R v Allen (a pseudonym) (No 2) - [2024] NSWDC 300

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
Costello v R [2017] NSWCCA 32
DPP v Snow [2020] VSCA 67
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 Asplund [2014] NSWCCA 237
R v Burrell (2000) 114 A Crim R 207
R v Cattell [2019] NSWCCA 297
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 McDonald [2024] NSWDC 136
R v Miceli (1997) 94 A Crim R 327
R v Smith [2024] NSWCCA 437
R vSmith (1987) 44 SASR 587
R v Sopher (1993) 70 A Crim R 570
R v Windle [2012] NSWCCA 222
State of WA v Rayapen [2023] WASCA 55

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:
L Fernandez (for the offender)
C Todd (for the Crown)
Solicitors:
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Allen (a pseudonym) (No 2)

Details

AGLC: R v Allen (a pseudonym) (No 2) [2024] NSWDC 300
Case: [2024] NSWDC 300
Decision Date: 03 May 2024

CaseChat Overview and Summary

In the case of R v Allen (a pseudonym) (No 2), the defendant was charged with the sexual intercourse with a child under the age of 16 years while in a position of authority. Allen, aged 89, faced a special hearing in the District Court of New South Wales to determine his fitness to be tried, given his significant cognitive impairment and dementia. The court was required to decide whether Allen was fit to be tried and, if so, to impose an appropriate sentence.

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

Full text does not contain this section.

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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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 Costello v R [2017] NSWCCA 32 DPP v Snow [2020] VSCA 67 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 Asplund [2014] NSWCCA 237 R v Burrell (2000) 114 A Crim R 207 R v Cattell [2019] NSWCCA 297 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 McDonald [2024] NSWDC 136 R v Miceli (1997) 94 A Crim R 327 R v Smith [2024] NSWCCA 437 R vSmith (1987) 44 SASR 587 R v Sopher (1993) 70 A Crim R 570 R v Windle [2012] NSWCCA 222 State of WA v Rayapen [2023] WASCA 55
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: L Fernandez (for the offender) C Todd (for the Crown) Solicitors: 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…