R v Wilson (No 5)

1. [1]

   On 12 February 2013, Jason Shepstone died at the home of Pearl Wilson, where he often lived with her, as a result of serious burns which she had inflicted when she poured boiling water over him. In R v Wilson [2015] NSWSC 1538 I found that Ms Wilson was unfit to be tried for his murder. After a special hearing conducted under the provisions of the Mental Health (Forensic Provisions) Act 1990 (NSW) before me as a judge sitting alone, in R v Wilson (No 4) [2017] NSWSC 1730 I found that on the limited evidence available, Ms Wilson was not guilty of Mr Shepstone’s murder, but guilty of manslaughter.

2. [2]

   This was a “qualified finding of guilt” made under s 22(3)(a) of the Mental Health (Forensic Provisions) Act, in the absence of a conviction. I must now indicate whether, if the special hearing had been a normal trial of a criminal charge brought against a person who was fit to be tried, I would have imposed a sentence of imprisonment on Ms Wilson: s 23(1)(a).

3. [3]

   If I conclude that I would have imposed such a sentence on Ms Wilson, then I must also nominate a limiting term: s 23(1)(b). As discussed in Warren v R [2009] NSWCCA 176 at [20], if a sentence of imprisonment would have been imposed, the Court must then nominate a limiting term, there being no power to suspend a limiting term and other sentencing options, such as imposition of a good behaviour bond, only being available if the Court determines that it would not have imposed a sentence of imprisonment on the offender.

4. [4]

   Such a limiting term must reflect the best estimate of the sentence which would have been appropriate, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried and who was found guilty. The purpose of such term is not to punish a person such as Ms Wilson, who has not been convicted of any crime, but to ensure that she is not detained in custody longer than the maximum period she could have been detained, if so convicted following a proper trial: R v Mailes (2004) 62 NSWLR 181; [2004] NSWCCA 394 at [32].

5. [5]

   In arriving at the length of any limiting term, account must be taken of the maximum period of imprisonment for manslaughter fixed by s 24 of the Crimes Act 1900 (NSW), namely, 25 years imprisonment, as well as the evidence and the cases which the parties each advanced, as to all relevant factors and principles that would otherwise have applied on sentence, had there been a normal trial: R v AN [2005] NSWCCA 239.

Issues

1. [6]

   In issue between the parties is whether at a normal trial, a sentence of imprisonment would have been imposed upon Ms Wilson for her offence.

2. [7]

   The Crown contends that despite Ms Wilson’s many undoubted problems, given the nature and seriousness of how she came to cause Mr Shepstone’s painful death, had this been a normal trial, she would have been sentenced to imprisonment for her offence. On the case advanced for Ms Wilson, the combination of circumstances which here arises for consideration are so unusual, that such a sentence would not have been imposed upon her.

3. [8]

   There was no issue between the parties that if it is concluded that a limiting term must be nominated for Ms Wilson and if the Court had power to do so, it would order that her bail be continued until the Tribunal makes a determination under s 24(3) of the Mental Health (Forensic Provisions) Act. It emerged at the hearing, however, that there was an issue between them as to the Court’s powers under s 24(1)(b), so to order Ms Wilson’s continued release from custody.

4. [9]

   For the reasons which follow I have concluded that a limiting term must be nominated for Ms Wilson, but that the Court does have power to order that her conditional bail continue until the Tribunal’s determination under s 24(3) is considered by the Court and orders are made under s 27.

Why a limiting term must be nominated

1. [10]

   As discussed in Bhuiyan v R [2009] NSWCCA 221 at [30], difficulties faced by a court when sentencing persons with mental disorders are compounded when the person is found not fit to be tried but, applying conventional principles, a court is required to determine a limiting term. In such cases:

2. [11]

   It must also be borne in mind that it is not possible to point to a “sentencing tariff” for the offence of manslaughter, because “of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability”: R v Blacklidge (Court of Criminal Appeal (NSW); 12 December 1995, unrep) per Gleeson CJ.

3. [12]

   As discussed in R v Hill (1981) 3 A Crim R 397 at 402 where, as in Ms Wilson’s case, there is material justifying a degree of real sympathy for an offender, the sentencing task is particularly difficult. Recognition must, however, be given to the felonious taking of human life being “one of the most dreadful crimes in the criminal calendar”. It is thus still necessary to evaluate what the demands of justice, the expectations of the community, the subjective circumstances of the offender and the interest of society and its members, in protection from criminal activity amounting to the taking of a life, require in Ms Wilson’s case.

4. [13]

   That task must be undertaken bearing in mind the purposes of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), which include ensuring that an offender is adequately punished: R v AB [2015] NSWCCA 57 at [41].

