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[2014] ACTSC 374
Supreme Court of the ACT
2014-12-11
Refshauge J
Original judgment source is linked above.
CRIMINAL LAW - Defences - Not guilty by reason of mental impairment
Evidence Act 2011 (ACT), ss 184, 190
Legislation Act 2001 (ACT), ss 145(b), 190
Supreme Court Act 1933 (ACT), s 68, Pt 8
Barbaro v Quilty [1999] ACTSC 119
Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1
JCC v Eisenhower [1983] 3 All ER 230
Luu v Cook [2008] ACTSC 54; (2008) 185 A Crim R 403
McEwan v Rohan [2012] ACTSC 181; (2012) 274 FLR 103
R v Gabriel [2004] ACTSC 30; (2004) 182 FLR 102
R v Garrett (1988) 50 SASR 392
R v Huynh [2006] VSCA 213; (2006) 165 A Crim R 586
R v Kear and Johnsen (1989) 51 CCC (3d) 574
R v Luxton [1990] 2 SCR 711
R v Maio [1989] VicRp 23; [1989] VR 281
R v Shepherd [2003] NSWCCA 351
R v Smith [2012] ACTSC 146; (2012) 269 FLR 233
R v Tremblay (1997) 117 CCC (3d) 86
R v Vollmer [1996] VicRp 9; [1996] 1 VR 95
Wilson v Kuhl [1979] VicRp 34; [1979] VR 315
Explanatory Statement to the Crimes (Amendment) Ordinance (No 2) 1990 (ACT)
1. Daniel James Barker is a forty-two year old man with a long history of involvement with the mental health system.
2. As a result of incidents at his home on 19 May 2013, he was charged with a number of serious offices. On 17 April 2014, he was committed to this Court for trial on the following charges:
3. As a result of Mr Barker's involvement with the mental health system, the issue arose as to whether Mr Barker, at the time of the offences, was mentally impaired to the extent that he had a defence under s 28 of the Criminal Code 2002 (ACT) which provides:
(1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that -
(a) the person did not know the nature and quality of the conduct; or
(b) the person did not know that the conduct was wrong; or
(c) the person could not control the conduct.
(2) For subsection (1) (b), a person does not know that conduct is wrong if the person cannot reason with a moderate degree of sense and composure about whether the conduct, as seen by a reasonable person, is wrong.
(3) The question whether a person was suffering from a mental impairment is a question of fact.
(4) A person is presumed not to have been suffering from a mental impairment.
(5) The presumption is displaced only if it is proved on the balance of probabilities (by the prosecution or defence) that the person was suffering from a mental impairment.
(6) The prosecution may rely on this section only if the court gives leave.
(7) If a trier of fact is satisfied that a person is not criminally responsible for an offence only because of mental impairment, it must -
(a) for an offence dealt with before the Supreme Court - return or enter a special verdict that the person is not guilty of the offence because of mental impairment; or
(b) for any other offence - find the person not guilty of the offence because of mental impairment.
4. Mental health professionals were engaged to examine Mr Barker and also to consider his state of mental impairment.
5. The trial was listed for hearing in the Central Criminal Listing Period in December 2014. An application for vacation of the date was refused, but the Crown was permitted to issue a subpoena to support its endeavours to evaluate the mental impairment of Mr Barker.
6. Ultimately, the trial came on for hearing before me. Mr Barker had, on 26 June 2014, elected under s 68B of the Supreme Court Act 1933 (ACT) to be tried by judge alone without a jury.
7. Unlike the provision under s 316 of the Crimes Act where a person has been found unfit to plead, there are no special provisions surrounding the making of an election for trial by judge alone where a person proposes to plead not guilty on the grounds of mental impairment.
8. This is presumably because it is assumed, unless there is material to suggest otherwise, that an accused person is presumed to be fit to plead, as Gaudron J stated in Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at 28; [86].
