DPP v Ophel [2025] ACTSC 556

1. Alex Ophel suffers from chronic, severe, treatment-resistant schizophrenia. Before the onset of his illness, he was a good student and a keen sportsman who enjoyed friendly social relationships. He completed High School with a high ATAR and was accepted into a science degree at the Australian National University. He began his degree in 2017. At around that time, his parents began to notice that he seemed withdrawn, but no more than that.

2. In August 2017, Mr Ophel attacked five students on campus with a baseball bat. Shortly after that attack he was diagnosed with schizophrenia. Arising from that attack, Mr Ophel was charged with five counts of attempted murder. He was tried by jury and found not guilty by reason of mental impairment on each count. In such cases, the trial judge is required to nominate the sentence that would have been imposed if the accused had been found guilty. The trial judge, Burns J, nominated a total term of 10 years and four months commencing on 8 May 2019: R v Ophel [2019] ACTSC 325.

3. Mr Ophel evidently appeared to have responded well to treatment during the period between the attack in 2017 and his trial in 2019. On 9 May 2019, the ACT Civil and Administrative Tribunal granted him a conditional release order. The terms of that order permitted unsupervised leave from the psychiatric ward at which he was housed, subject to the permission of a psychiatrist.

4. On 23 August 2023, Mr Ophel was exercising his regular half-hour unsupervised leave, which had been granted to him for the purpose of going for a bushwalk. He went to his parents’ house and collected a knife and a frying pan. He then went to the campus of the Australian National University and, for a second time, attacked students on the campus. In separate attacks, he stabbed two women with the knife. He also assaulted two men, one with the frying pan, the other by punching him in the face.

5. Arising from those events, Mr Ophel was charged with two counts of attempted murder, in each case with an alternative count of intentionally inflicting grievous bodily harm. He also faces two charges of assault which have been transferred to this Court by the Magistrates Court as “related charges”.

6. Mr Ophel was arraigned on the counts on the indictment on 4 September 2024. To each count, he pleaded not guilty because of mental impairment. Section 321(2) of the Crimes Act 1900 (ACT) provides that, in such a case: The Supreme Court must enter a special verdict that the person is not guilty of the offence because of mental impairment if— (a) the court considers the verdict appropriate; and (b) the prosecution agrees to the entering of the verdict.

7. The Director of Public Prosecutions agrees to the entering of verdicts of not guilty because of mental impairment in the present case to each of the counts of attempted murder. The parties sought to have the two charges of assault transferred by the Magistrates Court dealt with in the same way, as allowed under s 327 of the Crimes Act read in combination with s 68E(3) of the Supreme Court Act 1933; and see R v Barker [2023] ACTSC 378 at [5].

8. Accordingly, the matter proceeded before me as what is known as a “special hearing” in respect of the two counts of attempted murder and the two charges of assault.

9. The nature of a special hearing was considered by Baker J, in her Honour’s customarily helpful and thorough way, in DPP v Kakar [2023] ACTSC 236. I respectfully adopt her Honour’s analysis at [132(4)-(7)] of that decision as to the procedure to be adopted in the present case. Her Honour said: (4) If the prosecution agrees to the entry of a special verdict, the Court must consider whether a verdict of not guilty by reason of mental impairment is “appropriate”. (5) A verdict of not guilty by reason of mental impairment will be “appropriate” if: (i) The Court is satisfied beyond reasonable doubt that the elements of the offence are proved, noting s 29 of the Criminal Code, which provides that a person “cannot rely on a mental impairment to deny voluntariness or the existence of a fault element, but may rely on mental impairment to deny criminal responsibility”. See also R v Jackson [2021] ACTSC 120; 360 FLR 1 at [113] - [122]; and (ii) The Court is satisfied on the balance of probabilities that, when carrying out the conduct required for the offence, the accused was suffering from a mental impairment that had the effect that the accused did not know the nature and quality of the conduct, or the accused did not know that the conduct was wrong, or the accused could not control the conduct (s 28 of the Criminal Code). (6) The Court may be satisfied of the matters described in (5) above by the tender of statements, an Agreed Facts and/or expert reports, provided those documents are tendered by consent. (7) If the Court is satisfied that the special verdict is “appropriate”, that verdict must be entered.

