Citation: R v CA [2019] NSWDC 863
Court: District Court of New South Wales
Date: 4 October 2019
Judge: Judge W Hunt
Background
The offender, CA, was committed for trial on charges of sexual intercourse with a child under ten years of age. Following a fitness inquiry in August 2018, the court found him unfit to be tried. The Mental Health Review Tribunal subsequently determined he was unlikely to become fit within 12 months, and the Director of Public Prosecutions directed that a special hearing proceed. The special hearing was conducted by judge alone in August 2019.
CA had an intellectual disability and was in receipt of a disability support pension. The victim, ME, was aged seven to eight at the time of the offences. Her parents also had intellectual disabilities. CA had befriended the family at a local bowling alley in late 2016 and became a regular presence in the family home, including occasionally sleeping there.
On two separate occasions in early 2017, CA digitally penetrated the victim's vagina and anus in the backyard of the family home. On 30 August 2019, following the special hearing, the court found CA had committed both offences under section 66A(1) of the Crimes Act 1900. The matter then proceeded to the determination of appropriate limiting terms.
Legal Issues
- Whether, following a special hearing resulting in a finding that the offender committed the offences, limiting terms of imprisonment were required to be set
- What limiting terms were appropriate, having regard to the objective seriousness of the offences, the standard non-parole period, and the offender's intellectual disability
- How the offender's intellectual disability affected the weight to be given to aggravating factors such as vulnerability of the victim and breach of trust
- The extent to which general deterrence, retribution, and denunciation were relevant sentencing considerations given the offender's cognitive impairment
Decision
The court accepted that, had CA been a fit person who pleaded guilty or was found guilty, a period of imprisonment would have been appropriate. The court was therefore required to set limiting terms under the Mental Health (Forensic Provisions) Act.
In assessing objective seriousness, the court noted several aggravating features: the offences occurred in the victim's home; ME was considerably younger than the maximum threshold age of ten; and the age gap between offender and victim was significant. Both offences involved a breach of the trust reposed in CA by the victim's family. However, the court substantially moderated the weight of these aggravating factors because of CA's own intellectual deficits, which reduced his moral culpability. His mental age was assessed at approximately twelve and a half years.
The court found no evidence of planning or grooming. CA had stopped the conduct when asked on both occasions. Because of his intellectual disability, the court held that general deterrence had no role in sentencing, and that retribution and denunciation did not warrant significant emphasis. These principles, drawn from authorities including Muldrock v The Queen and Bugmy v The Queen, were applied to reduce the weight given to what would otherwise have been significant aggravating circumstances.
Applying the principle of totality, the court ordered partial concurrence and modest partial accumulation across the two counts. Count 2 attracted a slightly longer limiting term, reflecting that it was a second episode of offending and that the court assessed digital anal penetration as slightly more serious than the conduct constituting count 1.
Orders Made
- Limiting term of four years and three months imposed on count 1, commencing 24 September 2019 and expiring 23 December 2023
- Limiting term of four years and six months imposed on count 2, commencing 24 March 2020 and expiring 23 September 2024
- Offender referred to the Mental Health Review Tribunal pursuant to section 24(1)(A) of the Mental Health (Forensic Provisions) Act
- Interim detention order made under section 24(1)(B) that the offender remain in custody pending the Tribunal's determination
- Recommendation made that CA be accommodated at the Additional Support Unit, Metropolitan Special Purpose Centre Area 2
- Relevant psychiatric and psychological reports directed to accompany CA and be forwarded to the Mental Health Review Tribunal
Key Takeaways
- Where an offender is found unfit to be tried and a special hearing results in a finding that offences were committed, the court must set limiting terms if a notional fit offender would have received imprisonment.
- An offender's longstanding intellectual disability can substantially reduce moral culpability, even where the offending involves a vulnerable victim and a breach of trust, because those aggravating factors carry diminished weight when the offender lacked an adult mind capable of exploiting them deliberately.
- General deterrence is not a relevant sentencing consideration where the offender's intellectual disability means he cannot be taken to have rationally weighed the consequences of his conduct; retribution and denunciation similarly require reduced emphasis in such cases.
- The District Court applied the principle of totality by ordering partial concurrence between two separate episodes of offending, resulting in an overall sentence less than the simple accumulation of both limiting terms.
- A slightly more serious limiting term was set for the second count on the basis that it constituted a second episode of offending and was assessed as marginally more serious in objective terms than the first.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 66A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 24(1)(A), 24(1)(B)
Cases
- Bugmy v The Queen [2013] 249 CLR 571
- DPP (Commonwealth) v De La Rosa [2010] 79 NSWLR 1
- Muldrock v The Queen [2011] 244 CLR 120
- R v Hemsley [2004] NSWCCA 228
- R v Mooney (unreported, Court of Criminal Appeal Victoria, 21 June 1978)