Smith v Regina

[2007] NSWCCA 39

Reported Decision: 169 A CRIM R 265

New South Wales

Court of Criminal Appeal

CITATION:	SMITH v. REGINA [2007] NSWCCA 39
HEARING DATE(S):	Tuesday 5 December 2006
JUDGMENT DATE:	27 February 2007
JUDGMENT OF:	Sully J at 1; Howie J at 2; Hall J at 3
DECISION:	The application for leave to appeal be granted. The limiting period of three years nominated by Geraghty, DCJ. should be set aside. That in lieu a limiting term be nominated pursuant to s.23(1)(b) of the Mental Health (Criminal Procedure) Act 1990 (NSW) of two years to commence on 9 March 2005 and to expire on 8 March 2007. The applicant is eligible for immediate release from detention on 8 March 2007.
CATCHWORDS:	Sentence - applicant convicted of one count of aggravated sexual assault - jury verdict on limited evidence pursuant to the Mental Health (Criminal Procedure) Act 1990 - whether power to impose a limiting term under the Crimes (Sentencing Procedure) Act 1999 - consequences of finding pursuant to the Mental Health (Criminal Procedure) Act - judge had the power and jurisdiction to impose a limiting term pursuant to the Mental Health (Criminal Procedure) Act - remarks on sentence did not translate to determination of the appropriate duration of the limiting term - sentence imposed manifestly excessive.
LEGISLATION CITED:	Mental Health (Criminal Procedure) Act 1990 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v An (No 2) [2006] NSWCCA 218 DPP v Mills [2000] NSWCA 236
PARTIES:	WILLIAM ROGER SMITH v. REGINA
FILE NUMBER(S):	CCA No. 2006/1959
COUNSEL:	Crown: D Woodburne App: R Burgess
SOLICITORS:	Crown: S E O'Connor App: S Kavanagh
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/61/0013
LOWER COURT JUDICIAL OFFICER:	Geraghty DCJ
LOWER COURT DATE OF DECISION:	9 March 2005

No. 2006/1959

SULLY J
HOWIE J
HALL J

TUESDAY 27 FEBRUARY 2007

WILLIAM ROGER SMITH v. REGINA

Judgment

1 SULLY J: I agree with Hall J.

2 HOWIE J: I agree with the orders proposed by Hall J for the reasons given by him.

3 HALL J: The applicant seeks leave to appeal against “a limiting term” of three years nominated by his Honour Judge Geraghty pursuant to the provisions of s.23(1)(b) of the Mental Health (Criminal Procedure) Act 1990 (NSW), on 9 March 2005 in the Dubbo District Court.

4 The offence with which the appellant was charged and for which the limiting term of three years was imposed, was one count of aggravated sexual assault contrary to s.61J of the Crimes Act 1900 (NSW). The maximum penalty prescribed by that section is 20 years imprisonment.

5 The limiting term was nominated pursuant to the abovementioned provision following the revocation by the Court on the abovementioned date of a three year s.9 bond that had been imposed by his Honour Judge Twigg, QC. on 29 March 2004. That bond had been imposed following a jury verdict given pursuant to the provisions of s.22(1)(c) of the above Act. That provision provides that the verdicts available to a jury at a special hearing conducted pursuant to the provisions of s.19 and s.21 of that Act include:-

“(c) That on the limited evidence available, the accused person committed the offence charged.”

Background

6 The offence was committed on 21 September 1997 in Gunnedah. The applicant, at that time, was aged 22 years and his co-accused, Anthony John Creighton, was then aged 26 years. The applicant’s co-accused was arrested and in due course pleaded guilty to one count of aggravated sexual assault and one count of sexual intercourse without consent.

7 The Crown’s written submissions relate the circumstances of the offence in the following terms:-

2. The offence was committed on 21 September 1997 in Gunnedah. On the evening of 20 September 1997, the victim, Mr. R., attended a hotel in Gunnedah. At about 2.30 am the following morning he went to a friend’s house where a party was taking place. He fell asleep on a lounge on the back verandah of the premises and was woken by Creighton, whom he knew, placing a finger in his throat and calling him a ‘faggot’. The victim told Creighton to leave and he, the victim, went to a nearby shed where he fell asleep on a mattress.
3. Later, the victim was woken again, on this occasion to find Creighton’s penis coming towards his mouth. Creighton threatened the victim that if he bit his penis he would have his head ‘caved in’. Creighton, who was in the company of the applicant, hit the victim across the buttocks with a stick and demanded that he ‘give cous a head job’. The applicant then placed his penis in the victim’s mouth while Creighton hit the victim on the back and shoulders with a stick. Creighton and the applicant then took turns to have the victim fellate them. The applicant did not have a stick and he did not hit the victim.
4. The victim ran away and immediately complained to neighbours. Later that morning, he was examined by a doctor who observed a large haematoma on his buttocks, an abrasion to the left side of his abdomen and swelling to his lips.”

