Jomaa v R

The consequences of nominating a limiting term

1. A consequence of imposing limiting terms upon an accused person is that he/she becomes a "forensic patient" and is referred to the Mental Health Review Tribunal. The Tribunal is required to carry out an initial review in relation to the forensic patient and may make orders as to the person's care, detention or treatment. It may also make an order in relation to the person's release (unconditionally or subject to conditions): s 44 of the Act.
2. The Tribunal is required to continue to carry out regular reviews, generally every six months: s 46 of the Act. Following these reviews, the Tribunal may make orders as to the patient's continued detention, care, treatment or release (unconditionally or subject to conditions): s 46 of the Act. One practical result of the requirement to carry out reviews is that it is not necessarily the case that the person will remain confined for the duration of the limiting terms, as would be the case for a person sentenced to a term of imprisonment.

The appeal

1. Section 6A of the Criminal Appeal Act 1912 (NSW) provides for an appeal against a limiting term nominated in accordance with s 24 of the Act.
2. On 14 January 2019, the applicant's solicitors filed a Notice of Application for Leave to Appeal nominating the following as the proposed grounds: 1. The limiting term imposed in respect of Count 1 was manifestly excessive. 2. In fixing the limiting term in respect of Court 1, His Honour erred in assessing the level of criminality in terms of "a transaction performed by the accused in the course of a business he was engaging in, being engaged in the supply of heroin on a regular basis to a number of people for financial gain". 3. His Honour erred in the overall structure of the limiting terms imposed in respect of Counts 1, 2, 3 and 4 so as to produce a result that was manifestly excessive. 4. In structuring the overall limiting term His Honour erred in failing to take into account properly or at all the hardship to be experienced by the Appellant in custody, having regard to his medical conditions. 5. His Honour erred in failing to find that the Appellant by virtue of his medical conditions was an unsuitable vehicle for both specific and general deterrence.
3. Counsel for the applicant indicated at the outset of the hearing of the application that Ground 2 would be abandoned.

Facts

1. The Crown helpfully provided the following summary of the facts based upon the findings of the primary judge: "In summary, as part of Strike Force Tourle, the applicant was identified as a supplier of heroin throughout the Sydney West, including Parramatta, Blacktown, St Mary's, Kingswood, the Blue Mountains, Werrington County and Mt Druitt. He had a large clientele base consisting of over 70 customers. The applicant recruited his wife, Salwa Halet, and his sons …, to assist the supply of heroin. Between 30 May 2015 and 26 August 2015, the applicant, Salwa Halet, [one of his sons] and Milad Eid (see below) participated in a criminal group that was involved in the sale of quantities of heroin for profit. As part of the strike force, the applicant's mobile telephone service was lawfully intercepted. During the investigation, police identified that the applicant obtained heroin from several sources, including Milad (Mick) Eid, who was a regular supplier. During the period 30 May 2015 to 26 August 2015, they would meet up once or twice daily where Eid would supply the applicant with heroin based on his customer demands. The investigation revealed that during that period the applicant had supplied or agreed to supply heroin for money to 26 different customers on at least 40 occasions. Customers would mostly attend the applicant's home at 12 Ophir Grove, Mt Druitt, to buy drugs. The applicant would also be driven by his wife to public locations such as the Red Cow and the Pioneer Tavern in Penrith, or he would meet his customers in a street in Kingswood, or also make home deliveries. His wife, Salwa Halet would drive the applicant in their gold coloured Land Rover or white coloured Mitsubishi Outlander."
2. According to his Honour's verdict judgment and sentencing remarks, the acts of supply that were alleged to constitute the offences in Counts 1 to 4 were as follows: Count 1 A supply of about 0.1 gram of heroin in a syringe to a customer at an arranged meeting at Mt Druitt on 21 May 2015. (The customer injected himself soon after and died almost immediately. The applicant was not charged and thereby bore no criminal responsibility in respect of that tragic event.) Count 2 This offence was constituted by four supplies to different customers between 11 and 27 June 2015. The total quantity supplied was about a gram and the payments received totalled $520. The first of these supplies was made by one of the applicant's sons at the applicant's direction. Count 3 This offence was constituted by five supplies to different customers between 28 June and 20 July 2015. The total quantity was a gram and the payments amounted to about $500. One of the supplies was provided over the back fence of the applicant's home by another of his sons at his direction. Count 4 This offence was constituted by supplies to three different customers between 28 July and 8 August 2015. The total quantity was about 0.6g and the payments amounted to $270.
3. The offence in Count 6 of directing the activities of a criminal group was alleged to be constituted by the applicant giving directions to his wife and two teenage sons concerning their involvement in the supply of drugs for money. His Honour was satisfied beyond reasonable doubt that $37,100 in cash found when their home was searched on the day of arrests was the proceeds of drug trafficking by "the criminal group".
4. His Honour found that the offence in Count 1 was "towards the lower end of the range" of objective seriousness. The offences in Counts 2 to 4 were "below the midrange level … but not at the lower end of the range". No assessment was made in respect of the offence in Count 6.

