R v Le

Mental Health (Forensic Provisions) Act 1990 (NSW) and General Principles

1. Verdicts in accordance with s 22(1)(c) and (d) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act), such as those in relation to counts 1 and 2 in the present case, constitute qualified findings of guilt and do not generally amount to convictions for the offences. [4]
2. Where such verdicts are delivered, the Court 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 offences, it would have imposed a sentence of imprisonment. [5] In the present case, Ms Hall of counsel, who appeared for the offender, accepted that, if the matter had proceeded by way of a normal trial, a sentence of imprisonment would have been imposed. Given the nature and circumstances of the offending, I accept that this concession was appropriate and the Court would have imposed a sentence of imprisonment in respect of each offence, in those circumstances.
3. Where the Court determines that it would have imposed a sentence of imprisonment in respect of an offence, it must nominate a limiting term in respect of that offence. Such a limiting term is to be: "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 is fit to be tried for that offence and the person had been found guilty of that offence." [6]
4. The purpose of such a limiting term is not to punish a person such as the offender, who has not been convicted of any crime, but to ensure that he is not detained in custody longer than the maximum period he could have been detained, if convicted following a normal trial. [7]
5. The limiting term is the equivalent of the total term of the sentence that would have been imposed and not simply the minimum period that the person would have been required to spend in custody before being released to parole and, further, in determining the limiting term for a particular offence the Court is to adopt and apply all the principles of sentencing, whether arising under the common law or statute, that apply in sentencing a person convicted of that offence. [8] These include the purposes of sentencing, under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) which are: "(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community."
6. In addition to the purposes of sentencing under s 3A of the Sentencing Procedure Act, factors to which regard must be had include: [9] 1. the maximum penalty provided by statute for the offences in question; 2. the objective seriousness of the offences; 3. all relevant subjective considerations applicable in the case of the offender; and 4. the other well-established principles of sentencing including those in Veen v The Queen (No. 2) (1988) 164 CLR 465 at 476; [1988] HCA 14.
7. In a case involving more than one offence, such as the present, issues of concurrency and accumulation remain relevant when dealing with the imposition of limiting terms. Thus, consideration must be given to the question of totality and whether cumulative or partly cumulative terms should be imposed in order to reflect the overall criminality of the entire offending. [10]
8. In the case of an offender with a mental illness, however, some of these principles or purposes may be of lesser, or effectively no, importance depending on the particular circumstances of the offender. Facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. [11]
9. A helpful summary of the principles concerning sentencing of offenders who suffer from a mental disability was provided by Simpson J (as her Honour then was) in Aslan v R [2014] NSWCCA 114 at [33]-[34] as follows: "33. This Court has frequently had to grapple with the effect on sentencing (especially with respect to serious or violent crimes) of mental illness, intellectual handicap or other mental or emotional impairment or disability. The compassion and sympathy that such a condition engenders collide with the need for sentences to reflect the objective gravity of the offence in question, the community's interest in general deterrence, and that criminal conduct must be met with appropriate denunciation and retribution. Over the years, the applicable principles have evolved. They were most recently re-stated by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177]. They are as follows: '[Principle 1] Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence ... [Principle 2] It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed ... [Principle 3] It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced ... [Principle 4] It may reduce or eliminate the significance of specific deterrence ... [Principle 5] Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence ... Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ...' (internal citations omitted, italics added) 34. It will be observed that none of these principles is stated as absolute. 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 (principle 1); nor that he or she is an inappropriate vehicle for general deterrence (principle 2); nor that a custodial sentence will weigh more heavily upon him or her (principle 3); nor that the significance of specific deterrence is reduced or eliminated (principle 4). Nor, on the other hand, does it follow that a person with mental impairment is a danger to the community, indicating a need for community protection (principle 5). Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. What the principles spelled out by McClellan CJ at CL do is direct attention to considerations that experience has shown commonly arise in such cases. There is, however, no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for.
10. Finally, the comments of McClellan CJ at CL in Bhuiyan v R are applicable to a case such as the present: [12] "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."
11. I turn now to consider the application of the principles and factors relevant in the present case in more detail.

