A.N (No. 2) v Regina [2006] NSWCCA 218 | Case summary

Court of Criminal Appeal (NSW)|2006-05-03|Before: James J, Simpson J, Rothman J, Hulme J, Matthews J, Detention Centre J

The applicant has now been in detention for more than two years of the limiting terms nominated by the Court of Criminal Appeal.

There was delay of about four years between the committing of the offences and the setting of the limiting terms by Judge McGuire and during this period the applicant had matured from a child of thirteen to a youth of seventeen and had not re-offended.

Documents annexed to the determination by the Mental Health Review Tribunal showed that, since the hearing in the Court of Criminal Appeal last year, the applicant has undergone further rehabilitation and maturation. Counsel for the applicant referred particularly to a report by a sex offender counsellor at the Baxter Juvenile Justice Centre dated 27 January 2006, in which the counsellor said that over the past year the level of the applicant's adaptive skills had improved significantly and he had demonstrated increased maturity.

The applicant as a person subject to limiting terms under the Act does not receive the same conditional leave, such as outings, day leave and eventually overnight leave, as is received by other inmates of a juvenile detention centre who are detained under the Children (Detention Centres) Act . The Children (Detention Centres) Act applies only to a "person on remand" and a "person subject to control" within the definitions of those expressions in the Children (Detention Centres) Act and would not apply to the applicant.

The applicant's limiting terms do not expire until nearly a year after he attains the age of twenty-one and it is doubtful whether, after the applicant has attained the age of twenty-one, he could continue to be detained in a juvenile justice detention centre and the applicant on attaining the age of twenty-one would be at risk of being transferred to an adult correctional centre.

Although the review provisions in Pt 2 of ch 5 of the Mental Health Act , which would be brought into effect by the making of an order under s 27(b), allow for the possibility of a forensic patient being released before the expiration of his limiting term, in practice this rarely happens. Counsel referred to certain passages in the judgment of Dunford J in R v Mailes (2004) 62 NSWLR 181 in which Dunford J noted at 189 (36, 37) that the Mental Health Review Tribunal had advised "that there is in fact no one under its jurisdiction serving a limiting term who has been released prior to the expiry of their limiting term" and that "in practice such early releases are most unlikely, at least in the case of intellectually disabled inmates".

There is no evidence that, if the applicant was released, the safety of the applicant or of any member of the public would be endangered. 69 As the particular submissions made by counsel for the applicant, I comment as follows. 70 1 and 2 These submissions are factually correct. 71 3 - I accept that since the Court of Criminal Appeal gave its decision last year there has been some further rehabilitation and maturation of the applicant, although I note that most of the documents annexed to the Tribunal's determination of 6 February 2006 pre-date the Court of Criminal Appeal's decision. 72 4 - I accept that the applicant does not have the advantages he would have, if the Children (Detention Centres) Act applied to him. 73 5 - The applicant upon attaining the age of twenty-one would not be prevented by s 19 of the Children (Criminal Proceedings) Act from continuing to be detained in a juvenile justice detention centre, as distinct from an adult correctional centre. Section 19 of the Children (Criminal Proceedings) Act provides that, subject to certain exceptions which would not apply to the applicant, a person is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of twenty-one. However, the applicant as a person subject to limiting terms is not serving "a sentence of imprisonment". 74 6 - In my opinion, this Court should recognise that, if an order was made under s 27(b), the applicant might or might be released pursuant to the provisions of the Mental Health Act before the limiting terms expired but the Court should not attempt to make any estimate of the degree of likelihood or unlikelihood of the applicant being released. 75 7 - I would accept this submission. 76 Notwithstanding that I have accepted some of the submissions made by counsel for the applicant, I consider that the Court should make an order under s 27(b). 77 If the Court does not make any order under s 27(b), the applicant would be entitled to be released. In my opinion, the period of just over two years the applicant would have served would be inadequate to reflect the objective seriousness of the offences committed by the applicant, which were described in detail in the Court's judgment of 6 July 2005. 78 The applicant's subjective features were recognised and given substantial weight by the Court in its decision to reduce considerably the limiting terms which had been nominated by Judge McGuire. 79 If an order is made under s 27(b), the applicant becomes a forensic patient and the review provisions of the Mental Health Act, which are intended to protect the interests of the public generally of particular members of the public and of the applicant, can take effect. If no order was made, the review provisions would not come into effect. 80 Section 27(b) of the Act provides that the Court may order that the applicant be detained in a place other than a hospital. In my opinion, it is open to the Court to order that the applicant be detained in a juvenile justice detention centre and the Court should so order.

