R v Mailes

R v Mailes - [2003] NSWSC 707 - NSWSC 2003 case summary — Zoe

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35 As a result of attempts to manage his problems through supervision and medication, he has spent a considerable amount of his life in institutions, including Minali, Clairvaux, Knights Hill, a hostel at Lithgow and Woodstock. Since then his residential circumstances have varied significantly, ranging from having lived rough, to taking up residence with his maternal uncle and aunt in Forbes. He does have some support from his sister and some maternal relatives, although clearly their ability to manage his problems is severely limited. 36 Material was placed before the Court from Mr Beilby, a clinical psychologist who reviewed his case in June 1990, at a time when he had been placed in Minda Detention Centre for his own protection and welfare. That report reveals that between April 1989 and April 1990 he had resided at a privately run hostel for developmentally disabled persons at Lithgow. A brief return to his parents was terminated due to his unmanageable and violent conduct, after which he was scheduled to Wagga Wagga Base Hospital and to Kenmore Hospital before again being discharged to his family home, with a diagnosis of Chronic Brain Syndrome and moderate mental retardation. Almost immediately afterward he was rescheduled because of reports of unmanageable and violent conduct on his part. 37 Dr Robert Tym diagnosed him at this time, so Mr Beilby's report shows, as having an intermittent explosive disorder, moderate intellectual retardation, borderline personality disorder, and query epilepsy. 38 While at Minali and at Ormond in May and June he was reported to have continued to engage in acts of aggression against other residents and staff, and as a consequence he was transferred to Talbot House Minda, where he came under the notice of Mr Beilby. His pattern of rage attacks in response to mild frustration, misconduct and impulsive actions continued, and in Mr Beilby's assessment "he is mildly retarded and appears to meet criteria for organic personality syndrome marked by explosive outbursts." 39 Dr Susan Hayes, who undertook a clinical psychological assessment of the defendant on 26 June 1996 and again on 28 April 1998, initially reported that he was functioning in the moderate range of intellectual ability at a level lower than 99.9 per cent of the population, and that in relation to the skills of daily living, he was functioning at a moderate to severe level of intellectual disability. Her findings in 1998 were consistent with these results, although on this occasion she reported a recent history of attempts at self harm and suicidal behavior, indicating to her that he was subject to fairly rapid mood swings. 40 An additional psychological report was tendered, which related to an assessment which had been made by Thelma Buchanan in March 1991 while the defendant was a resident at the Woodstock Centre. She noted his history of outbursts and aggressive behaviour, and indicated that he was functioning in the mild range of intellectual disability, with an uneven pattern of cognitive functioning, and an understanding at a simple concrete level, at best, of the difference between right and wrong.

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54 Finally in relation to the subjective circumstances of the defendant, I note that there is no evidence to suggest that he has shown any true contrition or remorse for his criminality on this occasion, or that he has any real insight into it. In this regard he has placed a letter before me, written on his behalf by another inmate, in which, while expressing sorrow for the victim's family and offering an apology to them, he maintains his assertion that he was only an accessory after the fact to murder. It may be that as a result of his intellectual disability, he has persuaded himself that this is the case, but while ever he maintains that stand any remorse which he expresses for the deceased and her family must be considered as qualified. 55 Although preventative detention is not permissible, R v Twala NSWCCA 4 November 1994, the need to protect the community from the offender was recognised in Veen v The Queen (No 2) (1988) 164 CLR 465, and it has now been reinforced by s 3A(c) of the Crimes (Sentencing Procedure) Act 1999 as one of the purposes of criminal punishment. 56 Having regard to the psychological and psychiatric evidence, the personal history of the defendant, and the absence of any real solution for the defendant's intellectual and personality problems, I find that he will continue to present as a danger to the community, unless he maintains his medication and continues to be under close supervision. I also find that he possesses a degree of cunning which, in this instance, saw him manufacture a false defence by which he assigned responsibility for the killing to another young man. 57 On any view, these circumstances do not favour well for his prospects of rehabilitation. The brutal and senseless nature of the attack in this case was such that, in other circumstances, it could well have brought the offence within the reach of s 61(1) of the Crimes (Sentencing Procedure) Act 1999. However, the developmental disabilities of the defendant are such that it would be inappropriate to impose the maximum available sentence. 58 Otherwise, I have taken into account, in determining what would have been an appropriate sentence, had the defendant been found guilty at a normal trial, the various matters referred to in s 21A of the Crimes (Sentencing Procedure) Act 1999 as in force following the amendments, which commenced as and from 1 February 2003, including the circumstance that the offence involved the infliction of extreme violence with the use of a weapon, resulting in death, as well as those relating to the intellectual disability of the defendant. 59 In this respect, the provisions of the Act which would have been applicable to a normal trial conducted at the time of the special hearing would have differed, to that extent, from the provisions applicable when Newman J passed sentence, that having occurred on a date which also preceded the introduction of the original s 21A, which came into effect on 15 April 2002.