Maximum penalties

1. The maximum penalty for the offence of manslaughter is imprisonment for 25 years. [13] Nonetheless, it is well accepted that the offence of manslaughter covers a wide variety of circumstances, calling for a wide variety of penalties. Determining an appropriate sentence for manslaughter is acknowledged to be "notoriously difficult". [14]
2. The maximum penalty for the offence of robbery armed with an offensive weapon is imprisonment for 20 years. [15]

The circumstances of the offences

1. The facts as to what occurred in relation to these offences have been set out in detail in the reasons for verdict, R v Le [2019] NSWSC 483. Although I have taken those facts into account, it is sufficient for present purposes to note the following outline of what occurred: 1. The offender and Mr Shen had worked together at a meat processing factory and had kept in touch subsequently. Mr Shen knew that the offender was familiar with using, and had access to, butcher's knives and similar equipment. He also knew that the offender was "a little bit crazy". Indeed, the offender had been admitted to psychiatric facilities on a number of occasions in the period from 2010 to 2015. 2. Mr Shen knew the deceased, where he lived and where he garaged his car. He also knew that the deceased had ready access to cash. Approximately one month before 28 March 2015, the day on which the offences were committed, the relationship between Mr Shen and the deceased had broken down and at some point thereafter Mr Shen formed the intention of having the deceased robbed. 3. In the early hours of 28 March 2015, Mr Shen and the offender exchanged text messages which conveyed that Mr Shen knew a person who had come into some money and the offender should be involved in robbing that person of the money and that the offender agreed to be involved if Mr Shen let him know the details. 4. During the day of 28 March 2015 and into the evening, the offender was with Mr Shen or in contact with him by mobile phone. In this way the offender obtained details from Mr Shen of where the person who was to be robbed could be found and confronted, namely in the underground car park under his block of units in Campsie that evening. 5. The offender did not know the deceased. 6. On the evening of 29 March 2015, the offender drove from his home in Cherrybrook to Campsie. After telephone calls with Mr Shen, the offender went to the deceased's block of units and waited for him in the underground car park. When the deceased returned at about 11:30pm, the offender confronted him. Because the offender misinterpreted the situation and lost control of himself, the offender commenced a savage attack on the deceased with a knife or blade stabbing and slashing the deceased's upper chest, head and neck. The deceased attempted unsuccessfully to escape the attack but the offender moved with him through the underground carpark inflicting in the order of 20 significant stabbing and slashing wounds. Eventually, the deceased's throat was cut, leaving a gaping wound, and his interior jugular vein was severed. Within minutes, he died as a result of loss of blood, lying on the car park floor. 7. The offender took the deceased's black satchel bag, which contained an unknown amount of cash, and the deceased's mobile telephone with him, left the underground car park and returned to his home in Cherrybrook. Early the next morning, the offender disposed of the satchel bag at a reserve near Castle Hill.

