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Court of Criminal Appeal 20 May 2019

Jomaa v R

[2019] NSWCCA 98

Drugs
CRIME APPEALS APPEAL AGAINST NOMINATED LIMITING TERMS APPLICANT SUFFERED STROKE AFTER ARREST APPEAL ALLOWED REAPPLICATION OF TOTALITY PRINCIPLE

Citation: Jomaa v R [2019] NSWCCA 98
Court: New South Wales Court of Criminal Appeal
Date: 20 May 2019
Judge(s): Payne JA; Harrison J; R A Hulme J (judgment by R A Hulme J, with whom the other judges agreed)

Background

The applicant was charged with six offences involving heroin supply and directing the activities of a criminal group. A special hearing was conducted under Part 2 of the Mental Health (Forensic Provisions) Act 1990 (NSW) after he was found unfit to be tried. That unfitness arose from a stroke the applicant suffered while in custody shortly after his arrest in August 2015, which caused significant and lasting neurological impairment.

Following the special hearing, Judge Buscombe in the District Court returned verdicts on five of the six counts finding that, on the limited evidence available, the applicant had committed those offences. The offences spanned a period between May and August 2015 during which the applicant operated a substantial heroin supply network across Sydney's western suburbs, using his wife and teenage sons as assistants.

Rather than imposing conventional sentences, the District Court nominated "limiting terms" under the Act. A limiting term is the court's best estimate of the imprisonment that would have been appropriate had the special hearing been a normal criminal trial against a fit accused. The applicant appealed those limiting terms to the Court of Criminal Appeal.

  • Whether the primary judge erred in treating the applicant as an appropriate vehicle for general deterrence, given his mental condition
  • Whether the primary judge erred in taking specific deterrence into account when the medical evidence indicated no real likelihood of reoffending
  • Whether the overall structure of the limiting terms, particularly the degree of accumulation between counts, was manifestly excessive and failed to apply the totality principle properly
  • Whether the primary judge gave adequate weight to the hardship the applicant would experience in custody due to his medical conditions

Decision

The Court of Criminal Appeal found no error in the primary judge's approach to general deterrence. Relying on established principles, the court confirmed that a sentencing court's conclusion that an offender is an "inappropriate medium" for general deterrence requires a very high threshold. The applicant's mental condition, while serious, did not reach the point where communicating the message of general deterrence through his sentence would be meaningless or unjust. The court upheld that aspect of the primary judge's reasoning.

However, the court identified a clear error in relation to specific deterrence. The medical evidence established that the applicant's stroke had left him with permanent and serious cognitive and physical impairment, and the Mental Health Review Tribunal had assessed that he presented little to no risk of reoffending. In those circumstances, taking specific deterrence into account as a sentencing purpose was an error: the condition that eliminated the likelihood of reoffending also removed any justification for punishing him to deter him personally from future offending.

On the question of totality and the overall structure of the limiting terms, the court found that the primary judge's accumulation of the terms for Counts 3 and 4 produced a result that was excessive. The criminality of Count 1 (a single transaction shortly before the ongoing supply offences began) was entirely subsumed by the later counts, warranting no separate accumulation. For Counts 3 and 4, the court considered that 12 months' accumulation on each was appropriate, rather than the 12 months and 18 months respectively imposed below. The limiting term for Count 6 (directing the criminal group) was properly subsumed within the others.

Applying the totality principle afresh, the Court of Criminal Appeal reduced the total effective limiting term from five years to four years. The referral of the applicant to the Mental Health Review Tribunal, which had already occurred, was confirmed. The court noted that a forensic patient subject to limiting terms is not necessarily confined for their full duration: the Tribunal conducts regular reviews and may order earlier release, unconditionally or on conditions.

Orders Made

  • Leave to appeal granted and appeal allowed
  • Limiting terms imposed in the District Court on 28 March 2018 quashed
  • The following limiting terms nominated:
  • Count 1: 12 months from 2 February 2016
  • Count 2: 2 years from 2 February 2016
  • Count 3: 2 years from 2 February 2017
  • Count 4: 2 years from 2 February 2018
  • Count 6: 3 years from 2 February 2016
  • Referral of the applicant to the Mental Health Review Tribunal (made by the District Court on 28 March 2018) confirmed

Key Takeaways

  • A sentencing court's finding that an offender is an inappropriate vehicle for general deterrence requires a very high threshold; serious mental illness or disability does not automatically satisfy it.
  • Where medical evidence establishes that an offender's condition makes reoffending genuinely unlikely, specific deterrence ceases to be a legitimate sentencing purpose, and treating it as one constitutes an identifiable error.
  • Under the Mental Health (Forensic Provisions) Act 1990, a "limiting term" represents the court's best estimate of the sentence appropriate for a fit accused; it does not necessarily result in confinement for the full term, because the Mental Health Review Tribunal conducts regular reviews and retains power to order earlier release.
  • The totality principle applies to the nomination of limiting terms: where the criminality of one offence is wholly encompassed by related ongoing offending, accumulation of that term may not be warranted.
  • No error was found in the District Court's conclusion that the applicant's criminal history denied him the benefit of leniency that might otherwise be extended to a first-time offender.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93T(1A)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Criminal Appeal Act 1912 (NSW), s 6A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 23, 24, 44, 46, Part 2

Cases:
- Aslan v R [2014] NSWCCA 114
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Anderson [1981] VR 155
- R v Chong [2012] NSWSC 1309
- R v Engert (1995) 84 A Crim R 67
- R v Letteri (Court of Criminal Appeal (NSW), 18 March 1992, unrep)
- R v Mooney (Court of Appeal (Vic), 21 June 1978, unrep)
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Wright (1997) 93 A Crim R 48