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

Regina PARTIES : 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 Mental Health (Criminal Procedure) Act 1990 (NSW) Crimes Act 1900 (NSW) ACTS CITED : Criminal Appeal Act 1912 (NSW) Mental Health Act 1990 (NSW) Sentencing Act 1989 (NSW) R v Maclay (1990) 19 NSWLR 112 CASES CITED: 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.