Personal circumstances of the applicant

1. The applicant relied upon the reports of two forensic psychiatrists, Dr Richard Furst dated 11 August 2016 and Dr Adam Martin dated 11 October 2016, a report of a review by the Mental Health Tribunal dated 28 March 2017, and documents derived from the files of Justice Health.
2. The applicant was aged 45 when arrested on 27 August 2015. He had a long term addiction to prohibited drugs. He also had a significant criminal history and had served terms of imprisonment. His Honour, in effect, regarded the criminal record as one that denied the applicant the benefit of leniency that could be extended to a person without such a record.
3. The medical evidence established that the accused suffered an intra-cerebral haemorrhage (a stroke) while in custody soon after his arrest. The applicant was a patient at Westmead Hospital for about a month and was then transferred to the Prince of Wales Hospital where he remained for over two months before being discharged to the medical/surgical unit at Long Bay Hospital.
4. When Dr Furst interviewed the applicant on 1 August 2016, he found that the applicant was unable to provide much meaningful history because of his cognitive deficits and expressive aphasia. He had either a difficulty or an inability to respond to quite simple questions such as being asked where he was born or where he grew up. The applicant's wife was present during the assessment and informed Dr Furst that he forgets her name and the children's names and even forgets that she is his wife. The applicant's mobility was affected to the extent that he required either a wheelchair or a stick. Dr Furst used a tool to make a "Mini Mental State Examination" with the result indicating "severe cognitive impairment/dementia".
5. Dr Furst noted a letter from a general practitioner which indicated that the applicant had suffered a basal ganglia stroke that had resulted in dysphasia and right hemiparesis. A CT scan conducted on 22 April 2016 was consistent with a cerebral infarction in the left middle cerebral artery having occurred about six months prior.
6. Dr Furst made the following diagnoses: ● Substance use disorder (opiate dependence). ● Severe dementia, right hemiplegia and expressive aphasia as a consequence of his left basal ganglia haemorrhage on 3 September 2015.
7. In the context of explaining his opinion that the applicant was unfit to be tried, Dr Furst provided the following: "Mr Jomaa has a severe cognitive impairment (dementia) and expressive aphasia (inability to express words), as noted in the cognitive examination (MMSE score of 9/30) and the review of relevant medical documents outlined above. Given that his stroke was nearly 12 months ago and his deficits remain severe, it is highly likely that he will remain unfit to be tried over the next 12 months."
8. Dr Adam Martin interviewed the applicant on 1 October 2016 at the request of the Office of the Director of Public Prosecutions. He described him as looking much older than his stated age and noted that he was in a wheelchair, although he was able to ambulate extremely slowly with crutches. He said the applicant had significant difficulty in being able to express himself spontaneously and had apparent word-finding difficulty. His administration of a Mini Mental State Examination yielded a similar score to that administered by Dr Furst, consistent with the applicant having a significant cognitive impairment.
9. Dr Martin's opinions were much the same as Dr Furst's. He agreed that the applicant was unfit to be tried. He also said: "It has been twelve months since the initial cerebral bleed and I think it is highly unlikely that his medical condition is going to improve to the point that this [namely, his ability to participate adequately in a criminal trial] will change."
10. In its review in March 2017, the Mental Health Review Tribunal had the reports of Drs Furst and Martin as well as the benefit of the opinion of Dr Gerald Chew, a psychiatrist. At that stage the applicant was being held in the Aged Care Rehabilitation Unit at the Long Bay Hospital. Dr Chew made observations of the applicant's condition similar to those of Drs Furst and Martin. Dr Chew's opinions were described in the report as follows: "While [Dr Chew] believes there may have been a slight improvement in Mr Jomaa's mini mental state compared to the examination by Dr Richard Furst on 1 August 2016, his belief was that Mr Jomaa's cognition was unlikely to improve to the point where he will become fit for trial within 12 months or according to Dr Chew if at all."
11. In this assessment, the primary task for the Tribunal was to determine whether the applicant might become fit to be tried at any point within the period of 12 months from the District Court's finding of unfitness on 14 December 2016. It determined that question in the negative and ordered that the applicant remain in the Long Bay Correctional Complex for care and treatment.
12. The primary judge then summarised the other material, derived from the Justice Health file, that was placed before him: "Other documents from his Justice Health file that were put before me show the difficulties he has had in custody, in terms of being able to engage in appropriate rehabilitation practices to assist with his physical limitations as a consequence of the stroke, and the need for him to be reminded to perform appropriate exercises. There was also reference to him suffering falls, in one instance from a wheelchair. I note that when he has appeared before me, at various time she has been brought into court in a wheelchair and on other occasions he has been using a walking stick."

