely the exceptional circumstances in s 279(4)(a) and (b) of the Criminal Code that apply to the case of a court sentencing an offender for murder.
Section 262 and s 264(2) of the CLMI Act, therefore, evince a statutory intention whereby the Parliament contemplated that the outcome of the application of s 50 might, depending upon the circumstances, result in a limiting term of the duration of a person's life. They similarly reveal a statutory intention that, in the absence of the exceptional circumstances that apply in the case of a court sentencing an offender for murder, the court must set the limiting term as the duration of the life of the person.
As a matter of substance (that is, without regard to the deemed starting position), the construction that I have given to s 50 of the CLMI Act results in a harmonious operation of the provisions of the CLMI Act as a whole, in the sense that, ultimately, the same principles (and the same outcomes) will apply to persons subject to custody orders in relation to charges of murder, whether the person is not fit to stand trial or is acquitted on account of unsoundness of mind.
This construction, of course, does raise the obvious question: what was the legislative purpose in 'deeming' that the limiting term for existing custody orders in relation to persons acquitted on account of unsoundness of mind of murder or manslaughter as the duration of the life of the person, but not doing so in relation to persons found unfit to stand trial on a charge of murder?
No doubt the answer to that question is, at least in part, a pragmatic one; namely, a statutory intention to limit the number of applications that were required to be brought by the Director 'as soon as practicable after commencement day' (s 261(1)), while giving a person affected by the deeming provision the capacity to make application to the court.
Moreover, as a matter of legislative policy, confining the 'deemed' limiting terms to cases in which the person was acquitted on account of unsoundness of mind may also be explained by the fact that, as I observed at [25] and [26] above, under the repealed Act persons acquitted on account of unsoundness of mind will necessarily have been subject to a trial for the offence charged and the court will necessarily have determined the factual elements of the charge. By contrast, in the case of an accused person who was not mentally fit to stand trial under the repealed Act there was no such trial and no finding in relation to the factual elements of the charged offence.
The transitional provisions in relation to persons who were not fit to stand trial therefore ensure that a court has made relevant factual findings in relation to the offence charged. In this way, such an assessment will have been made in relation to all persons subject to custody orders (whether under the repealed Act or the CLMI Act). Given the potential (in light of s 279(4)(a) and (b) of the Criminal Code) for the underlying facts to reveal a basis for setting a limiting term other than the duration of the life of the person, the CLMI Act ensures that such a possibility is properly addressed by a court in relation to all persons found to be unfit to stand trial for murder and manslaughter.
Does s 50 require the Court to determine a minimum non-parole period?
In relation to the second issue of construction, in my view, where the court's 'best estimate' of the sentence that the court would have imposed is life imprisonment, s 50 of the CLMI Act (and its application to existing custody orders under the transitional provisions) does not permit, or require, the court to determine the minimum non-parole period that would have been set if the person had been sentenced to life imprisonment.
There is certainly no express statutory provision in the CLMI Act permitting, or requiring, the court to do so. Nor, in my view, could such a power or requirement arise as a matter of implication.
Indeed, in my view, for the court to determine, or express any view as to, the hypothetical minimum non-parole period that would have applied to a sentence of life imprisonment would be contrary to the legislative scheme of the CMLI Act as a whole, and potentially apt to mislead.
The CLMI Act, as a whole, has nothing to do with punishment. On the contrary, its paramount consideration is the protection of the community and its objects are to ensure the dignified treatment of persons with mental impairment who come into contact with the justice system and to provide those persons with the best possible treatment, care and support. Not a single principle in the many principles prescribed by s 7 of the CLMI Act involves or contemplates the punishment of a person with a mental impairment.
This is reflected in the fact that, as I said earlier, there is no minimum term for a custody order under the CLMI Act. Once a custody order is made the order must be reviewed by the Tribunal and is subject to periodic reviews.[33] As noted above, subject to the Tribunal having made a leave of absence order under s 77 of the CLMI Act (which it can do at any time) a custody order may be cancelled by order of the court that made the custody order[34] or by an order of the Tribunal.[35] Whether that occurs is to be determined in accordance with the paramount consideration of the protection of the community and the principles in s 7(2) of the CLMI Act. Punishment, retribution and deterrence have no role to play in such determinations.
