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District Court 28 October 2022

R v Pethybridge (No.3)

[2022] NSWDC 520

Sexual offences
CRIMINAL LAW SPECIAL HEARING LIMITING TERM

Citation: R v Pethybridge (No.3) [2022] NSWDC 520
Court: District Court of New South Wales
Date: 28 October 2022
Judge: Abadee DCJ

Background

Following a special hearing (a modified trial process for defendants found unfit to plead), the offender had been found guilty on the limited evidence available of eleven counts of indecent assault or sexual assault against multiple child victims. The offences were historical, occurring across different periods in the 1970s and 1980s, and involved victims aged under 16 years. The reasons for the guilty verdicts had been published separately as R v Pethybridge (No.2) [2022] NSWDC 180.

The offender was found unfit to plead by reason of a mental health or cognitive impairment. He was an elderly man residing in an aged care facility at Greenacre at the time of sentencing. He had previously been tried, convicted, and sentenced for certain related offences, but those convictions were quashed on appeal, and the special hearing process followed.

The sentencing proceedings were delayed between May and October 2022 because the parties needed time to gather evidence about an appropriate place of detention pending review by the Mental Health Review Tribunal (MHRT).

  • Whether, under s 63 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act), the court would have imposed a sentence of imprisonment had the special hearing been an ordinary criminal trial with a fit defendant.
  • If imprisonment would have been imposed, what "limiting term" (the court's best estimate of the sentence that would have been imposed) should be nominated.
  • How general sentencing principles, including totality, applied to the nomination of a limiting term across multiple offences.
  • What discount, if any, should be applied to reflect the offender's inability to demonstrate mitigating factors or enter a guilty plea by reason of his impairment, as required by s 63(5) of the MHCIFP Act.
  • Where the offender should be detained pending review by the MHRT, and whether a private aged care facility constituted an "other place" for the purposes of s 65(2) of the MHCIFP Act.

Decision

The court was satisfied that, had the special hearing been an ordinary trial and the offender fit to be tried, a sentence of imprisonment would have been imposed. The offending involved repeated sexual offences against multiple child victims, and its objective seriousness placed it well within the range attracting full-time custody. Accordingly, the court was required under s 63(2) of the MHCIFP Act to nominate a limiting term as its best estimate of the sentence that would have been imposed.

The court applied general sentencing principles as set out in the Crimes (Sentencing Procedure) Act 1999 (NSW), including the principle of totality across the multiple offences. Consistent with the Court of Criminal Appeal's reasoning in cases such as R v AB [2015] NSWCCA 57 and R v AN [2005] NSWCCA 239, the purpose of a limiting term is not to punish but to ensure the offender is not detained longer than the maximum that could have been imposed following conviction at a proper trial. The sentencing object of punishment under s 3A(a) was treated as effectively redundant given the offender's impairment.

The court also considered the requirements of s 63(5), including the obligation to take into account that the offender's impairment may have prevented him from demonstrating mitigating factors or entering a guilty plea. Although the offender had previously been capable of participating in earlier trials and sentencing proceedings (before those convictions were quashed), his current unfitness meant he was deemed to have pleaded not guilty at the special hearing, and the court applied an appropriate discount to the limiting term accordingly.

On the question of placement, the court was satisfied that the Bupa aged care facility at 171 Boronia Road, Greenacre, constituted an "other place" within the meaning of s 65(2) of the MHCIFP Act. Evidence from the facility's manager established that residents could not leave without staff assistance and that the facility was staffed around the clock. No vacancy was available in the Aged Care Rehabilitation Unit at Long Bay Correctional Centre at the time, and the court ordered the offender's detention at the Bupa facility pending MHRT review.

Orders Made

  • A limiting term was nominated under s 63(2) of the MHCIFP Act as the court's best estimate of the sentence of imprisonment that would have been imposed.
  • The offender was referred to the Mental Health Review Tribunal pursuant to s 65(1) of the MHCIFP Act.
  • Pending review by the MHRT, the offender was ordered to be detained at the Bupa facility, 171 Boronia Road, Greenacre, pursuant to s 65(2) of the MHCIFP Act.
  • The court directed that the offender be returned to the Bupa facility forthwith, with a bench warrant to issue in default of compliance.

Key Takeaways

  • Under s 63 of the MHCIFP Act, where a court determines that imprisonment would have been imposed had the defendant been fit to stand trial, it must nominate a "limiting term" representing its best estimate of the sentence that would have been imposed, applying ordinary sentencing principles including totality.
  • The purpose of a limiting term is protective rather than punitive: it sets a ceiling on the period of detention, not a fixed term of punishment, and the offender may be released earlier depending on their condition or fitness to be tried.
  • A sentencing court must account for the fact that an unfit defendant may have been unable to demonstrate mitigating factors or enter a guilty plea, and may apply a discount under s 63(5) to reflect those unavailable sentencing benefits.
  • Where a defendant has previously been fit to participate in earlier proceedings (including prior sentencing hearings that were subsequently set aside on appeal), the court must nonetheless assess discount and mitigating factors by reference to the defendant's current unfitness at the time of the special hearing.
  • A private aged care facility with 24-hour staffing, controlled entry and exit, and no means for a resident to leave unassisted can qualify as an "other place" for the purpose of detention under s 65(2) of the MHCIFP Act.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61C, 61E, 66C, 76
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 25AA, 54D
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 63, 64, 65
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 27 (repealed)

Cases
- R v Pethybridge (No.2) [2022] NSWDC 180
- R v AB [2015] NSWCCA 57
- R v AN [2005] NSWCCA 239
- R v Mailes (2004) 62 NSWLR 181
- Corby v R [2010] NSWCCA 146
- Erazo v R [2016] NSWCCA 139
- Magnuson v R [2013] NSWCCA 50
- MRW v R [2011] NSWCCA 260
- Muldrock v The Queen (2010) 244 CLR 120
- PC v R [2022] NSWCCA 107
- R v Cattell [2019] NSWCCA 297
- R v DCM (Unreported, NSWCCA, 26 October 1993)
- R v Fisher (1989) 40 A Crim R 442
- R v Gavel (2014) 239 A Crim R 469
- R v JTAC [2005] NSWCCA 345
- R v King [2009] NSWCCA 117
- R v KNL [2005] NSWCCA 260
- *R v O