|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Supreme Court of the ACT |
Last Updated: 10 November 2009
R v REINHOLD STEURER [2009] ACTSC 150 (10 November 2009)
CRIMINAL LAW – re-assessment of fitness to plead – nature of required ability to follow the course of proceeding – view of court proceedings as “gobbledygook” not necessarily indicative of unfitness – relevance of advice from accused’s legal representatives about capacity to give instructions.
CRIMINAL LAW – significance of accused’s mental state in criminal proceedings – ACT legislative scheme – verdicts available at ordinary trials and special hearings – special verdict of not guilty because of mental impairment.
CRIMINAL LAW – orders required after special verdict – detention order or order that person submit to jurisdiction of ACAT for mental health order to be made – matters to be taken into account in deciding which order to make – comparison of ACT and NSW arrangements – form and effect of detention order.
CRIMINAL LAW – orders required after special verdict – requirement where detention order made for best estimate of likely sentence if person had not been acquitted – inappropriateness of best estimate requirement where person found not guilty because of mental impairment – difficulty in giving reasons for best estimate where accused not guilty because of mental impairment – some ACT best estimates roughly half of maximum term of imprisonment.
Crimes Act 1900 (ACT), ss 311, Part 13, s 312, Div 13.2, ss 315B,
315C, 316, 317, 321, 319, 324, 301, 302, 303, 308, 12
Crimes (Amendment)
Act 1999 (ACT)
Crimes (Sentencing) Act 2005 (ACT), s
65(5)
Criminal Code 2002 (ACT), ss 13, 27, 28, 56, 57, 58, 59, 60, 44
Mental Health (Forensic Provisions) Act 1990 (NSW), ss 19(2),
21, 22, 26, 23, 52, 54, 25, 39
Mental Health (Treatment and Care) Act
1994 (ACT), ss 28, 75, 72, 74
Supreme Court Act 1933 (ACT), s
68C
Explanatory Memorandum, Crimes (Amendment) Bill 1999 (ACT)
Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250
R v Cosseddo [2000]
NSWSC 446
R v Dashwood [1943] KB 1
R v Goonerage
[2005] ACTSC 96
R v King (2004) 155 ACTR 55
R v
Mitchell [1999] NSWCCA 120; (1999) 108 A Crim R 85
R v Paul John McDermott
[2003] ACTSC 1; (2003) 172 FLR 1
R v Polanski [2000] NSWSC 854
R v
Pratt [2009] NSWSC 1108
R v SE [2009] NSWSC 785
R v Wilson [2002] NSWSC
297
Veen v The Queen [No. 2] [1988] HCA 14; (1988) 164 CLR 465
Mayer-Gross, Slater and Roth, Clinical Psychiatry, Baillière, Tindall & Cassell, London, 3rd ed, 1970
No. SCC 226 of 2007
Judge: Penfold J
Supreme Court of the ACT
Date: 10 November 2009
IN THE SUPREME COURT OF THE )
) No. SCC 226 of
2007
AUSTRALIAN CAPITAL TERRITORY )
R
v
REINHOLD STEURER
ORDER
Judge: Penfold J
Date: 10 November 2009
Place: Canberra
THE COURT NOTES THAT:
THE COURT ORDERS THAT:
Introduction
The offence
1. Reinhold Steurer was charged with the murder of his father, Michael Steurer, who died on 26 April 2007 of blood loss after being stabbed by his son shortly after a minor disagreement between the two men.
Contents of judgment
2. This judgment covers several aspects of the criminal justice system’s
dealing with Mr Steurer, as follows:
(a) re-assessment of his fitness to
plead ([4] to [23] below);
(b) trial ([24] to [73] below);
(c) orders required after
special verdict entered ([74] to [139] below).
3. In the course of the
judgment I comment on the legislation applicable in this case and some problems
that I have encountered in
applying it. Those comments are found at [100] to [109] below. In summary, my concern is
that the effect of the ACT legislation is to require an assessment in the nature
of a sentencing
process for an accused person who has been found not guilty
because of mental impairment, even though as a matter of principle it
is
incongruous to apply a process (sentencing) that is based on criminal
responsibility to a person who has been found not to be
criminally responsible
for his actions. Not surprisingly, an incongruous process produces incongruous
results—first, that
judges dealing with such cases find themselves making
decisions for which no rational reasons can be given, and secondly that a person
who was not criminally responsible for his actions risks being detained in
respect of those actions for longer than he would have
been if he had been
criminally responsible for them. In saying this, I note that the arrangements
for supervision and regular review
of detention orders relating to people who
have been found not guilty because of mental impairment are likely to protect
against
any serious injustice being done to such people, but this fact, while
comforting, does not justify maintaining an approach which
seems to be wrong in
principle and which leads judicial officers to act inconsistently with the
normal requirements for the exercise
of judicial discretion.
Re-assessment of Mr Steurer’s fitness to plead
4. On 16 December 2008 I found Mr Steurer fit to plead to the charge, but
ordered that Mr Steurer be assessed again within the period
of two months before
the date fixed for his trial, with specific reference to the concerns expressed
by Drs George and Allnutt relating
to Mr Steurer’s auditory hallucinations
and his delusional beliefs respectively.
5. Mr Steurer’s trial was
fixed for 12 May 2009. On 19 March 2009 I made an order for the re-assessment
required in conjunction
with my original finding that Mr Steurer was fit to
plead.
6. The first matter for determination on the day set down for trial
was Mr Steurer’s continued fitness to plead. On the morning
when I had to
decide on Mr Steurer’s continued fitness to plead, the trial proceedings
were expected to be completed by lunchtime
that day, and Mr Steurer’s
counsel advised that earlier that morning he had had a clear conversation with
Mr Steurer; counsel
described Mr Steurer as “mentally the fittest
I’ve seen him”.
7. Pursuant to the order made on 19 March, Dr
George provided another assessment of Mr Steurer’s fitness to plead, which
was
dated 1 May 2009.
Dr George’s 2007 assessment
8. Dr George’s initial assessment dated 31 July 2007 had been that Mr
Steurer was fit to plead against all but one of the criteria
set out in s 311(1)
of the Crimes Act 1900 (ACT) (set out in Appendix A to this judgment). He
reported as follows:
(a) Mr Steurer understood that the current charge
related to his murder of his father, and how he had killed his father.
(b) Mr Steurer could cope with challenging the jury; he understood scenarios
that might require this, and that if he thought someone
should not be on his
jury he should talk to his lawyers about it.
(c) He understood the concept
of pleading; he proposed to plead guilty, but understood that a plea of not
guilty was also available
to him.
(d) He understood the nature of the court
proceedings, and had relevantly been able to describe what had happened in the
Magistrates
Court.
(e) He understood the significance of the evidence that
would be given and the purpose of that evidence.
(f) Mr Steurer believed
that he could instruct and, indeed, that he had already instructed, his legal
representatives.
9. However, Dr George was concerned about the effect of Mr
Steurer’s auditory hallucinations on his attention and concentration,
specifically in relation to his ability to follow the course of proceedings in
the court (s 311(1)(d) of the Crimes Act). He found that Mr Steurer was unfit
to plead because of the auditory hallucinations.
10. Dr Stephen Allnutt, who
had also reported on Mr Steurer, had commented on the possible impact of Mr
Steurer’s delusional
beliefs in two areas, namely his ability to challenge
members of a jury on rational grounds and his ability to give instructions
to
his lawyers. He also noted that Mr Steurer was vulnerable to incorporating the
court in his delusional beliefs.
Dr George’s new assessment
11. For the new assessment, Dr George asked Mr Steurer questions directed at
each of the criteria for fitness to plead set out in
s 311(1) of the Crimes Act.
He did not confine his assessment to the matters of Mr Steurer’s
auditory hallucinations and his delusional beliefs,
as mentioned in the order
for re-assessment.
12. As a result of this inquiry, Dr George reported his
view that Mr Steurer remained unfit to plead, but this time reached his
conclusion
by reference to the criteria set out in ss 311(1)(d) and (f) of
the Crimes Act.
Ability to follow the course of the proceeding (par 311(1)(d))
13. Doctor George made the following comments:
[Mr Steurer] was then asked whether he believed he could follow the course of proceedings. He said that, in general terms, he often found listening to the proceedings of a court “gobbledygook”. He said that, often, he can “sit in court and let them talk without absorbing anything that is said ... it is just jargon ... ”. He then added, “I bought myself a dictionary in the last two years to look up some of the terms which they use”. By this he seemed to be indicating that he did not understand the meaning or context of legal language. This made it difficult for him to follow the course of events.
He did not indicate that he was really aware of voices on a continuous basis and said there may be days when he is not aware that he suffers from “voices”. However, he said that, on occasions, this could interfere with his concentration. He then added “sometimes I speak to friends of mine by telepathy ... I can go for weeks sometimes without hearing anyone”. He seemed to be indicating that he would have difficulty following the proceedings of the court.
14. It seems that, as far as Mr Steurer’s auditory hallucinations are
concerned, these have reduced since Dr George last saw
him. Dr George noted in
his general comments that Mr Steurer had said that “the auditory
hallucinations of which he was aware
were not nearly as predominant as had been
the case two years ago when last examined”. It is not clear to me that Mr
Steurer’s
comments about the voices he sometimes heard necessarily
indicated that he would have difficulty following the proceedings of the
court.
15. As to Mr Steurer’s comments about finding the proceedings of a
court “gobbledygook”, and that often, he can
“sit in court and
let them talk without absorbing anything that he said ... it is just
jargon”, I do not consider that
these indicate difficulty in following the
proceedings of the court within the meaning of s 311 of the Crimes
Act.
16. Dr George’s comments imply that an accused person can only be
found fit to plead if he or she has the ability to follow
the course of
proceedings in a court, including the ability to understand legal terminology
and the legal processes that were being
undertaken, as well as a willingness to
keep concentrating on those legal processes. If this were the real test, it is
clear that
a large majority of persons involved in criminal proceedings could be
assessed as unfit to plead. Mr Steurer’s reported comment
that he had
bought himself a dictionary in order to be able to look up some of the terms
which are used in court indicates not that
he would be unable to follow the
course of proceedings in court to an extent that rendered him unfit to plead
but, to the contrary,
that he might have a better understanding of court
processes than many other accused persons with no relevant questions over their
mental processes.
17. Dr George did not specifically address the delusional
beliefs that had concerned Dr Allnutt in his original fitness to plead
assessment. He noted that Mr Steurer did not report any persecutory delusional
ideas, but referred to comments from Mr Steurer that
“he often
communicated with his friends through the process of thought
transference”. To the layperson that belief would
appear to be
delusional, but Dr George does not identify it as such; nor does he note
the absence of delusional beliefs of the
kind that concerned Dr Allnutt.
Ability to give instructions to the person’s lawyer (par 311(1)(f))
18. In relation to this criterion, Dr George reported as follows:
Lastly, he was asked whether he felt capable of giving instructions to his solicitor. He said in response to this, “I am inclined to leave it up to him (solicitor)”. He was then asked whether he had ever spoken to his solicitor about the nature of his case and his response to this was to say “yes, I have talked to him about what would happen if my mother passed away ... ”. By this, he was indicating that he really did not understand the nature and the context of the question and that in all likelihood, he would have difficulty communicating effectively to his legal representative with respect to different aspects of his case.
19. I am not persuaded that Mr Steurer’s response to Dr George’s
question necessarily indicated an inability to understand
the question or a
difficulty in communicating effectively to his legal representatives about
aspects of his case. It seems to me
far more likely to have indicated a simple
misunderstanding of Dr George’s question, of the sort that occurs
routinely in communications
between people whose mental functioning is not in at
all compromised. Dr George does not report making any attempt to clarify his
question, in a way that would be normal in a conversation between people whose
mental capacities were not in issue. I do not regard
Mr Steurer’s
possible misinterpretation of Dr George’s question, or his possible
inclination to focus on issues
that were of most concern to him (particularly
his mother) rather than ensuring that he answered exactly the question asked by
Dr George,
as indicating an inability to properly instruct his legal
representatives. Among other things, I would expect Mr Steurer’s
lawyers
to put more effort into clarifying any instructions they received that seemed
ambiguous or not properly directed to the questions
they had asked.
20. I
note that in 2007, when Dr George assessed Mr Steurer as being in much worse
condition mentally than he found him in 2009, Dr
George did not have any
concerns about Mr Steurer’s ability to instruct his legal
representatives.
21. I note also in this context that Mr Steurer’s
counsel, who has been acting for him throughout the court proceedings, indicated
from the bar table that his (admittedly inexpert) assessment was that Mr Steurer
was “mentally the fittest I’ve seen
him” and, in particular,
advised that he had no concerns at that stage about accepting instructions from
Mr Steurer. I took
account of this advice (albeit that it was advice confirming
rather than questioning fitness to plead) in reliance on the statement
of the
Court of Criminal Appeal in R v Dashwood [1943] KB 1 at 4, that information
raising a question about an accused’s fitness to plead may be accepted
from any source. The Court said:
It does not matter whether the information comes to the court from the defendant himself or his advisers or the prosecution or an independent person, such as, for instance, the medical officer of the prison where the defendant has been confined.
22. In summary, then, it seemed to me that I was not obliged to accept Dr
George’s assessment that Mr Steurer was currently
unfit to plead. In
reaching this conclusion, I took account of the following matters:
(a) Dr
George reported that there had been a noticeable improvement both in Mr
Steurer’s physical health and in his ability
to communicate and discuss
matters with no obvious formal thought disorders, and that Mr Steurer was having
fewer auditory hallucinations
than previously, including sometimes going for
weeks at a time with no such hallucinations. Although he did not do any formal
testing
of Mr Steurer’s cognitive functions, Dr George assessed him as
oriented in time, place and person, with a reasonable memory,
reasonable
judgment and partial insight; I do not consider that limited insight of itself
raises any question in relation to fitness
to plead.
(b) The concerns that Dr
George expressed in his re-assessment related to matters that he had not seen as
a problem in his earlier
assessment of Mr Steurer. The emergence of those
concerns, despite an improvement in Mr Steurer’s mental health generally
and no indication of any deterioration in particular aspects of his mental
health, did not seem to be consistent with Dr George’s
overall assessment
of Mr Steurer’s mental health, or to be based on a proper interpretation
of s 311.
(c) The fact that the trial, if it proceeded, would be over in a
matter of hours.
(d) Mr Steurer’s counsel’s advice that he had no
concerns about Mr Steurer’s current capacity to give
instructions.
23. On this basis, I remained satisfied that Mr Steurer was fit
to plead, so his trial was able to proceed in the normal way.
The trial
The significance of a person’s mental state in criminal proceedings
24. For reasons which will become apparent, it is useful at this stage to set
out the processes in the ACT for dealing with accused
persons whose mental
state, either at the time of the alleged offence or at the time of trial, may be
in issue. Relevant provisions
of Part 13 of the Crimes Act are set out in
Appendix A to this judgment.
25. There are two main ways in which a
person’s mental state may be relevant to the way in which the criminal
justice system
deals with their liability for conduct that might constitute a
criminal offence.
26. The criminal justice system starts from the presumption
that an accused person is capable of participating in that system in various
ways, such as by entering a plea and giving instructions to his or her lawyers,
and is capable of understanding the basics of criminal
proceedings (such as that
a trial is an inquiry about whether he or she committed the relevant offence).
In the ACT this is expressed
as a presumption that an accused person is
“fit to plead” (Crimes Act s 312(1)). It may be established,
however, that
because of the accused person’s mental state, he or she is
not capable of such participation; this is described in the ACT
in terms of the
accused person not being fit to plead.
27. Secondly, there is the question of
the accused person’s mental state at the time the alleged offence was
committed. In general
terms, the significance of this question is whether an
accused person was capable of forming whatever intention was necessary to
render
the person criminally liable for his or her actions.
28. There is no
necessary connection between these two issues. In some cases, a person whose
original actions (the offending behaviour)
were affected by his or her mental
state will still or again be affected by mental problems in relation to
participation in the resulting
criminal proceedings. In other cases a person
whose offending behaviour was affected by a disordered mental state may be
entirely
fit to plead by the time a criminal proceeding is instituted in respect
of that behaviour, and equally, a person who was entirely
in control of his or
her offending behaviour may, by the time a criminal proceeding is instituted in
respect of that behaviour, have
lost the capacity to participate in that
proceeding.
29. It would seem logical for each question of mental capacity to
be dealt with at the appropriate point in the criminal proceeding
and according
to its immediate significance, but without confining the options at later points
in the proceeding except where there
is a direct link between the options
concerned and the question of mental capacity. In particular, there is no
reason that I can
see why a finding in relation to an accused person’s
fitness to plead should limit the options for dealing with the consequences
of
the accused’s mental state at the time of the alleged offence.
30. However, the approach suggested at [29] above is not the one adopted in the
ACT legislation. Rather, criminal proceedings are streamed depending on the
accused person’s
fitness to plead, and remain separate beyond the point
where fitness to plead would seem to be relevant, until the two different
kinds
of proceedings are drawn together again just at the point where separate
treatment would again seem to make sense.
31. In particular, the ACT
legislation seems to overlook the significance of a verdict of not guilty
because of mental impairment.
It might be thought implicit in the description
of a verdict as “not guilty by reason of mental impairment” that
there
should be no question of blame or punishment, only a question of the
safety of the community and the accused. As Hoeben J said in
R v SE [2009]
NSWSC 785 at [67] about the equivalent NSW verdict (not guilty on the grounds of
mental illness), it means “that legally the accused is not to
blame for
his actions nor to be punished for his actions”.
The ACT scheme—Crimes Act provisions
Fitness to plead
32. As already mentioned, the first question for the purposes of the criminal process is whether an accused person is fit to plead (Division 13.2, Crimes Act). If the person is found to be fit to plead, an ordinary trial is held (s 315B). If the person is found unfit to plead and unlikely to become fit to plead, the next step is a special hearing (s 315C). A special hearing is to be conducted “as nearly as possible as if it were an ordinary criminal proceeding” (s 316(1)), but in the ACT the question to be answered is whether the fact-finder (jury or judge) is satisfied beyond reasonable doubt that “on the evidence available, the accused engaged in the conduct required for the offence charged (or an alternative offence)” (ss 316(9) and 317). The purpose of a special hearing is to ensure that unless the conduct can be proved beyond reasonable doubt, the accused person will be acquitted despite his or her unfitness to take part in a normal trial.
Verdicts available at ordinary trials and special hearings
33. At an ordinary trial (s 321 of the Crimes Act), the available verdicts
are:
(a) guilty;
(b) not guilty (an ordinary acquittal); and
(c) not
guilty by reason of mental impairment (a “special verdict”).
34. At a special hearing (s 317), the available verdicts
are:
(a) not guilty (equivalent to an ordinary acquittal); and
(b) a
finding that the accused engaged in the conduct required for the offence charged
or an alternative offence (engaging in conduct
means doing or omitting to do an
act and does not include any mental element; s 13 of the Criminal Code 2002
(ACT), and see R v King (2004) 155 ACTR 55 at [21]).
35. Under the
legislation but for no apparent reason, a verdict of not guilty by reason of
mental impairment is not available at a
special hearing, even if the court or
jury could be satisfied of the appropriateness of that verdict in the same way
as they could
be satisfied for an accused who is fit to plead. Thus, a finding
at a special hearing that the accused engaged in the conduct required
for a
relevant offence covers two quite different cases, namely the case of a person
whose actions were attributable to mental impairment
and that of a person whose
actions were wholly or largely unrelated to any mental impairment.
Consequences of verdicts
36. The verdicts of guilty and not guilty have the same consequences for a
person who has been subject to a fitness to plead inquiry
as they have for an
accused whose mental capacities have not been in issue. That is, a person found
guilty at an ordinary trial
will be sentenced in the normal way, and a person
found not guilty without qualification at an ordinary trial or a special hearing
will go free.
37. A verdict of not guilty because of mental impairment (a
verdict available in an ordinary trial), and a finding that the accused
engaged
in the conduct required for the offence charged or an alternative offence (a
verdict available in a special hearing), although
not necessarily reflecting
similar findings as to the person’s culpability, have the same
consequences as each other. Those
consequences are as follows:
(a) First,
the court must order either that the accused be detained in custody until the
Administrative and Civil Appeals Tribunal
(ACAT) orders otherwise, or that the
accused submit to the jurisdiction of ACAT to enable ACAT to make a mental
health order (ss 319
and 324 of the Crimes Act).
(b) Secondly, if the
order is that the accused be detained in custody, the court must also indicate
whether, if the accused had been
convicted at “normal criminal
proceedings” (s 301(1) or “had not been acquitted”
(s 302(1)), it would
have imposed a sentence of imprisonment and if so, the
court must specify its “best estimate” of the sentence it would
have
considered appropriate if the accused had been found guilty of the offence
(ss 301(2) and 302(2)). The court must not
order that an accused be
detained for longer than the estimated sentence (s 303).
38. This is the
framework within which I have been required to deal with the charge against
Mr Steurer. I shall return to this
framework after dealing with Mr
Steurer’s trial.
The plea
39. Following my determination that Mr Steurer was fit to plead, he was arraigned and entered a plea which I recorded as “not guilty by reason of mental impairment” (Mr Steurer’s words were “not guilty by reason of psychiatry problem”).
Judge-alone trial
40. On 15 April 2008 Mr Steurer had elected for trial by judge alone. Section
68C of the Supreme Court Act 1933 (ACT) specifies the procedures to be followed
for a trial by judge alone. In summary:
(a) the judge can make any findings
of guilt that could have been made by a jury, and those findings have the same
effect as jury
verdicts;
(b) the judge must provide a judgment setting out
the principles of law he or she applied and the findings of fact he or she
relied
on (this requirement has been interpreted as requiring the judge to set
out also the reasoning process linking the law and the facts,
and a
justification for the verdict, Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250);
and
(c) the judge must take into account any warnings that would, under a
Territory law, have had to be given to a jury in the case.
General directions
41. I set out first the general directions I have given myself.
42. The
prosecution has brought this charge and the prosecution bears the burden of
proving it. Guilt must be proven. The accused
does not have to prove
innocence. The presumption of innocence means that the accused does not have to
give or call any evidence
and does not have to establish his innocence. He is
entitled to be presumed innocent of any charge until his guilt has been proven
to the standard of proof that the law requires, namely beyond reasonable doubt.
To prove guilt, the burden of proof rests upon the
prosecution to prove each and
every element or ingredient of the offence charged beyond reasonable
doubt.
43. It is not enough for the prosecution to persuade me that the
accused is probably guilty or even that he is very likely guilty.
On the other
hand, it is virtually impossible to prove anything to an absolute certainty when
dealing with the reconstruction of
past events, and the prosecution does not
have to do so.
44. If the accused offers or suggests an explanation which is
consistent with his innocence, he is not required to prove that explanation.
It
is for the prosecution to disprove the explanation, or show that it is
irrelevant; if the prosecution does not do so, the prosecution
has not proved
its case to the required standard of proof.
45. In deciding what evidence I
accept and what evidence I reject, I may take account of all manner of things,
including what a witness
had to say; the manner in which the witness said it;
and the general impression which the witness made upon me when giving evidence.
I am not obliged to accept the whole of a witness’s evidence. I may, if I
think fit, accept part and reject part of the same
witness’s
evidence.
46. The accused did not give evidence at the trial; however in the
circumstances I do not see any need to set out the usual directions
about
inferences that must not be drawn from that fact.
What needs to be proved, and by whom—Criminal Code provisions
47. Sections 27, 28, 56, 57, 58, 59 and 60 of the Criminal Code 2002 (ACT) are
set out in Appendix A to this judgment. They provide as follows about mental
impairment and criminal responsibility, including
how mental impairment must be
proved.
(a) The prosecution has the legal burden of proving (beyond
reasonable doubt) every element of an offence relevant to guilt, and of
disproving (also beyond reasonable doubt) any matter in respect of which the
defendant has discharged an evidential burden of proof
(ss 56 and 57(1));
and
(b) A person is not criminally responsible for an offence if, at the time
of the offence, a mental impairment meant that the person:
(i) did not know
the nature and quality of his or her conduct (s 28(1)(a));
(ii) did not
know that the conduct was wrong (defined as being unable to “reason with a
moderate degree of sense and composure
about whether the conduct, as seen by a
reasonable person”, was wrong; see ss 28(1)(b) and 28(2)); or
(iii) could not control the conduct (s 28(1)(c)).
(c) There is a
presumption against a person having suffered from a mental impairment at the
time of the conduct required for the offence
(s 28(4)).
(d) This
presumption can be displaced if it is proved on the balance of probabilities
that the person was suffering from a mental
impairment (s 28(5)).
(e) An accused person wishing to deny criminal responsibility by
establishing that he or she was suffering from a mental impairment
has an
evidential burden of proving mental impairment; that is, unless the prosecution
has already presented sufficient evidence
to that effect (s 58(5)), the accused
must present or point to evidence suggesting a reasonable possibility of the
necessary mental impairment (s 58(2)). “Mental impairment” for
these purposes is defined in s 27 as including, relevantly, mental illness,
which is defined as “an underlying pathological infirmity of the
mind”.
48. Under s 321 of the Crimes Act, where an accused pleads not
guilty because of mental impairment to an indictable offence before the Supreme
Court, the 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.
49. Thus the necessary steps in this trial are as follows. First, the
prosecution must prove Mr Steurer’s conduct, being the
killing of his
father but not including any mental element of the offence, beyond reasonable
doubt. If this is not done, then Mr
Steurer is entitled to an ordinary verdict
of not guilty. If it is done, the question then becomes Mr Steurer’s
responsibility
for that conduct. Unless the prosecution has already done so,
the defence may then point to evidence suggesting a reasonable possibility
that
Mr Steurer was suffering from a mental impairment such that he cannot be
held criminally responsible for his conduct.
If:
(a) evidence suggesting a
reasonable possibility of a mental impairment is identified; and
(b) I am
satisfied on the balance of probabilities that Mr Steurer was suffering from
such a mental impairment; and
(c) I consider appropriate a verdict of not
guilty because of mental impairment; and
(d) the prosecution agrees to the
entering of that verdict;
then I must enter a special verdict that Mr Steurer is not guilty because of mental impairment.
The killing of Michael Steurer
50. Counsel for the DPP tendered an agreed statement of facts, which was as follows:
The accused is charged with the murder of his father, Michael Steurer.
The accused is 51 years old and has for the last 20 years been treated in the community for paranoid schizophrenia by Dr Ramesh Gupta. He receives fortnightly injections of Modecate which are administered by the ACT Health Service. The accused received his injection of Modecate at 9.00 am on Thursday 26 April 2007.
At about 2.45 pm that day the accused was at his home address ... . The accused lives there with his father and mother.
The accused had been helping his father put up some shelving in the garage of the premises. The accused and his father had a verbal disagreement about how the shelving should be put up and the accused returned to the house. A short time later his father entered the house and sat down on a sofa bed in the dining room near the accused.
He asked his father “have you ever been stabbed?”. His father replied “no”.
The accused went to the kitchen and took a 29 centimetre stainless steel knife from a drawer. He then returned to the dining room and stabbed his father in the chest several times. His father fell to the floor and died as a result of blood loss.
The accused then went to his bedroom.
The accused’s mother had been outside the house watering the garden. She returned inside and discovered her husband’s body in the dining room. She knelt down beside him and saw that he was not breathing. Mrs Steurer went to the accused’s bedroom and saw the accused sitting at his desk. She said “You’ll have to find other accommodation”. The accused did not respond.
Mrs Steurer then left the bedroom and rang her GP, Dr Marinos. Dr Marinos immediately left his practice and arranged for an ambulance.
Dr Marinos arrived at the premises about 2:53 pm. Mrs Steurer met him outside the premises and took him to the body of her husband. Dr Marinos examined Mr Steurer and determined that he was dead and did not attempt resuscitation. He went to the accused’s bedroom. The accused told Dr Marinos that he had stabbed his father. Dr Marinos asked “Why?” and the accused responded “I wanted to”.
Police attended and cordoned off the house. The accused spoke to several police officers and told them that he killed his father.
He was taken into custody and participated in a taped record of interview after being assessed as fit for interview by Dr Denise Krause. During the record of interview the accused made full admissions to killing his father. He stated that he stabbed his father at least three times in the chest. He stated that he aimed to stab his father in the heart in order to kill him. He said that his father had attempted to defend himself but he overpowered him. He said that he used the knife to cut through his father’s shirt first so that he could get to his heart. He stated that he had to use a lot of force and bent the knife when it hit bone.
He stated he wanted to kill his father because he didn’t like him enough. He stated that he had thought about killing his father in the past while he was sleeping. He stated that he didn’t do it at those times because he wanted his father to be awake so that his father “could feel it”.
51. There was no objection from defence counsel to any part of the statement of facts and the statement satisfied me beyond reasonable doubt that Mr Steurer engaged in the conduct required to establish the charge of murder.
Mr Steurer’s mental state at the time of the killing
52. Counsel for the DPP then tendered psychiatric assessments of Mr Steurer
prepared by three psychiatrists, whose qualifications
are set out in Appendix B
to this judgment. They were:
(a) report by Dr R K Gupta, Senior Specialist
in Psychiatry, Phillip Health Centre, ACT Health, dated 17 July 2007;
(b) report by Dr William E Lucas, Consultant Forensic Psychiatrist, dated 29 October 2007; and
(c) report by Dr Stephen H Allnutt, Senior Consultant Forensic Psychiatrist,
dated 30 March 2008.
53. Each report was prepared, and assessed
Mr Steurer’s mental functioning, at a time relatively close to the
time of the
killing.
The expert assessments
Report of Dr Gupta
54. Dr Gupta has been Mr Steurer’s treating psychiatrist since February
1987 (that is, for more than 20 years before the killing
of Michael Steurer).
55. Dr Gupta diagnosed Mr Steurer as suffering from Schizophrenia
ICD-10 Code; DSM-IV Code 295.60, and reported that, in 2007,
he had suffered
from the illness for at least 20 years. He explained that:
Schizophrenia is an illness characterised by specific psychological symptoms and leading, in the majority of cases, to a disorganisation of the personality of the patient. The symptoms interfere with the patient’s thinking, emotions, conation, and motor behaviour, and with each in a characteristic way. The disorganisation of personality often results in chronic invalidism and life long disability.
56. Dr Gupta quoted lengthy extracts from Mayer-Gross, Slater and Roth, Clinical Psychiatry, Baillière, Tindall & Cassell, London, 3rd ed, 1970 to explain some of the significant disturbances affecting schizophrenic patients; I repeat much of the material quoted by Dr Gupta below, because it provides an explanation for many of Mr Steurer’s most notable symptoms in a way that is relatively accessible to the lay reader:
DISTURBANCE OF EMOTIONS IN SCHIZOPHRENIA
Emotional blunting.
Emotional blunting in the established schizophrenic was regarded by Kraepelin as characteristic of the personality change in chronic cases. He spoke of “affective dementia” in contrast to the “intellectual dementia” seen in patients with demonstrable brain damage.
The loss of capacity for experiencing certain emotions may be an early symptom and, in some cases, for a long time the only sign of the disease. The flattening of emotional reaction progresses from the more refined and tender feelings of sympathy and regard for family and friends, to primitive emotions of fear, rage, hilarity and eroticism. The latter often persist when differentiated responses have long been blunted. The theory of a primary withdrawal can explain the schizophrenic’s loss of interest in his appearance and his lack of regard for the feeling of others. It cannot, however, account for the rapid fluctuations of emotion observed in many schizophrenics, nor for the incongruity between affect and thought and action. Transient states of election, ecstasy, desolation, dread or panic, bewildering the patient, are frequent in early schizophrenia. They may occur in sudden bursts side by side with emotional blunting and the absence of warm human feelings. They may be the basis of delusional ideas or combine with primary delusions in an acute schizophrenic attack.
INCONGRUITY OF AFFECT IN SCHIZOPHRENIA
Incongruity of affect and accompanying thought can be considered as a further example of splitting of personality. It sometimes appears as if only the patient’s expression of emotions is not in step with his flow of ideas or of talk. But from many descriptions the disassociation between feeling and thinking is beyond doubt. The appropriate emotion is in other cases only delayed in time so that the patient speaks of bereavement with carelessness followed by a flood of tears some time later when an indifferent subject is being discussed. A trifling affair may arouse wild fury and an incident pregnant with pathos may be treated with levity.
Blunting of emotion and the other primary emotional disturbances are partly or wholly responsible for callous and apparently motiveless crimes of violence, which sometimes are the first sign of a beginning schizophrenia (Wilmanns, 1922). They include homicide, suicide, sexual attacks or self-mutilation. The lack of feeling removes civilized restraint; but a delusional misinterpretation or a hallucinatory command may also contribute to the antisocial act. On the other hand, the weakness of will and indecision of the schizophrenic prevents the execution of such deeds in most cases where otherwise the risk might arise. The actual number of crimes committed by established schizophrenics is, in fact, relatively small.
DISTURBANCES OF VOLITION IN SCHIZOPHRENIA
Here again the most common disturbance is a blunting of will power, Berze’s basic insufficiency of activity. Complaints of patients about the weakening of their will, their inability to make decisions or to act, are not rare; but many do not seem to realize their reduced activity and efficiency. They have ready, though often vague or empty, excuses if asked why they are inactive, spend their days in bed, and do not progress in their work; or they regard these matters as requiring no explanation.
The latter can be theoretically attributed to disturbance of the self. In fact, some workers have made the weakness or loss of the self the central symptom of schizophrenia. The passivity phenomena in which this loss is best seen are indeed very characteristic of schizophrenia. The patient tells us that his thoughts, feelings, speech and action are not his own. His thoughts are put into his head by an outside influence; his emotions are artificially made; he is made to laugh, to cry, to remain mute, to utter nonsensical words or obscene phrases, to perform bizarre movements, or to act against his will.
DELUSIONAL BELIEFS IN SCHIZOPHRENIA
Encapsulation of delusional ideas is frequently seen in residual states. Patients vary very much in the degree to which they can maintain their original personality and adapt to a normal life. Whether they live a more or less sheltered life, inside or outside hospital, depends on this. In some cases, one sees a longitudinal splitting, as it were, in the current of life; both the reality-adapted and the delusional world go on alongside each other. On certain occasions, e.g. when meeting certain relations, or a return to certain localities, or during an interview with the doctor who treated the patient early in his illness, the delusional complex comes to the surface and florid symptoms reappear. The chronic schizophrenic is at the mercy of the psychological situation in which he finds himself, a quality which can be used to his advantage therapeutically.
57. Dr Gupta then applies his understanding of schizophrenia to the transcript of Mr Steurer’s police interview on the day his father was killed.
... during the interview Reinhold laughs when answering questions 125, 131, 140, 179, 195, 204, 206, 211, 235 and 236. These are Reinhold’s inappropriate emotional responses to the demands of the situation and as such are typical and are diagnostic of Schizophrenia. Incongruent emotional reactions indicate advanced disease processes of Schizophrenia. His inappropriate emotional responses are a testimony to the illness he suffers namely Schizophrenia and also its effects on his mind causing the defect as evident in his emotionally incongruent laughter’s [sic] in answering these questions.
58. As to the possibility that the earlier dispute about the carpentry activity (mentioned in the statement of facts set out at [50] above) is the trigger for stabbing his father, Dr Gupta says:
I therefore reject the notion that the carpentry dispute in itself is the trigger for the stabbing of Mr Michael Steurer. I am of the opinion that it is the thought that comes to him to stab his father, which is an important trigger in Reinhold’s subsequent action. Dr Bonner in his assessment highlights the importance [of] this particular thought. This thought must be separated from what happened outside (the carpentry dispute) for the simple reason that Reinhold was not even himself aware outside that he was going to mortally wound his father. Dr Bonner refers to this type of thought as ‘autochthonous’ thought. A thought that has certain degree of sudden urgency about it and happens in schizophrenia. The reason that a patient fails to have any internal resistance to such thought or idea or impulse is that the illness process of schizophrenia erodes the patient’s volitational capacity (capacity to be able to assert one’s own will) as is described at the beginning of this report. Furthermore, such thought and its medico legal importance has been the subject of numerous rulings and over rulings by the courts of law.
59. Dr Gupta concludes that Mr Steurer:
... has an established diagnosis of Schizophrenia, which is a mental illness and falls within the realm of Mental illnesses in the International Classification of Mental illnesses well as in American classificatory Diagnostic and Statistical Manual for mental illnesses. Schizophrenia as it affects reasoning, all mental faculties and processes as a whole, it is a disease of mind as well.
Defect of Reason
It is my opinion that from his illness namely Chronic Schizophrenia, Mr Reinhold Steurer has developed such defect of reason of his mental abilities/faculties that at the time of committing the offence he was incapable of controlling his relevant act of mortally wounding his father.
It is clearly documented in Dr Bonner’s interview of Mr Steurer (Dated 27.04.07) after he was arrested and was in remand that he (Reinhold) got the thought that he must stab his father. There was no internal resistance to this thought in Reinhold’s mind arising from moral and emotional understanding of the rights and wrongs, which have been eroded by the pathological processes of Schizophrenia. He did not even for a split second think through about the emotional, social and legal consequences of what he was going to do. He was like a robot as his illness has made him so. He gets up goes to kitchen and picks up a knife and unable to stop himself he stabs his father. He has no mercy for as I quoted earlier from the textbook under the heading of emotions, the disease process has blunted the fine human qualities of care, consideration, love, regard, sympathy, empathy out. It would then appear Mr Steurer was driven by an overwhelming idea to stab his father without having been able to reason with some calmness, so know [sic] he ought not to stab his father, but still felt driven to do it.
60. Dr Gupta summarises his conclusions about Mr Steurer as follows:
In my opinion Mr Reinhold Steurer suffers from a mental illness being Chronic Schizophrenia. That he has no senility, no intellectual disability and no brain damage.
Mr Reinhold Steurer’s said illness is of long standing duration and is of permanent nature. This is not a condition that in this case is a reaction of healthy mind to powerful extraordinary external stimuli. He continues to receive treatment and has always complied with treatment requirements. He has been a model patient in his treatment compliance as well as punctuality in work place as well as with his appointments at the Health Center.
It is my opinion that Mr Reinhold Steurer did not know the nature and quality of his conduct of mortally wounding his father (beyond very narrow cognitive knowledge) by reason of his illness being Chronic Schizophrenia, which has caused him impairment of his thinking, emotions, volitions and perceptions.
It is my opinion that Mr Reinhold Steurer at the time of killing his father did not know that his conduct was emotionally and morally wrong. He did not know the moral, social and personal consequences of such conduct either. Furthermore due to the nature of his illness he had no capacity to reason/provide an internal resistance with moderate or any degree of sense and composure about whether the conduct as perceived by reasonable people was wrong.
It is my opinion that Mr Reinhold Steurer’s action at the time of mortally wounding his father i.e. ‘stabbing’ he was acting as a robot to his idea, thought, impulse due to his emotions, volition, thinking processes and indeed the sum total of all his mental faculties having been severely damaged by his long standing illness.
Report of Dr Lucas
61. Dr Lucas provided a comprehensive assessment of Mr Steurer’s history and general mental condition, and reported in detail on the accounts of the killing and its aftermath that were given by Mr Steurer and others. He emphasised the “high degree of emotional blunting and incongruous reactions, in effect, an absence of emotional reactions in any way appropriate to what had happened” that Mr Steurer had demonstrated in talking to police and to experts who had seen him shortly after the incident. His summary was as follows:
62. That is, Dr Lucas believes that Mr Steurer did not know his conduct was wrong. Possibly he also believes that Mr Steurer could not control his conduct; Dr Lucas’s use of “it could be said” is ambiguous—it is not clear to me whether this phrase expresses uncertainty about whether the particular words he has chosen are apt or uncertainty about the substance of the matter, namely whether Mr Steurer was really unable to control his conduct.
Report of Dr Allnutt
63. Dr Allnutt’s report refers to a review on the papers, but Dr Allnutt
has confirmed that he saw Mr Steurer twice in order
to prepare the report. I
note also that the headings in Dr Allnutt’s report, and indeed his
introduction, refer to Michael
Steurer, the victim, but it is apparent that
Dr Allnutt’s assessment is in fact of Reinhold Steurer, the accused.
64. Dr Allnut made the following comments about Mr Steurer’s mental
state at the time of his father’s killing:
The Defendant describes a number of delusional beliefs of a persecutory nature that were present at the material time that the alleged offence occurred. He also describes ongoing hallucinatory experiences and, in my view, based on my interview with him and a review of the material, there are reasonable grounds to conclude that at the material time that the alleged offence occurred the Defendant was suffering from a condition consistent with the legal definition of “mental impairment” in the form of psychosis.
Psychosis is a state of mind that impacts on a person’s capacity to reason and to make rational interpretations about his environment. Striking in his account of his mental state at the time that I saw him was the strong impression I gained that the delusional beliefs that he held at the time that I saw him were probably present at the time of the alleged offence. His presentation when I saw him, whilst slightly improved was similar to that during the police interview. Given his history and the nature of symptoms he described to me including beliefs that he has special patents, that Justice Gunnow was involved in his patents; that he was previously in the Iraq War; that he had previously been an Admiral; that his father had previously shot him in the head; that people communicated him with through “prompts” and telepathically; added to this, probably cognitive impairments caused by his schizophrenia such as inflexibility in thought, and concrete thinking – I believe he was significantly impaired in his capacity to make rational interpretations about his environment or to have insight into his thought processes such that he suffered from a severe defect of reason.
65. Dr Allnut does not accept that Mr Steurer satisfies all three tests for avoiding criminal liability. He is not convinced about Mr Steurer’s incapacity to know the nature and quality of his conduct or his inability to control his conduct, saying:
I do not believe, however, that he was so impaired by his mental impairment that he was incapable of knowing the nature and quality of his actions. That is, I believe that he maintained capacity to know that by stabbing his father in the chest around his heart he could potentially take his father’s life. I am also of the view that he appreciated that his action could result in the death of his father.
I am not of the view that the Defendant lost capacity to control himself. I believe the Defendant acted in a deliberate manner and made a deliberate decision to act in that manner. While he might have been angry, I do not believe that his capacities to control himself were significantly eroded by his mental illness.
66. Dr Allnut is, however, convinced that Mr Steurer did not know that his conduct was wrong, saying:
I am of the view, however, that the Defendant was significantly [compromised] in his capacity to reason about the wrongfulness of the matter at the material time. While the Defendant does describe being aware to some degree of the wrongfulness of his actions around the time of the alleged offence, his description of his mental state was that he also felt entitled, and saw no other options but killing his father as a reasonable option. While his presentation at police interview and to others was on face, of an individual who coldly and callously took his father’s life with little provocation and no apparent remorse, this presentation is due to an “erosion” of his cognitive faculties due to the long term effects of the disease of schizophrenia and not due to an underlying callous antisocial type of personality. As described by Dr Gupta, people with schizophrenia can manifest emotional blunting and appear disinterested or emotionally disconnected from tragic events that impact on them and others, and not uncommonly discuss acts such as their involvement in a homicide in dispassionate and seemingly matter of fact manner showing little evidence for remorse (if the person delusionally believes their actions were justified then this would be another reason to appear less regretful).
His description of events to me suggest that he was limited in his capacity to reason about the matter of wrongfulness with a moderate degree of sense of composure because of the impairments in his cognitive flexibility compounded by ongoing long-term delusional beliefs which might have included (at least at some level) a belief that his father had previously shot him (with possible associated feelings of resentment). In this sense, his belief that his father should die and that this was the best way of dealing with the situation could be regarded a delusional in and of itself. I believe that while aware that his actions were legally wrong he saw the stabbing of this father as justifiable as a consequence of his limited capacity to reason about the issue.
Assessment—general
67. All three doctors agreed that Mr Steurer is a person of above-average
intelligence, with no cognitive deficiency or impairment,
no intellectual
disability, no brain damage and no personality disorder. There was no
suggestion that his auditory hallucinations
influence his
decisions.
68. There was general agreement that Mr Steurer suffers from
chronic schizophrenia (described by Dr Lucas as “paranoid
schizophrenia”,
and by Dr Allnutt as involving “persecutory
delusion”), and that when he killed his father he did not know his conduct
was wrong. Dr Gupta also believes that Mr Steurer did not know the nature and
quality of his conduct, and he and possibly Dr Lucas
also believe that at the
time of the killing Mr Steurer was not, meaningfully, in control of his actions.
Special verdict
69. The reports of Drs Gupta, Allnutt and Lucas satisfied me on the balance of
probabilities that at the time he killed his father,
Mr Steurer was
suffering from a mental impairment, being chronic schizophrenia, that meant at
least that he did not know that
his conduct in killing his father was wrong
“in the sense that ordinary reasonable persons understand right and
wrong”.
70. I am not convinced on the balance of probabilities that Mr
Steurer did not know the nature and quality of his conduct, and I do
not need to
consider what is covered by the test in s 28(1)(c) of the Criminal Code
that a person is unable to control his or her actions, or specifically whether
Mr Steurer was unable to control his actions within
the meaning of that
provision.
71. The finding that Mr Steurer did not know that his conduct was
wrong was sufficient to satisfy me that a special verdict of not
guilty because
of mental impairment was an appropriate verdict for the purposes of
s 321(2)(a) of the Crimes Act.
72. Counsel for the prosecution agreed
to the entering of the special verdict.
73. Accordingly, I formally entered
a special verdict that Reinhold Steurer was not guilty of the murder of his
father, Michael Steurer,
because of mental impairment.
Orders required after special verdict entered
74. When a special verdict is entered in relation to a serious offence, s 324 of
the Crimes Act requires the court to make one of two possible orders,
being:
(a) an order (which I shall refer to as a detention order), that the
accused be detained in custody until the Administrative and Civil
Appeals
Tribunal (ACAT) orders otherwise; or
(b) an order that the accused submit to
the jurisdiction of ACAT to enable ACAT to make a mental health
order.
75. The detention order is the default order; the court may make an
order that the accused submit to the jurisdiction of ACAT to enable
the making
of a mental health order only if satisfied, having regard to the criteria for
detention in s 308 of the Crimes Act, that the latter order is more appropriate.
ACAT recommendation
76. A decision about which order should be made under s 324 of the Crimes Act
requires consideration of the criteria for detention set out in s 308. One of
those matters is any recommendation made by ACAT about how the accused should be
dealt with (s 308(e)). Accordingly, on 12 May 2009 I made an order seeking
a recommendation for this purpose from ACAT. On 15 September 2009 ACAT replied
recommending the making of a detention order rather than an order that Mr
Steurer submit to the jurisdiction of ACAT to enable it
to make a mental health
order. In making that recommendation ACAT relied on the experts’ reports
provided to me and did not
obtain further reports; noting that Mr
Steurer’s condition is of long standing and is not, in the view of any of
the three
doctors who reported, likely to change significantly, I do not have
any concern about this approach.
77. ACAT’s recommendation reflects its
concerns that:
(a) if Mr Steurer were ordered to submit to the jurisdiction
of ACAT, the processes for informing ACAT of the Court’s decision
and for
holding an inquiry into the referral of the matter to ACAT may take weeks or
even months (among other things, ACAT may need
to obtain further psychiatric
assessments), and until the process is completed and the mental health order
(probably a psychiatric
treatment order) is made, Mr Steurer would not be in
custody;
(b) mental health orders tend to be made for periods of up to 6
months; for a person in Mr Steurer’s circumstances to be kept
under
supervision for any significant period, this might require new mental health
orders to be made on multiple occasions;
(c) it is not clear that repeated
psychiatric treatment orders (or even a first such order) could be made in
respect of Mr Steurer,
given that ACAT is not convinced from a medical point of
view that all the criteria for making the order would clearly be satisfied
(among other things, the need for and the benefit of involuntary psychiatric
treatment is far from clear—see ss 28(b), (c) and (d) of the Mental
Health (Treatment and Care) Act 1994 (ACT)).
Other matters
78. The other matters to be considered, and my comments on them in the context of the ACAT recommendations, are set out below.
The accused’s mental condition and its implications for the future
79. Sections 308(a) and (b) refer to:
(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.
80. Mr Steurer has been being treated for his current condition for over 20
years. With the one tragic exception that has given
rise to these proceedings,
he has apparently managed to live a relatively normal life for many years,
including holding down a public
service position for over 15 years. None of the
psychiatric assessments suggest that the killing of his father indicated any
general
deterioration in Mr Steurer’s condition or an increased risk
of any further offending behaviour. Dr Allnut mentioned
the possibility
that Mr Steurer “had been acutely unwell at the time of the
offence”, and he cautioned that Mr Steurer
“continues to manifest
ongoing symptoms of a serious mental illness which could fluctuate over
time”. Dr Lucas reports
an interview with Mr Steurer at the Belconnen
Remand Centre shortly after his admission, and notes that the interviewer, a Ms
Joelene
Cravino, advised that there was “no indication of an acute
psychotic episode”, no new delusions, and an “unusual
calm”
considering his recent experiences. Dr Gupta reports that Mr Steurer continues
to receive treatment and has been “a
model patient”.
81. Nor was
there any suggestion that there is more treatment than has previously been
available that should be provided to Mr Steurer.
None of the three doctors
indicated any expectation that Mr Steurer’s current and long-standing
condition is likely to improve;
Dr Gupta specifically says that Mr
Steurer’s illness “is of long standing duration and is of permanent
nature”.
Dr Gupta does caution that Mr Steurer may be at risk of
self-harm, pointing out that in the “straight logic” often found
in
schizophrenia, Mr Steurer believes that since he killed his father he must also
be killed.
82. On the other hand, the likely arrangements for Mr
Steurer’s care were he to be released immediately do not seem to be
entirely
reliable; Mr Steurer’s mother is not young, and she may find
her role in managing Mr Steurer’s condition into the
future more
burdensome without the support previously provided by Mr Steurer’s father.
Counsel for the DPP suggested that I
might have regard to the evidence of
Mr Steurer’s mother at the committal hearing, during which she asked
the court to
give Mr Steurer bail and said that he was “better off at
home” and that “he wouldn’t stab me”.
Nature and circumstances of offence
83. Section 308(c) requires consideration of “the nature and circumstances of the offence with which the accused is charged”. These are described in detail at [50] above. The offence was one which, absent mental impairment, would have been a truly horrific one which would certainly have required a lengthy term of imprisonment. However the relevance of this where mental impairment has been found is not clear; in relation to an accused who has been found not guilty, there should be no need for punishment or deterrence, and I note that the risk of danger to the community is separately addressed in s 308(b)(ii).
Undesirability of detention in correctional centre
84. Section 308(d) sets out the principle “that a person should not be detained in a correctional centre unless no other reasonable option is available”. Mr Steurer is currently on bail and living in Brian Hennessey House at Calvary Hospital. If this accommodation, which counsel for the prosecution advised was a “semi-secure facility”, were available on a long-term basis it would in Mr Steurer’s interests and in his mother’s interests seem to be a reasonable and probably preferable alternative to confinement in the Alexander Maconochie Centre, and accommodating Mr Steurer there would not have any negative implications for the community more broadly. ACAT’s letter included advice that if a detention order is made, Mr Steurer may be able to be released on conditions, which could include conditions as to his accommodation. Thus it may be that Mr Steurer could remain in, or return to, Brian Hennessy House even if a detention order is made.
Conclusion
85. Having regard to ACAT’s recommendation and the reasons for it, and also to the likelihood that Mr Steurer’s condition will not improve and to the possible options for Mr Steurer’s accommodation under a detention order, I am not satisfied that instead of making a detention order, it would be more appropriate to order Mr Steurer to submit to the jurisdiction of ACAT so that it can make a mental health order. Therefore, I must make a detention order.
Best estimate of sentence
86. In conjunction with making a detention order, namely that Mr Steurer be
detained until ACAT orders otherwise, s 302 of the Crimes Act requires me to
indicate whether, if Mr Steurer had not been acquitted, I would have imposed a
sentence of imprisonment and if so,
to indicate a “best estimate” of
what that sentence would have been. Section 303 prohibits me ordering detention
for longer than the estimated sentence.
87. There are two problems that I see
with these legislative requirements. Before explaining those problems and
trying to estimate
what sentence I would have imposed if Mr Steurer had been
found guilty, it is useful to compare the ACT scheme, described in [32] to [38] above, with the NSW arrangements (I
have focussed on the NSW arrangements largely because the non-ACT cases drawn to
my attention
have all been NSW cases).
Comparison with New South Wales arrangements
88. The NSW arrangements are established by the Mental Health (Forensic Provisions) Act 1990 (NSW) (the NSW Mental Health Act). The following table compares the ACT and NSW arrangements. In each jurisdiction there is an alternative to a detention order but those alternatives are not relevant for present purposes. The shaded rows show the points of difference.
|
Consequences of verdicts
|
|||
|
ACT
|
NSW
|
ACT
|
NSW
|
|
Accused fit to plead—normal trial held
|
|||
|
Not guilty
|
Not guilty
|
Release
|
Release
|
|
Not guilty by reason of mental impairment
|
Not guilty by reason of mental illness
|
Order for detention and “best estimate” of prison term
|
Order for detention until released by due process of law
|
|
Guilty
|
Guilty
|
Sentence
|
Sentence
|
|
Accused unfit to plead—special hearing
held
|
|||
|
Not guilty
|
Not guilty
|
Release
|
Release
|
|
Accused engaged in conduct required for offence
|
Not guilty on the ground of mental illness
|
Order for detention and “best estimate” of prison term
|
Order for detention until released by due process of law
|
|
Accused committed offence
|
“Best estimate” of prison term (called “limiting
term”)
|
||
Fitness to be tried
89. The NSW Mental Health Act (s 19(2)) provides for a special hearing for a person who is unfit to be tried (equivalent to a finding of unfitness to plead in the ACT). However, the purpose of the NSW special hearing is described in s 19(2) as:
... ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged.
90. This contrasts with the ACT position described in [32] above, in that the ACT inquiry in a special hearing is only whether the person engaged in the relevant conduct, not whether he or she committed the offence.
Verdicts available at special hearing
91. As in the ACT, the special hearing is conducted “as nearly as
possible” as if it were an ordinary criminal trial,
although in NSW a
judge-alone trial is the default position for a special hearing (s 21A of the
NSW Mental Health Act).
92. The verdicts available at a NSW special hearing
(s 22) are:
(a) not guilty;
(b) not guilty on the grounds of mental
illness; or
(c) that “on the limited evidence available, the accused
person committed” the offence charged or an available alternative
offence.
Consequences of verdicts
93. As in the ACT, a verdict of not guilty at a special hearing has the same
effect as such a verdict reached at an ordinary trial
(s 26 of the NSW Mental
Health Act).
94. The consequences of a verdict at a NSW special hearing
that “on the limited evidence available, the accused person
committed”
the offence charged or an alternative one are that the
court:
(a) must indicate whether if the special hearing had been a normal
trial it would have imposed a sentence of imprisonment; and
(b) if so, must
nominate a “limiting term”, described as the “best
estimate” of the sentence the court would
have considered appropriate if
the person had been found guilty at such a trial (s 23).
95. The limiting
term, like a normal sentence, is set by reference to the circumstances of the
offence and the nature of the offender’s
culpability. The effect of the
limiting term is to ensure that a person is not unfairly disadvantaged by the
fact that the person
is or has become unfit to participate in a normal criminal
trial by the time the trial occurs (see ss 52(2) and 54). Once a limiting
term
is set, the Mental Health Review Tribunal makes determinations about where the
person should be detained which it notifies to
the court, and the court then
makes an order for detention having regard to the Tribunal’s
determination.
96. If at a special hearing in NSW a verdict of not guilty on
the grounds of mental illness is entered, the person is dealt with as
if such a
verdict had been reached at a normal criminal trial (s 25). In the ACT,
however, an equivalent verdict (“not guilty
because of mental
impairment”) is not available at a special hearing. The equivalent
verdict is instead subsumed within the
verdict that the person is found to have
engaged in the relevant conduct.
“Limiting terms” and “best estimates”
97. The effect of these two different approaches is that in NSW the setting of a
limiting term applies only to a person who is unfit
to be tried but who has been
found at a special hearing to have committed the offence charged, whereas in the
ACT the “best
estimate” requirement also applies to a person who, if
fit to plead, would have been found not guilty because of mental impairment
as
well as to a person who is fit to plead and who has at a normal trial been found
not guilty because of mental impairment.
98. By contrast, if in NSW a
person is found not guilty on the grounds of mental illness, the court makes an
order under s 39,
being either an order that the person be detained until
released by due process of law (which process involves a Judge or former
Judge
of the NSW Supreme Court) or an order that the person be released from custody.
The focus is not on blame or punishment (actual
or estimated) (see Hoeben J in R
v SE, quoted at [31] above), but on
ensuring the safety of the community and the accused. The requirements for
ensuring community safety are not seen
as bearing any necessary relationship to
the gravity of the accused’s actions, let alone to the gravity of those
actions in
the hypothetical case of the actions having taken place in the
absence of mental illness.
99. The logic of the NSW approach seems to be
that a person who continues to be a serious danger to him or herself or to the
community
may need to be detained for longer than would be justified by the
offence if committed by a person who is not mentally impaired.
The NSW
arrangements give full discretion in how long such a person is detained to the
Mental Health Review Tribunal; the requirement
that the Tribunal must be headed
for that purpose by a Judge or former Judge of the NSW Supreme Court presumably
reflects a view
that the requirements of justice must be observed in
administering the person’s detention. If the detention is related to
the
need for community safety (or the person’s own safety), then the fact that
the NSW approach may mean that a person is detained
for longer than would be
justified by the nature of his or her “offending” behaviour is
beside the point. Indeed, it
is possible that such a person might have been
compulsorily detained under mental health arrangements even where there had been
no
offending behaviour.
