R v Mitchell

[1999] NSWCCA 120

Reported Decision: 108 A Crim R 85

New South Wales

Court of Criminal Appeal

CITATION:	R v Mitchell [1999] NSWCCA 120
FILE NUMBER(S):	CCA 60445/97
HEARING DATE(S):	03/12/98
JUDGMENT DATE:	21 June 1999
PARTIES :	Regina v John Michael MITCHELL
JUDGMENT OF:	Beazley JA at 1; Sperling J at 1; Hidden J at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	93/11/0851
LOWER COURT JUDICIAL OFFICER:	Holt DCJ

COUNSEL:	Crown: P G Berman Mitchell: G P Craddock
SOLICITORS:	Crown: S E O'Connor Mitchell: Joan Baptie
CATCHWORDS:	CRIMINAL LAW; Appeal; Limiting term; Minimum and additional term; Factors to be considered; Whether limiting term was manifestly excessive
ACTS CITED:	Mental Health (Criminal Procedure) Act 1990 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Mental Health Act 1990 (NSW) Sentencing Act 1989 (NSW)
CASES CITED:	R v Maclay (1990) 19 NSWLR 112 R v Moffitt (1990) 20 NSWLR 114 R v Parker (1990) 19 NSWLR 177 Veen (No 2) (1988) 164 CLR 465R v Engert (1995) 84 A Crim R 67
DECISION:	Appeal Allowed

IN THE COURT OF

CRIMINAL APPEAL

CCA 60445/97

BEAZLEY JA
SPERLING J
HIDDEN J

Monday, 21 June 1999

REGINA v JOHN MICHAEL MITCHELL

JUDGMENT

1 THE COURT: The appellant, after a special hearing conducted under the Mental Health (Criminal Procedure) Act 1990 (NSW) (the MH(CP) Act) was found by a jury to have committed the offence of being an accessory before the fact to the malicious infliction of grievous bodily harm upon Catherine Jane Sommer. The offence carries a maximum sentence of 25 years penal servitude: s 33 of the Crimes Act 1900 (NSW).
2 Under the MH(CP) Act, a person is not sentenced in the ordinary way. Rather, the trial judge is required to nominate a term, called the limiting term, being the maximum period for which a person may be detained in institutional care for the offence. Pursuant to s 23(1)(b) of the MH(CP) Act, the sentencing judge nominated a limiting term of 18 years 8 months. His Honour specified that this was comprised of a minimum term of 14 years backdated to 10 December 1992 when the appellant went into custody for the offence and an additional term of 4 years 8 months commencing on 10 December 2006 and expiring on 9 August 2011.
3 The appellant appeals against the limiting term nominated.

