R v Mailes

[2003] NSWSC 707

Reported Decision: 142 A Crim R 353

New South Wales

Supreme Court

CITATION:	R v Mailes [2003] NSWSC 707 revised - 21/10/2003
HEARING DATE(S):	24/3/03 - 22/4/03, 28/7/03
JUDGMENT DATE:	1 August 2003
JURISDICTION:	Common Law Division
JUDGMENT OF:	Wood CJatCL at 1
DECISION:	HIS HONOUR: 1. I determine that, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence of murder, which the defendant has been found to have committed, I would have imposed a sentence of imprisonment; 2. I nominate a limiting term in respect of that offence of 25 years to commence from 28 March 1996, being the date from which the defendant has been held in custody; 3. In accordance with the requirements of section 24 of the Mental Health (Criminal Procedure) Act, I refer the defendant to the Mental Health Review Tribunal; 4. Pending notification of the determination of the Tribunal and also pending further order of the Court, I order that the defendant be detained in a Correctional Centre.
CATCHWORDS:	CRIMINAL LAW - Special Hearing - Murder - Limiting Term.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999: sections 3A(c), 21A, 61(1) Mental Health Criminal Procedure Act 1990: sections 19, 23(1) Sentencing Act 1989
CASES CITED:	Eastman v DPP (ACT) [2003] HCA 28 R H McL v The Queen (2000) 203 CLR 452 R v Bedford (1986) 5 NSWLR 711 R v Gilmore (1979) 1 A Crim R 416 R v Merritt [2000] NSWCCA 365 R v Mitchell (1999) 108 A Crim R 85 R v Mitchell [2002] NSWCCA 380 R v MM [2002] NSWCCA 431 R v Scognamiglio (1991) 56 A Crim R 81 R v Twala NSWCCA 4 November 1994 Veen v The Queen (No 2) (1988) 164 CLR 465 Weininger v The Queen [2003] HCA 14
PARTIES :	Regina Graham Edward Mailes
FILE NUMBER(S):	SC 70084/02
COUNSEL:	P Conlon SC (Crown) D Dalton
SOLICITORS:	S E O'Connor D J Humphreys

- 23 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Wood CJ at CL

Friday 1 August 2003

70084/02 Regina v Graham Edward Mailes

Limiting Term - s. 23(1) Mental Health Criminal Procedure Act

Background

1 HIS HONOUR: At Sydney on 22 April 2003, following a special hearing pursuant to s 19 of the Mental Health (Criminal Procedure) Act 1990, Graham Edward Mailes was found by a jury to have committed the murder of Kim Louise Meredith, at Albury. That event occurred on 23 March 1996. He had earlier been found guilty of the offence when he appeared before his Honour, Justice Newman and a jury in a trial, which had commenced in April 1999. That trial had itself followed a hearing in the Supreme Court at Wagga Wagga, between 15 February and 19 February 1999, in which the jury empanelled for the purpose of determining his fitness for trial, had found him fit.

2 Following an appeal to the Court of Criminal Appeal, that verdict was set aside on 19 October 2001, and a new trial was directed, subject to the outcome of the fitness hearing which the Court held should have occurred, having regard to the events, particularly the bizarre behavior of the defendant, which had unfolded during the earlier trial.

3 That fitness hearing was duly held between 4 April and 11 April 2002, and as a consequence of the verdict of unfitness which was returned by the jury, and the determination of the Mental Health Review Tribunal which followed it, the special hearing was convened.

4 In the meantime, the defendant, who had been arrested on 28 March 1996, remained in custody serving, after the original conviction, the sentence of imprisonment of 25 years, with a minimum term of 18 years, which had been imposed by Newman J in the first trial.

5 It is now my task to specify a limiting term, in accordance with s 23 of the Mental Health (Criminal Procedure) Act 1990, being a term which reflects the best estimate of the sentence that would have been considered appropriate had the special hearing been a normal trial against an accused who was fit to be tried, and who had been convicted of murder.

Facts

6 In 1996, Kim Meredith was a 19 -year-old student at Latrobe University. She had a part-time job as a bar assistant at the Commercial Hotel in Albury.

7 On the evening of 22/23 March she worked a shift at the Hotel, which finished at about midnight. She joined in the drinks, which were traditionally held with other staff members after closing, and then drove her car to the Terminus Hotel, where she met up with other staff members of the Commercial Hotel. She remained there for a while before leaving the Hotel with the apparent intention of meeting other friends at Sodens Hotel. Before leaving home that night she had indicated to her parents that she may spend the night with some of those friends at their flat near Sodens Hotel. The precise movements of Kim Meredith thereafter are not known. Her naked body was, however, found in the car park area behind an office building on the corner of Swift and MacAuley Streets, at 2:58 AM on 23 March, by a security guard.

8 It was the Crown case that she left the Terminus Hotel by herself between about 1:30 AM and 1:45 AM on 23 March, after the band which had been playing there had stopped for the night at about 1:20 AM. It was, additionally, its case that, between leaving the hotel and walking to her intended destination, Sodens Hotel, she was intercepted by Mr Mailes and killed. That case was accepted by the jury.