10. Agreed facts were tendered in the present case, together with numerous expert reports and other medical documents and records.

11. At [141] of the judgment in Kakar, Baker J recorded her view that it is not necessary for directions to be recorded by a judge in determining whether a verdict under s 321 is “appropriate”. I respectfully agree. Her Honour nonetheless, for abundance of caution, proceeded to record the directions she had given herself in an annexure to the judgment. With respect, I do not think that is necessary and do not propose to do so in the present case. The facts are agreed. I have recorded the standard of proof I have applied on each factual question for my determination.

Agreed facts

12. The agreed facts may be summarised as follows.

13. On 18 September 2023, the accused went to the UC Sports group with other patients at Gawanggal Mental Health Unit, where he was housed, and some support staff. The accused then sought permission to leave GMHU in accordance with his release order, to go for a bushwalk. This was unescorted leave and he was permitted to leave the facility unaccompanied. Before he left, the accused was assessed by nursing staff. They noted that he described his mood as “okay” and that there were no signs of his experiencing delusions, paranoia, obsessions, or phobias. He denied any experience of hallucinations at that time.

14. The accused left the facility at approximately 1:36pm, ostensibly to go on his bushwalk. At 1:47pm, he was picked up by an Uber rideshare vehicle. He was dropped off by the Uber at his parents’ residence. At the time, the accused’s parents were not home. The accused spent approximately 20 minutes at his parents’ house. While there, he took a frypan from the kitchen and a knife from a kitchen drawer.

15. At approximately 2:16pm, the accused caught an Uber from his parents’ residence to the ANU campus, arriving at approximately 2:27pm. At around 2:32pm, the accused walked towards Fellows Oval past the ANU Law School, carrying a bag. He continued to walk along the path on the right-hand side of Fellows Oval before turning left to walk along the path in front of the Chifley Library. Once the accused reached the end of the path, he turned left again and continued to walk down the left-hand side of Fellows Oval, near Sullivans Creek road. He continued around Fellows Oval, back to where he had started.

16. At this time, Yuchen Yan was sitting down on a bench completing his homework. As the accused approached where Mr Yan was sitting, he dropped the bag and took out the frying pan. The accused then approached Mr Yan and struck him on the head with the frypan more than once. This was captured via a distant CCTV camera. Mr Yan stood up and said words to the effect, “why did you do that?” or “what’s wrong with you?”. The accused then returned to the bag he had left on the ground and Mr Yan ran away in the direction of the library.

17. As this was occurring, Ms Perry was sitting under a tree on Fellows Oval, reading with her roommate Madeline Ross. Ms Ross was sitting directly in front of Ms Perry and they were facing each other. Ms Ross could see what was happening behind Ms Perry, but Ms Perry could not see unless she turned around. Ms Perry had headphones on but had one side off her ear so she could still hear outside noise. As she was reading, Ms Perry heard a commotion behind her. She turned around and saw Mr Yan holding his head and running away. Ms Ross said words to the effect that there was “something wrong” with that person [the accused] and told Ms Perry not to make eye contact with him. Ms Ross started getting up to leave, telling Ms Perry that they had to go. Seconds after Mr Yan ran away from the accused, the accused ran towards where Ms Perry and Ms Ross were sitting. Ms Ross got up and started running towards the Chifley Library. The accused then stabbed Ms Perry multiple times in the back as she sat on the ground. Ms Perry heard the accused making some grunting noises, but he did not say anything to her.

18. Isabella Vasudeva and Edwina Anderson were sitting near the path on Fellows Oval at this time. They heard the noise of Mr Yan being struck with the frypan and saw Mr Yan run away from the accused. When the accused ran towards Ms Perry and Ms Ross, they heard yelling and Ms Anderson told Ms Vasudeva that they needed to go. At the time, they thought it might have been a game of “Assassins”, where people pretend to kill one another. As Ms Vasudeva and Ms Anderson got up to run away from the accused, the accused lunged towards Ms Vasudeva with the knife and stabbed her multiple times. They continued to run away as the accused followed behind them. At this time, Ms Vasudeva was not certain what had happened but recalled saying something like “what the fuck?” to the accused and observing him to have a blank expression on his face. At the time, she could feel pressure in her back. As Ms Vasudeva and Ms Anderson ran away from the accused, Ms Perry got up from where she had been stabbed and started walking towards a group of people, saying “help, I’ve been stabbed”. Ms Perry thought she was going to die once she realised that she had been stabbed multiple times and had blood gushing out of her. She fell over onto the grass and lost consciousness at approximately 2:44pm. Several bystanders rendered assistance to Ms Perry.

