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Supreme Court 13 July 2018

R v Wilson (No 5)

[2018] NSWSC 1077

Homicide
CRIMINAL LAW SENTENCE SPECIAL HEARING JUDGE ALONE LIMITING TERM NOMINATED GENERAL AND SPECIFIC DETERRENCE

Citation: R v Wilson (No 5) [2018] NSWSC 1077
Court: Supreme Court of NSW
Date: 13 July 2018
Judge: Schmidt J

Background

The defendant was found unfit to be tried for the murder of a man who died in February 2013 after she poured boiling water over him at their shared home. In earlier proceedings, Schmidt J conducted a special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW) and, in R v Wilson (No 4) [2017] NSWSC 1730, returned a qualified finding of guilt: not guilty of murder, but guilty of manslaughter on the limited evidence available. This finding was made under s 22(3)(a) of that Act and did not constitute a conviction.

This judgment addressed the sentencing stage of the special hearing process. The court was required to determine whether, had this been an ordinary criminal trial against a fit accused, a sentence of imprisonment would have been imposed, and if so, to nominate a "limiting term" under s 23 of the Act. A limiting term sets the maximum period during which the person can be detained and is not intended as punishment, given no conviction has been recorded.

A separate question arose about the court's power under s 24(1)(b) of the Act to order that the defendant's existing bail conditions continue until the Mental Health Review Tribunal completed its review. The parties agreed on the appropriate exercise of that power if it existed, but disputed whether the power existed at all.

  • Whether, applying conventional sentencing principles to the circumstances of the offence, a sentence of imprisonment would have been imposed had this been a normal criminal trial
  • What length of limiting term should be nominated, taking into account both the objective seriousness of the offence and the defendant's significant mental and physical health circumstances
  • Whether s 24(1)(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW) empowers the court to order that a defendant's release from custody on bail conditions continue pending the Mental Health Review Tribunal's determination

Decision

Whether a limiting term was required

Schmidt J concluded that a sentence of imprisonment would have been imposed had this been a normal trial, meaning a limiting term was required. The court acknowledged substantial mitigating factors: the defendant had acted in a context of prior domestic violence, had overreacted while defending herself, had not intended death, and suffered from serious and compounding mental and physical health conditions. Nevertheless, the objective gravity of causing another person's painful death by inflicting burns could not be set aside. The court was satisfied that community expectations, the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and the felonious taking of human life required that a limiting term be nominated.

Length of the limiting term

The limiting term was set at 2 years and 6 months, commencing 5 July 2018. The court emphasised that manslaughter does not admit of a sentencing tariff, given the wide variety of circumstances affecting culpability. The term was considerably shorter than would otherwise have applied, expressly reflecting the defendant's serious and unusual combination of mental and physical health problems. The purpose of the limiting term is not punitive but protective: it ensures the person is not detained longer than a convicted offender could have been.

Power under s 24(1)(b) to continue bail

The more novel issue was whether the court could, under s 24(1)(b), order that the defendant's existing release on bail continue pending the Tribunal's review. The court resolved this question of statutory construction in favour of the power existing. Schmidt J found that s 24(1)(b) was broad enough to authorise an order continuing release from custody on conditions, and that reading the provision otherwise would produce an uncommercial and unjust outcome inconsistent with the legislative scheme. Both parties agreed that if the power existed, it should be exercised in the defendant's favour, given her serious ill health and her continued compliance with her bail conditions.

Orders Made

  • A limiting term of 2 years and 6 months' imprisonment was nominated, commencing 5 July 2018 and concluding 4 January 2021
  • The defendant was referred to the Mental Health Review Tribunal under s 24(1)(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW)
  • Under s 24(1)(b), the defendant's release from custody on bail was ordered to continue pending orders under s 27 of the Act, on the following conditions:
  • The defendant is to reside at a specified address in Dapto
  • Any change of address must be notified in writing to the Registrar of the Supreme Court and the Registrar of the Mental Health Review Tribunal within 48 hours
  • The defendant is to comply with all directions of the Mental Health Review Tribunal, including participation in any required psychiatric or psychological assessment
  • 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
  • The Registrar was directed to provide copies of this decision and R v Wilson (No 4) to the Chairperson of the Mental Health Review Tribunal

Key Takeaways

  • A qualified finding of guilt under s 22(3)(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW) is not a conviction, but still requires the sentencing court to determine whether imprisonment would have been imposed and, if so, to nominate a limiting term under s 23.
  • The purpose of a limiting term is protective rather than punitive: it caps the period of potential detention to what could have applied had the person been convicted at a proper trial.
  • Manslaughter carries no recognised sentencing tariff, and where an offender's serious mental illness substantially affected their capacity and culpability, the limiting term may be significantly shorter than would otherwise be appropriate, while still reflecting the gravity of a death caused.
  • Section 24(1)(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW) confers power on the court to order that a defendant's release from custody on bail conditions continue after the nomination of a limiting term, pending the Mental Health Review Tribunal's determination and subsequent orders under s 27.
  • Consistent with the approach in Bhuiyan v R [2009] NSWCCA 221, serious mental illness must not be permitted to overwhelm proper consideration of the objective circumstances of the offence when nominating a limiting term, even though the Tribunal can address the offender's individual needs and may order release before the term expires.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 22, 23, 24, 27
- Crimes Act 1900 (NSW), s 24 (manslaughter, maximum 25 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Bail Act 2013 (NSW)
- Interpretation Act 1987 (NSW)

Cases
- R v Wilson (No 4) [2017] NSWSC 1730
- R v Mailes (2004) 62 NSWLR 181; [2004] NSWCCA 394
- R v AN [2005] NSWCCA 239
- Bhuiyan v R [2009] NSWCCA 221
- Warren v R [2009] NSWCCA 176
- R v Blacklidge (NSW CCA, 12 December 1995, unrep)
- R v Hill (1981) 3 A Crim R 397
- R v AB [2015] NSWCCA 57
- Bugmy v The Queen (2013) 249 CLR 571
- AN v R (No 2) (2006) 66 NSWLR 523; [2006] NSWCCA 218
- Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
- Al-Kateb v Godwin (2004) 219 CLR 562