R v Dunn [2011] ACTSC 84

5. Mr Dunn has engaged in the conduct required for count 2 on the indictment in proceedings SCC 257/10.

6. Mr Dunn has engaged in the conduct required for count 1 on the indictment in proceedings SCC 154/11.

7. Mr Dunn has engaged in the conduct required for count 2 on the indictment in proceedings SCC 154/11.

8. Mr Dunn be detained in custody until the ACT Civil and Administrative Tribunal (ACAT) orders otherwise, but in any event, for not more than five years from 29 January 2010.

9. It be indicated that, were the proceedings normal criminal proceedings against a person fit to be tried and convicted of these offences, the sentences that would have been imposed would be:

(a) for each charge of burglary, a sentence of two years' imprisonment;

(b) for each charge of theft, a sentence of twelve months' imprisonment;

(c) for the charge of driving a motor vehicle without consent from the owner, a sentence of twelve months' imprisonment;

made partly cumulative and partly concurrent to lead to a total sentence of five years imprisonment from 29 January 2010 when Mr Dunn was first taken into custody.

1. The accused, Malcolm Dunn, has been charged with a series of offences committed over a period of some months. The charges are as follows:

(a) dishonestly, without consent, driving a motor vehicle on 10 November 2009;

(b) burglary of a building in Turner on 26 December 2009;

(d) burglary of a building in Barton on 18 December 2009;

(f) burglary of a building in Braddon on 18 July 2010;

2. He was, on 29 April 2009, committed to this court for trial on charges (a), (b) and (c). On 6 July 2010 separate indictments were filed for charges (a) (Court No SCC 176A of 2010), and for charges (b) and (c) (Court No SCC 176 of 2010), respectively.

3. He was, on 15 July 2010, committed to this court for trial on charges (d) and (e) (Court No SCC 257 of 2010). Before an indictment and case statement were filed in respect of these matters, a pre-arraignment conference was conducted on 8 September 2010, at which Mr Dunn's counsel advised that the question arose as to the fitness of Mr Dunn to plead to any indictment.

4. In order to progress that matter, the court ordered, on 11 November 2010, that a psychiatrist examine and report, presumably so that the court could be satisfied that there was a real and substantial question as to Mr Dunn's fitness to plead and then order an investigation under s 315 of the Crimes Act 1900 (ACT) (Crimes Act).

5. On 26 November 2010, the court being satisfied of that there was a real and substantial question as to Mr Dunn's fitness to plead, then reserved that question for investigation under Div 13.2 of the Crimes Act. That investigation was conducted on 4 April 2011 and the court found that Mr Dunn was unfit to plead and that he was unlikely to become fit to plead within twelve months.

6. While it is not customary for parties to do so, it may be appropriate for a court making such a finding to address, at that stage, issues of the mode of trial. Section 316 of the Crimes Act sets out the provisions about how a trial is to be conducted. As required by s 316(1), it is to be conducted, "as nearly as possible as if it were an ordinary criminal proceeding". Subsection 316(2) deals with the mode of trial and provides:

(2) A special hearing shall be a trial by jury -

(a) unless -

(i) the Supreme Court is satisfied that the accused is capable of making an election to have a special hearing to be a trial by a single judge without a jury before the court first fixes a date for the hearing; and

(ii) the accused makes the election before that date; or

(b) unless -

(i) the Supreme Court is satisfied that the accused is incapable of making the election mentioned in paragraph (a)(i); and

(ii) before the court first fixes a date for the hearing, any guardian of the accused notifies the court that, in his or her opinion, it is in the best interests of the accused for the special hearing to be a trial by a single judge without a jury.

7. If the accused is incapable of making an election but there is no guardian, then ss 316(3) provides for that as follows:

(3) The Supreme Court must direct the ACAT to appoint a guardian with power to make an election under subsection (2)(a)(i) if satisfied that -

(a) the accused is incapable of making the election; and

(b) a guardian who has power to make an election of that kind has not been appointed by the ACAT under the Guardianship and Management of Property Act 1991.