Objective seriousness

1. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending. [16]
2. All crimes of homicide are serious because they involve an attack on the sanctity of human life. In this case, the manslaughter offence involved a very significant level of violence and brutality that was sustained until the victim was dead or on the point of death.
3. The armed robbery offence involved planning, the threat and use of violence with a knife or blade to obtain money and possessions from the deceased and the taking of the cash and possessions.
4. It was submitted on behalf of the Crown in relation to the manslaughter offence that the offender's acts which led to the death of the deceased were not momentary or spontaneous. It was submitted that the attack was planned as well as being brutal, relentless and sustained. In response, the offender submitted that, while it could be said that the armed robbery offence was planned, a similar finding should not be made in relation to the manslaughter offence.
5. What occurred was that the offender agreed to Mr Shen's proposal to rob the deceased. Further, the offender took the necessary steps to prepare for the robbery, arm himself with a knife or blade and position himself so that he could confront and rob the deceased in the underground car park just outside the garage where he parked his car. The armed robbery offence was clearly premeditated and planned.
6. Notwithstanding this, the offender's role in committing the armed robbery should also be viewed in the light of the fact that Mr Shen was the instigator. He knew that the offender was "a little bit crazy" and I am satisfied, on the balance of probabilities, that Mr Shen exploited this vulnerability of the offender in order to have him carry out the armed robbery. The offender's carrying out of the armed robbery was premeditated and planned, but his role was only that of the perpetrator, not the instigator. To that extent, the objective seriousness of the armed robbery offence may not be as great as it might otherwise have been.
7. As to the manslaughter offence, it was not premediated or planned in the same way in which the armed robbery offence was. I accept the offender's submission that the death of the deceased occurred in the process of the armed robbery "gone wrong". As I found in my earlier reasons, the offender misinterpreted the situation and lost control of himself, because of his psychosis, when he was attempting to carry out the robbery. This is what led to the manslaughter offence. Nonetheless, that offence involved the taking of human life in a frenzied attack that arose out of an armed robbery where the reaction of the victim was unpredictable. Its seriousness should not be impermissibly minimised.
8. The Crown submitted that it should be found, in respect of the manslaughter offence, that the offender's acts were done with an intention to kill. As this is a fact which would be adverse to the interests of the offender, it is necessary for that fact to be established beyond reasonable doubt. [17] I was satisfied beyond reasonable doubt that the acts of the offender which caused the death of the deceased were done with the intention of killing or inflicting grievous bodily harm. However, in the light of my finding that the offender lost control of himself and misinterpreted the situation that presented itself when he first confronted the deceased because of his psychosis, I am not satisfied beyond reasonable doubt that the offender formed the specific intent of killing the deceased when carrying out the relevant acts.
9. The Crown submitted, and the offender did not take issue with the submission, that the offences were committed in the "home" of the deceased, and that this was an aggravating factor within s 21A(1)(eb) of the Sentencing Procedure Act. The word "home" in this context includes "not only the actual physical residence but the area on the same premises, at least reasonably adjacent to that building". [18] The garage and car park area of the deceased's block of units formed part of the same building as his residence and was one where he could reasonably have the expectation of safety and security as being in his home. The fact that the offences were committed in the deceased's home increases the objective seriousness of the offences.
10. The Crown submitted that both offences fell "well into the middle of the range of objective seriousness". Ms Hall did not cavil with the assessment of the offending being in the mid‑range of offending for these types of offences. In all the circumstances including, in particular, the matters already referred to, I accept that it is appropriate to characterise the objective seriousness of both offences as well within the mid-range.

