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23
Court of Criminal Appeal 4 July 2007

Courtney v Regina

[2007] NSWCCA 195

Also reported as (2007) 172 A Crim R 371
Assault & violenceTheft & property
CRIMINAL LAW AND PROCEDURE MENTALLY ILL OFFENDER SPECIAL HEARING CHALLENGE TO SETTING OF LIMITING TERMS

Citation: Courtney v Regina [2007] NSWCCA 195
Court: New South Wales Court of Criminal Appeal
Date: 4 July 2007
Judges: Basten JA, Grove J, Howie J

Background

The appellant was found unfit to stand trial on charges of assault with intent to rob and robbery, both involving a knife used against women alone in public places. Because she was unfit to plead, the matter proceeded by way of a "special hearing" under the Mental Health (Criminal Procedure) Act 1990 (NSW). Following findings that she had committed both offences on the limited evidence available, the sentencing judge imposed concurrent limiting terms of five years.

A limiting term is the statutory mechanism by which a court nominates the best estimate of the sentence it would have imposed had the special hearing been a normal criminal trial against a fit accused. The appellant's limiting terms commenced on 18 December 2002 and were set to expire on 17 December 2007.

As a forensic patient, the appellant had been reviewed periodically by the Mental Health Review Tribunal. She was assessed as presenting a severe risk of harm to herself and to others. Despite that status, she remained in prison rather than a hospital, because no suitable psychiatric facility could accommodate her given her history of serious violence.

  • Whether the extension of time to seek leave to appeal against sentence should be granted
  • Whether affidavit evidence about the appellant's custody conditions after sentence could be admitted as fresh evidence
  • Whether the sentencing judge erred by giving weight to specific (personal) deterrence, given the appellant's mental illness
  • Whether the judge failed properly to account for the impact of the appellant's mental illness on her moral culpability
  • Whether the limiting terms were proportionate to the objective seriousness of the offences
  • Whether the principle of totality was properly applied

Decision

The Court unanimously granted an extension of time. By majority (Grove J and Howie J, with Basten JA dissenting), the Court granted leave to appeal but dismissed the appeal, leaving the original five-year limiting terms in place.

The majority accepted that the sentencing judge had technically erred by referring to personal deterrence as a sentencing factor. Both Grove J and Howie J agreed that personal deterrence was an inappropriate consideration because it was obvious it would have no effect on the appellant given her mental state. However, the majority concluded this error did not produce a miscarriage. Howie J reasoned that the appellant's immunity to deterrence in fact heightened the danger she posed to the community, and that the terms imposed were proportionate to her objective criminality and necessary for public protection.

Basten JA, dissenting, took a more interventionist approach. His Honour considered the error in applying specific deterrence was material, and that the judge had not clearly addressed how the appellant's reduced awareness of consequences bore on her moral culpability. Basten JA would have set aside the terms and imposed a marginally shorter limiting term of four years and nine months, expiring 17 September 2007, having regard to the practical exigencies of the situation.

The Court also rejected the tender of affidavit evidence detailing the appellant's custody conditions since sentence. The sentencing judge had already been aware of, and had made extensive reference to, the exceptional hardship of the appellant's circumstances, including prolonged segregation from other inmates. The majority was unpersuaded that any hardship had been overlooked.

Orders Made

  • Extension of time to apply for leave to appeal granted
  • By majority, leave to appeal against sentence granted
  • Appeal dismissed (the original concurrent five-year limiting terms remained in force)

Key Takeaways

  • The Court of Criminal Appeal confirmed that personal (specific) deterrence is not a valid sentencing consideration where the offender's mental illness renders deterrence obviously ineffective, but an error on this point does not automatically warrant intervention if the sentence is otherwise proportionate.
  • Under the special hearing regime in the Mental Health (Criminal Procedure) Act 1990 (NSW), a limiting term represents the court's best estimate of the sentence that would have been appropriate had the accused been fit to stand trial; sentencing principles, including proportionality and public protection, still apply.
  • Where an offender presents a severe and continuing danger to the community, protection of the public may properly receive significant weight in fixing a limiting term, provided the term remains commensurate with the objective gravity of the offences.
  • Affidavit evidence of post-sentence custody conditions is not admissible to demonstrate sentencing error where the judge was already aware of, and had considered, the nature and likely hardship of the offender's detention at the time of sentencing.
  • No appeal to the Court of Criminal Appeal lies to remedy any failure to implement the hospital detention provisions in s 27 of the Mental Health (Criminal Procedure) Act 1990 (NSW), a point conceded by senior counsel for the appellant and accepted by the Court.

Legislation and Cases Referenced

Legislation
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 19, 23, 24, 27
- Mental Health (Criminal Procedure) Amendment Act 2005 (NSW)
- Mental Health Act 1990 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases
- AB v The Queen (1999) 198 CLR 11
- Baumer v The Queen (1988) 166 CLR 51
- Veen v The Queen [No 2] (1988) 164 CLR 465
- R v Engert (1996) 84 A Crim R 67
- R v Henry (1999) 46 NSWLR 346
- R v Mailes (2003) 141 A Crim R 353
- R v Hemsley [2004] NSWCCA 228
- R v AN (No 2) [2006] NSWCCA 218
- R v Callaghan [2006] NSWCCA 58
- R v McNaughton [2006] NSWCCA 242
- Rigby v Regina [2006] NSWCCA 205
- Smith v Regina [2007] NSWCCA 39
- The Queen v Verdins [2007] VSCA 102
- DPP v Mills [2000] NSWCA 236
- R v Schneidas (unreported, NSWCCA, 22 August 1994)
- R v Ehrenburg (unreported, 14 December 1990)