8. Once an election has been made or the guardian has notified the court as required, subsection 316(4) then provides:

(4) If -

(a) the accused makes an election under subsection (2)(a)(ii); or

(b) a guardian notifies the Supreme Court under subsection (2)(b)(ii);

the special hearing shall be by single judge without a jury.

9. In this case, the guardian signed a form in respect of charges (a) to (c) in the terms of the prescribed form for election by an accused for trial by judge alone. This is not the correct way to proceed. Such a form is not appropriate because the legislation does not give the guardian power of election, though the notification of the guardian's opinion has the same effect. After raising this matter and before a date was set for the special hearing, I received a letter from Mr Dunn's guardian expressing the opinion that it was in Mr Dunn's best interests for the hearing to be by a judge alone.

10. It is important, however, that the record is clear for there are many reasons why an election for trial by judge alone may be made. It may be that it is cheaper or quicker to have such a trial. These are considerations an accused may take into account, but the statute requires that the guardian forms a particular opinion, namely that it is in the best interests of the accused that the special hearing be a trial by a single judge without a jury. Other matters may or may not be relevant to that opinion.

11. On 21 April 2011, Mr Dunn was committed to this court on charges (f) and (g) (Court No SCC 154 of 2011). With the consent of the parties, I had access to the material that supported the court's opinion in relation to the other charges that Mr Dunn was unfit to plead. Having considered that material, I formed the opinion that Mr Dunn was unfit to plead in respect of charges (f) and (g) that he was unlikely to become fit to plead within twelve months and that he was not capable of making an election for a special hearing by a judge alone.

12. Mr Dunn was found by Dr Graham George to suffer from chronic paranoid schizophrenia. This diagnosis was the same as that made by Dr Daniel Bonner, who was Mr Dunn's treating psychiatrist. Dr Bonner, in a report dated 9 February 2010, noted that Mr Dunn:

...experiences both positive and negative symptoms of schizophrenia every day that include auditory hallucinations of command nature, paranoid delusions, poor insight and significant self-neglect. Mr Dunn's medications are only partially effective and, while he has been in custody, he has remained in significant chronic distress and anxiety. He is not acutely unwell, but rather suffering from chronic symptoms.

13. Dr George's report of 18 February 2010, found Mr Dunn unfit to plead on most of the criteria set out in s 311 of the Crimes Act. He was of the opinion that he would remain so for the next twelve months.

14. Given that Dr George found that Mr Dunn's understanding of charges such as burglary and theft was at least impaired, it seems to me that there is no unfairness or inappropriateness of using that material in relation to these further charges which were of the same kind. It is in that context that I found Mr Dunn unfit to plead in respect of charges (f) and (g). As a result, a special hearing was conducted. This has to be conducted by virtue of s 316(1) of the Crimes Act, "as nearly as possible as if it were an ordinary criminal proceeding". Because of the notification of the guardian's opinion, which I received prior to setting a date for the special hearing, it is a trial by judge alone without a jury.

15. Of course, all that has to be determined under s 317 of the Crimes Act is whether I am satisfied, "beyond reasonable doubt, that the accused engaged in the conduct required for the offence charged." Applying this, I then approached the task in the following way: sitting as a judge alone I may make any finding that could have been made by a jury as to whether Mr Dunn engaged in the relevant conduct and any such finding has the same effect as the verdict of the jury; I am required to include in my judgment the principles of law that I apply and the findings of fact upon which I rely. Where a warning would have been required to be given to a jury were the proceedings a trial before a judge and jury, I am to take the warning into account when considering my verdict.

16. I give myself the general directions that would ordinarily be given to a jury before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence.

