Regina v Graham Edward Mailes

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70084/02 FILE NUMBER(S) : LOWER COURT Wood CJ at CL JUDICIAL OFFICER :

• 2 - IN THE COURT OF CRIMINAL APPEAL 2004/1939

DUNFORD J ADAMS J HOWIE J

FRIDAY 3 DECEMBER 2004 REGINA v GRAHAM EDWARD MAILES Judgment 1 DUNFORD J: This is an application for leave to appeal against the limiting term of 25 years set by Wood CJ at CL following a jury verdict pursuant to s 22(1)(c) of the Mental Health (Criminal Procedure) Act 1990 (the MHCP Act) that on the limited evidence available, the applicant on 23 March 1996 murdered Kim Louise Meredith. 2 The applicant was arrested on 28 March 1996 and charged with the murder. On 22 April 1997, he was committed for trial to the Supreme Court, but prior to the trial commencing, his legal representatives raised the issue of whether the applicant was fit to stand trial and a fitness hearing was ordered. In February 1999, a jury found that the applicant was not unfit to be tried. His trial commenced on 27 April 1999 and on 15 May 1999, the jury returned a verdict of guilty. On 10 September 1999, Newman J sentenced the applicant to imprisonment for a term of 25 years and fixed a non-parole period of 18 years. 3 Once more prior to the trial and on two occasions during it the question of his possible unfitness was again raised but on each occasion Newman J declined to order a further fitness hearing. The applicant appealed against the refusal to order a further fitness hearing and this Court (Spigelman CJ, Wood CJ at CL and Greg James J) upheld the appeal, quashed the conviction and directed that there be a new trial: R v Mailes (2001) 53 NSWLR 251. 4 The matter was mentioned in the Supreme Court on 7 December 2001 to set a hearing date, but on that occasion the issue of whether the applicant was unfit to be tried was again raised by his legal representatives. Consequently, the matter was set down for a fitness hearing which was heard commencing on 4 April 2002 and on 11 April 2002, the jury found that the applicant was unfit to be tried. 5 The Solicitor General, as delegate for the Attorney General then directed that there be a special hearing pursuant to s 19 of the MHCP Act. Such special hearing commenced on 24 March 2003 before Wood CJ at CL and a jury. On 22 April, the jury returned a verdict pursuant to s 22(1)(c) of the MHCP Act namely that upon the limited evidence available, the applicant committed the offence charged that is, the murder of Ms Meredith. On 1 August 2003, Wood CJ at CL nominated a limiting term pursuant to s 23(1)(b) of the MHCP Act of 25 years and it is in respect of that limiting term that the applicant brings the present appeal. After an extensive review of the legislation and following the decision of this Court in R v Mitchell (1999) 108 A Crim R 85, his Honour declined to fix a non-parole period as part of the limiting term. 6 There is no dispute that in the light of the definitions of "conviction" and "sentence" in s 2(1) of the Criminal Appeal Act 1912, the verdict of a jury in the special hearing constitutes a "conviction", and that the limiting term nominated by the judge constitutes a "sentence" for the purposes of s 5(1)(c). 7 The facts of the offence and the subjective features of the applicant are set out in detail in the Remarks Nominating the Limiting Term: R v Mailes [2003] NSWSC 707. They may be briefly summarised as follows. 8 The deceased, who was a 19 year old university student, worked part time as a bar assistant at a hotel in Albury. After finishing work about midnight on 22/23 March 1996, she drove to another hotel where she met up with friends. She left there between about 1:30am and 1:45am on 23 March and was not seen alive again. It was the Crown case, accepted by the jury, that she was intercepted and killed by the applicant after leaving the second hotel. Her naked body was found in a car park at 2:58am on 23 March by a security guard. Her clothing was found in various locations nearby, as were her handbag and personal papers. 9 She had two incised wounds to the neck, one of which was the cause of death, as well as abrasions consistent with her body having been dragged from the location where she had been killed to an area nearby and back again, and two shoe impressions were found in the blood trail near her body, each of which was consistent with the sole pattern of the shoes worn by the applicant. Blood, the DNA of which was consistent with that of the deceased, was found on the applicant's trousers, shirt and joggers, and he was found in possession of a Guess brand wristwatch belonging to the deceased. There was also evidence that the applicant attempted unsuccessfully to access the deceased's bank account through an ATM machine at about 2:40am. 10 The applicant was born on 22 February 1973 and so was 23 years old at the time of the killing. He came from a disturbed background, having seen his father murdered in 1984 when he was aged 11 years. He had been found to be uncontrollable in 1985 and admitted to wardship in 1987, as a result of which he had spent a considerable portion of his life in institutions. He had over the years been reviewed and assessed by a number of psychologists and psychiatrists who had variously described him as intellectually disabled and suffering chronic brain syndrome, and moderate mental retardation, whose ability to comprehend things happening around him was grossly impaired, personality disorder, intermittent explosive disorder and an inability to accept responsibility for what had occurred. Dr Susan Hayes described him as functioning in the moderate range of intellectual ability at a lower level than 99.9 percent 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. There was no evidence of schizophrenia or psychiatric illness. 11 Wood CJ at CL found that although the applicant was street wise to a degree and capable of some independent living, his capacity for judgment and reasoning must be regarded as significantly impaired: [47]. He also found that he will continue to be a danger to the community, unless he maintains his medication and continues to be under close supervision: [56]. 12 The nature and conduct of special hearings in respect of persons found unfit to be tried are provided for in s 21 of the MHCP Act. Section 22 specifies the verdicts which a jury may reach at a special hearing, including "that on the limited evidence available, the accused person committed the offence charged": s 22(1)(c). The legal effect of such a verdict is prescribed by s 22(3) as follows: "(3) A verdict in accordance with subsection (1)(c)…..: (a) constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates; and

