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Court of Criminal Appeal 15 November 2002

Regina v Debbie Marie Adams

[2002] NSWCCA 448

Assault & violenceHomicide
SENTENCING CROWN APPEAL SEVERE PERSONALITY DISORDER OF ANTI SOCIAL TYPE KEPT IN SEGREGATED UNIT HARSH CUSTODIAL CONDITIONS

Citation: Regina v Debbie Marie Adams [2002] NSWCCA 448
Court: NSW Court of Criminal Appeal
Date: 15 November 2002
Judges: Ipp JA, Bell J, Smart AJ

Background

The offender was a ward of the State, born in August 1982, who in January 1999 (aged 16) travelled to her natural mother's home and stabbed her in the neck. She was remanded to Yasmar Juvenile Justice Centre. While detained there, she fatally stabbed a TAFE employee who was assisting a cooking class in July 1999.

The offender was found unfit to stand trial under the Mental Health (Criminal Procedure) Act 1990. Following a special hearing before a judge alone, she was found, on the limited evidence available under that procedure, to have committed malicious wounding with intent to cause grievous bodily harm (against her mother) and manslaughter (having regard to substantial impairment, reducing what would otherwise have been murder). She was described by expert evidence as severely psychologically disturbed, extremely dangerous, with a severe antisocial personality disorder and profoundly impaired capacity for self-control.

The sentencing judge at first instance nominated limiting terms (the equivalent of a maximum period of detention under the special hearing regime) of 1 year for the wounding offence and 5 years for manslaughter, cumulative, totalling 6 years. The Director of Public Prosecutions appealed on the ground that these terms were manifestly inadequate.

  • Whether the limiting terms nominated by the primary judge were manifestly inadequate, having regard to the objective gravity of the offences and the offender's subjective circumstances.
  • How the court should balance the need to protect the community against a dangerous and psychiatrically unwell offender with the principles of totality and the offender's severely impaired mental state.
  • What weight should be given to harsh custodial conditions (including segregation and the absence of a suitable psychiatric treatment facility) when determining the appropriate limiting terms.

Decision

The Court of Criminal Appeal unanimously agreed with Smart AJ's reasons and allowed the Crown appeal. The original limiting terms were found to be manifestly inadequate when measured against the objective gravity of both offences and the circumstances of their commission.

The court acknowledged the considerable complexity of the case. The offender's severe antisocial personality disorder and substantially impaired capacity for self-control were relevant mitigating factors, but they did not justify terms as low as those imposed. The court noted that, whether or not the impairment ever became treatable, the community required protection from an offender whose propensity for serious violence was extreme and whose prognosis was deeply uncertain.

The court also took into account the harsh conditions under which the offender was being held, including placement in a segregated unit and the absence of a suitable secure psychiatric facility offering adequate treatment. These conditions were treated as a factor that could modulate the sentence to some extent, but they did not justify the degree of reduction the original judge had applied.

Applying principles of totality, the court nominated a cumulative limiting term of 10 years for the manslaughter offence, to follow a 3-year limiting term for the wounding offence. The court confirmed that, had this been an ordinary criminal trial of a fit accused, a sentence of imprisonment would have been imposed.

Orders Made

  • Crown appeal against the limiting terms allowed; original limiting terms quashed.
  • In substitution, the following limiting terms were nominated:
  • Malicious wounding with intent to cause grievous bodily harm: 3 years, commencing 26 January 1999 and expiring 25 January 2002.
  • Manslaughter: 10 years, commencing 26 January 2002 and expiring 25 January 2012 (cumulative on the first term).
  • The order referring the offender to the Mental Health Review Tribunal was confirmed.
  • The order that the offender be held in strict custody was confirmed.
  • A copy of the expert psychiatric report (Dr Lennings, 30 July 2002) was directed to accompany the warrant and be placed on the offender's file to assist Corrective Services and Corrective Health Services in her treatment and management.

Key Takeaways

  • The Court of Criminal Appeal confirmed that limiting terms nominated under the special hearing regime of the Mental Health (Criminal Procedure) Act 1990 are subject to Crown appeal on the ground of manifest inadequacy, in the same way as ordinary sentences.
  • Severe psychiatric disorder and substantially impaired capacity for self-control are relevant mitigating considerations, but they do not automatically warrant a drastic reduction in the limiting term where the offences are objectively grave and the offender poses a serious ongoing danger to the community.
  • Harsh custodial conditions, including segregation and the absence of an appropriate secure treatment facility, may be taken into account in fixing the limiting term, but they do not, on their own, justify a term that fails to reflect the gravity of the conduct.
  • Where an offender found unfit to be tried is found to have committed offences of serious violence, the need to protect the community remains a live and weighty sentencing consideration alongside the principles of totality and the offender's mental condition.
  • A court conducting a special hearing that results in a finding against the accused must confirm whether, had the proceedings been an ordinary trial, a sentence of imprisonment would have been imposed; the Court of Criminal Appeal confirmed that it would have been in this case.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), ss 23A(1), 33
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 11A, 16(1), 18, 24, 27
- Mental Health Act 1900 (NSW)

Cases:
- Veen v The Queen (No 2) (1988) 164 CLR 465
- House v The King (1930) 55 CLR 499
- R v Chayna (NSW CCA, unreported, 8 June 1993)
- R v Heikki Veli Hietikko (NSW CCA, unreported, 18 June 1992)
- D L White-Cotterell (No 70200/91)
- R v Low (1992) 57 A Crim R 18
- R v Hill (1981) 3 A Crim R 397
- R v Blacklidge (NSW CCA, unreported, 12 December 1995)