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The Queen v Amundsen[2019] QDC 233

 

DISTRICT COURT OF QUEENSLAND

 

CITATION:

R v Amundsen [2019] QDC 233

PARTIES:

THE QUEEN

v

JOHN HOWARD AMUNDSEN
(defendant)

FILE NO/S:

2493/17

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

28 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2019 and 1 November 2019

JUDGE:

Smith DCJA

ORDER:

I order the proceedings be adjourned for mention at 9.30 am on 28 January 2020.

CATCHWORDS:

CRIMINAL LAW – SENTENCING – BREACH OF PROBATION PROCEEDINGS – whether the proceeding should be adjourned by reason of the defendant being a “classified patient”

Mental Health Act 2016 (Qld) ss 64, 616, 618, 619, 620

Penalties and Sentences Act 1992 (Qld) s 132

COUNSEL:

The defendant appeared on his own behalf

Mr JD Finch for the Crown

SOLICITORS:

The defendant is self-represented

Office of the Director of Public Prosecutions for the Crown

Introduction

  1. [1]
    The defendant is before the court for an alleged breach of a probation order. On 17 October 2016 a District Court judge ordered that the defendant be placed on a three year probation order. On 1 November 2017 breach proceedings were commenced by a complaint in summons. The matter was committed to the Brisbane District Court on 13 November 2017.

Parties’ submissions

  1. [2]
    The defendant seeks for the breach proceedings to be struck out. He submits that the probation order has expired and therefore the court has no jurisdiction to deal with the matter.
  1. [3]
    On the other hand the Crown submits the defendant is a “classified patient” under the Mental Health Act 2016 (Qld) (“MHA”).  It is submitted there is no scope for the defendant to bring this application and the proceeding should be adjourned.
  1. [4]
    By reply Mr Amundsen submits that the issue is whether the probation order can still be enforced notwithstanding the fact it has expired. He submits it expired on 17 October 2019 and therefore it no longer exists and the proceedings should be struck out.

Discussion

  1. [5]
    The evidence is that on or about 1 April 2019 the defendant became a classified patient. On 5 April 2019 the DPP received notice that the defendant was a classified patient.
  1. [6]
    Section 64(1) of the MHA defines “classified patient” as being a classified patient (involuntary) and a classified patient (voluntary).
  1. [7]
    The MHA relevantly provides as follows:

615 Purpose of pt 2

  1. (1)
    The purpose of this part is to provide for—
  1. (a)
    the suspension of criminal proceedings against a person—
  1. (i)
    who becomes a classified patient; or
  1. (ii)
    in relation to whom a direction is given under chapter 4 for a psychiatrist report to be prepared; or
  1. (iii)
    in relation to whom a reference is made to the Mental Health Court; and
  1. (b)
    the ending of the suspension of the criminal proceedings; and
  1. (c)
    the giving of notices in relation to the suspension, and the ending of the suspension, of the criminal proceedings.

616 Suspension of proceedings

  1. (1)
    This section applies if any of the following happens—
  1. (a)
    a person charged with an offence, other than an offence against a law of the Commonwealth, becomes a classified patient;

Note—

A person becomes a classified patient if the person is transported to, or remains in, an inpatient unit of an authorised mental health service under chapter 3, part 2 or 3.

  1. (b)
    the chief psychiatrist gives a direction under section 91 or 93 for a psychiatrist report to be prepared about a person in relation to a charge of a serious offence or an associated offence;
  1. (c)
    a person’s mental state in relation to an offence is referred to the Mental Health Court under section 101, 110, 175 or 183.
  1. (2)
    A proceeding against a person mentioned in subsection (1)(a) for the offence is suspended.
  1. (3)
    A proceeding against a person mentioned in subsection (1)(b) for the serious offence or associated offence to which the chief psychiatrist’s direction relates is suspended.
  1. (4)
    A proceeding against a person mentioned in subsection (1)(c) for the offence to which the reference relates is suspended.
  1. (5)
    If more than 1 of the events happens in relation to a proceeding against a person, the proceeding is suspended on and from the happening of the earliest of the events.

617 Giving notice of particular suspensions

  1. (1)
    This section applies if a proceeding is suspended under section 616(2) or (3).
  1. (2)
    As soon as practicable after the proceeding is suspended, the chief psychiatrist must give written notice to the chief executive (justice) of the suspension.
  1. (3)
    As soon as practicable after receiving a notice under subsection (2), the chief executive (justice) must give each of the following a copy of the notice—
  1. (a)
    the registrar of the court in which the proceeding for the offence has been brought;
  1. (b)
    the prosecuting authority for the offence;
  1. (c)
    if the person is a minor—the chief executive (youth justice).

618 Ending of suspension

  1. (1)
    This section applies to a proceeding against a person that is suspended under section 616.
  1. (2)
    The suspension of the proceeding ends only if each of the following is satisfied—
  1. (a)
    the person is not, or is no longer, a classified patient;
  1. (b)
    if the chief psychiatrist has given a direction under section 91 or 93 for a psychiatrist report to be prepared about the person in relation to a charge of a serious offence or associated offence—the direction has been revoked;
  1. (c)
    if the chief psychiatrist has decided not to make a reference under section 101 to the Mental Health Court—the period mentioned in section 101(3), or any extended period mentioned in section 101(5), in which the chief psychiatrist may make the reference has ended;
  1. (d)
    if the person’s mental state in relation to the offence has been referred to the Mental Health Court under section 101, 110, 175 or 183—the Mental Health Court has made a decision on the reference or the reference has been withdrawn.

619 Giving notice of ending of suspension

  1. (1)
    As soon as practicable after the ending of the suspension of a proceeding under section 616, the chief psychiatrist must give each of the following written notice of the ending of the suspension—
  1. (a)
    the person;
  1. (b)
    the person’s lawyer, if any;
  1. (c)
    the chief executive (justice);
  1. (d)
    if an authorised mental health service is responsible for the person—the administrator of the service;
  1. (e)
    if the forensic disability service is responsible for the person—the administrator of the service.
  1. (2)
    As soon as practicable after receiving a notice under subsection (1), the chief executive (justice) must give each of the following a copy of the notice—
  1. (a)
    the registrar of the court in which the proceeding for the offence has been brought;
  1. (b)
    the prosecuting authority for the offence;
  1. (c)
    if the person is a minor—the chief executive (youth justice).
  1. (3)
    The registrar of the court in which the proceeding for the offence has been brought must arrange for the charge for the offence to be brought before the court within 7 days after receiving a copy of the notice under subsection (2) or, if the court can not be constituted in that period, at the earliest opportunity after the end of the period.

620 Effect on powers relating to bail, discontinuance of proceedings and other matters

The suspension, under this part, of a proceeding against a person for an offence does not prevent—

  1. (a)
    a court making an order granting the person bail, or enlarging, varying or revoking bail granted to the person, under the Bail Act 1980; or
  1. (b)
    a court remanding the person in custody in relation to the proceeding for the offence; or
  1. (c)
    a court adjourning the proceeding against the person for the offence until a stated date; or
  1. (d)
    the prosecution of the person for the offence being discontinued at any time; or
  1. (e)
    the presentation of an indictment under the Criminal Code, section 590 for the person.”
  1. [8]
    It is my respectful opinion that ss 616(1)(a) and 616(2) of the MHA have been enlivened here and operate to suspend any criminal proceeding (other than under Commonwealth Law) against the defendant. The proceedings having been suspended so there is no scope for the defendant to bring an application in the proceedings even in the nature of a strikeout at this time. Section 618 of the MHA sets out the circumstances in which the suspension ends. Those circumstances include when the defendant is no longer a classified patient. At the moment he is still a classified patient.
  1. [9]
    In respect of the defendant’s argument that the court has no jurisdiction, I do observe that s 132 of the Penalties and Sentences Act 1992 (Qld) provides:

132  Proceedings after end of period of order

A proceeding for a contravention of a requirement of a community based order may be taken, and the offender dealt with, under this division for the contravention even though the order has been terminated or revoked.”

  1. [10]
    However I do not express any concluded view on this section as I have no jurisdiction to do so at the moment and no submissions have been made by the parties on this section.

Conclusion

  1. [11]
    In the circumstances I order that the breach proceedings be adjourned for mention at 9.30am on 28 January 2020.
Close

Editorial Notes

  • Published Case Name:

    The Queen v John Howard Amundsen

  • Shortened Case Name:

    The Queen v Amundsen

  • MNC:

    [2019] QDC 233

  • Court:

    QDC

  • Judge(s):

    Smith DCJA

  • Date:

    28 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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