R v Smith [2012] ACTSC 146

Supreme Court of the ACT|2012-08-24|Before: Refshauge ACJ

[2012] ACTSC 146 (24 August 2012)

CRIMINAL LAW - Special verdict - Not guilty by reason of mental impairment - Crimes Act 1900 (ACT) s 321 - Disposition under Crimes Act s 323.

Crimes Act 1900 (ACT), ss 27(3), 27(4), 300, 321, 323, 428O

Explanatory Memorandum, Crimes (Amendment) Bill 1994 (ACT)

Antonelli v Secretary of State for Trade and Industry [1997] EWCA Civ 2282; [1998] 1 All ER 997

Arulthilakan v The Queen [2003] HCA 74; (2003) 78 ALJR 257;

R v Criminal Injuries Compensation Board; ex parte Clowes [1977] 1 WLR 1353

R v Criminal Injuries Compensation Board, ex parte Warner [1985] 2 All ER 1069

R v Criminal Injuries Compensation Board; ex parte Warner [1986] 2 All ER 478

R v Fisher (No 2) [2011] ACTSC 100

R v Galas (No 2) [2006] VSC 160

R v McCrossen [1991] TASSC 1; [1991] Tas R 1,

R v Steurer [2008] ACTSC 141

Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192

1. Mr Smith is not guilty of arson, by reason of mental impairment.

2. Mr Smith submit to the jurisdiction of the ACT Civil and Administrative Tribunal to enable that tribunal to make recommendations to this Court as to how he should be dealt with.

3. When the recommendations are received from ACAT, a copy be provided to the parties and that the matter be re-listed for directions at a time suitable to the parties.

4. The proceedings are adjourned generally, with liberty by either party to apply.

1. On 4 March 2011, the house in which the accused, Murray Cameron Smith, was then living was seen to be on fire and the ACT Fire Brigade attended. Mr Smith was behaving in a bizarre manner at the time and was arrested by police who attended. He admitted to police that he had started the fire. He was charged with arson under s 404(1) of the Criminal Code 2002 (ACT).

2. On 4 March 2011, after his arrest, Mr Smith was referred to ACT Mental Health and detained involuntarily under s 41 of the Mental Health (Treatment and Care) Act 1994 (ACT). That detention was extended on 7 March 2011. He was subsequently released and on 10 March 2011 a Psychiatric Treatment Order was made under s 28 of the Mental Health (Treatment and Care) Act.

3. On 7 April 2011 he appeared in the Magistrates Court following service on him of a summons and, after a number of adjournments was, on 1 September 2011, committed for trial to this Court. No issue was raised about Mr Smith's fitness to plead and on 17 May 2012 he signed an election under s 68B of the Supreme Court Act 1933 (ACT), for trial by judge alone.

4. Mr Smith's bizarre behaviour at the scene and the odd answers he gave when being questioned by police later, and his subsequent psychiatric detention and treatment, raised the question of his mental state at the time of the fire and led to a consideration of whether he had a defence of mental impairment under s 28 of the Criminal Code, 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

(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 the 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.

5. The Magistrates Court ordered a Forensic Mental Health Report. Dr Graham George examined Mr Smith on 20 May 2011. Later, Mr Smith's lawyers arranged for him to be examined by Dr Danny Sullivan, a consultant psychiatrist from the Victorian Institute of Forensic Mental Health, on 2 December 2011. Both psychiatrists have prepared reports which have been tendered in evidence before me, and which were also considered by the Crown which has now indicated its agreement to the Court entering a special verdict under s 321 of the Crimes Act 1900 (ACT). That section provides:

(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.

6. This is, so far as I can tell, a unique provision, which is not replicated in any other Australian jurisdiction. Further, so far as I have been able to find, there are no cases which have dealt with this provision, despite its introduction into the Crimes Act in 1994, then as s 428O. At that stage there was no mention of it in the presentation speech and the Explanatory Memorandum to the Crimes (Amendment) Bill 1994 (ACT) effectively paraphrased it as follows (at 7):

New s 428O covers a plea of not guilty by reason of mental illness and provides that a verdict can be entered by the Court if it considers the verdict appropriate and the prosecution agrees to the entering of the verdict. This provision means a "consent" verdict can be entered.

7. Thus, there is little guidance as to the procedure to be followed or the test the Court is required to apply in determining whether the verdict is "appropriate".