Problems with ACT approach
100. As mentioned already, I see two problems with the ACT approach.
Form and effect of detention order
101. The first appears to be a drafting problem which dates back at least to the Crimes Act as in force before the Crimes (Amendment) Act 1999 took effect. The prohibition in s 303 of the Crimes Act, like that in s 428C as in force in 1999 and thereafter, is on ordering detention for longer than a specified period (originally the maximum period of imprisonment, now the “best estimate” of a notional sentence). The problem with this is that the detention order is not an order that the accused be detained for a term specified by the court; it is an order that the accused “be detained in custody until the ACAT [formerly ‘the Tribunal’] orders otherwise”. There does not seem to be any point in limiting the court’s discretion to specify a time limit for the operation of the detention order because the court has no such discretion. Nor does the attempted limit seem to be necessary, since s 75 of the Mental Health (Treatment and Care) Act 1994 (ACT) says that nothing in s 72 or 74 of that Act “permits the ACAT to require a person to remain in custody for a period that is, or for periods that in the aggregate are, greater than the limiting period [being the period specified by the court as its best estimate]”.
Inappropriate application of “best estimate” requirement
102. The second and more substantial problem is the inappropriate application of
the “best estimate” requirement to a
person who has been (or should
have been) found not guilty because of mental impairment.
103. In NSW, the
“best estimate” for the limiting term for an offender who is, in
effect, being held criminally responsible
can be made taking into account almost
all those matters that would be relevant in sentencing a person who has been
found guilty
in a normal trial or who has pleaded guilty, although there may be
questions in relation to guilty pleas and remorse (R v Mitchell
[1999] NSWCCA 120; (1999) 108 A
Crim R 85 (Mitchell), discussed at [121] below). There may be aggravating
circumstances that would be relevant in sentencing, and for many such offenders
there will be
some kind of explanation for their actions which, while not
excusing those actions, might mitigate the sentence. There are also
likely to
be subjective features of the kind that would be relevant to an ordinary
sentencing process, often including mitigating
features.
104. In the ACT,
however, “best estimates” are also required for accused persons who
have been found not criminally responsible
(not guilty because of mental
impairment), or those who would have been acquitted on that basis if they had
been fit to plead. For
such an accused, it is likely (if not actually inherent
in the finding of mental impairment) that there will be neither mitigating
explanations nor mitigating subjective features, apart from the mental
impairment itself. The effect of this is that the “best
estimate”
for an offender whose actions were intentional and more or less rational (in the
sense that they were not entirely
attributable to any mental impairment) is
likely to be noticeably shorter than the estimate for an accused whose actions
were entirely
attributable to his or her mental impairment.
105. It is also
inherent in basing a best estimate for an accused person on a likely sentence if
the person had not been acquitted
that the best estimate will reflect an element
of punishment, which seems to be inappropriate in any case for a person who was
not
criminally responsible for his or her actions, and it will likely be a more
severe “punishment” because of the absence
of “rational”
mitigating features. On the other hand, the best estimate for such an accused
person will not necessarily
provide an appropriate period of protection for
either the person or the community; while protection of the community may be
relevant
in sentencing in that it may tell against any leniency in the sentence,
it cannot justify a sentence that is disproportionate to
what would be the
proper sentence for the offence if committed by an offender with no mental
difficulties. In Veen v The Queen [No.
2] [1988] HCA 14; (1988) 164 CLR 465 at 473, Mason CJ
and Brennan, Dawson and Toohey JJ said:
It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. The distinction in principle is clear between an extension merely by way of preventive detention, which is impermissible, and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.
Explanation for the “best estimate” approach
106. Consideration of how the ACT legislation came to have its current form suggests that the problems I have identified may be the result of a careless attempt to implement a sensible policy rather than the deliberate adoption of a flawed policy. The Explanatory Memorandum for the Crimes (Amendment) Bill 1999, which inserted the predecessors of, among others, ss 301, 302 and 303 of the Crimes Act, explains that the amendments are intended to ensure that a person who is not acquitted following a special hearing (that is, a person who is unfit to plead but who has been found to have engaged in the relevant conduct) is not detained for longer than he or she would have been if an ordinary verdict of guilty had been entered. The previous position had been that the person could have been detained for the maximum period of imprisonment available for the offence, and the amendment is said to acknowledge that sentences of imprisonment are often imposed for less than the maximum term of imprisonment available. The Explanatory Memorandum goes on:
It would be unfair for a person who was ordered to be detained in custody, because he or she is unfit to plead and found to have committed the act constituting an offence, to be detained for a period substantially longer than the period of imprisonment to which he or she would have been sentenced had the person been convicted of the relevant offence in normal criminal proceedings.
107. This explanation makes sense as applied to persons who would have been
found guilty but for being unfit to plead. However it
is unsatisfactory to the
extent that it applies the concept of fairness also to persons who, if fit to
plead, would have been found
not guilty because of mental impairment. As
previously implied, for instance at [31] above, fairness as such would seem to
require that a person who has been found not guilty, including because of mental
impairment,
would walk free. Any continued detention of such a person would
reflect not fairness in any strict sense but the need for protection
of the
community and possibly the person.
108. The “best estimate”
requirement was also applied by the same amendments to the case of persons who
have been found
fit to plead but then found not guilty because of mental
impairment (see ss 428CA and 428CB, now ss 302 and 303 respectively). A
proper attempt to explain this approach in the Explanatory Statement might have
drawn this incongruity to the attention
of those responsible for the
legislation, but unfortunately the relevant provision in the Explanatory
Memorandum simply compounds
the confusion by saying that the same approach as
described at [106] above is applied to
the provisions allowing the Supreme Court to order the detention of a person who
has been acquitted on the grounds
of mental impairment. This explanation is
just as unsatisfactory as the original explanation in its application to persons
who are
not criminally responsible for their conduct, and for the same reasons
as set out in [107] above.
Conclusion—“best estimate” is inappropriate here
109. In summary, it makes no sense to me to try to give a “best estimate” for a sentence of imprisonment where the starting point is that the offender is not criminally responsible for his actions (not guilty because of mental impairment) and where there will almost certainly be none of the mitigating factors available to an offender who could have been found criminally responsible. However, this oddly inappropriate task seems to be what the legislature requires me to do, and so it must be done.
A “best estimate” for Mr Steurer
110. To help me in the task of making a “best estimate” of sentence,
counsel referred me to a variety of decisions in
this jurisdiction and in NSW in
cases that raised issues of the accused’s mental state at the time of the
offence or at the
time of trial, as well as some ACT cases involving sentences
for offences of murder. I have also noted the case of R v Pratt [2009] NSWSC
1108 (Pratt), which was decided after hearings concluded on this
matter.
111. The cases cited are, however, less useful in providing guidance
than in confirming my view that the task required in the ACT
in a case of this
kind is inappropriate and therefore difficult to perform and even more difficult
to explain.
112. The cases I have considered fall into two
groups.
113. One group covers accused persons who have been found unfit to
plead or unfit to be tried, and have then been found to have engaged
in the
conduct required for the offence (ACT) or to have, on the limited evidence
available, committed the offence (NSW). The only
ACT case is R v King (2004)
155 ACTR 55 (King), and the NSW cases are Mitchell, R v Cosseddo [2000] NSWSC
446, (Cosseddo), R v Polanski [2000] NSWSC 854 (Polanski) and R v Wilson [2002]
NSWSC 297 (Wilson). In all of these cases the trial judge estimated the likely
sentence for the accused if he had been found guilty.
114. The other group
consists of cases equivalent to the current case in that they all involve an
accused person who has been found
fit to plead, or fit to be tried, and who has
then been found not guilty because of mental impairment or not guilty on the
grounds
of mental illness, as the case requires. The ACT cases are R v Paul
John McDermott [2003] ACTSC 1; (2003) 172 FLR 1 (McDermott) and R v Goonerage [2005]
ACTSC 96 (Goonerage), and the NSW cases are R v SE [2009] NSWSC 785 (SE)
and Pratt. In McDermott and Goonerage the trial judge was required to make a
“best estimate of sentence”, while
in SE and Pratt the judge made a
detention order and was not required to engage in any kind of sentencing
exercise.
115. No NSW case was cited in which a person who was unfit to be
tried was found not guilty on the grounds of mental illness. As
already
explained, this is an outcome which is not available in the ACT.
Cases involving special hearing and no acquittal
116. The significance of these cases in the current matter is to demonstrate the
rational operation of the best estimate approach
where an accused would have
been found guilty but for the logically unrelated fact of being unfit to plead
or be tried.
117. In King the accused killed his wife by hitting her over the
head with a metal pipe after discovering that she had sold certain
shares and
proposed to leave him. As already mentioned, the ACT requirement is that at a
special hearing the court in reaching its
verdict is to consider only conduct
and not any mental elements of the offence (see [34(b)] above); accordingly, Gray J held
(at [17] to [29]) that he could not consider pleas of provocation or diminished
responsibility,
and nor was a plea of not guilty because of mental impairment
available. Gray J found that the accused engaged in the conduct required
for
the act charged (at [64]), and that a detention order should be made. He
indicated that a sentence of imprisonment would have
been imposed if the accused
had been found guilty, and proceeded to consider his “best estimate”
of an appropriate term
of imprisonment. In that context he made the following
remarks:
... I judge that Mr King suffered major psychological provocation by the words and behaviour of his wife on 10 October 2001; suffered from a depressive condition which constituted an ‘abnormality of mind, a mental disease, that substantially impaired his mental responsibility,’ such that his ‘berserk’ emotional over-arousal led him to act without the capacity to form rational intent to harm or kill his wife.
Ms Morrish submitted also that a verdict of manslaughter on the basis of provocation would have also been open. I consider this problematic but no finding is required on this aspect in the context of the special hearing.
118. In King, Gray J indicated that although pleas of provocation and diminished
responsibility were not available for the purpose
of the verdict at the special
hearing, he was able to take account of the loss of control said to have
occurred in the particular
circumstances of the case and that loss of control
could mitigate the seriousness of the conduct for the purposes of setting a
“best
estimate” of sentence (at [78]). The oddity of the outcome in
King (noted by Gray J at [79]) related
to the need to set a best estimate for a charge of murder in circumstances
where, if the accused had been fit to plead,
a plea of provocation or diminished
responsibility might have resulted in a conviction for manslaughter. The
unavailability of a
verdict of not guilty because of mental impairment was also
noted, but my reading of the decision in King is that the evidence of
the
accused’s mental state at the time of the killing would not have justified
such a verdict even if it had been available.
119. In Polanski, the victim
was killed after he made a homosexual advance to the accused. At a special
hearing the jury returned
a verdict that on the limited evidence available the
accused had committed murder, thus rejecting claims of provocation and
diminished
responsibility. In setting a limiting term, the court took account
of the accused’s low-grade psychosis and psycho-sexual
repression, the
effect of alcohol (while noting that it did not mitigate the accused’s
criminality), the victim’s “grossly
provocative conduct” and
the fact that the accused did not intend to kill his victim at the beginning of
the attack; it found
(at [21]) that because of his low-grade schizophrenia the
accused was “a less suitable subject than most for a heavily deterrent
sentence” and set a limiting term of 13 years imprisonment.
120. In
Cosseddo, the accused strangled his wife of many years. There had been frequent
quarrels between the couple, but no evidence
of any incidents on the day of the
killing. There was expert evidence that the offender had been suffering
advanced dementia, but
the jury rejected a defence of diminished responsibility
and the finding was that on the limited evidence available, the accused
had
committed murder. In setting a limiting term the court noted that the
accused’s dementia permitted it not to give significant
weight to general
deterrence, and referred also to the accused’s age and absence of prior
convictions; a limiting term of imprisonment
for 14 years was
specified.