9. The tests for unfitness to plead and mental impairment justifying a verdict of not guilty by reason of mental impairment are different. Nevertheless, the fact that when the latter is in contemplation, lawyers for the Crown and the accused will be astute to ensure that an accused who is to stand trial is not unfit to plead. If not unfit, then I see no reason why that person should not be able to make an election for trial by judge alone.
10. I have considered in some detail, in R v Smith [2012] ACTSC 146; (2012) 269 FLR 233, the procedure to be followed in such cases. I proceeded in accordance with what I there set out.
11. Thus, I arraigned Mr Barker and accepted his plea of not guilty to each of the charges as a plea of not guilty by reason of mental impairment under s 28 of the Criminal Code.
12. Mr J Hiscox, who appeared ably and helpfully for the Crown, informed me that the Crown agreed to the entering of a special verdict, namely that Mr Barker is not guilty of each of the offences by reason of mental impairment. This agreement is permitted under s 321 of the Crimes Act, which is in the following terms:
(1) This section applies if an accused pleads not guilty because of mental impairment to an indictable offence before the Supreme Court.
(2) 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.
13. The need to consider that the verdict is appropriate involves the consideration of two matters: whether the facts sustain the charges in accordance with the elements of each offence and whether the mental impairment made out in the terms required by s 28 of the Criminal Code.
14. In this case, the Crown tendered a folder of exhibits which set out the Crown case. Mr A Doig, who acted with his usual expected skill for Mr Barker, consented to the tender of the folder, presumably under ss 184 and 190 of the Evidence Act 2011 (ACT).
15. Included in this folder were statements of lay and police witnesses, reports from two psychiatrists as to the mental condition of Mr Barker. In addition, I had a number of reports tendered by Mr Doig.
16. As I explained in R v Smith at 237; [22], so far as the facts are concerned, I need to be reasonably satisfied beyond reasonable doubt that there is evidence supporting the offences with which Mr Barker has been charged. That Mr Barker consents to the tender of the Crown's exhibits and adduces no evidence nor submits that the evidence is not sufficient to sustain the charges allows me more confidently to draw the relevant conclusion.
17. From the Crown's exhibits, I am able to make the following findings of fact.
18. Mr Barker and his cousin, whom I will call Phillip Barker, lived at an address in Ngunnawal at the premises of Mr Barker's sister, Kylie Barker. Phillip Barker and Ms Barker had lived there for some time, but she moved out in about June 2012 and, in about December 2012, Mr Barker moved in.
19. In May 2013, Deep Singh Gandhi also moved into the house, following a chance meeting between the two in Civic, when Mr Gandhi offered Mr Barker a job with him installing insulation.
20. By mid-May 2013, however, the relationship between Mr Gandhi and Mr Barker was becoming strained, particularly when Mr Barker failed to get the medication that had been prescribed for his mental impairment.
21. On 19 May 2013, Mr Gandhi was at work and he received a call from Mr Barker asking to be picked up from the city. Mr Gandhi could not do that as he was working and Mr Barker, who said he had no money, became angry.
22. When Mr Gandhi arrived home, Philip Barker was there. Mr Gandhi told Phillip Barker that he intended to move out in the next few days. Mr Barker arrived a little later. He had with him a man whom neither of them knew.
23. Mr Barker became aggressive towards Mr Gandhi, complaining of his refusal to pick him up from Civic. Mr Barker then ordered Mr Gandhi to leave the house at once. Things became a little quieter and Mr Gandhi asked Mr Barker if he could stay one more night. Mr Barker, however, became angry again and told him to leave at once. He slapped Mr Gandhi across the face and Mr Gandhi immediately felt pain. Phillip Barker then tried to intervene but Mr Barker started yelling at him and became abusive.
24. Mr Gandhi prepared his belongings to leave the house, while Mr Barker continued the abuse, and did leave shortly after.
25. Mr Barker then turned his attention to Phillip Barker who tried to calm the situation down, but Mr Barker would not be calmed.
