New South Wales Court of Criminal Appeal Regina v AN [2005] NSWCCA 239 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 14/06/2005 JUDGMENT DATE: 6 July 2005 JUDGMENT OF: James J at 1; Howie J at 2; Rothman J at 69 DECISION: Application for leave to appeal is allowed and the limiting terms imposed by Judge McGuire are quashed. In lieu the following limiting terms are imposed: (a) In respect of the offence under s 90A, a limiting term of 3 years (b) In respect of the offence under s 61J, a limiting term of 4 years 6 months. Both limiting terms are to date from 29 April 2004. CATCHWORDS: Mental Health - Imposition of limiting term on juvenile offender with severe mental impairment - approach to sentencing a person who was a young child at the time of the offence - whether general deterrence warranted - long delay since offence - term imposed is manifestly excessive. Mental Health (Criminal Procedure) Act 1990 - s 16(1), 22(1), 23 Criminal Appeal Act 1912 - ss 2, 5(1)(c) LEGISLATION CITED: Crimes Act 1900 - ss 61J, 90A Crimes (Sentencing Procedure) Act 1999 - s 21A(2) Children (Criminal Proceedings) Act 1987 (NSW) R v Engert (1995) 84 A Crim R 67 R v Mitchell (1999) 108 A Crim R 73 R v Mailes [2004] NSWCCA 394 R v Letteri (NSWCCA, unreported, 18 March 1992) R v Israil (2002) NSWCCA 225 R v Henry (1999) 46 NSWLR 346 CASES CITED: R v Bus (CCA, unreported, 3/11/1995) R v Wright (1997) 93 A Crim R 48 R v Pham and Lye (1991) 55 A Crim R 129 R v WKR (1993) 32 NSWLR 447 R v AEM [2002] NSWCCA 58 R v AD [2005] NSWCCA 258 PARTIES: Regina v AN FILE NUMBER(S): CCA 2005/582 D. Woodburne - Crown COUNSEL: R. Burgess - Applicant S. Kavanagh - Crown SOLICITORS: S. O'Connor - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 01/11/1234 LOWER COURT JUDICIAL OFFICER: McGuire DCJ IN THE COURT OF CRIMINAL APPEAL 2005/582 CCAP JAMES J HOWIE J ROTHMAN J WEDNESDAY 6 JULY 2005 REGINA v AN Judgment 1 JAMES J: I agree with Howie J. 2 HOWIE J: This is an application for leave to appeal against limiting terms imposed upon the applicant in respect of two offences in accordance with the provisions of the Mental Health (Criminal Procedure) Act (the MH(CP) Act). A limiting term is a sentence for the purposes of s 5(1)(c) of the Criminal Appeal Act by reason of the definition of "sentence" in s 2 of that Act. 3 In R v Engert (1995) 84 A Crim R 67 the Court considered the difficult problem faced by a court dealing with an offender who suffers from a mental disorder that affects that person's criminal responsibility and, therefore, impacts upon the purpose of the exercise of a sentencing discretion, the protection of the public. Gleeson CJ said: Persons suffering from mental disorders frequently come into collision with the criminal justice system. Sentencing such persons commonly confronts judicial officers with the need to make a sensitive discretionary decision. Sentencing is essentially a discretionary exercise requiring consideration of the extremely variable facts and circumstances of individual cases and the application to those facts and circumstances to the principles laid down by statute or established by the common law. The principles to be applied in sentencing are in turn developed by reference to the purposes of criminal punishment. Those purposes were set by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 as follows: "....protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform". A moment's consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the Court in the case of Veen No 2 . Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender. It is therefore erroneous in principle to approach the law of sentencing as though automatic consequences follow from the presence or absence of particular factual circumstances. In every case, what is called for is the making of a discretionary decision in the light of the circumstances of the individual and in the light of the purposes to be served by the sentencing exercise. In the present matter the Judge was confronted with the task of not only making a discretionary decision in light of the circumstances that the person was suffering from a mental disorder but also that the person was a child at the time of the commission of the offence. 4 On 17 August 2000 the applicant was charged with offences as a result of an incident occurring on 8 August 2000 when he was aged 13 years and 9 months. The first offence alleged that he detained the complainant with intent to hold her for advantage, contrary to s 90A of the Crimes Act (now repealed). This is an offence that carried a maximum penalty of imprisonment for 20 years or 14 years where the victim was released without any substantial injury. The second offence was an aggravated sexual assault offence committed against the complainant, the circumstance of aggravation being that the applicant was in company with MA, another juvenile. That is an offence contrary to s 61J of the Crimes Act and for which the maximum penalty prescribed is imprisonment for 20 years. 5 The applicant was committed for trial to the District Court on 28 November 2001 but, before his arraignment, a question of his fitness to be tried arose. On 13 September 2002, following a hearing before a judge alone, Judge Finnane QC found that the applicant was, by reason of his mild to moderate intellectual disability, unfit to be tried. His Honour was satisfied that the applicant's disability precluded him from fully understanding the nature of the proceedings or from giving instructions to his legal representatives. 6 On 27 February 2003 the Mental Health Review Tribunal determined that the applicant would not become fit within a period of 12 months: see s 16(1) of the MH(CP) Act. As a consequence, on 22 May 2003 the Attorney General directed that there be a special hearing conducted in respect of the committal charges. That hearing was determined by a judge alone hearing before Judge McGuire QC (the Judge) between 13 October and 14 November 2003. 7 On 14 November 2003 the Judge found, in accordance with s 22(1) of the MH(CP) Act, that on the limited evidence available the applicant committed the offences charged. On 29 April 2004 the Judge specified limiting terms under s 23(1) of that Act being: (i) in relation to the offence of detaining, a period of 5 years; and (ii) in relation to the s 61J offence, a period of 8 years. Both of those periods commenced from 29 April 2004. 