9 This scenario sits with the defendant’s known movements during the night of 22/23 March. He had begun the night in the company of a friend Damien Bennett. They had called in at various hotels, including the Star, the Terminus and the Globe, and had also visited a video game parlour, before separating at about midnight. They were last seen together by Ms Franklin at the QE2 Square, after which Mr Bennett was driven to his home in Crisp Street by a taxi driver, Mr Pettit.

10 At that point, the defendant made his way back to the Terminus Hotel, where he was seen by various people sitting by himself drinking, near the stage where the band was playing. He was similarly seen to leave the hotel five minutes or so after the band finished for the night.

11 He was seen at the hotel by Mr Wheatley, who was obviously an honest witness, although, I am satisfied, mistaken as to the time that the band stopped, and as to the time that Mr Mailes left the hotel. I accept that he did see him walking down Dean Street in a westerly direction, although as I have indicated, I am satisfied that this sighting occurred 30 minutes or so before the time which Mr Wheatley fixed for it.

12 The defendant was, at the time, staying at Quamby House in Kiewa Street, that being a refuge for persons such as himself who were either homeless or visiting from out-of-town. He was normally resident in Forbes but was visiting Albury, where he had previously lived, for a few days.

13 It is obvious that he did not return to Quamby House, at that time when he was seen by Mr Wheatley, since he was seen by a taxi driver, Mr Wilson, to be endeavouring to access an ATM operated by the Hulme Building Society, in Olive Street. He asked Mr Wilson for his help, and showed him a document which bore the words VATC and the numbers 1501, which coincided with Ms Meredith's date of birth and the PIN number allocated to her by the VATC.

14 The records of the Building Society show that at 2:40 and 2:41 AM attempts were made, via this ATM, to access Ms Meredith's account. Those attempts were unsuccessful because the wrong PIN number was used.

15 The defendant was next seen by Ms McCoy, the officer on duty at Quamby House at about 2:45 to 3:00 AM, when he returned to that refuge. He appeared to have had blood on his clothing.

16 On the following morning, he returned to Forbes, but not before visiting a shop opposite the Star Hotel, where he was spoken to by Ms Block, and calling upon Mr Bennett at his flat in Crisp Street.

17 Some days later, a portion of the Building Society card of Ms Meredith was found in Olive Street opposite the University, in a location which would have been consistent with the direct route from Quamby House to the shop, and to Mr Bennett's flat.

18 Forensic examination of the scene where Ms Meredith's body was found revealed the following:

(a) Her body had been stripped of all clothing save for her socks;

(b) Her blouse had been thrown on the roof of a nearby office;

(c) Her bra, panties, and shoes had been dumped in an area of vegetation behind a lattice screen near her body.

(d) Her jacket and jeans were found in a disused toilet to the rear of adjoining premises;

(e) Her personal papers and handbag were found abandoned or hidden in various locations in the immediately adjoining premises, and in those adjacent to it.

(f) She was found to have had two incised wounds to her neck, one of which was the cause of death, as well as abrasions consistent with her body having been dragged from the location where she had been killed to an area behind the lattice screen, and back again.

(g) Two shoe impressions were found in the blood trail near her body, each of which was consistent with the sole pattern of the shoes worn by the defendant.

19 No footprints of any other person were found in the area adjacent to the murder scene, nor were any fingerprints of the defendant, or of the two other men who were submitted by the defence to have been suspects, found upon any of the property or clothes of Ms Meredith, or upon any physical object in the vicinity of the murder scene.

20 On the Monday following the killing, police spoke to the defendant, and took possession of the clothing which he had been wearing while in Albury. Blood, the DNA of which was consistent with that of Ms Meredith, was found on his trousers, shirt and joggers. He was also found to be in possession of a Guess brand wristwatch which belonged to Kim Meredith. Additionally it was learned that he had purchased a knife while in Albury on 22 March.

21 Some weeks after being charged with the murder, and while he was remanded in custody, the defendant asked to speak to police. In the course of the interview in April 1996 which followed this request, and also in the course of a recorded conversation with his aunt, the defendant suggested that another man, Tony Lamont, had been responsible for the killing. He said that he had not previously mentioned this because Mr Lamont had been a friend and had threatened to flog him if he talked to anyone about the killing. It was his account that he had walked near the body, and that he had tried to access the ATM account at the request of Mr Lamont.

22 There was evidence to show that Mr Lamont had spent the weekend of 22 to 24 March with his girlfriend Gillian Hall. The taxi records and the evidence of a carer strongly suggest that they spent the Friday night at Mr Lamont's residence in Wodonga, and the remainder of the weekend at her apartment in Laverton.

23 Upon that basis, similarly to Mr Bennett, upon the assumption that the latter had returned home at midnight, he could not have been the murderer.

24 The complicating factor in the trial was the circumstance that each of Messrs Bennett, Lamont, and Mailes were intellectually retarded. They had been friends for a number of years, commencing with their earlier shared residence of a unit for persons with behavioural disturbances, or serious intellectual disabilities, at "Woodstock" in Albury. Both Mr Bennett and Mr Lamont had something of a record for promiscuous or unusual sexual behaviour, and for aggression towards women, including staff.