19. The accused continued to pace back and forth in the area, including returning to the area where his bag was located. At approximately 2:44pm, the accused picked up the frying pan again. Mr Riandy Laksono was walking along the path near Fellows Oval at this time, unaware of what had occurred. As he approached an intersection of the path, the accused ran towards him with the frypan raised and swung it at him. The frypan flew out of the accused’s hand, missing Mr Laksono, and the accused proceeded to punch Mr Laksono before collecting the frying pan from the ground. Mr Laksono ran away at this time. The accused appeared to try to follow him for a short period, before returning to his bag.

20. CCTV showed Ms Vasudeva and Ms Ross after the stabbing as they approached the ANU Social Sciences building. Ms Vasudeva was able to walk unassisted up the stairs next to the building, holding one hand to her back. She asked Ms Anderson to check her back for her but Ms Anderson said they should just keep running up the stairs. Upon reaching the bike racks at the top of the stairs, Ms Vasudeva crouched down against the building and collapsed.

21. Several people made phone calls to emergency services about the incident. Police arrived at ANU Campus at approximately 2:51pm and rendered assistance to both Ms Perry and Ms Vasudeva. A member of the public advised police that the male who had stabbed Ms Vasudeva was still nearby. He was described to police as wearing all black and a hat. Ms Anderson accompanied police as they ran towards the oval in the direction of Ms Perry and the accused. The accused was seen standing near where Ms Perry had collapsed. He had blood on both his hands. He was arrested and cautioned.

22. At the time of his arrest, the accused was dazed and staring off into the distance. He was unable to advise police how much alcohol he had consumed and was non-responsive to some questions. He was variously described as having a “blank” expression, or “unfocused”, “spaced out”, “pacing around”, and “moseying around, just not really walking anywhere in particular”.

23. At approximately 3:00pm, a registered nurse at GMHU contacted police and advised that the accused had taken unaccompanied leave for a bushwalk and was due to return 30 minutes ago but had not come back to the facility. A copy of the conditional release order was sent to police by GMHU. At that time, staff at GMHU were not aware of what had occurred at ANU.

24. Following his arrest, the accused was lodged at the ACT Regional Watch House. At approximately 6:00pm, he was seen by a forensic medical officer to assess his fitness for interview. When he was assessed, his blood alcohol was 0.083. He was noted to be coherent and cooperative. His attention and concentration were normal, and he was oriented to time, place and person. He was noted to have several wounds on his hands. The accused attributed this to him having “stabbed a bunch of people”. He was however not fit for interview owing to his blood alcohol content, injuries and need for a psychiatric review given his diagnosis. Elements of the offences

25. The first task is to consider whether the element of the offences are established. The elements of the offence of attempted murder are derived from a combination of s 12 of the Crimes Act, which specifies the offence of murder, and s 44 of the Criminal Code 2002 (ACT), which specifies the elements of attempt. The elements are: (a) the accused carried out conduct that is more than merely preparatory to the commission of the offence of murder; (b) the accused intended to carry out the conduct that is more than merely preparatory to the commission of the offence of murder; and (c) the accused intended by such conduct to cause the death of another person.

26. On the strength of the agreed facts, I am satisfied beyond reasonable doubt as to each of those elements. As to the element of intention, in addition to the inferences clearly available to be drawn from Mr Ophel’s acts, the prosecution relied on admissions made by him to Dr O’Dea, one of the three psychiatrists by whom he has been examined for the purpose of these proceedings. Mr Ophel told Dr O’Dea that “the calculations were to attack… kill… these people…” and “I was intending to kill these people”.

27. The elements of the offence of assault contrary to s 26 of the Crimes Act are: (a) that the accused applied force to the complainant; (b) that the accused intended to apply the force, or was reckless about whether the force was applied; (c) the force was applied without the complainant’s consent; and (d) the application of the force was unlawful.

