R v JH (no 2)

[2024] NSWDC 56

District Court

New South Wales

Medium Neutral Citation:

R v JH (no 2) [2024] NSWDC 56

Hearing dates:

1 December 2023
22 February 2024

Date of orders:

22 February 2024

Decision date:

22 February 2024

Jurisdiction:

Criminal

Before:

Newlinds SC DCJ

Decision:

See paragraphs [68] – [71]

Catchwords:

CRIMINAL LAW – Sentence – Indecent assault – Special Hearing – Penalty pursuant to s59(1) Mental Health and Cognitive Impairment Act 2020 NSW – Offender suffering from Alzheimer disease causing dementia – Proper construction of s65(2) “may make orders”, “place of detention” –  Court has power to order detention at nursing home facility.

Legislation Cited:

Crimes Act

Crimes (Sentencing Procedure) Act 1999

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 NSW.

Cases Cited:

DPP (Cth) vDeLaRosa [2010] 79 NSWLR 1

Moylerv R [2021] NSWCCA 73

MuldrockvR [2011] 244 CLR 120

RvAB [2015] NSWCCA 57

R v JH 2023 NSWDC 391

RvMailes [2004] 62 NSWLR 181

RvWilson [2019] NSWSC 529

Category:

Sentence

Parties:

The Crown
JH

Representation:

Counsel:
Mr Triscari – The Crown
Mr Tyler Scott – The Defendant

Solicitors:
The Director of Public Prosecutions – The Crown
Karim Criminal Defence Lawyers – The defendant

File Number(s):

2021/283176

Publication restriction:

There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant.

Judgment

INTRODUCTION

1. This is a tragic case.

2. On 29 December 2023 following a special hearing on 29 August 2023 I found, on the limited evidence available that the defendant had committed the offences he was charged with on counts 1, 2, 3 and 5 of the indictment dated 9 September 2022 being four counts of indecent assault on a person under the age of 16 years. (R v JH 2023 NSWDC 391)

3. The victim is the defendant’s granddaughter. At the time of offending she was between seven and eight years old, and the defendant was about 85 years old. He was found not guilty in relation to count 4, count 5 was in the alternative to count 4.

4. I thus entered verdicts to that effect pursuant to s 59(1)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 NSW.

5. It now falls to me to “sentence” the defendant although this is to misstate the process. The defendant is before me for penalty pursuant to s 63 of the Act.

6. I am required to:

1. First, determine whether the Court would have imposed a sentence of imprisonment for the offence if the special hearing had been an ordinary trial of criminal proceedings and the defendant had been fit to be tried for the offence.

2. Second, if I determine that a sentence of imprisonment would have been imposed in those circumstances to set a “limiting term” being my best estimate of the sentence the Court would have imposed on the defendant in those circumstances (section 63(2)).

3. Third, and this is in the alternative to 2, if I conclude that a term of imprisonment would not have been imposed in ordinary circumstance to impose any other “penalty” which might have been imposed in those circumstances.

4. Finally, if a limiting term is considered to be the appropriate outcome to then determine pursuant to s 65(2) where, pending any review of the offender by the Mental Health Tribunal, that he be “detained”; the statutory choices are a mental health facility, a correctional centre, a detention centre or “other place” (section 65(2)).

SOME FACTS

7. The defendant is now aged 87. He is suffering from dementia as a result of Alzheimer’s disease. There is no prospect of his condition improving. He will soon die, probably of Alzheimer’s disease. His life expectancy is approximately 2.5 years from now. For the last 18 months of his life he will require “high level of care”. He has very little conception of, or ability to comprehend or understand these proceedings. He does understand that it is my role to decide where he should continue to reside and that the reason I am making that decision is because he has been found to have committed some criminal offences. Beyond that I am really not sure how much of what is going on around him he fully understands.

8. In the circumstances any “limiting term” or other penalty that I impose, other than where I determine he be detained will mean very little to him.

9. He is currently residing at the Elizabeth Jenkins Aged Care Home which is part of a wider nursing home facility known as Pacific Lodge Aged Care Centre at Collaroy.

10. Elizabeth Jenkins Aged Care Home is a secure unit designed to deal with dementia patients in what is described as a secure ward.

11. I am satisfied that his continued residence in that facility is the best place for him to be in all the circumstances to protect him and those around him from the consequences of his disability which include, unfortunately it would seem, an inability to control his sexual urges, which urges appear to be entirely inconsistent with his character for what has otherwise been a long and useful life.

12. That of course does not mean that as a matter of statutory construction I have power to make an order to that effect. I will come back to that question.

