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Court of Criminal Appeal 2 September 2009

Bhuiyan v R

[2009] NSWCCA 221

Sexual offencesPublic order & justice offences
CRIMINAL LAW APPEAL SEVERITY OF LIMITING TERM SPECIAL CIRCUMSTANCES

Citation: Bhuiyan v R [2009] NSWCCA 221
Court: NSW Court of Criminal Appeal
Date: 2 September 2009
Judge(s): McClellan CJ at CL, Howie J, McCallum J

Background

The applicant was found not fit to stand trial and was instead subject to a special hearing before a judge and jury in the District Court. The jury determined that he had committed two serious sexual offences against a sex worker in August 2005: sexual intercourse without consent and aggravated sexual intercourse without consent involving a knife.

The applicant had a deeply troubled personal history. He had fled Bangladesh after suffering imprisonment and torture, and after his family rejected him on discovering his homosexuality. On arriving in Australia he spent years unable to work legally or access social security, eventually resorting to male prostitution. He developed schizophrenia, post-traumatic stress disorder, alcohol dependency, and polysubstance abuse. His psychiatric illness had not been formally diagnosed until shortly before the offences occurred.

Following the special hearing, the District Court imposed a limiting term under the Mental Health (Criminal Procedure) Act 1990. A limiting term is functionally equivalent to the full term of a sentence of imprisonment, and sets the outer boundary of time the offender may be held under the supervision of the Mental Health Review Tribunal. The applicant sought leave to appeal, arguing the limiting term was excessive given the weight that should have been given to his mental disorder and personal circumstances.

  • Whether the limiting term of eight years imposed by the District Court was excessive in all the circumstances.
  • How general deterrence and the offender's mental disorder should be weighted when determining a limiting term for an offender found unfit to stand trial.
  • Whether the standard non-parole period framework provided a useful reference point for setting the limiting term.

Decision

The Court of Criminal Appeal granted leave to appeal but unanimously dismissed the appeal. McClellan CJ at CL, with whom Howie J and McCallum J agreed, held that the limiting term of eight years was not excessive.

The sentencing judge in the District Court had found the offences fell below the middle range of objective seriousness, but the Court of Criminal Appeal noted they remained serious: the aggravating feature of threatening the victim with a knife was significant, and both offences involved unprotected intercourse. The limiting term equated to approximately 80% of the standard non-parole period for the most serious count, which the Court considered was, if anything, on the lenient side given the objective circumstances.

McClellan CJ at CL acknowledged the genuine difficulty courts face when imposing a limiting term on an offender with serious mental illness. Citing R v Engert, his Honour affirmed that although a significant psychiatric illness will often have diminished an offender's capacity for reason and self-control, this cannot be permitted to entirely displace proper consideration of the nature of the offence and the offender's other circumstances. The role of the Mental Health Review Tribunal was also relevant: that body retains the power to release the offender before the limiting term expires, and will address the particular difficulties arising from the applicant's psychiatric condition in that context.

The Court noted the distinction between the limiting term, which sets the ceiling for detention, and the actual period spent in custody, which will be determined by the Mental Health Review Tribunal. This distinction informed its conclusion that the term imposed was appropriate and not in error.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a serious mental illness does not automatically override the need for appropriate weight to be given to the objective circumstances of the offence when setting a limiting term.
  • Under the Mental Health (Forensic Provisions) Act 1990, a limiting term is equivalent to the full term of a sentence and sets the outer boundary of potential detention, but the Mental Health Review Tribunal retains the power to order release before that term expires.
  • The standard non-parole period provisions under the Crimes (Sentencing Procedure) Act 1999 can serve as a useful reference point when assessing whether a limiting term is proportionate, even where the offender has been found unfit to stand trial.
  • Where an offender's psychiatric difficulties contributed to the commission of the offence, the Mental Health Review Tribunal is the appropriate body to address those difficulties when deciding whether and when to release the offender, rather than that consideration entirely displacing the sentencing court's assessment of the limiting term.
  • No error was established in the District Court's approach to balancing compelling subjective circumstances, including the applicant's prolonged mental illness, trauma history, and social deprivation, against the seriousness of offences involving sexual violence and a weapon.

Legislation and Cases Referenced

Legislation:
- Mental Health (Criminal Procedure) Act 1990, now known as the Mental Health (Forensic Provisions) Act 1990
- Crimes Act 1900 (NSW), ss 61I, 61J
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Engert (1995) 84 A Crim R 67
- R v Hemsley [2004] NSWCCA 228
- R v Way (2004) 68 NSWLR 168