Background and psychiatric condition

1. The offender is a 59-year-old man who was born in Vietnam, moved to Hong Kong, and arrived in Australia in 1985. Not long after his arrival in Australia he married and the couple have three sons, who are in their late teens and mid-20s. In about 2010, the offender was divorced but he continued to live in the same house in Cherrybrook with his ex-wife, after that time.
2. He was a butcher and owned a butcher shop but sold the business in 2014 and has not worked since then. At the time of his arrest in January 2016, he had been on a disability support pension for about a year.
3. The offender's psychiatric condition was the subject of a report of 31 May 2019 by Dr Andrew White, a medical officer with the Custodial Mental Health section of Justice Health. In that report, it was noted that the offender's first contact with the mental health services was in 2010 when he was admitted to hospital on four occasions in May, June and July of that year. It appears that during this time he was taking illicit drugs including, but not limited to, amphetamines and barbiturates. His diagnosis was drug induced psychosis but schizophrenia or bipolar disorder was thought to be possible. He remained on medication until January 2011 but did not achieve good insight and continued to use methamphetamines from time to time.
4. His family reported that he began to deteriorate in February 2013. On 21 March 2013 he was admitted to hospital again, having grandiose delusions thinking he was or should be the Prime Minister and was driving around at night looking for supporters who would back him. He believed he was being followed by police and was receiving messages through songs played on the radio. He wanted to help the world and thought he had sufficient support that he should be able to negotiate with the government. He was thought to be suffering from schizophrenia, exacerbated by drug use and was discharged on 2 April 2013 on medication. He remained in contact with the community mental health team and was seemingly stable through the rest of 2013. There were concerns about his condition and his compliance in mid-2014, at which time his antipsychotic medication was changed. He then lost contact with mental health services until his admission in June 2015, after the offences were committed.
5. On 6 June 2015, the offender went to Richmond Air Base and was seen by staff wearing a belt with butcher's knives hanging off it and he was observed to be "odd and acting silly and crazy" and was looking paranoid. The next day he was taken to a hospital by his son who reported a two week history of deterioration with irritability, not sleeping and being verbally aggressive. He had been using methamphetamines and had grandiose delusions of being the King of Australia and had been waving at people from his car as his son drove him to hospital. He was discharged on medication on 23 July 2015. Thereafter he remained free of psychotic symptoms or mood disturbance and remained compliant with medication. Shortly before his arrest in January 2016, he was noted by his case manager to be amotivated, withdrawn and difficult to engage.
6. In custody, he was continued on his medication and remained free of psychotic symptoms. On 12 May 2016 he was admitted to the Mental Health Screening Unit (MHSU) where he presented as dishevelled, blunted in affect with slow speech and poverty of thought. His medication was changed. He was discharged from the MHSU in early June 2016 but did not come to the Hamden area in the MRRC until December 2016. Since being there, there has been essentially no change in his condition. Dr White reported that he presented as someone with significant negative symptoms of schizophrenia, being somewhat dishevelled, speaking slowly with little spontaneity and in brief sentences. There was poverty of thought, restriction of affect and limited engagement. He denied psychotic symptoms and there have been no signs of psychosis.
7. On recent examination, the offender displayed limited insight. Although he accepted his diagnosis of schizophrenia he could not say anything about what it meant or why he had it. He minimised his symptoms that had given rise to past admissions to hospital and did not want to discuss them. He had some insight into the significance of his amphetamine use but did not seem to understand fully the impact it had had on him and his illness.
8. Dr White diagnosed a schizoaffective disorder that had, during the course of his illness, manifested itself in three acute episodes that had been characterised by persecutory and grandiose delusions and referential delusions. At these times he presented as manic. These acute episodes all occurred in the context of methamphetamine use but persisted for many weeks, beyond what would be expected for a purely drug induced manic episode. Between these episodes, there appeared to have been presentations of quite severe negative symptoms of schizophrenia. He also qualified for a diagnosis of methamphetamine abuse which was currently in remission in the custodial environment. There was no evidence consistent with a diagnosis of any particular personality disorder nor was there any evidence of an intellectual disability.
9. As to future treatment, Dr White was of the view that: "[g]iven the severity of his offence and his negative symptoms of schizophrenia it is our opinion that that rehabilitation should take place, at least initially, in a setting of high therapeutic security. This means he will require admission to the Forensic Hospital at Malabar."
10. It appears that he would be likely to be accepted for admission into the Forensic Hospital sometime in early 2020, if that were otherwise appropriate.

Substantial impairment

1. In the offender's case, it should be taken into account that the finding of manslaughter was based upon the offender being substantially impaired for the purposes of s 23A of the Crimes Act. Consequently, he was found to have committed the offence of manslaughter and not murder.
2. In particular, in my view the offender's impairment did not go significantly beyond what was required to make out the partial defence of substantial impairment. While I was satisfied to the requisite standard that the offender's capacity to understand events and his capacity to control himself were impaired by his abnormality of mind arising from his schizoaffective disorder, I was not satisfied that it relevantly impaired his capacity to judge whether his actions were right or wrong. In addition, I was satisfied that the degree of impairment was not slight or insignificant but I do not accept that it went beyond that.
3. As stated in my earlier reasons, this was a case where the taking of the deceased's life was the consequence of a deliberate and voluntary act on the part of the offender performed with intention to kill or cause grievous bodily harm. In such a case, his abnormality of mind can be said to diminish his responsibility for his actions but it does not negate such responsibility. [19]
4. While the offender's moral culpability in respect of the manslaughter offence may be seen to be reduced because of his mental illness, this is already reflected to a significant extent in the verdict that the offender was not guilty of murder but, on the limited evidence available, the accused committed the offence of manslaughter, being an offence available as an alternative to the murder offence charged.