8. It seems to me that the reference to a "consent" verdict in the explanatory statement suggests that a full trial is not required. How this would be managed, were the accused to decline to elect for trial by judge alone and require a jury to be empanelled, is unclear. I would have thought that in these circumstances it would be preferable if, with appropriate safeguards, the trial (if such it is called) were to be statutorily required to be by judge alone, to make the position clear.

9. It may be that, were a jury to be empanelled, the terms of s 321(2) would simply require the Court to direct the jury to return a special verdict that the accused is not guilty of the offence or offences charged on the indictment because of mental impairment. But that would seem unnecessarily complicated and burdensome on the jurors who would be called, empanelled, instructed and then directed to return a verdict on facts that may not even have been put before them.

10. In addition, the offence may be one from which the accused is denied the option of an election for trial by judge alone. That would require something like the above procedure with its problems that I have suggested and no doubt many more.

11. As to the procedure and the obligation of the Court, I am left to consider the approach in somewhat of a vacuum. Nevertheless, it seems to me that the following is appropriate.

12. In my view, the accused must be arraigned and the issue only arises if he or she then enters the plea contemplated under s 321(1). That is quite clear from the terms of that subsection. That is how I proceeded in this case and Mr Smith entered a special plea of not guilty on the grounds of mental impairment.

13. The prosecutor's agreement to a special verdict should then be invited or announced. I see no reason why that needs to be in writing, though the prosecution may wish to do that. In this case, Mr K Lee, who appeared for the prosecution, announced the Crown's agreement to the special verdict.

14. The question then is what the Court needs to do in order to come to the conclusion that the special verdict is appropriate. It seems to me that this would require the Court to have some information about the facts giving rise to the offence.

15. Thus, were there insufficient evidence to justify a finding that, say, the physical elements of the offence were made out, then the special verdict would clearly be inappropriate. In this sense, a useful guide may be found in the approach of the Court of Appeal in R v Ardler [2004] ACTCA 4; (2004) 144 A Crim R 552 to the determination of whether the "acts that constitute the offence" have been made out at a special hearing where the accused is unfit to plead.

16. The question answered by the Court in that case was (at 567; [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 the 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 on at a Special Hearing.

17. Although, of course, the two issues, fitness to plead and a defence of mental impairment, are separate, as noted in R v Steurer [2008] ACTSC 141 at [16], a special verdict would clearly not be appropriate were the prosecution unable to show that, had the accused not been mentally impaired, he could have been convicted of an offence because, for example, there was no evidence of one of the elements of the offence. The evidence sufficient to satisfy this aspect may, as here, be an agreed statement of facts or, if subject to a consent tender, a case statement of the kind described in

R v Goodwin [2009] ACTSC 111; (2009) 233 FLR 473 at 478-80; [26]-[40], or similar.

18. The accused may, of course, give consent to such a process under s 184 or alternatively s 190 of the Evidence Act 2011 (ACT) without the difficulties that need to be addressed where the accused is unfit to plead, as referred to in R v Fisher (No 2) [2011] ACTSC 100 at [29]. It could, of course, consist of witness statements or indeed oral evidence, but that will usually be unnecessary.

19. The other aspect seems to be the evidence of mental impairment. The Court should be provided with such expert evidence as would satisfy it that the accused is mentally impaired sufficient to meet the criteria in s 28 of the Criminal Code. Again, that could be achieved by the tender, by consent, of reports from appropriate medical experts. That was done here.

20. Given that the accused has pleaded his mental impairment and the prosecution has agreed to the entry of a special verdict, it does not seem to me that the Court needs to be satisfied of these matters beyond reasonable doubt. Indeed, it does not seem that the legislature requires that.

21. Nevertheless, the consequence of a special verdict does involve the potential for significant interference with the freedom and liberty of the accused. Thus, he or she can be detained in custody and can be the subject of a mental health order by the ACT Civil and Administrative Tribunal.

22. The level of satisfaction, it seems to me, is that the Court should be satisfied that a tribunal of fact could reasonably be satisfied of the necessary matters to the relevant standard.

23. It may not arise, and is unlikely to do so frequently, but the burden of proof of the relevant matters, in the case of satisfying the Court in respect of any particular aspect that it needs in order to consider that the entering of a special verdict is appropriate, should lie where it ordinarily would. That is to say, the prosecution must satisfy the Court of the facts and that they are capable of being found to the required standard of proof beyond reasonable doubt. In relation to the mental impairment there seems no reason to think that the usual approach should not prevail, that the accused bears the burden of proving that he or she is mentally impaired and that this is capable of being found on the balance of probabilities: Sodeman v The King [1936] HCA 75; (1936) 55 CLR 192 at 233.