Background

4 The appellant was arrested and charged on 10 December 1992 with the offence to which we have referred. The actual perpetrator of the attack on Ms Sommer was Thomas Wilson.
5 The appellant and Ms Sommer had a brief relationship in 1991. Ms Sommer terminated the relationship when she told the appellant she no longer wished to see him. Ms Sommer rejected further advances by the appellant and in early 1992 the appellant set about to procure an attack on her. He made an offer of $500 to Mark Swales to “knock her teeth out”. Swales eventually refused to carry out the attack. The appellant then contracted with Wilson to carry out an assault on Ms Sommer for $5,000. Wilson carried out that attack on Ms Sommer in her home on 19 February 1992.
6 The attack was vicious. Ms Sommer suffered grievous injuries, including multiple compound fractures of her legs and left arm, and a fractured jaw, nose and cheek. She continues to suffer serious ongoing physical and psychological disabilities. She has not worked since the attack and is unlikely to be able to do so in the future.
7 After the attack the appellant told Swales that he had paid “a guy” to break her legs but that “Cathy hasn’t learnt her lesson yet, she was going to have her legs broken again”. It was at this point that Swales approached the police and after a successful undercover police operation, in which there were extensive telephone taps, the appellant was arrested.
8 The appellant was under psychiatric treatment at the time of the attack. We will deal with his psychiatric condition more fully later in these reasons.
9 The appellant was committed for trial in mid-1993. The trial commenced before Johnston DCJ in May 1994. On the second day of the trial the appellant changed his plea to guilty. In accordance with a direction given by his Honour, the jury returned a verdict of guilty. Johnston DCJ then ordered an adjournment to allow medical evidence to be adduced for the purpose of sentencing. On the sentence hearing, the appellant’s legal representatives sought leave to withdraw the guilty plea and proceed to trial. The court was informed that at trial the appellant would rely on a defence of mental illness. Johnston DCJ was of the view that since the jury had returned a verdict of guilty, he had no power to allow the plea to be withdrawn - rather the verdict could only be set aside by the Court of Criminal Appeal. His Honour was correct in this view.
10 His Honour proceeded to hear the psychiatric evidence adduced in relation to sentence. His Honour considered that had the medical evidence been given before, and accepted by, a jury, it would have led to a verdict of not guilty on the grounds of mental illness. His Honour therefore declined to proceed to sentence but indicated that the matter was best dealt with by the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW). In 1995, the Court of Criminal Appeal dealt with the matter, apparently under s 5(1) of the Criminal Appeal Act, quashing the conviction and ordering a new trial.
11 On 8 May 1996 the appellant was found by a jury to be unfit to be tried. On 27 June 1996, the Attorney-General gave a direction under s 18 of the MH(CP) Act that a special hearing be conducted in respect of the offence with which the appellant was charged. The special hearing was heard by a jury before Holt DCJ on 9 April 1997. At the special hearing, a jury found that on the limited evidence available the appellant had committed the offence with which he had been charged. Holt DCJ proceeded to nominate a limiting period under the MH(CP) Act. It is that nomination from which the appellant appeals.

Mental Health (Criminal Procedure) Act 1990 (NSW)

12 It is convenient at this point to consider the provisions of the MH(CP) Act relating to special hearings. Section 21 of the Act, which describes the nature and conduct of special hearings, provides, relevantly:

“(1) Except as provided by this Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.
…
(3) At a special hearing:
(a) the accused person is to be taken to have pleaded not guilty in respect of the offence charged; and
…
(c) without limiting the generality of subsection (1), the accused person may raise any defence that could properly be raised if the special hearing were an ordinary trial of criminal proceedings; and
(d) without limiting the generality of subsection (1), the accused person is entitled to give evidence.
…
(4) At the commencement of a special hearing, the Court must explain to the jury the fact that the accused person is unfit to be tried in accordance with the normal procedures, the meaning of unfitness to be tried, the purpose of the special hearing, the verdicts which are available and the legal and practical consequences of those verdicts.”

13 Section 22 specifies the verdicts which a jury may reach at a special hearing, including “that on the limited evidence available, the accused person committed the offence charged”: s 22(1)(c). The legal effect of that verdict is prescribed by s 22(3):

“(3) A verdict in accordance with subsection (1) (c)… :
(a) constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates; and
(b) subject to section 28, constitutes a bar to further prosecution in respect of the same circumstances; and
(c) is subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings; and
(d) is to be taken to be a conviction for the purpose of enabling a victim of the offence in respect of which the verdict is given to make a claim for compensation.”

14 Section 23 deals with the procedure which the Court must undertake after a finding under s 22(1)(c). The proper construction of this section is at the heart of this appeal. It provides:

“23(1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged … 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 or penal servitude; 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 was fit to be tried for that offence and the person had been found guilty of that offence.
…
(4) In nominating a limiting term in respect of a person … the Court may, if it thinks fit, take into account the periods, if any, of the person’s custody or detention before, during and after the special hearing (being periods related to the offence).”