5. [14]

   It must begin with an assessment of the objective seriousness of what Ms Wilson did to Mr Shepstone, when she caused his undoubtedly painful death. When that is considered together with the other relevant matters which I will discuss, I am satisfied that a limiting term must be nominated in Ms Wilson’s case, albeit one considerably shorter than would have been the case, had she not suffered the very serious and unusual combination of mental and physical health problems from which she suffers.

6. [15]

   For its part the Crown accepted that there were, undoubtedly, a range of mitigating factors established by the evidence, relevant to the assessment of the objective seriousness of what Ms Wilson did to Mr Shepstone.

7. [16]

   The case advanced for Ms Wilson was that the objective seriousness of what she did was very considerably reduced, because in the circumstances in which she fatally injured Mr Shepstone, the line between excessive and lawful self-defence was a fine one; that Ms Wilson had not had the luxury of calm deliberation, in circumstances where she was relatively frail and weak compared to Mr Shepstone, despite his severe illness; and where she had herself been in danger of serious injury, evidenced by her injuries, which had been observed by police officers and the doctors who examined her. Further, that Ms Wilson had overreacted, in circumstances where there had been a history of attacks on Mr Shepstone’s part; where she had literally used what was at hand as a weapon; and where her overreaction had resulted in perhaps only one action of a second application of boiling water.

8. [17]

   It was also submitted to be relevant that this was not a case where death had been intended and that it had been a completely unexpected consequence of Ms Wilson’s actions, given the severity of Mr Shepstone’s illnesses, which cannot have been known to her. The steps which Ms Wilson then took, to care for Mr Shepstone, in solicitude for his welfare and despite their abusive relationship, were consistent with her not understanding the extent of his illness and the injuries she had caused him. Her subsequent actions had also established her distress and remorse.

9. [18]

   These submissions have to be considered in light of what I explained in Wilson (No 4) that the evidence had established. Ms Wilson did not then give any evidence, but there was evidence of the various accounts she had given to police officers and the experts who later examined her. There, I found that the evidence established that:

   1. (1)

      Mr Shepstone’s liver cirrhosis was so advanced in February 2013, that it could have led to his death at any time, but that the acts which Ms Wilson admitted having committed, which had resulted in him suffering burns to some 20% of his body, had contributed to what the experts agreed had actually caused his death on 12 February, namely, the consequences of hypervolemia;

   2. (2)

      while Ms Wilson had acted in self-defence, what she had done when she poured boiling water over Mr Shepstone as she did, had finally involved unreasonable and excessive retaliation;

   3. (3)

      there was a causal connection between Mr Shepstone’s violence toward Ms Wilson and her loss of self-control on 12 February, to which her mental impairments had made her vulnerable and that his conduct was such that it could have induced an ordinary person in her position, to have so far lost self-control, as to have formed an intent to inflict grievous bodily harm on Mr Shepstone; and

   4. (4)

      while Mr Shepstone’s imminent death from cirrhosis was hastened by Ms Wilson’s actions, the very substantial lifelong impairments she then suffered, through no fault of her own, were such that she would, in any event, have been found not guilty of murder, but guilty of manslaughter.

10. [19]

    The evidence on which these conclusions rested also established that Ms Wilson had not deliberately set out to cause Mr Shepstone’s death. Nor was there any suggestion that she had an awareness of the seriousness of the illness Mr Shepstone was then suffering. What I concluded in Wilson (No 4) the evidence did establish as to the nature and seriousness of what Ms Wilson did to Mr Shepstone, included that:

    1. (1)

       Ms Wilson did not cause all of the 65 blunt force injuries Mr Shepstone had suffered to his body and that his advanced liver disease had made him vulnerable to the bruising which he had suffered, when she struck him with the metal pole: at [47].

    2. (2)

       Only a limited number of Mr Shepstone’s bruises were, however, the result of Ms Wilson’s blows with that pole, which she had used with relatively limited force: at [48].

    3. (3)

       The evidence did not establish that when Ms Wilson struck Mr Shepstone with the pole, that she intended to cause him really serious injury: at [65]-[66].

    4. (4)

       It did establish, however, that when she poured boiling water over Mr Shepstone, causing his burns, Ms Wilson did intend to cause him really serious injury: at [68].

    5. (5)

       There was no doubt that Ms Wilson had used more than a cup of water to burn Mr Shepstone and further, that there had been more than one application of that boiling water: at [95].

    6. (6)

       Ms Wilson inflicted some of those burns while Mr Shepstone was lying down: at [97].