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Limiting Term 60 As I have already observed, pursuant to s 23(1) of the Mental Health (Criminal Procedure) Act 1990, my task is to determine whether, if the special hearing had been a normal criminal trial and the accused had been fit to be tried, and had been found guilty, the Court would have imposed a sentence of imprisonment, and if so, to nominate a limiting term, being "the best estimate of the sentence that would have been considered appropriate". 61 Clearly the answer to the first of those questions, as appears from the foregoing reasons, is in the affirmative. 62 On any view, the objective circumstances of this brutal and predatory killing were very serious and were such as would inevitably require the imposition of a substantial term of imprisonment had this been a normal trial, even allowing for the intellectual impairment from which the defendant suffers, and for the circumstance that his self-control was probably inhibited, to a degree, by the effects of the alcohol, which he had consumed this night. 63 As to the second question, it was held in R v Mitchell (1999) 108 A Crim R 85 that the limiting term was to be an estimate of the total sentence, rather than of the non parole period or minimum term. The sentencing law that would have applied to a normal trial, in that instance, was that embodied in the Sentencing Act 1989, which called for the Court to firstly set a minimum term, which the prisoner must serve, and an additional term during which the prisoner might be released on parole, being a term which could not exceed one-third of the minimum term, unless special circumstances were found. Section 5 of that Act provided: "(4) The minimum and additional terms set for an offence together comprise, for the purposes of any law, the term of the sentence of the Court for the offence." 64 As the Court noted (at para 29): "Whether or not the person is released at the end of the minimum term depends on a consideration of the matters specified by s 17 of the Sentencing Act . Those factors include giving primacy to the public interest, having regard to the prisoners' behaviour during the minimum term and having regard to whether the prisoner, if released, would be able to adapt to normal community life." 65 The Court continued: "The additional term specifies the period beyond which the person can no longer be detained or otherwise subjected to penal supervision." 66 By contrast it noted that a limiting term under the Mental Health (Criminal Procedure) Act is: "The period beyond which a person cannot be detained for the offence which was the subject of the special hearing." 67 In rejecting the appellant's submission that the limiting term under s 23 of the Mental Health (Criminal Procedure) Act should be an estimate of the minimum term, and not of the whole sentence comprising the minimum and additional term, the Court said at para 32: "Section 23 requires a comparative estimate of "the sentence" considered appropriate if the person had been found guilty after a normal trial. " The sentence" is expressly defined in s 5(4) to be the totality of the minimum and additional term. The "minimum term" is, by the terms of s 5(1)(a), a specified part or term of "the sentence" which is imposed under the section. The purpose in the comparative exercise required by section 23 is to ensure that a limiting term under the Act is neither more harsh nor more lenient than a total sentence would have been in a case of a person fit to plead. Thereafter the operation of the two Acts diverge to take account of the different circumstances with which they deal. In the case of the Sentencing Act , the concern is with the person's fitness for parole after having served the minimum term. Under the Act the concern is with the person's mental state from time to time. A person dealt with under the Act is subject to at least six monthly reviews by the Tribunal throughout the course of the limiting term, and may be released prior to the expiry of the limiting term. The fact that a person may be detained for the whole of the limiting period does not involve any unfairness. Rather, the two different schemes give recognition to the differing purposes of the two Acts." 68 As the Court had earlier noted (paras 15 to 17) the fixing of a limiting term under the Mental Health (Criminal Procedure) Act does not mean that the offender must be detained for the entirety of that term. Once a limiting term is fixed, the defendant becomes subject to the review procedure established by the Mental Health Act, and is subject as a forensic patient to the jurisdiction of the Mental Health Review Tribunal. The Tribunal is required to conduct reviews of such patients, at least once every six months, and may make recommendations as to their continued detention, care or treatment, their fitness to be tried and their release (s 82). At the end of the limiting term, their release from custody as a forensic patient is automatic. That is, unless he or she is determined to be mentally ill and such that no care of a less restrictive kind is appropriate and reasonably available. In such case the future detention is as a "continued treatment patient" (s 89). Otherwise, depending upon the Tribunal's finding, a person dealt with under the Act (subject to the provisions of ss 83 to 84) may be released prior to the expiry of the limiting term. 69 The decision in Mitchell also stands as authority for the following propositions:

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(b) that the limiting term is to be nominated having regard to the objective circumstances of the offence and to such subjective circumstances as are present and relevant. 70 The Crimes (Sentencing Procedure) Act which replaced the Sentencing Act, now requires that, when sentencing an offender to imprisonment, for offences committed on or after 1 February 2003 the Court is first to set a non parole period for the sentence, (being the minimum period for which the defendant must be kept in detention in relation to the offence) and then to set the balance of the term of the sentence, which is not to exceed one-third of the non parole period unless the Court decides that there are special circumstances for it being more (s 44). 71 The former s 44 of the same Act, which still applies to sentencing for offences committed before 1 February 2003, requires the Court to first set the term of the sentence, and secondly, to set a non parole period for the sentence (being the minimum period for which the offender must be kept in detention in relation to the offence), being a period not less than three quarters of the term of the sentence, unless the Court decides that there are special circumstances for it being less. 72 Although the Act, both as presently and previously framed does not repeat the s 5(4) definition of the earlier Sentencing Act, it is in my view clear that the same concept continues, namely that the sentence comprises both the minimum or non parole period, and the balance of the term or the additional term, as the case may be. 73 I have undertaken this review of the law since it has been submitted by the Crown that the same approach should be taken to the limiting term as was taken in R v Mitchell, while Mr Dalton for the defendant has submitted that the limiting term should not exceed that which was imposed by Newman J by way of a minimum term or non parole period. 74 So far as that submission may give cause for consideration whether the sentencing regime now applicable to this case should, as a matter of statutory interpretation, call for a different approach to that taken in R v Mitchell, I am satisfied, for the reasons already mentioned, that there is no reason for that to occur. 75 Mr Dalton's submission however went somewhat further, in so far as he contended that, if I were to set a limiting term which, for example, was equivalent to the total 25 year term imposed by Newman J, that would operate unfairly and expose the defendant to a greater term than had originally been set by way of minimum term. That this would be unfair, it was submitted, would arise through no fault of his own, but rather from the circumstance that he had successfully appealed from a conviction that had been defective by reason of procedural error, associated with the refusal of the original trial judge to order a fitness hearing during the earlier trial. 76 In advancing this argument reliance was placed upon decisions such as R v Gilmore (1979) 1 A Crim R 416, R v Mitchell [2002] NSWCCA 380 and R H McL v The Queen (2000) 203 CLR 452 which support the practice or convention that, on a new trial, consequent upon the quashing of a conviction by a Court of Criminal Appeal, the accused should ordinarily not receive a longer sentence, or non parole period, than those following upon the first trial. As Street CJ pointed out in R v Gilmore the application of this "principle" will necessarily yield in relation to the non parole period if some significant subsequent circumstances, such as an escape from custody or the commission of fresh offences occurs pending the retrial.

Parties

Applicant/Plaintiff:

Respondent/Defendant:

Mailes

Cases Cited (9)

CITATION : R v Mailes [2003] NSWSC 707 revised - 21/10/2003 HEARING DATE(S) : 24/3/03 - 22/4/03, 28/7/03 JUDGMENT DATE : 1 August 2003 JURISDICTION: Common Law Division JUDGMENT OF : Wood CJatCL at 1 DECISION : HIS HONOUR: 1. I determine that, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence of murder, which the defendant has been found to have committed, I would have imposed a sentence of imprisonment; 2. I nominate a limiting term in respect of that offence of 25 years to commence from 28 March 1996, being the date from which the defendant has been held in custody; 3. In accordance with the requirements of section 24 of the Mental Health (Criminal Procedure) Act, I refer the defendant to the Mental Health Review Tribunal; 4. Pending notification of the determination of the Tribunal and also pending further order of the Court, I order that the defendant be detained in a Correctional Centre.

CATCHWORDS : CRIMINAL LAW - Special Hearing - Murder - Limiting Term. Crimes (Sentencing Procedure) Act 1999: sections 3A(c), 21A, 61(1) LEGISLATION CITED : Mental Health Criminal Procedure Act 1990: sections 19, 23(1) Sentencing Act 1989 Eastman v DPP (ACT) [2003] HCA 28 R H McL v The Queen (2000) 203 CLR 452 R v Bedford (1986) 5 NSWLR 711 R v Gilmore (1979) 1 A Crim R 416 R v Merritt [2000] NSWCCA 365 CASES CITED : R v Mitchell (1999) 108 A Crim R 85 R v Mitchell [2002] NSWCCA 380 R v MM [2002] NSWCCA 431 R v Scognamiglio (1991) 56 A Crim R 81 R v Twala NSWCCA 4 November 1994 Veen v The Queen (No 2) (1988) 164 CLR 465 Weininger v The Queen [2003] HCA 14 PARTIES : Regina Graham Edward Mailes FILE NUMBER(S) : SC 70084/02 COUNSEL : P Conlon SC (Crown) D Dalton SOLICITORS : S E O'Connor D J Humphreys

(2000) 203 CLR 452

(1986) 5 NSWLR 711

(1988) 164 CLR 465

At a glance

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Before

Source

Judgment (66 paragraphs)

Parties

Cases Cited (9)