[33] CLMI Act, s 66.
[34] CLMI Act, s 51(b), s 74.
[35] CLMI Act, s 51(c), s 73(1)(d)(iii).
In those circumstances, there is no basis for the court to determine a hypothetical minimum period of a limiting term or a custody order. There is no such minimum and for the court to determine, or express a view as to, the minimum period that a person would have been required to serve in prison had they been sentenced, would be apt to create the misleading impression that there is a minimum period of a custody order.
For these reasons, on its proper construction, where the court's 'best estimate' of the sentence that the court would have imposed is life imprisonment, s 50 does not permit, or require, the court to determine the minimum non-parole period that would have been set if the person had been sentenced to life imprisonment.
This construction is again, consistent with the transitional provision in s 262 of the CLMI Act, which deems certain existing custody orders to be for the duration of the life of the person (subject to application by the person). That provision is silent as to any hypothetical minimum non-parole period. If s 50 of the CLMI Act contemplated that the court would determine such a period, it would be expected that s 262, which 'deems' a limiting term of life 'as if set by a court under section 50', would address the 'deemed' minimum non-parole period. It does not.
Ms Farley SC submitted that stating a hypothetical minimum non‑parole period might be of relevance, or assistance, to a person subject to a custody order as it would tell them how long they would have been required to serve in prison if they were convicted and sentenced. As she put it:[36]
The relevance of it would be to those persons within that cohort who perceive that had it not been for their mental impairment, they would have received - it is accepted in general terms - usually a life term, but they would also have been set a minimum term.
[36] Ts 70.
I do not accept that submission. The fact is that any hypothetical minimum non‑parole period, if it were required to be determined by s 50, would necessarily be on an assumed basis that does not reflect the reality experienced by the person the subject of the custody order. In those circumstances, it could serve no function in assisting the person's 'perception' of their position under the CLMI Act versus their position had they been sentenced.
If anything, the 'perception' of a person who is subject to a custody order of their position under the CLMI Act versus their position had they been sentenced, would be best assisted by the person knowing that they are not subject to any minimum period, and that their continued custody will be determined by the interests of the community and their own health.
I turn then to the application of the provisions in the present case.
Circumstances of the charged offence
The State read a Statement of Material Facts for the purposes of the application. It also tendered a brief of evidence prepared for the purposes of the hearing.
The Statement of Material Facts was to the following effect.
On 4 October 2016, Mr Chokolich was 61 years of age and lived at a unit in Perth with his mother, who was 81 years of age. Mrs Chokolich was Mr Chokolich's primary carer.
On the evening of 4 October 2016, Mr Chokolich and his mother were at the unit.
At around 6.00 pm, a neighbour encountered Mr Chokolich on the pathway outside the units. Mr Chokolich appeared upset and babbling incoherently about his mother having killed his father.
Mr Chokolich went into the unit and came back holding Mrs Chokolich around the neck with his left arm, in a headlock. Mr Chokolich was holding a large knife in his right hand, approximately 25 cm long with a 3 cm-wide blade.
Mr Chokolich pulled his mother a distance of four or five metres away from the door of the unit and sat her down on a grassed area. In the course of pulling his mother from the unit, he dropped the knife he was holding. He was observed to return to the pathway and pick up the knife.
Mr Chokolich knelt onto the grass next to Mrs Chokolich, with the knife in both hands. He plunged the knife into Mrs Chokolich's chest, using all his weight. Mr Chokolich then repeatedly hacked across Mrs Chokolich's neck with the knife and was heard to say, 'I am going to cut your bloody head off'.
The incident lasted about 8 to 10 minutes.
Neighbours who observed the incident called triple zero and the police arrived. Mr Chokolich was arrested. An attending paramedic heard Mr Chokolich say, repeatedly, 'I killed her, I fucking killed her'.
At around 2.40 am on 5 October 2016, police took Mr Chokolich to Joondalup Hospital Emergency Department before taking him into custody. Mr Chokolich reported to medical staff in the Emergency Department that he had killed his mother, saying 'I killed my mother; I don't know why I did it but I did' and 'she was killing half the place; that's why I did it'.
Toxicological analysis of Mr Chokolich's blood found no trace of alcohol or illicit drugs.