8 On 12 February 1998, Creighton was sentenced at the Tamworth District Court (Luland, DCJ.). In relation to the offence of aggravated sexual assault the Court imposed a minimum term of three years and three months with an additional term of nine years. In relation to the offence of sexual intercourse without consent, the Court imposed a concurrent fixed term of imprisonment of 12 months.

9 In the remarks on sentence in relation to Creighton, the Court indicated that the term of the total overall sentence imposed upon Creighton had been reduced from four years to three years on account of Creighton’s assistance to the authorities.

10 Following upon Creighton’s identification of the applicant as the other offender, on 27 February 1998, the applicant was arrested and charged with the abovementioned offences. He was committed for trial to the District Court on 6 July 1998.

11 The applicant’s legal representatives, prior to his trial, raised the issue as to whether the applicant was unfit to stand trial.

12 On 8 August 2001, the Solicitor General, as delegate of the Attorney-General, determined that an inquiry be conducted as to whether the applicant was fit or unfit to be tried in respect of the offence charged.

13 On 20 August 2001, following a hearing before a judge alone at the Tamworth District Court, his Honour Judge Bell determined that the applicant was unfit to be tried.

14 On 21 March 2002, the Mental Health Review Tribunal determined that, on the probabilities, the applicant would not become fit to be tried within a period of 12 months. In consequence, on 2 October 2002, the Attorney-General directed, pursuant to s.18 of the MH (CP) Act that a special hearing be conducted.

The special hearing pursuant to the Mental Health (Criminal Procedure) Act 1990

15 The special hearing was conducted at the Tamworth District Court between 24 February 2003 and 28 February 2003 before his Honour Judge Twigg and a jury. On 28 February 2003, the jury returned a verdict pursuant to s.22(1)(c) of the abovementioned Act, namely, that on the limited evidence available, the applicant committed the offence charged. He was granted bail, pending sentence and the matter was stood over to a date to be fixed by the District Court Criminal Registry.

16 On 21 November 2003, the matter was listed for sentence at the Sydney District Court but on that date the applicant failed to appear. The matter was stood over until 12 March 2004 for sentence. For administrative reasons the matter was later re-listed for sentence on 29 March 2004.

17 A number of reports were tendered before his Honour Judge Twigg. These included the reports of Dr. John Taylor, psychologist, dated 29 April 1998 and 17 March 2004, Ms. Barbara Aldrich, psychologist, dated 14 May 2001, Dr. Olav Nielssen, psychiatrist, dated 18 May 2001, Dr. Rob McMurdo, psychiatrist, dated 14 December 1993, Charlotte Hambly, psychologist, dated 19 August 1993, Sheila Gray, Client Assessment Consultant employed by Legal Aid dated 21 November 2003.

18 The Crown’s written submissions summarise the subjective elements of the case. These included the fact that at the time of the alleged offences, the applicant was a single man born on 10 November 1974 and the second oldest of five children born to Aboriginal parents. He was aged 29 years at the time of the hearing before his Honour Judge Twigg.

19 The applicant grew up in Gilgandra where he lived with his family. It is said that he suffered from an intellectual disability and experienced trouble at school where he was in a special class for learning disabled children. He left school during the first year of high school and is unable to read or write. The applicant has never been employed and was in the receipt of a Disability Support Pension.

20 The applicant’s history reveals that he commenced drinking alcohol at about the age of 16 years and has been a heavy drinker since that time, reporting that he regularly suffered blackouts when he has been drinking. He reported that he tried smoking marijuana when he was a teenager, but he had not used any illicit drugs. He has a number of prior convictions and has previously served terms of imprisonment.

21 Dr. McMurdo considered that the applicant almost certainly had a disorder of mental retardation. He reported that he was in the borderline range of developmental disability and that he lacked the ability to comprehend anything other than relatively simple concepts. Dr. McMurdo expressed the opinion that it was probable that the applicant had innate, somewhat low intelligence which was further aggravated by limited education and possibly minor head injuries on several occasions. His history of episodically drinking heavily to the point of having alcoholic amnesic episodes or blackouts would have caused further brain damage each time it occurred.

22 Mr. Taylor, when he originally assessed the applicant in 1994, considered him to have a level of intellectual functioning within the mildly intellectual handicapped range and an IQ of 72, placing him within the bottom three percent of the population. He assessed the applicant as having an extremely limited ability to communicate and was lacking in insight concerning his own motivations and behaviour. He considered that the applicant had an effective level of development comparable to that of a child aged between five and six years. When he re-assessed the applicant in 1998, he considered that the applicant was very difficult to assess due to his low level of intelligence and inadequacy in his personality functioning.