THE STATUTORY REGIME

13. The starting point of s 63(2) which requires me to consider the matter having regard to general sentencing principles enshrined in the Crimes (Sentencing Procedure) Act 1999 - see for example R v AB [2015] NSWCCA 57, R v Mailes [2004] 62 NSWLR 181 at [32] - both in relation to earlier legislation, although I do not think the changes in the legislative scheme alter the persuasive authority of what is said in those cases. In Mailes Simpson J identified what is an inevitable limitation built into the regime by reference to s 3A pointing out that in that case the “gravity and consequences of the defendant’s conduct could not be brought home to him.” This is the same situation I feel that I am dealing with.

14. The circumstances of this case are such that most of the factors set out in s 3A are rendered redundant.

15. The next step in the statutory regime is that the ordinary sentencing principles set out in s 3A are ameliorated somewhat by s 63(5) of the Act which commands that:

1. I must take into account the situation that, because of the defendant’s mental health impairment or cognitive impairment, or both, he may not be able to demonstrate mitigating factors for sentencing or make a guilty plea for the purposes of obtaining a sentencing discount, and

2. I may apply a discount of a kind that represents part or all of the sentencing discounts that are capable of applying to a sentence because of those factors or a guilty plea, and

3. I must take into account periods of the defendant’s custody or detention before, during and after the special hearing that “related to the offence.”

16. There is significant tension, which needs to balanced, between on the one hand the statutory requirements to apply general sentencing principles and the significant, but seemingly limited variations to those principles set forth in s 63(5).

THE S3A CRITERIA

17. Applying s 3A to the facts of this case I find:

1. There is very little prospect that anything I will do will bring home to the offender the consequences of what he has done.

2. It is not possible for the offender to be contrite or remorseful.

3. Any notion of specific deterrence is redundant.

4. On the balance of probabilities, for reasons that I will come to, I find that the offender was suffering some cognitive impairment when he offended. I cannot conclude how significant it was or if there is any direct nexus between that impairment and the offending. However, I think that fact does make this case an unlikely and unsatisfactory vehicle for a message of general deterrence to be sent to the community. That being said, there remains an important need for a clear message to be sent to the community that anyone, no matter what their circumstances, who understands what they are doing is wrong; and I am satisfied that the defendant did know that what he was doing was wrong, sexually interferes with young people will, if that activity is uncovered, be treated very harshly by the legal system.

5. In the circumstances of this case there is no prosect of the offender being rehabilitated.

6. The offender cannot really be made accountable for his actions.

7. It is however important and significant that the court on behalf of the community denounces the defendant’s offending conduct. The Court has already done that by the findings it made in my earlier decision but it is important that at this phase of the process I again make it clear by my ultimate decision, at least for the benefit of the victim, if not for the community generally, that his conduct is considered entirely unacceptable..

8. Finally, whatever I decide, the offender is going to spend the rest of his life in a dementia ward somewhere and in those circumstances I do not think he poses a danger to anyone over and above what might be considered usual in relation to people with his mental condition.

18. In summary, by reference to the factors in s 3A what I am left with is the requirement to recognise the harm done to the victim and the community, and to send a clear message to the community that conduct of the type the defendant engaged in is entirely unacceptable.

19. At the risk of repetition, it seems to me that in the circumstances of this case the fact that the Court has found the victim’s account to be entirely credible and publicly declared that the defendant behaved in an entirely unacceptable and criminal way towards the victim causing her no doubt significant trauma which will probably persist at some level is really al the court can realistically do to recognise the harm to the victim by the defendant’s conduct.

MENTAL ILLNESS

20. As was explained in Muldrock v R [2011] 244 CLR 120, a link between the offender’s mental illness in the commission of the offence because of a lack of capacity to reason as an ordinary person might as to wrongfulness of the conduct will in most cases substantially lessen the offender’s moral culpability for the offence. The retribution and denunciation aspect of a sentence that is appropriate to a person or ordinary capacity will often be inappropriate in situations of a mentally retarded offender and to the needs of the community - see Muldrock at [54]; see also DPP (Cth) v De La Rosa [2010] 79 NSWLR 1; Moyler v R [2021] NSWCCA 73 at [59].

21. For reasons that I will explain I am satisfied on the balance of probabilities that at the time of the offending the offender’s mental faculties were diminished. I can make no assessment as to the extent of that determination. I cannot infer that there was a direct nexus between that diminished mental capacity and the offending. Nonetheless, I think it is a relevant factor to be taken into account when coming to an ultimate determination as to what here would be an appropriate sentence.