Postmortem examination of Mrs Chokolich found an incised wound to her neck with major vascular injury, and stab wounds to the head, neck and chest, several of which involved major vascular injury. The cause of Mrs Chokolich's death was these multiple sharp force injuries.
Mr Chokolich's counsel did not take issue with these facts for the purposes of the application. They are amply supported by the statements contained in the brief of evidence tendered by the State, which include direct eyewitnesses to all of the events described in the Statement of Material Facts. I am satisfied, beyond reasonable doubt, as to the facts in the Statement of Material Facts.
Mr Chokolich's personal circumstances
Mr Chokolich is now 69 years of age. His personal circumstances were set out by Hall J at the time that his Honour determined his fitness to stand trial.
Mr Chokolich was born in Australia and is the younger of two siblings. He grew up on his family's market garden. Mr Chokolich's school performance was below average and was also complicated by truancy. He stopped attending school at the age of 15.
Mr Chokolich commenced an apprenticeship as a mechanic but did not complete it. He also did some work at a limestone quarry driving a bulldozer and worked as a truck driver. He was unable to work for many years due to his chronic mental illness.
Mr Chokolich never married and has no children. He lived with his parents until his father's death in 2003 and thereafter continued to live with his mother in the family home until she sold it. At that time Mr Chokolich moved to a rented unit in a suburb of Perth. Mrs Chokolich moved to the same set of units sometime later. Despite her age and her own health problems, Mrs Chokolich took responsibility for caring for Mr Chokolich. It seemed that while there was some tension between them and some grievances harboured from childhood, Mr Chokolich and his mother generally got along well. Mr Chokolich's sister, who provided a submission to me, however, explained that Mrs Chokolich was very controlling of Mr Chokolich and was 'hard on [him]'.
Mr Chokolich has no prior criminal history. Despite his longstanding mental illness, which has largely been treatment-resistant, he appears to have avoided any contact with law enforcement officers. Mr Chokolich maintained contact with his sister and her children, who have visited him in hospital. Mr Chokolich's sister and her husband remain very supportive of him.
The most dominant, overwhelming element of Mr Chokolich's personal life has been his mental illness. Since his detention under the custody order Mr Chokolich has also developed a number of physical health problems, including Parkinson's disease, Lewy Body Dementia and cardiovascular problems.
Victim submission
Mr Chokolich's sister and her husband attended the hearing before me today and his sister provided a submission under s 263(6) of the CLMI Act in relation to the impact of the charged offence.
That submission, as I have already said, referred to Mr Chokolich's relationship with his mother. Mr Chokolich's sister said that she would like the court to know how much Mr Chokolich had suffered, from when he was a teenager to the day that their mother died.
She said that her husband and her were happy with the treatment that Mr Chokolich has received at the Frankland Centre and that they would like that he continue to be well looked after, kept comfortable and retain his privacy and that he be respected as a human being.
Mr Chokolich's sister concluded her submission by saying that she would continue to support her brother and harboured no resentment towards him for what has occurred.
Best estimate of the sentence that would have been imposed
In my assessment, there can be no doubt that if Mr Chokolich had pleaded guilty to the charge of murder and the court sentencing him did not take into account his mental impairment, the court would have imposed a sentence of life imprisonment.
Leaving aside Mr Chokolich's severe treatment‑resistant schizophrenia, his actions on 4 October 2016 were objectively horrifying, and involved violence of the most extreme kind. Indeed, it would be virtually unthinkable that a person would do what he did on that day in the absence of some form of mental impairment.
On the assumption that Mr Chokolich was criminally responsible for his actions (which I stress is an assumption contrary to the evidence and is not a finding of the Court), he would have been sentenced on the basis that the seriousness of the offence required a term of life imprisonment. Assuming that his mental impairment was not taken into account, the other mitigating factors (such as his lack of criminal record and early plea of guilty) would have had little weight in light of the objective seriousness of the circumstances of the offence itself.
