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"Deficiency" in law sees "not guilty" Adelaide man sent to prison

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An Adelaide man with a history of mental illness has been sentenced to three years in prison after being found not guilty on terrorism charges, in part because of a “deficiency” in federal legislation.

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Last week a jury found the man – who cannot be named for legal reasons – not guilty on four counts of advocating terrorism, over a series “bizarre rants” advocating violence, which he posted to Facebook in 2015.

The physical elements of the charges were proved, but he was found not guilty on grounds of mental impairment.

District Court Judge Stephen McEwen accepted a psychiatrist’s assessment, in his judgment, handed down yesterday, that the man posed a relatively low risk of re-offending if released under a series of strict conditions.

But because of what McEwen described as an apparent “deficiency in the legislation”, the court would have no power to enforce those conditions if he granted the man conditional release.

For that reason, and others he detailed, he ordered the man be imprisoned.

“(A) person granted conditional release by the court could breach any one or more of the conditions imposed by the court, with impunity,” the judgment reads.

“There is no power granted to the Commonwealth Director of Public Prosecutions to return the matter to the court, and there is no power granted to the court to revoke the conditional release.

“…This strikes me as a curious omission from the legislation that should be addressed. However, for this case, that is the legislative scheme I must proceed under.”

Under the Crimes Act, a court can order a person found not guilty of a federal offence because of mental impairment to be held in prison or hospital for up to the length of time that they would have spent in prison if found guilty.

If this occurs, as it has in this case, the Attorney-General must consider whether to release the person – and reconsider whether to release them, with or without conditions, once every six months thereafter.

Unlike the court, the Attorney-General has the power to revoke a conditional release order if conditions are breached, the judgment says.

The man’s defence lawyer Edward Jolly argued that if the court held him in prison, he would be unfairly deprived of conditional release “due to what appears to be an omission in the drafting of the legislation”.

But McEwen finds that he must apply the law as it is, and that Jolly’s argument was outweighed because:

The judgment ends with an order that the man be held in prison for three years, but that “it is not for me to determine how much of that time he actually spends in custody”.

Jolly told InDaily this morning the decision would be appealed.

Law Society president Tim Mellor told InDaily: “Prison is an inappropriate place for a person who is legally found to be mentally incompetent.”

“Every effort should be made to allow mentally impaired inmates into the community, provided that community safety is a key factor in any decision to grant release and that appropriate conditions are placed on the person to ensure they receive the support and supervision they require.

“If it is in the interests of community safety to initially detain a mentally incompetent person, the person should be detained in a therapeutic facility that specialises in mental health treatment.”

Mellor added that “if there are questions over whether the law limits the capacity of the courts to release mentally incompetent people into the community with appropriate supervision by qualified persons, then the law ought to be reviewed.

“The Society understands that the decision this matter is being appealed, therefore we are unable to comment further on the specific issues identified by the Judge in this matter.”

Federal Attorney-General Christian Porter told InDaily in a statement: “I note the judge’s comments and given the matter is subject to an appeal it would be inappropriate to discuss the case further, other than to note that the subject of the charges remains in custody and therefore there is no danger to the community.”

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