CRIMINAL LAW - GENERAL MATTERS - Criminal Liability and Capacity - verdict of not guilty by reason of mental impairment - best estimate of sentence that would have been appropriate if accused found guilty - extent to which mental impairment may be considered for purposes of best estimate.

Crimes Act 1900 (ACT), ss 302(1), 302(2), 302(3), 302(4), 307, 308, 315(c), 322, 324(1)(a), 324(1)(b), Pt 13

Mental Health Act 2015 (ACT), ss 180, 180(3)(a), 183

R v Paul John McDermott [2003] ACTSC 1; (2003) 172 FLR 1

R v Steurer [2009] ACTSC 150

R v Verdins [2007] VSCA 102; (2007) 16 VR 269

1. Danny Klobucar was tried for the murder of Miodrag Gajic. On 24 March 2016, the jury returned a verdict of not guilty by reason of mental impairment. Accordingly, I indicated under s 302(1) of the Crimes Act 1900 (ACT) that, if Mr Klobucar had not been acquitted, I would have imposed a sentence of imprisonment, and having regard to the matters referred to in s 308 of the Crimes Act, made an order under s 324(1)(a) of that Act that Mr Klobucar be detained in custody for immediate review by the ACT Civil and Administrative Tribunal (ACAT) under s 180 of the Mental Health Act 2015 (ACT).

2. This matter had been discussed with counsel some time before the jury retired to consider its verdict, for the purposes of determining what I would tell the jury, as required by s 322 of the Crimes Act, about the consequences of the various possible verdicts. In the course of that discussion, no submissions were made to the effect that it would be more appropriate to make the other available order, that is, an order under s 324(1)(b) that Mr Klobucar submit to the jurisdiction of the ACAT to allow ACAT to make a mental health order or a forensic mental health order under the Mental Health Act.

3. The matters referred to in s 308 of the Crimes Act (referred to, bizarrely enough, as "criteria"), are:

(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;

(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.

4. At this stage, obviously, there is no recommendation from ACAT.

5. I was satisfied, having regard to the material provided by the three psychiatrists who gave evidence at Mr Klobucar's trial, and the evidence of the nature and circumstances of the killing which the jury must have found was committed by Mr Klobucar, that the appropriate order was that Mr Klobucar should be detained in custody for immediate review by ACAT.

6. Accordingly, I must now under s 302(2) of the Crimes Act nominate a term of imprisonment that is my best estimate of the sentence that I would have considered appropriate if Mr Klobucar were a person who had been found guilty of the offence charged.

7. In the matter of R v Steurer [2009] ACTSC 150 (Steurer) decided in 2009, I analysed the relevant provisions of the Crimes Act and concluded that the peculiarly inappropriate provisions of Pt 13 of that Act might have been the result of a careless attempt to implement a sensible policy, rather than the deliberate adoption of a flawed policy, but the fact that those provisions have since been amended in two relatively minor respects only (and one of them, as I shall mention, also ineffectively) suggests that the legislature has deliberately opted to retain the earlier policy. I do not intend to reprise the detailed exposition of these matters in Steurer, but the problem can be summarised as follows:

(a) An indicative maximum term, or best estimate, for a person who is unfit to plead and who has been found to have engaged in the relevant conduct in a special hearing is a necessary protection against the risk that such a person (who was not necessarily afflicted with any mental illness at the time of the offence) might be incarcerated for longer than the person would have been incarcerated if he or she had been tried and found guilty at a normal trial.

(b) On the other hand, incarceration of a person who has been found not guilty because of mental impairment should be aimed not at punishment, denunciation or any other purpose relating to the person's culpability but purely at the ongoing protection of the community. That goal might require the person to be incarcerated indefinitely, or might permit release in some form quite quickly. In neither case is a best estimate of a sentence determined for quite a different offender (that is, an offender without a mental impairment) of any logical relevance at all.

8. However, the task of making a best estimate for present purposes must be undertaken.

9. Section 307 of the Crimes Act provides that, in making the best estimate, I may inform myself presumably in the way I would have informed myself, and consider the evidence and submissions that I would have considered, were I determining the sentence to be imposed in normal criminal proceedings.

10. For that purpose, I note first that the maximum penalty for murder is life imprisonment.

11. Mr Gajic was killed at his home in Woden in the morning of 1 January 2014. The jury must have been satisfied beyond reasonable doubt that not only was Mr Klobucar in Mr Gajic's unit during the morning, as he conceded, but that he was the killer.

