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10
Court of Criminal Appeal 24 July 2006

A.N (No. 2) v Regina

[2006] NSWCCA 218

Also reported as (2006) 66 NSWLR 523 163 A Crim R 133
Sexual offencesPublic order & justice offences
S.24(1)(B) S 27(B) EXTENT OF POWER WHETHER DISCRETION TO MAKE AN ORDER

Citation: A.N (No. 2) v Regina [2006] NSWCCA 218
Court: Court of Criminal Appeal, New South Wales
Date: 24 July 2006
Judge(s): James J; Simpson J; Rothman J

Background

The applicant was thirteen years old when he committed two serious offences, including aggravated sexual assault, in August 2000. A District Court judge subsequently found him unfit to be tried due to intellectual disability, and a special hearing under the Mental Health (Criminal Procedure) Act 1990 resulted in findings that he had committed both offences on the limited evidence available.

The District Court nominated concurrent limiting terms of five years for each offence, dating from April 2004. A limiting term is the court's best estimate of the sentence it would have imposed had the person been fit to stand trial and been found guilty. Following an earlier appeal, the Court of Criminal Appeal reduced those limiting terms to three years and four years six months respectively, but failed at that stage to make the required referral to the Mental Health Review Tribunal under s 24(1)(a).

The omission was subsequently corrected, the Tribunal reported back to the Court, and the matter returned to the Court of Criminal Appeal to determine what, if any, orders should now be made regarding the applicant's custody under ss 24 and 27 of the Act. The applicant had, throughout, been held at the Frank Baxter Juvenile Justice Detention Centre.

  • Whether the Court of Criminal Appeal retained power to make an order under s 24(1)(b) after its original judgment had been perfected, given the omission to make such an order at the time of sentencing.
  • Whether the Court had power under s 27(b) to order that the applicant be detained for the entirety of the limiting term, or only that part of the term to be served in custody or detention.
  • Whether the power under s 27 is discretionary (the word "may" is used) or whether the court is obliged to make an order upon receiving the Tribunal's notification.

Decision

On the question of ongoing power, the Court held that it retained jurisdiction to make an order under s 24(1)(b) even after the earlier judgment had been perfected. James J reasoned that the court is not functus officio (that is, its task is not legally complete) until it has received and acted upon the Tribunal's determination. Rothman J agreed, adding that the two-stage process contemplated by the Act means the court remains seized of the matter until it responds to the Tribunal's notification. A slip and accidental omission basis for correction also provided an independent foundation.

On the scope of s 27(b), the Court concluded that the power to order detention under that provision applied to the full limiting term, not merely to some portion of it. The structure of the Act and its relationship with the Mental Health Act supported a reading under which a person subject to a limiting term becomes a forensic patient and is subject to the Tribunal's ongoing review regime once an order under s 27 is made.

On the question of discretion, the Court firmly rejected the Crown's submission that the use of "may" in s 27 should be read as imposing an obligation. James J observed that the Act consistently and deliberately uses "must" when an obligation is intended and "may" when discretion is conferred. The contrast is visible within s 24 itself: referral to the Tribunal is mandatory, but a custody order is discretionary. The Court concluded that the word "may" in s 27 preserves a genuine discretion.

Having reached those conclusions, the Court exercised that discretion in favour of making orders. It directed that the applicant be detained at the Frank Baxter Juvenile Justice Detention Centre under both ss 24(1)(b) and 27(b), and recommended that facility specifically by name.

Orders Made

  • Order under s 24(1)(b) of the Mental Health (Criminal Procedure) Act 1990, effective from 6 July 2005 and until further order, that the applicant be detained in the Frank Baxter Juvenile Justice Detention Centre.
  • Order under s 27(b) of the Mental Health (Criminal Procedure) Act 1990 that the applicant be detained during the limiting terms in a Juvenile Justice Detention Centre.
  • The Court recommended that the applicant be detained specifically at the Frank Baxter Juvenile Justice Detention Centre.

Key Takeaways

  • A sentencing court is not functus officio upon delivering its principal judgment where it has not yet received and acted upon the Mental Health Review Tribunal's determination under s 24(2). The court retains power to make orders under s 24(1)(b) until that two-stage process is complete.
  • Under s 27(b) of the Mental Health (Criminal Procedure) Act 1990, the power to order detention extends to the full duration of a limiting term, not merely to some part of it.
  • The use of "may" in s 27 confers a genuine discretion. The Court of Criminal Appeal held that the legislature's consistent use of "may" and "must" throughout the Act was deliberate, and that no contrary intention sufficient to displace the Interpretation Act default arose simply because the forensic patient review regime is engaged only once a s 27 order is made.
  • In correcting the omission of the s 24(1)(a) referral after judgment had been perfected, the Court also confirmed its ability to remedy accidental omissions in orders even at that late stage, providing an independent basis for intervention separate from the two-stage process analysis.
  • Where a person subject to a limiting term is a juvenile, the Court has power to direct detention in a juvenile justice facility under both ss 24(1)(b) and 27(b), and may specify the particular centre by recommendation.

Legislation and Cases Referenced

Legislation
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 11, 21, 22, 23, 24, 27
- Crimes Act 1900 (NSW), ss 61J, 90A
- Criminal Appeal Act 1912 (NSW), s 2
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
- Children (Detention Centres) Act 1987 (NSW)

Cases
- R v AN [2005] NSWCCA 239
- Erceg v The District Court of NSW [2003] NSWCA 379
- L Shaddock & Associates Pty Limited v Parramatta City Council (No. 2) (1982) 151 CLR 590
- Grierson v The King (1938) 60 CLR 431
- R v Carrion (2002) 128 A Crim R 29
- Postiglione v The Queen (1997) 189 CLR 295
- R v Allen (1994) 1 Qd R 526
- R v De Zylva (1998) 38 A Crim R 207
- Re Cripps ex parte Muldoon [1984] 1 QB 686
- R v Jovanovic (1996) 106 A Crim R 548
- R v Reardon (2004) 146 A Crim R 475
- Mailes v Director of Public Prosecutions and Mental Health Review Tribunal (Hulme J, unreported, 10 April 2000)
- R v Adams (2003) 58 NSWLR 1
- R v Tas (District Court, 1 October 1997)
- R v Boyle (Matthews J, unreported, 18 September 1992)
- R v Mailes (2004) 62 NSWLR 181
- R v Mitchell (1999) 108 A Crim R 85