(b) subject to s 28, constitutes a bar to further prosecution in respect of the same circumstances; and

(c) is subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings; and

(d) is to be taken to be a conviction for the purpose of enabling a victim of the offence in respect of which the verdict is given to make a claim for compensation." 13 Section 23 deals with the procedure which the court must undertake after a finding under s 22(1)(c). It provides: "23(1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged.…the Court: (a) 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 offence which the person is found to have committed, it would have imposed a sentence of imprisonment or penal servitude; and

(b) where the court would have imposed such a sentence, must nominate a term, in this section referred to as "a limiting term", in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of committal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence." 14 Once the limiting term has been nominated, the court refers the accused to the Mental Health Review Tribunal (the Tribunal) and makes such orders with respect to custody as it considers appropriate: s 24(1). The Tribunal determines the appropriateness of hospital treatment and notifies the court accordingly: s 24(2), (3). The court may make an order as to the custody of the accused: s 27. Pursuant to ss 28-30 if, prior to release on the expiration during the limiting term, a person is found by the Tribunal to have become fit to be tried, and this is confirmed by the court, the criminal proceedings are continued, but if convicted any periods of custody or detention before, during or after, the special hearing must be taken into account in determining the period of any sentence. 15 If the accused is detained in a hospital, prison or other place, the accused is a "forensic patient": Sch 1, Mental Health Act 1990 (NSW). Thereafter, the continued detention of the accused is determined by procedures established by Chapter 5 of the Mental Health Act. The Tribunal must review forensic patients at least once every six months and make a recommendation to the Minister for Health as to the patient's continued detention, care or treatment, fitness to be tried for an offence and release (conditional or unconditional): s 82. A recommendation for release triggers a series of steps which may lead to the patient's release: ss 83, 84. 16 At the end of the limiting term, release from custody as a forensic patient is automatic. If the person is mentally ill or mentally disabled at the time the limiting term expires, and a medical practitioner is satisfied that no other appropriate means for dealing with the person are reasonably available, the person may be detained as a continued treatment patient: s 89, in which case the Tribunal may order his or her detention for further observation or treatment or both: s 57. The various steps and procedures are conveniently summarised in Tables 2 and 3 to the Mental Health Act, although not forming part of that Act. 17 The grounds of appeal were as follows: 1) His Honour erred in the particular circumstances of this case by not setting the overall term by reference to the minimum term originally imposed by Newman J.

2. Alternatively, the limiting term imposed was excessive insofar as, even should it be determined the limiting term should not in the circumstances have been strictly constrained by the prior minimum term, then at least the overall term should have been reduced by reference to that consideration. 18 Both grounds were based, as I understand the submissions, on the proposition that whereas under the sentence imposed by Newman J, the applicant had a right to apply for release on parole after 18 years, under the limiting term nominated by Wood CJ at CL he had no such right, and consequently was worse off as a result of his successful appeal, contrary to the principles which normally apply to re-sentencing after a successful appeal and re-trial. 19 It is now well established that ordinarily, where a person is sentenced following a re-trial consequent upon the quashing of a conviction by this Court, such person should not receive a longer sentence than that received following the first trial: R v Gilmore (1979) 1 A Crim R 416 at 419, R v Bedford (1986) 5 NSWLR 711, R v MM (2002) 135 A Crim R 216, R H McL v The Queen [2000] 203 CLR 452, although there will be exceptional cases where this prima facie approach may be departed from. The reasons behind the convention are explained in the cases cited, and it is unnecessary to repeat them here. 20 As the offence was committed prior to 1 February 2003, the relevant sentencing legislation is the Crimes (Sentencing Procedure) Act 1999 as it stood in relation to Part 4 Division 1 (ss 44-54) prior to the amendments effected by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002, no 90, although the amendments to s 21A effected by that Act were applicable at the time Wood CJ at CL nominated the limiting term. 21 Section 44 provided that when sentencing an offender to imprisonment for an offence, a court was required:

(b) secondly, to set a non-parole period for the sentence….." which was described as the minimum period for which the offender must be kept in detention in relation to the offence, whilst subs (2) provided that the non-parole period must be not less than three quarters "of the term of the sentence" unless special circumstances were shown. " Sentence ", when used as a noun, is defined in s 3(1) of that Act as " the penalty imposed for an offence ". These provisions make it clear that the " sentence " is the total or head sentence, and the non-parole period is merely a part of the " sentence ". 22 The MHCP Act s 23(1)(b) requires the judge to nominate as the "limiting term" the best estimate of the "sentence" the Court would have considered appropriate if the person had been found guilty of the offence at the normal trial. "Sentence" is not defined in the MHCP Act so I would regard "sentence" in that Act as having the same meaning as in the CSP Act, namely the total or head sentence and not the non-parole period. Wood CJ at CL in setting the limiting term was therefore required by s 23 of the MHCP Act to make the best estimate he could of the head sentence the Court would have considered appropriate if the applicant had been fit to be tried and been found guilty of the offence in a normal trial. 23 A similar approach was taken in R v Mitchell (1999) 108 A Crim R 85, a case decided when the Sentencing Act 1989 was in force. In that case, a special hearing having found that on the limited evidence available, the applicant had committed the offence, the judge nominated a limiting term of 18 years and 8 months, divided into a minimum term of 14 years and an additional term of 4 years and 8 months. The applicant appealed and submitted that the judge erred in dividing the limiting term into a minimum and an additional term. In a joint judgment, the Court held that s 23 of the MHCP Act did not authorise such a division and only required the nomination of a total term saying at [21]: "There is nothing in the wording of the section which warrants the nomination of a minimum and additional term. Nor does the purpose and policy of this section indicate that the limiting term should be so divided. In the first place, a minimum term is inconsistent with the (MHCP) Act review process under which a person subject to a limiting term may be released at any point prior to the expiration of the limiting term. Secondly, to do so would not serve any rehabilitative purpose as is the case under the Sentencing Act 1989 (NSW)." 24 In response to a submission that the limiting term under s 23 should be an estimate of the minimum term and not of the whole sentence, the Court observed that whether a prisoner was released at the end of the minimum term depended on a consideration of the matters specified in s 17 of the Sentencing Act (now s 135 Crimes (Administration of Sentences) Act 1999) which included giving primacy to the public interest, having regard to the prisoner's behaviour during the minimum term and having regard to whether the prisoner, if released, would be able to adapt to normal lawful community life. The Court noted that the additional term specified the period beyond which the person could no longer be detained or otherwise subject to penal supervision, and contrasted that with the limiting term which is the period beyond which a person cannot be detained for the offence which was the subject of the special hearing, and noted that such right to release was fundamental to the whole structure of the legislation. 25 In response to the submission that if the limiting term was an estimate of the total sentence, a person could be detained until the expiry of the entire term, and thus potentially be subject to a longer period of detention than the prisoner released on parole of the expiry of the minimum term, the Court said at [32]: "In our opinion, the appellant's submission on this point must fail. 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 s 23 is to ensure that a limiting term under the (MHCP) 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 (MHCP) Act the concern is with the person's mental state from time to time. A person dealt with under that 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." 26 This Court then proceeded to itself fix a fresh limiting term and fixed it at 18 years 4 months, which was the total of the minimum and additional terms fixed by the trial judge. 27 Although the Sentencing Act has been repealed and replaced by the CSP Act, I am satisfied that this case remains authoritative under the later Act and should be followed. 28 Although the terminology has been changed ("non-parole period" for "minimum term", etc) and there is no express provision in the CSP Act similar to s 5(4) of the earlier Act, the scheme of s 44 as it stood before the 2002 amendments is, so far as relevant for present purposes the same, namely a non-parole period which is the minimum term for which the prisoner must be kept in detention, and a further period during which he or she may be released to conditional liberty on parole.