Can the Court make an order that a specified part only of the limiting terms be served in a detention centre, with the consequence that the applicant would be entitled to be released at the expiration of that part of the limiting terms . 81 It was submitted by the Crown that the Court has no power under s 27(b) to make an order that part only of a limiting term be served in detention. It was submitted that s 27(b) does not expressly authorise the making of such an order; that the making of such an order would subvert the review provisions in Pt 2 of ch 5 of the Mental Health Act; and that holding that the Court has such a power would be inconsistent with the reasoning of the Court in R v Mitchell (1999) 108 A Crim R 85. 82 It was submitted by counsel for the applicant that the Court would have power under s 27(b) to make an order that a specified part only of a limiting term be served in detention. It was contended that holding that the Court has such a power would be consistent with the breadth of the discretion conferred on the Court by s 27(b) and with a purpose of the package of legislation of which the Act forms a part, that any restriction of personal freedom should be only the minimum necessary for the well being of the individual and the protection of others. 83 In my opinion, the Court does not have a power under s 27(b) of the Act to order that a specified part only of a limiting term be served in detention. As was submitted by the Crown, interpreting s 27(b) as conferring such a power would subvert the review provisions in Pt 2 of ch 5 of the Mental Health Act, which would be brought into operation by the making of any order under s 27(b) of the Act. Those provisions provide for the review of cases of forensic patients, set out the conditions subject to which the Mental Health Review Tribunal must or may recommend the release of a person who is subject to a limiting term, provide that a person is not to be released if the Attorney-General objects to the person being released, and, subject to the fulfilment of conditions, provide for the release of a person, either unconditionally or subject to conditions. 84 In Mitchell the Court held that a court nominating a limiting term could not set a minimum term under the Sentencing Act 1989, because to do so would be "inconsistent with the … 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" (at 90 (21)). Similar reasoning to that adopted by the Court in Mitchell would preclude the Court from making an order that a specified part only of a limiting term be served in detention.

Conclusion 85 In my opinion, the Court should make the following orders:- 86 An order pursuant to s 24(1)(b) of the Mental Health (Criminal Procedure) Act effective from 6 July 2005 and until further order that the applicant be detained in the Frank Baxter Juvenile Justice Detention Centre. 87 An order pursuant to s 27(b) of the Mental Health (Criminal Procedure) Act that the applicant be henceforth detained during the limiting terms in a Juvenile Justice Detention Centre. The Court recommends that the applicant be detained in the Frank Baxter Juvenile Justice Detention Centre. 88 SIMPSON J: I agree with James J.

89 ROTHMAN J: In this matter I have had the advantage of reading in draft the reasons for judgment of James J. I join in the orders that he proposes and I agree with his reasons for judgment. In particular, I agree with His Honour's construction of the relevant provisions of the Mental Health (Criminal Procedure) Act. The following is in addition to, not as a substitution for or qualification of, those reasons.

90 The issue raised in this aspect of the matter is the power of the Court of Criminal Appeal to make orders under s.24(1)(b) of the Mental Health (Criminal Procedure) Act ("the Act"). Section 24 (1) (b) of the Mental Health (Criminal Procedure) Act 91 The relevant terms of s.24 have been set out in the judgment of James J and I do not repeat them. Once the Court has nominated a limiting term the Court is required to refer the person to the Mental Health Review Tribunal and "may make such order with respect to the custody of the person as the Court considers appropriate". The Tribunal is required to determine matters relating to the person's mental illness and then "must notify the Court which referred the person to it of its determination".

92 The provisions of this section raise the fundamental question: for what purpose does the Tribunal notify the Court? The obvious answer is that the report may be taken into account in determining an order, if any, under s.27 of the Mental Health (Criminal Procedure) Act. Section 27 of the Act contemplates the capacity of the sentencing court to embark upon a two-stage process and a sentencing court is not functus officio until after it considers the determination of the Tribunal.

93 If it were otherwise, the Court could not receive the notification by the Tribunal. Therefore, whatever order may or may not have been made under s.24(1)(b) of the Act, the Court has not finally determined the matter until after it has received and considered the determination of the Tribunal. The Court has the power to make an order under s.24(1)(b) upon receipt of the notification by the Tribunal of its determination, and its task as a Court is not completed until it receives the notification and acts on it, either by making orders or further orders, or deciding not to make orders. There is no time limit on the making of orders under s.24(1)(b) and such orders may issue while ever the Court is seized of the matter. 94 I reiterate my agreement with the reasons for judgment of James J, insofar as they deal with a capacity of the Court of Criminal Appeal, to correct to the extent necessary any error in an order arising from a slip or accidental omission, even after the order has been perfected. In my view, the conclusion in the preceding paragraphs is an additional basis upon which an order can be made after the judgment on the hearing is delivered and before finally dealing with the notification from the Tribunal. On that basis the District Court, also, could, if it so desired, make a final s.24(1)(b) order after receipt by it of the notification of the determination by the Tribunal. 95 Further, there can be no doubt that the intention of the Court in its original judgment was to impose on the appellant a custodial term.