23 Mr. Taylor also expressed the view that the applicant had unstable personality functioning and had a great deal of difficulty in perceiving the consequences of his behaviour in advance.

The imposition of the s.9 bond

24 At the proceedings on 29 March 2004, Twigg, DCJ. had before him the reports of John Taylor, Barbara Aldrich and Dr. Nielssen identified above. The Court took into account the fact that the applicant had served “four months and 12 days custody at an early stage of the proceedings …”. The delay since the commission of the offence, during which time the applicant had reported to the Probation Service was also taken into account, given that the applicant had not re-offended in that period. Aggravating and mitigating factors were also taken into account pursuant to s.23A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Twigg, DCJ. also referred to the fact that the offence involved no planning and harm to the victim was not substantial and took those matters into account. Additionally, the applicant’s Aboriginal background and intellectual disability were also taken into account.

25 The sentencing remarks in relation to the applicant’s co-accused, Creighton, were also considered and in light of all relevant factors, Twigg, DCJ. indicated that, in accordance with s.23(2) of the Mental Health (Criminal Procedure) Act 1990 (NSW) he would not have imposed a sentence of imprisonment had the hearing been a normal trial of a person fit to be tried. The learned judge imposed a s.9 bond for three years conditional on the applicant being of good behaviour and accepting the supervision and guidance of the Probation and Parole Service.

Offences committed in breach of the s.9 bond

26 On 10 August 2004, the applicant was charged with the offence of malicious wounding and he was refused bail. The facts in relation to this offence established that on the evening of 7 August 2004, he attacked his sleeping victim by striking him in the facial area. The victim was bleeding from the face and from the back of his head and was transported to hospital by ambulance. He received two stitches to repair a wound to his head. The applicant was arrested on 10 August 2004.

27 On 22 November 2004 at the Gilgandra Local Court, the applicant was sentenced, in respect of the last mentioned offence, to imprisonment for a total term of 16 months commencing on 7 August 2004 with a non-parole period of 12 months to expire on 6 August 2005.

28 A breach report regarding the s.9 bond imposed by his Honour Acting Judge Twigg, QC. was submitted to the Probation and Parole Service.

29 A report of Ms. Henderson dated 24 November 2004 noted the conviction for the malicious wounding offence. Ms. Henderson had advised that the applicant had maintained regular contact with the Probation and Parole Service in Gilgandra but noted that the reporting was done at the Gilgandra Courthouse where the applicant was often required to attend court. Despite attempts to assist him in understanding the relationship between his alcohol abuse and offending behaviour, the applicant had, it was reported, demonstrated little interest in considering an alternative lifestyle. Ms. Henderson reported that he was not considered suitable for any further period of supervision.

30 On 14 December 2004, the applicant appeared at the Gilgandra Local Court for sentence in respect of an offence of assault (s.61, Crimes Act).

31 The assault was committed on 28 May 2004 on a 12 year old girl who was riding her bicycle in the park at Gilgandra. Whilst in the park, she spoke to the applicant. During the conversation he grabbed the victim around the throat. He released his grip, pushing the victim to the ground and attempted to kick her but was prevented from doing so by a passer by.

32 On 14 December 2004, the applicant was sentenced at the Gilgandra Local Court on the last mentioned charged to imprisonment for a term of 10 months to commence from 14 December 2004 with a non-parole period of seven months to expire on 13 July 2005.

33 On 31 January 2005, in response to the breach report, his Honour Judge Shadbolt directed that the applicant be called up before any judge.

Proceedings before Geraghty, DCJ.

34 On 23 February 2005, the applicant was called up before his Honour Judge Geraghty at the Dubbo District Court.

35 The Crown brief was admitted as Exhibit 1 and defence papers were admitted as Exhibit 2. Also tendered were the breach report by Cathy Henderson, Probation and Parole Officer dated 24 November 2004, report of Dr. Anthony Samuels, psychiatrist, dated 21 September 2004 and Mr. Greg Tryer, psychologist, dated 22 November 2004.

36 Mr. Ronald Francis Butler, manager Community Access, Orange and Far West, gave evidence before Geraghty, DCJ. He referred to the adaptive assessment by Mr. Tryer in his report dated 22 November 2004. He said, however, that the applicant was not eligible for assistance from DADHC because of his level of intellectual disability, which was borderline and not sufficiently low, although he qualified on social skills and in other areas.

