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Supreme Court 19 December 2014

R v MB (No. 3)

[2014] NSWSC 1796

Homicide
CRIMINAL LAW MENTAL HEALTH NECESSITY TO IMPOSE A LIMITING TERM SERIOUSNESS OF OFFENDING WHETHER OFFENDING PRE MEDITATED

Citation: R v MB (No. 3) [2014] NSWSC 1796
Court: Supreme Court of New South Wales
Date: 19 December 2014
Judge: Bellew J

Background

Following a nine-day special hearing, Bellew J found on the limited evidence available that the offender (MB) had murdered her six-month-old daughter on 18 November 2010 at North Strathfield. A "special hearing" under the Mental Health (Forensic Provisions) Act 1990 (NSW) is a modified criminal proceeding conducted where an accused has been found unfit to stand trial. The finding in such a hearing does not constitute a conviction in the ordinary sense; it is expressed as what the evidence establishes on the limited material available.

After making that finding, the court adjourned to receive submissions on the appropriate "limiting term." A limiting term is the maximum period for which the offender can be detained in connection with the offence. It is the court's best estimate of the sentence that would have been imposed had the special hearing been a normal criminal trial ending in a guilty verdict.

The offender suffered from a diagnosed schizophrenic disorder. Her counsel argued that her mental illness, including thought disturbance, high anxiety, and perceptual distortions, significantly reduced the objective seriousness of the offence. The Crown contended that the offending was serious, pre-planned, and not explicable simply by reference to mental illness.

  • What is the correct limiting term under s 23 of the Mental Health (Forensic Provisions) Act 1990 for a finding of murder following a special hearing?
  • Where did the offending fall on the scale of objective seriousness, given the offender's significant mental illness at the time?
  • Was the offending premeditated, and what weight should be given to statements made by the offender before the death and to an internet search regarding drowning?
  • Whether the offender demonstrated genuine remorse.
  • Whether the offender was an appropriate vehicle for general deterrence, given her mental illness.
  • What weight should be given to the offender's prospects of rehabilitation and likelihood of re-offending?

Decision

Bellew J confirmed that a limiting term must reflect the total sentence that would have been imposed in a normal trial, applying all sentencing principles that would otherwise apply. The court accepted that the offender's schizophrenic disorder was directly relevant to the circumstances of the offending. However, his Honour emphasised that evidence of mental illness must not be permitted to overwhelm appropriate consideration of the objective gravity of the offence itself, including the killing of a six-month-old child.

The court rejected the defence submission that the offending fell at the lowest end of the range of objective seriousness. His Honour had already found in the earlier judgment that statements the offender made to friends in the period before the death were inconsistent with the proposition that they were mere expressions of exasperation. The same conclusion was applied at this stage. The internet search regarding death by drowning was treated as a relevant indicator of premeditation rather than evidence of severe mental turmoil inconsistent with planning.

On remorse, the court considered the contents of the triple-zero (000) call made by the offender, which had been advanced as evidence of genuine distress and remorse. The court's assessment of the weight to be given to this material was informed by the broader factual findings from the special hearing.

Regarding general deterrence, Bellew J accepted that, given the unique circumstances of the offending and the offender's mental illness, she was not an appropriate vehicle for general deterrence. The court also found it was not satisfied that specific deterrence was particularly called for. On rehabilitation and likelihood of re-offending, the court could not make a finding either way. The most recent psychiatric evidence noted non-compliance with prescribed anti-psychotic medication, but there was no current evidence before the court on this point. A limiting term of 20 years was nominated.

Orders Made

  • A limiting term of 20 years, commencing 11 December 2014, was nominated in respect of the offence of murder.
  • The offender was referred to the Mental Health Review Tribunal pursuant to s 24(1)(a) of the Mental Health (Forensic Provisions) Act 1990.
  • The offender was ordered to be detained in an appropriate correctional centre or such facility as the Mental Health Review Tribunal may determine.
  • The Registrar was directed to notify the Minister for Health, the Chairperson of the Mental Health Review Tribunal, and the Commissioner for Corrective Services NSW of the orders.

Key Takeaways

  • Under s 23 of the Mental Health (Forensic Provisions) Act 1990, a limiting term must represent the court's best estimate of the total sentence that would have been imposed had the special hearing been a normal trial ending in conviction, with all standard sentencing principles applied.
  • Evidence of serious mental illness is a relevant and weighty consideration in nominating a limiting term, but the Supreme Court confirmed it must not displace appropriate regard for the objective gravity of the offending conduct.
  • A finding that offending falls at the lowest end of objective seriousness is not automatically available simply because an offender was suffering from a major psychiatric illness at the time; the court examines the full circumstances, including conduct in the period leading up to the offence.
  • Where an offender's mental illness is central to the circumstances of the offending, the sentencing court may find that general and specific deterrence carry reduced weight.
  • Inability to assess rehabilitation prospects and likelihood of re-offending, due to insufficient current evidence about an offender's medication compliance, does not prevent a limiting term from being nominated; the court proceeds on the material available.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 23, 24
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Fahs v R [2007] NSWCCA 26
- R v AN [2005] NSWCCA 239
- R v Mitchell [1999] NSWCCA 120; (1999) 108 A Crim R 85
- R v Reynolds [2004] NSWCCA 51
- R v Wilson (No. 3) [2013] NSWSC 1684