District Court
New South Wales
Medium Neutral Citation: R v Allen (a pseudonym) (No 2) [2024] NSWDC 300 Hearing dates: 3 May 2024 Date of orders: 3 May 2024 Decision date: 03 May 2024 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Verdict: On the limited evidence available the defendant committed the offence charged. A Community Corrections Order for a period of 2 years and 9 months is imposed
Catchwords: CRIME — Child sex offences — Sexual intercourse with a child aged under 16 under authority
MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing — Mental impairment — Defendant aged 89 — Suffers significant cognitive impairment — Dementia — Offender too ill to be present and excused — Defendant unfit to be tried — Principles to be applied
SENTENCING — Mitigating factors — Unable to re-offend
SENTENCING — Penalties — Community Corrections Order — Orders pursuant to Crimes (Sentencing Procedure) Act 1999 and Mental Health (Cognitive Impairment Forensic Provisions) Act 2020
SENTENCING — Relevant factors on sentence — Delay — Deterrence — General deterrence — Objective seriousness — Purposes of sentencing
SENTENCING — Sentencing procedure — Instinctive synthesis
SENTENCING — Subjective considerations on sentence — Age of offender — Significant cognitive impairment — Dementia — Health issues — Gaol would cause significant hardship — Mercy
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Mental Health (Cognitive Impairment Forensic Provisions) Act 2020 (NSW)
Cases Cited: Cobiac v Liddy [1969] HCA 26; (1969) 119 CLR 257
Engert v R (1995) 84 A Crim R 67
Magnussen v R [2013] NSWCCA 50
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
R v Allen (a Pseudonym) [2024] NSWDC 64
R v Burrell (2000) 114 A Crim R 207
R v Edwards (1996) 90 A Crim R 510
R v Hornhardt [2017] NSWCCA 186
R v Kane [1974] VR 759
R v L (District Court (NSW), 17 June 1996 unrep)
R v Miceli (1997) 94 A Crim R 327
R vSmith (1987) 44 SASR 587
R v Sopher (1993) 70 A Crim R 570
Texts Cited: J Gleeson, “The Legal Case for Mercy”, Barry O’Keefe Memorial Lecture 2024, 20 March 2024 G Fox, “When Justice Sheds a Tear: The Place of Mercy in Sentencing” (1999) 25 Monash University Law Review 1
Category: Sentence Parties: Gerald Allen (the accused – a pseudonym)
Public Prosecutions (NSW) (Crown)Representation: Counsel:
Solicitors:
L Fernandez (for the offender)
C Todd (for the Crown)
Kennedy & Cooke Solicitors (for the offender)
Public Prosecutions (NSW) (Crown)
File Number(s): 2021/158389; 2021/113016 Publication restriction: Pursuant to s 15A Children (Criminal Proceedings) Act 1987…
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- AGLC
- R v Allen (a pseudonym) (No 2) [2024] NSWDC 300
- Case
- [2024] NSWDC 300
- Decision Date
CaseChat Overview and Summary
The court addressed several legal issues, including the principles governing fitness to be tried, the relevant factors in sentencing, and the appropriate sentence given the circumstances. In determining fitness, the court considered the substantial evidence of Allen's severe cognitive impairment and the impact of his dementia. The court concluded that Allen was unfit to be tried due to his significant mental impairment and physical health issues. Consequently, the court imposed a Community Corrections Order, taking into account the unlikelihood of re-offending, the delay in the proceedings, and the objective seriousness of the offence.
The court's reasoning emphasised the principles of instinctive synthesis in sentencing, weighing the purposes of sentencing against the mitigating factors and subjective considerations. Allen's advanced age, significant cognitive impairment, and other health issues were deemed to mitigate against imprisonment. The court also considered the need for general deterrence and the hardship that imprisonment would cause Allen. Ultimately, the court imposed a Community Corrections Order for a period of 2 years and 9 months, reflecting the need for punishment while avoiding significant hardship on Allen's health.
The final orders of the court included the imposition of a Community Corrections Order for a period of 2 years and 9 months, pursuant to the Crimes (Sentencing Procedure) Act 1999 and the Mental Health (Cognitive Impairment Forensic Provisions) Act 2020. The court also acknowledged that, on the limited evidence available, the defendant had committed the offence charged.
Orders
Orders of the court
Verdict: On the limited evidence available the defendant committed the offence charged. A Community Corrections Order for a period of 2 years and 9 months is imposed
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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