In this case, there would have been no basis to conclude that it would have been 'clearly unjust given the circumstances of the offence and the person' to impose a term of life imprisonment. As the Court of Appeal said in Gore v The State of Western Australia:[37]
Under s 279(4) of the Code, life imprisonment 'must' be imposed unless that sentence would be 'clearly unjust'. This statutory language indicates that the imposition of a sentence other than life imprisonment for the offence of murder will be an exceptional course. Whether a sentence is clearly unjust is a matter for the evaluative judgment of the sentencing judge, having regard to all of the circumstances of the case. That judgment is to be made by reference to the principles of sentencing set out in s 6 of the Sentencing Act, and having regard to the circumstances of the offence and the offender. The sentence imposed must be commensurate with the seriousness of the offence.
[37] Gore v The State of Western Australia [40] (Mazza, Mitchell & Beech JJA).
There is simply nothing in the circumstances of this case to support the conclusion that a sentencing court would have found it to be 'clearly unjust' to impose a sentence other than life imprisonment. The only matter that could have supported such a conclusion (namely, Mr Chokolich's severe mental illness) is the very matter that the Court cannot take into account.
For completeness, I will address three potential arguments raised by the State (and adopted by Ms Farley SC) upon which it might have been argued that it was 'clearly unjust' for the limiting term to be the duration of Mr Chokolich's life.
The first potential argument was based on the requirement, in s 7(2)(e) of the CLMI Act, that the court have regard to the principle that:
persons with mental impairment in the justice system should not be subject to outcomes under this Act that restrict their freedom more severely than if they had been convicted of the offence that they have been found to have, or are alleged to have, committed.
In that regard it was submitted that it might be argued that a person subject to a custody order might result in that person spending more time in custody than the period of time they would have spent had they been released on parole after the minimum non-parole period of a sentence of life imprisonment.
I reject the proposition that setting the limiting term as the duration of Mr Chokolich's life would in any way offend the principle in s7(2)(e) of the CLMI Act. The fact that a person sentenced to life imprisonment can be considered for parole after serving the minimum non‑parole period, does not restrict that person's freedom less severely than a person subject to a custody order the duration of which is the person's life. On the contrary, a person subject to a custody order the duration of which is the person's life under the CLMI Act is manifestly subject to a less severe restriction on their freedom than a person sentenced to life imprisonment with a minimum non-parole period. That is because, as I have previously explained, there is no minimum period of a custody order and the custody order must be subject to periodic review.
In addition, of course, the fact that a person sentenced to life imprisonment is eligible for parole after the minimum non-parole period does not mean that they will actually be released after that time. In a case such as the present, s 7(2)(e) of the CLMI Act does not require the court to make some type of prediction as to likely hypothetical parole decisions compared with likely future release decisions under the CLMI Act.
The second potential argument is that it would have been 'clearly unjust' to impose a sentence of life imprisonment because of Mr Chokolich's mental impairment. This potential argument may be quickly dealt with. Section 50 requires the court to set the limiting term, without taking into account any mental impairment of the person. In those circumstances, it is simply not open to reach a conclusion that it would have been clearly unjust to impose a sentence of life imprisonment in all of the circumstances of the case by reason of the person's mental impairment.
The third potential argument raised was that it would be 'clearly unjust' to set a limiting term for the duration of Mr Chokolich's life because the charge against Mr Chokolich has not been determined, in the sense that the transitional provisions of the CLMI Act do not provide for a special proceeding in relation to existing custody orders. That, however, is the effect of the CLMI Act itself, which reflects the legislative policy of the Parliament. It is not for this Court to question the legislative policy of the Parliament or to conclude that it would (because the transitional provisions do not provide for special proceedings) be 'clearly unjust' for the court to perform the very function that the court is required to perform under s 50 of the CLMI Act.
For all of these reasons, I am satisfied that the best estimate of the term of imprisonment that the court would, in all the circumstances, have imposed based on the assumptions in s 50 of CLMI Act is a term of life imprisonment.
I am therefore required by s 50 of the CLMI Act to set the limiting term as the duration of Mr Chokolich's life.
Conclusion and order
For these reasons, I order, pursuant to s 50 and s 264 of the CMLI Act, that the limiting term for the custody order made in respect of Steven John Chokolich dated 20 July 2018 (a copy of which will be annexed to the order) is set as the duration of the life of Steven John Chokolich.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KT
Principal Associate to the Hon Chief Justice Quinlan
20 SEPTEMBER 2024
15
3
2