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District Court 22 February 2024

R v JH (no 2)

[2024] NSWDC 56

Sexual offences
CRIMINAL LAW SENTENCE INDECENT ASSAULT SPECIAL HEARING

Citation: R v JH (No 2) [2024] NSWDC 56
Court: District Court of New South Wales
Date: 22 February 2024
Judge: Newlinds SC DCJ

Background

Following a special hearing in August 2023, the court found that the defendant, an 87-year-old man suffering from advanced Alzheimer's disease, had committed four counts of indecent assault on his granddaughter when she was between seven and eight years old. The findings were recorded as verdicts under section 59(1)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a provision applicable where a defendant is unfit to stand trial. The defendant was residing in a secured dementia unit at an aged care facility in Collaroy at the time of sentencing.

The penalty phase required the court to apply a specialised statutory framework rather than ordinary sentencing. Because the defendant had been found unfit to be tried, the process is properly described as the imposition of a "penalty," not a sentence in the conventional sense.

  • Whether, under the ordinary sentencing principles in section 3A of the Crimes (Sentencing Procedure) Act 1999, a term of imprisonment would have been imposed had this been a standard criminal trial with a fit defendant
  • What "limiting term" (the court's best estimate of the sentence that would have been imposed) was appropriate across the four counts
  • Whether section 65(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 gave the court power to order the defendant's detention at a private nursing home facility, as opposed to a mental health facility, correctional centre, or detention centre

Decision

Applying the sentencing framework

Newlinds SC DCJ acknowledged that most of the purposes of sentencing under section 3A were rendered effectively redundant by the defendant's condition. Specific deterrence, rehabilitation, contrition, and accountability were all meaningless given the severity of the Alzheimer's. The court found, however, that denunciation remained significant: the community required a clear statement that sexual offending against children is entirely unacceptable, regardless of the offender's circumstances. The court also noted that the defendant did understand, at the time of offending, that his conduct was wrong.

Cognitive impairment and moral culpability

Drawing on Muldrock v R (2011) 244 CLR 120 and DPP (Cth) v De La Rosa [2010] 79 NSWLR 1, the court accepted that the defendant was likely suffering some degree of cognitive impairment at the time of the offences, which reduced his moral culpability to some extent. The court could not determine the precise degree of impairment or whether it directly caused the offending. Under section 63(5) of the Act, the court also applied a discount to account for the defendant's inability to demonstrate mitigating factors or enter a guilty plea.

The limiting term

The court imposed an effective limiting term of three years, structured across the four counts with partial cumulation to reflect the separate criminality of each offence. Counts 1 and 2 were treated as one group of offending, and counts 3 and 5 as another. The limiting terms run from January 2024 to July 2027.

Power to order detention at a nursing home

The most significant statutory question was whether section 65(2), which empowers the court to direct detention at a mental health facility, correctional centre, detention centre, or "other place," extended to a private aged care facility. The court held that it did. The phrase "other place" was construed broadly enough to encompass a secured dementia unit at a nursing home. Newlinds SC DCJ found that the Elizabeth Jenkins Aged Care Home was, in all the circumstances, the appropriate and most suitable placement for the defendant, both for his own welfare and for the protection of others. The court ordered that the defendant not leave the secured unit without the express permission of the Mental Health Review Tribunal, and referred the matter to that Tribunal under section 65(1) of the Act.

Orders Made

  • Limiting term of 18 months on Count 1, commencing 22 January 2024 and expiring 21 July 2025
  • Limiting term of 18 months on Count 2, commencing 22 August 2024 and expiring 21 February 2026
  • Limiting term of 9 months on Count 3, commencing 22 October 2025 and expiring 21 July 2026
  • Limiting term of 9 months on Count 5, commencing 22 April 2026 and expiring 21 July 2027
  • The defendant to be detained at the Elizabeth Jenkins Aged Care Home secured unit at Collaroy until the matter is reviewed by the Mental Health Review Tribunal, with no departure from the unit permitted without the Tribunal's express permission
  • Matter referred to the Mental Health Review Tribunal under section 65(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020
  • Parties directed to bring in orders giving effect to the reasons

Key Takeaways

  • The District Court held that the phrase "other place" in section 65(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 is broad enough to authorise detention at a private nursing home or aged care facility, extending the court's placement options beyond mental health facilities, correctional centres, and detention centres.
  • Where a defendant's cognitive impairment renders most conventional sentencing purposes (deterrence, rehabilitation, contrition) inapplicable, denunciation and recognition of harm to the victim can remain the primary operative justifications for imposing a limiting term.
  • Under section 63(5) of the Act, a court must account for an unfit defendant's inability to demonstrate mitigating factors or enter a guilty plea, and may apply a corresponding discount when setting the limiting term.
  • A link between an offender's cognitive impairment and the commission of offences need not be definitively established for impairment to weigh on moral culpability; a finding on the balance of probabilities that some impairment existed at the time of offending is sufficient to engage that consideration.
  • Aggregate sentencing under section 53A of the Crimes (Sentencing Procedure) Act 1999 is not available when setting a limiting term, as section 54(c) of that Act excludes Part 4 provisions from applying; totality must instead be addressed through careful structuring of individual limiting terms with appropriate cumulation.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 59, 63, 65
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 53A, 54(c)
- Crimes Act 1900 (NSW)

Cases
- R v JH [2023] NSWDC 391 (the primary special hearing decision in this matter)
- Muldrock v R (2011) 244 CLR 120
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Moyler v R [2021] NSWCCA 73
- R v AB [2015] NSWCCA 57
- R v Mailes (2004) 62 NSWLR 181
- R v Wilson [2019] NSWSC 529