28. Again, on the strength of the agreed facts, I am satisfied beyond reasonable doubt as to each of those elements.

Mental impairment

29. The second task is to determine whether to be satisfied on the balance of probabilities that, when carrying out the conduct required for the offences, Mr Ophel was suffering from a mental impairment that had the effect that he did not know the nature and quality of the conduct or did not know that the conduct was wrong or could not control the conduct: s 28(1) of the Criminal Code.

30. On this issue, the prosecution relied on reports from three forensic psychiatrists. Those reports in turn were provided against the background of psychiatric material concerning Mr Ophel that has been obtained since he was detained in relation to the 2017 offences.

31. Each expert considered Mr Ophel to be suffering from a schizophrenic illness. At the time of the offending, he was suffering from “an acute phase of the schizophrenic illness, with active delusional thinking, visual hallucinations, and problems with insight, judgement and behavioural control”. Mr Ophel reported an eight-year history of delusions and thought insertions, stating that, in the days leading up to the offence, he began thinking about “higher beings”, a delusion that had recurred to him numerous times since the onset of his illness.

32. One expert, Dr Ellis, reported that the “available evidence indicates that [Mr Ophel’s] serum level of clozapine was in a sub-therapeutic range at the time of the offending”. Dr Ellis stated that Mr Ophel has a “significantly difficult to treat form of schizophrenia with significant cognitive and social impairment accompanying the delusions and thought insertion experiences”. He stated that Mr Ophel experienced the content of his delusions as “true and compelling”, making it most likely that he was suffering from a relapse of schizophrenia on 18 September 2023.

33. Another expert, Dr Martin, expressed the opinion that the “offending occurred in direct nexus with highly distorted beliefs and thought processes that severely detrimentally affected his capacity to understand the moral (if not legal) wrongfulness of the alleged violence, and that he did lack capacity to be able to reason with moderate composure”.

34. That evidence clearly establishes on the balance of probabilities that, at the time of the offences, Mr Ophel did not know his conduct was wrong.

35. The impact of these offences on the two female victims was extremely serious. Each provided a victim impact statement.

36. Ms Perry sustained multiple life-threatening wounds and injuries that required urgent, life-saving surgical intervention. Without such treatment, she would have died. In her victim impact statement, Ms Perry stated how the offending has irrevocably damaged all aspects of her life. She suffered excruciating physical pain for months after the offence, leading her to leave her employment, suspend her university studies and move out of campus accommodation. She still struggles with physical pain but states that the biggest impact has been on her mental health. She suffers from symptoms related to a diagnosis of post-traumatic stress disorder and engages in intensive weekly therapy.

37. Ms Perry also spoke of the frustration she feels about the fact that the offender was able to commit these offences given his previous offending and his status as a forensic patient. She stated that the delay in the resolution of the prosecution has taken a further toll on her mental health and physical wellbeing. The offending and the subsequent court processes have also had a significant impact on the wellbeing of her family, as described in the victim impact statement of her mother Fiona Coffey. I will return to Ms Coffey’s statement in due course.

38. Ms Vasudeva described similar impacts in her victim impact statement on both her mental and physical health following the offending. She sustained significant injuries during the attack and may have died without medical intervention. Ms Vasudeva was unable to walk properly for weeks, rendering her unable to complete the university semester and unable to earn an income. As a result, she moved back to Sydney where her family could care for her. Ms Vasudeva described the agonising physical pain she felt, as well as the mental struggle she experienced due to her lack of independence at that time. Ms Vasudeva is now riddled with anxiety and is hyperalert of her surroundings at all times, struggling to be outside unless accompanied by friends or family. She stated that, whilst she has found ways to cope, she continues to face these issues every day.

39. The mother of Ms Perry, Ms Fiona Coffey, expressed scepticism as to the degree of impairment suffered by Mr Ophel. She stated “I have attended every mention in proceedings before the Court and have followed the proceedings with due care and attention. I have had the opportunity to observe the accused and his demeanour in Court. I accept that demeanour is not the sole determinant of mental capacity, but my view remains that he appears to have insight into his actions. My view is also tempered by knowledge that this is not the first time Mr Ophel has been brought before the Courts in respect of acts of violence and aggression”.