17. The burden of proving Mr Dunn engaged in the relevant conduct lies wholly on the prosecution and no burden at all lies upon him. If Mr Dunn makes or points to an explanation which is consistent with innocence, he does not have to prove it. It is for the prosecution to disprove it or to show that it is irrelevant; otherwise the prosecution will not have proved its case. Mr Dunn is presumed not to have engaged in the relevant conduct until at the conclusion of the hearing the evidence establishes that fact. Both the onus and the standard of proof lie upon the prosecution and the prosecution must prove each and every element of the relevant conduct and whether Mr Dunn engaged in it beyond reasonable doubt.

18. Where in this judgment I make a finding of a particular fact or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt. It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a finding that Mr Dunn engaged in the relevant conduct can be made. If I am satisfied that there may be an explanation consistent with Mr Dunn not having engaged in the relevant conduct in respect of the charge on the indictment or I am unsure where the truth lies then in those circumstances I must find that Mr Dunn is not guilty of the offence charged to the level of satisfaction required by the law and must acquit him in respect of that charge.

19. The prosecution sought to prove its case by the tender of certain documents. Mr Livingston, who appeared for Mr Dunn, consented to the tender of those documents. He also told me that Mr Dunn had been advised of the course of the proceedings and the likely outcome. I am satisfied that the provisions of s 184, or alternatively s 190, of the Evidence Act 1995 (Cth) (the Evidence Act), had been met, having regard to my findings on the issue, particularly of the fitness to plead of Mr Dunn.

20. Although Mr Dunn was charged with six offences, they encompass only three crimes, namely burglary, theft and dishonestly driving a motor vehicle without the owner's consent.

21. Section 317 of the Crimes Act provides that the prosecution must prove beyond reasonable doubt that the accused engaged in the conduct required for the offence charged. This I take to mean the physical acts which constitute the offence, though of course they would have to be done voluntarily and not, for instance, by accident or as a result of muscle spasm.

22. Although on a slightly differently formulated legislation, the answer of the Court of Appeal to a question posed in R v Ardler [2004] ACTCA 4; (2004) 144 A Crim R 552, is helpful. There the court said (at [90]):

When a special hearing is embarked upon under Div 13.2 of the Crimes Act 1900, the prosecution is required to prove beyond reasonable doubt the physical acts of offence charged which would constitute an offence if done intentionally and voluntarily and with any particular intent or knowledge specified as an element of the offence, but is not required to negative lack of mental capacity to act intentionally or voluntarily or to have the specific knowledge or intention specified as an element of the offence, unless there is objective evidence which raises such an issue, including mistake, accident, lack of any specific intent or knowledge of the particularity necessary to constitute the offence that is an element of the offence or self-defence, in which case the prosecution must negative that issue beyond reasonable doubt. Pleas of mental impairment, provocation or diminished responsibility are not able to be relied upon at a Special Hearing.

23. Burglary is an offence under s 311 of the Criminal Code 2002 (ACT) (the Criminal Code). The elements of the offence, as far as this case is concerned, are that the person:

(c) with intent to commit theft of any property in the building.

24. Theft is an offence under s 308 of the Criminal Code. The elements of the offence are that the person must:

(d) with the intention of permanently depriving the other person of the property.

It seems to me that (b), (c) and (d) are the conduct required for the offence.

25. Dishonestly driving a motor vehicle without the owner's consent is an offence under s 318(2) of the Criminal Code. The elements of the offence in the circumstances of this case are that the person must:

(d) and which motor vehicle was dishonestly taken by someone without the consent of the person to whom it belongs.

It seems to me (b), (c) and (d) are the conduct required for the offence.

26. Mr Hiscox, who appeared for the prosecution, tendered certain statements from various witnesses. I read those carefully, and, as a result, make the following findings of fact beyond reasonable doubt.

27. On 26 December 2009, Mr Dunn entered certain premises in Turner which were not owned by him and for which entry the owner had not given him permission. Mr Dunn was recorded on CCTV at the premises attempting to enter, showing him wearing a grey-looking long sleeved top with the word "Everlast" on it. I saw the CCTV. Without the owner's consent, he took from the premises a beer stein with Australian coins and casino playing chips in it, a pint glass with Australian coins in it, two men's gold bracelets, a man's gold necklace with a soccer ball pendant, a man's gold ring with a diamond, and a man's gold brooch in the shape of a capital letter "K" encrusted with diamonds.

28. Police attended Mr Dunn's home in Turner and, under a search warrant, entered and searched the premises. They located and seized a number of Canberra casino chips and a dark grey long sleeved men's top with the word "Everlast" on it. He was then arrested for burglary and theft.

29. I am satisfied, beyond reasonable doubt, from this material that Mr Dunn engaged in the conduct required for offences (b) and (c) above.

30. On 4 October 2009, the owner of a BMW sedan parked and secured his vehicle at his home in Kingston. The next day he saw that his car was no longer where he had left it. He reported it to police as stolen.

31. On 10 November 2009, police saw the stolen BMW sedan being driven in Forbes Street, Turner. They followed the vehicle, which entered the car park of some flats. Mr Dunn stepped out of the driver's seat and when he saw the police he attempted to move away. He was then spoken to by police. He admitted he did not have a licence. Mr Dunn was told the vehicle was stolen and he gave the name of a person from whom he said he was given it. He was then arrested for driving a stolen vehicle. Some property that had been stolen from a unit in Kingston was found in the vehicle.

32. His passenger was also spoken to by police. He said that Mr Dunn had given him a lift in the vehicle as he was walking out from O'Connor shops.

33. I am satisfied, beyond reasonable doubt, from this material, that Mr Dunn engaged in the conduct required for offence (a) above.

34. On 18 December 2009, Mr Dunn was seen by a resident of Barton, crouched down on the terrace of an apartment, behind a hedge. He then walked out of the apartment carrying a large television and put it on the ground. The resident rang the police. He then returned to the apartment and walked out carrying a silver laptop computer. He handed it to another man who covered it with his shirt and returned to a vehicle that was parked in the street. The man then drove off. Mr Dunn then took the television to the bottom of the steps of the apartment.

35. Police intercepted the vehicle and Mr Dunn then walked casually into Brisbane Avenue. Police spoke to the driver, who confirmed that he had been with Mr Dunn a short time earlier. Police then stopped Mr Dunn and spoke to him. He admitted knowing the driver, but said he had been walking home to Civic from Manuka after lunch with a friend. He was arrested for burglary and theft.

36. A buccal swab was taken from Mr Dunn and the DNA analysis prepared from it was compared with blood found on a curtain in the apartment. The comparison provided extremely strong support for the proposition that Mr Dunn's DNA was identical with that found in the apartment.

37. From this material, I am satisfied beyond reasonable doubt that Mr Dunn engaged in the conduct required for offences (d) and (e) above.

38. On 18 July 2010, Mr Dunn entered a house in Braddon through a smashed back door. His entry activated a motion detecting video camera set up in the lounge of the house. The owner of the house, who was absent at the time, was alerted through the system that there was an intruder and asked his son to ring the police, which he did. He then returned home and found that a television, Playstation II games and Wii console had been taken. The cameras had captured Mr Dunn's entry and him in the act of taking the missing items. Police recognised Mr Dunn from the visual images taken by the camera.

39. Police later approached Mr Dunn. He was arrested. He was asked, "Malcolm, what did you do with the TV?" And he replied, "I've sold it already." From this material, I am satisfied beyond reasonable doubt that Mr Dunn engaged in the conduct required for offences (f) and (g) above.

40. Having made the findings I have, I am required to deal with Mr Dunn under s 318 of the Crimes Act. This section applies to what is described as "Non-serious offences". Despite the fact that burglary attracts a maximum penalty of 1400 penalty units (a fine of $154,000), or fourteen years' imprisonment or both, and theft, a maximum of 1000 penalty units (a fine of $110,000) or both and the dishonesty driving offence a maximum penalty of 500 penalty units (a fine of $55,000) or imprisonment for five years or both, all are, in the terms of Div 13.2 of the Crimes Act, non-serious offences. Serious offences involve "actual or threatened violence" punishable by imprisonment for longer than twelve months or are offences against ss 27(3) or (4) of the Crimes Act. None of these offences fall into that category.

