R v Mitchell [1999] NSWCCA 120 | Case summary

Should This Court Nominate the Limiting Term? 33 As the trial judge erred in his approach to the nomination of the limiting term, the question arises whether the Court should nominate the term itself. Counsel for the appellant submitted that the limiting term must be nominated afresh (and invited this Court to embark on that process) as, it was submitted, it was impossible to discover whether, and if so how, the trial judge was influenced by his error in dividing the limiting term. He also submitted that the trial judge in fact erred in the manner in which he dealt with the objective and subjective factors which were relevant to the nomination process. In particular, he submitted that his Honour (i) failed to assess and make factual findings as to the appellant's mental state; (ii) failed to have proper regard to the appellant's mental state when considering the subjective factors of a guilty plea, remorse, and deterrence; (iii) wrongly had regard to the sentence imposed on Wilson, the principal offender; and (iv) imposed a term which was excessive. 34 The Crown accepted that this Court could re-sentence the appellant, but submitted that the limiting term ought not be disturbed because the trial judge's error was merely technical and required correction only by eliminating any reference to the minimum and maximum term. We are inclined to agree that his Honour's error in this regard was technical. If the error is technical only and no other error is demonstrated, it will not be necessary to embark upon a renomination of the term. However, it is necessary to deal with the other challenges raised by the appellant to determine whether his Honour's nomination was otherwise affected by error. If it was more than a technical error it will be necessary to re-determine the limiting term. If the Court is required to enter upon this process, the same principles apply to this process as apply to re-sentencing if error is found. The proper approach to re-sentence was considered by the Court in Moffitt. Badgery-Parker J (Samuels JA and Wood J agreeing) stated at 127: "[w]here it appears that the sentencing process at first instance was vitiated by error of law, it is necessary for this Court itself to determine what sentence ought to have been imposed. Having made that determination, the Court has to consider whether as a matter of discretion it ought to intervene. It would not do so if it came to the conclusion that, notwithstanding the error of law made by the sentencing judge, the sentence which [the judge] in fact imposed was that which, or was not markedly different from that which a correct application of principle would have produced." 35 As s 23 requires that the best estimate be made of the sentence the appellant would have received after a normal criminal trial, the trial judge must have regard to usual sentencing principles. In R v Maclay the Court (Gleeson CJ, Hunt CJ at CL and Loveday J) said, at 122-123, that in sentencing under s 5 of the Sentencing Act, the sentencing judge is to give: "…appropriate weight to well-established principles of sentencing, including those which require him to pay due regard to the maximum penalty provided by the statute for the offence in question, the gravity of the objective features of the case, and all relevant subjective considerations relating to the offender, [following which the sentencing judge] is to determine what is an appropriate term during which the offender is to remain in custody before being eligible to be released on parole." 36 The "well-established principles of sentencing" were identified in Veen (No 2) (1988) 164 CLR 465 at 476 to be the "protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform". 37 The trial judge took into account the maximum sentence prescribed for the offence (25 years); the seriousness and premeditated nature of the assault; parity with the sentence imposed on Wilson, the principal co-offender; the appellant's prior record; his plea of guilty at the first trial before Johnston DCJ; the question of remorse; general and personal deterrence; and the question of what account should be taken of the appellant's mental condition. 38 As the appellant's medical condition impacted to a significant extent on various of the subjective features which were relevant to sentence, we will turn to that issue first. The Appellant's Medical Condition 39 Although the medical evidence was not entirely consistent, it was clear that the appellant suffered from a chronic psychiatric condition. Dr Eaton, the appellant's treating psychiatrist, described the appellant as being "psychiatrically ill" and that over the period he had treated him, which was from 1992 to 1994, his condition had fluctuated. At one stage Dr Eaton diagnosed the appellant as having a Major Depression with delusional features. Over the period of his treatment he noted increasing depression, paranoid distorted perception and eventually the development of a psychosis. 40 The other psychiatric evidence in the case was that of Drs Barclay, Wong and Strum. Psychometric testing was also carried out by Mr Taylor, psychologist. Dr Barclay was of the opinion that the appellant suffered from a paranoid schizophrenic illness. Both Drs Wong and Strum diagnosed him as suffering from Major Depression with delusional or psychotic features. Mr Taylor considered that the appellant had a psychotic disturbance in which he was suffering both thought process and content disorder. The doctors were at issue, however, as to whether, notwithstanding the appellant's mental state (whatever be the precise diagnosis), he was able to understand, at the time of the commission of the offence, that what he had done was wrong. If he did not know what he had done was wrong, he would have been entitled to be found not guilty on the grounds of mental illness. Dr Barclay was of the opinion that he did not know that what he had done was wrong. Drs Wong and Strum considered that he could and did. The jury's verdict, that on the limited evidence available the appellant committed the offence charged, meant that it rejected the defence of mental illness and found that the appellant did understand that what he had done was wrong. The verdict involved an acceptance of Dr Wong and Dr Strum's evidence and a rejection of that part of Dr Barclay's evidence. 