96 I join in the orders proposed by James J. I do so for the reasons expressed by his Honour. I also do so for the above additional reason being the above construction of s.24(1)(b) of the Mental Health (Criminal Procedure) Act.

31/07/2006 - Wrong hearing date on cover - Paragraph(s) not applicable

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.

CITATION: A.N (No. 2) v Regina [2006] NSWCCA 218 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Erceg v The District Court of NSW [2003] NSWCA 379 L. Shaddock & Associates Pty Limited v Parramatta City Council (No. 2) (1982) 151 CLR 590 Grierson v The King (1938) 60 CLR 431 R v Carrion (2002) 128 A Crim R 29 Postiglione v The Queen (1997) 189 CLR 295 R v Allen (1994) 1 Qd R 526 R v De Zylva (1998) 38 A Crim R 207 CASES CITED: Re Cripps ex parte Muldoon [1984] 1 QB 686 R v Jovanovic (1996) 106 A Crim R 548 R v Reardon (2004) 146 A Crim R 475 Mailes v Director of Public Prosecutions and Mental Health Review Tribunal (unreported) Hulme J at 10 April 2000 R v Adams (2003) 58 NSWLR 1 R v Tas (District Court 1 Oct. 1997) R v Boyle (unreported Matthews J 18/9/92) R v Mailes (2004) 62 NSWLR 181 R v Mitchell (1999) 108 A Crim R 85

