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District Court 3 May 2024

R v Allen (a pseudonym) (No 2)

[2024] NSWDC 300

Sexual offences

Citation: R v Allen (a pseudonym) (No 2) [2024] NSWDC 300
Court: District Court of New South Wales
Date: 3 May 2024
Judge: Haesler SC DCJ

Background

The defendant (referred to throughout under a pseudonym) is a 90-year-old man suffering from dementia and significant cognitive impairment. He faced charges relating to historical sexual offences against three children, said to have occurred between 1984 and 1992. In June 2023, he was found unfit to be tried and was not expected to regain fitness within 12 months.

Under the Mental Health (Cognitive Impairment Forensic Provisions) Act 2020 (NSW), a "special hearing" was conducted at Bega District Court in March 2024. That process is a modified form of trial used where a defendant is permanently unfit to stand trial in the ordinary way. Following the special hearing, the defendant was acquitted on six counts relating to two of the children, but the court found, on the limited evidence available, that he had committed one offence: sexual intercourse with a child under 16 while in a position of authority, contrary to s 66C(2) of the Crimes Act 1900 (NSW). The victim was his step-grandson, who was approximately 9 to 11 years old at the time.

This second judgment dealt with the question of what penalty, if any, should follow that finding.

  • Whether a "limiting term" (the equivalent of a custodial sentence in the special hearing framework) should be nominated, which would have resulted in the defendant's detention pending Mental Health Review Tribunal review.
  • Whether, alternatively, a non-custodial order was appropriate given the defendant's age, dementia, and other health conditions.
  • How the standard sentencing principles, including objective seriousness, general deterrence, retribution, victim vindication, and mercy, applied in these highly unusual circumstances.
  • Whether a reduction in penalty was warranted under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for facilitation of the administration of justice.

Decision

The offence itself was serious. The court emphasised that sexual offences against children are treated with absolute seriousness, regardless of the defendant's circumstances. The act involved forced oral intercourse perpetrated against a young child by a trusted family authority figure. The breach of the child's trust, the age difference, the furtive nature of the act, and the ongoing distress caused to the victim all weighed heavily in the objective assessment. The maximum penalty at the relevant time was 10 years imprisonment.

A reduction was warranted for facilitation of justice. Those acting for the defendant agreed to facts, tendered exhibits without objection, and did not require most witnesses to give evidence. The court applied s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and reduced the otherwise appropriate sentence accordingly, consistent with the approach recently confirmed in R v Smith [2024] NSWCCA 437.

Imprisonment was rejected on the facts. The court found that, had the defendant been fit for an ordinary trial and convicted, imprisonment would ordinarily have followed for an offence of this gravity. However, the defendant's extreme age (then 89, now 90), severe dementia, and serious health conditions meant that a custodial sentence would have caused significant hardship. He is physically unable to reoffend. The court found that the utilitarian purposes of general deterrence and community protection carried limited weight in these exceptional circumstances, while retribution, though not irrelevant, did not require the "brutal utility" of imprisonment.

A Community Corrections Order was imposed. The court declined to nominate a limiting term. Rather than exposing the defendant to detention pending Tribunal review, the court imposed a Community Corrections Order for a period of 2 years and 9 months, with a fundamental condition of good behaviour. The court noted the capacity for the community to exercise compassion and mercy in extraordinary circumstances, without diminishing the seriousness of the underlying offending. It also acknowledged that the victim received vindication through being believed by the court, and that the defendant's conduct had been revealed to family and community.

Orders Made

  • A Community Corrections Order imposed for 2 years and 9 months, with a fundamental condition of good behaviour (under s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and s 63(3) of the Mental Health (Cognitive Impairment Forensic Provisions) Act 2020 (NSW)).
  • No limiting term nominated.
  • The Registrar directed to notify the Mental Health Review Tribunal that a limiting term is not to be nominated in respect of the defendant (under s 53(6) of the Mental Health (Cognitive Impairment Forensic Provisions) Act 2020 (NSW)).

Key Takeaways

  • The District Court confirmed that, even in the context of a special hearing under the Mental Health (Cognitive Impairment Forensic Provisions) Act 2020 (NSW), the full range of sentencing considerations applies when determining whether to impose a limiting term or an alternative order.
  • Under the special hearing framework, where a court finds a defendant would not have been sentenced to imprisonment had they been tried in the ordinary way, a non-custodial order may be imposed instead of a limiting term, with the corresponding effect that the defendant is not detained pending Tribunal review.
  • Extreme old age, severe dementia, and the physical impossibility of further offending can, in combination, constitute exceptional circumstances that reduce the weight given to retribution, general deterrence, and community protection in the sentencing calculus.
  • A reduction under s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for facilitation of the administration of justice may apply even in special hearing proceedings, where the defence has cooperated in ways that materially assisted the conduct of the case.
  • Victim vindication remains a relevant sentencing purpose even where imprisonment is not imposed: the court here noted that public exposure of the offending and the court's belief in the victim's account served that purpose in the particular circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 66C(2), s 80AF
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8, 22A
- Mental Health (Cognitive Impairment Forensic Provisions) Act 2020 (NSW), ss 5, 53, 58, 63, 64, 65
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases
- R v Allen (a Pseudonym) [2024] NSWDC 64 (the special hearing judgment)
- R v Smith [2024] NSWCCA 437
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Cobiac v Liddy (1969) 119 CLR 257
- Costello v R [2017] NSWCCA 32
- R v Cattell [2019] NSWCCA 297
- R v Hornhardt [2017] NSWCCA 186
- Magnussen v R [2013] NSWCCA 50
- R v Windle [2012] NSWCCA 222
- R v Asplund [2014] NSWCCA 237
- Engert v R (1995) 84 A Crim R 67
- R v Burrell (2000) 114 A Crim R 207
- DPP v Snow [2020] VSCA 67
- R v McDonald [2024] NSWDC 136
- R v Edwards (1996) 90 A Crim R 510
- R v Sopher (1993) 70 A Crim R 570
- R v Miceli (1997) 94 A Crim R 327
- R v Kane [1974] VR 759
- R v Smith (1987) 44 SASR 587
- R v L (District Court (NSW), 17 June 1996, unreported)