    7. (7)

       The pain caused by those burns, when combined with the effect of Mr Shepstone’s other injuries, was sufficient to have prevented him from taking the normal course Professor Maitz described a person in his position would have taken, namely, getting into a cold shower: at [102].

    8. (8)

       The evidence did not establish that Mr Shepstone’s bruising alone would have so incapacitated him, that he could not have grabbed Ms Wilson in the kitchen, as was her account, after she struck him with the pole: at [106].

    9. (9)

       The evidence also did not establish that Ms Wilson struck Mr Shepstone after she burnt him: at [111].

    10. (10)

        Mr Shepstone’s injuries were consistent with Ms Wilson having acted in the course of one episode, during which she lost her self-control, consistent with the evidence of the experts as to the consequences of her mental impairments, on her ability to exercise such self-control: [126].

    11. (11)

        Given the nature of Ms Wilson’s impairments and their impact on her functioning, she believed, at the time that she struck Mr Shepstone with the pole and at least when she first threw the boiling water at him, that her actions were necessary, in order to defend herself: at [128].

    12. (12)

        Given the consequences of Ms Wilson’s impairments, it was not established beyond reasonable doubt that when Ms Wilson poured more boiling water on Mr Shepstone, that she did not then believe that her actions were necessary, in order to defend herself: at [131].

    13. (13)

        There was a considerable loss of control involved in the way that Ms Wilson burnt Ms Shepstone more than once, which was consistent with Ms Wilson then acting in accordance with a belief, that all of her actions were necessary to defend herself and that such a belief was consistent with the consequences of all of her serious ailments and impairments: at [140].

    14. (14)

        That response was, however, not reasonable but excessive, Ms Wilson having moved from self-defence to unreasonable and excessive retaliation: at [145].

    15. (15)

        There was also a causal connection between Mr Shepstone’s violence towards Ms Wilson, including that which occurred on 12 February 2013 and her loss of self-control that day, to which her mental impairments made her vulnerable and which did not cease when she first burnt Mr Shepstone: at [153].

    16. (16)

        Mr Shepstone’s conduct towards Ms Wilson could also have induced an ordinary person in her position to have so far lost self-control as to have formed an intent to inflict grievous bodily harm on Mr Shepstone: at [157].

    17. (17)

        Ms Wilson’s capacity to control herself was substantially impaired by an abnormality of mind arising from her underlying conditions, which were so substantial as to warrant her liability for murder to be reduced from murder to manslaughter, had it been concluded that the evidence established beyond reasonable doubt all of the elements of the murder charge: at [161].

11. [20]

    Having considered all of this evidence and the cases which the parties have now advanced, I have come to the conclusion that it follows that the objective seriousness of Ms Wilson’s offence must be assessed as falling towards the lower end of the scale. That is because account must be taken not only of all that Ms Wilson did to Mr Shepstone, but also of what the evidence established about his conduct towards her and her then mental state.

12. [21]

    The evidence about those matters established not only that there was a history of serious violence on Mr Shepstone’s part towards Ms Wilson, but that he had acted violently towards her on the night that he was killed, before she struck him with the metal pole and poured boiling water over him. Ms Wilson had also acted violently in the past and her actions that night were excessive, resulting in Mr Shepstone’s death, but that was contributed to by the combined effect of her serious impairments and mental conditions, Mr Shepstone’s provocation and Ms Wilson acting in excessive self-defence.

13. [22]

    As discussed in Yun v R [2017] NSWCCA 317 at [37]-[47], these are all matters which shed light on the nature of Ms Wilson’s offence, because self-defence and provocation both operate to partially excuse or justify the commission of the offence and are in that regard, within the nature of her offending: at [40]. Further, the nature of Ms Wilson’s impairments must also be taken into account, when her moral culpability for her actions is assessed: at [45]. Were these factors absent, what Ms Wilson did to Mr Shepstone would unarguably be considerably more serious than it was.

14. [23]

    I have thus also concluded that given the nature and seriousness of Ms Wilson’s impairments and mental conditions, which the evidence established contributed to how she came to kill Mr Shepstone, that her moral culpability for her offence is at a relatively low level, but as the Crown submitted, not extinguished, given how she caused his painful death: Yun at [45].

15. [24]

    Ms Wilson’s reaction to Mr Shepstone’s violence towards her, on this occasion was excessive, but it was one conditioned by his prior violent and abusive conduct towards her and the nature of their abusive relationship, which by then had persisted for some years. Ms Wilson’s reaction was undoubtedly also in part impacted by her life of deprivation, physical and sexual abuse, serious ill health and mental and intellectual impairments, as well as alcohol and drug abuse, which had contributed to and exacerbated her other serious long standing problems.