8 The applicant seeks leave to appeal to this Court against the severity of the limiting terms imposed on both charges. There are two grounds of appeal relied upon as follows: (1) His Honour erred in placing too much weight on general deterrence when determining the length of the limiting term; (2) The limiting term imposed is manifestly excessive taking into account the applicant's age, immaturity, intellectual functioning, prospects of rehabilitation and the delay in fixing the limiting term. 9 The complainant was aged 13 years at the time of the offence. She had known the applicant for about two months and he had been a frequent visitor to her home. They had on occasions gone for a walk together. On the evening of 8 August 2000 the complainant, with her mother's permission, had gone with the applicant to a nearby park. There they met the co-offender, MA, who was almost 15 years of age. There were other acquaintances of the applicant at the park and one of them, a female, spoke to him about the complainant. When she asked whether the complainant was his girlfriend, the applicant replied that she was not but that he wanted "to fuck her because she was a slut". The applicant also said that he was going to "tape her" and "do all these things to her". The applicant mentioned that he had a knife but the female did not see one in his possession. 10 A short time later, when he and the co-offender were alone, they grabbed the complainant, dragged her into bushes and taped her arms and legs together notwithstanding her struggles against them. She was threatened not to scream. MA held a knife to her throat and said, "If you don't give us head we'll cut your head off". MA inserted his penis in her mouth and pushed her head down on to him until he ejaculated. While he did this, the applicant stood behind her holding the knife and laughing. 11 When MA had finished he told the applicant to hurry up. The applicant then inserted his penis into the complainant's mouth and kept it there for about a minute but he was unable to obtain an erection. MA said something to the applicant in Lebanese. The applicant then said, "You want another root?" He pushed her down and produced a condom. MA said, "Hurry up. Just give him what he wants and we'll untie you". However, a motor vehicle arrived and the complainant screamed out. The applicant and his co-offender then departed from the scene. 12 Section 23 of the MH(CP) Act provides: (1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, 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, 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. (2) If a Court indicates that it would not have imposed a sentence of imprisonment in respect of a person, the Court may impose any other penalty or make any other order it might have made on conviction of the person for the relevant offence in a normal trial of criminal proceedings. (3) Any such other penalty imposed or order made, under subsection (2), is to be subject to appeal in the same manner as a penalty or order in a normal trial of criminal proceedings. (4) In nominating a limiting term in respect of a person or imposing any other penalty or making any other order, 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). (5) A limiting term nominated in respect of a person takes effect from the time when it is nominated unless the Court, after taking 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), directs that the term be taken to have commenced at an earlier time. 13 The effect of this provision is that, if the court concludes that it would have imposed a sentence of imprisonment for an offence where the person had been convicted of that offence following a normal trial, the court is to impose a limiting term that is equivalent to the sentence that it would have imposed had the person been so convicted. The limiting term is the equivalent of the total term of the sentence that would have been imposed and not simply the minimum period that the person would have been required to spend in custody before being released to parole: R v Mitchell (1999) 108 A Crim R 73; R v Mailes [2004] NSWCCA 394. Clearly, in determining the limiting term for a particular offence the court is to adopt and apply all the principles of sentencing, whether arising under the common law or statute, that apply in sentencing a person convicted of that offence. 14 In the present case, although the applicant was charged with two separate but related offences and although it might have been appropriate to make the sentences for the offences partly cumulative in order to address the total criminality reflected by them, the Judge imposed limiting terms that commenced on the same date and, therefore, were totally concurrent. Although his Honour did not refer to it, s 23(5) of the MH(CP) Act does not authorise the commencement of a limiting term on a date after its imposition. In other words, a court cannot impose cumulative limiting terms even though it might have been appropriate to impose cumulative or partly cumulative sentences on conviction after trial. The limiting term for the aggravated sexual assault offence, therefore, could not take into account the criminality involved in the kidnapping offence because that was a separate offence for which a separate limiting term was to be imposed, albeit one that was totally concurrent with the limiting term for the sexual assault offence. 15 In imposing the limiting term for the kidnapping offence, the Judge stated that the maximum penalty for that offence was 14 years. This was based upon a submission to that effect by the Crown. But such a maximum penalty was on the basis that the complainant was released without any substantial injury. In light of the uncontested victim impact statement and the substantial deleterious effect that the commission of these offences had upon her, that was a finding that it was not open to his Honour to make. However, the Crown had conceded during sentencing proceedings for MA before Judge Urquhart that the complainant suffered no substantial injury. In light of that concession and the stance taken before the Judge sentencing the applicant, the limiting term imposed for the kidnapping offence should be assessed as against a maximum penalty of 14 years. 16 The objective seriousness of the offence, derived from a consideration of what the applicant and his co-offender did, was very grave. It is clear that the attack upon the complainant, a child who was herself intellectually disadvantaged, was premeditated and that the two offenders had with them tape in order to bind her for carrying out the sexual assault. From what the applicant said before he attack, it is clear that he was a willing participant and it can be inferred that he accompanied the complainant to the park knowing what was going to occur and with that purpose in mind. The age of the child, the fact that the offence was committed in company, and the threat of physical injury to the complainant were all aggravating circumstances prescribed by s 61J that were present in the circumstances of the offence. Further there were aggravating features found in s 21A(2) of the Crimes (Sentencing Procedure) Act: there was the threatened use of the weapon by MA, the emotional harm to the victim was substantial, and the offence was planned. 17 There was little if any mitigation arising from the nature of the sexual assault in the circumstances of this particular case. It is clear that the offence came to an end because of the arrival of a motor vehicle and not because the applicant and his co-offender had ceased their attack upon the complainant. The applicant was apparently intending to have penile intercourse with the complainant before their criminal enterprise was interrupted. 18 The offence was, considering only the conduct of the applicant and his co-offender, one within the upper seriousness of an offence of its kind. Having regard to the maximum penalty prescribed, 20 years imprisonment, such offending would in the case of an adult without any prior record have warranted a very substantial sentence. This is particularly so having regard to the fact that no discount could be given for a plea of guilty. 19 But of course it was not an adult who committed the offences for which the Judge was to impose limiting terms. The applicant was but 13 years and 9 months at the time of the incident. He was so young that the law did not automatically ascribe criminal responsibility to him. Before the Judge found the offences proved in the special hearing, his Honour had to determine that the presumption against criminal responsibility applying to a child of that age had been rebutted. His Honour found this to be so on the basis that the applicant had known that what he was doing was "not only wrong but seriously wrong". 20 This finding meant that the applicant had to be dealt with under s 23(1) of the MH(CP) Act. It also meant that the applicant, despite his age, had to be dealt with on the basis that he would have been sentenced on conviction after trial for the s 61J offence at law and not under the provisions of Children (Criminal Proceedings) Act (the C(CP) Act): see the definition of "serious children's indictable offence" in s 3 of that Act and note that the circumstances of aggravation alleged in the charge was under s 61J(c) and not s 61J(d). But the finding that the presumption of doli incapax was rebutted did not mean that the applicant was to be sentenced as if he had been an adult or was as criminally responsible as an adult would have been. Nor did it mean that sentencing considerations applicable to an adult were applicable to him. These observations may seem trite but it is important to bear them in mind when considering the approach taken by the Judge in determining the lengths of the limiting terms. 21 Because the applicant was a child at the time of the offending, the principles relating to the exercise of criminal jurisdiction in respect of a child and contained in s 6 of the C(CP) Act applied. Probably the most important aspect of those principles relevant to the present case was the following: (b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance. The other matters referred to in s 6 were of less significance because it was never suggested before the Judge or before this Court that anything other than a limiting term could be imposed upon the applicant. In other words it was not a case where, despite the matters subjective to the applicant, any other sentence than one of a term of imprisonment would have been imposed upon the applicant had he been convicted after trial. 22 But it was not only the age of the applicant and the principles that applied in sentencing a child that needed to be taken into account in the difficult task that confronted his Honour. The evidence was that the applicant was suffering from a mild to moderate intellectual disability. It was because of his mental abnormality that he was found to be unfit to be tried. The applicant had an intellectual age far below his chronological age. Therefore the applicant's criminal responsibility was not only diminished by the vulnerability and immaturity arising from his youth but also by the mental deficiencies from which he suffered and that resulted in a reduced understanding of the criminality of his conduct and its consequences to the victim and himself. 23 It is unnecessary to set out in detail all the evidence led before the Judge as to the mental state of the applicant at the time of the commission of the offence and at the time of sentence. It should be noted, however, that a period of three and a half years had transpired between the date of the offence and the date of the imposition of the limiting terms. The impact of that delay was of considerably more importance in the case of the applicant than it might have been in the case of an adult or even an older youth. The applicant was 13 years 9 months at the date of the commission of the offence but 17 years 5 months at the date when the limiting terms were imposed. This discrepancy added to the difficulty faced by the Judge in determining the appropriate sentence that would have been imposed had the applicant been convicted of the offences. 24 There was a large amount of material before the Judge as to the applicant's mental state at the time of the offences and thereafter. Much of it went to the issue to be resolved by the Judge on the question of whether the evidence rebutted the presumption of doli incapax. There was some material to suggest that the applicant was so disturbed that he was autistic although this diagnosis was not held by all the experts who had reported upon the applicant. It is unnecessary to enter into this controversy as it was largely resolved by his Honour in determining at the conclusion of the special hearing that on the limited evidence available the applicant had committed the offences. But this material does indicate the extent to which the applicant's mental functioning was disturbed at the time of the attack upon the complainant. 25 On 1 May 2000, that is about 5 months before the incident giving rise to the charges, a report was prepared on the applicant by a school counsellor apparently as a result of his bad behaviour at school. The behaviour included the applicant simulating having sex with a photograph and "acting suggestively towards other students". The applicant had prior to this time a history of poor behaviour some of which had resulted in his suspension from high school on occasions. The report noted that the applicant was Arabic and lived at home with his parents and six siblings. The assessment in the report contained the following: It is obvious that [A] experiences difficulty understanding what is appropriate social behaviour with his peers. This has been ongoing for a long time despite numerous interventions. Now in his teens [A's] inappropriate behaviour has extended into sexual showing off in order to gain peer attention. This behaviour is now quite serious as it places both [A] and other students at risk. The report also stated: …….[A's] social problems are compounded by the fact that he has an intellectual disability as well as disordered communication skills. He is currently engaging in at risk behaviour to seek peer attention…………… 26 The applicant's offending for which he was before the court has to be seen in the context of the concerns of the counsellor being expressed about the applicant's behaviour shortly before the offences were committed. It also has to be seen in light of the fact that the applicant's co-offender was a person whom he had come to know a few months earlier and who was about a year older than the applicant. Without in any way seeking to reduce the seriousness of the conduct of the applicant, it seems clear that, as described by the complainant, MA played a more serious part in the attack upon her than did the applicant. This was the conclusion reached by the Judge. Further, MA had committed a serious sexual assault offence upon a complainant in a train some four days before the offence he committed with the applicant. 27 In November 2001, when the applicant was aged 15, a psychologist, Mr Hannan, administered a series of tests to the applicant to measure the applicant's level of cognitive functioning and the level of his intellectual disability. He found that the applicant was within the first percentile for his age on general intellectual abilities. The difference between his chronological age and test age differed depending upon the type of test administered but it ranged between 6 years 8 months below his chronological age on one series of tests to 7 years 4 months on another. 28 In May 2002 a psychiatrist, Dr Hayes, saw the applicant for the purposes of preparing a forensic report. Dr Hayes described the applicant as suffering from "mild to moderate intellectual disability". Dr Hayes reported upon the applicant again in January 2004, by this time the applicant was aged 17 years and 2 months. She expressed the opinion that the applicant's interpersonal relationships were at a level equivalent to that of a 5 year and 8 months child. His personal, domestic and community skills were at a level between 9 years and 11 years and, in terms of his receptive and expressive language, the applicant functioned at the age of 7 years. 29 Dr Hayes reported that the applicant worked six days a week and rarely went out with friends. He had no contact with MA. Dr Hayes concluded that the applicant would probably not re-offend, provided that he was under close supervision in the community from the Department of Juvenile Justice and that he attended a sex offender programme on a regular basis over a period of two years. 30 There was before the Judge a report from an officer with the Department of Juvenile Justice, Mr van Gestel. This report noted the results of psychometric testing upon the applicant and his reduced level of intellectual functioning. It was stated that the applicant's father had suffered poor health for a lengthy period and as a result had minimal involvement with any of his children as a parent, although the applicant and his father had a positive relationship. By the time of this report, 18 February 2004, the applicant was in full time employment as a labourer. 31 Mr van Gestel noted that the applicant had difficulty in understanding and discussing many of the concepts presented to him, in particular in relation to his offending. However, he concluded that the applicant's offending and bad behaviour in the past was due to his "negative peer associations" as well as the applicant's low self esteem. The applicant was found to have little remorse for the offence, but this was largely because the applicant had little reliable memory or understanding of the incident giving rise to the offences. 32 The report suggested that at the time of the offending, the applicant might have had "a limited understanding of what constituted sexually appropriate human relationships, possibly as a result of his limited intellectual functioning and distorted perceptions surrounding his relationship with the victim". However, the applicant had been involved in counselling in relation to his offending and had shown some understanding of what was right and wrong in sexual relationships. The applicant told the officer that he had "learnt to respect girls". However Mr van Gestel considered that "[the applicant's] current lack of offence specific intervention and moderate predisposition to impulsive or antisocial behaviour, combined with his current offences would place him at a moderate risk of re-offending". 33 There was evidence before the Judge as to the availability of sex offender counselling in the community, juvenile detention centres and adult gaols. In respect of the latter, although there were sex offender programmes in gaol, the applicant would not be a suitable candidate because of limited intellectual abilities. 34 The Judge gave written reasons for the imposition of the limiting terms for the two offences. During the course of those reasons he referred to the sentences imposed upon MA by Judge Urquhart: imprisonment for 7 years with a non-parole period of 4 years for the kidnapping offence and 12 years with a non-parole period of 6 years for the s 61J offence and taking into account an offence of supply heroin on a Form 1. However, the Judge noted the lesser criminality displayed by the applicant than by MA. He also observed that the applicant appeared to be more intellectually disadvantaged than his co-offender. The Judge also commented upon the fact that MA, while having no criminal record, had the earlier sexual assault offence. 35 His Honour indicated that he had carefully considered the various reports and opinions expressed in them in relation to the applicant's mental condition. He accepted that the applicant's bad behaviour and these offences had been influenced by his contacts with an undesirable peer group. The Judge noted the assessment made by Mr van Gestel of the moderate risk of the applicant re-offending and expressed the view that "it is imperative that steps be taken to provide [the applicant] with a lengthy period of supervision by a sex offending counsellor within the Juvenile Justice system". 36 The Judge concluded that the applicant's prospects of rehabilitation were good. He noted that it was to his credit that there had been no subsequent offences and that the applicant had remained in employment. 37 The first ground of appeal asserts that his Honour placed too much weight on general deterrence in determining the limiting terms having regard both to the applicant's age and his mental disabilities. Reliance is placed upon the principle that, where an offender suffers from a significant mental disability, less weight may be given to general deterrence; see for example R v Letteri (NSWCCA, unreported, 18 March 1992), R v Engert, above, and R v Israil (2002) NSWCCA 225. In R v Henry (1999) 46 NSWLR 346 at [253]-[254] Wood CJ at CL summarised the principle, its operation and rational as follows: 253 The relevant principle as stated in Letteri by Badgery-Parker J, in a passage adopted by Gleeson CJ in Engert is as follows: "… that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors. In every case it is a matter of balancing the relevant factors in a manner no different from that which is involved in every sentencing exercise." 254 The reason for this approach lies in the circumstance that the community will readily understand that the offender who suffers from a mental disorder or abnormality is less in control of his or her cognitive facilities or emotional restraints, and in some instances lacks the ability to make reasoned or ordered judgments. Almost invariably there is a limited appreciation of the wrongfulness of the act, or of its moral culpability, which although falling short of avoiding criminal responsibility does justify special consideration upon sentencing. Moreover, such a condition is inherent and its presence does not depend upon any element of choice. 38 It is unnecessary to further review the authorities that have considered the relevance of general deterrence when sentencing mentally disordered or disabled offenders. There can be little doubt that, in light of the uncontradicted evidence as to the applicant's mental deficiencies and the impact of them upon his offending, a highly significant matter was the relevance of his mental condition to the length of the limiting terms in at least three ways: firstly as to an assessment of the culpability of the applicant, secondly, as to the importance of general deterrence, and thirdly as to the likelihood of the applicant re-offending. 39 It is obvious that the Judge was well aware of the material relating to the applicant's mental state both at the time of offending and at the date of the imposition of the limiting terms. As I have already indicated, the sole issue at the special hearing was whether the presumption of doli incapax had been rebutted and that issue depended upon an assessment of the applicant's mental condition at the time of the offending. His Honour made particular reference to the evidence of Mr van Gestel that was chiefly concerned with an assessment of the applicant's mental state and its impact upon his past and future conduct. 40 His Honour's reasons for imposing the limiting terms reveal that he had in mind the applicant's mental state both on the issue of his criminal responsibility for the offending and on the question of his likelihood of re-offending. But nowhere does his Honour refer explicitly to the consideration of its impact upon general deterrence. 41 This Court ought not readily to assume that a senior judge experienced in the criminal jurisdiction would overlook a well-known sentencing principle simply because no specific reference has been made to that principle when passing sentence. Much of course will depend upon whether the sentencing remarks or reasons were given ex tempore and the significance of the principle to the specific sentencing task before the court. In the present case the reasons for the imposition of the limiting terms were handed down in written form. The issue of general deterrence was referred to by his Honour but not in the context of the applicant's mental disabilities. Yet the relevance of general deterrence was an important consideration both because of the nature of the applicant's offence on the one hand and because of the applicant's age and mental disabilities on the other. The mental disabilities of the offender were so substantial and the issue of general deterrence so significant, that it would be expected that some reference would be made to the impact of the former on the latter if his Honour had paid regard to the interaction of the two. 42 There is little reference to sentencing principles in his Honour's reasons. I am not being critical by making that observation because it is unnecessary for a sentencing judge in general, or for his Honour in particular, to write a treatise on sentencing when passing sentence on a particular offender. But his Honour did specifically mention the approach to be taken to sentencing children who have committed serious crimes in the following passage: When dealing with children regard must be had to various provisions which stress the question of rehabilitation as having a greater role than general deterrence. Judge Urquhart in referring to this consideration stated, "But it is also to be noted as was said by the then Chief Judge at Common Law in R v Bus CCA 3/11/95 'Rehabilitation plays a more significant role and general deterrence a lesser role. That principle however is subject to the qualification that where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity, the function of the Courts to protect the community requires deterrence and retribution to remain significant elements in sentencing him'". 43 It can be accepted from this passage of the reasons given by the Judge that he applied the qualification to the principle that is referred to in the passage quoted from the decision in Bus. Therefore, it should be assumed that, notwithstanding the age of the applicant and the importance of his rehabilitation, the Judge determined that deterrence and retribution remained as significant elements in sentencing him. Of course the passage quoted from Bus says nothing about the relevance of the applicant's mental disabilities on the issue of general deterrence. 44 I will return to consider Bus shortly but for the purposes of the present ground of appeal it seems clear that his Honour had no regard to that authority other than in respect of the passage quoted by him from the remarks of Judge Urquhart and in respect only on the issue of the significance of general deterrence having regard to the applicant's age. There is nothing in the reasons given by the Judge to suggest that he gave any consideration to the issue of the relevance of the applicant's mental condition to the issue of general deterrence. Rather it can be inferred from the reference to the passage in Bus that his Honour must have given significant weight to general deterrence because of the nature of the offence committed by the applicant and notwithstanding his prospects of rehabilitation. 45 The Crown contends, rightly, that the question of weight to be given to the mental disability of the applicant on the issue of general deterrence was a matter for the discretion of the sentencing judge and, relying upon the passage quoted from Engert at the start of this judgment, noted the complexity of the task confronting his Honour. But the complaint here is that his Honour never properly fulfilled that task not simply because he did not mention a matter of significance in the sentencing of the applicant but rather because he considered the question of general deterrence from only one aspect, being the nature of the offending committed by the applicant. 46 The considerations that apply in determining the significance to be given to general deterrence when sentencing a child are not the same as those which apply when sentencing a person who suffers from a mental abnormality. In the former case the issue is one of weighing the need for general deterrence as against the need to promote the rehabilitation of the child. In the latter case the issue is whether the offender is a suitable subject for general deterrence and, if so, to what degree having regard to the severity of the mental abnormality and its connection with the offence committed. I do not believe that the weight to be given to general deterrence in dealing with a child suffering from a mental disability can be determined simply on the basis of applying only the relevant considerations applicable to a child or only the relevant considerations applicable to a person suffering from a mental disability. Yet this appears to be what his Honour has done by referring only to the passage in Bus quoted above and in the context of considering the relevant principles to be applied when sentencing a child. 47 I note in passing that there were two appellants before this Court in Bus. One was a young adult and the other a youth. The adult had a limited intellectual capacity. Although the judgment of the Court contains statements of principle in relation to both the sentencing of a person with mental disabilities and the sentencing of a youth approaching adulthood, the statements were made in respect of two different offenders. 48 The Crown argued that the Judge's finding on the issue of doli incapax meant that little weight would be given to the applicant's mental disability on the issue of general deterrence. Reliance was placed upon the fact that his Honour found that the applicant knew that his conduct was "seriously wrong" in light of the following statement of the law in R v Wright (1997) 93 A Crim R 48 at 50: It is an accepted principle of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. In most of the cases in which that principle is applied, the offender has suffered from a significant mental illness or retardation, but such a condition is not a necessary condition for the principle to be applied. Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great. 49 Had his Honour referred to the issue of the relevance of the applicant's mental disability to the question of general deterrence and, having relied upon what was said in this passage, held that little moderation of general deterrence should be given, there may have been no error asserted or at least the error asserted in such a case would not be a failure to consider the issue at all. I am not prepared to assume that his Honour silently took into account the relevance of the applicant's mental disability on the issue of general deterrence in the present case where the Judge referred specifically to the issue of general deterrence but only in the context of the approach to be adopted to sentencing the applicant because of his age. 50 In any case the statement in Wright, quoted above, is not so simply applied in the present case and it cannot be assumed that, had his Honour considered the relevance of the applicant's mental condition to the question of general deterrence, he would have given little or no moderation to that element in determining the appropriate limiting terms. As I have already indicated, I do not believe that the issue of general deterrence can be determined by reference to either the age of the applicant or his mental disabilities alone or independently. The real issue was the significance to be given to general deterrence when sentencing the applicant almost three and half years after the offence and in light of the seriousness of the applicant's offending and his criminal responsibility on the one hand, and his age and mental disabilities on the other. The determination of that issue was no easy task and minds might legitimately differ as to its resolution. But the issue was not appropriately resolved by simply referring to the quote from Bus set out in the reasons set out above. 51 I would uphold this ground of appeal and move on to consider whether any lesser limiting term was warranted but the parties have addressed a further issue under this ground of appeal being whether his Honour was right to apply the statement from Bus in any event having regard to the age of the applicant at the time of offending. 52 In Bus the relevant offender was aged 17 years and 3 months. I find it difficult to believe that the statement referred to by the Judge from that decision was intended to apply to every youthful offender regardless of his or her age. I have some problem with the notion that a 13 year old child can ever appropriately be regarded as "acting as an adult" unless that statement refers only to the conduct of the child viewed objectively, in which case it is meaningless. I simply do not understand how one can rationally and logically equate the conduct of a young child with that of an adult for any purpose let alone that of imposing a criminal sanction. But if one considers both the quote from Bus in context and other cases where the same consideration has been applied in sentencing a young person, it seems clear that this approach is being adopted in cases where the offender was of an age and maturity that he or she could truly be considered to be acting as an adult, albeit a youthful and possibly immature one. 53 The full passage from Bus to which Judge Urquhart referred and that was adopted by the Judge in the present matters is as follows (my emphasis): ……..it is obvious that the relevance of the principles stated in s 6 [of the C(CP) Act] to each individual case depends to a very large extent upon the age of the particular offender and the nature of the particular offence committed . An offender almost eighteen years of age cannot expect to be treated according to law substantially differently to an offender just over eighteen years of age. In both cases, the youth of the offender remains very relevant. Rehabilitation plays a more important role and general deterrence a lesser role. But that principle is subject to the qualification that, where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity, the function of the courts to protect the community requires deterrence and retribution to remain significant elements in sentencing him. That qualification does apply in the present case, although perhaps not to the extent that it would have in relation to an offence involving greater physical violence. Of course, non-consensual sexual intercourse is regarded as an extreme form of violence………. 54 In other cases where a similar approach has been adopted the offender was over or close to 16 years of age. One of the most frequently cited decisions stating this approach is R v Pham and Lye (1991) 55 A Crim R 129 where the relevant offender was aged 17 years and 8 months. In that case Lee J said at 135 (my emphasis): It is true that courts must refrain from sending young persons to prison, unless that course is necessary, but the gravity of the crime and the fact that it is a crime of violence frequently committed by persons even in their teens must be kept steadfastly in mind otherwise the protective aspect of the criminal court's function will cease to operate. In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes…….. 55 In R v WKR (1993) 32 NSWLR 447, Sully J stated: If in a particular case, a crime has been committed and it is a crime which is, in its nature and incidents, an adult crime rather than a crime which can be conceptualised sensibly as deriving from the offender's ".....state of dependency and immaturity…" then that factor is, in my opinion, strong warrant for the exercise of the relevant discretion in favour of dealing with the offender according to law. The graver the crime the greater the warrant: cf, albeit outside the context of the [Children (Criminal Proceedings) Act, R v Allam : unreported, CCA 13 April 1993, per Hunt CJ at CL at 4.8 In order to fix a fair and objective view of the true level of personal responsibility of a particular offender, it will be appropriate to consider, as well, whether the nature and incidents of the crime, and the personal circumstances otherwise of the offender, are such that the offender should be allowed to shelter behind the accident of age so as to have the quite extraordinary advantages, in terms of penalty, that flow from the application of Division 4 of Pt3 of the [Children (Criminal Proceedings) Act]. 56 A more recent example of this approach being adopted in sentencing young persons for serious crimes is to be found in R v AEM [2002] NSWCCA 58, where the two youngest offenders were aged 16 years and 10 months and 16 years and 3 months at the time of the offending. There the Court said at [97], before quoting the above passage from Pham and Lye: It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation: see R v DAR (unreported, New South Wales Court of Criminal Appeal, 2 October 1997); R v Mazzilli [2001] NSWCA 117. However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society. 57 It is obvious that chronological age cannot be the determining factor in deciding how much weight should be attributed to general deterrence and I do not believe that the cases espousing the approach adopted in Bus consider either the age or the acts of the offender in isolation without having regard to the mental state and circumstances of the offender at the time of the offending. In cases where this approach has been adopted for sentencing younger offenders there is nothing about the offending or the offender, other than age, that makes it inappropriate to treat the offender as if he or she were an adult. For example, in AEM there was nothing to suggest that the two juvenile offenders did not appreciate the nature and extent of their criminal activities or had any other relevant subjective circumstance that might have significantly diminished their criminal responsibility for their acts except their youth and accompanying immaturity. KEM the eldest of the youths was described as being "socially and emotionally immature" and MM as a "confused young person who is heavily influenced by peer pressure". But both offenders were to be sentenced on the basis that they engaged in the serious sexual assaults for the purpose of their own sexual gratification. 58 The recent decision of this Court in R v AD [2005] NSWCCA 258 is an example of an offence under s 61J committed by a 15 year old youth in circumstances where the offending warranted a severe sentence, notwithstanding the youth of the offender, because the applicant acted as an adult in the commission of a serious offence. The sexual assault was committed in order to humiliate and degrade the complainant and arose from the offender's attitude to females who were not of his religious faith. This Court held that it was appropriate for the sentencing judge to give less weight to the applicant's "immaturity and his intellectual deficits" because they had little role to play in the commission of the offence or in the likelihood of the offender's rehabilitation. 59 None of the cases to which the Court has been referred by either the applicant or the Crown adopt the approach identified by the passage quoted in Bus to a child as young as the applicant was at the time of the offending. There may possibly be a case where, notwithstanding the very young age of the offender, the crime is so extremely serious that denunciation and retribution have to be the focus of a proper exercise of the sentencing discretion, but that will be a rare and exceptional situation with a child as young as the applicant. In any event, that was not this case. It is clear from the facts found by his Honour and the uncontested material from the expert witnesses that the applicant's intellectual functioning was well below his chronological age and that his offending was a direct result of his mental deficiencies and retarded development. 60 It is in this regard that the report of the counsellor in May 2000 is of particular relevance. As I have already noted, only a few months before the offending there was concern expressed that the applicant was behaving sexually inappropriately in order to gain peer attention and that he may be a risk to himself or others in this regard. His conduct was of a particularly immature kind. This concern arising so shortly before the offences indicates that the offending may be of a similar character notwithstanding its seriousness. The applicant's conduct before and during the commission of the offences before the court confirms that the offending had its genesis in his disturbed and immature response to peer pressure, specifically coming from his older co-offender in the case of the offending behaviour, rather than being motivated by lust or a desire to humiliate the complainant. The statements he made shortly before the offending as to his intentions of assaulting the complainant can be seen as part of the "sexual showing off" referred to the in the report and lose much of the significance they might otherwise have been given in assessing the seriousness of his conduct. 61 Having regard to all the material before the Judge, it is clear beyond argument, in my view, that the applicant could not be regarded as "acting as an adult" in committing the offences and the approach specified in Bus had no application in the determination of the limiting terms. In my opinion, by reason of the age of the applicant and his mental deficiencies, general deterrence had no role to play in determining the limiting terms to be imposed upon the applicant and his Honour's discretion miscarried. In the present case the various factors and considerations to which reference was made in Engert seem to me to point in only one direction; that the limiting terms, while reflecting the seriousness of the offending, should look principally to the rehabilitation of the applicant. In this particular case the absence of general deterrence was not countered by the need to impose periods aimed at achieving personal deterrence or the protection of the public from the applicant. 