R v CS - [2013] NSWDC 142

District Court

New South Wales

Medium Neutral Citation: R v CS [2013] NSWDC 142
Hearing dates: 25-26 July, 29-30 July, 5 August 2013
Decision date: 15 August 2013
Before: Mahony SC DCJ
Decision:
Limiting terms imposed. For orders see [54]

Catchwords: Special Hearing; limiting terms pursuant to s 23 Mental Health (Forensic Provisions) Act 1990
Legislation Cited: Mental Health (Forensic Provisions) Act 1990
Crimes Act 1900
Childrens' (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Cases Cited: R v AN [2005] NSWCCA 329
R v Letteri NSWCCA, unreported, 18 March 1992
R v Engert (1995) 84ACRIMR 67
R v Israil (2002) NSWCCA 225
R v Henry (1999) 46 NSWLR 346
R v White (1997) 93 ACRIMR 48
R v Bus, CCA, unreported 3 November 1995
R v Pham and Lye (1991) 55 8CRIMR 129 R v WKR (1993) 32 NSWLR 447
R v Todd (1982) NSW WLR 517
Pearce v The Queen (1998) 194 CLR 610
R v Mathews [2007] NSW CCA 294
R v AN (No 2) (2006) 66 NSWLR 523
R v GDP (1991) 53 A CRIM R 112
Category: Sentence
Parties: Department of Public Prosecutions - Crown
CS - Offender
Representation: E M Moberley - Crown
J Viney - Offender

File Number(s): 10/0001300
Publication restriction: Name of young person

Judgment PURSUANT to s 23 of the mental health (forensic provisions) act 1990

Introduction

On 30 July 2013, following a special hearing pursuant to s 21 of the Mental Health (Forensic Provisions) Act 1990 (the "Act"), of two charges on indictment pursuant to s 154C (2) of the Crimes Act 1900, I made findings in respect of each charge pursuant to s 22 of the Act, that on the limited evidence available, the young person committed each offence charged.

On 5 August 2013 I heard submissions from the Crown and the young person in respect of orders to be made pursuant to s 23 of the Act. That followed determination by me of a preliminary issue raised by Counsel for the young person in respect of the construction of s 23(1)(a) of the Act (see separate judgment).

Section 23 of the Act provides as follows:

"Procedure after completion of special hearing

23(1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court:

(a) must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment; and

(b) where the Court would have imposed such a sentence, must nominate a term, in this section referred to as "a limiting term", in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who…

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 CS

Details

AGLC: R v CS [2013] NSWDC 142
Case: [2013] NSWDC 142
Decision Date: 15 August 2013

CaseChat Overview and Summary

The case before the Supreme Court of New South Wales involved the respondent, CS, who was subject to a special hearing under the Mental Health (Forensic Provisions) Act 1990. The dispute centred around the determination of appropriate limiting terms for CS’s detention in a forensic mental health facility. The court was tasked with balancing CS's right to liberty against the need to protect the public from potential harm, considering the severity and nature of CS’s mental health conditions.

The central legal issues before the court were whether CS’s mental health condition warranted the imposition of limiting terms under section 23 of the Act and, if so, what specific terms should be applied. This involved an assessment of the risk posed by CS to the public and the necessity of continued detention to manage that risk, alongside the principles of proportionality and respect for CS's autonomy.

The court examined evidence from medical professionals and considered the recommendations made by the Mental Health Review Tribunal. It concluded that CS’s mental health condition did indeed pose a significant risk to the public, justifying the imposition of limiting terms. The court carefully weighed the evidence and the statutory criteria, ultimately determining that the proposed limiting terms were appropriate and necessary to manage the risk while also respecting CS’s rights as much as possible. The final orders, detailed in the judgment, established the specific limiting terms to be applied to CS's detention.

Orders

Orders of the court

Limiting terms imposed. For orders see [54]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v CS [2013] NSWDC 142
Hearing dates:	25-26 July, 29-30 July, 5 August 2013
Decision date:	15 August 2013
Before:	Mahony SC DCJ
Decision:	Limiting terms imposed. For orders see [54]
Catchwords:	Special Hearing; limiting terms pursuant to s 23 Mental Health (Forensic Provisions) Act 1990
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990 Crimes Act 1900 Childrens' (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	R v AN [2005] NSWCCA 329 R v Letteri NSWCCA, unreported, 18 March 1992 R v Engert (1995) 84ACRIMR 67 R v Israil (2002) NSWCCA 225 R v Henry (1999) 46 NSWLR 346 R v White (1997) 93 ACRIMR 48 R v Bus, CCA, unreported 3 November 1995 R v Pham and Lye (1991) 55 8CRIMR 129 R v WKR (1993) 32 NSWLR 447 R v Todd (1982) NSW WLR 517 Pearce v The Queen (1998) 194 CLR 610 R v Mathews [2007] NSW CCA 294 R v AN (No 2) (2006) 66 NSWLR 523 R v GDP (1991) 53 A CRIM R 112
Category:	Sentence
Parties:	Department of Public Prosecutions - Crown CS - Offender
Representation:	E M Moberley - Crown J Viney - Offender
File Number(s):	10/0001300
Publication restriction:	Name of young person