RS v R [2013] NSWCCA 227

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: RS v R [2013] NSWCCA 227 Hearing dates: 9 September 2013 Decision date: 09 October 2013 Before: Beazley P at [1] McCallum J at [2] Schmidt J at [5] Decision: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The limiting terms imposed by Sides DCJ on 8 February 2013 are quashed. 4. In lieu thereof, the following limiting terms are imposed: (i) On counts 1, 3 and 5 limiting terms of one month, to commence on 18 October 2011 expiring 17 November 2011. (ii) On count 2 a limiting term of 8 months to commence on 18 October 2011 expiring 17 June 2012. (iii) On count 4 a limiting term of 8 months to commence on 18 December 2011 expiring 17 August 2012. (iv) On count 6 a limiting term of 8 months to commence on 18 February 2012 expiring 17 October 2012. (v) On count 10 a limiting term of 5 months to commence on 18 February 2012 expiring 17 November 2012. (vi) On count 11 a limiting term of 8 months to commence on 18 July 2012 expiring 17 March 2013. (vii) On count 8 and 9 limiting terms of 14 months to commence on 18 August 2012 expiring 17 October 2013. Catchwords: CRIMINAL LAW - appeal - appeal against sentence - sexual assault - intellectual disability - whether there was failure to take into account s 23(6) of the Mental Health Forensic Provisions Act 1990 - not established - whether error in finding that offender engaged in simulated intercourse - not established - failure to make allowance for applicant's good character - not established - failure to take account that the applicant was not fully aware of his actions, because of his mental disability (s 21A(3)(j) of the Crimes (Sentencing Procedure) Act 1999 - not established - wrongly imposing a longer sentence based on protection of the community - not established - whether limiting terms imposed were unusually harsh and severe - established - re-sentencing Legislation Cited: Crimes Act 1900 Mental Health (Criminal Procedure) Act 2005 (repealed) Crimes (Sentencing Procedure) Act 1999 Mental Health (Forensic Provisions) Act 1990 Mental Health Legislation Amendment (Forensic Provisions) Act 2008 (repealed) Cases Cited: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Dousha v R [2008] NSWCCA 263 Muldrock v R [2011] HCA 39; (2011) 244 CLR 120 Essex v R [2013] NSWCCA 11 Pearce v The Queen [1988] HCA 57; (1998) 194 CLR 610 R v ABS [2005] NSWCCA 255 R v AN [2005] NSWCA 239 R v Engert (1995) 84 A Crim R 67 R v Mailes [2004] NSWCCA 394; (2004) 150 A Crim R 365 R v Mitchell [1999] NSWCCA 120; (1999) 108 A Crim R 85 R v PGM [2008] NSWCCA 172 ; (2008) 187 A Crim R 152 Regina v RTI [2005] NSWCCA 337 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 Category: Principal judgment Parties: RS (Applicant) Regina (Crown) Representation: Counsel: Mr M Ramage QC (Applicant) Ms V Lydiard (Crown) Solicitors: Jeffreys Lawyers (Applicant) S Kavanagh, solicitor for Public Prosecutions (Crown) File Number(s): 2011/110195 2011/167849 Publication restriction: None Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-02-08 00:00:00 Before: Sides QC DCJ File Number(s): 2011/110195 2011/167849