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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: Court of Criminal Appeal
Date: 09 October 2013
Judge(s): Beazley P, McCallum J, Schmidt J

Background

The applicant, a man with a significant intellectual disability placing him in the bottom 0.3 percent of the population, was charged in 2011 with thirteen sexual offences involving two young child complainants. The Mental Health Review Tribunal found him unfit to be tried. A special hearing was subsequently conducted in the District Court under the Mental Health (Forensic Provisions) Act 1990, resulting in findings that, on the limited evidence available, he had committed ten offences, including acts of aggravated indecent assault and acts of indecency toward children under 10 years of age.

The District Court judge imposed partly cumulative limiting terms (the maximum period a forensic patient may be detained in relation to the relevant offences) totalling 2 years and 3 months. A notable feature of the structure was a gap, or hiatus, of approximately 6 months and 15 days between the expiry of the limiting terms for offences involving the first victim and the commencement of those for the second victim.

The applicant sought leave to appeal against the severity of the limiting terms on six grounds, including failure to apply the relevant statutory provisions governing limiting terms, errors in factual findings, and claims that the overall sentence was unduly harsh.

Legal Issues

  • Whether the sentencing judge failed to take account of section 23(6) of the Mental Health (Forensic Provisions) Act 1990, which requires courts making directions about consecutive limiting terms to consider non-parole period principles applicable in ordinary sentencing
  • Whether the judge erred in characterising one of the offences as involving simulated intercourse
  • Whether the judge erred in failing to give sufficient weight to the mitigating factor under section 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999 that the applicant lacked full awareness of the consequences of his actions due to mental disability
  • Whether the judge wrongly imposed a longer sentence on the basis of community protection
  • Whether the judge erred by failing to make any allowance for good character
  • Whether the overall limiting terms were unduly harsh and severe

Decision

Ground 1: Section 23(6) of the Mental Health (Forensic Provisions) Act

The Court found this ground was not established. Section 23(6) operates in the specific context where a court directs that a limiting term commence at a later time, so as to be served consecutively with another limiting term. In this case, all limiting terms were backdated to reflect pre-sentence custody and none commenced after the date of sentencing. The provisions of section 23(6) and section 47 of the Crimes (Sentencing Procedure) Act were therefore not directly engaged. McCallum J added that the 2006 amendments were intended to cure a deficiency preventing accumulation of limiting terms, not to render aggregate limiting terms less onerous than the equivalent aggregate head sentences after a normal trial.

Ground 2: Finding of simulated intercourse

The Court rejected this ground. The trial judge's description of the offending conduct as simulated intercourse accurately reflected the evidence from the young complainant, including that the applicant's penis made contact with her genital area without any clothing separating them, while he moved on top of her. The judge had expressly noted there was no evidence of penetration, and his characterisation was open on the evidence.

Ground 6: Good character

This ground was not established. The applicant had prior convictions from 1998 in Victoria for sexual offences against a child, committed when he was a juvenile. Although the convictions were old and the applicant's intellectual disability was present at the time of that earlier offending, the Court held that repeated sexual offending against young children diminishes the mitigating impact of an otherwise good character. Consistent with decisions including Dousha v R and R v PGM, a claim of good character in the context of a course of repeated sexual offending against children does not attract the same degree of leniency that might be available for isolated, spontaneous offending.

Grounds 4 and 5: Mental disability and community protection

The Court found no error in the sentencing judge's approach to either of these grounds. The judge properly gave reduced weight to deterrence, retribution and denunciation because of the applicant's intellectual disability, consistent with R v Engert. Community protection remained a legitimate sentencing purpose under section 3A of the Crimes (Sentencing Procedure) Act 1999, and the applicant's lack of insight into his offending, his poor prospects of rehabilitation, the attitudes of his primary carers, and the expert psychiatric opinion all provided a proper basis for the judge's concerns. Consistent with Veen v R (No 2), having regard to community protection as one factor in the sentencing exercise is permissible, provided the sentence is not extended purely as preventive detention beyond what is proportionate to the criminality.

Ground 3: Overall harshness of the limiting terms

This ground was established. The structural defect lay in the hiatus of approximately 6 months and 15 days between the expiry of the last term for the first victim and the commencement of the first term for the second victim. Rather than reflecting the judge's stated intention of only "modest" accumulation between the two sets of offences, the hiatus produced complete accumulation as between the two groups of offending. The Court found that, after a normal trial, the principle of totality and the authorities on concurrency and accumulation would have produced some degree of concurrency between the two groups of offences. The overall result was a total period in detention that exceeded what would have been imposed after a normal criminal trial. The Court allowed the appeal and imposed fresh limiting terms totalling 2 years, commencing from 18 October 2011 and expiring 17 October 2013, restructuring the accumulation to better reflect the intended partial concurrency between the two groups of offences.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Limiting terms imposed by Sides DCJ on 8 February 2013 quashed
  • Fresh limiting terms imposed in lieu, totalling 2 years and commencing 18 October 2011, structured as follows:
  • 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

  • A limiting term under the Mental Health (Forensic Provisions) Act 1990 must represent the court's best estimate of the total sentence that would have been imposed after a normal criminal trial; it is not the equivalent of a non-parole period, and no non-parole period is set for forensic patients.
  • Section 23(6) of the Mental Health (Forensic Provisions) Act, which directs courts to have regard to non-parole period principles when making accumulation directions, is engaged only where a limiting term is directed to commence at a later time so as to run consecutively with another limiting term; it does not apply where all terms are backdated.
  • The Court of Criminal Appeal confirmed that a structural hiatus between backdated limiting terms can inadvertently produce full accumulation between groups of offences, even where the sentencing judge intended only partial accumulation, and such a result may render the overall terms excessive.
  • In the context of repeated sexual offending against children, the mitigating effect of an otherwise good character is substantially diminished; the intervening absence of recorded offending does not, of itself, revive a full claim to leniency on character grounds.
  • Community protection remains a legitimate sentencing consideration even where an offender's intellectual disability reduces moral culpability and diminishes the weight to be given to deterrence; the permissible boundary, as confirmed by reference to Veen v R (No 2), lies between having regard to community protection as one factor and impermissibly extending a sentence purely for preventive purposes.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Mental Health (Criminal Procedure) Act 2005 (repealed)
- Crimes (Sentencing Procedure) Act 1999
- Mental Health (Forensic Provisions) Act 1990
- Mental Health Legislation Amendment (Forensic Provisions) Act 2008 (repealed)

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