25 Moreover Mr Bennett had a record for the theft of items from the Woodstock residents and for their concealment in locations similar to those where Ms Meredith's clothing and personal belongings were found, as well as a reputation for the collection and storage of knives.

26 The defence case, given Mr Mailes’ obvious limitations, was directed to the possibility that either or both of Mr Bennett and Mr Lamont had been directly responsible for the killing. It did not challenge the proposition that in some way the defendant had been involved, possibly as an accessory after the fact, at least in so far as he attempted to access Ms Meredith's account with the Building Society card, having obtained possession of it after her murder.

27 Each of Mr Bennett and Mr Lamont were called as witnesses, and both denied having been responsible for the murder, or to having been present when it was committed.

28 The possibility of Mr Bennett's involvement in the killing was ventilated after evidence of his presence in the streets of Albury on the night of 22 March emerged, and from the suggested similarity between the theft and concealment of Ms Meredith's clothing and belongings, and the pattern of his behaviour which had been noted while a Woodstock resident.

29 The possibility that was ventilated in relation to Mr Lamont's involvement rested upon his propensity in relation to assaults on females, upon the version of the events which the defendant had given to police on 9 April 1996, and to his aunt on 19 April 1996, and upon the recording of a taxi booking for Sweethearts Restaurant in the surname "Lamont" at 2:10 AM on 23 March 1996.

30 The version of events, which had been given by the defendant to police and to his aunt, was placed before the jury. It involved a somewhat absurd explanation as to how it was that blood, consistent with that of the deceased, came to be on his clothing. In summary, it was suggested that having met Mr Lamont, they went to a clothing bin in the vicinity of the St Vincent de Paul premises in the Ritz arcade, from which the defendant obtained some clothing after climbing into the bin. Having done that, he said that he donned the clothing which had been recovered from the bin and gave his clothing to Mr Lamont. Later he said he recovered his clothing from Mr Lamont, who donned his original clothing and then left the area. By reason of the intellectual disability of the defendant, this was not left to the jury as a matter disclosing a consciousness of guilt. Rather, it was placed before them as his version of the events, which was to be considered in the light of any other evidence suggesting the complicity of Mr Lamont.

31 The jury properly rejected the explanation that was given, no doubt having regard to its absurdity and to the evidence which showed that Mr Lamont had spent the night with his girlfriend, most probably in his flat at Wodonga, although possibly at her unit in Laverton, each of which was located some distance from the murder scene. The Sweethearts taxi booking remains something of a mystery, since it was reported as a "no show". There was however an available explanation, since it coincided with the general timeframe of a phone booking for a pizza placed in the name of “Danielle Lamond”.

32 I have no doubt as to the correctness of the jury verdict, or as to the proposition that the defendant killed Ms Meredith, unassisted by Messrs Bennett or Lamont. The Crown case was, upon my assessment, a strong circumstantial case, although it was essential, in the interests of justice that the defendant be given the opportunity to have that case fully tested. Inevitably and understandably, that process, together with the delay in the resolution of these proceedings, has increased the distress which the offence has occasioned to the family of Ms Meredith. However there are no circumstances, under the system of justice which operates in this country, which would justify due process being compromised. As has been confirmed by the decision in Eastman v DPP (ACT) [2003] HCA 28, every accused is entitled to, and must be given, the benefit of a trial according to law, in which proper consideration is given to the question of fitness. As a result of the earlier appeal, and the fitness hearing and the special hearing which followed it, the defendant, in this case, has now had that opportunity, and has appropriately been found to have committed the murder of Ms Meredith.

33 I do not, by those comments, seek to diminish the terrible tragedy which the Meredith family has suffered. The victim impact statements of Kim Meredith’s mother and father disclose, as graphically as could be imagined, the loss of a lively and much loved daughter, and the sad consequences for them personally. I have had regard to those statements for the limited purpose permitted by law which applies to this sentencing exercise.

Subjective circumstances

34 The defendant was born on 22 February 1973, and was 23 years of age at the time of the offence. He came from a disturbed background, having observed his father being murdered in 1984 when he was aged 11 years. He was reported to have shown an early onset of severe conduct problems, and had the misfortune of requiring a succession of operations for correction of a hare lip and cleft palate. His primary school education was recorded as having been marked by hyperactive and non compliant conduct, although attempts were made by senior Education Department staff, along with FACS officers and Health Department staff, to address these problems, apparently with little success. By May 1985 he was regarded as an uncontrollable child and he was admitted to wardship in August 1987.

35 As a result of attempts to manage his problems through supervision and medication, he has spent a considerable amount of his life in institutions, including Minali, Clairvaux, Knights Hill, a hostel at Lithgow and Woodstock. Since then his residential circumstances have varied significantly, ranging from having lived rough, to taking up residence with his maternal uncle and aunt in Forbes. He does have some support from his sister and some maternal relatives, although clearly their ability to manage his problems is severely limited.

36 Material was placed before the Court from Mr Beilby, a clinical psychologist who reviewed his case in June 1990, at a time when he had been placed in Minda Detention Centre for his own protection and welfare. That report reveals that between April 1989 and April 1990 he had resided at a privately run hostel for developmentally disabled persons at Lithgow. A brief return to his parents was terminated due to his unmanageable and violent conduct, after which he was scheduled to Wagga Wagga Base Hospital and to Kenmore Hospital before again being discharged to his family home, with a diagnosis of Chronic Brain Syndrome and moderate mental retardation. Almost immediately afterward he was rescheduled because of reports of unmanageable and violent conduct on his part.

37 Dr Robert Tym diagnosed him at this time, so Mr Beilby’s report shows, as having an intermittent explosive disorder, moderate intellectual retardation, borderline personality disorder, and query epilepsy.

38 While at Minali and at Ormond in May and June he was reported to have continued to engage in acts of aggression against other residents and staff, and as a consequence he was transferred to Talbot House Minda, where he came under the notice of Mr Beilby. His pattern of rage attacks in response to mild frustration, misconduct and impulsive actions continued, and in Mr Beilby’s assessment “he is mildly retarded and appears to meet criteria for organic personality syndrome marked by explosive outbursts.”

39 Dr Susan Hayes, who undertook a clinical psychological assessment of the defendant on 26 June 1996 and again on 28 April 1998, initially reported that he was functioning in the moderate range of intellectual ability at a level lower than 99.9 per cent of the population, and that in relation to the skills of daily living, he was functioning at a moderate to severe level of intellectual disability. Her findings in 1998 were consistent with these results, although on this occasion she reported a recent history of attempts at self harm and suicidal behavior, indicating to her that he was subject to fairly rapid mood swings.

40 An additional psychological report was tendered, which related to an assessment which had been made by Thelma Buchanan in March 1991 while the defendant was a resident at the Woodstock Centre. She noted his history of outbursts and aggressive behaviour, and indicated that he was functioning in the mild range of intellectual disability, with an uneven pattern of cognitive functioning, and an understanding at a simple concrete level, at best, of the difference between right and wrong.

41 Although no formal report from Dr Christopher Lemmings was tendered, other documents before me show that his more recent psychological assessment of the defendant was to similar effect, in so far as he found him to be a man with moderate intellectual retardation, whose ability to comprehend things happening around him was grossly impaired. He thought him to have "no effective adaptive functioning other than that expected in a young child."

42 Psychiatric opinions have been provided by Drs Westmore and Lucas, each of whom has had a long-term familiarity with the case, having assessed the defendant on several occasions in connection with the earlier proceedings.

43 Although Dr Westmore had not been permitted to interview the defendant since the special hearing, he did have the benefit of interviews on 11 April 1998, 3 February 1999, and 21 December 2001, and also had recourse to the documentary material available concerning his background. Dr Westmore's opinion concerning the defendant's future dangerousness is as follows:

"Mr Mailes is an intellectually disadvantaged man who, despite those problems, learnt a number of living skills which enabled him to lead a reasonably independent life while in the community.

Nevertheless there is a history of him becoming aggressive at times and having trouble coping with stress and confrontation.

He was charged with murder, but eventually was considered unfit to be tried because of the extreme behavioural problems he demonstrated in court. I had previously commented on his probable inability to contain and control his behaviour in such a stressful setting.

A Court has now determined that Mr Mailes was in fact responsible for the death of the victim in this matter. I presume that he is still denying the allegations and therefore any history from him at this time is unlikely to provide any new information as to precisely how or why this homicide occurred.

If he is in fact still denying the allegations then his ability to accept responsibility for his behaviour and to acknowledge regret and remorse and therefore to learn from his behaviour, is obviously compromised. This is a poor prognostic sign.

This fact, combined with his intellectual disabilities, the fact that he probably has limited psychosexual interactive skills and with the aggression he has demonstrated while in the community previously and more particularly in relation to the offence, are also very poor prognostic signs.

The real challenge for this man will be for him being able to acknowledge his behaviour, to accept responsibility for what has occurred and to learn from that. I believe his capacity to do so will be very limited and that fact, combined with his other intellectual and social problems will make him in my opinion an ongoing risk once he returns to the community.

I would note that there are also some potential risks for Mr Mailes while in custody. This is because of the various problems I have noted above and the nature of the offending behaviour. He will need to be cared for in a protected environment for much if not all of his incarceration."

44 Dr Lucas, who similarly has had a long-standing contact with the defendant, having reviewed him on 6 February 1998, 1 January 2002, and 13 June 2003, and who had the benefit of a considerable volume of background material including Correctional Health Service records, provided a further report for assistance in relation to the sentencing proceedings. He noted that the Correctional Health Service records excluded any evidence of schizophrenia or psychiatric illness, while recording the defendant's obvious developmental disability, his personality disorder and his intermittent explosive disorder, as well as some past threats of self harm, a matter which the defendant identified in his own letter to the Court.

