Bhuiyan v R [2009] NSWCCA 221

Bhuiyan v R [2009] NSWCCA 221

The sentencing judge identified and applied the principles concerning mental illness, general deterrence and custody, recognised that the task was to fix a limiting term by reference to the sentence that would otherwise have been imposed on an offender unfit for trial but suffering from a mental illness not excusing the offence, and considered the matters relied on under s 21A. Although the offences were below the middle range of objective seriousness and the applicant had compelling subjective circumstances, the offences were serious, involved unprotected sexual intercourse and a knife, and an 8 year limiting term for count 3 with the count 1 term concurrent was not excessive.

Jurisdiction
Australia
Judgment Date
02 September 2009
Procedural Posture
Criminal Appeal / Application for Leave to Appeal Against Severity of a Limiting Term Imposed Pursuant to S 23(1)(b) of the Mental Health (criminal Procedure) Act 1990, Now Known as the Mental Health (forensic Provisions) Act 1990
Outcome
Leave to appeal granted but appeal dismissed.
Legal Topics
['severity Appeal' 'limiting Term' 'general Deterrence' 'mental Disorder in Sentencing' 'special Circumstances' 'sexual Intercourse Without Consent']
['criminal Law' 'sentencing' 'mental Health and Criminal Procedure'] ['severity Appeal' 'limiting Term' 'general Deterrence' 'mental Disorder in Sentencing' 'special Circumstances' 'sexual Intercourse Without Consent']

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Procedural Posture

Criminal Appeal / Application for Leave to Appeal Against Severity of a Limiting Term Imposed Pursuant to S 23(1)(b) of the Mental Health (criminal Procedure) Act 1990, Now Known as the Mental Health (forensic Provisions) Act 1990

Legal Issues

  1. 1 ['Whether the sentencing judge placed too great a weight on general deterrence in determining the limiting term.' "Whether the sentencing judge failed to properly take into account the applicant's mental disorder in determining the limiting term." 'Whether the sentencing judge erred in finding special circumstances.' 'Whether the sentencing judge failed to refer to s 21A Crimes (Sentencing Procedure) Act 1999.' 'Whether the limiting term was excessive.']

Ratio Decidendi

The sentencing judge identified and applied the principles concerning mental illness, general deterrence and custody, recognised that the task was to fix a limiting term by reference to the sentence that would otherwise have been imposed on an offender unfit for trial but suffering from a mental illness not excusing the offence, and considered the matters relied on under s 21A. Although the offences were below the middle range of objective seriousness and the applicant had compelling subjective circumstances, the offences were serious, involved unprotected sexual intercourse and a knife, and an 8 year limiting term for count 3 with the count 1 term concurrent was not excessive.

Court Disposition

Leave to appeal granted but appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']