26. The other male then suggested that they should have a drink, but Mr Barker suggested aggressively that he wanted to consume some speed instead. There was none, and Mr Barker then came aggressively forward and said "I'll show you how to have a fucken drink" and grabbed a "sack" of Tawny port and drank the rest of it. The male and Mr Barker went out to the shops to get more alcohol.
27. Sometime after they returned, Mr Barker became aggressive again and told Phillip Barker that he would have to find somewhere else to live. An argument ensued and Mr Barker went into the kitchen and took a knife from the kitchen sink. It was a black handled knife with a blade about twenty-five centimetres long.
28. He continued to berate Phillip Barker who nevertheless still tried to calm things down. The other male tried to protect Phillip Barker, but Mr Barker ignored him and yelled abuse at Phillip Barker who was terrified that Mr Barker may stab him with the knife.
29. Mr Barker did threaten Phillip Barker with the knife, which he pointed at Phillip Barker's face. At one stage, he stabbed the knife into the kitchen table. His friend took the knife and put it in the sink.
30. Again, things seemed to calm down shortly, but then Mr Barker became aggressive again and later went back to the kitchen to retrieve the knife and, while it was in his hand, continued to abuse Phillip Barker.
31. Matters settled again, but an incident with a DVD player triggered more aggression from Mr Barker, who kicked the unknown male in the chest.
32. Mr Barker then poked the left shoulder of Phillip Barker with the tip of the knife; it hurt Phillip Barker, though it did not puncture his shirt. Mr Barker then stabbed Phillip Barker in the side of his left knee and it pierced the skin, causing Phillip Barker to bleed.
33. Mr Barker then terrorised Phillip Barker for the next hour or so and refused to let him leave the room, holding the knife out towards him, despite Phillip Barker's pleas to allow him to go.
34. Mr Barker said that he would be killed. Mr Barker then threatened to kill Phillip Barker, telling him that he was not a "Barker" but was a "Smith" and he was going to kill him. Phillip Barker said he was terrified and that he thought that this night was going to be his last.
35. Phillip Barker asked to be allowed to urinate and to be allowed to go to the toilet but Mr Barker told him to do it in a cup. He could not do so and Mr Barker allowed him to go to the toilet and followed him there, walking behind him holding a knife, but Phillip Barker said that he was still unable to pass urine as he was terrified, especially as he thought the night was to be his last. He ended up urinating but was still guarded by Mr Barker, who refused his pleas to be allowed to go.
36. At one stage, Mr Barker walked past Phillip Barker and slapped him on the back with the flat side of the knife and started abusing him again. Finally, Mr Barker told Phillip Barker to "[g]et the fuck out." Phillip Barker got his jacket and went to leave, but Mr Barker went to the sliding door through which he was about to exit and wedged him in, preventing him from leaving and forcing him back into the room, still holding the knife in his hand. Phillip Barker kept pleading to be allowed to leave and finally Mr Barker told him to "[g]et the fuck out and don't come back". Phillip Barker immediately left the premises.
37. The next day Phillip Barker went to hospital, where his knee was treated. It required five stitches and he was required to wait in hospital overnight.
38. The charge of unlawful confinement was introduced into this Territory by the Crimes (Amendment) Ordinance (No 2) 1990 (ACT), a new offence "to supersede the common law of false imprisonment" (Explanatory Statement).
39. It is based on s 247 of the Criminal Code 1970 (Can), which later became s 279 of the Criminal Code 1985 (Can). In R v Luxton [1990] 2 SCR 711 at 723, Lamer CJ adopted the following definition of "forcible confinement" as
physical restraint, contrary to the wishes of the person restrained, but to which the victim submits unwillingly, thereby depriving the person of his or her liberty to move from one place to another.
40. It is necessary to prove an intent to confine: R v Tremblay (1997) 117 CCC (3d) 86. The Crown does not need to prove that the accused knew that the confinement was unlawful: R v Kear and Johnsen (1989) 51 CCC (3d) 574. The restraint must obviously be without lawful authority.
41. I do not consider that authorities on the superseded offence of false imprisonment are irrelevant to a proper understanding of the offence. Indeed, the words "confine" or "confinement" are often used to describe the offence of false imprisonment as is clear from the extensive analysis of the offence by Ormiston J in R v Vollmer [1996] VicRp 9; [1996] 1 VR 95 at 175-185.
42. Thus, as held in R v Huynh [2006] VSCA 213; (2006) 165 A Crim R 586 at 601; [85], it is not inconsistent with the offence that the victim voluntarily came into the place where he or she was subsequently confined.
43. I do not consider that the physical restraint must be direct, such as by holding on to the victim or tying him or her up. See R v Garrett (1988) 50 SASR 392 at 405.
44. In the absence of full argument, I shall assume that these matters are relevant to the offence under s 34 of the Crimes Act.
46. I am satisfied beyond reasonable doubt from these findings that the threat by Mr Barker made by his use of the knife accompanying his refusal to let Phillip Barker leave the room where he was constituted the offence of unlawful confinement, subject to the question of the fault element of the offence.
47. The elements of the offence of intentionally wounding are well-known, that is to say the accused must wound the victim and intend to do so. Wounding requires the interior layer of the skin (the dermis) to be broken or cut, not just the outer layer of the skin (the epidermis). See R v Smith [1837] EngR 1107; (1837) 8 Car & P 173; 173 ER 448. A split lip is sufficient: R v Shepherd [2003] NSWCCA 351. A scratch is insufficient: JCC v Eisenhower [1983] 3 All ER 230. Intention is, of course, defined in s 18 of the Criminal Code; Mr Barker must mean to inflict the wound.
49. From these findings, I am satisfied beyond reasonable doubt that Mr Barker intentionally wounded Phillip Barker subject to the fault element of the offence.
50. The final charge was one of threatening to kill Phillip Barker. The elements of this offence are somewhat more numerous. The elements are
(a) that Mr Barker made a threat to kill Phillip Barker;
(b) that Mr Barker must either (i) have intended Phillip Barker to fear; or
(ii) been reckless as to whether Phillip Barker would fear the threat would be carried out;
(c) whether the threat was made without lawful excuse; and
(d) the threat must have been made in circumstances where a reasonable person would have feared that the threat would be carried out.
51. See Doyle v Ranse (1991) 103 FLR 419 and R v Leece (1995) 125 ACTR 1.
52. The reasonable person is, it was held in Barbaro v Quilty [1999] ACTSC 119, is a reasonable person in the position of the person to whom the threat was made and who is assumed to know of the prior proceedings and relationship between the accused and the person to whom the threat was made. See also Luu v Cook [2008] ACTSC 54; (2008) 185 A Crim R 403. As Burns J held in McEwan v Rohan [2012] ACTSC 181; (2012) 274 FLR 103, the belief of the person to whom the threat is made is not required to be proved as part of the offence.
53. From the Crown's exhibits, I have made findings about the facts which I have set out above at [45].
54. I am satisfied beyond reasonable doubt from those findings that Mr Barker made the threat to kill Phillip Barker in circumstances which constituted this offence, subject to the fault element of the offence.
55. I am, accordingly, satisfied that, had there been no issue as to the fault element of the offences, then Mr Barker would have been found guilty of the offences in the sense that the physical acts would have been proved beyond reasonable doubt.
56. The Crown exhibits include a significant amount of psychiatric and mental health material from which I am being asked to make a finding as to whether Mr Barker has a mental impairment sufficient to amount to a defence under s 28 of the Criminal Code. In addition, the lawyers for Mr Barker provided me with two further reports. I also had a number of Canberra Hospital Discharge Summaries and various submissions to the ACT Civil and Administrative Tribunal (the ACAT) which had to consider from time to time whether to make or continue a Psychiatric Treatment Order under the Mental Health (Treatment and Care) Act 1994 (ACT).
