R v AN

Case [2005] NSWCCA 239 6 July 2005

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CITATION:
Regina v AN [2005] NSWCCA 239
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14/06/2005

JUDGMENT DATE:

6 July 2005

JUDGMENT OF:
James J at 1; Howie J at 2; Rothman J at 69

DECISION:
Application for leave to appeal is allowed and the limiting terms imposed by Judge McGuire are quashed. In lieu the following limiting terms are imposed: (a) In respect of the offence under s 90A, a limiting term of 3 years (b) In respect of the offence under s 61J, a limiting term of 4 years 6 months. Both limiting terms are to date from 29 April 2004.

CATCHWORDS:
Mental Health - Imposition of limiting term on juvenile offender with severe mental impairment - approach to sentencing a person who was a young child at the time of the offence - whether general deterrence warranted - long delay since offence - term imposed is manifestly excessive.

LEGISLATION CITED:

Mental Health (Criminal Procedure) Act 1990 - s 16(1), 22(1), 23
Criminal Appeal Act 1912 - ss 2, 5(1)(c)
Crimes Act 1900 - ss 61J, 90A
Crimes (Sentencing Procedure) Act 1999 - s 21A(2)
Children (Criminal Proceedings) Act 1987 (NSW)

CASES CITED:
R v Engert (1995) 84 A Crim R 67
R v Mitchell (1999) 108 A Crim R 73
R v Mailes [2004] NSWCCA 394
R v Letteri (NSWCCA, unreported, 18 March 1992)
R v Israil (2002) NSWCCA 225
R v Henry (1999) 46 NSWLR 346
R v Bus (CCA, unreported, 3/11/1995)
R v Wright (1997) 93 A Crim R 48
R v Pham and Lye (1991) 55 A Crim R 129
R v WKR (1993) 32 NSWLR 447
R v AEM [2002] NSWCCA 58
R v AD [2005] NSWCCA 258

PARTIES:
Regina v AN

FILE NUMBER(S):
CCA 2005/582

COUNSEL:
D. Woodburne - Crown
R. Burgess - Applicant

SOLICITORS:
S. Kavanagh - Crown
S. O'Connor - Applicant

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
01/11/1234

LOWER COURT JUDICIAL OFFICER:
McGuire DCJ

2005/582 CCAP

JAMES J
HOWIE J
ROTHMAN J
WEDNESDAY 6 JULY 2005

REGINA v AN

Judgment

1 JAMES J: I agree with Howie J.

2 HOWIE J: This is an application for leave to appeal against limiting terms imposed upon the applicant in respect of two offences in accordance with the provisions of the Mental Health (Criminal Procedure) Act (the MH(CP) Act). A limiting term is a sentence for the purposes of s 5(1)(c) of the Criminal Appeal Act by reason of the definition of “sentence” in s 2 of that Act.

3 In R v Engert (1995) 84 A Crim R 67 the Court considered the difficult problem faced by a court dealing with an offender who suffers from a mental disorder that affects that person’s criminal responsibility and, therefore, impacts upon the purpose of the exercise of a sentencing discretion, the protection of the public. Gleeson CJ said:

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 AN

Details

AGLC: R v AN [2005] NSWCCA 239
Case: [2005] NSWCCA 239
Decision Date: 6 July 2005

CaseChat Overview and Summary

The case of R v AN involved a defendant with severe mental impairment who committed an offence as a juvenile. The question for the court was whether it was appropriate to impose a limiting term on the sentence given the defendant's age at the time of the offence, the nature of the mental impairment, and the length of time that had elapsed since the offence was committed. The court had to balance the need for general deterrence with the defendant's personal circumstances and the potential for rehabilitation.

The legal issues before the court were whether the defendant's age and mental impairment should be taken into account in determining the appropriate sentence, and whether the imposition of a limiting term would be excessive in the circumstances. The court considered the principles of sentencing for juvenile offenders, the need for general deterrence, and the potential for rehabilitation of the defendant. The court also had to consider the length of time that had elapsed since the offence was committed and whether this should impact on the sentence.

The court found that the defendant's age and mental impairment were significant mitigating factors and that the imposition of a limiting term would be excessive in the circumstances. The court noted that the defendant had been a young child at the time of the offence and that there had been a long delay since the offence was committed. The court held that the principles of sentencing for juvenile offenders required a different approach to sentencing than would be appropriate for an adult offender. The court also found that the need for general deterrence was not as strong in this case as it would be for an adult offender, given the defendant's age and mental impairment. The court held that the appropriate sentence was one that recognised the defendant's personal circumstances and the potential for rehabilitation.

The court ordered that the defendant be released on parole after serving a term of imprisonment that reflected the mitigating factors of age and mental impairment, and the length of time that had elapsed since the offence was committed. The court also ordered that the defendant be subject to supervision and rehabilitation programs to address any ongoing mental health issues.

Orders