Grounds of appeal

37 In his notice filed 27 August 2006, the applicant stated that he intended to rely upon the following grounds:-

“1. The limiting term nominated by his Honour upon the revocation of the s.9 bond imposed by Twigg, DCJ. on 29 March 2004 is a nullity.

(a) failing to apply normal sentencing principles,

(c) failing to take into account the applicant’s intellectual disability.
3. His Honour erred in failing to take into account accumulation and totality when considering the length of the limiting term
4. His Honour erred by failing to consider the question of parity.
5. The limiting term is manifestly excessive.”

Ground 1

38 Ms. R. Burgess, of counsel on behalf of the applicant, contended that the parties in the proceedings before Geraghty, DCJ. had assumed that the breach of the bond imposed by Twigg, DCJ. enabled “a limiting term” to be nominated in accordance with s.23(1)(b) of the Mental Health (Criminal Procedure) Act 1990 (NSW). Ms. Burgess contended that the assumption was misconceived and that this was demonstrable from an examination of the relevant provisions of the latter Act and the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW). The submission ultimately was that Geraghty, DCJ. had no power to impose the limiting term on the revocation of the bond under either Act.

39 Ms. Burgess’ carefully constructed submissions were developed in two parts. The first was entitled “power to impose and revoke s.9 bond under the Crimes (Sentencing Procedure) Act”. The second was entitled “the power to impose a limiting term under the provisions of Mental Health (Criminal Procedure) Act”.

40 In relation to the first part of the submissions, attention was drawn to the provisions of the Mental Health (Criminal Procedure) Act 1990 (NSW) (in particular, s.32(2)) and also to the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) – in particular, s.4(1) which deals with the imposition of a “penalty” and the provisions of s.9 providing for the power to impose a bond.

41 Firstly, the provisions of the last mentioned Act, in particular, s.9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), with respect to s.9 bonds and the power to revoke them should be noted. The section is reproduced in paragraph [52]. In essence, it provides a Court with the power to make an order directing the offender to enter into a good behaviour bond for a specified term. It may do so instead of imposing a sentence of imprisonment.

42 In respect of a good behaviour bond under s.9, a breach is to be dealt with in accordance with s.98 of the last mentioned Act. Section 98(2) provides:-

“2. If the Court is satisfied that the offender has failed to comply with any conditions of the good behaviour bond, a Court:
(a) may decide to take no action with respect to the failure to comply,

(c) may revoke the bond.”

43 Section 99(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides:-

“If a court revokes a good behaviour bond:-
(a) In the case of a bond referred to in s.9, it may re-sentence the offender for the offence to which the bond relates.

44 The term “sentence” is defined in s.3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to mean:-

“a. When used as a noun the penalty imposed for an offence, and
b. When used as a verb, to impose a penalty for an offence.”

45 Ms. Burgess submitted that the expression “re-sentence” in s.99(1)(a), on the basis of the definition of “sentence”, imports the meaning to impose a penalty for an offence. However, it was submitted that a “limiting term” is not a penalty. The term “penalty”, it was observed, is not one that is defined in either the Mental Health (Criminal Procedure) Act 1990 (NSW) or in s.3 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The submission proceeded to deal at some length with the meaning to be accorded to the term “penalty”, it being contended that the ordinary meaning of the word refers to some form of punishment. A limiting term it was said, did not involve punishment and was not a penalty.

46 A limiting term under s.23(1)(b) of the Mental Health (Criminal Procedure) Act 1990 (NSW) is a notional term, being the best estimate of the sentence the Court hypothetically 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. It was observed in the submissions for the appellant that the reality is that the person is not fit to be tried and has not been convicted of any offence and that the limiting term merely represents the longest period that a person may be detained.

47 Ms. Burgess observed that detention under a limiting term is subject to other provisions of the Mental Health (Criminal Procedure) Act 1990 (NSW) and, further, that the language and mechanisms of the Crimes (Sentencing Procedure) Act 1999 (NSW) simply do not make any provision for a limiting term. The unavoidable conclusion, it was submitted, was that a limiting term is not a penalty and that there is no power to impose a limiting term under the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW). The power, it was submitted, that Geraghty, DCJ. had in respect of the breach of the bond was confined under the Crimes (Sentencing Procedure) Act 1999 (NSW) to taking no action on the breach, varying the conditions of the bond or revoking the bond and imposing another one, or to impose some non-custodial option: s.98(2).

48 In the written submissions on behalf of the applicant, it was submitted:-

“42. Given the scheme of the Mental Health (Criminal Procedure) Act 1990 (NSW), it clearly is not open to a court to impose a sentence of imprisonment for a breach of a bond imposed after a special hearing. This is because a person who is not fit to be tried is to be dealt with under the provisions of the Mental Health (Criminal Procedure) Act 1990 (NSW) where he or she cannot be sentenced to a term of imprisonment, and may be entitled to regular reviews by the Mental Health Review Tribunal. In addition, such a person cannot be convicted because there has been no finding of guilt after a trial.”