57. I do not need to set out or even summarise all the material. I make, however, the following findings.
58. Mr Barker is a forty-two year old indigenous male. He has been involved with mental health services in this Territory since 2005. The diagnoses have all been of a psychiatric illness but it has varied between schizophrenia and a schizo-affective disorder with a comorbid substance abuse disorder and possible cognitive difficulties. He has been subject to a Psychiatric Treatment Order since 16 October 2008, other than for a short period of about five months in mid to late 2011.
59. He has been hospitalised from time to time since 2005, including time in the Brian Hennessy Rehabilitation Centre. I do not know whether I have a complete list of his hospitalisation periods but, on the material I had, these periods became more frequent recently.
60. In 2005, when Mr Barker was serving a three year custodial sentence for participating in a riot, he was assessed by Dr Samson Roberts, a Consultant Forensic Psychiatrist for New South Wales Justice Health.
61. He noted that Mr Barker had spent much of his adult life in custody. He also noted a substance misuse history dating since childhood and two psychiatric admissions. He reported that Mr Barker described symptomology consistent with a chronic psychiatric illness, namely schizophrenia, including delusions and hallucinations and evident thoughts disorder at interview. Dr Robertson raised the possibility of alcohol related organic brain damage.
62. In 2008, Dr Graham George, Consultant Psychiatrist for Forensic Services Mental Health ACT reported "an established diagnosis of schizophrenia and also, alcohol dependence in association with substance abuse, specifically amphetamines and cannabis abuse".
63. In 2010, he was assessed by Psychologist, Ms Gillian Sharp, as fit to plead, despite the diagnosis of schizophrenia, alcohol dependence and amphetamine dependence. Dr George made a further assessment that Mr Barker was fit to plead in January 2012.
64. After his arrest for these offences, Mr Barker was referred by the Magistrates Court for an assessment under s 309 of the Crimes Act and Dr G Gunaratne, Psychiatrist of the Adult Mental Health Unit of The Canberra Hospital, reported a diagnosis of "schizoaffective disorder (differential diagnosis of paranoid schizophrenia)". He was released as he was then clinically stable and because he did not need inpatient care in an acute mental health in-patient unit at that stage.
65. In March 2014, Dr Anthony Barker, Consultant Psychiatrist, examined Mr Barker for the court proceedings in the Magistrates Court prior to committal to this Court on the charges he is now facing.
66. Dr Barker set out, in helpful detail, Mr Barker's background, the account of his offending given by Mr Barker, his psychiatric history and his family, drug and alcohol and forensic history. He conducted a mental state examination and concluded that he could diagnose him as suffering from schizophrenia and a substance abuse disorder (alcohol, amphetamines, cannabis, heroin). He did refer to a possible diagnosis of schizoaffective disorder. He also concluded that, at the time of the offences
Mr Barker was suffering from a deterioration in his mental state precipitated by non-compliance with his prescribed medication and significant substance use. In my opinion, it is not possible to quantify with any reasonable degree of certainty the relative contributions of Mr Barker's non-adherence to his prescribed medication, and substance use, particularly when one considers that Mr Barker generally experiences significant psychotic symptoms as a consequence of his mental illness (i.e., schizophrenia) even when he is receiving optimal treatment with a depot antipsychotic and is abstinent from substance use. I consider that Mr Barker was aware of the nature and quality of his conduct at the time of the alleged offences, and that he was able to control his conduct. Whilst Mr Barker indicated that he believed that his conduct was wrong at the material time, his explanations of why he engaged in the conduct were illogical and appeared to be based on delusional beliefs. I consider that at the time of the alleged offences, Mr Barker was not able to reason with a moderate degree of sense and composure about whether a reasonable person would have seen that his conduct was wrong.
67. It appears that Mr Barker was, at the time of the offences, subject to a Psychiatric Treatment Order, which required him to be subject to regular intramuscular antipsychotic medication. He was not always compliant and, as at 19 May 2013, was a week overdue for the most recent injection.
