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15
Court of Criminal Appeal 21 June 1999

R v Mitchell

[1999] NSWCCA 120

Also reported as (1999) 108 A Crim R 85
Assault & violence
CRIMINAL LAW APPEAL LIMITING TERM MINIMUM AND ADDITIONAL TERM FACTORS TO BE CONSIDERED

Citation: R v Mitchell [1999] NSWCCA 120
Court: New South Wales Court of Criminal Appeal
Date: 21 June 1999
Judge(s): Beazley JA, Sperling J, Hidden J

Background

The appellant was found by a jury at a special hearing, conducted under the Mental Health (Criminal Procedure) Act 1990 (NSW), to have committed the offence of being an accessory before the fact to the malicious infliction of grievous bodily harm. The offence arose from a contract the appellant arranged in early 1992 to have a woman he had briefly dated physically attacked after she ended the relationship. The attack, carried out by a hired third party, caused the victim multiple serious fractures and lasting physical and psychological harm.

The appellant was found unfit to stand trial in 1996. Following a special hearing before Holt DCJ in the District Court, a jury returned a finding that, on the limited evidence available, the appellant had committed the offence. Holt DCJ then nominated a limiting term of 18 years and 8 months, structured as a minimum term of 14 years and an additional term of 4 years and 8 months.

The appellant appealed to the Court of Criminal Appeal, challenging both the structure and the length of the limiting term.

  • Whether a sentencing judge nominating a limiting term under s 23(1)(b) of the Mental Health (Criminal Procedure) Act 1990 is required, or permitted, to divide that term into a minimum term and an additional term under the Sentencing Act 1989.
  • What factors are relevant to the nomination of a limiting term, including the weight to be given to psychiatric condition, co-offender parity, and a prior guilty plea later withdrawn.
  • Whether the limiting term of 18 years and 8 months was manifestly excessive.

Decision

The Court held that the trial judge erred in subdividing the limiting term into a minimum term and an additional term. A limiting term under s 23 of the Mental Health (Criminal Procedure) Act operates as an outer boundary on the period of institutional detention. The Act itself provides for regular review (at least every six months) and permits release at any point before the limiting term expires. Imposing a minimum term within a limiting term is therefore structurally incompatible with the statutory scheme and constituted a technical error.

On the question of relevant sentencing factors, the Court confirmed that the nomination of a limiting term should represent the court's best estimate of the sentence that would have been appropriate had the special hearing been an ordinary criminal trial against a fit accused. Psychiatric condition is relevant to this estimate but cannot simply be treated as a straightforward mitigating factor in the same way it would be in an ordinary sentencing exercise. The Act's review mechanism is the mechanism by which the person's mental state is accounted for over time.

Regarding the prior guilty plea entered before Johnston DCJ and subsequently withdrawn, the Court found no error in the trial judge's approach. The plea had not been maintained and the matter ultimately proceeded to a special hearing. No credit for a guilty plea was warranted in those circumstances.

The Court also rejected the submission that the limiting term was manifestly excessive. While the term sat at the top of the statistical range for offences of this type, sentencing statistics are a guide only and do not displace a proper assessment of the particular circumstances. Given the gravity of the offence, the term fell within an acceptable range.

Orders Made

  • Appeal allowed.
  • The determination below was quashed.
  • A limiting term of 18 years and 8 months, commencing 10 December 1992, was nominated under s 23(1)(b) of the Mental Health (Criminal Procedure) Act 1990, without subdivision into minimum and additional terms.

Key Takeaways

  • Under s 23(1)(b) of the Mental Health (Criminal Procedure) Act 1990, a limiting term must not be subdivided into a minimum term and an additional term. The Act's own review and release mechanisms serve the function that a minimum/additional term structure serves in ordinary sentencing.
  • A limiting term should represent the court's best estimate of the sentence appropriate for a fit accused in an ordinary trial, taking into account both objective and subjective factors relevant to the particular offence and offender.
  • Parity with co-offenders is a proper and necessary consideration when nominating a limiting term, even where the person's mental condition limits the weight of subjective mitigating factors.
  • Where a guilty plea has been withdrawn and the matter proceeds to a special hearing, no discount for that plea is available in the nomination of a limiting term.
  • Sentencing statistics remain a useful reference point but do not replace a full assessment of the circumstances. The Court of Criminal Appeal confirmed it will not intervene on grounds of manifest excess where the term falls within the statistical range and reflects the gravity of the conduct.

Legislation and Cases Referenced

Legislation:
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 18, 21, 22, 23
- Crimes Act 1900 (NSW), s 33
- Criminal Appeal Act 1912 (NSW), ss 5(1), 5F
- Mental Health Act 1990 (NSW)
- Sentencing Act 1989 (NSW)

Cases:
- R v Maclay (1990) 19 NSWLR 112
- R v Moffitt (1990) 20 NSWLR 114
- R v Parker (1990) 19 NSWLR 177
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Engert (1995) 84 A Crim R 67