Jomaa v R

1. [1]

   PAYNE JA: I agree with R A Hulme J.

2. [2]

   HARRISON J: I agree with R A Hulme J.

3. [3]

   R A HULME J: Elias Jomaa (the applicant) was charged with six offences concerning drug supply and directing the activities of a criminal group. He was found unfit to be tried and underwent a special hearing under the provisions of Part 2 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act). His Honour Judge Buscombe returned verdicts on 16 November 2017 finding that, on the limited evidence available, the applicant committed the offences charged in counts 1 to 4 and 6 of the indictment. Those offences were as follows:

4. [4]

   Proceeding in accordance with s 23 of the Act, his Honour determined that if the special hearing had been a normal criminal trial of a person who was fit to be tried, he would have imposed sentences of imprisonment for these offences. He then nominated the following limiting terms, constituting his best estimate of the sentences that would have been appropriate if the special hearing had been a normal criminal trial of a person who was fit to be tried:

5. [5]

   The overall limiting term is one of 5 years from 2 February 2016 to 1 February 2021.

The consequences of nominating a limiting term

1. [6]

   A consequence of imposing limiting terms upon an accused person is that he/she becomes a "forensic patient" and is referred to the Mental Health Review Tribunal. The Tribunal is required to carry out an initial review in relation to the forensic patient and may make orders as to the person's care, detention or treatment. It may also make an order in relation to the person's release (unconditionally or subject to conditions): s 44 of the Act.

2. [7]

   The Tribunal is required to continue to carry out regular reviews, generally every six months: s 46 of the Act. Following these reviews, the Tribunal may make orders as to the patient's continued detention, care, treatment or release (unconditionally or subject to conditions): s 46 of the Act. One practical result of the requirement to carry out reviews is that it is not necessarily the case that the person will remain confined for the duration of the limiting terms, as would be the case for a person sentenced to a term of imprisonment.

The appeal

1. [8]

   Section 6A of the Criminal Appeal Act 1912 (NSW) provides for an appeal against a limiting term nominated in accordance with s 24 of the Act.

2. [9]

   On 14 January 2019, the applicant’s solicitors filed a Notice of Application for Leave to Appeal nominating the following as the proposed grounds:

3. [10]

   Counsel for the applicant indicated at the outset of the hearing of the application that Ground 2 would be abandoned.

Facts

1. [11]

   The Crown helpfully provided the following summary of the facts based upon the findings of the primary judge:

2. [12]

   According to his Honour's verdict judgment and sentencing remarks, the acts of supply that were alleged to constitute the offences in Counts 1 to 4 were as follows:

3. [13]

   The offence in Count 6 of directing the activities of a criminal group was alleged to be constituted by the applicant giving directions to his wife and two teenage sons concerning their involvement in the supply of drugs for money. His Honour was satisfied beyond reasonable doubt that $37,100 in cash found when their home was searched on the day of arrests was the proceeds of drug trafficking by "the criminal group".

4. [14]

   His Honour found that the offence in Count 1 was "towards the lower end of the range" of objective seriousness. The offences in Counts 2 to 4 were "below the midrange level … but not at the lower end of the range". No assessment was made in respect of the offence in Count 6.

Personal circumstances of the applicant

1. [15]

   The applicant relied upon the reports of two forensic psychiatrists, Dr Richard Furst dated 11 August 2016 and Dr Adam Martin dated 11 October 2016, a report of a review by the Mental Health Tribunal dated 28 March 2017, and documents derived from the files of Justice Health.

2. [16]

   The applicant was aged 45 when arrested on 27 August 2015. He had a long term addiction to prohibited drugs. He also had a significant criminal history and had served terms of imprisonment. His Honour, in effect, regarded the criminal record as one that denied the applicant the benefit of leniency that could be extended to a person without such a record.

3. [17]

   The medical evidence established that the accused suffered an intra-cerebral haemorrhage (a stroke) while in custody soon after his arrest. The applicant was a patient at Westmead Hospital for about a month and was then transferred to the Prince of Wales Hospital where he remained for over two months before being discharged to the medical/surgical unit at Long Bay Hospital.