THE PURPOSE OF A LIMITING TERM

22. The cases make it clear that the object of nominating a limiting term is not to punish a person who has not been convicted of any crime but rather to ensure that he or she is not detained in custody any longer than the maximum he or she could have been detained if so convicted after a proper trial - see R v Mailes [2024] 62 NSWLR 181 [32].

OVERVIEW OF MY REASONS AND CONCLUSIONS

23. I am extremely conscious of the need to protect the community from any further conduct in breach of the law by the offender. That being said, I am satisfied that his medical condition is now such that I do not think he poses any real danger to anyone so long as he is in a supervised environment, which he is. His medical/mental condition will only deteriorate from now on to a point where shortly he will be no danger to anyone or at least of no greater danger than any other demented elderly person in a nursing home.

24. I have concluded:

1. In light of the objective seriousness of the offending, notwithstanding all the matters I have identified, that the only appropriate sentence that could have been imposed if there had been an ordinary trial of criminal proceedings would be a term of imprisonment, in other words the s 5 threshold has been satisfied.

2. I have decided that an effective limiting term of three years is appropriate and I propose to impose a limiting term to that effect.

3. I have determined pursuant to s 63(5) that the period since his arrest when the offender has variously been in custody, in various medical facilities or at his son’s home effectively under home detention under the supervision of his son should be taken into account in part when assessing the starting date of the limiting term.

4. I am satisfied pursuant to s 65(2) that in all the circumstances the offender is being “detained”, as that concept is to be understood in the Act, in the Elizabeth Jenkins Aged Nursing Home at Collaroy or, if that is not right I have the power to so order and I propose to make an order that he continue to be detained there pending a review by the Mental Health Review Tribunal at that facility.

5. I propose to refer the orders that I will make and these reasons and if necessary the file, including the exhibits, to the Mental Health Review Tribunal.

REASONS

25. My reasons are as follows:

OFFENCES AND PENALTIES

26. The four counts are for breach of s 61M(2) of the Crimes Act. Each count carries a maximum penalty of ten years’ imprisonment.

OBJECTIVE SERIOUSNESS

27. These reasons should be read and understood in conjunction with my reasons delivered on 29 September 2023, R v JJ [2023] NSWDC 391. In particular para [25] to [29], [33] to [45], and [85] of those reasons. I do not propose to reiterate what I found there. There is no point, the offender will not understand them and all other relevant people can read them if they choose to. In short over a reasonably short period of time whilst his granddaughter (the victim) was in the offender’s care she was subject to a series of indecent assaults which amounted to acts of indecency which occurred at a time when she (the victim) was under the age of 16 years.

28. On any view of it the offending is objectively serious, even taking into account, as I do, was the fact which I infer that the defendant was suffering some form of mental impairment at the time being the onset of dementia. That being said, it is quite clear from my findings that the offender was conscious at the time of offending that what he was doing was wrong. That is why he asked the victim not to tell anyone. He knew that if he was found out he would get in trouble with the police and the offending does happen in two separate and distinct periods separate from each other in time and so cannot be seen as a one‑off aberration.

29. I have no idea what motivated the conduct, whether it was planned or opportunistic or the like. The best I can do in the circumstances is to take into account the defendant’s deteriorating mental state at the time and indicate that the simple fact that a grandfather who has his young granddaughter in his care who conducts sexual acts of indecency on her must inevitably fall at least somewhere towards the mid range of objective seriousness for these types of offences.

MITIGATING FACTORS – SUBJECTIVE CASE

30. It is not possible for the offender to demonstrate any contrition or remorse. He of course did not, because he could not, plead guilty to the charges I think in the circumstances I am entitled to, and in light of his otherwise unblemished character throughout his life, assume that if he had the capacity to do so he would have pleaded guilty to the charges and therefore I have built into my consideration the mandatory 25% discount to be applied in those circumstances.

31. Otherwise the offender had led an exemplary blame free life. He is of good character and the conduct appears to be entirely inconsistent with the way he has lived his life up to that point in time.

32. He worked in office roles, owned and operated his own business, and later worked for Qantas until retiring at 66 years of age. He married in his late‑20s and remained married until his wife died in 2023. As a young man he played rugby league and rugby union and participated in the community in various positive ways. He has no criminal convictions.

33. In other words, until he was well into his 80s, he lived an exemplary life, of full employment, participated constructively in the community and successfully raised a family.

34. His conduct as proved to me was, entirely out of character. Notwithstanding what he has done I do hope that one day his family and in particular the victim will come to appreciate that what has happened here is a good man who led a good life has done something very wrong towards the end of his life, probably in some way as a result of his deteriorating mental state.

THE DEFENDANT’S MENTAL STATE NOW AND AT THE TIME OF OFFENDING

35. The defendant now has dementia caused by Alzheimer’s disease. The medical evidence is that it is likely that he suffered from this condition since about 2020.

36. His son recorded in 2023 he felt that his father’s cognitive decline had been noticeable with functional impairments for about five to seven years, taking the start of symptoms back to around 2017/2018.

37. A geriatrician, Dr Holmberg, thinks it likely that the defendant has been living with dementia since at least 2021.

38. The offending conduct occurred between June 2018 and December 2019.

39. The Crown contends that it is not possible for me to conclude, as it would be no more than speculation, that the explanation for the offending was as a direct result of some of his mental health decline. I accept that submission. However, I do infer, from the medical opinions before me, the history as recorded by the defendant’s son and the defendant’s prior record of behaviour entirely inconsistent with the conduct that the conduct did occur at a time when there was mental decline going on, and I will take that into account when I come to determining what I think is a just limiting term in all the circumstances.

40. Whilst dealing with the defendant’s current medical condition it is obvious that any prison term to which he would be subjected between now and when he becomes totally unable to appreciate what is going on around him would be significantly more onerous to a person in his mental state to people without such a condition.

41. Finally, and I appreciate that sometimes these things do point in different directions and that there are cases where a person’s mental state can be such that their moral culpability is significantly reduced but because of that same mental health issue they pose a significant danger to the community. In my judgment this is not that case.

42. Taking all those matters into account and acknowledging that this is a difficult exercise, I have determined that an appropriate term of imprisonment if ordinary sentencing principles were being applied would be a period of imprisonment of three years commencing from 22 January 2024 and expiring on 21 January 2027.

TIME SERVED

43. The reason I have selected that starting point is that I have taken into account the entire period between the date of the offender’s arrest and today when he has been under various forms of “detention” however, for most of that period the offender was at his son’s home effectively under the control of his son and while strictly that could be seen as a type of detention I do not think very much, if any, weight should be given it. The same can be said of his recent period in a nursing home.

44. I have allowed one month of the period to date to take into account all of those periods.

PLACE OF DETENTION – A QUESTION OF STATUTORY CONSTRUCTION

45. As I have said, s 65(2) provides that once a limiting term has been nominated the Court “may” order that the defendant is “detained” in a mental health facility, correctional centre, detention centre or “other place” pending the defendant’s review by the tribunal.

46. It has been proposed by the offender’s counsel that I should make an order that the defendant be detained pursuant to s 65(2) at his current residence being the Elizabeth Jenkins Aged Care Home at Collaroy.

45. The Crown, whilst not resisting the proposition that at a pragmatic level the Elizabeth Jenkins Aged Care Home would appear to be the only viable option available has identified what are two important questions of statutory construction posed for determination.

46. The first is, whether the defendant can properly be described as being “detained” in the aged care home.

47. In R v Wilson [2019] NSWSC 529 Schmidt J under previous legislation, (although I do not think the legislation has changed in any relevant way for the purpose of this matter), concluded at [35] to [52] that the concept of “detention” under that earlier legislation required proof of a place where “a restraint is imposed on the person’s liberty” being placed “from which he or she will not be free to leave.”

48. In a practical sense I am satisfied that the aged care home is such a place.

49. However, the Crown has submitted that notwithstanding the practicalities which are that regardless of their legal entitlement to do so the nurses and other people at the aged care home simply would not let the defendant leave if he as his family demanded he do so and have given undertakings to me to the effect that if the defendant or his family insisted on him leaving that they would not do so without first notifying the Mental Health Tribunal. The Crown’s submission is that the legal fact remains that they do not have any legal right to stop him leaving if he or his family demand it and therefore the arrangement does not fit the definition of “detained”.

50. I think that the first part of the argument is correct. That is the staff would not be legally entitled to stop the defendant leaving. However, I do not accept that the requirement of detention at some “other place” posed by s 65(2) ought be read that strictly.

51. To give the phrase “other place” a sensible meaning one has to differentiate it from a mental health facility, correctional centre or detention centre. In each of a correctional centre and detention centre if there is an appropriate order from a Court or a statutory authority, then a person is not free to leave just because they want to. The same can be said of a mental health facility, but only if the person is scheduled.

52. In my opinion the Act does contemplate that a person could be detained in a mental health facility notwithstanding that they are not scheduled pursuant to the mental health legislation.