24. From the material that has been provided to me I make the following findings. At about 1:00 pm on 4 March 2011, Mr Smith used a cigarette lighter to set fire to a jumper, which was hanging in a wardrobe of a room in the house in which he lived in Dickson; a house owned by Housing ACT. Once the jumper was alight he left the room and went outside.

25. A neighbour saw smoke coming out of the house and also that a tree in the yard was on fire, so she got a hose and put out the fire in the tree. She then approached Mr Smith and asked him, "Murray, what in the hell are you doing?" and he replied, "Looking for your spirit".

26. Mr Smith then tried to go inside, but when he opened the door the house was full of smoke and he went to the side gate but could not open it.

27. The fire brigade arrived and tried to get access to the house, but the gate was locked and obstructed by a shopping trolley. Mr Smith said to the officer from the fire brigade: "I lit my shirt up, but it got away from me". Eventually Mr Smith unlocked the gate, came out and, punching in his fists in the air several times, said "I've rescued myself". The fire brigade were able to extinguish the fire, but not before it had caused substantial damage to the building.

28. Mr Smith was later interviewed by police at Canberra Hospital. He was cautioned and appeared to understand that caution, but was concerned about whether he could have a lawyer, ultimately consenting to keep talking to the police officer. During the course of the interview, the following questions were asked and he gave the following answers:

Q48 That's good. Okay, so I'll just restate what we talked about earlier, okay, when we came into the hospital you admitted to me that you did start the fire?

Q51 That's fantastic. Okay. So you said that you've not been feeling well for a couple of weeks?

A53 Since my - well, basically since my mother's breaking of her hip and - and then - and then she was diagnosed with dementia back in May last year, two thousand and ten.

Q54 Okay, so that was the reason why you started the fire today?

A54 That may be part of the reason why I started the fire today.

Q55 Okay. Do you want to tell me how you started it? I know you've said it before, but it's best if I hear it from you?

A55 I ignited an old pullover jumper in my rear small room inside the built-in wardrobe to the very centre rear of the house.

Q56 Okay. And what did you light it with? Obviously fire, but how did you start the fire?

A56 With some difficulty, with minimal access to - I couldn't find a good enough lighter. I had trouble. Things were wet. You have no idea how much trouble it was to actually start it. Sorry, that was a bit silly.

Q 62 Eleven years. Okay, you also stated to me earlier that you were performing a ceremony with a plant which you lit on fire first, is that correct?

A62 I was exercising [sic] demons and evoking spirits

A63 I was trying to say "sorry" to the Aboriginal people because I am fully white. I was trying to join the two of us together. I was trying to become an Aboriginal spirit.

Q64 Okay, so you stated to me earlier that you were burning marijuana and doing magic tricks ---

Q66 And you also mentioned the reason was because of your mother. Do you want to ---

A66 The logic for me was I was trying to save my mother.

Q68 Okay, so you were taking your own life because you thought it was going to save your mother's who you're worried about?

Q72 When did you decide that you wanted to start the fire? Was it something that you'd planned for a while or did you decide ---

A72 No, I hadn't planned it for a while at all. I hadn't planned it at all.

Q73 So was it perhaps maybe a spontaneous decision?

A73 It was very spontaneous, but it was illogical. It was my mental resolution to an illogical situation.

Q74 And that situation was that your mother was ill?

A74 My mother was ill. For some reason in this process I was saving her. For some reason in this process I was uniting with Aboriginals as a white person. And for some reason in this process I was taking on all the pain and agony ---

A76 I felt that it's not resolved and I tried to experience their pain.

A77 How else can I say "sorry" if I do not understand what they went through? And I do not - I - I - in the past - I hope - hope you're recording this.

A78 I have not experienced it because it because I was - I had not lived with them.

Q79 Okay. Have you ever tried to do anything like this before, take your own life?

29. Having considered these matters, I am satisfied that, ignoring for the purposes of my consideration the issue of mental impairment, physical acts that would constitute the offence of arson, namely that Mr Smith caused damage to a building by fire, have been made out to the required standard and that there is sufficient evidence to show that there was evidence to negative mistake and accident and no objective evidence to raise lack of any specific intent or knowledge.