12. Mr Gajic was killed by the application of blunt force trauma to his head, involving, according to the pathologist, 8 to 10 blows, some using severe force. No weapon has been found, and nor has any particular kind of weapon been identified as the likely weapon, although items such as baseball bats and bricks were mentioned as possibilities. It seems to me possible that there was no weapon as such, but that the blunt force trauma was inflicted by repeatedly banging Mr Gajic's head on the heavy wooden doorstep at his front door, being the place suggested by the forensic evidence as the location of the assault on Mr Gajic. Whatever the weapon, this was, in the Crown's words, a brutal and pitiless attack on a frail, older man.

13. As to the motive, I note first that a motive of theft, either of money or cannabis associated with Mr Gajic's cannabis dealing, seemed to be ruled out by the presence in the flat, after Mr Gajic's killing, of $3,000 in cash and a quantity of cannabis, neither of which was particularly well hidden.

14. The Crown called tendency evidence at the trial said to show that Mr Klobucar had an obsession about paedophiles, a tendency to identify older men as paedophiles, and a tendency to be violent towards such men. This was a fundamental element of the Crown's case that Mr Klobucar was the person who had caused Mr Gajic's death, and I must assume that the jury accepted this evidence. That evidence included evidence, albeit scanty, that Mr Klobucar suspected Mr Gajic of being a paedophile; he was said to have described Mr Gajic's car as a "gay" car and to have said, in connection with the reference to the car, that Mr Gajic "must be a paedophile". It is apparent that, at least in relation to Mr Gajic, any belief held by Mr Klobucar that Mr Gajic was a paedophile, was an irrational belief.

15. The unchallenged evidence of the three psychiatrists already mentioned was that, over a period of several weeks that included the day of Mr Gajic's death, Mr Klobucar had likely been suffering a psychotic episode arising from paranoid schizophrenia. That included delusional beliefs about paedophiles in to which he might have incorporated Mr Gajic.

16. In order to reach the particular verdict that it did, the jury must also have accepted that Mr Klobucar was affected by that mental illness such, that when he killed Mr Gajic, he did not know that a reasonable person would have seen his actions as morally wrong.

17. Mr Klobucar was arrested overnight after Mr Gajic's death, in connection with an unrelated incident, and has been in custody ever since. He very quickly became a suspect in relation to the death of Mr Gajic and he was charged with the murder on 27 March 2014. The Crown does not object to me treating Mr Klobucar's full period of custody as relevant in the setting of a best estimate.

18. Section 302(3) of the Crimes Act, which has been inserted since my decision in Steurer, appears to be intended to permit the court to take into account periods of pre-trial custody in determining its best estimate of the sentence that would have been imposed. However, that provision refers only to custody before or after a special hearing, not a trial, but special hearings are conducted only where an accused is unfit to plead (in s 315C)), and that was not Mr Klobucar's position. For that reason, I shall not purport to backdate the nominated term under s 302(4), but shall instead discount the nominated term by the period of pre-trial custody.

19. As I have already indicated, Mr Gajic was killed by a brutal and unprovoked assault which, if committed by a person who realised how wrong it was, would have called for a very severe sentence.

20. Before I consider the impact of Mr Klobucar's mental condition in determining the appropriate term to nominate, I mention briefly other aspects of his personal circumstances.

21. Mr Klobucar is now 27 and was 25 at the time of the killing. His parents separated when he was young, and he then lived with his mother until running away from home after which he lived with his grandmother for some time. His father remarried when Mr Klobucar was 14 and his mother also re-partnered at some point. Mr Klobucar told Dr Allnutt that his relationships with his parents were now okay, and certainly I note that both parents attended court on most days of the trial.

22. Mr Klobucar completed Year 10 without any particular difficulties although he was apparently bullied when he was five or six. He has had some engagements with school counsellors and, as an adult, with mental health services, including spending two nights in hospital, on separate occasions a couple of years apart, and having been prescribed medication, possibly antidepressants, on one or more occasions. He had worked as a labourer from time to time and was also involved in restoring second-hand cars, but had not worked for some months before Mr Gajic's death.

23. Mr Klobucar has used cannabis regularly for a few years before Mr Gajic's death, and had experimented with methamphetamines three or four times in the months before that death. He had also used various other drugs from time to time, but rarely drank alcohol.