15 Once the limiting term has been nominated, the Court refers the accused to the Mental Health Review Tribunal (the Tribunal) and makes such orders with respect to custody as it considers appropriate: s 24(1). The Tribunal determines the appropriateness of hospital treatment and notifies the Court accordingly: s 24(2), (3). The Court may make an order as to the custody of the accused: s 27. If the accused is detained in a hospital, prison or other place, the accused is a “forensic patient”: Schedule 1, Mental Health Act 1990 (NSW) (MHA). Thereafter, the continued detention of the accused is determined by procedures established by the MHA. There are also provisions relating to persons who are subsequently found to be fit to be tried. However, these provisions are not relevant here.
16 Chapter 5 of the MHA deals with forensic patients. The Tribunal must review forensic patients at least once every six months and make a recommendation to the Minister for Health as to the patient’s continued detention, care or treatment, fitness to be tried for an offence and release (conditional or unconditional): s 82 MHA. A recommendation for release triggers a series of steps which may lead to the patient’s release: ss 83, 84 MHA. Pursuant to ss 28 - 30 of the MH(CP) Act if, prior to release during a limiting term, a person is found by the Tribunal to have become fit to be tried, and this is confirmed by the Court, the criminal proceedings are continued.
17 At the end of the limiting term, release from custody as a forensic patient is automatic. It follows from the scheme of the MHA that such a person cannot be re-tried, since the finding that a person committed the offence charged constitutes a bar to any other criminal proceedings being brought against the person for the same offence: s 28(1) MH(CP) Act. If the person is mentally ill or mentally disabled at the time the limiting term expires, and a medical practitioner is satisfied that no other appropriate means for dealing with the person are reasonably available, the person may be detained as a continued treatment patient: s 89 MHA.
18 The Tribunal recommended on 20 July 1998 that Mr Mitchell should continue to be detained as a forensic patient until the determination of this appeal, before it made its determination under s 24.

Issues on the Appeal

19 Counsel for the appellant identified the following as the grounds of appeal:

“His Honour erred in fixing a minimum limiting term.
His Honour erred in leaving out of account a relevant consideration, namely, the applicant’s mental condition.
His Honour erred in failing to have regard to the applicant’s unfitness to be tried in nominating a limiting term.
His Honour failed to recognise the role of the applicant’s mental condition upon the question whether remorse had been shown.
His Honour erred in approaching the nomination of the limiting term by looking to parity with the sentence imposed upon the offender Wilson.
His Honour erred in approaching the nomination of the limiting term upon the basis that a term equivalent to the sentence imposed upon Wilson should be nominated absent good cause being shown to depart from such a term.
The limiting term is manifestly excessive.”

20 In argument, these grounds condensed into three issues: (i) whether the limiting term nominated by the trial judge after a special hearing may be divided into a minimum and additional term (appeal ground 1); (ii) the matters to be taken into account in fixing the limiting term (appeal grounds 1-6); and (iii) whether the limiting term nominated was manifestly excessive (appeal ground 7).

Does s 23(1)(b) Authorise the Imposition of a Minimum and Additional Term?

21 Counsel for the appellant submitted that the trial judge erred in dividing the limiting term into a minimum and additional term. The Crown conceded, correctly in our view, that s 23 does not authorise such a division, and only requires the nomination of a total term. We agree. There is nothing in the wording of the section which warrants the nomination of a minimum and additional term. Nor does the purpose and policy of the section indicate that the limiting term should be so divided. In the first place a minimum term is inconsistent with the MH(CP) Act review process under which a person subject to a limiting term may be released at any point prior to the expiration of the limiting term. Secondly, to do so would not serve any rehabilitative purpose as is the case under the Sentencing Act 1989 (NSW). Accordingly, the appellant must succeed on the first ground of appeal.
22 Counsel for the appellant then submitted that the limiting term under s 23 should be an estimate of the minimum term, and not the whole sentence which would have been appropriate under s 5 of the Sentencing Act.
23 Section 23(1)(b) of the MH(CP) Act requires the court to nominate a term which is:

“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 was fit to be tried for that offence and the person had been found guilty of the offence”.

24 Had the matter proceeded to sentence after a normal trial the appellant would have been sentenced in accordance with s 5 of the Sentencing Act. That section provides, relevantly:

“(1) When sentencing a person to imprisonment for an offence, a court is required:
(a) firstly, to set a minimum term of imprisonment that the person must serve for the offence, and
(b) secondly, to set an additional term during which the person may be released on parole.
(2) The additional term must not exceed one-third of the minimum term, unless the court decides there are special circumstances.
…
(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.”