24 July 2006 A.N (No. 2) v REGINA Judgment 1 JAMES J: In this matter the Court has already given one judgment R v AN [2005] NSWCCA 239. The present judgment is to be read in conjunction with the judgment already given. 2 In order to explain the issues remaining to be determined by the Court, it is necessary to set out in some detail the history of the criminal proceedings against AN (who I will generally refer to as "the applicant "). 3 The applicant was charged with having on 8 August 2000, when he was only thirteen years old, committed two offences against the same complainant, who was herself only thirteen years old, namely detaining for advantage, which was an offence under s 90A of the Crimes Act (since repealed) and aggravated sexual assault, which was an offence under 61J of the Crimes Act, the circumstances of aggravation being that the applicant was in company with a co-offender, who was himself a juvenile but somewhat older than the applicant. 4 A judge of the District Court in a judge alone trial found that the applicant because of intellectual disability was unfit to be tried (Mental Health (Criminal Procedure) Act s 11). In this judgment I will generally refer to the Mental Health (Criminal Procedure) Act simply as "the Act". 5 After the necessary steps had been taken under the Act a special hearing under s 21 of the Act took place before his Honour Judge McGuire sitting without a jury. At the special hearing Judge McGuire found, in accordance with s 22(1) of the Act, that, on the limited evidence available, the applicant had committed both of the offences charged. 6 Judge McGuire then, in accordance with s 23 of the Act, held that, if the special hearing had been a normal trial of a person fit to be tried, he would have imposed sentences of imprisonment and his Honour nominated limiting terms being his best estimate of the sentences he would have considered appropriate if the special hearing had been a normal trial of a person fit to be tried and the person had been found guilty of the offences. The limiting terms nominated by Judge McGuire were, for the offence of detaining for advantage, a limiting term of five years and, for the offence of aggravated sexual assault, a limiting term of five years, the two limiting terms to date from 29 April 2004 and thus to be concurrent with each other. 7 Judge McGuire made the following further orders:- "I direct that the matter be referred to the Mental Health Tribunal. I further direct that (AN) be detained in a juvenile detention centre pending the court being notified of the determination of the Mental Health Tribunal". 8 The further orders made by Judge McGuire were made pursuant to s 24 of the Act and it is convenient at this stage to set out the provisions of s 24. "24 (1) If in respect of a person a Court has nominated a limiting term, the Court: (a) must refer the person to the Mental Health Review Tribunal, and (b) may make such order with respect to the custody of the person as the Court considers appropriate. (2) If a Court refers a person to the Tribunal, the Tribunal must determine whether or not: (a) the person is suffering from mental illness, or (b) the person is suffering from a mental condition for which treatment is available in a hospital and, where the person is not in a hospital, whether or not the person objects to being detained in a hospital. (3) The Tribunal must notify the Court which referred the person to it of its determination with respect to the person". 9 AN applied for leave to appeal against the limiting terms nominated by Judge McGuire. The application for leave to appeal was competent because the definition of "sentence" in s 2 of the Criminal Appeal Act includes:- "(d) Any order made by the court of trial imposing a limited term of imprisonment on a person under s 23(1) of the Mental Health (Criminal Procedure) Act …". 10 AN's application for leave to appeal was heard on 14 June 2005 by a bench of the Court of Criminal Appeal constituted by James J, Howie J and Rothman J. The Court reserved its decision. 11 On 6 July 2005 the reserved judgments of the members of the Court were handed down by a bench of the Court of Criminal Appeal which did not include all of the judges who had heard AN's application. 12 The principal judgment was the judgment of Howie J, with whom the other members of the Court agreed. Howie J concluded that leave to appeal should be granted, that the limiting terms nominated by Judge McGuire should be quashed and that in lieu thereof there should be limiting terms of three years for the offence of detaining for advantage and four years six months for the offence of aggravated sexual assault, both limiting terms to date from 29 April 2004. The orders proposed by Howie J became the orders of the Court. Howie J did not propose, and the Court did not make, any order pursuant to s 24 of the Act. There was apparently no discussion on 6 July 2005 about the terms of the orders the Court should make. 13 On 23 August 2005 the Legal Aid Commission, which had been acting for AN, wrote a letter to the Registrar of the Court of Criminal Appeal, requesting that the Court of Criminal Appeal re-open the proceedings before it pursuant to s 43 of the Crimes (Sentencing Procedure) Act and make an order in compliance with s 24(1)(a) of the Act that the applicant be referred to the Mental Health Review Tribunal. It was stated in the letter that counsel who had appeared for the applicant and for the Crown in the Court of Criminal Appeal were in agreement that the proposed additional order should be made. It was submitted in the letter that the Court of Criminal Appeal did not need to make any order under s 24(1)(b) of the Act, "as the applicant is detained at the Frank Baxter Juvenile Justice Centre and will be reviewed in due course by the Mental Health Review Tribunal". 14 On 13 September 2005, without any further Court hearing, the Court amended the judgments previously handed down by adding a paragraph in which the Court noted that it had been asked to correct the orders made on 6 July 2005 pursuant to s 43 of the Crimes (Sentencing Procedure) Act and in which the Court made an order that "pursuant to s 24(1) of the Mental Health (Criminal Procedure) Act the applicant is referred to the Mental Health Review Tribunal". 15 In a document dated 6 February 2006 from the Mental Health Review Tribunal to the Registrar of the Court of Criminal Appeal the Tribunal notified the Court that it had determined pursuant to s 24(2) of the Act that the applicant is not suffering from a mental illness and is not suffering from a mental condition for which treatment is available in a hospital. In the covering letter with which the notification of the Tribunal's determination was enclosed the Tribunal raised the question of whether an order should now be made by the Court under s 27 of the Act. It is convenient at this stage to set out the provisions of s 27 of the Act. "27 If a Court is notified by the Mental Health Review Tribunal of its determination in respect of a person under section 24 (3), the Court may: (a) if the Tribunal has determined that the person is suffering from mental illness or that the person is suffering from a mental condition for which treatment is available in a hospital and that the person, not being in a hospital, does not object to being detained in a hospital - order that the person be taken to and detained in a hospital, or (b) if the Tribunal has determined that the person is not suffering from mental illness or from a mental condition referred to in paragraph (a) or that the person is suffering from such a mental condition but that the person objects to being detained in a hospital - order that the person be detained in a place other than a hospital". 16 Although the notification of the Tribunal's determination was forwarded to the Court Registry on or about 6 February 2006, the Tribunal's determination was not drawn to the attention of any of the judges who had determined AN's application until 23 March. The parties were then invited to lodge written submissions on whether the Court should now make an order pursuant to s 27(b) of the Act. 17 Written submissions both dated 13 April 2006 were received from both counsel for the applicant and counsel for the Crown and the Crown also lodged written submissions in reply to the applicant's written submissions. In a letter accompanying the written submissions for the applicant counsel for the applicant asked whether the Court would be prepared to hear oral argument in support of the written submissions. 18 It was not possible to reconvene the bench of the Court of Criminal Appeal which had decided AN's application, because Howie J is overseas on extended leave. In the circumstances, the Chief Justice directed that for the further proceedings in the matter the Court should be constituted by James J, Simpson J and Rothman J and on 3 May 2006 a further hearing took place before the Court as so constituted. After hearing argument the Court reserved its decision. Just before announcing that it was reserving its decision the Court made an order that until further order of the Court the applicant be detained in custody in a Juvenile Justice Centre being the Frank Baxter Juvenile Justice Centre, where the applicant was in fact being held. 19 After the Court had reserved its decision the Registrar at the direction of the Court invited the parties to lodge written submissions on the following matters.

A.N (No. 2) v Regina

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