121. In Mitchell, the accused engaged another person to attack the
victim, with whom he had had a brief relationship; he was found
on the limited
evidence available to have committed the offence of being an accessory before
the fact to the malicious infliction
of grievous bodily harm. The court in
setting a limiting term of 18 years and 8 months took account of the
serious and premeditated
nature of the assault, the accused’s diagnosis of
major depression with delusional or psychotic features and the impact of
that
condition on the need for general and specific deterrence, and the need for
parity with the sentence imposed on the accused’s
co-offender who was the
principal offender. The NSW Court of Appeal (Beazley JA, Sperling and Hidden
JJ) held, however, that the
NSW legislation does not permit the court to apply
“mitigating presumptions” in favour of an accused in setting a
limiting
term. The court explained at [51] and [52]:
It seems to us, therefore, that the trial judge must look at the particular circumstances of the case and have regard to subjective factors to the extent that they existed at any time after the commission of the offence and before sentence. If a person’s mental state means that such subjective factors were not, and because of that mental state could not be, present at relevant times, we are of the opinion that no presumption operates in the accused person’s favour and no account can be taken of the absence of those subjective factors. In other words, the court must nominate a limiting term, having regard only to such factors as are in fact present and relevant. In a case where a person’s mental condition prevents or inhibits there being subjective factors to take into account, the factors which will be relevant or of primary significance must thereby be objective ones, such as the seriousness of the charge and parity of sentence, if that is a relevant factor.
It follows from this approach that a person who has been the subject of a special hearing should not be presumed to have entered a guilty plea or demonstrated remorse.
122. The court later noted, however, that an early guilty plea by the appellant,
before his conviction was quashed and a special
hearing was held, was “a
matter of which account should have been taken by the trial judge and considered
in context”
(at [57]).
123. In Wilson an 18-year-old man planned to rob
a taxi-driver and finished up killing him, after which he made extensive efforts
to cover up his responsibility for the taxi-driver’s death. The qualified
finding was that the accused had committed murder.
The court took account of
the accused’s relative youth and immaturity, his somewhat dysfunctional
upbringing, his negative
self-image, below-average intelligence and limited
education, his idle lifestyle involving no permanent employment and recreational
use of cannabis and alcohol, the absence of any specific intention to kill or
cause serious harm, that the accused was described
as timid and non-aggressive,
and that he had acted out of character driven by an immediate need for money.
The court noted some
suggestions of remorse and contrition, and set a limiting
term of 18 years imprisonment.
124. In all the cited cases in which the
accused was unfit to be tried, the setting of a best estimate (identified as a
limiting term
in NSW) followed a process similar to a normal sentencing process,
and involved taking account of the same kinds of matters. In
general, the main
difference from a normal sentencing process was the possible unavailability of
mitigating circumstances such as
pleas of guilty (because there is a statutory
plea of not guilty at a special hearing) and remorse; even in such cases any
plea indication
or demonstrated remorse dating from before the accused person
became unfit was able to be considered (Mitchell).
Cases involving verdict of not guilty because of mental impairment or illness
125. The significance of these cases is that they demonstrate the difference
between the ACT and NSW approaches to the verdict of
not guilty because of
mental impairment or mental illness. The ACT cases also provide some limited
guidance in my task of reaching
a best estimate for Mr Steurer’s
detention.
126. In the NSW case of SE, the accused, a 16-year old boy,
attacked his parents with a knife, killing his father and seriously wounding
his
mother. The court found that at the time of the attacks the accused was
suffering from a form of psychosis, probably schizophrenia,
and that this was a
disease of the mind causing a defect of reason such that he did not know that
what he was doing was wrong. The
court noted (at [64]) that although the
accused did know his actions were against the law, he “was disabled from
knowing that
it was a wrong act to commit in the sense that ordinary reasonable
persons understand right and wrong”. The court found the
accused not
guilty by reason of mental illness, and, as required by the NSW legislation,
ordered that he be detained at a specified
institution, and directed the order
be notified to the Minister for Health and the Mental Health Review
Tribunal.
127. In the NSW case of Pratt, the accused killed an elderly couple
who lived nearby, having developed paranoid delusions that her
victims were a
threat to her and her children. The court found that she suffered chronic
schizophrenia (specified by one psychiatrist
as chronic paranoid schizophrenia),
and that when she killed her victims her severe paranoid delusional state meant
that she was
unable to recognise that her actions were morally wrong. The
accused was found not guilty on the grounds of mental illness, and
was ordered
to be detained at a specified correctional centre or as determined by the Mental
Health Review Tribunal.
128. In the ACT case of McDermott, the accused
attacked a young boy who was staying in his house; he believed that he and four
children
in the house would be murdered at dawn by bikies. He planned to kill
all the children humanely before they were tortured and killed
the next day.
The court found that the accused, who was suffering from a disturbed mental
state, found himself in a “delusionary
framework” in which he
considered that, while clearly against the law, killing the children humanely
was the right way to respond
to his belief that they were about to be tortured
and killed by others. Higgins J as he then was found the accused not guilty by
reason of mental impairment.
129. The published version of Higgins
J’s decision does not include the specification of a best estimate, and I
have not been
able to locate any direct record of such an estimate being
specified, but in R v Goonerage Spender J refers to Higgins J’s
indication
of imprisonment for 10 years as the appropriate term; he does not refer to any
reasons being given for that indication.
130. In the ACT case of Goonerage,
the accused attacked his house-mate with a machete. Spender J found, on the
basis of psychiatric
evidence, that the accused was suffering mental dysfunction
or mental illness (paranoid schizophrenia) as a result of which “he
was
incapable of making a distinction between right and wrong at the time because he
was so intensely delusional”. Spender
J entered a verdict of not guilty
on the grounds of mental impairment, ordered that the accused be detained in
custody until the
relevant tribunal otherwise ordered, and specified that if the
accused had not been acquitted he would have imposed a sentence of
imprisonment.
For the purpose of specifying his best estimate of the appropriate sentence, he
considered a summary of sentences for
the offence concerned (intentionally
inflicting grievous bodily harm), but mentioned only McDermott and the 10 years
specified by
Higgins J. He then noted that the conduct in the current case was
“extremely serious” and had “serious and ongoing”
consequences for the victim, and specified seven years imprisonment as his best
estimate.
131. Where an accused is found not guilty on the grounds of mental
illness (SE and Pratt), the NSW order reflects the need for protection
of the
community and the accused; no limiting term is set, and there is no need to
consider the matters that would be relevant in
a normal sentencing process. In
the ACT cases (McDermott and Goonerage), the best estimates have been specified
but there are effectively
no reasons given for the best estimates. The
circumstances of the offending behaviour are described, and identified as
serious in
Goonerage, and a term of years is specified, but neither of the two
very experienced judges involved gives any explanation, as would
be expected in
normal sentencing remarks, of why the behaviour described requires the best
estimate actually specified. There may
be other reasons for the failure of
these two judges to provide reasons for their “sentencing” decisions
in relation
to two very serious attacks that have attracted substantial best
estimates for detention; my suspicion is, however, that the absence
of reasons
reflects the difficulty and incongruity of “sentencing” a person for
an action for which he or she has been
found to have no criminal responsibility.
Sentences where accused guilty of murder
132. Counsel for the prosecution handed up a table showing the sentences imposed on people convicted of murder in the ACT since 1992. Because of the wide range of different circumstances arising in these cases, there is no point in determining, for instance, average sentences, but I note that in the cases mentioned, the sentences imposed ranged from 14 years up to life imprisonment, with non-parole periods from 6 years to 18 years (no non-parole period is set for a sentence of life imprisonment—Crimes (Sentencing) Act 2005 (ACT), s 65(5)). A graph produced by the Judicial Commission of NSW and handed up by counsel for the prosecution showing murder sentences imposed by “Higher Courts” (I assume in NSW rather than more broadly) between July 2001 and June 2008 showed that in that period, no murder sentence was for less than 11 years imprisonment, only 10% of murder sentences involved less than 16 years imprisonment, and 54% of sentences were for periods between 16 and 20 years inclusive. These figures are undoubtedly interesting but, as already indicated, their relevance must be questionable since they relate to cases in which people have been found guilty of murder rather than cases in which people have been found not guilty.
Determination of best estimate
133. First, I note that if Mr Steurer had not been acquitted of the murder of
his father, I would have imposed a sentence of imprisonment.
This then requires
me to specify my best estimate of the term that would have been imposed.
134. Secondly, I note the objective features of the unprovoked and
apparently callous killing of Michael Steurer (whether the killing
was somehow
induced by the earlier trivial argument about the shelves, or was as Dr Gupta
believes quite unrelated, does not seem
to matter in this
context—accepting this “explanation” would not reduce the
seriousness of the killing, but nor
would rejecting that explanation make any
difference in a sentencing exercise). As to subjective features, I note that
the accused
Mr Steurer has no prior criminal record, has an affectionate
relationship with his mother, and may be of some assistance in
caring for his
mother as she ages. This is not a lot to work with in estimating a sentence for
murder.
135. Clutching at straws, I next note that the best estimate in
Goonerage was roughly half of the maximum sentence (7 years imprisonment,
the
maximum being 15 years). The best estimate in McDermott, 10 years for
attempted murder, might be seen as roughly half the
likely maximum for attempted
murder (noting that technically the maximum penalty for attempted murder is the
same as that for murder,
namely life imprisonment, see Crimes Act, s 12 and
Criminal Code, s 44(9)).
136. In this case, noting that Mr Steurer is
in his early fifties but in the absence of any evidence about Mr Steurer’s
actual
life expectancy, I consider that half a life sentence for Mr Steurer
could be estimated at 15 years. I emphasise, however, that
this figure bears no
relationship to the period for which Mr Steurer is likely to require treatment
or supervision, which may well
be for the rest of his life and which may in fact
become more important as he ages and after he loses the support of his already
elderly mother. Nor does the term I have chosen relate to the circumstances of
this particular offence which, if committed by a
person without a mental
impairment, would have been a callous and entirely wicked act but which, having
been committed by Mr Steurer
as a result of a long-standing and deep-seated
psychiatric illness, cannot be seen as deserving of
punishment.
137. Accordingly, when I make a detention order in respect of Mr
Steurer under s 324 of the Crimes Act I shall start with a term of 15 years
imprisonment as my best estimate of the term I would have imposed if Mr Steurer
had been found
guilty, and shall deduct from that the time he has already spent
in custody, being nearly 26 months. The best estimate specified
will therefore
be 12 years and 10 months (since this is only an estimate I do not consider it
necessary to be more precise in this
part of the calculation).
138. As to
the consequences of the order and the best estimate, there is no requirement
that a person be detained for the full period
of the best estimate, and there is
a requirement for ACAT to conduct roughly 6-monthly reviews of the detention
order and consideration
of whether the person should be released (s 72, Mental
Health (Treatment and Care) Act 1994) (ACT)).
139. The recommendation
provided by ACAT (see [76] above)
pointed out that ACAT has the power to release on conditions, including as to
residence and treatment, a person who is subject
to a detention order; a breach
of a condition may result in ACAT ordering that the person be detained in
custody. While it will
of course be a matter for ACAT to determine in the
longer term, it seems to me desirable that Mr Steurer be able to remain in Brian
Hennessy House unless there is a particular medical or security reason for Mr
Steurer to return to the AMC. The formal pronouncement
of the detention order
would seem to require Mr Steurer to be moved from Brian Hennessy House and
returned to the AMC at least until
ACAT is able to review any detention order
and decide whether Mr Steurer can be returned to Brian Hennessy House—this
may take
weeks or even months. Accordingly, I propose to defer the formal
pronouncement of the detention order and my best estimate of the
likely sentence
until a date to be fixed, to enable ACAT to plan the required inquiry to review
the detention order, when made, and
consider Mr Steurer’s continued
detention or conditional release. The date for formal pronouncement of the
detention
order will be fixed by reference to when ACAT can schedule an inquiry
and make its initial decision. This way, if ACAT’s initial
decision is
that Mr Steurer can appropriately remain in Brian Hennessy House, there will be
only a brief period for which he will
need to be returned to the AMC after the
making of the detention order and before ACAT decides on conditional release to
Brian Hennessy
House. To facilitate the speedy holding of such an inquiry, I
shall also order the preparation by ACT Health of an assessment of
Mr Steurer’s current mental health status, a treatment and care plan
for him, and a risk assessment.
Conclusions
140. On 12 May 2009 I found Reinhold Steurer fit to plead to the charge of
murdering his father, and recorded a plea of not guilty
because of mental
impairment.
141. On 12 May 2009 I entered a special verdict that Reinhold
Steurer was not guilty because of mental impairment of the murder of
Michael
Steurer on 26 April 2007.
142. On a date to be fixed, I propose to make a
detention order under s 324 of the Crimes Act that Reinhold Steurer be detained
in custody until the ACAT orders otherwise, to indicate that if Mr Steurer had
not been acquitted
I would have imposed a sentence of imprisonment, and to
nominate in respect of the offence of murder a term of 12 years and 10 months,
being my best estimate of the sentence that I would have considered appropriate
if Mr Steurer had been found guilty of murder (less
time already spent in
custody).
143. This judgment will be drawn to the attention of ACAT with a
view to enabling it to schedule its review of Mr Steurer’s
detention as
close as possible to the making of the detention order. To that end, I order
the preparation by ACT Health of an assessment
of the mental health status of
Reinhold Steurer, a treatment and care plan for Mr Steurer, and a risk
assessment relating to
Mr Steurer.
I certify that the preceding one hundred and forty-three (143) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 10 November 2009
Counsel for the Crown: Mr J Lawton
Solicitor for the Crown: ACT Director
of Public Prosecutions
Counsel for the accused: Mr J Purnell SC
Solicitor
for the accused: Legal Aid Office (ACT)
Date of hearing: 12 May, 18 September
2009
Date of judgment: 10 November 2009
Appendix A—Relevant legislation
Crimes Act 1900 (ACT)
Part
13—Unfitness to plead and mental impairment
[Note: provisions of this
Part relating to the Magistrates Court, to non-serious offences and to aspects
of fitness to plead investigations
and the choice of a judge-alone trial that
are irrelevant to the current matter been omitted.]
(1) In this part:
ACAT means the ACAT exercising its jurisdiction under the Mental Health (Treatment and Care) Act 1994.
...
alternative offence, for an offence, means an offence available as an alternative to the offence.
conduct—see the Criminal Code, section 13.
...
engage in conduct—see the Criminal Code, section 13.
mental health order—see the Mental Health (Treatment and Care) Act 1994, dictionary.
serious offence means—
(a) an offence involving actual or threatened violence and punishable by imprisonment for longer than 12 months; or
(b) an offence against section 27 (3) or (4).
special hearing means a hearing conducted in accordance with section 316.
(2) ...
(1) If, under section 318 (2) or 319 (2), 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 special hearing had been normal criminal proceedings against a person who was fit to be tried for and convicted of the offence with which the accused is charged, 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 special hearing had been normal criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence.
(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.
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.
...
For sections 301, 302, ... , in determining the sentence it would have imposed, the relevant court may inform itself and consider the evidence and submissions that it would were the court determining the sentence to be imposed in normal criminal proceedings.
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 ... 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.
Division 13.2 Unfitness to plead
This division applies to a criminal proceeding in the Supreme Court or the Magistrates Court.
(1) A person is unfit to plead to a charge if the person’s mental processes are disordered or impaired to the extent that the person cannot—
(a) understand the nature of the charge; or
(b) enter a plea to the charge and exercise the right to challenge jurors or the jury; or
(c) understand that the proceeding is an inquiry about whether the person committed the offence; or
(d) follow the course of the proceeding; or
(e) understand the substantial effect of any evidence that may be given in support of the prosecution; or
(f) give instructions to the person’s lawyer.
(2) A person is not unfit to plead only because the person is suffering from memory loss.
(1) A person is presumed to be fit to plead.
(2) The presumption is rebutted only if it is established, on an investigation under this division, that the person is unfit to plead.
(3) The question of a person’s fitness to plead—
(a) is a question of fact; and
(b) is to be decided on the balance of probabilities.
(4) No party bears a burden of proof in relation to the question.
The question of a defendant’s fitness to plead to a charge may be raised by a party to a proceeding in relation to the charge or by the court.
...
(2) If the question is raised at a committal hearing—
(a) the committal hearing must be completed; and
(b) the defendant must not be discharged only because the question has been raised; and
(c) if the person is committed for trial—the question must be reserved for consideration by the Supreme Court.
(3) If the question has been reserved under subsection (2) (c) or is otherwise raised in the Supreme Court and the court is satisfied that there is a real and substantial question about the defendant’s fitness to plead, the court must reserve the question for investigation under this division.
(1) If a court reserves the question for investigation, the court must adjourn the hearing or trial in which the question was raised and proceed with an investigation under this division.
...
315A Investigation into fitness to plead
(1) On an investigation into a defendant’s fitness to plead—
(a) the court must hear any relevant evidence and submissions put to the court by the prosecution or the defence; and
(b) if the court considers that it is in the interests of justice to do so, the court may—
(i) call evidence on its own initiative; or
(ii) require the defendant to be examined by a psychiatrist or other health professional; or
(iii) require the results of the examination to be put before the court.
(2) Before hearing any evidence or submissions, the court must consider whether, for the protection of the defendant’s privacy, the court should be closed to the public while all or part of the evidence or submissions are heard.
(3) The court must decide whether the defendant is unfit to plead.
(4) If the court finds that the defendant is unfit to plead, the court must also decide whether the defendant is likely to become fit to plead within the next 12 months.
315B Person found fit to plead
If the court decides that the defendant is fit to plead, the proceeding brought against the defendant must be continued in accordance with ordinary criminal procedure.
315C Person found unfit to plead and unlikely to become fit to plead
If the court decides that the defendant is unfit to plead and is unlikely to become fit to plead within the next 12 months, the court must—
(a) for a proceeding in the Supreme Court—
(i) discharge any jury empanelled for the proceeding; and
(ii) hold a special hearing under section 316; and
(b) ...
(1) Subject to this section, the Supreme Court shall conduct a special hearing as nearly as possible as if it were an ordinary criminal proceeding.
...
(6) Unless the Supreme Court otherwise orders, the accused shall have legal representation at a special hearing.
(7) A decision that the accused is unfit to plead to the charge is not to be taken to be an impediment to his or her being represented at a special hearing.
(8) At a special hearing, the accused is to be taken to have pleaded not guilty in respect of the offence charged.
(9) If a special hearing is a trial by jury, the Supreme Court shall, at the commencement of the hearing, explain to the jury—
(a) the meaning of unfitness to plead; and
(b) that the accused is unfit to plead to the charge in accordance with ordinary criminal procedures; and
(c) that the purpose of the special hearing is to ensure that, despite the unfitness of the accused to plead in accordance with ordinary criminal procedures, the accused should be acquitted unless it can be proved beyond reasonable doubt that, on the evidence available, the accused engaged in the conduct required for the offence charged (or an alternative offence); and
(d) the actions that are available to the jury under section 317; and
(e) the legal and practical consequences of those actions.
(1) At a special hearing that is a trial by jury, the jury shall, if satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged (or an alternative offence, if not satisfied in relation to the offence charged), advise the court accordingly.
(2) If the jury is not satisfied in accordance with subsection (1)—
(a) the jury shall return a verdict of not guilty in respect of the offence charged; and
(b) the accused shall be dealt with as though the jury had returned that verdict at an ordinary trial.
(3) If, at a special hearing by a single judge without a jury, the judge is not satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged (or an alternative offence, if not satisfied in relation to the offence charged)—
(a) the judge shall find the accused not guilty of the offence charged; and
(b) the accused shall be dealt with as if the accused had been found not guilty at an ordinary trial.
(4) If, at a special hearing, the jury (or, if the special hearing is by a single judge without a jury, the judge) is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged (or an alternative offence, if not satisfied in relation to the offence charged), the finding—
(a) is not a basis in law for recording a conviction for the offence charged (or an alternative offence); and
(b) except as provided in section 319A (Action if accused becomes fit to plead after special hearing), bars further prosecution of the accused for any offence in relation to the conduct.
(1) This section applies if—
(a) an accused is charged with a serious offence; and
(b) at a special hearing that is a trial—
(i) by a single judge without a jury—the judge is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged (or an alternative offence, if not satisfied in relation to the offence charged); or
(ii) by jury—the jury advises the court under section 317 (1).
(2) If this section applies, 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.
(3) If the Supreme Court is satisfied under subsection (2), it shall make an order accordingly.
319A Action if accused becomes fit to plead after special hearing
(1) This section applies if—
(a) the Supreme Court makes an order under section 318 or section 319 in relation to an accused; and
(b) the offence in relation to which the order is made is punishable by imprisonment for 5 years or longer; and
(c) the ACAT later decides the accused is fit to plead in relation to the offence.
Note For the relevant review of fitness to plead provisions, see the Mental Health (Treatment and Care) Act 1994, s 68.
(2) The director of public prosecutions must consider whether to take further proceedings against the accused in relation to the offence.
(3) If further proceedings are taken and the accused is found guilty of the offence charged (or an alternative offence), the court must, in deciding the sentence for the offence, take into account any time the accused has spent in custody or detention in relation to the offence.
Division 13.3 Supreme Court—special verdict of not guilty because of mental impairment
(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.
If, on the trial by jury of an accused charged with an indictable offence, evidence is adduced that tends to establish that the accused is entitled to a special verdict of not guilty because of mental impairment, the court shall explain to the jury the verdicts that may be returned at the trial and the legal and practical consequences of those verdicts.
(1) 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.
(2) If the Supreme Court is satisfied under subsection (1), it shall make an order accordingly.
Criminal Code 2002 (ACT)
(1) In this Act:
mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
(2) In this section:
mental illness is an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition (a reactive condition) resulting from the reaction of a healthy mind to extraordinary external stimuli.
(3) However, a reactive condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
(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 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.
(1) The prosecution has the legal burden of proving every element of an offence relevant to the guilt of the person charged.
Note See s 11 (Elements) on what elements are relevant to a person’s guilt.
(2) The prosecution also has the legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof on the defendant.
(3) In this Act:
legal burden, in relation to a matter, means the burden of proving the existence of the matter.
(1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.
(2) Subsection (1) does not apply if a law provides for a different standard of proof.
(1) Subject to section 59 (Legal burden of proof—defence), a burden of proof that a law imposes on a defendant is an evidential burden only.
(2) A defendant who wishes to deny criminal responsibility by relying on a provision of part 2.3 (Circumstances where there is no criminal responsibility) has an evidential burden in relation to the matter.
(3) Subject to section 59, a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence (whether or not it accompanies the description of the offence) has an evidential burden in relation to the matter.
[Examples omitted]
(4) To remove any doubt, for a strict liability offence that allows the defence of reasonable excuse, a defendant has an evidential burden in relation to the defence.
(5) The defendant no longer has the evidential burden in relation to a matter if evidence sufficient to discharge the burden is presented by the prosecution.
(6) The question whether an evidential burden has been discharged is a question of law.
(7) In this Act:
evidential burden, in relation to a matter, means the burden of presenting or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.
A burden of proof that a law imposes on the defendant is a legal burden only if the law expressly—
(a) provides that the burden of proof in relation to the matter in question is a legal burden; or
(b) requires the defendant to prove the matter; or
(c) creates a presumption that the matter exists unless the contrary is proved.
...
A legal burden of proof on the defendant must be discharged on the balance of probabilities.
Appendix B—Qualifications of expert witnesses
1. Dr Stephen H Allnutt, FRCPC, FRANZCP, Fellowship in Forensic Psychiatry (Canada), Senior Consultant Forensic Psychiatrist, Conjoint Senior Lecturer, UNSW;
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/act/ACTSC/2009/150.html