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4
Supreme Court 1 August 2003

R v Mailes

[2003] NSWSC 707

Also reported as 142 A Crim R 353
Homicide
CRIMINAL LAW SPECIAL HEARING MURDER LIMITING TERM.

Citation: R v Mailes [2003] NSWSC 707 revised; reported at 142 A Crim R 353
Court: Supreme Court of New South Wales, Common Law Division
Date: 1 August 2003
Judge(s): Wood CJ at CL

Background

The defendant was found by a jury at a special hearing on 22 April 2003 to have committed the murder of a 19-year-old woman in Albury in the early hours of 23 March 1996. The victim was attacked after leaving a hotel in the early hours of the morning; her body was found in a nearby car park. Evidence connecting the defendant to the crime included his observed movements that night, the discovery of a portion of the victim's bank card near a route he was known to have taken, and the appearance of blood on his clothing when he returned to his accommodation.

The procedural history of the matter was lengthy. The defendant had been convicted of murder in an earlier 1999 trial before Newman J, but the Court of Criminal Appeal set that verdict aside in October 2001 and directed a new trial, on the basis that a fitness hearing ought to have been conducted given the defendant's behaviour during the original proceedings. A fitness hearing was duly held in April 2002, resulting in a finding of unfitness, which led the Mental Health Review Tribunal to convene the special hearing that resulted in the jury's finding that he had committed the offence.

A special hearing under the Mental Health (Criminal Procedure) Act 1990 is not a conventional criminal trial. Rather than resulting in a conviction or acquittal, it produces a finding as to whether the defendant committed the offence. Where such a finding is made, the court must then nominate a "limiting term," being its best estimate of the sentence that would have been imposed had the matter proceeded as an ordinary trial before a fit accused.

  • What limiting term should be nominated under section 23 of the Mental Health (Criminal Procedure) Act 1990 following the jury's finding that the defendant committed murder?
  • What sentence would have been appropriate had the special hearing been a conventional trial of a fit accused convicted of murder?
  • What weight should be given to the defendant's intellectual disabilities, personality disorder, and background in setting that notional sentence?
  • How should the limiting term be backdated to account for time already spent in custody?

Decision

Wood CJ at CL conducted a detailed sentencing exercise, treating the matter as though the defendant had been convicted of murder after an ordinary trial. His Honour reviewed the objective gravity of the offence, which was described as a serious unprovoked attack on a young woman, involving the theft of her personal property. The court found the offence fell within the upper range of seriousness for murder.

His Honour then considered the defendant's personal circumstances at length. The defendant suffered from significant intellectual disabilities, a personality disorder, and had experienced a deprived and difficult upbringing. The court accepted that these factors had some mitigating weight, particularly the absence of any prospect of genuine rehabilitation and the hardship that a lengthy custodial term would place on a person with intellectual limitations. However, the court found these matters did not displace the need for the sentence to reflect the seriousness of the offence and the purposes of sentencing, including community protection and deterrence.

After reviewing comparable cases and the relevant sentencing principles, Wood CJ at CL concluded that a total term of 25 years would have been appropriate, with a minimum term of 18 years. His Honour noted that the defendant had been continuously in custody since 28 March 1996, meaning a significant portion of the limiting term had already been served by the time of this judgment. The limiting term was set to commence from that date.

On the question of the defendant's future management, the court observed that his difficulties arose from developmental and intellectual disabilities and a personality disorder rather than from a frank mental illness. His Honour noted that placement in a correctional environment, with appropriate medication and structured programmes, appeared suitable pending any future determination by the Mental Health Review Tribunal.

Orders Made

  • The court determined that, had the special hearing been a normal trial of a fit accused, a sentence of imprisonment would have been imposed for murder.
  • A limiting term of 25 years was nominated, commencing 28 March 1996.
  • The defendant was referred to the Mental Health Review Tribunal pursuant to section 24 of the Mental Health (Criminal Procedure) Act.
  • Pending the Tribunal's determination and further order of the Court, the defendant was ordered to be detained in a Correctional Centre.

Key Takeaways

  • Under section 23 of the Mental Health (Criminal Procedure) Act 1990, where a special hearing results in a finding that the defendant committed the offence, the sentencing court must nominate a limiting term reflecting the sentence that would have been imposed in an ordinary trial of a fit accused.
  • Intellectual disability and personality disorder may carry mitigating weight in the limiting term assessment, but the Supreme Court found they did not, in this case, displace the primacy of the offence's objective seriousness in a murder committed against a stranger.
  • The limiting term is to be backdated to the date the defendant was first taken into custody, ensuring that time already served counts toward the nominated term.
  • A finding of unfitness to be tried does not preclude a jury from finding, at a special hearing, that the defendant committed the offence; the limiting term mechanism then operates as the functional equivalent of sentencing for the purpose of ongoing detention and review.
  • Following nomination of a limiting term, the matter does not end with the court: referral to the Mental Health Review Tribunal is mandatory under section 24 of the Act, and that Tribunal then has a role in determining the defendant's ongoing management and placement.

Legislation and Cases Referenced

Legislation:
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 19, 23(1), 24
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(c), 21A, 61(1)
- Sentencing Act 1989 (NSW)

Cases:
- Eastman v DPP (ACT) [2003] HCA 28
- R H McL v The Queen (2000) 203 CLR 452
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Weininger v The Queen [2003] HCA 14
- R v Bedford (1986) 5 NSWLR 711
- R v Gilmore (1979) 1 A Crim R 416
- R v Merritt [2000] NSWCCA 365
- R v Mitchell (1999) 108 A Crim R 85
- R v Mitchell [2002] NSWCCA 380
- R v MM [2002] NSWCCA 431
- R v Scognamiglio (1991) 56 A Crim R 81
- R v Twala (NSWCCA, 4 November 1994)