Other consequences of the offender's mental illness

1. In relation to the armed robbery offence, unlike the manslaughter offence, it does not appear that the offender's mental health contributed to a very substantial degree to that offending. Accordingly, the offender's moral culpability in respect of the armed robbery offence may be reduced on that account, but any reduction should not be seen as large. I have taken into account, as mentioned already, the extent to which the offender was vulnerable to exploitation and being induced to participate in the armed robbery.
2. Given the nature and effect of the defendant's mental illness, I accept that the offender is not a particularly appropriate vehicle for general deterrence and the need for specific deterrence can be seen as somewhat reduced in the offender's case. In addition, denunciation remains a factor that should be given some weight in the present case, albeit reduced on account of the offender's mental illness.
3. It was not submitted on the offender's behalf that the custodial environment would necessarily be more onerous for him as it was acknowledged that he would be receiving the treatment that he needed in custody, which might well not otherwise be available. Accordingly, I do not accept that any reduction in the limiting terms would be appropriate on that basis.
4. Conversely, if the offender was in the community and his mental illness was untreated, it appears that he could pose a significant risk to the safety of the community, especially if his methamphetamine abuse did not remain in remission or he did not comply with his regime of medication. Thus, the protection of the community weighs to a certain extent against any substantial reduction in the limiting terms to be imposed.

Record of previous convictions

1. The offender has a very limited history of previous convictions involving only one offence committed in July 2010 of being armed with intent to commit an indictable offence for which he was given a s 9 bond for 12 months. I accept, as the offender submitted, that this is would not disentitle him to leniency.

Remorse

1. The offender's insight into his mental illness and his offending is extremely limited. I note that Ms Hall stated the following during her oral submissions and I have taken it into account, such as it is: "my instructions today are that Mr Le continues to have no memory of the offence, however, having heard all of the evidence, he would like me to tell the Court that he is sorry".
2. It was expressly not submitted by the offender that the Court would find there was evidence of remorse sufficient to satisfy the condition in s 21(A)(3)(i) of the Sentencing Procedure Act. This was correct. Nor was there any evidence of contrition.

Prospects of rehabilitation

1. The offender's lack of insight and the absence of any apparent progress in his mental condition, apart from the absence of psychosis, in the last three years, mean that the concession by the offender's counsel that his prospects of rehabilitation and his likelihood of reoffending "could not be other than guarded" was appropriate.
2. I accept that at his age, there is some likelihood that the offender will slow down and, as Dr White observed, he may suffer neurocognitive and psychosocial decline.

Totality and accumulation

1. The principles to be applied in determining whether the limiting terms should be concurrent or consecutive are the same as those applied in relation to sentences. [20] What is important is that an appropriate limiting term is nominated in respect of each offence; and, then, that the total effective limiting term nominated properly reflects the totality of the criminality. The offences in the present case occurred at the same time against the same victim in a single episode. Indeed, the manslaughter offence arose out of the armed robbery offence "going wrong". Thus, the criminality of the manslaughter offence comprehends to a substantial extent that of the armed robbery offence. However, the armed robbery, unlike the manslaughter, was planned and involved the taking of property. In my view, while the limiting terms ought to be largely concurrent to avoid the risk of the combined terms exceeding what is warranted to reflect the totality of the two offences, there is a need for some accumulation to reflect the different criminality involved.

Time spent in custody

1. As has been noted already, the offender has been in custody since 28 January 2016. He has been a forensic patient since 30 April 2018. A limiting term can be specified to be taken to have commenced at a time earlier than when the order is made, after taking into account the periods of the offender's custody or detention before, during and after the special hearing. [21] It is appropriate for the limiting term in respect of the armed robbery to date from 28 January 2016.

Comparative cases

1. The Crown also provided references to the sentences or limiting term imposed in eight recent manslaughter by substantial impairment cases. I have had regard to those cases and the outcomes in reaching my decision, but I have also taken into account the particular circumstances of the offences and the offender in this matter, which involves both manslaughter and armed robbery.