25 The Sentencing Act was introduced as part of a new “truth in sentencing” regime, whereby a sentencing judge was required to set a minimum term of imprisonment which the judge and the community would know would be served. The new Act reflected not only a different philosophy in sentencing but also introduced certain new sentencing procedures in New South Wales. The new procedures were reflected first, in the requirement that there be a minimum and additional term, and secondly, in prescribing, subject to special circumstances, the temporal relationship between those two terms.
26 The duty of the judge in sentencing under the new regime was described in R v Maclay (1990) 19 NSWLR 112 as being “to determine what is an appropriate term during which the offender is to remain in custody before being eligible to be released on parole”. In R v Moffitt (1990) 20 NSWLR 114 at 121, Wood J described the sentencing process under the new scheme as follows:

“In applying the new Act four particular features have to be kept in mind:
(i) that when an offender is sentenced there must first be set a minimum term and then an additional term (5(1));
(ii) that the minimum and additional terms together comprise the term of the sentence (s 5(4));
(iii) that the term of the sentence imposed cannot exceed the statutory maximum for the offence in question (s 10(a));
(iv) … parole is not automatic at the end of the minimum term, but depends on administrative decision of the Offenders Review Board (s 17)” (emphasis added).

27 Wood J stressed that s 5(1) was not directed to the order in which the sentence was pronounced. He stated at 122:

“I take the view that s 5(1) prescribes the manner in which the sentencing court must pronounce sentence, and not the reasoning which leads to the order made; subject, that is, to the direction in s 5(2) as to the normal relationship between the minimum and additional terms.”

28 Badgery-Parker J at 135 also gave an explanation of the operation of s 5:

“… a judge in sentencing must, before he determines the minimum term, have in mind that there is to be an additional term also, and that the two together must bear an appropriate relationship to the prescribed maximum. … In effect, he may take into consideration all relevant circumstances, including those which amount to “special circumstances” within s 5(2) and determine, in particular order, how long the offender should spend in actual custody, and what period thereafter should be the period during which he is eligible for release on parole, and what should be the total sentence bearing the appropriate relationship to the maximum prescribed by the Crimes Act. Having made that determination, he must then express the sentence in the manner prescribed by s 5(1).”

29 It will be seen from the foregoing that the purpose of the minimum term under the Sentencing Act is to specify the period during which the person must be kept in custody. Whether or not the prisoner is released at the end of the minimum term depends on a consideration of the matters specified by s 17 of that Act. Those factors include giving primacy to the public interest, having regard to the prisoner’s behaviour during the minimum term and having regard to whether the prisoner, if released, would be able to adapt to normal lawful community life. The additional term specifies the period beyond which the person can no longer be detained or otherwise subject to penal supervision. However, it is also clear that under s 5, the Court is concerned with the overall sentence and must impose a sentence, including the additional term, which is appropriate for the offence in question, having regard to all relevant objective and subjective factors.
30 By contrast, a limiting term is the period beyond which a person cannot be detained for the offence which was the subject of the special hearing. As Hunt CJ at CL said in R v Parker (1990) 19 NSWLR 177, in respect of Part XIA of the Crimes Act 1900 (the predecessor to the MH(CP) Act) at 188, “[t]hat right to release is fundamental to the whole structure of the legislation”. A person may be released prior to the expiry of the limiting term pursuant to the six monthly review procedure referred to above.
31 Counsel for the appellant submitted that if the limiting term was an estimate of the total sentence, a person could be detained until the expiry of the entire term and thus potentially be subject to a longer period of detention than a prisoner released on parole at the expiry of a minimum term. It was submitted that s 23 was not intended to work unfairly in that way against a person subject to the MH(CP) Act.
32 In our opinion, the appellant’s submission on this point must fail. 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 MH(CP) 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 MH(CP) Act the concern is with the person’s mental state from time to time. A person dealt with under the MH(CP) 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.

Should This Court Nominate the Limiting Term?