16. [25]

    As was explained by the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44], such circumstances may substantially reduce an offender’s moral culpability, but they may also increase the importance of protecting the community from the offender.

17. [26]

    On all of the evidence I am thus satisfied that despite her significant problems, Ms Wilson did have some, albeit reduced, moral culpability for her offending. That she presents a heightened danger to other members of the community, given the nature and extent of her impairments and mental condition, is not readily apparent, given her lack of prior criminal record and how she has lived compliant with her conditions of bail in the community, throughout these proceedings, despite her serious problems, which now includes vascular dementia.

18. [27]

    That, however, helps explain the evidence of seemingly aggressive behaviour by Ms Wilson towards Corrective Services’ officers who sought to interview her at her home, in order to prepare a presentence report, in circumstances to which I will return. Such behaviour is also consistent with the loss of self-control which the experts who had examined Ms Wilson agreed, had resulted from her mental health problems.

19. [28]

    It follows that it thus cannot be accepted that Ms Wilson now poses no risk of other aggressive or violent behaviour, so that the need for community protection would not feature at all in her sentence, if this had been a normal criminal trial.

20. [29]

    In the result, however, given her mental health problems, general deterrence and denunciation, which normally feature in sentencing for offences such as manslaughter, have no relevance in Ms Wilson’s case, because she is clearly not an appropriate person for the Court to denounce, or make an example of, in order to deter others: Director of Public Prosecutions (Cth) v De La Rosa (2010) 273 ALR 324; [2010] NSWCCA 194 at [177]-[178].

21. [30]

    This also reduces the role that specific deterrence would otherwise play in her case.

22. [31]

    It is also relevant to take into account that the evidence establishes that what Ms Wilson did to Mr Shepstone was not the result of any planned criminal activity, but occurred in the context of a domestic dispute in which, in part, Ms Wilson acted in self-defence and where she was provoked by Mr Shepstone’s conduct towards her.

23. [32]

    There is also clear evidence of Ms Wilson’s remorse and contrition, given all of her actions, including when she cared for Mr Shepstone after she had burned him, not realising the extent of his injuries; by what she did the next morning when she called for assistance; and what she has since told those who have examined her, which must also be taken into account.

24. [33]

    Ms Wilson has never denied what she did to Mr Shepstone and was later diagnosed to have suffered a severe grief reaction, which resulted in her hospitalisation and treatment for psychotic behaviour. On the evidence, had the special hearing been an ordinary criminal trial, it seems likely that she would have entered an early plea, for which she would have received a discount.

25. [34]

    That Ms Wilson has no other criminal record and has not committed any offences since Mr Shepstone’s death, but has abided by the conditions of her bail, also supports the conclusion that she does not pose a significant risk of other offending, so that her risk of reoffending is relatively low.

26. [35]

    That what Ms Wilson did when she killed Mr Shepstone was a complete aberration and took place in circumstances unlikely to be repeated, cannot entirely be accepted, however.

27. [36]

    That is because there is evidence that Ms Wilson had acted violently towards Mr Shepstone on earlier occasions, particularly when affected by alcohol. That history has to be understood, however, in a context where after one episode in 2012, during which Mr Shepstone had strangled her, Ms Wilson suffered a heart attack. It was after treatment for this that on her accounts, she stopped drinking alcohol, which had adversely affected her own violent behaviour beforehand.

28. [37]

    That Ms Wilson no longer so abuses alcohol must be accepted, that being supported by the evidence which Dr Ivers gave, she having long treated Ms Wilson. In her oral evidence Dr Ivers explained how some recent improvement in Ms Wilson’s very serious heart condition, is consistent with such a cessation of alcohol abuse.

29. [38]

    Ms Wilson’s extremely difficult personal circumstances must also be taken into account in arriving at the limiting term.

30. [39]

    In Wilson (No 4) I discussed the histories Ms Wilson has given over the years to experts who have examined her, which were consistent with and supported by various records, which revealed the deprived life she has lived, her serious health issues and the physically abusive relationship which persisted between her and Mr Shepstone, from the time she was aged 51, until his death.

31. [40]

    Ms Wilson’s personal circumstances include that she is an Aboriginal woman now aged 63 years, who has a background of profound deprivation, which must be taken into account on sentence in the way discussed in R v Ingrey [2016] NSWCCA 31 at [40]. She had a childhood home environment marred by her parents’ heavy drinking, including in her mother’s case during pregnancy and in her father’s, resulting in physical abuse, including strangulation to the point that she passed out. Ms Wilson had also experienced multiple episodes of serious sexual abuse from age 8 to 14 at a home, until placement in foster care. Her schooling was limited, to the extent that she never learned to read or write.