4. [18]

   When Dr Furst interviewed the applicant on 1 August 2016, he found that the applicant was unable to provide much meaningful history because of his cognitive deficits and expressive aphasia. He had either a difficulty or an inability to respond to quite simple questions such as being asked where he was born or where he grew up. The applicant’s wife was present during the assessment and informed Dr Furst that he forgets her name and the children’s names and even forgets that she is his wife. The applicant’s mobility was affected to the extent that he required either a wheelchair or a stick. Dr Furst used a tool to make a “Mini Mental State Examination” with the result indicating “severe cognitive impairment/dementia”.

5. [19]

   Dr Furst noted a letter from a general practitioner which indicated that the applicant had suffered a basal ganglia stroke that had resulted in dysphasia and right hemiparesis. A CT scan conducted on 22 April 2016 was consistent with a cerebral infarction in the left middle cerebral artery having occurred about six months prior.

6. [20]

   Dr Furst made the following diagnoses:

7. [21]

   In the context of explaining his opinion that the applicant was unfit to be tried, Dr Furst provided the following:

8. [22]

   Dr Adam Martin interviewed the applicant on 1 October 2016 at the request of the Office of the Director of Public Prosecutions. He described him as looking much older than his stated age and noted that he was in a wheelchair, although he was able to ambulate extremely slowly with crutches. He said the applicant had significant difficulty in being able to express himself spontaneously and had apparent word-finding difficulty. His administration of a Mini Mental State Examination yielded a similar score to that administered by Dr Furst, consistent with the applicant having a significant cognitive impairment.

9. [23]

   Dr Martin's opinions were much the same as Dr Furst's. He agreed that the applicant was unfit to be tried. He also said:

10. [24]

    In its review in March 2017, the Mental Health Review Tribunal had the reports of Drs Furst and Martin as well as the benefit of the opinion of Dr Gerald Chew, a psychiatrist. At that stage the applicant was being held in the Aged Care Rehabilitation Unit at the Long Bay Hospital. Dr Chew made observations of the applicant’s condition similar to those of Drs Furst and Martin. Dr Chew's opinions were described in the report as follows:

11. [25]

    In this assessment, the primary task for the Tribunal was to determine whether the applicant might become fit to be tried at any point within the period of 12 months from the District Court’s finding of unfitness on 14 December 2016. It determined that question in the negative and ordered that the applicant remain in the Long Bay Correctional Complex for care and treatment.

12. [26]

    The primary judge then summarised the other material, derived from the Justice Health file, that was placed before him:

Relevant findings of the primary judge

1. [27]

   After referring to the medical evidence, his Honour expressed the following conclusion (relevant to Ground 4):

2. [28]

   His Honour found that the applicant was “unlikely to reoffend” (relevant to Ground 5):

3. [29]

   Perhaps being mindful of some of the purposes of sentencing listed in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour continued (relevant for Ground 5):

4. [30]

   It will be seen that from the various dates on which the limiting terms were set to commence, there was a degree of partial accumulation. As his Honour explained (relevant to Ground 3):

5. [31]

   His Honour explained that the first limiting term would be backdated to 2 February 2016 in order to allow credit for the period in which the applicant had already been held in custody.

Ground 5 – error in failing to find that the applicant was an unsuitable "vehicle" for both specific and general deterrence

1. [32]

   It is appropriate to deal with this ground first as it should be upheld in part.

2. [33]

   The case law is clear as to the various ways in which an offender's adverse mental condition may be relevant to the assessment of sentence: see, for example, Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (per McClellan CJ at CL). One aspect of potential relevance to present proceedings has been considered in many cases; that is, giving less weight to general deterrence because the offender is not an appropriate medium (or "vehicle") for making an example to others. That notion can be traced at least to R v Mooney (Court of Appeal (Vic), 21 June 1978, unrep) which was cited with approval in R v Anderson [1981] VR 155 at 159 and carried through to New South Wales authorities such as R v Scognamiglio (1991) 56 A Crim R 81, R v Engert (1995) 84 A Crim R 67 and many thereafter.