49 In relation to the second part of the submission made in respect of Ground 1, it was submitted that there was no power to impose a limiting term under s.23(2) of the Mental Health (Criminal Procedure) Act 1990 (NSW). This was stated to be upon the basis that, once a finding is made that imprisonment would not be appropriate, it would not be possible to impose a limiting term because, by its very definition, it is the best estimate of the sentence of imprisonment which would have been imposed if the person was fit to be tried after a normal trial.

50 In the written submissions it was stated:-

“45. From the wording of this section (s.23(1)) of the Mental Health (Criminal Procedure) Act 1990 (NSW), it is clear that a limiting term may only be imposed in circumstances where, following a special hearing, the Court would have imposed a sentence of imprisonment after a normal trial of a person who was fit to plead. There would have been a clear power for Twigg, DCJ. to impose a limiting term under the section if he had been of the view that he would have imposed a sentence of imprisonment. However, he found that he would not have imposed a sentence of imprisonment. Once it is determined that a sentence of imprisonment would not have been imposed, the Court has no power to impose a limiting term. At that time, the power conferred by the section is exhausted.”

Power following revocation of the s.9 bond

51 It is essential to recognise the fact that the legislature plainly intended the Mental Health (Criminal Procedure) Act 1990 (NSW) to be read with the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) in mind, and for a practical and workable interpretation to be given to the two pieces of legislation.

52 Section 9(1) of the latter Act provides:-

“Instead of imposing a sentence of imprisonment on an offender, a Court may make an order directing the offender to enter into a good behaviour bond for a specified term.”

53 It is clear the District Court, having directed the applicant to enter into a good behaviour bond for a three year period, that in the event of a breach of one or other of the conditions to the bond, the Court also had the power to revoke it. This is what in fact occurred in the present case.

54 The question then becomes what course of action was then open to the Court, having revoked the bond?

55 There would seem to be only two possible courses of action. I will examine each in turn. The first course was one following under and in accordance with the Crimes (Sentencing Procedure) Act 1999 (NSW) (s.98). The second, or alternative course, would be the course of following and applying the Mental Health (Criminal Procedure) Act 1990 (NSW) (s.23).

56 Twigg, DCJ. must, in my opinion, be taken to have implicitly or effectively indicated or intended to indicate that he would not have imposed a sentence of imprisonment if the special hearing had been a normal trial of criminal proceedings. On that basis, the bond imposed must be taken as having been imposed as “any other penalty or make any other order” within the terms of s.23(2). The section must be taken as referring to possible penalties or orders under the Crimes (Sentencing Procedure) Act 1999 (NSW) as would have been available in a normal trial of criminal proceedings. An order directing a person to enter into a s.9 bond falls within that provision.

57 The legislature by permitting such an order to be made, must also be taken to have made available the power to revoke a bond and to “re-sentence”. Given, as earlier stated, that both the Mental Health (Criminal Procedure) Act 1990 (NSW) is to be applied with the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) in mind and the two pieces of legislation are to be applied in a practical way, I am of the opinion that once the power to revoke a bond has been exercised, the Court may proceed, not to “re-sentence” (there being no power under the Crimes (Sentencing Procedure) Act 1999 (NSW) to impose a sentence of imprisonment on a person who has been found unfit to be tried) but to continue to deal with the person under the Mental Health (Criminal Procedure) Act 1990 (NSW).

58 Such an interpretation would maintain the approach of the Mental Health (Criminal Procedure) Act 1990 (NSW), namely, that a person who is found unfit to be tried is not to be sentenced to a term of imprisonment in the conventional way but should, if a court so determines and indicates, be made the subject of a limiting term under s.23(1)(b) of the Mental Health (Criminal Procedure) Act 1990 (NSW) and to the procedures then provided for in the Act. Such an interpretation of s.99 of the Crimes (Sentencing Procedure) Act 1999 (NSW) would be harmonious with the provisions of s.23 of the Mental Health (Criminal Procedure) Act 1990 (NSW).

59 Ms. Burgess submitted that it was not for this Court to “make some untenable statutory construction of legislation which doesn’t make sense”. She submitted that the fact that there is no reference to “limiting terms” in the Crimes (Sentencing Procedure) Act 1999 (NSW) and the fact that the language makes no provision for it, is a clear legislative indication that it was not envisaged that a person whose bond is to be revoked is then to be subject to a term of imprisonment.