32. [41]

    After a non-abusive relationship with a man for some 21 years, Ms Wilson entered the abusive relationship which she had with Mr Shepstone, which persisted for some years. She also had a long history of alcohol and cannabis abuse, before she ceased using alcohol.

33. [42]

    In Wilson (No 4) I discussed the expert evidence which established as to Ms Wilson’s impairments that she has an IQ of only 63 and at the time of Mr Shepstone’s death, suffered not only a mild intellectual impairment and PTSD, but also vascular dementia, heart disease, diabetes and a substance use disorder, as well as having suffered a small vessel ischemia, infarct haemorrhage and had cognitive problems of at least mild severity.

34. [43]

    Further evidence received about Ms Wilson’s health established that her health is not much improved, apart from some recent improvement Dr Ivers described in her oral evidence, as to her now life threatening heart condition, consistent with taking medication more regularly. The evidence also established that it was suspected that Ms Wilson is also suffering cancer which might require surgery, with investigations having been pursued in consultation with her gynaecologist and urologist, which required further review; that she was under the ongoing care of a geriatrician for her age related conditions, as well as by a vascular surgeon. She had also been referred for counselling which had initially not progressed well, because of her problems with counsellors who she believed were too young, but counselling with an older Aboriginal employee of the Aboriginal Medical Service had commenced and was proceeding more successfully.

35. [44]

    Ms Wilson had also completed neuropsychological psychometric testing with Dr Travis Wearne in April 2018 and had also been assessed by the neuropsychologist Dr Ashkar, who had provided a report in May, after interview with Ms Wilson.

36. [45]

    Dr Ashkar had reviewed earlier expert reports from other neuropsychologists and psychiatrists, as well as recent reports from Ms Wilson’s general practitioner and geriatrician, the results of the psychometric testing and cognitive testing of her cognitive decline due to vascular dementia, her previous alcohol abuse and traumatic brain injury secondary to domestic violence.

37. [46]

    Dr Ashkar noted that Ms Wilson had reported an understanding that she had killed Mr Shepstone, but had limited recollection of what had happened and little understanding of why she had acted as she did. She did convey a strong sense of sadness and loss over his death and considerable regret and remorse for having killed him, describing feelings of hatred toward herself, for what she had done. Dr Ashkar observed that there was then no evidence of disordered thinking, psychosis or intoxication, on Ms Wilson’s part, but that she had problems with focus, attention, fatigue, following instructions and completing tasks and memory. She also lacked insight into her cognitive impairments.

38. [47]

    While Dr Ashkar considered that Ms Wilson had tried her best to complete tasks, she demonstrated widespread impairment in intellectual and cognitive functioning in all areas, with marked impairment in some functioning and extremely low abilities in recall, recognition, abstract reasoning and intellectual skills.

39. [48]

    Dr Ashkar considered that Ms Wilson‘s intellectual and cognitive functioning could only be understood in the context of her developmental and social history, characterised by abject social disadvantage, non-nurturing and abusive family environment, removal from home and placement into care, lack of educational opportunity and extreme physical and sexual abuse. He considered that these adverse experiences had seriously undermined her development and had provided a foundation for limited intellectual and cognitive resources, throughout her life. They had been further eroded by Ms Wilson’s chronic substance abuse, exposure to multiple traumatic head injury, and possible hypoxic injury from strangulation, as well as cerebrovascular disease and additional insult to her brain, attributable to Alzheimer’s disease. This had resulted in significant decline in her independent living skills and a diagnosis of major neurocognitive disorder, which would continue to deteriorate over time.

40. [49]

    Dr Ashkar also considered that Ms Wilson’s marked and significant impairments had limited her ability to think through and problem solve the abuse and other difficulties inherent in her relationship with Mr Shepstone.

41. [50]

    He concluded that Ms Wilson was a vulnerable person, with special needs because of her impairments, requiring assistance in almost all areas of her daily functioning and increased levels of care in the future, whether inside or outside a correctional setting.

42. [51]

    In Dr Ashkar’s opinion, as an indigenous woman with high care needs, placement in a custodial setting would be especially onerous for Ms Wilson, due to limited resources available there. She was more likely to be able to access the support and care which she required within the community, including from Aboriginal Health, Local Area Hospital services and her current treatment providers, who she could not access in custody. She also lacked capacity to make appropriate decisions in a range of areas, with the result a recommendation that an application to the Guardianship Tribunal be made for her.

