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Court of Criminal Appeal 27 February 2007

SMITH v. REGINA

[2007] NSWCCA 39

Also reported as 169 A CRIM R 265
Sexual offences
SENTENCE SENTENCE IMPOSED MANIFESTLY EXCESSIVE.

Citation: Smith v Regina [2007] NSWCCA 39
Court: NSW Court of Criminal Appeal
Date: 27 February 2007
Judge(s): Sully J, Howie J, Hall J

Background

The applicant, an Aboriginal man with an intellectual disability, was found unfit to stand trial on a charge of aggravated sexual assault contrary to s 61J of the Crimes Act 1900 (NSW). Following a special hearing under the Mental Health (Criminal Procedure) Act 1990 (NSW), a jury returned a verdict under s 22(1)(c) of that Act, finding that on the limited evidence available, he had committed the offence. The offence, committed in 1997, involved the applicant and a co-accused sexually assaulting a victim.

Following the special hearing verdict, the sentencing judge (Twigg DCJ) initially imposed a three-year s 9 bond. That bond was later revoked by Geraghty DCJ in March 2005, who then nominated a limiting term of three years under s 23(1)(b) of the Mental Health (Criminal Procedure) Act.

The applicant sought leave to appeal against that limiting term of three years, arguing it was manifestly excessive in the circumstances, including by reference to the treatment of his co-accused.

  • Whether the sentencing court had power and jurisdiction to impose a limiting term under the Mental Health (Criminal Procedure) Act following revocation of the s 9 bond.
  • Whether the remarks on sentence delivered by the lower court properly translated into a correct determination of the appropriate duration of the limiting term.
  • Whether the three-year limiting term was manifestly excessive having regard to the applicant's role in the offence, his intellectual disability, his subjective circumstances, and considerations of parity with the co-accused.

Decision

Hall J (with whom Sully J and Howie J agreed) confirmed that the sentencing judge had jurisdiction to impose a limiting term under s 23(1)(b) of the Mental Health (Criminal Procedure) Act. This aspect of the appeal was resolved in favour of the Crown's position on jurisdiction.

However, the Court found that the remarks on sentence did not adequately translate into a proper determination of the appropriate duration of the limiting term. The lower court had not sufficiently worked through the relevant considerations in fixing the three-year period.

On the question of manifest excess, Hall J accepted that the applicant's lesser role in the offence, his intellectual disability, his disadvantaged background, and parity considerations each weighed in favour of a reduced term. The co-accused had received a minimum term of three years and three months for two offences, was the instigator, was more actively involved, and did not suffer from an intellectual disability. The applicant's receipt of the same effective term as the co-accused gave rise to a justifiable sense of grievance.

Taking all these matters into account, including time already spent subject to the s 9 bond and in custody, the Court concluded that the three-year limiting term was manifestly excessive and intervened to re-sentence.

Orders Made

  • Leave to appeal granted.
  • The three-year limiting term nominated by Geraghty DCJ set aside.
  • A limiting term of two years nominated under s 23(1)(b) of the Mental Health (Criminal Procedure) Act 1990 (NSW), commencing 9 March 2005 and expiring 8 March 2007.
  • The applicant eligible for immediate release from detention on 8 March 2007.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing court retains power and jurisdiction to impose a limiting term under the Mental Health (Criminal Procedure) Act 1990 following revocation of a bond imposed after a special hearing verdict under s 22(1)(c).
  • Remarks on sentence delivered by a lower court do not automatically translate into a sound determination of the appropriate duration of a limiting term; the court must work through relevant considerations specifically directed at that question.
  • Where a special hearing verdict under s 22(1)(c) reflects only limited evidence, the sentencing court must still give proper weight to the offender's role, subjective circumstances (including intellectual disability), and parity with co-offenders when fixing a limiting term.
  • Parity principles apply in the limiting term context: an applicant who received effectively the same term as a more culpable co-accused, who was sentenced for two offences and did not have an intellectual disability, was found to have a justifiable sense of grievance.
  • In re-sentencing, the Court reduced the limiting term from three years to two years, reflecting the applicant's lower culpability, significant personal disadvantage, and the need to avoid a disproportionate outcome relative to the co-accused.

Legislation and Cases Referenced

Legislation:
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 18, 19, 21, 22(1)(c), 23(1)(b)
- Crimes Act 1900 (NSW), s 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v An (No 2) [2006] NSWCCA 218
- DPP v Mills [2000] NSWCA 236