30. I had reports from Dr George and Dr Sullivan. While there were some slight differences between them, they were quite consistent in their findings.

31. Both sourced the start of Mr Smith's mental difficulties to the time when his mother was diagnosed with dementia and later placed in a nursing home. Prior to that he had been a public servant for about 29 years. It appears, however, he was involved in an incident about 14 years ago when he had a fight with staff in the government department in which he was working and the people with whom he was in conflict "thought [he] was crazy". He did not, however, receive any diagnosis or treatment at that stage.

32. In about mid-2010, however, his mother was diagnosed with dementia. Mr Smith has a power of attorney or had a power of attorney at that time to authorise him to manage her affairs. That necessitated him visiting Sydney regularly. At this time, he became quite agitated and distressed. He had been a chronic cannabis user for many years. He said he would suffer panic attacks when travelling to Sydney. His sleep was disturbed, he stopped eating and he felt his behaviour was also disturbed. He lost five to ten kilograms in weight.

33. Prior to the offence, he had exhibited some bizarre behaviour. He went on a spending spree, buying 13 radio-controlled cars and wasted up to $30 000. He developed some unusual ideas; for instance, that he needed to contact the Aboriginal community "spiritually". He had ideas about the devil, of whom he was markedly fearful, and about God. He said that he had thrown out containers of ether the previous evening because he thought that they might catch fire. He became somewhat irrational.

34. His father, who died when Mr Smith was 22, had been diagnosed with schizophrenia and spent time in the Lidcombe Psychiatric Centre. Mr Smith believed that there was schizophrenia on his father's side of the family.

35. Mr Smith said to Dr Sullivan that he found the offence hard to remember. He did not experience auditory or visual hallucinations at the time of the offence. He said that he thought he would "protect himself by burning down the house".

Mr Smith has had a clear manic episode with psychotic features, preceded by a period of lightly hypomania for some months. The preceding period was marked by appetite and weight loss, increased spending and impaired judgment. The main episode, during which the alleged offence occurred, involved florid psychotic symptoms, including bizarre, religious and grandiose delusions, disorganised behaviour and some formal thought disorder. The behaviour was observed to be bizarre by witnesses, is documented in a police interview on the same day as the alleged offence, and was diagnosed by clinical staff in the weeks following the alleged offence.

The occurrence of a single manic episode results in a diagnosis of bipolar affective disorder as he may be prone to recurrence of further episodes of mood disorder, either mania or depression (emphasis in original).

37. This is identical to the opinion of Dr George, who said:

Mr Smith suffers a serious mental illness in the form of Bipolar Affective Disorder. He has Bipolar 1 Disorder.

It does appear that for, at least, six months if not longer prior to the commission of this alleged offence he was either hypomaniac or manic.

38. As to his position at the time of the offence, Dr Sullivan wrote:

At the time of the alleged offences, I believe that Mr Smith was suffering from a mental illness, that being a manic and psychotic episode during which his behaviour and thinking were grossly disorganised and bizarre. This illness is not a reactive condition, and I consider that it falls within the definition of mental impairment as set out in s 27 of the ACT Criminal Code 2002.

I have considered the criteria of s 28 of the ACT Criminal Code 2002. Due to mental impairment, at the time of the alleged offences it is unlikely that Mr Smith was aware of the nature and quality of the conduct, in that he attributed different properties to setting a fire and did not believe that the conduct at the time caused property damage, but rather would have a spiritual effect. In addition, I do not believe at the time that he knew that his conduct was wrong. At the time he was clearly unable to reason about the wrongfulness of the conduct with any degree of sense and composure. Consequently, I believe that a defence of mental impairment is available to Mr Smith.

39. Again, Dr George said that "his insight and judgment would have been severely impaired at the time of his offence"; relevantly similar to the opinion expressed by Dr Sullivan.

40. Having carefully read and considered the two reports, I am satisfied that it was open to a court or a tribunal of fact to have found on the balance of probabilities that the defence of mental impairment was able to be sustained on Mr Smith's behalf.

41. As a result, I am satisfied that it is appropriate that a special verdict be entered to the single count of arson on the indictment. Accordingly, I will order that Mr Smith is not guilty of arson by reason of mental impairment.

42. The options available to me depend to some extent on whether the offence of arson is a serious offence or not. For the purpose of these proceedings, a "serious offence" is defined in s 300(1) of the Crimes Act as:

(1) an offence involving actual or threatened violence and punishable by imprisonment for longer than 12 months; or

(2) an offence against [Crimes Act] s 27(3) or (4).

43. Section 27(3) makes it an offence to inflict a range of violence on another person, none of which is relevant here, and s 27(4) is an aggravated form of that offence. Section 27(3) does, however, refer to a number of offences where the action is not directed towards a particular individual, but is in circumstances where the offence would lead to a risk of grievous bodily harm or death in relation to an individual. To that extent it may extend, or it may have an effect on, the meaning of violence in

sub-s (a) of the definition, so as not to encompass within that definition occasions where violence is not directed at an individual.

44. The only question then is whether arson is an offence involving actual or threatened violence. It seems to me that this means whether the offence, as committed, involves violence, not whether an element of the offence involves violence, for the legislation is clearly protective and should be interpreted that way.

45. It is a pity that the legislature has not seen fit to provide a definition of "an offence involving actual or threatened violence". The term is not a term of art, as was noted by the Divisional Court in R v Criminal Injuries Compensation Board, ex parte Warner [1985] 2 All ER 1069 at 1073, in respect of the phrase "crime of violence".

46. The words are ordinary English words and so should be given their ordinary meaning. The Court there was considering whether a person who trespassed on the railway and then committed suicide has been guilty of a crime of violence for the purpose of criminal injuries compensation.

47. In words that resonate with me, the Court concluded (at 1076):

In conclusion, we feel bound to say that we find it highly unsatisfactory that there is no definition, nor even a reasoned explanation, of what constitutes a crime of violence for the purposes of the scheme.

48. The Court then went on to provide a definition itself:

If a definition is called for from us we would suggest 'any crime in respect of which the prosecution must prove as one of its ingredients that the defendant unlawfully and intentionally, or recklessly, inflicted or threatened to inflict personal injury upon another'.

49. That decision was upheld by the Court of Appeal: R v Criminal Injuries Compensation Board; ex parte Warner [1986] 2 All ER 478 at 482. It is important, of course, to recognise that this was in the context of a particular statutory scheme related to criminal injuries compensation, where the whole of the statute had to be considered in deciding the meaning of the phrase.

50. Thus, under a different scheme, which was for regulation of estate agents, the Director-General of Fair Trading could make a certain prohibition order in respect of persons who inter alia had been convicted of "an offence involving fraud or other dishonesty, or violence". In Antonelli v Secretary of State for Trade and Industry [1997] EWCA Civ 2282; [1998] 1 All ER 997, Mr Antonelli had been convicted of "burning real estate other than a dwelling house". The Director-General served on him a notice proposing to exercise certain prohibition powers in respect of him. Mr Antonelli appealed against the order and the matter ultimately came before the Court.

51. The judge, at first instance, referred to the definition of the word "violence" in the Oxford English Dictionary as: "The exercise of physical force so as to inflict injury or to cause damage to persons or property" and held that the crime was a crime of violence.

52. On appeal, the Court of Appeal, Bedlam LJ, with whom Kennedy and Aldous LJJ agreed, said (at 1008):

The question raised by this ground is whether an offence involving violence within the meaning of s 3(1)(a)(i) of the Act means an offence involving violence to the person. Does it also include the application of force to property, such as a building. The offence under Ch 750, s 73, of the Michigan Criminal Law Act was committed by any person who 'wilfully or maliciously burns any building or other real property or the contents thereof ... the property of himself or another'.

The definition of 'violence' from the Oxford Dictionary cited by the judge was: 'The exercise of physical force so as to inflict injury on or to cause damage to persons or property.' The question is whether violence was used in this sense in the subsection.

I can see no justification for confining the word 'violence' to violence to the person. In the context of an offence related to activities in connection with estate agency and the management of property, the unlawful eviction of the occupiers of premises with the threat of violence is one of the situations in which property managers have been known to commit an offence 'involving violence'. Thus a threat or an attempt to set fire to property even if no actual danger to life or limb would be expected is to my mind an offence 'involving violence' within the meaning of the section. Accordingly, I have no doubt that Parliament intended that convictions for an offence involving violence towards property should be within s 3(1)(a)(i).

53. In Australia, the issue has been dealt with in a number of cases. In the leading case of R v Butcher [1986] VicRp 4; [1986] VR 43, the Full Court of the Supreme Court of Victoria had to consider whether robbery, where there were threats but no actual infliction of force, was a crime of violence. The court held that it was. The question in that case was whether the killing that occurred was liable to be prosecuted as murder, because it occurred as an act of violence in the course of the furtherance of a crime: s 3A of the Crimes Act 1958 (Vic). The Court said (at 53):

In our opinion, the word 'violence' where it is used in s 3A is not to be understood to refer only to physical force but rather to include those aspects of intimidation and seeking to intimidate by the exhibition of physical force or menaces as in the past have been considered to constitute violence.

Where the words 'act of violence' and 'crime the necessary elements of which include violence' are used in s 3A, violence is used in a descriptive sense. 'Act of violence' means an act of a violent kind, for there is no legal definition of violence as such inside or outside which any particular act or threats may be said to fall. Nor is there any common law crime in which violence is, by definition, an element.

This view is also consistent with violence as understood during the development of the English language. As a matter of etymology, violence is a word having its origin in the Latin violentia, often connoting vehemence or impetuosity. It is not synonymous with the use of physical force, although physical force falls within its meaning. It is a word of wider significance in the law, as the cases show. Smith and Hall in their English-Latin Dictionary give as their first meaning of violence: "inherent overpowering force, whether physical or mental". In the Oxford English Dictionary violence is defined as follows: '(Law) unlawful exercise of physical force, intimidation by the exhibition of this.'

54. That decision has been widely followed: Arulthilakan v The Queen [2003] HCA 74; (2003) 78 ALJR 257; R v McCrossen [1991] TASSC 1; [1991] Tas R 1, R v Breeze [1999] QCA 303; (1999) 106 A Crim R 441; and

R v Galas (No 2) [2006] VSC 160.

55. None of these cases, however, deal with the central question of whether an offence of injury to property is or can be a crime of violence, although the definitions used do not limit it to a crime involving a threat to an individual.

56. In R v Hueston [1995] TASSC 110; (1995) 5 Tas R 210, Wright J had to consider whether arson was such a crime. His Honour reviewed a number of English and Australian authorities and came to the conclusion that it was. He said (at 215-16):

After careful consideration of the section now in question, I have come to the conclusion that the offences relied upon by the Crown under section 392(1)(a) and (b) are indeed crimes involving an element of violence. I come to the conclusion because those crimes clearly entail deliberate damage to property, coupled with an obvious and substantial risk of direct injury resulting therefrom to other persons. Had such persons been so injured, the prisoner would have been criminally culpable for his reckless conduct. The mere fact that on each occasion tragedy was averted due to prompt intervention by other persons, does nothing to lessen the dangerous nature of the prisoner's conduct. Viewed from this perspective I consider that the prisoner's criminal conduct can and should be regarded as involving an element of violence on each of the relevant occasions and also on the occasion in respect of which he stands for sentence this afternoon. I can therefore see no basis for either confining the scope of s 392 as contended by Mr Avery or failing to exercise my discretion to make the declaration sought by the Crown.

57. Regrettably, it is not clear whether his Honour was holding that actual and substantial risk of injury to persons was an essential element in the characterisation. His Honour was influenced by the English decision of R v Criminal Injuries Compensation Board; ex parte Clowes [1977] 1 WLR 1353, where the Court had held that the crime of violence cannot mean an offence which involves nothing more than the infliction of damage to property.

58. His Honour seems to have adopted the views of Lord Widgery CJ, which was that, in his Honour's words (at 214):

[I]n the context in which ['crime of violence'] was then being considered, it was an offence involving use of force or threats 'directed at the person of another'. He took the view that when the crime involved damage to property, with the possibility of indirect harm to a person, it would not necessarily be a crime of violence, even if injury resulted.

59. Whether this decision survives the decision of Antonelli v Secretary of State for Trade and Industry is not something on which I am clear, although that decision appears to be significantly grounded in the statutory context in which it was found.

60. In the circumstances, there is no evidence of likely harm here to other persons. The fire was in the house. There were no other persons in the house. The neighbour who came on the scene was able, without apparent difficulty, to extinguish the fire that was outside in the tree and, although extensive damage was done, there was no material before me that suggested there was, to use the words of Wright J, "substantial risk of direct injury resulting therefrom to other persons".

61. In my view, this was not a crime of violence within the meaning of the definition of "serious offence" in s 300 of the Crimes Act.

Disposition under Crimes Act s 323

62. Accordingly, I must proceed in accordance with s 323 of the Crimes Act, which provides:

(1) If an accused has been charged with an indictable offence other than a serious offence and a special verdict of not guilty because of mental impairment is returned or entered, the Supreme Court may -

(a) make an order requiring the accused to submit to the jurisdiction of the ACAT to enable the ACAT to make recommendations as to how he or she should be dealt with; or

(b) make any other orders it considers appropriate.

(a) the Supreme Court makes an order under subsection (1) (a); and

(b) the ACAT notifies the court of its recommendations;

the court shall, in consideration of the ACAT's recommendations, make any further orders it considers appropriate.

(3) The orders the Supreme Court may make under subsections (1) and (2) include 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 enable the ACAT to make a mental health order.

63. There are problems with these dispositions, as I have remarked elsewhere, obviously to no effect because no changes have yet been made to the legislation. In R v Fisher (No 2), I noted (at [68]) that I cannot grant Mr Smith bail to appear before the ACAT, nor in any other way other than by order, breach of which may be punishable by contempt, to submit to the jurisdiction of the ACAT. Whether that requires his actual attendance before that body or not is another matter, and whether any failure to do so would be a contempt of my order is also another matter.

64. I had considerable evidence to show that the Psychiatric Treatment Order, which was granted, as referred to above, was effective and on 8 August 2011 it was recommended by his community case manager that the treatment order be allowed to lapse. It appears that no further treatment order has been made. His treating psychiatrist also submitted a letter, although dated on 8 May 2012 and now a little old, that Mr Smith continues to attend as a voluntary patient and he has been well. She does not specifically say that he is compliant, but she does say that he is reliable in attending appointments and has ceased smoking cannabis. I infer from what she said that he is compliant.

65. The section allows me to either make an order requiring Mr Smith to submit to the jurisdiction of the ACAT, to enable the ACAT to make recommendations as to how he should be dealt with, or to make any other orders that I consider appropriate. It has been submitted by Mr Gill that in the circumstances I should simply make no order. That has a certain attraction because it appears that Mr Smith is compliant with his treatment and that the treatment is, on the evidence of Dr George, appropriate treatment and is likely to ensure that there are no further occurrences of any kind of offence of the kind that Mr Smith has faced.

66. It is true that, to some people, it would be startling that the Court would take no action in relation to a matter as serious as arson and the causing of substantial damage to a Housing ACT property. It has to be recognised that where a special verdict has been entered, the criminal justice system has, in a very real way, a limited further involvement with the accused person. Our system of criminal law makes it clear that persons who are mentally impaired, such that they are not guilty of offences, should be treated not within the criminal justice system, but within the mental health system and, therefore, that a therapeutic imperative is appropriate rather than a criminal justice one.

67. In these circumstances, it appears that the therapeutic supervision of Mr Smith is progressing satisfactorily and that there is no need for formal and coercive or involuntary intervention. Nevertheless, it was put to me by Mr Lee that the ACAT is a specialist tribunal - it deals regularly with mental health issues - and that it may be able to make some recommendations to me beyond simply the powers that it can exercise, which are only the making of a mental health order of some kind.

68. It is true, and, as I have commented before, the powers of the Court in this regard seem to be almost unlimited. It says that I can make "any other orders [the Court] considers appropriate". It seems to me that it must be limited by the context and that, for example, I could not make orders under the Crimes (Sentencing) Act 2005 (ACT), or similar orders.

69. Nevertheless, if there are orders that are appropriate for me to make to ensure that Mr Smith remains compliant with his treatment and that he is unlikely to put the community at any kind of risk, it is probably appropriate that I take the opportunity of seeing whether the ACAT can make any recommendations that are appropriate. I note that the ACAT could well recommend that there is nothing that needs to be done and that no orders should be made, and that would be an appropriate recommendation, if it is justified by the material before the ACAT when it makes its consideration.

70. Accordingly, although with some hesitation in all the circumstances, I will make an order requiring Mr Smith to submit to the jurisdiction of the ACAT, to enable the ACAT to make recommendations as to how he should be dealt with and I will adjourn the matter accordingly.

I certify that the preceding seventy (70) 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 accused: Legal Aid ACT

(Sentencing) Act 2005

Health (Treatment and Care) Act 1994

(Sentencing) Act 2005

Health (Treatment and Care) Act 1994

At a glance

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Before

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Judgment (168 paragraphs)

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Legislation Cited (6)

Cases Cited (4)