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…