60 In light of the conclusion which I have expressed above, it is necessary to analyse the basis for it in light of the submissions that have been made by the applicant and the Crown.

Analysis

61 It is clear from the language of s.23(2), (3) and (4), as indeed Ms. Burgess observed (at paragraph [36] of her written submissions), that the reference to “any other penalty” or “any other order” in s.23(2) imports into the scheme of the Mental Health (Criminal Procedure) Act 1990 (NSW) the dispositions provided for in the Crimes (Sentencing Procedure) Act 1999 (NSW), other than imprisonment, after a special hearing.

62 This, of itself, demonstrates that there is something of a blending of the two pieces of legislation and that, in turn, indicates, in my opinion, that where the provisions under the Crimes (Sentencing Procedure) Act 1999 (NSW) have been applied as in this case, namely, to a person who has been the subject of a special hearing for the purpose of making an order under s.9, the Court is not restricted to the sentencing procedures specified in s.99(1) of that Act. It would be not only open to a Court to thereupon proceed under the Mental Health (Criminal Procedure) Act 1999 (NSW) but it would be essential that it does so.

63 Even if that were not so and the Court was required to proceed upon s.99 of the Crimes (Sentencing Procedure) Act 1999 and the expression “re-sentence” is to be understood as involving the notion of the imposition of a penalty, then I consider that the nomination of a limiting term pursuant to s.23(1)(b) may properly be regarded as a penalty in the context of a case to which the Mental Health (Criminal Procedure) Act 1990 (NSW) otherwise applies. Section 23, by employing the phrase “… impose any other penalty or make any other order …”, imports the notion that the imposition of a limiting term can be seen as involving a penalty. In this respect, although doubt was expressed on the point in Regina v. An (No. 2) [2006] NSWCCA 218 at [32], the opinion that I have expressed finds support in the following:-

• Although a limiting term does not, itself, involve a custodial consequence or detention, the nominating of such a term does have statutory consequences. Thus, under s.24 of the Mental Health (Criminal Procedure) Act 1990 (NSW) , the Court must refer the person, following the nomination of a limiting term, to the Mental Health Review Tribunal and the Court may make such order with respect to “the custody of the person as the Court considers appropriate” : s.24(1)(b).

• The judgment of the Court of Appeal in DPP v. Mills [2000] NSWCA 236 supports that conclusion in observing that the imposition of a limiting term makes the person affected a forensic patient subject to the supervision of the Tribunal and that a limiting term may be seen as a penalty. In that case, Handley, JA. (with whom Sheller, JA. agreed), stated (at [39]) that, “… it is clear form the use of the expression ‘any other penalty’ in s.23(2), (3) and (4) that the nomination of a limiting term is treated as a penalty. If this were not so, the phrase ‘any other penalty’ in those provisions would have been quite inappropriate. This is supported by s.84(1)(a) of the Mental Health Act 1990, … which enables the Attorney General to prevent the release of a forensic patient which would not seriously endanger his safety or not of any member of the public if he considers that he ‘has served insufficient time in custody or under a detention’. This shows that a limiting term, not only deprives the forensic patient of his liberty, but does so by way of punishment …” .

64 I am, accordingly, unable to accept the submission that the only power available to Geraghty, DCJ. in dealing with the breaches of s.9 bond was confined or restricted to the Crimes (Sentencing Procedure) Act 1999 (NSW) and thereby to taking no action on the breach, varying the conditions of the bond or revoking the bond and imposing another, or to impose some other non-custodial option.

65 Nor can I accept the contention made in paragraph [3] of the applicant’s submissions in reply to the effect that no question of punishment can arise until there has been a trial and conviction. Whilst a verdict in accordance with s.22(1)(c) (as in the present case) only 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, nonetheless, such a finding brings with it important consequences. One cannot ignore the fact that, under the scheme established by the Mental Health (Criminal Procedure) Act 1990 (NSW), a person who is the subject of such a finding is deprived, as a forensic patient, of his or her liberty by reason of the statutory processes that are prescribed consequent upon a finding of a limiting term. The submission expressed in paragraph [3] of the applicant’s submissions is not, in my opinion, a correct approach as a matter of statutory construction to determining whether or not a limiting term is or is not a penalty.

66 Ms. Burgess in her submissions in reply (paragraph [6]) contended that, even if a limiting term is a penalty, it would not be open to impose such a limiting term under the Crimes (Sentencing Procedure) Act 1999 (NSW). That submission was advanced upon the basis that the language and mechanism of that Act simply did not make provision for the nomination of a limiting term or the making of orders under s.24 or s.27 of the Mental Health (Criminal Procedure) Act 1990 (NSW). Part 2, Divisions 1 to 4 of the latter Act, it was observed, sets out the sentences that may be imposed under that Act.