53. It is hard to conceive of another place outside correctional centres, detention centres and mental health facilities where people can be lawfully detained. Perhaps in police stations or under the control of police after lawful arrest, however, there is no suggestion that that is what Parliament intended here.

54. Accordingly, I think the better construction of the legislation is, if in a practical sense a person will not be able to leave the place then for the purpose of s 65(2) that person can be considered “detained” at that place for the purpose of the legislation.

55. However I think this question falls away because there is a second statutory question, and that is whether s 65(2) gives this Court power to order that the defendant be detained at some “other place”.

56. In my judgment the clear words of the section provide that power. The purpose of the legislation would be advanced by applying those clear words and in the context of the part of the Act where s 65(2) is found it is clear to me that what the legislation intends is that there be a large degree of flexibility available to a Court to determine where in all the circumstances pertaining to a particular defendant having regard to that person’s particular health conditions whether they should be detained somewhere other than a mental health facility, correctional centre or detention centre.

57. If the Court is able to identify such a place, then it has the power to make a valid order requiring the person to be detained at that place. That order provides the legal basis for those in control of the situation to detain that person.

RESOLUTION AS TO PLACE OF DETENTION

60. In this case I have heard evidence from Michelle Ossington and James Murray. Ms Ossington is the Centre Manager of the Pacific Aged Care Centre at Collaroy and Mr Murray is the Manager of the Elizabeth Jenkins Aged Care Home which as I have said is a secure unit designed for dementia patients as part of the Pacific Aged Care Centre at Collaroy.

61. Based on their evidence I am satisfied that in a practical sense the defendant is being detained at the centre of whatever the legal niceties may be. Both Ms Ossington and Mr Murray have told me that they will undertake if necessary that if circumstances arise where it is clear to them that it is likely that the defendant may leave the centre for whatever reason they will immediately notify the Mental Health Tribunal.

62. I do not need that undertaking. If I make an order that he be detained in that centre and make it clear to the centre and all those who work there that order requires them to and gives them the legal entitlement to prevent the defendant from leaving the centre for any purpose without the express permission of the Mental Health Tribunal.

63. I am also satisfied that in all the circumstances it is appropriate, notwithstanding the inherent risks of the defendant being in such a centre where from time to time young people do visit, that every effort will be made to keep such visitors safe.

64. The harsh reality is the only alternatives that I have is either to make an order of the type proposed by the defendant or instead to order that the defendant be detained in a mental health facility or a goal. I do not think it would be appropriate at all for him to spend the rest of his life in such an institution, but more to the point, there is no evidence at all that there is a bed actually available for him so that he could be treated appropriately.

65. Accordingly, and accepting that it is not a perfect solution, I have concluded that it is appropriate that at least for the time being until the Mental Health Tribunal reviews the matter that I make an order that the defendant be detained at the Elizabeth Jenkins Aged Care Home at Collaroy and make it clear that detention means that he is not to leave that facility for any reason without the express permission of the Mental Health Tribunal.

TOTALITY

66. Finally, s 54(c) of the Crimes (Sentencing Procedure) Act 1999 New South Wales excludes provision 1 part 4 of that Act to the application of the sentencing of a defendant to detention under the Act. What this means is that an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act cannot be used in setting the limiting term for the defendant.

67. In this case I have considered the question of totality, accumulation and alike. There must be some cumulation in relation to each offence to reflect the separate criminality of the offending, although I do think that there was really two groups of offending, the first being counts 1 and 2, and the second being counts 3 and 5.

68. As I have said, the ultimate outcome that I intend is that there be an effective limiting term of three years to commence 21 January 2024 and expiring on 21 January 2027.

69. The actual limiting terms in relation to each count are as follows:

Count 1 - A limiting term of 18 months commencing 22 January 2024 and expiring on 21 July 2025.

Count 2 - A limiting term of 18 months commencing 22 August 2024, expiring 21 February 2026.

Count 3 - A limiting term of nine months commencing 22 October 2025, expiring 21 July 2026.

Count 5 - A limiting term of nine months commencing 22 April 2026, expiring on 21 July 2027.

70. I order that until such time as the matter is reviewed by the Mental Health Review Tribunal that the defendant be detained at the Elizabeth Jenkins Aged Care Home secured unit at Collaroy. For the avoidance of doubt that order means that the defendant is not to leave that secured unit without express permission of the Mental Health Review Tribunal.

71. I refer these reasons and orders, and if necessary the file, to the Mental Health Review Tribunal pursuant to s 65(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 NSW.

ORDERS

72. I direct the parties to bring in orders giving effect to these reasons.

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Decision last updated: 07 March 2024