Relevant findings of the primary judge

1. After referring to the medical evidence, his Honour expressed the following conclusion (relevant to Ground 4): "The evidence as to his continuing physical and mental health problems as a consequence of the stroke he suffered in custody mean, in my opinion, that his time in custody has been, and will continue to be, more arduous than it is for other inmates who do not have such impairments." (Emphasis added)
2. His Honour found that the applicant was "unlikely to reoffend" (relevant to Ground 5): "I also think that given the time he has been in custody, and his mental condition and his physical condition, he is unlikely to be able to reoffend once released, even if he was so minded. His ability to communicate and retain information is such that I think it highly unlikely that even if he was minded to do so, he could perform some kind of organisational role, like he did when engaging in supplying heroin." (Emphasis added)
3. Perhaps being mindful of some of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour continued (relevant for Ground 5): "I also think, for the same reasons, the need for specific deterrence is also reduced. In my view his mental condition which obviously was not present at the time of the offending, does not in any way reduce his moral culpability for it. Clearly, engaging in such offences involves harm to our community. The sale of drugs like heroin is eroding the very fabric of our society. I do not consider that in these circumstances, it renders the accused an inappropriate vehicle for the expression, to some degree, of general deterrence to the extent that it involves denunciation of the accused's conduct and recognises the harm to the community. However, given my finding that he is unlikely to reoffend, there is no need to give any weight to the protection of the community in fixing the limiting term that is to be set." (Emphasis added)
4. It will be seen that from the various dates on which the limiting terms were set to commence, there was a degree of partial accumulation. As his Honour explained (relevant to Ground 3): "In my opinion it is necessary that there be some accumulation between the limiting terms imposed for Counts 1, 2, 3 and 4. They involve separate offences involving separate supplies of heroin. I consider that it is appropriate to make the sentence on Count 6 completely concurrent with the sentences imposed on counts 2, 3 and 4, given the nature of the activities relied upon for Count 6."
5. His Honour explained that the first limiting term would be backdated to 2 February 2016 in order to allow credit for the period in which the applicant had already been held in custody.

Ground 5 - error in failing to find that the applicant was an unsuitable "vehicle" for both specific and general deterrence