33 As the trial judge erred in his approach to the nomination of the limiting term, the question arises whether the Court should nominate the term itself. Counsel for the appellant submitted that the limiting term must be nominated afresh (and invited this Court to embark on that process) as, it was submitted, it was impossible to discover whether, and if so how, the trial judge was influenced by his error in dividing the limiting term. He also submitted that the trial judge in fact erred in the manner in which he dealt with the objective and subjective factors which were relevant to the nomination process. In particular, he submitted that his Honour (i) failed to assess and make factual findings as to the appellant’s mental state; (ii) failed to have proper regard to the appellant’s mental state when considering the subjective factors of a guilty plea, remorse, and deterrence; (iii) wrongly had regard to the sentence imposed on Wilson, the principal offender; and (iv) imposed a term which was excessive.
34 The Crown accepted that this Court could re-sentence the appellant, but submitted that the limiting term ought not be disturbed because the trial judge’s error was merely technical and required correction only by eliminating any reference to the minimum and maximum term. We are inclined to agree that his Honour’s error in this regard was technical. If the error is technical only and no other error is demonstrated, it will not be necessary to embark upon a renomination of the term. However, it is necessary to deal with the other challenges raised by the appellant to determine whether his Honour’s nomination was otherwise affected by error. If it was more than a technical error it will be necessary to re-determine the limiting term. If the Court is required to enter upon this process, the same principles apply to this process as apply to re-sentencing if error is found. The proper approach to re-sentence was considered by the Court in Moffitt. Badgery-Parker J (Samuels JA and Wood J agreeing) stated at 127:

“[w]here it appears that the sentencing process at first instance was vitiated by error of law, it is necessary for this Court itself to determine what sentence ought to have been imposed. Having made that determination, the Court has to consider whether as a matter of discretion it ought to intervene. It would not do so if it came to the conclusion that, notwithstanding the error of law made by the sentencing judge, the sentence which [the judge] in fact imposed was that which, or was not markedly different from that which a correct application of principle would have produced.”

35 As s 23 requires that the best estimate be made of the sentence the appellant would have received after a normal criminal trial, the trial judge must have regard to usual sentencing principles. In R v Maclay the Court (Gleeson CJ, Hunt CJ at CL and Loveday J) said, at 122-123, that in sentencing under s 5 of the Sentencing Act, the sentencing judge is to give:

“…appropriate weight to well-established principles of sentencing, including those which require him to pay due regard to the maximum penalty provided by the statute for the offence in question, the gravity of the objective features of the case, and all relevant subjective considerations relating to the offender, [following which the sentencing judge] is to determine what is an appropriate term during which the offender is to remain in custody before being eligible to be released on parole.”

36 The “well-established principles of sentencing” were identified in Veen (No 2) (1988) 164 CLR 465 at 476 to be the “protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform”.
37 The trial judge took into account the maximum sentence prescribed for the offence (25 years); the seriousness and premeditated nature of the assault; parity with the sentence imposed on Wilson, the principal co-offender; the appellant’s prior record; his plea of guilty at the first trial before Johnston DCJ; the question of remorse; general and personal deterrence; and the question of what account should be taken of the appellant’s mental condition.
38 As the appellant’s medical condition impacted to a significant extent on various of the subjective features which were relevant to sentence, we will turn to that issue first.

The Appellant’s Medical Condition

39 Although the medical evidence was not entirely consistent, it was clear that the appellant suffered from a chronic psychiatric condition. Dr Eaton, the appellant’s treating psychiatrist, described the appellant as being “psychiatrically ill” and that over the period he had treated him, which was from 1992 to 1994, his condition had fluctuated. At one stage Dr Eaton diagnosed the appellant as having a Major Depression with delusional features. Over the period of his treatment he noted increasing depression, paranoid distorted perception and eventually the development of a psychosis.
40 The other psychiatric evidence in the case was that of Drs Barclay, Wong and Strum. Psychometric testing was also carried out by Mr Taylor, psychologist. Dr Barclay was of the opinion that the appellant suffered from a paranoid schizophrenic illness. Both Drs Wong and Strum diagnosed him as suffering from Major Depression with delusional or psychotic features. Mr Taylor considered that the appellant had a psychotic disturbance in which he was suffering both thought process and content disorder. The doctors were at issue, however, as to whether, notwithstanding the appellant’s mental state (whatever be the precise diagnosis), he was able to understand, at the time of the commission of the offence, that what he had done was wrong. If he did not know what he had done was wrong, he would have been entitled to be found not guilty on the grounds of mental illness. Dr Barclay was of the opinion that he did not know that what he had done was wrong. Drs Wong and Strum considered that he could and did. The jury’s verdict, that on the limited evidence available the appellant committed the offence charged, meant that it rejected the defence of mental illness and found that the appellant did understand that what he had done was wrong. The verdict involved an acceptance of Dr Wong and Dr Strum’s evidence and a rejection of that part of Dr Barclay’s evidence.
41 In his remarks in nominating the limiting term, the trial judge noted that the appellant was under psychiatric care at the time of the offence. However, consistent with the jury’s verdict, he rejected Dr Barclay’s evidence that at the time of the offence the appellant did not know that what he was doing was wrong. His Honour found:

“On balance I accept that he was suffering depressive symptoms. This seems common among the other psychiatrists.
I accept that he felt persecuted by women, and in particular Miss Sommer, and perhaps had some delusions. However, taking into account the jury’s verdict that he knew the nature and quality of his act and that what he was doing was wrong the question is, what allowance do I make for his condition?”

42 His Honour answered the question he posed himself by reference to the words of Hunt CJ at CL in R v Wright (1997) 93 A Crim R 48 at 51:

“But if the offender acts with knowledge of what he was doing and with knowledge of the gravity of his actions the moderation need not be great.”

43 His Honour concluded:

“I believe that is the case here; that is that the moderation of sentence should not be great.”

44 His Honour also appears to have accepted the evidence of Dr Barclay that the appellant was dangerous. See also Dr Strum’s evidence. It should be noted that this is another factor militating against the extension of leniency to the appellant: see Veen (No2) (1988) 164 CLR 465 at 476-7; Engert (1995) 84 A Crim R 67 at 71.
45 It should also be noted that his Honour expressly referred to the relevance of a person’s mental state to questions of deterrence in sentencing. His Honour referred to R v Mooney [1978] CrimLJ 351 where it was held that “in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which should often be given little weight”. His Honour also referred to R v Anderson [1978] VR 155, where it was held that the court should take account of the offender’s mental condition by giving little weight to general deterrence, because such an offender is not an appropriate medium for making an example to others. His Honour also referred to R v Scognamilio (1991) 56 A Crim R 81, R v Letteri (unreported, New South Wales Court of Criminal Appeal, 18 March 1992) and R v Wright (1997) 93 A Crim R 48. The relevant principles were summarised by Gleeson CJ in R v Engert at 70-1, where the Chief Justice emphasised the need for flexibility in their application to the facts of a particular case.
46 We reject the appellant’s contention, therefore, that the trial judge did not take the appellant’s mental condition into account.

Should the Accused Person Have the Benefit of Mitigating Presumptions?

