R v Mitchell [1999] NSWCCA 120

R v Mitchell [1999] NSWCCA 120

Section 23(1)(b) of the Mental Health (Criminal Procedure) Act 1990 (NSW) does not authorise division of a limiting term into minimum and additional terms; only a total term must be nominated. The proper approach requires considering the total sentence that would have been imposed under normal criminal trial procedures for a fit person, taking into account both objective and subjective factors relevant at any time after commission of the offence and before sentence, and assessing parity, plea and remorse in context. No mitigating presumptions can be made in favour of the accused due to unfitness. The limiting term of 18 years and 8 months was appropriate and not manifestly excessive.

Jurisdiction
Australia
Judgment Date
21 June 1999
Procedural Posture
Criminal Appeal / Judgment on Appeal
Outcome
appeal allowed
Legal Topics
['limiting Term' 'sentencing' 'mental Illness and Fitness to Be Tried' 'parity of Sentence' 'remorse' 'plea of Guilty']
['criminal Law' 'mental Health'] ['limiting Term' 'sentencing' 'mental Illness and Fitness to Be Tried' 'parity of Sentence' 'remorse' 'plea of Guilty']

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Procedural Posture

Criminal Appeal / Judgment on Appeal

Legal Issues

  1. 1 ['Does s 23(1)(b) of the Mental Health (Criminal Procedure) Act 1990 (NSW) authorise the division of a limiting term into minimum and additional terms?' 'What factors must be considered in nominating a limiting term under s 23(1)(b)?' 'Was the nominated limiting term manifestly excessive?']

Ratio Decidendi

Section 23(1)(b) of the Mental Health (Criminal Procedure) Act 1990 (NSW) does not authorise division of a limiting term into minimum and additional terms; only a total term must be nominated. The proper approach requires considering the total sentence that would have been imposed under normal criminal trial procedures for a fit person, taking into account both objective and subjective factors relevant at any time after commission of the offence and before sentence, and assessing parity, plea and remorse in context. No mitigating presumptions can be made in favour of the accused due to unfitness. The limiting term of 18 years and 8 months was appropriate and not manifestly excessive.

Court Disposition

appeal allowed

Orders

  • ['Appeal allowed.' 'Quash the determination below.' 'Nominate a limiting term under s 23(1)(b) of 18 years 8 months commencing on 10 December 1992.']