40. Ms Coffey’s view is understandable. I acknowledge the truth of her statement that her 20-year-old daughter was at university sitting under a tree reading a book when she was brutally attacked by Mr Ophel. I also acknowledge that my finding that he did not know his conduct was wrong may intensify her grief. However, my task is to make an impartial assessment of the evidence before me. Each of the three psychiatrists who have examined Mr Ophel and provided an opinion in this case is a mental health practitioner of considerable expertise and experience. I consider it appropriate to accept their opinions on the central issue of Mr Ophel’s mental state at the time he committed these terrible offences.

41. I have also had regard in this context to a statement tendered by the defence prepared by Mr Ophel’s parents. They acknowledged the terrible impact Mr Ophel’s offences have had and will continue to have on the victims. However, they seek to provide some insight into the course of Mr Ophel’s illness.

42. The parents’ statement confirmed that Mr Ophel grew up in a loving and supportive family and was considered a lively, friendly child. He performed well academically throughout school and played representative basketball. He received excellent results at the end of year 12 but became “more withdrawn” around that time. His parents stated that, when he went to university, they “were worried that [he] seemed less happy and not very communicative, but there were no obvious signs of his developing mental illness.” Mr Ophel’s attack on fellow ANU students in 2017 was a complete shock to his family.

43. Following the 2017 incident, Mr Ophel spent time in the AMC (the Territory’s gaol) before being transferred to Dhulwa Secure Mental Health Unit after his mental health continued to significantly deteriorate. Over time, Mr Ophel’s mental state improved and he was able to receive supervised visits from his family. He acknowledged he had a mental illness and was compliant with medication, despite the difficult side-effects. After being moved to a lower-security centre, Mr Ophel was allowed supervised leave in the community with his family.

44. Although he was getting better, Mr Ophel began experiencing severe anxiety episodes at that time. This is when it was identified that Mr Ophel’s schizophrenia is treatment resistant because he metabolises his medication too quickly. That issue appeared to have been addressed over the following months by increasing his medication. However, the additional dosage left Mr Ophel heavily sedated and led to low blood pressure complications that on more than one occasion required a visit to a hospital emergency department.

45. In mid-August 2023, Mr Ophel contacted his family to say he was feeling very stressed. Three days later he committed the offences at the ANU. His sister arrived at the police station following his arrest. She is a medical practitioner. She doubted that he recognised her because he was so unwell. His parents visited him in the AMC in the weeks following his arrest. They described the first visit with him at the prison, saying that “as he swayed and talked strangely, [he] was not the Alex we knew, even the Alex with a mental illness that we had learned to know over the previous seven years”.

46. The sad fact is that Mr Ophel suffers from chronic, severe, treatment-resistant schizophrenia. When he is in the grip of that illness, he is not the Alex his parents raised. This case is tragic for all of the families involved.

47. The tragedy is heightened by the fact that Mr Ophel has learned to mask his symptoms when they return. As one of the psychiatrists found, it does not follow that he is feigning mental illness. On the contrary, the evidence establishes that he feigns wellness to preserve his access to privileges, such as unsupervised leave. Unfortunately, that capacity to mask the onset of symptoms considered in the context of his diagnosis makes him very dangerous indeed.

48. In summary, I am satisfied beyond reasonable doubt that the elements of the two offences on the indictment of attempted murder and the two transferred charges of assault are proved. I am further satisfied on the balance of probabilities that, when committing the acts required for those offences, the accused was suffering from a mental impairment that had the effect that he did not know his conduct was wrong. It follows from those findings that, in each case, I must enter a special verdict that the accused is not guilty of the offence because of mental impairment.

Orders following special verdicts

49. Section 324 of the Crimes Act provides that, where a special verdict is entered by the court, the court must order that the person be detained for the purpose of immediate review by the ACAT under s 180 of the Mental Health Act 2015 (ACT), or order that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make an appropriate order. The criteria for detention are specified in s 308 of the Crimes Act. Having regard to those criteria, I am satisfied that the offender must be detained in custody. I am mindful of the principle that a person should not be detained in a Correctional Centre unless no other reasonable option is available. That principle is reflected in s 308. For the reasons I have explained, Mr Ophel, if released, is likely to be a danger to the community. Accordingly, I am satisfied that no other reasonable option than detention is available.