Victim's Impact Statement

1. The Court may accept a victim impact statement, in a case such as the present, after a verdict following a special hearing under the MHFP Act that on the limited evidence available an accused committed an offence. [22]
2. Where this occurs, the Court must acknowledge receipt of the victim impact statement. [23] However, the Court is not to consider the statement when determining the limiting term to be imposed on the offender. [24] It may be relied upon for other purposes but these are not relevant in the present case. [25]
3. On this basis and subject to the limitation on the use to which the victim impact statement can be put in this case, I acknowledge receipt of the victim impact statement of Ms Anita Ke dated 5 June 2019, which was tendered but not read out in court. The victim impact statement was expressed in dignified and clear terms. It detailed the immediate impact of the death of her father and the longer term traumatic effects upon Ms Ke and her mother. Although she notes that her condition is improving with the support of her husband, her mother and her friends, for Ms Ke there is a void that can never be filled because of the loss of her father.
4. It is appropriate for me to acknowledge the sadness and grief which Mr Ke's family have suffered and will continue to suffer as a result of the offender's actions. Ms Ke and her mother and Mr Ke's wider family have the very sincere condolences of the Court for his death and the emotional, physical and financial toll it has taken on them.

Nomination of limiting terms and other orders

1. Taking into account all of the findings referred to in my earlier reasons for verdict, the evidence before the Court on this aspect of the matter and all of the reasons I have referred to, I propose imposing limiting terms in accordance with the MHFP Act and making consequential orders as to the offender's custody and treatment.
2. In respect of the offender, Ze Ren LE: 1. For the manslaughter of Xun KE, a limiting term of 10 years is nominated to date from 28 January 2017 and expire on 27 January 2027. 2. For the robbery of Xun KE whilst being armed with an offensive weapon, a limiting term of 8 years is nominated to date from 28 January 2016 and expire on 27 January 2024. 3. Pursuant to s 24 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the offender is referred to the Mental Health Review Tribunal. 4. The offender is to be held in custody in an appropriate institution until further assessment by the Mental Health Review Tribunal.

Endnotes

1. Under s 14 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act).
2. Under s 19 of the MHFP Act.
3. R v Le [2019] NSWSC 483
4. Section 22(3)(a) of the MHFP Act.
5. Section 23(1)(a) of the MHFP Act.
6. Section 23(1)(b) of the MHFP Act.
7. R v Mailes (2004) 62 NSWLR 181; at [32] [2004] NSWCCA 394.
8. R v AN [2005] NSWCCA 239 at [13].
9. R v Mitchell [1999] NSWCCA 120 at [35] (Beazley JA, Sperling and Hidden JJ); 108 A Crim R 85.
10. RS v R [2013] NSWCCA 227 at [32]; 235 A Crim R 430.
11. R v Engert (1995) 84 A Crim R 67 at 68.
12. [2009] NSWCCA 221 at [30].
13. Section 24 of the Crimes Act.
14. R v Green [1999] NSWCCA 97 at [24].
15. Section 97(1) of the Crimes Act.
16. Muldrock v The Queen (2011) 244 CLR 120 at [27]; [2011] HCA 39.
17. The Queen v Olbrich (1999) 199 CLR 270 at [27]; [1999] HCA 54.
18. R v Lulham [2016] NSWCCA 287 at [5]; 263 A Crim R 287.
19. R v Dawes [2004] NSWCCA 363 at [34]
20. R v Mitchell [1999] NSWCCA 120 at [35]; 108 A Crim R 85. The relevant principles are usefully summarised in R v XX [2009] NSWCCA 115 at [52] (Hall J, Tobias JA and Kirby J agreeing); 195 A Crim R 38.
21. Section 23(5)(a) of the MHFP Act.
22. Section 30L(1)(a) of the Sentencing Procedure Act. It can be noted that s 33L only came into force on 27 May 2019.
23. Section 30L(2) of the Sentencing Procedure Act.
24. Section 30L(4) of the Sentencing Procedure Act.
25. See for example s 30L(3) of the Sentencing Procedure Act. 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: 21 June 2019