41. As a result, I must act under s 318(2) of the Crimes Act, which provides:

(2) If this section applies, the Supreme Court may make the orders that it considers appropriate, including the following:

(a) that the accused be detained in custody until the ACAT orders otherwise;

(b) that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order.

42. It appears that I can make a range of orders, but it is entirely unclear what kind of orders, other than those specified in that subsection, are available. Certainly, orders under the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), are unavailable, for those orders apply only when a person is convicted or found guilty of an offence. (See, for example: ss 10(1), 13(1), 14(1), 16(1), 17(1), 19(1) and 27(1)(a) of the Sentencing Act).

43. In this case, I was provided with a criminal history of Mr Dunn. It shows a history of offences dating back at least to 1995, including many dishonesty offences, burglary and break enter and steal, theft, dishonest use of a motor vehicle, receiving goods in custody and possession of stolen property. It also shows a long history of drug use and a number of traffic offences. In the circumstances, there are real questions as to whether it is appropriate for Mr Dunn to be at large in the community without appropriate support and treatment.

44. Mr Dunn was born in Queanbeyan. He has two brothers and three sisters, but appears to have no present contact with them. He has no contact with his mother and knows nothing of his father. He is presently single and has no children.

45. He was educated to year 7 but struggled with reading and writing on leaving school. Since then, he has taught himself to read. He has, however, never had any ongoing employment and has not completed any vocational training.

46. He has a long history of breaches of the law, as noted above (at [43]). This has included periods of imprisonment.

47. While his physical health is reasonable, he has had a long history of mental illness. I have noted the diagnosis above (at [12]). He has had at least one admission into the psychiatric unit of the Canberra Hospital.

48. Mr Dunn started abusing drugs at age 14 and is still using amphetamines. He used heroin at 16, but it is not his main drug of choice. He has participated in a methadone program.

49. The offences were relatively serious examples of the crimes committed. His history shows a continuing disregard of the law. The imprisonment that has been imposed has not previously seemed to deter him.

50. In the circumstances, I believe the only proper order is that he be detained in custody until the ACAT orders otherwise.

51. As I propose to make such an order, I am obliged to indicate under s 301(1) of the Crimes Act, presumably by order, whether, if the special hearing had been a normal criminal proceeding against a person who was fit to be tried and convicted of these offences, it would have imposed a sentence of imprisonment and under s 301(2) of the Crimes Act, to nominate the term or best estimate of the term I would have considered appropriate.

52. In my view, the appropriate term for each of the burglaries is two years' imprisonment. The appropriate term for each of the thefts is twelve months' imprisonment. The appropriate term for the driving without consent is twelve months' imprisonment.

53. The section is silent on whether I should indicate the total period of imprisonment for multiple offending, which would ordinarily be determined by a process of consideration first whether some or all of the terms be concurrent or partly concurrent on each other. In addition, the court, when sentencing for multiple offences, must then determine whether the resulting total sentence should be moderated to comply with the principle concerning totality.

54. It seems to me that this must be inherent in the terms of section 301 taken with s 303 of the Crimes Act.

55. I would order that each period of imprisonment for theft be concurrent with each burglary. I would order that the second burglary be cumulative only as to twelve months on the first burglary and that the third burglary be cumulative as to fifteen months on the second burglary. I consider that the driving without consent should be cumulative only as to nine months on the third burglary.

56. That results in a total of five years' imprisonment.

58. I consider that, in the circumstances, Mr Dunn must be detained in custody until the ACAT orders otherwise, but in any event, for not more than five years from 29 January 2010, when he was first taken into custody.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: ACT Director of Public Prosecutions

Solicitor for the defendant: Craig Lynch and Associates