62 Because I have come to the view that his Honour erred in his approach to the determination of the limiting terms, it is unnecessary for me to consider whether the limiting terms were also manifestly excessive. But I have no doubt that they were and to a marked degree. In particular, the limiting terms seem to me to reflect that inadequate or no weight was given to the delay between the offending and the determination of the limiting terms. It was submitted on behalf of the applicant that the court should assume that the delay caused the applicant stress, interfered with his rehabilitation and left the applicant in a degree of uncertainty as to his future. Mr van Gestel reported that the applicant had expressed a wish that the court proceedings would come to an end and that he "just wants to be sentenced". 63 In my opinion there was more significance simply in the fact that the applicant had matured during the lengthy period of delay. Throughout the period from 22 August 2000 until the determination of the limiting terms the applicant was on bail. There was no offending throughout that period and he remained in employment after he left school. The report of Mr van Gestel revealed that the applicant had insight, in a general way, into his earlier misbehaviour and he no longer sought any contact with the persons with whom he associated in his school days. He spent his time either at work or staying home. Therefore, over the period of delay the applicant went from a child of 13 years 9 months, who was repeatedly in trouble for his immature behaviour aimed at obtaining peer approval, to a young man of 17 years who was behaving as a responsible member of the community while holding down steady employment. Although his maturity over that period of time was hampered by his mental deficiencies, the simple fact is that there was a marked difference between the child who committed the offences and the young man who was to be subject to the limiting terms. 64 There was in my view insufficient evidence to suggest that the applicant was a risk to the community such that preventative detention was an appropriate matter to be taken into account and the Judge determined that the applicant's prospects of rehabilitation were good. While the limiting terms had to reflect denunciation of the applicant's conduct and a significant element of retribution for his crimes and their effect upon the victim, those factors had to be tempered by the obvious need to assist the applicant in his complete rehabilitation and with a humane regard to the difference between the applicant at the time of the offending and at the date the limiting terms were imposed. This was a case where considerably more than lip service had to be paid to the principle in s 6(b) of the C(CP) Act set out earlier in this judgment. Notwithstanding the applicant's increased maturity over the period of time since the offending, he was clearly a person still in need of guidance and assistance within the terms of that section. 65 Ms Burgess who appeared for the applicant asked the Court to take into account that the applicant may not be released before the expiration of the limiting term. The prospect, or lack of prospect, of release of a person subject to a limiting term was considered in R v Mailes [2004] NSWCCA 394 and it was held to be an irrelevant matter in determining the appropriate term. It was submitted that the present case could be distinguished because the applicant might have to be placed in an adult prison after he turned 21 years if not released before hand and, therefore, the lack of prospects for release might be a matter that affected the nature of his custody. The Court knows nothing about the arrangements made in respect of a person serving a limiting term who was a child at the time of the commission of the offence as to either the prospect of release prior to the expiration of the term or where the period of the limiting term would be served. I do not believe that a court should be concerned with, what is in effect, an administrative decision when determining the period of the limiting term. A sentencing court does not normally take into account administrative arrangements that may or may not occur during the course of the serving of a sentence. In any event there is no certainty that the applicant would be removed to a prison even after his 21st birthday. Provisions of the Children (Criminal Proceedings) Act dealing with where a juvenile offender will serve a sentence of imprisonment seem not to have any direct application to a person serving a limiting term. 66 The Court was referred to a number of decisions of this Court concerning serious sexual assaults committed by young persons and the statistics held by the Judicial Commission. They offer little assistance in view of the unusual aspects of this particular case revealed by the serious nature of the offending on the one hand and the applicant's subjective features on the other. The limiting term that I intend to propose fits comfortably with earlier decisions of this Court and the statistical information that is available. 67 In case it was necessary to redetermine the limiting terms the Court received an affidavit updating the applicant's custodial history without objection by the Crown. The most recent reports however are dated in July 2004. A report from the unit manager of the detention centre where the applicant was housed reported that the applicant regularly attends school and counselling programmes. His behaviour is generally good although he was involved in some aggressive behaviour with other detainees and he is still "susceptible to negative influence by some of his peers". He was, however, classified in October 2004 from a high risk to a medium risk detainee. The Court also received a folder of certificates obtained by the applicant as a result of his attendance at various courses in the detention centre and with TAFE and a testimonial from a Chaplain with the Department of Juvenile Justice. 68 I propose that the application for leave to appeal be allowed and the limiting terms imposed by Judge McGuire be quashed. I propose that the following limiting terms be imposed in lieu: (a) In respect of the offence under s 90A, a limiting term of 3 years; (b) In respect of the offence under s 61J, a limiting term of 4 years 6 months. Both limiting terms are to date from 29 April 2004. 69 ROTHMAN J: I agree with Howie J. 70 THE COURT: Since judgment was delivered in this matter it has been brought to the Court's attention that, in compliance with s 24(1) of the Mental Health (Criminal Procedure) Act 1990 and because the Court was imposing fresh limiting terms upon the applicant, the Court ought to have made an order referring the applicant to the Mental Health Review Tribunal. The Court has been asked by the parties to correct the orders made on 6 July 2005 under s 43 of the Crimes (Sentencing Procedure) Act 1999 by making such an order. Therefore, the Court makes the following additional order: Pursuant to s 24(1) of the Mental Health (Criminal Procedure) Act 1990 the applicant is referred to the Mental Health Review Tribunal. ********** 13/09/2005 - Additional paragraph added. - Paragraph(s) para 70. 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