29 There is, in my opinion, yet a further reason why the "sentence" referred to in s 23 must be a reference to the total sentence and not to the non-parole period. The only authority in the CSP Act for setting a non-parole period which is less than the total sentence is s 44 which is in Division 1 of Part 1 of the Act; but s 54 expressly provides that the Division does not apply to the sentencing of an offender to detention under the MHCP Act. A corresponding provision was formerly to be found in s 13(d) of the Sentencing Act, but it only provided that the relevant Part of the Act did not apply to detention under ss 25 or 39 of the MHCP Act, which relate to detention following a verdict of not guilty on the ground of mental illness. The broader exclusion in the CSP Act is, in my view, significant and must have been intended to refer to all detention under the MHCP Act, including detention under ss 23, 24 and 27. Consequently, simply as a matter of construction, there is no statutory authority in the case of a limiting term for fixing a non-parole or equivalent period at less than the total term. 30 It was submitted that this approach gave rise to an anomaly in the case of persons sentenced to terms of imprisonment for not more than 3 years because in those cases the sentencing court is required to make an order for their release on parole: s 50, and so limiting terms of not more than 3 years would need to have a non-parole period fixed so that s 50 could be complied with. However, s 50 is also in Division 1 of Part 4 and consequently does not apply in the case of limiting terms. Not only is there no authority to fix a non-parole period, but in the case of limiting terms of not more than 3 years, there is no authority for the sentencing court to order earlier release on parole during that period. 31 Incidentally, although not relevant to this case, similar considerations would apply to the new s 44 inserted by the 2002 amendments and applicable to offences committed after 1 February 2003. The section now talks of a "non-parole period for the sentence": sub-s (1) and the "balance of the term of the sentence": sub-s (2). What was s 51 has now become s 54D, and, so far as is relevant, is in the same terms. 32 The objects of sentencing a person who has been convicted of a crime following a trial are the punishment of such person and the other objects set out in s 3A of the CSP Act. The object of nominating a limiting term is not to punish the person who has not been convicted of any crime, but to ensure that he or she is not detained in custody longer than the maximum the person could have been detained if so convicted following a proper trial, although such person may be released prior to the expiration of such limiting term depending on the person's condition, or if such person becomes fit to be tried during such term, he or she can be tried according to law and if found guilty at such trial, can have a proper sentence fixed with a non-parole period. The maximum time that a person can be detained if convicted at a proper trial is the head or total sentence not the non-parole period: MHCP Act s 28 which sentence must take into account any time served under a limiting term. 33 When the appeal was called on for hearing, Mr Dalton, who appeared for the applicant, said that he had indirectly received some information which suggested that one of the factual propositions on which the reasoning in Mitchell was based, namely that persons serving limiting terms were subject to regular reviews by the Mental Health Review Tribunal and could in appropriate cases be released, conditionally or otherwise, pursuant to s 84 prior to the expiration of such limiting terms, was incorrect, and that there was an executive policy that such persons were not to be released prior to such expiration. 34 He therefore sought an adjournment to obtain relevant evidence on this point. The Court refused the adjournment but granted him and the Crown leave to obtain further evidence on the issue and make further written submissions thereon. The Legal Aid Commission, on behalf of the applicant, and the Director of Public Prosecutions both wrote to the Mental Health Review Tribunal which provided a single reply to both requests; and this correspondence together with both sets of further Written Submissions have now been received. 35 In reply to the question whether there is a policy regarding conditional release of persons serving limiting terms, the Tribunal acknowledged its jurisdiction under ss 80(1)(b) and 82 of the Mental Health Act and stated it did not have a policy on the release of such persons prior to the expiration of such terms. It pointed out that generally persons serving limiting terms have an intellectual disability (such as the applicant) and not a mental illness, and usually such persons are detained in the correctional system, subject to the same security classifications as other inmates but, because they do not have non-parole periods, they are not eligible for early release. On the other hand, persons who have a mental illness may spend part or all of their limiting term in hospital receiving treatment for their mental illness, and up to 6 months prior to the expiration of their limiting term they may be classified as a "continued treatment patient" under s 89 of the Act which leads to the cessation of their forensic status and their continued confinement as a compulsory treatment patient under s 57. 36 The Tribunal advised that it was particularly difficult for persons with intellectual disability serving limiting terms to obtain conditional early release because such applications are seldom made on their behalf and there is a severe lack of support services in the community to manage such persons post release. It was therefore unlikely the Tribunal would be able to satisfy itself on the question of management of risk to the patient or the community. The Tribunal also advised that there is in fact no one currently under its jurisdiction, serving a limiting term who has been released prior to the expiry of their limiting term. In response to a similar enquiry, the Attorney General replied that in determining whether to object to the release of a limiting term forensic patient, he would consider each case on its merits by reference to the grounds specified in s 84(1) of the Mental Health Act. 37 The responses of the Tribunal and of the Attorney General indicate that there is no official executive policy to ensure that persons subject to limiting terms are not released conditionally or unconditionally prior to the expiration of the limiting terms although, in practice, such early releases are most unlikely, at least in the case of intellectually disabled inmates. 38 However, the Court's reasoning in Mitchell was based on the proper construction of the legislation and, in my view, is not affected by the material now adduced or its practical application. The effect of the statutory provisions, including the possible early release of persons subject to a limiting term remains valid and Mitchell should continue to be followed. 39 The difficulties facing intellectually disabled persons subject to limiting terms has been raised by the Tribunal and considered by, inter alia, the Law Reform Commission which, in its Discussion Paper no: 35, People with an Intellectual Disability and the Criminal Justice System: Courts and Sentencing Issues (October 1994) raised the possibility of amendment to the legislation so that the limiting term was divided into minimum and additional terms, but in its final report on the issue: Report no 80 (December 1996) expressly rejected the proposal.