68. The Crown sought a further opinion. It was for this reason that the Crown sought the vacation of the trial date referred to above (at [17]).
69. Ultimately, however, a report was received from Dr Stephen Allnutt, Senior Consultant Forensic Psychiatrist. Dr Allnutt was unable to examine Mr Barker personally, which he acknowledged was a significant qualification on his assessment. He did, however, review the various psychiatric reports as well as the statements which constituted the Crown exhibits, all of which he considered in detail.
70. He considered that it was reasonable from a clinical perspective that Mr Barker would manifest psychotic symptoms within a week after he missed his last injection of antipsychotic medication. He also considered that his alcohol and cannabis consumption would have aggravated his mental illness symptoms and would disinhibit him.
71. He listed a number of matters that raised concerns about the veracity of the account of his subjective experiences that Mr Barker gave to Dr Barker, thus raising concern about the genuine nature of these symptoms. On the other hand, he recognised the force of his pre-existing diagnosable chronic psychotic disorder and the effect of the discontinued medication, together with his ongoing drug use, the observations by others of him becoming unwell, his disorganised comments to police and in his interview, his admission to hospital and other matters which argue in favour of a relapse of his mental illness.
72. In summary, and qualified by his inability to examine Mr Barker, Dr Allnutt concluded that
there are insufficient clinical grounds to disagree with Dr Barker's opinion on the presence of a mental impairment at the material time of the alleged offending.
73. When asked to address the issue of the defence under s 28 of the Criminal Code, Dr Allnutt concluded
In my view if it is accepted that he has a mental impairment as described to Dr Barker, then he has mental impairment available to him - predominantly because he was unable to reason about the wrongfulness of his actions with a moderate degree of sense and composure.
74. On the basis of this evidence, I am satisfied that the verdict of not guilty of the three offences by reason of mental impairment is an appropriate verdict.
75. I will, accordingly, enter verdicts in respect of each of the offences that Mr Barker is not guilty by reason of mental impairment.
76. Part 8 of the Supreme Court Act 1933 (ACT), which commenced on 2 April 2014, provides a most useful process to deal with the situation where one incident results in the proper laying of multiple charges, some of which are indictable and some of which are summary.
77. That is relevant in this case, for there were clearly a number of assaults of Phillip Barker and of Mr Gandhi, but common assault, an offence under s 26 of the Crimes Act punishable by a maximum penalty of two years imprisonment, is a summary offence (s 190 of the Legislation Act 2001 (ACT)) and so, despite being inextricably linked with the primary charges I am considering, could not, without Pt 8, be dealt with by me at the same time as I am dealing with the other, indictable offences.
79. Accordingly, seven offences which were before the Magistrates Court when Mr Barker was committed for trial are now before me under s 68D of the Supreme Court Act. These offences include five counts of common assault, one count of assault occasioning actual bodily harm and one count of possessing an offensive weapon with intent to use it to commit an act of violence or threatened violence.
80. The charge of assault occasioning actual bodily harm was, however, a "back-up" offence (s 68CA of the Supreme Court Act) to the charge of intentional wounding. Since I have dealt with that charge, the Crown properly sought to withdraw it and I will dismiss it.
81. The charges of common assault are simple offences which require proof of the commission of an intentional or reckless act which causes another person to apprehend immediate and unlawful violence and, if force is actually applied, it must be unlawfully applied and without the consent of the victim. See R v Gabriel [2004] ACTSC 30; (2004) 182 FLR 102 at 117-8; [130].
82. There were five charges. The first was concerned with the slap Mr Barker gave to Mr Gandhi, set out above (at [35]). From that finding, I am satisfied, subject to the fault element, that the offence has been made out beyond reasonable doubt.
83. The other four charges were assaults of Phillip Barker. It was not easy to identify the incidents, though this is necessary.
