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Court of Criminal Appeal 9 October 2013

RS v R

[2013] NSWCCA 227

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE SEXUAL ASSAULT INTELLECTUAL DISABILITY NOT ESTABLISHED

Citation: RS v R [2013] NSWCCA 227
Court: NSW Court of Criminal Appeal
Date: 9 October 2013
Judge(s): Beazley P, McCallum J, Schmidt J

Background

The appellant was a person with an intellectual disability who was arrested in 2011 and charged with thirteen sexual offences involving two young complainants. In May 2012, the Mental Health Review Tribunal found him unfit to stand trial. A special hearing was subsequently conducted in the District Court under the Mental Health (Forensic Provisions) Act 1990, at which the court found on the limited evidence available that the appellant had committed ten of the offences.

On 8 February 2013, the sentencing judge imposed partly cumulative "limiting terms" (the equivalent of sentences for forensic patients found unfit to be tried) totalling 2 years and 3 months. A notable feature of the sentences as structured was a gap of approximately six and a half months between the end of the limiting terms for offences against the first complainant and the commencement of those for offences against the second complainant.

The appellant sought leave to appeal against the severity of those limiting terms, raising six grounds of appeal.

  • Whether the sentencing judge failed to apply s 23(6) of the Mental Health (Forensic Provisions) Act 1990, which requires the court to have regard to the normal mechanism for accumulating sentences when fixing limiting terms
  • Whether the sentencing judge erred in finding that one count involved "simulated intercourse"
  • Whether the sentencing judge failed to give adequate weight to the appellant's good character
  • Whether the sentencing judge failed to take into account the appellant's intellectual disability as a mitigating factor under s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999, specifically that the disability reduced his awareness of the wrongfulness of his conduct
  • Whether the sentencing judge wrongly imposed a longer sentence to protect the community, contrary to the principle in Veen v R (No 2)
  • Whether the overall limiting terms were manifestly excessive

Decision

The Court rejected five of the six grounds of appeal. The Court found no demonstrated error in the sentencing judge's application of s 23(6), no established mistake in the characterisation of the relevant count as involving simulated intercourse, no failure to account for good character, no error in the treatment of the appellant's intellectual disability as a mitigating factor, and no improper use of community protection as a sentencing consideration beyond its legitimate role.

The sixth ground, that the limiting terms were manifestly excessive, was upheld. Schmidt J (with whom Beazley P and McCallum J agreed) identified an unexplained hiatus of approximately six and a half months between the two groups of limiting terms, a period that did not correspond accurately with the bail period the judge appeared to have intended to reflect. The structure of the sentences as imposed produced an aggregate limiting term that was harsher than the sentences that would ordinarily have been imposed after a normal trial, contrary to the legislative intent underlying s 23(6).

McCallum J added observations on Ground 1. Her Honour explained that the amendments to the Mental Health (Forensic Provisions) Act were introduced to address the former inability of courts to postpone the commencement of a limiting term. Those amendments were not intended to produce more onerous outcomes for forensic patients than would follow from a regular sentencing process. Her Honour also observed that, while forensic prisoners are excluded from standard non-parole period requirements, the existence of a standard non-parole period as a legislative guidepost is not necessarily to be ignored altogether when assessing the appropriate sentence for the offence.

On re-sentencing, the Court restructured the limiting terms to remove the erroneous hiatus and to ensure that the sentences properly reflected the period the appellant had spent in custody, including the time on bail between the two sets of offences.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Limiting terms imposed by Sides DCJ on 8 February 2013 quashed
  • Replacement limiting terms imposed:
  • Counts 1, 3 and 5: 1 month each, commencing 18 October 2011, expiring 17 November 2011
  • Count 2: 8 months, commencing 18 October 2011, expiring 17 June 2012
  • Count 4: 8 months, commencing 18 December 2011, expiring 17 August 2012
  • Count 6: 8 months, commencing 18 February 2012, expiring 17 October 2012
  • Count 10: 5 months, commencing 18 February 2012, expiring 17 November 2012
  • Count 11: 8 months, commencing 18 July 2012, expiring 17 March 2013
  • Counts 8 and 9: 14 months, commencing 18 August 2012, expiring 17 October 2013

Key Takeaways

  • Section 23(6) of the Mental Health (Forensic Provisions) Act 1990 was introduced to ensure that limiting terms imposed for multiple offences do not produce results more onerous than the sentences that would have been imposed after a normal trial. It is not a mechanism to produce lighter aggregate outcomes than would follow from ordinary sentencing.

  • An unexplained hiatus between consecutive limiting terms that does not accurately reflect the relevant bail period can render the overall sentence structure manifestly excessive, even where no individual term is itself excessive.

  • Under the scheme governing forensic patients, non-parole periods are not set. McCallum J observed that this does not necessarily mean standard non-parole periods are irrelevant as legislative guideposts when assessing the appropriate sentence for the underlying offence.

  • Five of the six grounds of appeal were dismissed, demonstrating that a sentence will not be disturbed merely because mitigating factors such as intellectual disability, good character, or the burdens of custody were present. It must be shown that the sentencing court failed to give them proper weight.

  • In re-sentencing, the Court of Criminal Appeal restructured the limiting terms to achieve continuity and proportionality, eliminating the unexplained gap while preserving the individual term lengths the sentencing judge had imposed.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 19, 22, 23, 24
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(j), 47, 54(c)
- Crimes Act 1900 (NSW), ss 61M(2), 61O(2)
- Mental Health (Criminal Procedure) Act 2005 (repealed)
- Mental Health Legislation Amendment (Forensic Provisions) Act 2008 (repealed)

Cases
- Muldrock v R [2011] HCA 39; (2011) 244 CLR 120
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- R v Engert (1995) 84 A Crim R 67
- R v Mailes [2004] NSWCCA 394; (2004) 150 A Crim R 365
- Essex v R [2013] NSWCCA 11
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- R v ABS [2005] NSWCCA 255
- R v AN [2005] NSWCA 239
- R v Mitchell [1999] NSWCCA 120; (1999) 108 A Crim R 85
- R v PGM [2008] NSWCCA 172; (2008) 187 A Crim R 152
- Regina v RTI [2005] NSWCCA 337
- Dousha v R [2008] NSWCCA 263