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Court of Criminal Appeal 21 June 2017

JM v R;; R v JM

[2017] NSWCCA 138

Sexual offences
CRIMINAL LAW CONVICTION APPEAL HISTORICAL SEX OFFENCES FITNESS TO BE TRIED WHETHER PRESSER CRITERIA MET APPLICANT FIT TO BE TRIED

Citation: JM v R; R v JM [2017] NSWCCA 138
Court: NSW Court of Criminal Appeal
Date: 21 June 2017
Judges: Hoeben CJ at CL, Garling J, Bellew J

Background

The applicant was convicted in the District Court of 10 counts of historical sexual offences against two complainants: his stepdaughter and his natural daughter. The offending spanned roughly two decades and included counts of carnal knowledge and indecent assault. The applicant was unrepresented at trial. He was acquitted of 4 of the 14 counts.

The sentencing judge imposed an aggregate term of 6 years and 7 months imprisonment, with a non-parole period of 2 years and 3 months. That non-parole period was notably short relative to the head sentence.

Two separate proceedings came before the Court of Criminal Appeal: the applicant's conviction appeal, arguing he was unfit to be tried, and a Crown appeal against the sentence on the basis that the non-parole period was manifestly inadequate.

  • Whether the applicant was unfit to stand trial, such that a miscarriage of justice had occurred, applying the criteria from R v Presser [1958] VR 45
  • Whether the presumption of fitness to be tried had been displaced by the evidence
  • Whether the aggregate non-parole period of 2 years and 3 months was manifestly inadequate for offending of this nature and seriousness
  • Whether, even if the sentence were found to be manifestly inadequate, the Court should exercise its residual discretion to decline to intervene and resentence the applicant

Decision

Conviction appeal: fitness to be tried

The applicant argued that he was unfit to be tried, relying on the Presser criteria, which require that a defendant understand the nature of the charge, the plea and its consequences, the general course of proceedings, and be able to follow and participate meaningfully in the trial. The Court examined the evidence about the applicant's mental state and capacity during the proceedings. It concluded that the presumption of fitness had not been displaced and that the appropriate tribunal acting reasonably could not have concluded the applicant was unfit. The conviction appeal was dismissed.

Crown appeal: manifest inadequacy of the non-parole period

Hoeben CJ at CL found, not without reservations, that the non-parole period was manifestly inadequate, as it did not adequately reflect the minimum time the applicant should serve given the seriousness of the offending. Garling J agreed the sentence was unduly lenient. However, the Court then turned to whether its residual discretion should be exercised to decline to intervene.

Residual discretion

A psychiatric report before the Court established that the applicant was suffering from Major Depression. He had also refused treatment for what his treating doctors described as "high risk" prostate cancer, telling the psychiatrist he was "happy enough to die now." The Court found there was a real risk that increasing the sentence would further aggravate his depression and entrench his refusal to seek treatment for the cancer. Those considerations weighed strongly in favour of exercising the residual discretion. Accordingly, despite finding the sentence manifestly inadequate, the Court declined to intervene and dismissed the Crown appeal.

Orders Made

  • Leave to appeal against conviction granted; conviction appeal dismissed.
  • Crown appeal against sentence dismissed.

Key Takeaways

  • The Presser criteria remain the governing standard for fitness to be tried in NSW; displacing the presumption of fitness requires more than evidence of mental health difficulties or an unrepresented defendant's difficulties at trial.
  • A finding of manifest inadequacy does not automatically result in resentencing on a Crown appeal. The Court of Criminal Appeal retains a residual discretion to decline to intervene even where the sentence is found to be inadequate.
  • In exercising the residual discretion, the Court gave significant weight to the applicant's diagnosed Major Depression and his refusal of cancer treatment, finding that re-sentencing would likely worsen his mental health and deepen his determination not to seek treatment for a life-threatening illness.
  • The sentencing judge's application of historical sentencing practices for offences committed before current maximum penalties applied was acknowledged as relevant to the sentencing exercise.
  • All three judges agreed on the orders, though Garling J and Hoeben CJ at CL each independently recorded their view that the original sentence was inadequate before agreeing that the residual discretion should nonetheless be exercised.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61E, 71, 73, 76
- Criminal Appeal Act 1912 (NSW), s 5D
- Criminal Procedure Act 1986 (NSW), ss 36, 37
- Evidence Act 1995 (NSW), s 137

Cases
- R v Presser [1958] VR 45
- Kesavarajah v The Queen [1994] HCA 41; 181 CLR 230
- Eastman v The Queen [2000] HCA 29; 203 CLR 1
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- R v RTI [2003] NSWCCA 283; 58 NSWLR 438
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- CT v R [2017] NSWCCA 15
- Denham v R [2016] NSWCCA 309
- LJS v R [2015] NSWCCA 47
- R v Tuala [2015] NSWCCA 8
- Magnuson v R [2013] NSWCCA 50
- Ngatayi v R [1980] HCA 18; 147 CLR 1
- Power v The Queen [1974] HCA 26; 131 CLR 623