JOHNSON J: Earlier today, the Accused, Justin Karl Siemek, was found to have committed an act that led to the death of Vincent Evans without being criminally responsible for that act due to a mental health impairment within ss.4 and 28 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("MHCIFP Act"). A special verdict of "act proven but not criminally responsible" was returned under ss.30 and 31 MHCIFP Act.
Following the entry of that verdict, the Crown tendered a victim impact statement of Kelly Hipolito, the daughter of Vincent Evans. The victim impact statement was placed before the Court under s.30L Crimes (Sentencing Procedure) Act 1999.
Since 2018, the law has allowed a victim impact statement to be placed before a court in circumstances where the former defence of mental illness or the present defence of mental health impairment or cognitive impairment (under the MHCIFP Act) has been made out. As a result of that significant reform, members of the family of Mr Evans have a direct voice in these proceedings. The Court acknowledges receipt of the victim impact statement of Ms Hipolito and has regard to it in these proceedings.
The victim impact statement of Ms Hipolito demonstrates vividly the devastating effect upon her and other members of the family arising from the terrible events surrounding the death of Mr Evans. Ms Hipolito describes the "anger, sadness and heartbreak" experienced by her and members of the family in circumstances where Mr Evans had been seeking to help Mr Siemek to lead a productive life in the local community. Ms Hipolito has a young family and the loss of a father for her and a grandfather to her children has struck deeply.
The victim impact statement provides the Court with significant insight into Mr Evans' successful and productive life, both with his family and in the community of the mid-north coast region of New South Wales where he lived.
Prior to the introduction of the 2018 reforms, families in the position of the Evans' family would not have had an opportunity to be heard in proceedings where the trial did not culminate in a guilty verdict. As noted in R v Kemball [2020] NSWSC 1559 at [94]-[95] and [104]-[106], this is an important reform which allows a Court to receive a victim impact statement and the statement of Ms Hipolito has considerable resonance in this case.
It is an additional and important feature of the 2018 reforms that the victim impact statement of Ms Hipolito will be provided by the Court to the Mental Health Review Tribunal: s.30N(4) Crimes (Sentencing Procedure) Act 1999. That Tribunal exercises an important protective function and it is appropriate that the victim impact statement is available to it in the exercise of its statutory functions concerning the Accused.
I express the condolences of the Court and the community to the family and friends of Mr Evans for their great loss. His passing constitutes a significant loss to the community of the mid-north coast of New South Wales where he lived a productive and positive life helping others in the community.
Section 33(1) MHCIFP Act provides for the Court, on the return of a special verdict of act proven but not criminally responsible, to make one or more of a number of specified orders.
The Court has been provided with the criminal history of Mr Siemek. It is important to emphasise that Mr Siemek is not being sentenced or punished by the Court. Section 33 MHCIFP Act is directed to the protection of persons in the community, together with the welfare of the person who has committed the act which gives rise to the special verdict: Attorney General of NSW v X (2013) 235 A Crim R 17; [2013] NSWSC 1392 at [87]-[92].
However, the parties have submitted that it is appropriate that the Court receive the criminal history of Mr Siemek to the extent that it bears upon the making of appropriate orders under s.33 MHCIFP Act. The criminal history of Mr Siemek confirms that he has a long-standing history of substance use and mental health issues which have played a part in the criminal offences for which he has been dealt with by the courts, including by way of terms of imprisonment and different forms of conditional liberty.
I am satisfied that the only appropriate order to be made in this case is one under s.33(1)(b) that Mr Siemek be detained in a place and manner that the Court thinks fit until released by due process of law. No submission was made on his behalf that any other order should be made in this case. Having regard to Mr Siemek's long-standing history of mental illness, and his history of substance use and non-compliance with court orders, I am satisfied that no other order under s.33(1) is appropriate in this case.
I note that s.34 MHCIFP Act requires the Court to refer Mr Siemek to the Mental Health Review Tribunal following a special verdict of act proven but not criminally responsible and where, as in this case, no order for unconditional release is to be made.
It is important that the community understands that the effects of the verdict which has been returned, and orders which the Court will make, is that Mr Siemek will remain in custody and be held as a forensic patient to come under the supervision of the Mental Health Review Tribunal. The statutory scheme surrounding that Tribunal is such that Mr Siemek will not be released until the Tribunal is satisfied that the safety of any member of the public, or of Mr Siemek, will not be seriously endangered by his release: ss.29(d) and 84(2) MHCIFP Act. His case will be reviewed by the Tribunal as soon as practicable, and will be subject to review at six-monthly intervals: s.78 MHCIFP Act. If, at some stage in the future, Mr Siemek comes to be released, it may be on conditions and, if any of those conditions are breached, or his mental condition deteriorates to a point where he may be a serious danger to others, the Tribunal may order that he be apprehended and further detained: s.109 MHCIFP Act.
I make the following orders:
1. Pursuant to s.33(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, I order that Justin Karl Siemek be detained in a correctional facility, or at such other place as may be determined from time to time by the Mental Health Review Tribunal, until released by due process of law.
2. Pursuant to s.34 Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the Court refers Justin Karl Siemek to the Mental Health Review Tribunal.
I make the following further directions:
1. The Registrar is to notify the Minister for Health and Medical Research, as soon as practicable, of the making of these orders.
2. The Registrar is to notify the Mental Health Review Tribunal, as soon as practicable, of the making of these orders and is to provide to that Tribunal the following documentation:
1. a copy of the Court's reasons for verdict and for making these orders;
2. the transcript of the trial;
3. copies of exhibits from the trial including the reports of Professor Greenberg and Dr Furst;
4. a copy of the victim impact statement of Kelly Hipolito.
I direct that the Registrar notify Justice Health and Forensic Mental Health Network ("Justice Health") , as soon as practicable, of the verdict and orders in this matter and to provide to Justice Health copies of the following documents:
1. a copy of the reasons of the Court for verdict and making these orders;
2. copies of the reports of Professor Greenberg and Dr Furst.
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Decision last updated: 13 October 2021