47 Counsel for the appellant next submitted that the appellant’s mental condition which made him unfit to be tried cut across the subjective factors which otherwise would have been relevant to sentence, in that it adversely affected his ability to decide to plead guilty and his capacity to show remorse. He submitted that the appellant was thereby deprived of the opportunity of mitigating his limiting term by virtue of his incapacity. It was contended that certain presumptions should be made in favour of a person subject to the procedure under s 23 of the MH(CP) Act. In particular, it was argued that, where an accused is demonstrably unfit to plead and there is no clear evidence of the accused’s intentions with respect to a plea, the Court, for the purpose of nominating a limiting term, should presume a plea of guilty had been entered at an appropriate time. Unless such a presumption was made, it was said that an accused would be penalised by virtue of the statutory presumption that “at a special hearing the accused is to be taken to have pleaded not guilty”.
48 The same point was made in respect of the subjective factor of remorse, that is, that where a defendant’s mental state adversely affects his or her capacity to feel and express remorse, the Court should presume the existence of remorse as a mitigating subjective factor in sentencing, because to do otherwise would be to penalise the defendant for his or her mental illness.
49 In our opinion, the structure of s 23(1) of the MH(CP) Act and s 82 of the MHA, which provides for at least six monthly reviews, does not support the existence of presumptions in favour of an accused person. Nor can any general principle be laid down as to whether and how such subjective factors should be taken into account. Each case must be determined having regard to its own circumstances. The following example demonstrates why this must be so. A person may be found unfit to be tried for an offence committed many years earlier. It may be that the person’s mental condition, upon which the finding of unfitness to be tried is based, was not present during a significant period prior to that finding. It may also be the case that during the period prior to becoming unfit to plead, the person did not show signs of remorse. Indeed, it might be proved that the person was not remorseful at all. It might also be that during that period the person did not assist investigations and was determined not to plead guilty. To allow such a person the benefit of these presumptions and mitigate the sentence accordingly would give the person the benefit of subjective matters contrary to the facts.
50 Alternatively, it may be that in the period prior to trial, an accused person had shown remorse, personally commenced rehabilitation, and had assisted authorities. However, at a time shortly prior to trial, the person had suffered a mental illness so as to be unfit to be tried. Should that person be deprived of the benefits of the subjective mitigating factors which would have been relevant to sentence after a normal criminal trial? It is difficult to see that that could be the case. Such a person should have the mitigating benefits of those factors otherwise a court would be failing to apply the statutory prescription that the limiting term must be the “best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial”.
51 It seems to us, therefore, that the trial judge must look at the particular circumstances of the case and have regard to subjective factors to the extent that they existed at any time after the commission of the offence and before sentence. If a person’s mental state means that such subjective factors were not, and because of that mental state could not be, present at relevant times, we are of the opinion that no presumption operates in the accused person’s favour and no account can be taken of the absence of those subjective factors. In other words, the court must nominate a limiting term, having regard only to such factors as are in fact present and relevant. In a case where a person’s mental condition prevents or inhibits there being subjective factors to take into account, the factors which will be relevant or of primary significance must thereby be objective ones, such as the seriousness of the charge and parity of sentence, if that is a relevant factor.
52 It follows from this approach that a person who has been the subject of a special hearing should not be presumed to have entered a guilty plea or demonstrated remorse. There is nothing in the scheme of the MH(CP) Act to suggest that any other approach is warranted and the statutory presumption of a not guilty plea in s 23(1)(b) is a clear indication that such an approach is not intended. Indeed, to proceed upon such a basis would be speculative and carry with it the danger that too much or too little weight might thereby be attached to the presumption.
53 What then are the subjective and objective factors to which the sentencing judge should have had regard in this case?

Plea of Guilty

54 It will be recalled that the appellant had pleaded guilty at an early stage in his first trial and was found guilty of the offence charged. The verdict was quashed by the Court of Criminal Appeal. Subsequently, having been found unfit to be tried, he was statutorily presumed to have pleaded not guilty. No other course was permitted to him. The consequence was that he was subject to as full a trial as was possible given the nature of a special hearing under the MH(CP) Act.
55 In nominating the limiting term, Holt DCJ took into account that the appellant had, at one stage, pleaded guilty and that s 439 of the Crimes Act permitted (but did not require) him to reduce the appellant’s sentence on account of that plea. However, his Honour attributed little weight to the guilty plea in reducing the sentence because of the “extremely strong” Crown case and the lateness of the plea. He also held that the guilty plea was not necessarily indicative of remorse.
56 The Crown submitted that the appellant was not entitled to a discount for pleading guilty where no plea of guilty was entered, irrespective of his capacity to plead. The Crown further submitted that the trial judge probably erred in taking into account the earlier guilty plea, but in doing so was unnecessarily generous rather than adverse to the appellant. The Crown also submitted that one of the principal reasons a discount is given for a guilty plea was a recognition of the accused having spared the community the expense of a trial and recognition that such a plea may be indicative of remorse. In this case there had been a special hearing, which of its nature did not spare the community that expense.
57 The fact that the appellant pleaded guilty before Johnson DCJ raises a factual issue not covered by the two simple scenarios discussed previously and raises the question whether it was a relevant consideration for the trial judge and if so, whether any discount should have been given for that plea. The answer to the first part of the question is, we believe, straightforward. It is a matter of which account should have been taken by the trial judge and considered in context. It is likely that at the time of entering the plea, the appellant was not fit to plead. If he was not fit to plead, it seems difficult to see how the plea can be a mitigating factor for the purposes of nominating the limiting term under s 23(1)(b). If that is correct, the trial judge, by having regard to the initial plea, was generous to the accused. If the appellant was fit to plead at the time of the initial plea of guilty, we are of the opinion the trial judge applied the correct principles and made no error in the application of those principles.

