R v RAG (No. 3) [2025] NSWDC 36

R v RAG (No. 3) [2025] NSWDC 36

Given the seriousness and circumstances of the offending, abuse of trust, the ages of the victims, and considering all countervailing subjective factors, terms of imprisonment would have been imposed for the offences if the proceedings were ordinary criminal trials. Accordingly, under s 63(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), limiting terms must be imposed totalling 7 years and 6 months for all counts, adjusted for totality, gravity, aggravating and mitigating factors, and requiring referral to the Mental Health Review Tribunal.

Parties
Prosecutor: Office of the Director of Public Prosecutions (ODPP); Offender: RAG
Jurisdiction
Australia
Judgment Date
28 February 2025
Procedural Posture
Criminal / Sentence After Special Hearing Following Finding of Unfitness to Be Tried
Outcome
Limiting terms imposed; offender referred to Mental Health Review Tribunal; orders for detention in nursing home pending Tribunal review.
Legal Topics
Limiting Term, Special Hearing, Sexual Offences, Fitness to Be Tried, Mental Health Impairment
Criminal Law Limiting Term Special Hearing Sexual Offences Fitness to Be Tried Mental Health Impairment

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Parties

Office of the Director of Public Prosecutions (ODPP)

Prosecutor

RAG

Offender

Procedural Posture

Criminal / Sentence After Special Hearing Following Finding of Unfitness to Be Tried

Legal Issues

  1. 1 What penalty should be imposed for sexual offences committed by an offender found not fit to be tried following a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
  2. 2 Whether sentences of imprisonment would have been imposed if the special hearing had been an ordinary trial
  3. 3 What is the appropriate limiting term reflecting the overall criminality and totality

Ratio Decidendi

Given the seriousness and circumstances of the offending, abuse of trust, the ages of the victims, and considering all countervailing subjective factors, terms of imprisonment would have been imposed for the offences if the proceedings were ordinary criminal trials. Accordingly, under s 63(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), limiting terms must be imposed totalling 7 years and 6 months for all counts, adjusted for totality, gravity, aggravating and mitigating factors, and requiring referral to the Mental Health Review Tribunal.

Court Disposition

Limiting terms imposed; offender referred to Mental Health Review Tribunal; orders for detention in nursing home pending Tribunal review.

Orders

  • Individual limiting terms totalling 7 years and 6 months, imposed for counts 1, 3, 4, 6, 8, 12, 13, 14, 15, 16, 17 as specified.
  • Offender referred to the Mental Health Review Tribunal under s 65(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).