45 Dr Lucas confirmed the diagnosis of moderate intellectual disability, personality problems and communication disabilities, and noted the absence of any evidence of him ever having suffered a major psychiatric disorder. He confirmed that he presents a difficult long-term problem, that will require careful management, whilst in custody, and "supervision post release".

46 He reported that the risk of future offending was difficult to address, observing that "all that can be said at this stage is that attention to his behavioural problems, appropriate medication and a suitable post release program, should reduce the chance of further offending”.

47 Although I am satisfied from this material that the defendant is streetwise to a degree, and as Drs Westmore and Hayes explained in their evidence in February 1999, capable of some independent living, his capacity for judgment and reasoning on any view must be regarded as significantly impaired. As a result general deterrence is not a factor of any great significance in fixing the limiting term, for the reasons explained in R v Scognamiglio (1991) 56 A Crim R 81.

48 The interests of personal deterrence, denunciation and punishment for this gravely serious crime, would however be of considerable importance in fixing an appropriate sentence for a normal trial. In that regard it needs to be noted that the defendant has a prior record which, over the five years preceding the murder, apart from offences of dangerous driving, driving an unregistered motor vehicle, and driving while cancelled, includes convictions in the Albury and Forbes Local Courts for assault, carrying a cutting instrument, unlawful entry, goods in custody, malicious damage, stealing, throwing a missile, as well as offensive language and behaving in an offensive manner. These offences had mainly been dealt with by supervised probation, recognisances to be of good behaviour and fines. On occasions he had been sentenced to the rising of the court, but fixed terms each of one month had also been imposed for two offences of assault, one offence of malicious damage and one offence of being a disqualified driver and another offence of illegal use of a motor vehicle.

49 The facts sheets which were tendered as part of the Crown case on sentence, in order to flesh out the bare bones of this record, reveal a disturbing pattern of misbehaviour involving for example an assault on a resident of Woodstock; the dangerous driving of a vehicle which the defendant had taken without consent from the Woodstock Centre; threats or punches directed to other young persons on some occasions when the defendant was carrying and displaying cutting instruments; aggression towards police including damage to a charge dock at a time when he had been taken into custody after being found in possession of a dagger and a dog that had been taken unlawfully from the Albury City pound; an attempt to pull a motorist from a motor vehicle; the throwing of a glass bottle at a motor vehicle which was in motion; and the overturning of garbage cans in a public street.

50 This record denies to him any suggestion that the present offence was an uncharacteristic aberration on the part of an offender of otherwise good character. On the contrary it shows that he has difficulty, no doubt because of his intellectual disability, in conforming to normal rules of behaviour.

51 Several other statements were placed before the Court concerning incidents of a similarly aggressive or threatening kind which do not appear to have led to charges being preferred. Objection was not taken to their tender, but as they did not lead to convictions, and as there was no opportunity for their truth to be investigated, or, indeed, for meaningful instructions to be obtained from the defendant, I do not place any weight upon them, other than to note that if true, they disclose a consistent pattern of antisocial and aggressive conduct of the kind which is otherwise well documented in the court and institutional records. I specifically do not regard them as matters which should aggravate the sentence in a way that might be seen to have included a component for uncharged offences. In this regard see Weininger v The Queen [2003] HCA 14.

52 Some of the evidence which was led before Newman J, the transcript of which was tendered by consent in these proceedings, would tend to suggest that Sharon Corner, the defendant's sister, a Department of Community Services officer Enid Hope, who had contact with him at Woodstock, and a field staff officer Cathy Robinson who had known him as a child, held a somewhat more benevolent view of his behaviour. This related more particularly to his earlier years, and to some extent to the period before the murder of his father, which appears to have had a devastating impact on him. This material tends to show that he has had a strong attachment to animals as well as a capacity to form good bonds with, and even be protective of and respectful towards, family members and others, including institutional staff, with whom he felt comfortable.

53 While I take this material into account as showing that he can form attachments, and behave reasonably when he chooses, it does not displace the remaining evidence, concerning his criminal history and long-standing pattern of aberrant behaviour, or the psychiatric evidence, which together show him capable of gratuitous violence in response to little or no provocation and as such to present as a continuing danger to society. Unfortunately this is a product of his developmental and physical disabilities, and his history of dislocation through various placements as a young person, over none of which he had any say or control.

54 Finally in relation to the subjective circumstances of the defendant, I note that there is no evidence to suggest that he has shown any true contrition or remorse for his criminality on this occasion, or that he has any real insight into it. In this regard he has placed a letter before me, written on his behalf by another inmate, in which, while expressing sorrow for the victim’s family and offering an apology to them, he maintains his assertion that he was only an accessory after the fact to murder. It may be that as a result of his intellectual disability, he has persuaded himself that this is the case, but while ever he maintains that stand any remorse which he expresses for the deceased and her family must be considered as qualified.

55 Although preventative detention is not permissible, R v Twala NSWCCA 4 November 1994, the need to protect the community from the offender was recognised in Veen v The Queen(No 2) (1988) 164 CLR 465, and it has now been reinforced by s 3A(c) of the Crimes (Sentencing Procedure) Act 1999 as one of the purposes of criminal punishment.

56 Having regard to the psychological and psychiatric evidence, the personal history of the defendant, and the absence of any real solution for the defendant’s intellectual and personality problems, I find that he will continue to present as a danger to the community, unless he maintains his medication and continues to be under close supervision. I also find that he possesses a degree of cunning which, in this instance, saw him manufacture a false defence by which he assigned responsibility for the killing to another young man.

57 On any view, these circumstances do not favour well for his prospects of rehabilitation. The brutal and senseless nature of the attack in this case was such that, in other circumstances, it could well have brought the offence within the reach of s 61(1) of the Crimes (Sentencing Procedure) Act 1999. However, the developmental disabilities of the defendant are such that it would be inappropriate to impose the maximum available sentence.

58 Otherwise, I have taken into account, in determining what would have been an appropriate sentence, had the defendant been found guilty at a normal trial, the various matters referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999 as in force following the amendments, which commenced as and from 1 February 2003, including the circumstance that the offence involved the infliction of extreme violence with the use of a weapon, resulting in death, as well as those relating to the intellectual disability of the defendant.

59 In this respect, the provisions of the Act which would have been applicable to a normal trial conducted at the time of the special hearing would have differed, to that extent, from the provisions applicable when Newman J passed sentence, that having occurred on a date which also preceded the introduction of the original s 21A, which came into effect on 15 April 2002.

Limiting Term

60 As I have already observed, pursuant to s 23(1) of the Mental Health (Criminal Procedure) Act 1990, my task is to determine whether, if the special hearing had been a normal criminal trial and the accused had been fit to be tried, and had been found guilty, the Court would have imposed a sentence of imprisonment, and if so, to nominate a limiting term, being “the best estimate of the sentence that would have been considered appropriate”.

61 Clearly the answer to the first of those questions, as appears from the foregoing reasons, is in the affirmative.

62 On any view, the objective circumstances of this brutal and predatory killing were very serious and were such as would inevitably require the imposition of a substantial term of imprisonment had this been a normal trial, even allowing for the intellectual impairment from which the defendant suffers, and for the circumstance that his self-control was probably inhibited, to a degree, by the effects of the alcohol, which he had consumed this night.

63 As to the second question, it was held in R v Mitchell (1999) 108 A Crim R 85 that the limiting term was to be an estimate of the total sentence, rather than of the non parole period or minimum term. The sentencing law that would have applied to a normal trial, in that instance, was that embodied in the Sentencing Act 1989, which called for the Court to firstly set a minimum term, which the prisoner must serve, and an additional term during which the prisoner might be released on parole, being a term which could not exceed one-third of the minimum term, unless special circumstances were found. Section 5 of that Act provided:

“(4) The minimum and additional terms set for an offence together comprise, for the purposes of any law, the term of the sentence of the Court for the offence.”

64 As the Court noted (at para 29):

“Whether or not the person is released at the end of the minimum term depends on a consideration of the matters specified by s 17 of the Sentencing Act . Those factors include giving primacy to the public interest, having regard to the prisoners’ behaviour during the minimum term and having regard to whether the prisoner, if released, would be able to adapt to normal community life.”

65 The Court continued:

“The additional term specifies the period beyond which the person can no longer be detained or otherwise subjected to penal supervision.”

66 By contrast it noted that a limiting term under the Mental Health (Criminal Procedure) Act is:

“The period beyond which a person cannot be detained for the offence which was the subject of the special hearing.”

67 In rejecting the appellant’s submission that the limiting term under s 23 of the Mental Health (Criminal Procedure) Act should be an estimate of the minimum term, and not of the whole sentence comprising the minimum and additional term, the Court said at para 32:

“Section 23 requires a comparative estimate of "the sentence" considered appropriate if the person had been found guilty after a normal trial. " The sentence" is expressly defined in s 5(4) to be the totality of the minimum and additional term. The "minimum term" is, by the terms of s 5(1)(a), a specified part or term of "the sentence" which is imposed under the section. The purpose in the comparative exercise required by section 23 is to ensure that a limiting term under the Act is neither more harsh nor more lenient than a total sentence would have been in a case of a person fit to plead. Thereafter the operation of the two Acts diverge to take account of the different circumstances with which they deal. In the case of the Sentencing Act , the concern is with the person's fitness for parole after having served the minimum term. Under the Act the concern is with the person's mental state from time to time. A person dealt with under the Act is subject to at least six monthly reviews by the Tribunal throughout the course of the limiting term, and may be released prior to the expiry of the limiting term. The fact that a person may be detained for the whole of the limiting period does not involve any unfairness. Rather, the two different schemes give recognition to the differing purposes of the two Acts.”

68 As the Court had earlier noted (paras 15 to 17) the fixing of a limiting term under the Mental Health(Criminal Procedure) Act does not mean that the offender must be detained for the entirety of that term. Once a limiting term is fixed, the defendant becomes subject to the review procedure established by the Mental Health Act, and is subject as a forensic patient to the jurisdiction of the Mental Health Review Tribunal. The Tribunal is required to conduct reviews of such patients, at least once every six months, and may make recommendations as to their continued detention, care or treatment, their fitness to be tried and their release (s 82). At the end of the limiting term, their release from custody as a forensic patient is automatic. That is, unless he or she is determined to be mentally ill and such that no care of a less restrictive kind is appropriate and reasonably available. In such case the future detention is as a “continued treatment patient” (s 89). Otherwise, depending upon the Tribunal’s finding, a person dealt with under the Act (subject to the provisions of ss 83 to 84) may be released prior to the expiry of the limiting term.

69 The decision in Mitchell also stands as authority for the following propositions:

(a) that the limiting term is to be neither more harsh nor more lenient than that which would have been imposed as a total sentence, in the case of a person who was fit to stand trial; and

(b) that the limiting term is to be nominated having regard to the objective circumstances of the offence and to such subjective circumstances as are present and relevant.

70 The Crimes (Sentencing Procedure) Act which replaced the Sentencing Act, now requires that, when sentencing an offender to imprisonment, for offences committed on or after 1 February 2003 the Court is first to set a non parole period for the sentence, (being the minimum period for which the defendant must be kept in detention in relation to the offence) and then to set the balance of the term of the sentence, which is not to exceed one-third of the non parole period unless the Court decides that there are special circumstances for it being more (s 44).

71 The former s 44 of the same Act, which still applies to sentencing for offences committed before 1 February 2003, requires the Court to first set the term of the sentence, and secondly, to set a non parole period for the sentence (being the minimum period for which the offender must be kept in detention in relation to the offence), being a period not less than three quarters of the term of the sentence, unless the Court decides that there are special circumstances for it being less.

72 Although the Act, both as presently and previously framed does not repeat the s 5(4) definition of the earlier Sentencing Act, it is in my view clear that the same concept continues, namely that the sentence comprises both the minimum or non parole period, and the balance of the term or the additional term, as the case may be.

73 I have undertaken this review of the law since it has been submitted by the Crown that the same approach should be taken to the limiting term as was taken in R v Mitchell, while Mr Dalton for the defendant has submitted that the limiting term should not exceed that which was imposed by Newman J by way of a minimum term or non parole period.

74 So far as that submission may give cause for consideration whether the sentencing regime now applicable to this case should, as a matter of statutory interpretation, call for a different approach to that taken in R v Mitchell, I am satisfied, for the reasons already mentioned, that there is no reason for that to occur.

75 Mr Dalton’s submission however went somewhat further, in so far as he contended that, if I were to set a limiting term which, for example, was equivalent to the total 25 year term imposed by Newman J, that would operate unfairly and expose the defendant to a greater term than had originally been set by way of minimum term. That this would be unfair, it was submitted, would arise through no fault of his own, but rather from the circumstance that he had successfully appealed from a conviction that had been defective by reason of procedural error, associated with the refusal of the original trial judge to order a fitness hearing during the earlier trial.

76 In advancing this argument reliance was placed upon decisions such as R v Gilmore (1979) 1 A Crim R 416, R v Mitchell [2002] NSWCCA 380 and R H McL v The Queen (2000) 203 CLR 452 which support the practice or convention that, on a new trial, consequent upon the quashing of a conviction by a Court of Criminal Appeal, the accused should ordinarily not receive a longer sentence, or non parole period, than those following upon the first trial. As Street CJ pointed out in R v Gilmore the application of this “principle” will necessarily yield in relation to the non parole period if some significant subsequent circumstances, such as an escape from custody or the commission of fresh offences occurs pending the retrial.

77 The policy considerations behind the rule of practice, or convention relate to the circumstance first, that defects in trials should be challenged and laid bare on appeal, without the risk of the accused being constrained from appealing out of fear of receiving a heavier sentence; and secondly to the need to avoid the impression, groundless although it might be, that the new sentence involves an element of retribution by the machinery of criminal justice in consequence of the first conviction having been overthrown (per Street CJ in Gilmore at 419 to 420).

78 That the statement in R v Gilmore was not intended as a formulation of a fixed principle of law, or as an absolute proposition depriving the judge in a second trial of any discretion in relation to the sentence to be imposed, was made clear in R v Bedford (1986) 5 NSWLR 711 and was confirmed more recently in R v Merritt [2000] NSWCCA 365, and again in R v MM [2002] NSWCCA 431. Departure is possible for example, where the first sentence had been remarkably lenient, or where the criminality involved was of a greater degree than had previously been perceived, or where the offender's subjective aspects on reappraisal are seen to be significantly less favourable.

79 A submission was advanced by the Crown, in the present case, to the effect that there is cause to depart from the prima facie approach recognised in these decisions, insofar as Dr Westmore has identified an aspect of future dangerousness.

80 I am not persuaded that this consideration was overlooked or given insufficient weight by Newman J, who specifically noted (para 38) "not only do I believe that the prisoner has poor prospects of rehabilitation but (sic) will remain a danger to the community whilst at large". His Honour also made specific reference to the decision in Veen v The Queen (No 2), which could only have had a relevance in the context of dangerousness. Accordingly I do not consider that the case is one which would have justified any increase in the sentence which was imposed by Newman J, had this been an ordinary trial, by reason of any assessment that the defendant posed a greater risk of danger to society, or had any less favourable subjective circumstances than those presented to Newman J.

81 Before returning to the question previously mentioned concerning whether or not, in the special circumstances of this case, the limiting term should not exceed the 18 year minimum term which had been imposed by Newman J, I also note the submission of Mr Dalton, that the original sentence was itself excessive. In that regard I am not persuaded that the defendant’s respectable and appropriate conduct during the most recent trial, while properly medicated, indicate any lessening of his potential for outbursts of violence, particularly when he is unmedicated or subject to other than close supervision. His intellectual and personality disabilities which have seen him fall into repeated trouble, and which led to this very serious offence, are not going to resolve or disappear. Nor do I consider that his custodial arrangements, which appear to give him a reasonable amount of latitude, as well as the opportunity to act as a sweeper, are sufficiently onerous as to call for any greater leniency.

82 I accept that the victim did not fall into the special category of vulnerable victims mentioned in s 21A of the Crimes (Sentencing Procedure) Act, however the category of vulnerable victims is not necessarily closed. On any view a young female such as the present victim who was walking unaccompanied in a public place at night is vulnerable, and a murderous attack upon her is a particularly heinous offence. Secondly, it does not seem to me that the fact that this particular attack was most probably neither planned in any considered way, nor part of some organised criminal activity, reduces its seriousness. Clearly the defendant had some criminal purpose in mind, and the fact that this was an explosive and entirely unprovoked attack only points up his potential dangerousness.

83 I am not persuaded, therefore, that Mr Dalton's submission that the original sentence was excessive has merit. On the contrary I would, in a normal trial, have in my own independent assessment of the case, considered that the sentence imposed by his Honour was entirely appropriate for the objective and subjective circumstances which were present. I include in that assessment a finding as to the existence of special circumstances arising out of the defendant's mental state and disabilities.

84 This brings me back to the question whether the limiting term should, in fairness to the defendant, not exceed the 18 year minimum term. I am not persuaded that any unfairness would be occasioned in following the approach which was taken in R v Mitchell (1999) 108 A Crim R 85. In my view that decision should be followed insofar as the limiting term should be fixed by reference to the overall term which would have been considered appropriate for a normal trial.

85 The unfairness argument appears to me to fail once it is understood that an offender is not entitled to automatic release at the end of a non parole period or a minimum term. Whether or not that occurs depends upon a number of considerations, including his or her behaviour, and ability to reassimilate into the community. Even if released he or she remains subject to the restraints of parole, and to the possibility of revocation of parole and return to prison, in the event of further offending. For that reason, to fix the limiting term by reference to the non parole period or minimum term may have the effect of reducing the sentence which would otherwise be appropriate.

86 Additionally, there is the consideration that the fixing of the limiting term does not automatically mean that the forensic patient will remain in custodial detention, or in a hospital or other place for the entirety of that term. Circumstances may arise whereby such a patient may receive an earlier conditional or unconditional release. Theoretically, although it is not likely to occur in the case of the present defendant, the Tribunal may also find such a person to be fit before the expiry of the limiting term, in which case the criminal proceedings may resume.

87 In all of these circumstances I am not persuaded that considerations of fairness or an application of the Gilmore prima facie approach require, in this case, that the limiting term should not exceed that of 18 years, or that it should be other than the overall term of 25 years which I would have assessed as being appropriate, had the defendant been found guilty after a normal trial. That limiting term should be backdated to commence on 28 March 1996, being the date from which the defendant has been continuously held in custody.

88 The question of his future management by the Department of Corrective Services has been carefully and sensibly addressed by it, as indeed has his past management, which has seen him being transferred between suitable institutions so as to meet the risk of him becoming bored and troublesome, thereby short-circuiting negative behaviours and tension with other inmates. Additionally, pains have been taken to provide him with meaningful work opportunities, currently as a sweeper, so as to assist his general development and successful management. It is intended that he should be admitted, in due course, to the planned complex for inmates with intellectual disabilities, and there involved in programmes which may assist in addressing his offending behaviour and in allowing him to develop such residual ability as he possesses.

89 His management within this environment, and subject to a similar regime, seems to be entirely appropriate, subject to his continuation on appropriate medication. No reason appears to exist, nor would it seem beneficial for him to be admitted at this stage to any form of mental health institution, since his problems relate to development and intellectual disabilities, as well as to a personality disorder, rather than to any form of frank mental illness.

90 In the light of these matters I make the following formal findings and orders:

1. I determine that, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence of murder, which the defendant has been found to have committed, I would have imposed a sentence of imprisonment;

2. I nominate a limiting term in respect of that offence of 25 years to commence from 28 March 1996, being the date from which the defendant has been held in custody;

3. In accordance with the requirements of section 24 of the Mental Health (Criminal Procedure) Act , I refer the defendant to the Mental Health Review Tribunal;

4. Pending notification of the determination of the Tribunal and also pending further order of the Court, I order that the defendant be detained in a Correctional Centre.

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Last Modified: 10/23/2003