84. The first was when Mr Barker pointed the knife at Phillip Barker's face, set out above (at [40]). The second was when he pushed the knife into Phillip Barker's shoulder, as set out above at [43]. The next was when he slapped Phillip Barker on the back with the knife, also set out above at [47]. The final was when he wedged Phillip Barker against the door when Phillip Barker tried to get out, set out above at [47].
85. These findings, in my view do show, beyond reasonable doubt, that, subject to the relevant fault element, Mr Barker did commit the relevant assaults.
86. The final charges were that Mr Barker possessed an offensive weapon, namely the knife, with intent to use it to commit an act of violence or threatened violence.
87. Possession simply means intentionally having physical custody or control of the object said to be possessed as approved in R v Maio [1989] VicRp 23; [1989] VR 281 at 285. An offensive weapon is an object which is or may be used to inflict or threaten injury if carried with that intention. See Wilson v Kuhl [1979] VicRp 34; [1979] VR 315. I have considered "actual or threatened violence" in R v Smith at 241-4; [45]-[59]. Clearly the use of the knife for stabbing someone or in connection with a threat to kill is actually a threatened violence.
89. So far as the question of mental impairment is concerned, I am satisfied that the incidents were entirely contemporaneous with the incidents that led to the charges which I considered earlier and on which I found Mr Barker not guilty by reason of mental impairment. There is, accordingly, no reason in my view that for these six remaining transferred charges I should not also find Mr Barker not guilty by reason of mental impairment and I will do so.
90. All the offences of which I have found Mr Barker not guilty by reason of mental impairment, a special verdict, are serious offences within the meaning of s 300 of the Crimes Act. The only offence for which that is perhaps not obvious is the offence of unlawful confinement, but it seems to me that the issue of restraint which is a necessary component of the offence is a matter of actual or threatened violence.
91. As a result of my finding, I must proceed in accordance with s 324 of the Crimes Act which is in the following terms
If an accused is charged with a serious offence and a special verdict of not guilty because of mental impairment is returned or entered, the Supreme Court shall order that the accused be detained in custody until the ACAT orders otherwise unless, in consideration of the criteria for detention in section 308, it is satisfied that it is more appropriate to order that the accused submit to the jurisdiction of the ACAT to enable the ACAT to make a mental health order.
If the Supreme Court is satisfied under subsection (1), it shall make an order accordingly.
92. In acting under that section, however, I am also subject to the requirement of ss 302 and 303 of the Crimes Act which is as follows
302 Limitation on orders and detention - acquittals
(1) If, under section 323 or 324, the Supreme Court makes an order that the accused be detained in custody until the ACAT orders otherwise, the court shall indicate whether, if the accused had not been acquitted, it would have imposed a sentence of imprisonment.
(2) If, under subsection (1), the Supreme Court indicates that it would have imposed a sentence of imprisonment, it shall nominate a term in respect of that offence, that is the best estimate of the sentence it would have considered appropriate if the accused were a person who had been found guilty of that offence.
303 Limitation on Supreme Court orders
The Supreme Court shall not order that an accused be detained for a period greater than the term nominated by it under section 301 or 302, as the case may be.
93. Further, the criteria for deciding whether I should detain Mr Barker are set out in s 308 of the Crimes Act which is as follows:
For this part, other than division 13.5 (except section 335), in making a decision which could include an order for detention, the Supreme Court or Magistrates Court shall consider the following criteria:
(a) the nature and extent of the accused's mental impairment, including the effect it is likely to have on the person's behaviour in the future;
(b) whether or not, if released -
(i) the accused's health and safety is likely to be substantially impaired; or
(ii) the accused is likely to be a danger to the community;
(c) the nature and circumstances of the offence with which the accused is charged;
(d) the principle that a person should not be detained in a correctional centre unless no other reasonable option is available;
(e) any recommendation made by the ACAT about how the accused should be dealt with.