24. Mr Klobucar has been treated with anti-psychotic drugs in custody and continues to receive a monthly injection. He has expressed an intention to continue to comply with whatever treatment is recommended for him.

25. Mr Klobucar's criminal history before this matter consists mainly of traffic offences, some of which were in fact dismissed on mental health grounds. A common assault charge in 2009 was dismissed on the same grounds.

26. I have mentioned, in discussion, the Victorian Court of Appeal case of R v Verdins [2007] VSCA 102; (2007) 16 VR 269 (Verdins) which set out six ways in which an offender's mental health might be relevant in sentencing, which I summarise as follows:

(a) The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility.

(b) The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

(c) Whether general deterrence should be moderated or eliminated as a sentencing consideration.

(d) Whether specific deterrence should be moderated or eliminated as a sentencing consideration

(e) Whether a given sentence will weigh more heavily on the offender than it would on a person in normal health.

(f) Whether there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health,

27. The determination that I am now to make inevitably requires me to incorporate a hypothetical proposition in to my calculations. I am not in fact sentencing Mr Klobucar for a murder but determining a likely sentence if I was sentencing him for a murder committed by him when his mental condition was not sufficiently severe to require a mental impairment verdict (and, presumably, not even sufficiently severe to justify a verdict of manslaughter by reason of diminished responsibility).

28. On the other hand, s 307 of the Crimes Act does allow me to consider the usual sentencing information, so I propose to take Mr Klobucar's mental condition in to account by noting the evidence of the three psychiatrists to the extent that they identify a possible delusional basis or explanation for Mr Klobucar's actions, that is, that he had absorbed Mr Gajic in to his delusional fear of paedophiles. In this respect, this case is unlike that of Mr Steurer but similar to the ACT case of R v Paul John McDermott [2003] ACTSC 1; (2003) 172 FLR 1, which is cited in Steurer.

29. Working quickly through the Verdins issues as already mentioned, that explanation for Mr Klobucar's actions must, it seems to me, even putting aside the mental impairment verdict and the expert evidence on which that was based, reduce Mr Klobucar's moral culpability for the killing of Mr Gajic to some extent. It does not however seem to exclude the presumption of a sentence of imprisonment for a brutal killing. On the other hand, neither general nor specific deterrence would seem to have a role in any notional sentencing of Mr Klobucar, again having regard to his mental illness. I have heard nothing to the effect that because of his mental illness, incarceration would weigh more heavily on Mr Klobucar than on another offender, or that there would be a risk of imprisonment having a significant adverse effect on his mental health. Thus, only the availability of a partial explanation for Mr Klobucar's actions appears to be a relevant factor in this case.

30. In Steurer, by reference to several other ACT cases, I began with a rough figure of half a life sentence. Mr Klobucar is much younger than Mr Steurer was and accordingly that calculation can be further discounted for what in other areas of the law would be called contingencies. But, having regard to the explanation that I have mentioned for the killing, that gives me, for my best estimate, a starting figure of 20 years, which I reduce to 17 years and 9 months to take account of time in custody to date. That is, for the purposes of s 302(2), I nominate 17 years 9 months as my best estimate of the appropriate sentence if Mr Klobucar had been found guilty of the murder of Mr Gajic.

31. In setting that term, I note that under s 180 of the Mental Health Act, the term is a matter to which ACAT must have regard in reviewing Mr Klobucar's detention and considering his release, and that if ACAT does not order Mr Klobucar's release, it is obliged to review his detention monthly thereafter. On the other hand, the nominated term does not require Mr Klobucar to be detained for that period or indeed to be released at the end of it[1], and it seems to have no other relevance. That is, if Mr Klobucar, on release, would not be a danger to himself or others, then one would expect that the effective presumption in favour of release (set out in s 180(3)(a)) would operate immediately irrespective of the nominated term, and if he would be such a danger, even after the end of that term, then equally the nominated term would seem to have no significance for a decision about his release.

I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.

[1] After these reasons were given, it was brought to my attention that although s 180 of the Mental Health Act requires only that ACAT "have regard to" the nominated term, s 183 of that Act provides that s 180 does not permit ACAT to require a person to remain in custody beyond a "limiting period" which is calculated by reference to the nominated "best estimate". Any further detention of a person who, on release, might be a danger to himself or others would need to be ordered under another provision.