50. Where a detention order is made, s 302 of the Crimes Act requires the court to indicate whether, if the accused had not been acquitted, the court would have imposed a sentence of imprisonment. It is beyond doubt that a sentence of imprisonment would have been imposed in the present case, at least for the two offences of attempted murder. Section 302(2) requires the court in that event to nominate a term (a nominated term) in respect of each offence. The nominated term is specified as “the best estimate of the sentence [the court] would have considered appropriate if the accused were a person who had been found guilty of that offence”: s 302(2).

51. In Kakar, after reviewing authorities in which various approaches had been taken, Baker J wrote at [200], “I consider that the preferable view is the accused’s mental impairment should be taken into account in the determination of the nominated term”. I respectfully agree. However, as submitted by the prosecutor, it follows in the present case that, while on the one hand the offender’s moral culpability and the weight to be given to the sentencing purposes of specific deterrence and punishment are greatly reduced, on the other hand protection of the community must be given very significant weight.

52. The offender is medicated with clozapine, which Dr O’Dea states is “considered to be the most effective antipsychotic medication”. Unfortunately, as already noted, Mr Ophel metabolises that drug too quickly, which Dr O’Dea states “appears to have limited the potential efficacy of this medication in his treatment”. Dr O’Dea concluded: Mr Ophel requires ongoing, assertive, structured and supervised psychiatric treatment and risk management of his schizophrenic illness in a secure forensic psychiatric facility at the present time and in the long-term.

53. Furthermore, as already noted, the offender is apparently able to mask his symptoms. The psychiatrists agreed on this. Dr Ellis stated: It is likely that Mr Ophel was feigning a stable mental state to staff at the mental health facility, rather than feigning mental illness. He reports deliberately withholding the reappearance of symptoms from the staff.

54. Dr Martin noted that Mr Ophel told him he had not told anyone about his thoughts around “higher beings” in the time leading up to the offences. Dr Martin stated: My clinical impression is that it is likely that Mr Ophel is a man who has the capacity to hide aspects of psychosis, and that his mental state is not always immediately available to those around him, including experienced forensic clinicians.

55. Dr Martin suggested that this was probably due to an awareness on Mr Ophel’s part that revealing underlying beliefs would lead to restrictions. The case is accordingly very much like the case of Veen (No 2) v The Queen (1988) 164 CLR 465 in that protection of the community must be the paramount consideration.

Nominated terms

56. It remains to specify nominated terms for the offences, as required under s 302 of the Crimes Act. Again, Baker J’s decision in Kakar provides incisive and comprehensive guidance on this issue. At [177] of the judgment, her Honour noted authorities in which the tasks required to be undertaken under s 302 have been criticised as being “difficult”, “unfair”, “artificial” and “lacking in logic”. Following a careful and thorough review of the legal context in which the determination of a nominated sentence is to be made, including consideration of the effect of such a sentence, her Honour concluded that those criticisms may be overstated. Her Honour explained at [188]-[189]: In other words, although a nominated term does not function as a “lower limit” on the period for which a person who has been found not guilty by reason of mental impairment may be detained, the nominated term does function as an “upper limit” on that period. A nominated term is a relevant matter for the ACAT to consider in determining whether a person should be released. However, as the nominated term is not a sentence imposed on the accused, and as the nominated term is predicated on a factual basis that does not exist (namely that the accused person was found guilty of the offence(s) charged), the ACAT should not refuse to release a person where the sole reason for refusing release is that the nominated term has not yet expired. In this way, a nominated term functions in a manner analogous to the principle of proportionality, as discussed by the High Court in Veen (No 2) v The Queen (1988) 164 CLR 465, which "precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society": Veen (No 2) at 472. Indeed, it may be observed that the text of s 302, which requires the Court to specify its "best estimate of the sentence that it would have considered appropriate if the accused were a person who had been found guilty of that offence" echoes the observation of the joint judgment in Veen (No 2) that "consideration of the danger to society cannot lead to the imposition of a more severe penalty than would have been imposed if the offender had not been suffering from a mental abnormality".

57. The maximum penalty for the offences of attempted murder is life imprisonment: s 44(9) of the Criminal Code. The prosecutor noted the remarks of Refshauge J in R v BI (No 4) [2017] ACTSC 71 at [40] that, conventionally, an attempt to commit an offence is likely to attract a lesser sentence than if the offence had been completed. In the present case, however, the attempts were extremely serious. In my assessment, they were all but as serious as the completed offence, the only difference being that, as a result of swift, excellent medical care, neither victim died.