94. Curiously, if the charges were non-serious charges, then s 323 of the Crimes Act would require me to seek a recommendation of the ACAT, whereas there is no such obligation for serious offences. That may, however, be explicable on the basis that there is, with a non-serious offence, a greater likelihood that the offender will not be held in detention and the implications of this may need to be more clearly advised to the court. If, under s 324 of the Crimes Act, a court were to be considering releasing an offender of not detaining them, it may well be appropriate to seek the recommendations of the ACAT. See R v Steurer (2009) 3 ACTLR 272 at 291; [76].
95. In my view, it is not necessarily required that such a recommendation be sought. I have not done so and neither party submitted that I should do so.
96. I have carefully considered the options available to me. In my view, the history of Mr Barker both criminal and mental requires that I detain Mr Barker until the ACAT otherwise orders.
97. He has a history of noncompliance with psychiatric treatment orders and requiring admission to psychiatric institutions from time to time. He clearly is at some risk in the community and indeed may put other members of the community at risk when his mental impairment is not under control by the medication he has been prescribed, which has not been always possible even under the psychiatric treatment order.
98. He also has a significant criminal history, including over eighty offences, for a significant number of which he has been sentenced to a term of imprisonment, though, for others they were dismissed under s 334 of the Crimes Act. A large number I accept have been traffic offences, but a large number also are offences of dishonesty and violence.
99. These matters seem to me to justify detaining Mr Barker in custody until the ACAT otherwise orders. This requires me to comply with s 302 of the Crimes Act.
100. While set out in terms of "the sentence appropriate if the accused were a person who had been found guilty of that offence", it seems to me that I do not have to undertake a complete sentencing exercise which would be rather hypothetical. Having regard to the purpose of the provision and relying on interpretive provisions, such as s 145(b) of the Legislation Act, I consider that I can indicate the total sentence that would be imposed rather than the artificial way of purporting to sentence Mr Barker for each individual offence taking into account the particular matters of the offence, pleas of guilty, matters of multiple offending, concurrency, cumulation and the like.
101. I have regard, as required by s 308, to the nature and extent of Mr Barker's mental impairment, including the effect it is likely to have on his behaviour in the future. It seems to me that he has a serious and entrenched mental impairment and that does have a significant effect on his behaviour, as I have indicated above, particularly when he is not medicated and under treatment.
102. I have regard to the likely risk to Mr Barker's health and safety were he to be released, and, in my view, there is some risk to his health as he tends to decompensate when he is in the community and is not being treated with his medication, and there are risks that his medication will not regularly be given to him in the community.
103. I am also aware that he is likely to be a danger in the community, as his criminal history clearly shows, were he to be released. That does not mean of course, and I am not suggesting that he should never be released, indeed under appropriate care he has seemed from time to time to be able to operate successfully within the community.
104. I have described the nature and circumstances of the offences of which Mr Barker has been charged and of which I have found him not guilty by reason of mental impairment. I do not need to add to that description other than to say that they are serious charges, they are charges which, even having regard to Mr Barker's personal circumstances and the challenges that he faces, would be expected to be, and would lead, to a term of actual custodial imprisonment.
105. I have regard to the principle that a person should not be detained in a correctional centre unless there is no reasonable option available. While the option of Brian Hennessy Rehabilitation Centre may be one that in the future is available to Mr Barker, and if it is available would obviously be preferable in the circumstances to detention in a correctional centre, that is not available to me at this time and I do not think that this is a basis on which I should decline to detain him further.
106. So far as a recommendation from the ACAT is concerned, I have no such recommendation and therefore the matter is not one that I need to take into account. Having regard to all of these matters, I consider that had I been sentencing Mr Barker for the offences for which I have found him not guilty by reason of mental impairment I would have imposed a total period of 18 months' imprisonment for the offending behaviour as adequate to the criminality.
I certify that the preceding one hundred and seven [107] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
R
Barker [2014] ACTSC 374
(1991) 103 FLR 419
(2000) 203 CLR 1
(2012) 274 FLR 103
(2004) 182 FLR 102
(1988) 50 SASR 392
(2012) 269 FLR 233
(2009) 3 ACTLR 272