43. [52]

    The Crown relied on the reports of the forensic psychiatrist Dr Eagle, about the capacity and availability of facilities and/or services within the corrective services environment to forensic patients subject to limiting terms, to manage the conditions Ms Wilson suffers and to address Dr Ashkar’s opinions about the care available for her there. Dr Eagle had not examined Ms Wilson.

44. [53]

    Having noted the clinical findings of those who had examined Ms Wilson and identifying the legal assumptions which she had made as to the operation of the applicable legislative scheme, Dr Eagle explained that if ordered to be detained in an appropriate correctional centre or other facility until assessment by the Mental Health Review Tribunal, Ms Wilson was likely to be detained at the mental health screening unit at Silverwater Correctional Centre, until she was assessed by a Justice Health psychiatrist, who would then advise the Tribunal on her treatment and placement needs.

45. [54]

    Dr Eagle noted Ms Wilson’s complex mental health and cognitive needs and her history of treatment in hospitals and mental health facilities. Her view was that Ms Wilson required a comprehensive risk assessment, in order to inform the development of an appropriate risk management plan for her. She also considered that Ms Wilson would benefit from admission to the high security Forensic Hospital at Malabar, which is not a correctional centre, but part of New South Wales Health.

46. [55]

    Dr Eagle considered that this was a possible, if not probable, placement for Ms Wilson on referral to the Tribunal, subject to a bed becoming available. There she would have the benefit of a higher level of care and expertise than available to her in the community, or a correctional facility. From there her safe and effective gradual transition to a less restrictive facility and ultimately the community, with necessary supports, could be managed.

47. [56]

    As to Dr Ashkar’s views, Dr Eagle considered that while a correctional setting was never a therapeutic environment for those with mental health or cognitive disabilities, a substantial proportion of inmates suffered such conditions, thus requiring a high level of support. She also observed that the facilities and services available to offenders with complex clinical needs were limited in a correctional facility and that Aboriginal offenders have been found to be particularly vulnerable, in the correctional setting.

48. [57]

    Dr Eagle also explained the services which were available in correctional facilities, including at the 19 bed Mum Shirl Unit at Silverwater Women’s Correctional Centre, a purpose built high dependency women’s mental health unit and the mental health screening unit at Silverwater Correctional Centre, where Ms Wilson was likely to be initially housed. She also explained the clinic based mental health, primary health and drug and alcohol services available there to offenders in custody, from Justice Health and Forensic Mental Health Services.

49. [58]

    Dr Eagle also observed that this Service had previously provided reports in relation to forensic patients who were located in the community, but noted that she did not understand the basis of its jurisdiction to provide reports in relation to those found not guilty by reason of mental illness. Nevertheless, she considered that Ms Wilson was suitable for assessment by that Service.

50. [59]

    In a further report Dr Eagle clarified that she understood that if referred to the Tribunal, Ms Wilson’s needs would be assessed by Justice Health and reviewed by the Tribunal, with the result that she would be placed in, or referred to the most appropriate setting for her needs. Ms Wilson would, however, have to wait in custody until a bed became available to her in an appropriate facility, but that waiting times for women tended to be shorter than for men.

51. [60]

    In her oral evidence, Dr Ivers, a public health physician, an Associate Professor at both the University of Sydney and University of Western Sydney, a senior medical officer in the Aboriginal Medical Service who had treated Ms Wilson since 2003 and who also had experience working as a medical officer at various prisons and with patients who had gone into and come out of custody, explained general and mental health services available to those in custody, to generally be reasonable. She also considered that monitoring those like Ms Wilson, who is now suffering heart failure and thus required ongoing monitoring and review of that condition, by echo cardiograph, as well as of her gynaecological conditions, resulted in her experience of custody, in delay in accessing such services, which in some cases required transfer to hospitals for testing, which is not available at the Long Bay medical facility.

52. [61]

    On Dr Ivers’ evidence Ms Wilson had been approved to receive home care, which she described, as well as help to attend further specialist appointments, which would continue to be provided by the Aboriginal Medical and Legal Services. She also explained that Ms Wilson’s heart condition, while somewhat improved, is such that her mortality rate at one year is still assessed to be 20-25%.

53. [62]

    There were also two presentence reports prepared by Corrective Services in evidence, the first prepared in February 2018, at a time when Ms Wilson had failed to attend interviews arranged for the purpose of preparation of the report, despite correspondence sent to her and officers attending at her home to interview her. It was this report which described Ms Wilson becoming verbally abusive and aggressive towards the officers who attended her home. The view was reached that she was unlikely to benefit from a period of supervision by Community Corrections and that she was unsuitable for a community service order under s 86(1) of the Crimes (Sentencing Procedure) Act.