1. It is appropriate to deal with this ground first as it should be upheld in part.
2. The case law is clear as to the various ways in which an offender's adverse mental condition may be relevant to the assessment of sentence: see, for example, Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (per McClellan CJ at CL). One aspect of potential relevance to present proceedings has been considered in many cases; that is, giving less weight to general deterrence because the offender is not an appropriate medium (or "vehicle") for making an example to others. That notion can be traced at least to R v Mooney (Court of Appeal (Vic), 21 June 1978, unrep) which was cited with approval in R v Anderson [1981] VR 155 at 159 and carried through to New South Wales authorities such as R v Scognamiglio (1991) 56 A Crim R 81, R v Engert (1995) 84 A Crim R 67 and many thereafter.
3. Hunt CJ at CL explained why such a person is not an appropriate medium for making an example to others in R v Wright (1997) 93 A Crim R 48 at 51: "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."
4. The vast majority of cases discussing the sentencing of offenders with a mental or intellectual impairment speak in terms of giving "less weight", or even "very little weight" to general deterrence. One exception is R v Letteri (Court of Criminal Appeal (NSW), 18 March 1992, unrep) where Badgery-Parker J spoke of "an extreme case" where "considerations of general deterrence are totally outweighed by other factors".
5. A theme that is consistent throughout the authorities, however, is that none of the principles (including the one presently under consideration) are absolute. As Simpson J (as her Honour then was) said in Aslan v R [2014] NSWCCA 114 at [34]: "What is recognised is the potential effect, in any given case, of a mental disability. It does not follow that because an offender suffers from some mental impairment or disability, his or her moral culpability is reduced."
6. The applicant referred to R v Chong [2012] NSWSC 1309 as being analogous to the present case. It was a case in which when determining a limiting term in respect of an offence of murder, I accepted that no weight should be given to general (or personal) deterrence. The case concerned a 70-year-old man who sustained a catastrophic brain injury shortly after the murder occurred. He also suffered from a number of physical ailments. An expert recommended that the man would require "a supervised and secured environment to continue to function, especially if he is to be released into the community".
7. The response to the applicant's reliance upon that case is to recognise it as an example of a judge forming a view based upon the peculiar factual circumstances in a particular case; however, those circumstances did not completely align with the circumstances in the present case. It certainly did not mandate that the judge in the present matter should have formed the same view.
8. Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 was not relied upon by the applicant, but it also involved an acceptance that general deterrence was not relevant to sentencing. The Court accepted as "apt" the primary judge's finding that the offender's intellectual disability was "significant" (at 138 [53]). It found that if this Court had rejected the judge's finding that general deterrence had no place in sentencing, then it was in error in doing so. [1] Muldrock v The Queen, like R v Chong, turned on its own facts in relation to this aspect. It left open the possibility of a sentencing judge dismissing general deterrence as being relevant to sentence, but did not purport to determine the circumstances in which that must be done.
9. Buscombe DCJ declined to find that the applicant was "an inappropriate vehicle for the expression, to some degree, of general deterrence". That was a finding that was perfectly open to him.
10. Specific deterrence is another matter. As identified earlier, [2] the judge found that the applicant was "unlikely to be able to reoffend" and that "there is no need to give any weight to the protection of the community". However, in finding that "the need for specific deterrence is … reduced", he may be taken to have considered that there was in fact some prospect of the applicant reoffending. Having regard to the first two findings, the third was not available. In his current state, which is unlikely to change, there seems to be no likelihood of the applicant returning to drug dealing, or any other form of criminal behaviour that requires a modicum of forethought.
11. For these reasons, specific deterrence was not a matter the judge should have taken into account, even at a reduced level, and so this ground must be upheld.
12. It becomes necessary for this Court to exercise its own discretion in the determination of limiting terms in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at 618 [42].

Other grounds

1. There is no need to discuss the applicant's other grounds in detail. They can be dealt with quite shortly in any event as I do not regard them as having any merit.
2. The complaint of manifest excess in relation to the limiting term for the offence in Count 1 largely fell away with the abandonment of Ground 2. There is no other complaint about the assessment of the objective seriousness of the offence "as being towards the lower end of the range". Having regard to that finding, and being mindful of the prescribed maximum penalty for the offence being 15 years imprisonment, a limiting term of 12 months is not manifestly excessive.
3. The complaint under Ground 4 fails because the judge specifically accepted that the applicant had, and would, experience more arduous custodial conditions. [3] Whether he gave sufficient weight to that matter is relevant to Ground 3.
4. The complaint in Ground 3 of manifest excess in the total effective limiting term also fails. It was a matter for the judge's discretion, within appropriate bounds, to make an assessment of the degree to which there should be partial accumulation of some of the individual limiting terms. While it is a matter about which minds may legitimately differ, I am not persuaded that the judge exceeded the bounds of his discretion.

Reconsideration of the appropriate limiting terms

1. At the hearing, the Crown tendered a transcript of an intercepted telephone conversation on 2 July 2015 involving the applicant and his supplier, Milad Eid. It was the subject of objection and was admitted provisionally. This transcript was one of a number in evidence at the special hearing and it was referred to in the judge's verdict judgment. [4]
2. It was accepted by the applicant in the proceedings below that "on the evidence before the Court there was an ongoing drug supply business in which Mr Jomaa was engaging of which the particular supplies form a part". [5] The transcript has relevance in confirming what this Court might otherwise be capable of inferring; that is, that the applicant's dealing did not simply commence with the offence in Count 1 but had been entrenched and was of some significant scale well prior to that point. As was put by counsel for the Crown, the police detected the offences charged by simply intervening "in a moment in time". The relevance of this is limited to what the primary judge found; that the applicant "was engaged in a substantial business of selling heroin on a regular basis" and that the "large amount of cash found at the [applicant's] home, when it was searched, is consistent with the business having been very successful." In other words, the offending was not an isolated aberration.
3. An affidavit affirmed by the applicant's solicitor was read in the event of "resentencing". It annexes reports by the Mental Health Review Tribunal of 13 July 2018 and 6 December 2018. They indicate that the applicant is being held in the Kevin Waller Unit at the Long Bay Correctional Complex for care and treatment. They do not indicate any significant improvement in his cognitive impairment. The latter report indicates that he has been approved as a participant in the National Disability Insurance Scheme; he has an assigned provider and is receiving various forms of support. Inquiries were being made as to appropriate accommodation for him to transition to in the community but, as the Court was informed by the applicant's counsel, no progress has been made in this regard. The report also confirmed that the applicant remains unfit to be tried.
4. It should be accepted, as the judge found, that custodial conditions would be more onerous for the applicant; that he is unlikely to reoffend; and that protection of the community is not a relevant consideration. General deterrence has a role to play, although its significance is reduced. It cannot be discounted completely because of the prevalence and harm to community safety inherent in trafficking illicit drugs. There is a need to denounce the applicant's conduct to some degree and to recognise his moral culpability. Personal deterrence is not a relevant consideration.
5. The written submissions for the applicant accepted the limiting terms of 2 years for each of the offences in Counts 2 to 4. In my respectful view, the judge's characterisation of the offences as being "below the midrange level of objective seriousness but not at the lower end of the range" was correct. Despite the low quantities and values involved in the individual supplies, they were serious offences because they were constituted by repetitive drug dealing in the context of a business operated by the applicant, and by family members at his behest, for financial gain. The financial gain was illustrated by the discovery of $37,100 in cash upon the applicant's arrest. Further, there is no doubt that throughout the three month period of offending, the applicant was fully aware of the wrongfulness of his conduct.
6. The offence of directing the activities of a criminal group was concerned with the way the applicant engaged his wife and two teenage sons in this ongoing drug supply business. The activities were centred at the family home. A three year limiting term against the prescribed maximum penalty is entirely appropriate.
7. There was no dispute that sentences of imprisonment would have been imposed if the special hearing had been a normal trial of criminal proceedings of a person who was fit to be tried. This Court should maintain the judge's finding for the purposes of s 23(1)(a) of the Act.
8. I have come to a slightly different view to that of the primary judge on the application of the totality principle. As I have mentioned, the question of the degree to which there should be some partial accumulation is, within reason, a matter about which minds may legitimately differ. The criminality of the offence in Count 1, involving a single transaction, is subsumed by the criminality inherent in the ongoing supply offences, and it only preceded the first of them by 10 days, so no accumulation is warranted. The limiting terms for Counts 3 and 4 should be accumulated by 12 months each, rather than by 12 months for Count 3 and 18 months for Count 4. For the reasons given by the primary judge, the limiting term for Count 6 should be entirely subsumed by the other limiting terms.
9. The total effective limiting term I propose is one of four years.
10. The limiting terms I propose are, for the purposes of s 23(1)(b) of the Act, the best estimate of the sentences that would have been appropriate if the special hearing had been a normal criminal trial against a person who was fit to be tried.
11. There is no need to make an order under s 24 of the Act referring the applicant to the Mental Health Review Tribunal as that has already occurred. The Court should simply confirm the primary judge's referral.

Orders

1. I propose the following orders: 1. Leave to appeal granted and appeal allowed. 2. Quash the limiting terms imposed in the District Court on 28 March 2018. 3. Nominate the following limiting terms: (a) Count 1: a limiting term of 12 months dating from 2 February 2016. (b) Count 2: a limiting term of 2 years dating from 2 February 2016. (c) Count 3: a limiting term of 2 years dating from 2 February 2017. (d) Count 4: a limiting term of 2 years dating from 2 February 2018. (e) Count 6: a limiting term of 3 years dating from 2 February 2016. 4. Confirm the referral of the applicant to the Mental Health Review Tribunal made by the District Court on 28 March 2018.

Endnotes

1. The Court found (at 138 [52]) that this Court may have erred, alternatively, in rejecting the finding of "significant" in relation to the disability.
2. At [28]-[29].
3. See above at [27].
4. Verdict judgment at p 24, AB 420.
5. Defence written submissions at [13], AB 393. 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. Decision last updated: 20 May 2019