58. The offences were premeditated. The offender told Dr O’Dea he had thought of committing the offences “probably the day beforehand”, although he only decided to take the knife while he was at his parents’ house. The offences involved vicious, unprovoked attacks in broad daylight on two women while they were sitting quietly on a university campus lawn. Mr Ophel attacked both victims from behind with a knife. The victims were absolutely terrified by the attacks. The injuries inflicted were horrific. One of the victims would have died but for medical intervention. As to the other, the evidence was that she may have died. Both victims have ongoing severe pain and disabilities as well as suffering from extreme psychological trauma. One of the victims stated that she experiences nightmares and wakes up screaming. In short, their lives have been shattered. The Court can of course express the hope that their physical and mental health will see some improvement over time, but hope is not a salve that mitigates the seriousness of the offences.

59. As explained by Baker J in Kakar, “the specification of a nominated term does not mean that the detention for the purposes of the protection of the community becomes punishment. Rather, the nominated term simply confines the extent to which the protection of the community may authorise detention following the commission of a crime”.

60. Based on the evidence available at this time, I consider it appropriate to nominate terms that authorise Mr Ophel’s indefinite detention. I have reached that conclusion for the following reasons: (a) Mr Ophel suffers from chronic, severe, treatment-resistant schizophrenia; (b) His illness is treatment-resistant because he has difficulty metabolising clozapine, which is considered to be the most effective antipsychotic medication; (c) Without effective treatment, his symptoms are at risk of returning. In the present case, that occurred within just a couple of days; (d) He has the ability and motivation to conceal his symptoms from even the most experienced mental health practitioners when those symptoms return; (e) His symptoms include believing that he is in communication with higher beings who put thoughts in his head about “making a calculation about what’s best for the universe” and the calculations are to attack or kill people; and (f) He has an ongoing history of sadistic, including sexually sadistic, urges and fantasies.

61. I emphasise that, as explained by Baker J in Kakar, a nominated term is not a sentence imposed on the accused. It is predicated on a factual basis that does not exist (that the accused person was found guilty of the offences charged). Mr Ophel has been found not guilty because of mental impairment. Accordingly, it would be wrong for the ACAT to refuse to release a person solely because the nominated term has not yet expired.

62. In my assessment, however, in the exceptional circumstances of this case, the offences committed by the offender warrant the imposition of the maximum penalty of imprisonment for life. In that way, the nominated terms specified by the Court will indefinitely authorise the ACAT to refuse to release Mr Ophel. That is because the evidence establishes that he may never be safe for release into the community. As I have indicated, the nominated penalty in this case should be imprisonment for life, not to punish the offender or for the protection of the community, but because that is the proportionate penalty warranted in the case of these offences.

63. The assault offences are relatively minor and, in my view, warrant in each case the imposition of a nominated term of one year imprisonment.

Orders

64. For those reasons, I make the following orders: (1) That, pursuant to s 321(2) of the Crimes Act 1900 (ACT), a special verdict that the accused is not guilty because of mental impairment be entered in respect of the following offences: (a) That on 18 September 2023 the accused attempted to murder Ilysha Perry; (b) That on 18 September 2023 the accused attempted to murder Isabella Vasudeva; (c) That on 18 September 2023 the accused assaulted Yuchen Yan; and (d) That on 18 September 2023 the accused assaulted Riandy Laksono. (2) Pursuant to s 324(2)(a) of the Crimes Act, that the accused be detained in custody for immediate review by the ACAT under s 180 of the Mental Health Act 2015. (3) In accordance with s 302 of the Crimes Act, I nominate the following terms in respect of the offences and order that those terms take effect on the date of expiration of the nominated term specified by Burns J, being 7 September 2029: (a) For the attempted murder of Ilysha Perry, a term of imprisonment for life. (b) For the attempted murder of Isabella Vasudeva, a term of imprisonment for life. (c) For the assault of Yuchen Yan, a term of imprisonment for one year. (d) For the assault of Riandy Laksono, a term of imprisonment for one year.

I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum. Associate: Date: