New South Wales Court of Criminal Appeal CITATION: Bhuiyan v R [2009] NSWCCA 221 HEARING DATE(S): 5 August 2009 JUDGMENT DATE: 2 September 2009 JUDGMENT OF: McClellan CJatCL at 1; Howie J at 32; McCallum J at 33 DECISION: Leave to appeal granted but appeal dismissed. CATCHWORDS: CRIMINAL LAW - appeal - severity of limiting term - weight given to general deterrence and mental disorder in determining the limiting term - special circumstances Mental Health (Criminal Procedure) Act 1990 now known as the Mental Health (Forensic Provisions) Act 1990 LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment R v Engert (1995) 84 A Crim R 67 CASES CITED : R v Hemsley [2004] NSWCCA 228 R v Way (2004) 68 NSWLR 168 PARTIES: Ashadulhoque Bhuiyan (applicant) The Crown FILE NUMBER(S): CCA 15324/07 COUNSEL: H Cox (applicant) N Noman (Crown) SOLICITORS: The People's Solicitor Pty Ltd (applicant) Director of Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/11/0525 LOWER COURT JUDICIAL OFFICER: Finnane DCJ LOWER COURT DATE OF DECISION: 11 April 2008 IN THE COURT OF CRIMINAL APPEAL 15324/07 McCLELLAN CJ at CL HOWIE J McCALLUM J WEDNESDAY 2 SEPTEMBER 2009 BHUIYAN, Ashadulhoque v R Judgment 1 McCLELLAN CJ at CL: The applicant seeks leave to appeal against the severity of a limiting term imposed upon him pursuant to the provisions of s 23(1)(b) of the Mental Health (Criminal Procedure) Act 1990, now known as the Mental Health (Forensic Provisions) Act 1990. 2 A special hearing was conducted before a judge and jury on an indictment containing three counts relating to an incident which occurred on 25 August 2005. The counts were as follows: Count 1 sexual intercourse without consent (penile/vaginal) being an offence contrary to s 61 I of the Crimes Act 1900 for which the maximum penalty is 14 years with a standard non-parole period of 7 years. Count 2 attempt sexual intercourse without consent. Count 3 aggravated sexual intercourse without consent (fellatio) contrary to s 61J of the Crimes Act for which the maximum penalty is a period of 20 years imprisonment with a standard non-parole period of 10 years. 3 A jury determined that the applicant had committed the offences charged in counts 1 and 3. A verdict of acquittal was directed in relation to count 2. The facts 4 The relevant facts can be shortly stated. The applicant was heavily intoxicated. He approached his victim, who was working as a prostitute, and negotiated a fee for her services. The victim accompanied the applicant to his home where she was paid. She put the money in her sock. The applicant had locked the door of the room from the inside and both parties then took their clothes off. The complainant put a condom on the applicant which he removed and then insisted, despite her protests, on having unprotected penile/vaginal intercourse with her. He then produced a knife and had unprotected oral sex with her. It was accepted that the victim submitted to oral sex because she was afraid that the applicant would use the knife on her. 5 The victim was able to escape, open the door to the residence and run out down the street naked except for her socks. She met a stranger who took her into his residence, calmed her down and called the police. 6 Although the applicant was arrested shortly thereafter the police were unable to interview him for a number of hours due to his state of intoxication. The personal circumstances of the applicant 7 Medical reports from Dr Shavtay Misrachi and Dr Louise Newman, psychiatrists, were placed before the court. There was also evidence from the applicant's solicitor and from Dr Alex Wodak, physician, the Director of Alcohol and Drug Services at St Vincent's Hospital. There were further reports from Dr Olaf Nielssen and Dr Allnutt, who have significant experience with psychiatric patients who come into conflict with the criminal law. The evidence disclosed that the applicant suffers from a significant psychiatric illness. He has suffered many hardships. 8 The applicant was born on 6 December 1971 in Dhaka in Bangladesh to a comfortably off middle class family. He was the youngest of five children and had a trouble free childhood. His father was an executive engineer and his mother a medical practitioner. The family are devout Muslims. 9 The applicant attended an exclusive primary and secondary school where he performed well. He acquired an arts degree but became involved in political activities in Bangladesh. As a result he was imprisoned in 1991. This brought shame upon the family who did not take steps to obtain his release. There is evidence that during his period in prison he was tortured. When the family found out from a mutual friend that the applicant was homosexual he was rejected. His family refused to help him financially. Fearing further persecution and torture in Bangladesh the applicant fled to Australia. 10 Shortly after his arrival in this country the applicant consulted Mr David Bitel an immigration lawyer. Apart from their professional relationship they became friends. Mr Bitel assisted the applicant with his application to the Department of Immigration and before the Refugee Review Tribunal. Mr Bitel gave evidence of the deprivations which the applicant suffered on coming to Australia including his incapacity to work. Ultimately the applicant resorted to male prostitution to survive. His mental health deteriorated. He increasingly abused alcohol and developed psychiatric problems. He became dependent on Mr Bitel for support. Shortly after the applicant's arrival in Australia his longstanding friend and partner, another Bangladeshi, was murdered in Kings Cross. The applicant himself has been assaulted because of his homosexuality. 11 The applicant first made an application for refugee status in 1996. That application was refused and according to Mr Bitel the applicant suffered what he, as a layman, described as a "nervous breakdown". There was an appeal to the Federal Court which succeeded and the matter was remitted to the Refugee Review Tribunal which, although the sitting member suggested that an approval may be appropriate, ultimately refused his application. 