54. [63]

    The second report was prepared after Ms Wilson attended an interview arranged after the Aboriginal Legal Service had become aware that earlier arrangements for her interview had been sought to be made with her in writing. Ms Collins, a field officer from that Service, who has been working extensively with Ms Wilson, explained in her oral evidence that it had been because Ms Wilson is illiterate and suffering the consequences of vascular dementia, that she could not read the letters she received and did not understand why officers had come to her home to interview her. This evidence shed light on Ms Wilson’s confused and aggressive behaviour towards those officers, described in the first report.

55. [64]

    The second report reflected a similar history to that which Ms Wilson has given those who have examined her, which I discussed in Wilson (No 4). There it was also recorded that according to the Level of Service Inventory- Revised actuarial risk/needs assessment tool, Ms Wilson had been assessed at a medium risk of re-offending, with her criminogenic needs being identified to be:

56. [65]

    The basis for these conclusions was not revealed in the report, but Dr Eagle also considered that Ms Wilson had criminogenic needs, which needed to be assessed. This and the level of any risk which Ms Wilson presents was in issue, given her criminal record and adherence to conditions of bail, while living in the community and her frail physical health.

57. [66]

    In this report it was also concluded that Ms Wilson appeared to be genuine in her attempts to provide required information, but had problems with memory. The view was reached that she would benefit from a period of supervision to enable her “to address her unresolved trauma and mental health issues”; that “her ability to comply with such an Order remains questionable” and that she would need ongoing support. If supervision was to be provided by Corrective Services, management strategies were identified to include monitoring, engagement and compliance with psychological treatment, referral for drug and alcohol assessment and compliance with a recommended treatment plan and she was again assessed as unsuitable for a community service order.

58. [67]

    I am satisfied that all of this evidence as to Ms Wilson’s very serious mental and physical health issues establish that the sentence which would otherwise have been imposed on her, would have to be reduced, as was the approach recently adopted in Russell v R [2018] NSWCCA 115. There a sentence was reduced in circumstances where that offender was suffering terminal cancer and knew that his life expectancy was very short.

59. [68]

    It is not in dispute that Ms Wilson’s serious health problems adversely affect her quality of life, life expectancy and treatment needs and will inevitably make any detention, whether in a mental health facility or a correctional centre, very considerably more onerous, as was discussed in R v DB [2001] NSWCCA 320 at [18].

60. [69]

    On the evidence it must be accepted that her many complex health treatment needs can undoubtedly be better managed, while she continues living in the community, than they can be if she is detained even in a mental health facility. Account must also be taken of the evidence that admission to the Forensic Hospital depends on a bed becoming available to her.

61. [70]

    All of this serves, I am satisfied, to mitigate the sentence which would otherwise be imposed on Ms Wilson, at a normal criminal trial.

62. [71]

    The parties both referred to a number of other cases where a death has resulted in circumstances of domestic violence, it having been observed in The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [22], that an examination of other cases may provide a relevant "yardstick" by which a sentencing court can attempt to achieve consistency in sentencing, that informing as it can a "broad understanding of the range of sentences that would ensure consistency in sentencing and a uniform application of principle”.

63. [72]

    Neither party identified any of these cases as establishing such a yardstick, but for Ms Wilson it was contended that her case was so extraordinary, that no custodial sentence would have been imposed upon her, had this been a normal trial. Thus all of these cases were sought to be distinguished, apart from one, R v Peterson (Supreme Court (NSW), Enderby J, 22 May 1992, unrep) in which a bond was imposed on sentence, after the offender had been in custody, for some 5 months prior to sentence.

64. [73]

    The circumstances in each of these identified cases varied considerably, as to matters including how the death in question was caused; the relevant subjective circumstances of the respective offenders, including as to background and physical and mental health and as to issues such as provocation, self-defence and mental illness. The result is that sentences imposed in these cases also varied markedly, ranging in sentences of imprisonment for periods up to 11 years.

65. [74]

    Of those referred to, the cases which have more matters in common with Ms Wilson’s case than others include R v Kirkwood [2000] NSWSC 184. There a 63 year old Aboriginal woman’s offer to plead guilty to manslaughter was accepted in circumstances where she had been charged with murder, after she had stabbed her abusive partner, after he had threatened her with a knife and where she was found to be at the upper end of the mildly intellectually impaired range; which operated to significantly mitigate her culpability for her offence. She was also suffering a constellation of health problems, which meant, it was accepted, that imprisonment would inevitably fall more harshly on her than it would on others; where her role as the carer for her handicapped son would cause hardship; where she presented a risk of self-harm, but had no relevant criminal history; and received credit for her plea of guilty. This offender was sentenced to a total term of 2 years and 6 months, with a non-parole period of 12 months.