3. [34]

   Hunt CJ at CL explained why such a person is not an appropriate medium for making an example to others in R v Wright (1997) 93 A Crim R 48 at 51:

4. [35]

   The vast majority of cases discussing the sentencing of offenders with a mental or intellectual impairment speak in terms of giving "less weight", or even "very little weight" to general deterrence. One exception is R v Letteri (Court of Criminal Appeal (NSW), 18 March 1992, unrep) where Badgery-Parker J spoke of "an extreme case" where "considerations of general deterrence are totally outweighed by other factors".

5. [36]

   A theme that is consistent throughout the authorities, however, is that none of the principles (including the one presently under consideration) are absolute. As Simpson J (as her Honour then was) said in Aslan v R [2014] NSWCCA 114 at [34]:

6. [37]

   The applicant referred to R v Chong [2012] NSWSC 1309 as being analogous to the present case. It was a case in which when determining a limiting term in respect of an offence of murder, I accepted that no weight should be given to general (or personal) deterrence. The case concerned a 70-year-old man who sustained a catastrophic brain injury shortly after the murder occurred. He also suffered from a number of physical ailments. An expert recommended that the man would require "a supervised and secured environment to continue to function, especially if he is to be released into the community".

7. [38]

   The response to the applicant's reliance upon that case is to recognise it as an example of a judge forming a view based upon the peculiar factual circumstances in a particular case; however, those circumstances did not completely align with the circumstances in the present case. It certainly did not mandate that the judge in the present matter should have formed the same view.

8. [39]

   Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 was not relied upon by the applicant, but it also involved an acceptance that general deterrence was not relevant to sentencing. The Court accepted as "apt" the primary judge's finding that the offender's intellectual disability was "significant" (at 138 [53]). It found that if this Court had rejected the judge's finding that general deterrence had no place in sentencing, then it was in error in doing so. [1] Muldrock v The Queen, like R v Chong, turned on its own facts in relation to this aspect. It left open the possibility of a sentencing judge dismissing general deterrence as being relevant to sentence, but did not purport to determine the circumstances in which that must be done.

9. [40]

   Buscombe DCJ declined to find that the applicant was "an inappropriate vehicle for the expression, to some degree, of general deterrence". That was a finding that was perfectly open to him.

10. [41]

    Specific deterrence is another matter. As identified earlier, [2] the judge found that the applicant was "unlikely to be able to reoffend" and that "there is no need to give any weight to the protection of the community". However, in finding that "the need for specific deterrence is … reduced", he may be taken to have considered that there was in fact some prospect of the applicant reoffending. Having regard to the first two findings, the third was not available. In his current state, which is unlikely to change, there seems to be no likelihood of the applicant returning to drug dealing, or any other form of criminal behaviour that requires a modicum of forethought.

11. [42]

    For these reasons, specific deterrence was not a matter the judge should have taken into account, even at a reduced level, and so this ground must be upheld.

12. [43]

    It becomes necessary for this Court to exercise its own discretion in the determination of limiting terms in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at 618 [42].

Other grounds

1. [44]

   There is no need to discuss the applicant's other grounds in detail. They can be dealt with quite shortly in any event as I do not regard them as having any merit.

2. [45]

   The complaint of manifest excess in relation to the limiting term for the offence in Count 1 largely fell away with the abandonment of Ground 2. There is no other complaint about the assessment of the objective seriousness of the offence "as being towards the lower end of the range". Having regard to that finding, and being mindful of the prescribed maximum penalty for the offence being 15 years imprisonment, a limiting term of 12 months is not manifestly excessive.

3. [46]

   The complaint under Ground 4 fails because the judge specifically accepted that the applicant had, and would, experience more arduous custodial conditions. [3] Whether he gave sufficient weight to that matter is relevant to Ground 3.

4. [47]

   The complaint in Ground 3 of manifest excess in the total effective limiting term also fails. It was a matter for the judge's discretion, within appropriate bounds, to make an assessment of the degree to which there should be partial accumulation of some of the individual limiting terms. While it is a matter about which minds may legitimately differ, I am not persuaded that the judge exceeded the bounds of his discretion.

Reconsideration of the appropriate limiting terms

1. [48]

   At the hearing, the Crown tendered a transcript of an intercepted telephone conversation on 2 July 2015 involving the applicant and his supplier, Milad Eid. It was the subject of objection and was admitted provisionally. This transcript was one of a number in evidence at the special hearing and it was referred to in the judge's verdict judgment. [4]

2. [49]

   It was accepted by the applicant in the proceedings below that "on the evidence before the Court there was an ongoing drug supply business in which Mr Jomaa was engaging of which the particular supplies form a part". [5] The transcript has relevance in confirming what this Court might otherwise be capable of inferring; that is, that the applicant's dealing did not simply commence with the offence in Count 1 but had been entrenched and was of some significant scale well prior to that point. As was put by counsel for the Crown, the police detected the offences charged by simply intervening "in a moment in time". The relevance of this is limited to what the primary judge found; that the applicant "was engaged in a substantial business of selling heroin on a regular basis" and that the "large amount of cash found at the [applicant's] home, when it was searched, is consistent with the business having been very successful." In other words, the offending was not an isolated aberration.

3. [50]

   An affidavit affirmed by the applicant's solicitor was read in the event of "resentencing". It annexes reports by the Mental Health Review Tribunal of 13 July 2018 and 6 December 2018. They indicate that the applicant is being held in the Kevin Waller Unit at the Long Bay Correctional Complex for care and treatment. They do not indicate any significant improvement in his cognitive impairment. The latter report indicates that he has been approved as a participant in the National Disability Insurance Scheme; he has an assigned provider and is receiving various forms of support. Inquiries were being made as to appropriate accommodation for him to transition to in the community but, as the Court was informed by the applicant's counsel, no progress has been made in this regard. The report also confirmed that the applicant remains unfit to be tried.

4. [51]

   It should be accepted, as the judge found, that custodial conditions would be more onerous for the applicant; that he is unlikely to reoffend; and that protection of the community is not a relevant consideration. General deterrence has a role to play, although its significance is reduced. It cannot be discounted completely because of the prevalence and harm to community safety inherent in trafficking illicit drugs. There is a need to denounce the applicant's conduct to some degree and to recognise his moral culpability. Personal deterrence is not a relevant consideration.

5. [52]

   The written submissions for the applicant accepted the limiting terms of 2 years for each of the offences in Counts 2 to 4. In my respectful view, the judge's characterisation of the offences as being "below the midrange level of objective seriousness but not at the lower end of the range" was correct. Despite the low quantities and values involved in the individual supplies, they were serious offences because they were constituted by repetitive drug dealing in the context of a business operated by the applicant, and by family members at his behest, for financial gain. The financial gain was illustrated by the discovery of $37,100 in cash upon the applicant's arrest. Further, there is no doubt that throughout the three month period of offending, the applicant was fully aware of the wrongfulness of his conduct.

6. [53]

   The offence of directing the activities of a criminal group was concerned with the way the applicant engaged his wife and two teenage sons in this ongoing drug supply business. The activities were centred at the family home. A three year limiting term against the prescribed maximum penalty is entirely appropriate.

7. [54]

   There was no dispute that sentences of imprisonment would have been imposed if the special hearing had been a normal trial of criminal proceedings of a person who was fit to be tried. This Court should maintain the judge's finding for the purposes of s 23(1)(a) of the Act.

8. [55]

   I have come to a slightly different view to that of the primary judge on the application of the totality principle. As I have mentioned, the question of the degree to which there should be some partial accumulation is, within reason, a matter about which minds may legitimately differ. The criminality of the offence in Count 1, involving a single transaction, is subsumed by the criminality inherent in the ongoing supply offences, and it only preceded the first of them by 10 days, so no accumulation is warranted. The limiting terms for Counts 3 and 4 should be accumulated by 12 months each, rather than by 12 months for Count 3 and 18 months for Count 4. For the reasons given by the primary judge, the limiting term for Count 6 should be entirely subsumed by the other limiting terms.

9. [56]

   The total effective limiting term I propose is one of four years.

10. [57]

    The limiting terms I propose are, for the purposes of s 23(1)(b) of the Act, the best estimate of the sentences that would have been appropriate if the special hearing had been a normal criminal trial against a person who was fit to be tried.

11. [58]

    There is no need to make an order under s 24 of the Act referring the applicant to the Mental Health Review Tribunal as that has already occurred. The Court should simply confirm the primary judge's referral.

Orders

1. [59]

   I propose the following orders: