Magistrate Peter Dingwall. Photo: Graham Tidy
Lawyers for a teenage boy facing animal cruelty charges, and receiving medication to quell homicidal fantasies, say fear is the ''elephant in the room'' in their client's case.
But the prosecution says keeping the boy within the criminal justice system is in the interests of the community and himself.
Magistrate Peter Dingwall has been asked to decide whether to dismiss the charges under mental health laws or keep him supervised in the justice system, likely on a good-behaviour order.
The details of the alleged offending cannot be reported, but the boy was released on bail recently after eight months on remand.
His legal team argues he has already served a significant portion of any sentence that might be imposed on charges punishable by up to two years in custody. A court can dismiss charges against a mentally ill person, and place them under the power of the ACT Civil and Administrative Tribunal, if deemed appropriate.
Barrister Anthony Hopkins has argued his client - a bright student who can recite pi to 100 decimal places - has a mental impairment, masked for years by his intelligence.
Mr Hopkins said the boy's mental illness influenced his alleged actions, and strict conditions on his bail, likely to be carried over to any good-behaviour order, clashed with the boy's human rights as a child.
''Ultimately, it needs to be acknowledged that there is an elephant in the room in relation to [the teenager], and that is fear, fear of what he might do,'' he said.
The boy has been diagnosed as having Asperger's syndrome combined with ''probable youth psychopathic traits'' - different to such traits in an adult as they can diminish over time.
When in custody earlier this year the teenager confided he had experienced homicidal fantasies since at least preschool. Psychiatrist John Kasinathan has told the court the boy's fantasies went away, and his risk was lowered, when he was properly medicated.
But the doctor also said a criminal sanction, like a good-behaviour order, should run side by side with an otherwise ''toothless'' community mental health order.
Prosecutor Anthony Williamson conceded there was strong evidence the teen had Asperger's and some form of mental dysfunction.
But he has argued Dr Kasinathan's advice, and the nature of the alleged crimes, meant the boy should not be solely placed under the supervision of mental health authorities.
Another psychiatrist, Danny Sullivan, backed the Asperger's diagnosis but said the teen ''clearly'' knew what he did was wrong.
Since release on bail the child has been living in a supported location, effectively under 24-hour surveillance, and his conversations are reported to authorities.
Mr Hopkins said the restrictions on his client amounted to community detention, and he effectively had less peer interaction than he did in custody. The lawyer said under the current regime it was unclear when the boy could move home to his family, interact with other young people, use social media or go to the mall.
The magistrate will hand down his decision later this month.