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District Court 28 February 2025

R v RAG (No. 3)

[2025] NSWDC 36

Sexual offences
CRIMINAL LAW OFFENDER FOUND NOT FIT TO BE TRIED SPECIAL HEARING LIMITING TERM

Citation: R v RAG (No. 3) [2025] NSWDC 36
Court: District Court of New South Wales
Date: 28 February 2025
Judge(s): Abadee DCJ

Background

This decision concerns the sentencing (or, more precisely, the setting of a "limiting term") for an offender referred to by the pseudonym RAG, who had previously been found not fit to be tried for a series of sexual offences. Because of his unfitness, a "special hearing" was conducted rather than an ordinary criminal trial. In that special hearing, decided in R v RAG (No. 2) [2024] NSWDC 411, Abadee DCJ found, on the limited evidence available, that the offender was guilty of eleven charges.

The offences involved two victims — both close family members of the offender. The first victim, referred to as CG1, was the offender's natural daughter. The offending against her comprised aggravated sexual intercourse with a child (four counts under s 66C(2) of the Crimes Act 1900) and aggravated indecent assault (one count under s 61M(1)), all occurring in 1997 when CG1 was aged between 11 and 13. The second victim, referred to as CG2, was the offender's granddaughter. The offending against her comprised six counts of aggravated indecent assault (under s 61M(2)), occurring between 2015 and 2016 — nearly twenty years after the offending against CG1.

The offending against CG1 involved repeated acts of sexual intercourse and indecent touching committed while she was living in the offender's care following her parents' separation. The offending against CG2 involved persistent indecent touching during visits to the offender's home. Both courses of conduct involved a gross abuse of familial trust and authority, with the offender exploiting the vulnerability of child victims within his own family.

  • Whether a sentence of imprisonment would have been imposed had the special hearing been an ordinary trial and the offender fit to be tried — the threshold question under s 63(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("MHCIFP Act").

  • What limiting term should be set as the Court's "best estimate" of the sentence that would have been imposed had the offender been convicted at a regular trial, applying standard sentencing principles (including totality).

  • What discount, if any, should be applied under s 63(5) of the MHCIFP Act to account for the offender's mental health or cognitive impairment preventing him from demonstrating mitigating factors or entering a guilty plea.

  • How the principles governing limiting terms differ from ordinary sentencing, particularly the inapplicability of standard non-parole periods and the non-punitive purpose of the limiting term.

  • What orders for detention should be made pending review by the Mental Health Review Tribunal.

Decision

Abadee DCJ concluded that a sentence of imprisonment would clearly have been imposed had this been an ordinary trial resulting in conviction, given the serious nature of the offending. The offences involved repeated sexual abuse of two child victims — the offender's own daughter and granddaughter — committed in a domestic setting where the offender held a position of trust and authority. The Court identified significant aggravating factors including the young age of the victims, the breach of trust, the offender's authority over the victims, the fact that the offending occurred in the victims' or offender's home, and the substantial impact on the victims as evidenced in victim impact material.

In determining the appropriate limiting term, the Court applied general sentencing principles as required by the case law, including the principle of totality to ensure the aggregate term reflected the overall criminality without being crushing. Critically, the Court emphasised that the purpose of a limiting term is not to punish — since the offender has not been convicted — but rather to set a ceiling on the period for which the offender may be detained. The Court also noted that standard non-parole periods do not apply to persons sentenced to detention under the MHCIFP Act (by operation of s 54D(1)(b) of the Crimes (Sentencing Procedure) Act 1999).

The Court applied a discount under s 63(5) of the MHCIFP Act, recognising that the offender's cognitive or mental health impairment may have prevented him from demonstrating mitigating factors or entering a guilty plea. After considering the objective seriousness of the offending across both sets of charges — which spanned nearly two decades and involved two generations of victims within the same family — the Court structured the individual terms and applied partial accumulation to reflect the distinct courses of offending against each victim.

The Court also noted the circumstances of the individual incidents in detail: the offending against CG1 involved digital penetration, skin-to-skin contact with the offender's penis, and acts of penile-vaginal contact, committed while CG1 was in the offender's sole care following her parents' separation. CG1 described being frightened, complying out of fear of getting into trouble, and crying herself to sleep. The offending against CG2 involved persistent indecent touching during family visits. The Court took into account victim impact evidence demonstrating the lasting harm caused by the offending.

Orders Made

  • The Court determined that a sentence of imprisonment would have been imposed and accordingly set a limiting term under s 63(2) of the MHCIFP Act.

  • The offender was referred to the Mental Health Review Tribunal in accordance with s 65(1) of the MHCIFP Act, and the Tribunal was notified of the orders.

  • Pending review by the Tribunal, the offender was ordered to be detained in accordance with s 65(2) of the MHCIFP Act.

  • (Note: The full text of the judgment was truncated in the material provided, and the specific quantum of the limiting term imposed is not available from the excerpt. Practitioners should consult the full published judgment for the precise terms.)

Key Takeaways

  • The District Court reiterated the well-established principle (from R v Mailes and subsequent authorities) that a limiting term is not a sentence in the ordinary sense, and that its purpose is to cap the period of possible detention rather than to punish a person who has not been convicted.

  • Although the purpose of a limiting term differs from ordinary sentencing, courts must apply the general sentencing framework under the Crimes (Sentencing Procedure) Act 1999, including considerations of objective seriousness, aggravating factors, and totality, to arrive at a "best estimate" of the sentence that would have been imposed at a regular trial.

  • Under section 63(5), a court must account for the offender's inability, due to mental health or cognitive impairment, to demonstrate mitigating factors or enter a guilty plea, which may result in a discount analogous to, but not identical with, the utilitarian discount for a guilty plea.

  • Standard non-parole periods do not apply to persons being sentenced to detention under the MHCIFP Act, by operation of s 54D(1)(b) of the Crimes (Sentencing Procedure) Act 1999, as the District Court confirmed in setting the limiting term.

  • The nearly twenty-year gap between the two courses of offending, involving two generations of victims within the same family, was treated as reflecting on the overall seriousness and pattern of the offender's conduct, and was considered relevant to both individual and aggregate assessments.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 66C
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 63, 65
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 25AA, 54, 54D

Key Cases:
- R v RAG (No. 2) [2024] NSWDC 411
- R v Pethybridge (No. 3) [2022] NSWDC 520
- RS v R [2013] NSWCCA 227
- R v AN [2005] NSWCCA 239
- R v Cattell [2019] NSWCCA 297
- R v Gavel (2014)