12 A second appeal was lodged to the Federal Court which again succeeded and the matter was remitted to the Refugee Review Tribunal. In May 2005 the Tribunal found that the applicant was a person to whom Australia owed protection obligations under the Refugees' Convention and qualified for a protection visa. He was granted permission to work only in August 2005. His application for a permanent protection visa was approved in September 2007. 13 Although not diagnosed until late July 2005 the applicant had progressively developed a psychotic illness and a serious alcohol problem. He had been unable to obtain work legally or to be in receipt of any social security payments. He had no means of support and as a consequence committed various offences typical of a person in his circumstances. 14 The applicant commenced drinking alcohol and taking illegal drugs soon after he arrived in Australia. He reported to Dr Nielssen that he had developed a habit of drinking up to twenty standard drinks per night. He commenced taking amphetamines and ecstasy. 15 The applicant was seen by Dr Misrachi in July 2005 at which time he reported hearing voices. Dr Misrachi formed the view that the applicant was suffering from a severe psychiatric disorder, probably a gradual onset of schizophrenia of the paranoid type. Dr Misrachi prescribed anti-psychotic medication. Dr Misrachi was of the opinion that the applicant was suffering from post-traumatic stress disorder, alcohol dependency, poly substance abuse and a personality disorder with narcissistic and border-line personality traits. In August 2005 the applicant was admitted to the St John of God hospital in Burwood to undertake an intensive rehabilitation program. However within a short time he left the premises and consumed alcohol which resulted in his immediate discharge. 16 In about September 2005 the applicant, who had been arrested on other matters, was released on bail to the Bridge Program from which he was discharged in October 2005 because it was considered that his psychiatric difficulties made him unsuitable for the program. He commenced working with Mr Bitel's firm but over time his psychiatric condition deteriorated. He was admitted to the Prince of Wales mental health unit on at least five occasions. He was drinking heavily and was only partially compliant with his medications. By January 2007 Dr Misrachi concluded that he was clearly psychotic with persecutory delusions. He was admitted to Mosman Private Hospital where he commenced on fortnightly injections of anti-psychotic mediation together with oral medications. 17 By 22 October 2008 Dr Misrachi noted a significant improvement in the applicant's mental state. He had significantly reduced his alcohol intake and had maintained his oral medications as well. 18 The applicant was diagnosed by Dr Misrachi as suffering from schizophrenia, post traumatic stress disorder with the subsequent development of a panic disorder. Dr Nielssen diagnosed him as having a psychotic illness, probably schizophrenia, and probably post traumatic stress disorder and alcohol dependence and abuse. Dr Allnutt took the view that the applicant suffered from a chronic psychotic disorder, possibly schizoaffective disorder or schizophrenia. Criminal antecedents 19 The applicant has been convicted of larceny on two occasions, one account of break and enter, one count of goods in custody, one of use false instrument and three counts of possess a prohibited drug. He has also been convicted of refusing a breath analysis and driving without a licence. On his first appearance before an Australian court he was sentenced to a fixed term of two months. All other matters were dealt with by way of non-custodial alternatives. Grounds of appeal Ground 1 His Honour placed too great a weight on general deterrence in determining the limiting term. Ground 2 His Honour failed to properly take into account the applicant's mental disorder in determining the limiting term. Ground 3 His Honour erred in finding special circumstances. Ground 4 His Honour failed to refer to s 21A Crimes (Sentencing Procedure) Act 1999 Grounds 1 and 2 20 It is convenient to deal with grounds 1 and 2 together. The applicant submitted that the sentencing judge failed to articulate the extent to which he had regard to the principles relating to the sentencing of mentally ill persons defined by this Court in R v Hemsley [2004] NSWCCA 228 at [33]-[36]. It was submitted that in accordance with those principles his Honour should have imposed a considerably less severe sentence particularly having regard to the fact that the applicant's significant mental disorder had only been appreciated and diagnosed a few weeks prior to the commission of the offences. It was submitted that the applicant's mental disorder was such as to impact upon his ability to reason and make appropriate judgments at the time of the commission of the offence making the applicant an inappropriate vehicle for general deterrence. It was submitted that a custodial sentence would, by reason of his mental illness, weigh more heavily upon him. 21 There was considerable evidence tendered to the sentencing judge describing the applicant's psychiatric condition. I have already referred to it. The sentencing judge was plainly conscious of the nature of the task required of a judge when sentencing a mentally ill person. He referred to the principles identified in Hemsley and cited from the judgment at [33]-[36]. The relevant passages from Hemsley are as follows: "Mental illness may be relevant – and was relevant in the present case – in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] 1 VR 398 at 400; Lauritsen (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43]. Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42]. Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26]. A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence; Israil at [24]. " 22 The sentencing judge indicated that he was conscious of the fact that if he was imposing a sentence, as compared with a limiting term, he would have been required to take these principles into account. His Honour acted in accordance with s 23(1)(b) of the Mental Health (Forensic Provisions) Act 1990 which provides for the sentencing judge to determine a limiting term that best accords with what otherwise would have been an appropriate sentence. His Honour expressly recognised that he was required to sentence the applicant upon the assumption that he was an offender who was not fit for trial but suffering from a mental illness which did not excuse the offence. Although his Honour did not expressly refer to the individual principles there is nothing that would suggest that having identified them he ignored them when determining the appropriate sentence. I reject grounds 1 and 2 of the appeal. Ground 3 23 Although his Honour was not required to determine a non-parole period he made a finding of special circumstances. That finding was based on the fact that this would be the first time the applicant was in custody and because he is alcoholic, mentally ill and has shown an interest in rehabilitating himself. 24 Consideration of whether there are special circumstances is relevant only when an offender is being sentenced pursuant to the Crimes (Sentencing Procedure) Act 1999 and not when fixing a limiting term pursuant to s 23 of the Mental Health (Forensic Provisions) Act 1990. Special circumstances may justify a variation in the statutory relationship between the non-parole period and the period on parole. Although there was no purpose to his Honour's finding it confirms the fact that his Honour was mindful that this would be the first time the applicant would be in custody, that he is an alcoholic and mentally ill and confirms that there are prospects for his rehabilitation. All of these matters are relevant to the length of the limiting term which his Honour imposed. Ground 4 25 The applicant's counsel referred to various matters identified in s 21A of the Crimes (Sentencing Procedure) Act 1999 in respect of which it was asserted his Honour had made no express reference. The matters referred to were s 21A(3)(b) – not planned; s 21A(3)(e) - no significant record of previous convictions; s 21A(3)(h) - good prospect of rehabilitation; s 21A(3)(g) - unlikely to re-offend; and s 21A(3)(j) not fully aware of the consequences of his actions because of a disability. 26 Although his Honour's remarks were brief and did not discuss the relevant issues in any identifiable sequence I am satisfied that he gave consideration to each of the matters raised by the applicant. His Honour referred to and discussed matters relevant to the applicant's rehabilitation. He also referred to the applicant's record and, when considering the circumstances of the offences, described the intoxicated state of the applicant and the impulsive nature of his actions. The context of the hearing inevitably meant that his Honour gave consideration to the applicant's mental illness. Although described as a finding of special circumstances the disabilities of the applicant's alcoholism and mental illness were expressly recognised by the sentencing judge. I do not consider that his Honour sentenced otherwise than in accordance with the principles relating to mental illness discussed in R v Way (2004) 68 NSWLR 168. His Honour expressly recognised that when considering the objective seriousness of the offence his Honour was engaged in an exercise of determining the limiting term by reference to the head sentence which would have been imposed on an offender who was fit for trial but suffering from a mental illness which did not excuse the offence. Ground 5 27 The maximum penalty for the first count was 14 years imprisonment with a standard non-parole period of 7 years. The third count carries a maximum penalty of 20 years imprisonment with a standard non-parole period of 10 years. The trial judge found that the offences fell below the middle range of objective seriousness and accordingly if he were sentencing the applicant to imprisonment he would have provided a non-parole period less than the standard. His Honour imposed a limiting period, which may be equated with the full term of any sentence, which was 80% of the standard non-parole period for count 3. His Honour provided that the limiting term for count 1 should run concurrently with the limiting term for count 3. 28 Although the sentencing judge found the offence to be lower than mid range it was a serious offence. The circumstance of aggravation was the threatening of the victim with a knife. Both offences involved unprotected sexual intercourse. 29 Although the applicant had compelling subjective circumstances the period which he will ultimately spend in custody will be defined by the Mental Health Review Tribunal. Either by consideration of the penalty imposed for count 3 alone, but after recognising that count 1 was also committed, a total term of imprisonment of 8 years was not excessive. It would equate to a non-parole period of the order of 5 years which, notwithstanding the subjective features of the applicant, may have been considered lenient. 30 In R v Engert (1995) 84 A Crim R 67 Gleeson CJ recognised the difficulties faced by a court when sentencing persons with mental disorders. Those difficulties are compounded when a person is found not fit to be tried but, applying conventional principles a court is required to determine a limiting term. It is necessary to keep steadfastly in mind that although in most cases the serious mental illness will have deprived an offender of their usual capacity for reason and control it must not be allowed to overwhelm appropriate consideration of the circumstances of the offence and the other subjective features of the offender. The particular difficulties faced by an offender which may have contributed to the offence will be addressed by the Mental Health Review Tribunal which in appropriate circumstances may release the offender before the limiting term has expired. 31 Although leave to appeal should be granted in my opinion the appeal should be dismissed. 32 HOWIE J: I agree with McClellan CJ at CL. 33 McCALLUM J: I agree with McClellan CJ at CL. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.