40 Once it is accepted that the limiting term is to be nominated by reference to the head or total sentence that would have been imposed following a conviction in a proper trial and without the setting of a non-parole period, and Wood CJ at CL having nominated a limiting term which is not in excess of the head sentence imposed by Newman J following the first trial, there can be no breach of the convention referred to in Gilmore and the other cases cited above. I assume for present purposes that the convention is applicable to the setting of limiting terms, although this may not necessarily be so, and the question, on which I express no concluded view, may need to be considered if it subsequently arises. 41 It follows that the first ground of appeal must fail. 42 As to the second ground of appeal, it was submitted that if the MHCP Act did not authorise the provision of a limiting term consisting of a non-parole period and a head sentence, or if Gilmore and that line of cases did not require the limiting term to be fixed by reference to the non-parole period fixed after the trial at law; then having regard to the difficulties faced by persons subject to serving limiting terms in obtaining early release, as outlined in the Tribunal's reply, the limiting term should be fixed at something less than would be appropriate for a head sentence following conviction at a proper trial, to take account of these factors, and it was suggested that the position should be regarded as analogous to that of a prisoner serving a sentence on protection. In addition, reference was made to what was said by Matthews J in R v Boyle (unreported - 18 September 1992). 43 The difficulty with the submission is that it is contrary to the statute which, as I have shown, requires the limiting term is to be set by reference to the head sentence that would have been imposed following a guilty verdict in a proper trial. The fact that there is no provision for the equivalent of a non-parole period does not affect the term of the head sentence that would otherwise have been imposed, and there is no logical reason for reducing it simply because there is no provision for a non-parole period or its equivalent. 44 In addition, the submission is inconsistent with the reasoning in Mitchell where the different objects and different consequences of a regular sentence and the nominating of a limiting term were explained. I have dealt with these above and it is not necessary to repeat them. 45 The applicant is not a prisoner serving his sentence on protection but is accommodated in the ordinary section of the gaol, and at the time of the proceedings before Wood CJ at CL was housed in the Special Unit of Long Bay and employed as a sweeper. Any disadvantages he suffers in relation to his imprisonment do not relate to the conditions of his incarceration, but to the unlikelihood of early release. In fact, any alleged unfairness in not being eligible for early release on parole is more apparent than real because, just as his prospects of early release during his limiting term under s 82 are virtually negligible, the same factors would hinder his release on parole under a proper sentence having regard to the requirements of s 135 of the Crimes (Administration of Sentences) Act. 46 Boyle was a particularly anomalous case in that, although of full mental capacity at the time of the alleged commission of the offences and at the time of the committal proceedings, the offender subsequently attempted to commit suicide, as a result of which he sustained severe brain damage and his mental capacity was grossly impaired. He was found unfit to be tried and later at a special hearing, found to have committed the offences. The case is clearly distinguishable from the present, and is not of assistance on the interpretation of the relevant statutory provisions. 47 I am therefore satisfied that the second ground also fails and no error has been disclosed in the nominating of the limiting term. 48 I would grant leave to appeal, but dismiss the appeal. 49 ADAMS J: I agree with Dunford J. 50 HOWIE J: I agree with Dunford J. **********

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