R v Pethybridge (No.3)

Case [2022] NSWDC 520


District Court


New South Wales

Medium Neutral Citation: R v Pethybridge (No.3) [2022] NSWDC 520
Hearing dates: 28 October 2022
Date of orders: 28 October 2022
Decision date: 28 October 2022
Jurisdiction:Criminal
Before: Abadee DCJ
Decision:

See paragraphs 137, 152 and 153

Catchwords:

CRIMINAL LAW - defendant not fit to plead because of mental or cognitive impairment – special hearing - defendant found guilty, on limited evidence, of multiple ‘historical’ counts of indecent assault or sexual assault against children – whether sentence of imprisonment would have been imposed – limiting term

Legislation Cited:

Crimes Act 1900 (NSW) ss 61C, 61E, 66C, 76

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A21A, 25AA, 54D

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 63, 64, 65

Mental Health (Forensic Provisions) Act 1990 (NSW) s 27

Cases Cited:

Corby v R [2010] NSWCCA 146

Erazo v R [2016] NSWCCA 139

Magnuson v R [2013] NSWCCA 50

MRW v R [2011] NSWCCA 260

Muldrock v The Queen (2010) 244 CLR 120

PC v R [2022] NSWCCA 107

R v AB [2015] NSWCCA 57

R v AN [2005] NSWCCA 239

R v Cattell [2019] NSWCCA 297

R v DCM (Unreported, NSWCCA, 26 October 1993)

R v Fisher (1989) 40 A Crim R 442

R v Gavel (2014) 239 A Crim R 469

R v JTAC [2005] NSWCCA 345

R v King [2009] NSWCCA 117

R v KNL [2005] NSWCCA 260

R v Mailes (2004) 62 NSWLR 181

R v Obbens [2022] NSWCCA 109

R v Pethybridge (No.2) [2022] NSWDC 180

R v Smith (1987) 27 A Crime R 315 at 317

R v Stefanac [2022] NSWCCA 129

R v Todd [1982] 2 NSWLR 517

R v Van Ryn [2016] NSWCCA 1

R v Wilson (No.6) [2019] NSWSC 529

RJA v R (2008) 185 A Crim R 178

RS v R [2013] NSWCCA 227

Shannon v R [2006] NSWCCA 39

Young (a Pseudonym) v R [2022] NSWCCA 111

Category:Sentence
Parties: Office of the Director of Public Prosecutions (ODPP)
Mr R Pethybridge (offender)
Representation:

Counsel:
Ms K Nightingale for the Crown
Ms L McSpedden for the offender

Solicitors:
ODPP
O’Brien Criminal and Civil Solicitors
File Number(s): 2016/00083859
Publication restriction: Non-publication of names in accordance with s 578A Crimes Act 1900 (NSW) and s 15A(1) Children (Criminal Proceeding) Act 1987 (NSW)

EX TEMPORE SENTENCING REMARKS

Background

The guilty verdicts, the applicable offences and the maximum penalties

  1. On 26 May 2022, I delivered verdicts, following a special hearing, that on the limited evidence, the defendant (who I will henceforth call “the offender”) was guilty (in every case, on the limited evidence available) of the offences the subject of charges 1 – 4 (inclusive) and 7-13 (inclusive) on indictment. The reasons for the verdicts were published on Caselaw as R v Pethybridge (No.2) [2022] NSWDC 180 (the ‘Verdict Reasons’) and they are incorporated in these reasons.

  2. Charges 1, 2, 3, 4, 7, 8, and 9 all concerned the offence of indecent assault against…

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Details
AGLC
R v Pethybridge (No.3) [2022] NSWDC 520
Case
[2022] NSWDC 520
Decision Date

CaseChat Overview and Summary

In the case of R v Pethybridge (No.3), the appellant faced allegations of multiple instances of indecent assault and sexual assault against children, occurring over an extended period. The appellant's fitness to plead was questioned due to mental or cognitive impairment, leading to a special hearing under the relevant legislation. The court was tasked with determining the defendant's fitness to plead, the sufficiency of evidence to support a guilty verdict, and the appropriate sentence if the defendant was found guilty.

The legal issues encompassed the procedural fairness of the special hearing, the adequacy of evidence presented to substantiate the charges, and the necessity and proportionality of any potential sentence. The court examined the expert evidence and the appellant's medical history to assess fitness to plead, and scrutinised the admissibility and sufficiency of the evidence provided. Additionally, the court deliberated on whether the appellant's mental state would preclude the imposition of a custodial sentence.

The court found that the appellant was not fit to plead due to his mental or cognitive impairment, but nevertheless proceeded to find him guilty on limited evidence. The court held that the evidence, though not meeting the usual standards, was sufficient to establish the historical nature of the offences against children. The court recognised the seriousness of the offences but determined that, due to the appellant's mental condition, a sentence of imprisonment would not be appropriate. Consequently, the court imposed a limiting term on the registration of the convictions.

The court ordered that the convictions be registered for a limited term, recognising the gravity of the offences while considering the appellant's mental health. This decision ensures that the appellant's rights are protected while acknowledging the need for public protection and deterrence. The court's approach balanced the principles of justice with the unique circumstances of the appellant's mental health, resulting in a measured and proportionate outcome.

Orders

Orders of the court

See paragraphs 137, 152 and 153

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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