R v John Paul Lane [2017] NSWDC 116

District Court New South Wales

Medium Neutral Citation: R v John Paul Lane [2017] NSWDC 116 Hearing dates: 6 April 2017 Decision date: 15 June 2017 Jurisdiction: Criminal Before: Mahony SC DCJ Decision: Limiting terms imposed. For orders see [56] Catchwords: Special hearing; Limiting terms pursuant to s 23 Mental Health (Forensic Provisions) Act 1990 Legislation Cited: Crimes Act 1900 s 91H(2) Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Mental Health (Forensic Provisions) Act 1990 Cases Cited: Minehan v R [2010] NSWCCA 140 R v Booth [2009] NSWCCA 89 R v De Simoni (1982) 147 CLR 383 R v Porte [2015] NSWCCA 1174 Category: Sentence Parties: Director of Public Prosecutions (Crown) John Paul Lane (Offender) Representation: Counsel: M Coates (Crown Prosecutor) W Walsh (Offender) File Number(s): 13/269530 Publication restriction: Nil

JUDGMENT PURSUANT TO S 23 OF THE MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990

Introduction 1. On 25 October 2016, following a Special Hearing pursuant to s 21 of the Mental Health (Forensic Provisions) Act 1990 ("the Act"), I made findings in respect of two charges on the Indictment. The charges were: 1. That on 13 August 2013 at Lidsdale, in the State of New South Wales, did disseminate child abuse material pursuant to s 91H(2) of the Crimes Act 1900. 2. That on 5 September 2013 at Lidsdale, in the State of New South Wales, did possess child abuse material pursuant to s 91H(2) of the Crimes Act 1900. 1. I made findings that on the limited evidence available, the offender committed each offence. He was convicted of both offences on the Indictment. 2. On 6 April 2017, I heard submissions from the Crown and the offender in respect of orders to be made pursuant to s 23 of the Act. Section 23 of the Act provides as follows: ""Procedure after completion of special hearing 23(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: (a) 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, or (b) directs that the term commence at a later time so as to be served consecutively with (or partly concurrently and partly consecutively with) some other limiting term nominated in respect of the person or a sentence of imprisonment imposed on the person. (6) When making a direction under subsection (5)(b), the Court is to take into account that: (a) a sentence of imprisonment imposed in a normal trial of criminal proceedings may be subject to a non-parole period whereas a limiting term is not, and (b) in a normal trial of criminal proceedings, consecutive sentences of imprisonment are to be imposed with regard to non-parole periods (as referred to in section 47(4) and (5) of the Crimes (Sentencing Procedure) Act 1999). (7) If the Court indicates that it would not have imposed a sentence of imprisonment in respect of a forensic patient, it must notify the Tribunal that a limiting term is not to be nominated in respect of the person." 1. On 15 June 2015, Judge Yehia of this court held that Mr Lane was not fit to plead and referred the matter to the Mental Health Review Tribunal. On 20 November 2015, that Tribunal held that Mr Lane would not become fit to plead within the next 12 months, and on 1 February 2016, a direction was made by a Tribunal member for a Special Hearing to take place pursuant to s 21 of the Act. That hearing took place at Bathurst on 24 October 2016.