41 In his remarks in nominating the limiting term, the trial judge noted that the appellant was under psychiatric care at the time of the offence. However, consistent with the jury's verdict, he rejected Dr Barclay's evidence that at the time of the offence the appellant did not know that what he was doing was wrong. His Honour found: "On balance I accept that he was suffering depressive symptoms. This seems common among the other psychiatrists. I accept that he felt persecuted by women, and in particular Miss Sommer, and perhaps had some delusions. However, taking into account the jury's verdict that he knew the nature and quality of his act and that what he was doing was wrong the question is, what allowance do I make for his condition?" 42 His Honour answered the question he posed himself by reference to the words of Hunt CJ at CL in R v Wright (1997) 93 A Crim R 48 at 51: "But if the offender acts with knowledge of what he was doing and with knowledge of the gravity of his actions the moderation need not be great." 43 His Honour concluded: "I believe that is the case here; that is that the moderation of sentence should not be great." 44 His Honour also appears to have accepted the evidence of Dr Barclay that the appellant was dangerous. See also Dr Strum's evidence. It should be noted that this is another factor militating against the extension of leniency to the appellant: see Veen (No2) (1988) 164 CLR 465 at 476-7; Engert (1995) 84 A Crim R 67 at 71. 45 It should also be noted that his Honour expressly referred to the relevance of a person's mental state to questions of deterrence in sentencing. His Honour referred to R v Mooney [1978] CrimLJ 351 where it was held that "in the case of an offender suffering from a mental disorder or abnormality general deterrence is a factor which should often be given little weight". His Honour also referred to R v Anderson [1978] VR 155, where it was held that the court should take account of the offender's mental condition by giving little weight to general deterrence, because such an offender is not an appropriate medium for making an example to others. His Honour also referred to R v Scognamilio (1991) 56 A Crim R 81, R v Letteri (unreported, New South Wales Court of Criminal Appeal, 18 March 1992) and R v Wright (1997) 93 A Crim R 48. The relevant principles were summarised by Gleeson CJ in R v Engert at 70-1, where the Chief Justice emphasised the need for flexibility in their application to the facts of a particular case. 46 We reject the appellant's contention, therefore, that the trial judge did not take the appellant's mental condition into account. Should the Accused Person Have the Benefit of Mitigating Presumptions? 47 Counsel for the appellant next submitted that the appellant's mental condition which made him unfit to be tried cut across the subjective factors which otherwise would have been relevant to sentence, in that it adversely affected his ability to decide to plead guilty and his capacity to show remorse. He submitted that the appellant was thereby deprived of the opportunity of mitigating his limiting term by virtue of his incapacity. It was contended that certain presumptions should be made in favour of a person subject to the procedure under s 23 of the MH(CP) Act. In particular, it was argued that, where an accused is demonstrably unfit to plead and there is no clear evidence of the accused's intentions with respect to a plea, the Court, for the purpose of nominating a limiting term, should presume a plea of guilty had been entered at an appropriate time. Unless such a presumption was made, it was said that an accused would be penalised by virtue of the statutory presumption that "at a special hearing the accused is to be taken to have pleaded not guilty". 48 The same point was made in respect of the subjective factor of remorse, that is, that where a defendant's mental state adversely affects his or her capacity to feel and express remorse, the Court should presume the existence of remorse as a mitigating subjective factor in sentencing, because to do otherwise would be to penalise the defendant for his or her mental illness. 49 In our opinion, the structure of s 23(1) of the MH(CP) Act and s 82 of the MHA, which provides for at least six monthly reviews, does not support the existence of presumptions in favour of an accused person. Nor can any general principle be laid down as to whether and how such subjective factors should be taken into account. Each case must be determined having regard to its own circumstances. The following example demonstrates why this must be so. A person may be found unfit to be tried for an offence committed many years earlier. It may be that the person's mental condition, upon which the finding of unfitness to be tried is based, was not present during a significant period prior to that finding. It may also be the case that during the period prior to becoming unfit to plead, the person did not show signs of remorse. Indeed, it might be proved that the person was not remorseful at all. It might also be that during that period the person did not assist investigations and was determined not to plead guilty. To allow such a person the benefit of these presumptions and mitigate the sentence accordingly would give the person the benefit of subjective matters contrary to the facts. 50 Alternatively, it may be that in the period prior to trial, an accused person had shown remorse, personally commenced rehabilitation, and had assisted authorities. However, at a time shortly prior to trial, the person had suffered a mental illness so as to be unfit to be tried. Should that person be deprived of the benefits of the subjective mitigating factors which would have been relevant to sentence after a normal criminal trial? It is difficult to see that that could be the case. Such a person should have the mitigating benefits of those factors otherwise a court would be failing to apply the statutory prescription that the limiting term must be the "best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial". 51 It seems to us, therefore, that the trial judge must look at the particular circumstances of the case and have regard to subjective factors to the extent that they existed at any time after the commission of the offence and before sentence. If a person's mental state means that such subjective factors were not, and because of that mental state could not be, present at relevant times, we are of the opinion that no presumption operates in the accused person's favour and no account can be taken of the absence of those subjective factors. In other words, the court must nominate a limiting term, having regard only to such factors as are in fact present and relevant. In a case where a person's mental condition prevents or inhibits there being subjective factors to take into account, the factors which will be relevant or of primary significance must thereby be objective ones, such as the seriousness of the charge and parity of sentence, if that is a relevant factor. 52 It follows from this approach that a person who has been the subject of a special hearing should not be presumed to have entered a guilty plea or demonstrated remorse. There is nothing in the scheme of the MH(CP) Act to suggest that any other approach is warranted and the statutory presumption of a not guilty plea in s 23(1)(b) is a clear indication that such an approach is not intended. Indeed, to proceed upon such a basis would be speculative and carry with it the danger that too much or too little weight might thereby be attached to the presumption. 53 What then are the subjective and objective factors to which the sentencing judge should have had regard in this case? Plea of Guilty 54 It will be recalled that the appellant had pleaded guilty at an early stage in his first trial and was found guilty of the offence charged. The verdict was quashed by the Court of Criminal Appeal. Subsequently, having been found unfit to be tried, he was statutorily presumed to have pleaded not guilty. No other course was permitted to him. The consequence was that he was subject to as full a trial as was possible given the nature of a special hearing under the MH(CP) Act. 55 In nominating the limiting term, Holt DCJ took into account that the appellant had, at one stage, pleaded guilty and that s 439 of the Crimes Act permitted (but did not require) him to reduce the appellant's sentence on account of that plea. However, his Honour attributed little weight to the guilty plea in reducing the sentence because of the "extremely strong" Crown case and the lateness of the plea. He also held that the guilty plea was not necessarily indicative of remorse. 56 The Crown submitted that the appellant was not entitled to a discount for pleading guilty where no plea of guilty was entered, irrespective of his capacity to plead. The Crown further submitted that the trial judge probably erred in taking into account the earlier guilty plea, but in doing so was unnecessarily generous rather than adverse to the appellant. The Crown also submitted that one of the principal reasons a discount is given for a guilty plea was a recognition of the accused having spared the community the expense of a trial and recognition that such a plea may be indicative of remorse. In this case there had been a special hearing, which of its nature did not spare the community that expense. 57 The fact that the appellant pleaded guilty before Johnson DCJ raises a factual issue not covered by the two simple scenarios discussed previously and raises the question whether it was a relevant consideration for the trial judge and if so, whether any discount should have been given for that plea. The answer to the first part of the question is, we believe, straightforward. It is a matter of which account should have been taken by the trial judge and considered in context. It is likely that at the time of entering the plea, the appellant was not fit to plead. If he was not fit to plead, it seems difficult to see how the plea can be a mitigating factor for the purposes of nominating the limiting term under s 23(1)(b). If that is correct, the trial judge, by having regard to the initial plea, was generous to the accused. If the appellant was fit to plead at the time of the initial plea of guilty, we are of the opinion the trial judge applied the correct principles and made no error in the application of those principles. Remorse 58 Counsel for the appellant submitted that the trial judge had failed to determine "whether the appellant's mental state was itself complicit in any lack of demonstrable remorse". He submitted that if that was found to be the case, as he said it should have been when regard was had to Dr Barclay's evidence, the appellant was entitled to a presumption in his favour that he had shown remorse. We have already rejected the notion that the appellant was entitled to any presumption in his favour. His Honour also considered the question of remorse in relation to the initial plea of guilty, noting a plea is often a demonstration of remorse, but not where there are countervailing factors - such as a strong Crown case as his Honour found here. 59 Finally, his Honour held that the appellant had in fact shown no remorse after the assault on the victim. Indeed, it was his attempt to arrange a further assault on her which led to his arrest. His Honour was clearly entitled to have regard to the appellant's insight into the gravity of his wrongdoing. Given those matters, the finding of the jury that the appellant understood that what he was doing was wrong and the late plea of guilty before Johnson DCJ, his Honour concluded: "… [the appellant's] part in the crime as its fons et origo outweighs any reduction of the sentence he seeks because of his psychological state and his late plea of guilty after the strong Crown evidence has been admitted" (emphasis added). 60 This conclusion, and the findings on which it was based were clearly open to his Honour. Accordingly, this challenge to his Honour's nomination also fails.

R v Mitchell

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