67 Whilst I accept the latter submission so far as it goes, it is, in my opinion, important not to lose sight of the fact that there is a need for a flexible and harmonious operation to be given to the two statutes. Accordingly, whilst, in my opinion, it was open to Twigg, DCJ. to impose a s.9 bond under the Crimes (Sentencing Procedure) Act 1999 (NSW), that does not mean that, when the matter came before Geraghty, DJC. by reason of the breaches of the bond, that Geraghty, DCJ. was, by reason of the prior history, irretrievably locked into the sentencing options provided by the Crimes (Sentencing Procedure) Act 1999 (NSW).

68 Following the revocation of the bond by Geraghty, DCJ., his Honour was not, in my opinion, without power to deal with the applicant by means other than s.99 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The bond having been revoked, there was no fetter or restriction on the District Court following an order revoking the bond to that Court then proceeding in accordance with the procedure prescribed by s.23 of the Mental Health (Criminal Procedure) Act 1990 (NSW).

69 In other words, I do not consider that the effect of the order made by Twigg, DCJ., directing the applicant to enter a bond, exhausted or completed the prescribed procedures under s.23 of the latter Act. That procedure not only remained open but the Court was bound, in my opinion, to implement the provisions of s.23.

70 I am, accordingly, of the opinion that Geraghty, DCJ. had the jurisdiction and power to impose a limiting term pursuant to s.23(1)(b) of the Mental Health (Criminal Procedure) Act 1990 (NSW).

Ground 2

71 This ground asserts error in three discrete respects:-

(a) By the failure to apply normal sentencing principles.

(b) By the Court taking into account only the objective seriousness of the offence.

(c) The Court failing to take into account the applicant’s intellectual disability.

72 It is convenient to deal with these grounds together. It is, as the applicant observed in his written submissions, the fact that Geraghty, DCJ. did not make express reference to the provisions of s.21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) and did not in terms refer to aggravating or mitigating factors nor was there reference to the delay that had occurred between the commission of the offence and the final disposition of the matter. As the Crown also observed, the learned judge made no factual findings in relation to the applicant’s role in the offence and made no assessment of the relevance of his mental disabilities in relation to the commission of the offence or the impact of his disabilities on the question of general deterrence.

73 The Crown also observed that there was difficulty in discerning the approach taken by his Honour’s statement (remarks on sentence, p.5):-

“… On an objective basis, if he were somebody who came before me who did not have the intellectual disability which he does have, I would be sentencing him to a limited term of three years imprisonment.”

74 The learned judge did, of course, later in his remarks on sentence say:-

“… I would have imposed what is referred to as a ‘limiting term’ of three years imprisonment, from 9 March 2005 to 8 March 2008.”

75 The Crown has observed that whilst the statement referred to in paragraph [73] tends to suggest the limiting term was determined by reference only to objective factors, it submitted that the structure of the remarks (pp. 2 to 4) tends to suggest that his Honour did, in fact, have regard, not just to the objective facts, but also to the fact that the offence was committed by someone with an intellectual disability and with the social development skill of a six or seven year old, as well as to subjective matters, in addition to the applicant’s disability, including his background situation.

76 The Crown further submitted (paragraph [65] of the Crown’s written submissions):-

“It is, perhaps, not necessary to finally determine this issue or, indeed, grounds of appeal 3 – 5 because it would appear that there was error in the exercise of discretion in that his Honour did not give consideration to whether it was appropriate to take into account any period during which the applicant had been held in custody in relation to the offence and, further, his Honour does not appear to have taken into account the fact that the applicant was subject to the s.9 bond and the extent to which there was compliance by reason of his regular contact with the Probation and Parole Service, albeit for a short period from 29 March 2004 until his imprisonment for malicious wounding on 10 August 2004.”

77 The Crown proceeded in its written submissions to identify the factors, correctly, that were relevant should this Court proceed to “re-sentence”. These included the nature of the offence, the maximum penalty of 20 years imprisonment (although acknowledging that the present offence did not fall into the worst category of case for the offence) and the objective serious nature of the incident. The Crown acknowledged that the co-offender played a greater role, having assaulted the victim earlier and being the one wielding the stick. The Crown submitted, however, that the applicant’s participation was active and his criminality, objectively viewed, was not much less than that of the co-offender.

78 On the question of the applicant’s culpability being reduced by reason of his mental disability, the Crown submitted that, while it can be accepted that he may, in general terms, be suggestible in a way typical of people with low intelligence and that consumption of alcohol had a role to play in his behaviour, as the 2004 convictions for the malicious wounding and the assault offences vividly demonstrate “the applicant can and does act violently when on his own or of his own volition and does so towards victims who are themselves in vulnerable positions …”.

