AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
District Court 27 October 2021

R v Antin (a pseudonym) (No 2)

[2021] NSWDC 584

Sexual offences
CRIME PRINCIPLES TO BE APPLIED MENTAL HEALTH RELEVANT FACTORS TO BE APPLIED DEFENDANT AGED 90 OFFENCES AGAINST GRANDDAUGHTER OFFENCES AGAINST CHILD NEIGHBOUR

Citation: R v Antin (a pseudonym) (No 2) [2021] NSWDC 584
Court: District Court of New South Wales
Date: 27 October 2021
Judge: Haesler SC DCJ

Background

The defendant, referred to by the pseudonym Mr Antin, is a 90-year-old man with dementia and significant other health problems. He faced charges of serious sexual offences against two child complainants: his granddaughter (Complainant B) and a child neighbour (Complainant C). In March 2021, he was found unfit to be tried by reason of his cognitive impairment.

Because Mr Antin was unfit, the matter proceeded by way of a "special hearing" under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. In that earlier hearing (R v Antin (a pseudonym) [2021] NSWDC 532), the court found on the limited evidence available that Mr Antin had committed four of the five charged offences. The present judgment addressed what consequences should follow from those findings.

The offences involved sexual conduct against Complainant B (his granddaughter) when she was approximately three years old, and against Complainant C (a neighbour child) when she was ten or eleven years old. Both complainants provided victim impact statements describing lasting psychological harm.

  • Whether, had Mr Antin been fit to stand trial and convicted in ordinary proceedings, a sentence of imprisonment would have been imposed.
  • What "limiting term" (the special hearing equivalent of a sentence) should be nominated under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020.
  • Whether any discount was available for an early guilty plea or facilitation of justice, given Mr Antin's inability to meaningfully engage with the proceedings.
  • How the court should weigh Mr Antin's extreme age, severe cognitive decline, physical ill health, and the gravity of the offences when nominating a limiting term.
  • Where Mr Antin should be detained pending review by the Mental Health Review Tribunal.

Decision

The court first confirmed that, had Mr Antin been fit and convicted at an ordinary trial, a custodial sentence would plainly have been imposed. The offences were serious: they involved repeated sexual abuse of a very young grandchild and a separate assault on a child neighbour, carrying maximum penalties of 10 years (counts under s 51M(2) of the Crimes Act 1900) and 25 years (the count under s 66A of the Crimes Act 1900). That determination triggered the obligation to nominate a limiting term under s 63 of the Act.

On the question of discounts, the court declined to apply a plea discount. The psychiatric evidence indicated Mr Antin had denied the allegations by claiming they were part of a conspiracy to deprive him of his property, and there was no basis to conclude he would have pleaded guilty had he been fit. The court acknowledged that defence counsel had conducted cross-examination of the complainants as carefully and expeditiously as possible, and accepted this was some facilitation of the administration of justice, though it did not attach a specific percentage discount to it.

The court addressed Mr Antin's extreme age, dementia, and poor health candidly, noting these factors did not extinguish the need for a limiting term. It observed that a limiting term is not equivalent to a sentence in the ordinary sense: the Mental Health Review Tribunal would subsequently determine where and how Mr Antin is detained, and whether his continued detention is necessary for his own protection or the protection of the community. The court noted that sympathy, while present, is not the legal test. The protection of children from further harm and the gravity of the offending were central considerations.

The court imposed four limiting terms, structured to run partly concurrently and partly cumulatively, with the earliest commencing on 17 June 2020 to account for time already spent in custody. The effective total limiting term was nine years and six months.

Orders Made

  • Count 9: Limiting term of two years, commencing 17 June 2020.
  • Count 8: Limiting term of three years, commencing 17 June 2020.
  • Count 5: Limiting term of four years, commencing 17 December 2022.
  • Count 6: Limiting term of seven years, commencing 17 December 2023.
  • Effective total limiting term: Nine years and six months.
  • Mr Antin to be detained in a Correctional Centre pending review by the Mental Health Review Tribunal (pursuant to s 65(2) of the Act).
  • The District Court Registrar directed to provide the Tribunal with copies of both judgments, all orders, exhibits, and written submissions.

Key Takeaways

  • Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, a court conducting a special hearing must nominate a "limiting term" representing the best estimate of the sentence that would have been imposed had the defendant been fit and convicted at an ordinary trial, including by structuring concurrent and cumulative terms to arrive at an appropriate total.

  • A plea discount is not available as of right after a special hearing. The District Court held that such a discount requires material establishing that the defendant would have, or could have, admitted guilt. Where the available evidence instead showed denial of wrongdoing, no discount was warranted.

  • Extreme age, dementia, and serious physical ill health do not, of themselves, preclude the imposition of a limiting term. The court found that sympathy for a defendant's condition, while humanly understandable, is not the applicable legal test.

  • The scheme under the Act separates the court's role from the Tribunal's. Once a limiting term is imposed, the defendant becomes a "forensic patient" and it falls to the Mental Health Review Tribunal to determine appropriate placement and any future release, applying the statutory criteria in ss 84 and 85 of the Act.

  • Victim impact evidence remained relevant to the limiting term exercise. The court acknowledged the lasting psychological harm described by both complainants, and noted their participation in the proceedings ensured there was no prospect of further offending by Mr Antin against children.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 63, 65(2), 84, 85
- Crimes Act 1900 (NSW), ss 51M(2), 66A
- Crime (Sentencing Procedure) Act 1999 (NSW), ss 21, 22A, 25D

Cases:
- R v Antin (a pseudonym) [2021] NSWDC 532
- R v Antin, Unreported, Wollongong District Court, 31 March 2021
- R v Thompson; R v Houlten [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Engert (1995) 84 A Crim R 67
- R v AJP [2004] NSWCCA 434
- R v KNL [2005] NSWCCA 260
- GSH v R [2009] NSWCCA 214
- R v King [2009] NSWCCA 117
- Anastasiou v R [2010] NSWCCA 110
- Corby v R [2010] NSWCCA 146
- Clarkson v R [2011] VSCA 152
- R v Gavel [2014] NSWCCA 56
- GS v R [2016] NSWCCA 266
- R v Van Ryn [2016] NSWCCA 1