Remorse

58 Counsel for the appellant submitted that the trial judge had failed to determine “whether the appellant’s mental state was itself complicit in any lack of demonstrable remorse”. He submitted that if that was found to be the case, as he said it should have been when regard was had to Dr Barclay’s evidence, the appellant was entitled to a presumption in his favour that he had shown remorse. We have already rejected the notion that the appellant was entitled to any presumption in his favour. His Honour also considered the question of remorse in relation to the initial plea of guilty, noting a plea is often a demonstration of remorse, but not where there are countervailing factors - such as a strong Crown case as his Honour found here.
59 Finally, his Honour held that the appellant had in fact shown no remorse after the assault on the victim. Indeed, it was his attempt to arrange a further assault on her which led to his arrest. His Honour was clearly entitled to have regard to the appellant’s insight into the gravity of his wrongdoing. Given those matters, the finding of the jury that the appellant understood that what he was doing was wrong and the late plea of guilty before Johnson DCJ, his Honour concluded:

“… [the appellant’s] part in the crime as its fons et origo outweighs any reduction of the sentence he seeks because of his psychological state and his late plea of guilty after the strong Crown evidence has been admitted” (emphasis added).

60 This conclusion, and the findings on which it was based were clearly open to his Honour. Accordingly, this challenge to his Honour’s nomination also fails.

Parity of Sentence

61 The limiting term nominated by Holt DCJ precisely replicated the sentence imposed upon Wilson, the principal offender. In nominating the identical term, his Honour noted that pursuant to s 346 of the Crimes Act, accessories before the fact are liable for the same punishment as the principal felon. He considered that the personal circumstances of Wilson and the appellant were not such as to interfere with the general principle that:

“[i]t is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but things are not always equal and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account”: Lowe v R (1984) 154 CLR 606 at 609 per Gibbs CJ.

62 In Lowe, Dawson J explained the operation of the principle at 623:

“There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or of his involvement in the offence are different then different sentences may be called for. But justice should be even handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.”

63 Counsel for the appellant submitted that no regard should be had to the principle of parity when determining the term which should be nominated under s 23 of the MH(CP) Act. He submitted that the “process of estimation proceeds upon the legal fiction that the accused is fit to be tried” and fails to take into account that an accused who is unfit to be tried does not receive the advantage of active participation in the trial, which may otherwise allow an accused to place the objective circumstances of the offence in a different light.
64 In our opinion, in a case where there are co-offenders, it is proper and necessary to have regard to parity of sentence when nominating a limiting term under s 23. This is so notwithstanding that in a particular case the Court may not be in a position to take any subjective factors into account because of the person’s mental condition. It is no criticism, in our view, that such a person is deprived of any reduction in the term nominated by the very fact of his mental condition. The answer to that argument is found in the scheme of the Act itself, whereby a person subject to the Act is reviewed at least every six months and may be released at any time after the commencement and prior to the expiry of the limiting term.
65 Counsel for the appellant also submitted that when dealing with the question of parity, Holt DCJ failed to give appropriate weight to the plea of guilty which had been entered before Johnson DCJ. We have already found there was no error in the trial judge’s approach in that regard.

Was the Limiting Term Manifestly Excessive?

66 Counsel for the appellant also submitted that the limiting term was manifestly excessive, being at the top of the statistical range of sentences imposed upon persons convicted of “wounding with intent” under normal criminal trial procedures. The statistics provided by counsel indicated that the limiting term was at the top end of the scale of sentences imposed for this offence.
67 It is well recognised that sentencing statistics must be used with care and not replace a proper consideration of the relevant circumstances, objective and subjective, in a particular case: see R v Budiman (unreported, Court of Criminal Appeal, 8 September 1998); R v Stitt (unreported, Court of Criminal Appeal, 28 September 1998). The sentence is within the statistical range of sentences for an offence of this type. Its gravity is such that the limiting term cannot be said to be manifestly excessive.
68 It follows from what we have said that notwithstanding the trial judge’s technical error in specifying a minimum and an additional term, no other error has been shown in the limiting term nominated by his Honour. In these circumstances we consider that this Court should not interfere except to remove the references to the minimum and additional term.
69 The Court orders:

(i) Appeal allowed.

(ii) Quash the determination below.
(iii) Nominate a limiting term under s 23(1)(b) of 18 years 8 months commencing on 10 December 1992.