79 The Crown fairly conceded that the level of the applicant’s intellectual and social functioning is such that there may well be need for some moderation of general deterrence but that there are countervailing considerations in determining an appropriate sentence. These, it is submitted, have been highlighted by the commission of the “disturbing” offences constituting the breach of the s.9 bond. The Crown submitted that both personal deterrence and the protection of the community remain relevant considerations.

80 The Crown also addressed the question of parity with the applicant’s co-offender. The Crown noted that the co-offender was entitled to a discount by reason of his (late) plea of guilty, his identification of the applicant as the other offender and his promise to give evidence against the applicant and the fact that his sentence was being served in protective custody. A specific finding of contrition was made and the sentencing judge discounted the sentence by one year because of his assistance to the authorities.

81 In relation to the question of delay, the Crown observed that a short period of delay was attributable to the applicant’s failure to appear for sentence on 21 November 2003, resulting in the matter being stood over to 12 March 2004. The bulk of the delay, otherwise, has been in terms of time taken to proceed through the fitness and special hearing processes and the breach and re-sentence process. There, however, had not been any rehabilitation in the meantime.

82 The Crown also submitted that whilst totality is a relevant consideration, the applicant’s imprisonment from 7 August 2004 to 6 December 2005 related to the malicious wounding offence which was committed during the term of the s.9 bond. The sentence imposed in respect of the assault offence, which was also committed in breach of the bond, was wholly subsumed within that sentence.

83 The Crown noted that by dating the limiting term from 9 March 2005, it was partly concurrent with the non-parole period imposed in respect of each of those offences.

84 The Crown acknowledged that it is necessary to take into account the fact that the applicant was subject to a s.9 bond between 29 March 2004 until his incarceration on 10 August 2004 and the extent of his compliance with that bond. Attention was also drawn to the fact that it is necessary to take into account s.23(5) (as to the time a limiting term takes effect) and s.23(6) (of the Mental Health (Criminal Procedure) Act 1990 (NSW)). Additionally, upon nominating a limiting term, it is necessary to give consideration to the consequences of nominating such a term as set out in s.24 of the Mental Health (Criminal Procedure) Act 1990 (NSW).

85 It is clear from the remarks on sentence (pp.3 to 4) that his Honour was mindful of the evidence indicating the applicant’s intellectual handicap and his limited social development but I accept the submission made by Ms. Burgess that those observations do not appear to have translated into the determination of the appropriate duration of the limiting term.

86 I also accept that there is no reference to any allowance being given for the period the applicant spent in custody or detention before and during the special hearing nor for the period the applicant was subject to the s.9 bond prior to August 2004 and that due allowance was in fact required to be given.

87 In relation to the question of parity, Ms. Burgess has identified matters that indicate a lower level of culpability in the applicant, having regard to his role and disabilities than that of his co-accused. In this respect, it was observed that, whilst there were similarities given that both the applicant and the co-offender were Aboriginal and came from a disadvantaged background, the co-offender was sentenced for two offences. Further, he did not suffer from an intellectual disability and he was older than the applicant (being 26 years of age at the time of the offence). As Ms. Burgess observed, the co-offender was the instigator of the offence and was more actively involved. After he had sexually assaulted the victim on the verandah, he threatened the victim and hit him.

88 It was submitted that, in the present case, the reduction of the applicant’s limiting term would not lead to a gravely inadequate sentence and that the applicant has a justifiable sense of grievance considering that he received the same three year “sentence” as the co-offender.

89 I accept that the later offences occurred in breach of the s.9 bond and were only relevant on the question of the applicant’s prospects of rehabilitation. I accept that it was relevant to have regard to the fact that the applicant has a supportive family and that he did maintain contact with the Probation and Parole Service during his period on bail and following the imposition of the s.9 bond.

90 I am of the opinion that, taking into account the applicant’s role, the objective circumstances of the case, the subjective circumstances of the case, including, in particular, the applicant’s intellectual disability and considerations of parity, and the period spent in custody and the s.9 bond as discussed below, that the sentence imposed was manifestly excessive in all the circumstances and this Court should intervene and re-sentence him.

91 In all the circumstances, I am of the opinion that:-

(a) The application for leave to appeal be granted.

(b) The limiting period of three years nominated by Geraghty, DCJ. should be set aside.

(c) That in lieu a limiting term be nominated pursuant to s.23(1)(b) of the Mental Health (Criminal Procedure) Act 1990 (NSW) of two years to commence on 9 March 2005 and to expire on 8 March 2007.

92 Accordingly, the applicant is eligible for immediate release from detention on 8 March 2007.

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