Citation: Regina v Ashadulhoque Bhuiyan [2008] NSWDC 55
Court: District Court of New South Wales
Date: 11 April 2008
Judge(s): Finnane QC DCJ
Background
The offender, a permanent resident originally from Bangladesh, was found unfit to stand trial in the ordinary sense but was subject to a special hearing under the Mental Health (Criminal Procedure) Act 1990. He was a chronic alcoholic with a diagnosed mental illness, and had received psychiatric treatment and support from a carer over several years. At the time of the offences in August 2005, he was heavily intoxicated despite being on antipsychotic medication.
The offences involved a sex worker whom the offender had invited to his flat after agreeing on payment for her services. The sex worker was willing to proceed on the condition that he use a condom. The offender refused, forcibly removed the condom, and compelled her to submit to unprotected vaginal intercourse. He then produced a knife and threatened her into submitting to unprotected oral sex. The complainant escaped the locked flat in a state of terror.
The sentencing court proceeded under section 23 of the Mental Health (Criminal Procedure) Act 1990, which requires the court to indicate the sentence it would have imposed had the special hearing been an ordinary criminal trial of a fit offender.
Legal Issues
- Whether a sentence of imprisonment would have been imposed had this been an ordinary criminal trial
- What weight to give to the offender's mental illness and intoxication in determining moral culpability and the appropriate sentence
- Whether the offences fell within the middle range of seriousness, having regard to the standard non-parole periods for the charges
- Whether special circumstances existed justifying a departure from the ordinary non-parole period ratio
- What form of sentencing order was appropriate given the offender's unfitness for trial, namely the imposition of a limiting term rather than a standard head sentence and non-parole period
Decision
The court had no doubt that a sentence of imprisonment would have been imposed if this had been an ordinary trial. The court applied the four principles from R v Hemsley [2004] NSWCCA 228 governing the relevance of mental illness to sentencing: it may reduce moral culpability, render the offender an unsuitable vehicle for general deterrence, cause a custodial sentence to bear more heavily on the offender, and, countervailingly, reflect the danger the offender poses to the community.
The court assessed the offences as falling in the lower range of seriousness for aggravated sexual assault. The key distinction was that the complainant had agreed to provide sexual services and had been paid, but had imposed a reasonable condition requiring condom use. The court contrasted this with cases involving a complainant who had not consented to any sexual contact at all, or cases involving actual rather than threatened violence. The standard non-parole periods were relevant as a benchmark but were not applied as the minimum terms.
The offender's heavy intoxication was noted as a partial explanation for his conduct, though the court found it did not reduce the sentences. His mental illness, however, did bear on moral culpability and general deterrence. The court found special circumstances based on his first time in custody, his mental illness, his alcoholism, and his expressed interest in rehabilitation, which informed the structure of the limiting terms imposed.
On hardship, the court accepted that custody would bear more heavily on the offender than on many prisoners, given his status as a foreign national with no relatives in Australia, his confused sense of national identity, and his mental illness.
Orders Made
- Count 1 (aggravated sexual assault, unprotected vaginal intercourse): limiting term of three years, commencing 2 March 2008 and concluding 1 March 2011
- Count 3 (aggravated sexual assault, unprotected oral sex under knife threat): limiting term of eight years, commencing 2 March 2008 and concluding 1 March 2016, to be served concurrently with Count 1
- The matter was referred to the Mental Health Review Tribunal, with the offender to be held in custody pending further order by that Tribunal
- The court recommended urgent psychiatric treatment and counselling, together with treatment for drug and alcohol addiction
Key Takeaways
- Under section 23 of the Mental Health (Criminal Procedure) Act 1990, a sentencing court must indicate the sentence that would have been imposed had the special hearing been an ordinary criminal trial, including consideration of standard non-parole periods as benchmarks for mid-range offences.
- A limiting term is the equivalent of a head sentence for an unfit offender and does not include a separate non-parole period; the Mental Health Review Tribunal then governs the offender's ongoing detention.
- The District Court confirmed that the four Hemsley principles require a sentencing court to weigh mental illness against reduced moral culpability, diminished utility of general deterrence, greater burden of custody, and the danger posed to the community.
- Assessing seriousness within the range of aggravated sexual assault requires close attention to the specific circumstances: the court here distinguished a case involving refusal of a condition by a willing participant from cases involving a wholly non-consenting complainant or actual violence.
- Greater hardship in custody, arising from factors such as foreign national status, absence of family support, and mental illness, constitutes a recognised mitigating consideration at sentencing.
Legislation and Cases Referenced
Legislation
- Mental Health (Criminal Procedure) Act 1990 (NSW), s 23
Cases
- R v Hemsley [2004] NSWCCA 228
- R v Henry (1999) 46 NSWLR 346
- Regina v Jiminez [1999] NSWCCA 7
- R v Tsiaras [1996] 1 VR 398
- Lauritsen v R (2000) 114 A Crim R 333
- Regina v Israil [2002] NSWCCA 255
- R v Pearson [2004] NSWCCA 129
- Regina v Douglas Wallace Pearce (NSWCCA, 1 November 1996, unreported)
- R v Engert (1995) 84 A Crim R 67
- Regina v Letteri (NSWCCA, 18 March 1992, unreported)