66. [75]

    In Regina v Mercy [2004] NSWSC 472 another Aboriginal woman pleaded guilty to the manslaughter of her de facto partner, who she killed by stabbing him with a kitchen knife to the back of his chest, after accusing him of sleeping with another woman. She had also had a serious drinking problem for many years, which became very much worse when she resumed living with the victim. They were both drunk at the time he was stabbed. The relationship had also involved physical abuse, about which this offender gave evidence which was supported by independent witnesses. Her evidence was that she had intended only to scare the victim and to "show him that I wasn't afraid of him because he was always bashing me around”. That she was surprised when the knife penetrated his skin as it did was accepted, but it was concluded that accordingly, she had not acted in self-defence. This offender had also had a difficult childhood and a history of alcohol abuse and poor health, which would result in additional hardship during imprisonment. She was sentenced to 4 years, 11 months imprisonment, with a minimum term of 2 years, 3 months.

67. [76]

    In R v Russell [2006] NSWSC 722 a plea of manslaughter was accepted in full satisfaction of the murder indictment, given evidence of provocation by the victim, this offender also having stabbed her de facto partner when they were at home drinking. That relationship had also been characterised by violence and alcohol abuse, including violence by the offender towards the victim. After the victim flashed a knife in the face of the offender and said “I’ll kill you stone dead” during the course of an argument, the offender took a knife and stabbed the victim once, on the side of his chest towards his back. This offender also had a deprived upbringing and limited education; she had earlier suffered brain damage when hit by a car; she had an IQ of about 67 and was, mildly intellectually handicapped, with poor memory and poor cognitive skills, as well as marked problems in the area of concentration, immediate recall and short term memory and also suffered hearing impairment. Consideration was given to the concept of battered woman syndrome being a factor to be taken into account by way of mitigation, not by way of exculpation. There was also a reduction in sentence for the plea. This offender was sentenced to 6 years imprisonment, with a non-parole period of 3 years.

68. [77]

    In R v Cavanough [2007] NSWSC 561 the offender, another Aboriginal woman who had had a difficult upbringing, against a background of alcohol and drug abuse, as well as domestic violence and sexual abuse, was convicted of manslaughter after a jury trial. She stabbed her partner in the upper back, during the breakdown of the relationship and an argument over money, when she was trying to prevent him leaving and had intended only to strike him in the arm. They also had a relationship characterised by alcohol and cannabis abuse, as well as episodes of violence. In this case it was found that the offender had not lost her self-control as a result of provocative conduct on the part of the victim, or that her capacity to control herself and to know right from wrong were substantially impaired by her disorder of mind, despite evidence that she was suffering from a depressive disorder. This condition would have been exacerbated by the alcohol and drugs she had taken; and that from time to time she exhibited and manifested symptoms of a Post-traumatic Stress Disorder related to her sexual abuse as a teenager. That was because none of these symptoms were present or operative at the time she stabbed the victim. Account was taken of her offer to plead to manslaughter, which resulted in a 10% discount. This offender was sentenced to 8 years, 2 months imprisonment, with a non-parole period of 5 years.

69. [78]

    In R v Ferguson [2008] NSWSC 761 another plea to manslaughter was accepted in circumstances where, in the context of another physically abusive relationship where amphetamines were also abused, the offender stabbed her victim repeatedly during an argument in which he threatened her, as she went to leave him. It was there agreed that when she killed the victim her capacity to control herself was substantially impaired by an abnormality of mind arising from an underlying condition, a major depressive illness. While this offender had had a stable upbringing, she had been the victim of sexual abuse from age 5 and had attempted suicide. It was accepted that so provocative was the victim’s abuse of the offender that she finally and suddenly lost the ability to control herself, suddenly forming the intention to kill him, a very short time before she stabbed him and then just as quickly, being overcome by remorse. She was sentenced to 7 years imprisonment, with a non-parole period of 4 years.

70. [79]

    In R v Doolan [2010] NSWSC 615 another Aboriginal offender pleaded guilty to manslaughter after her partner, with whom she had also had a violent and abusive relationship, in which both she and her partner inflicted violence on the other. After she chased him down the street brandishing a knife when they were both intoxicated, the offender then stabbed him in the chest. She had not had a deprived upbringing. Her offence was found to fall in the lower echelons of seriousness of manslaughter, having been spontaneous and wholly unplanned and committed when she had neither intended to kill or cause really serious bodily injury to and when in her drunken state, she had no idea of the extent of injury that she had caused. She received a 20% discount for her plea and was sentenced to 6 years imprisonment, with a non-parole period of 3 years and 9 months.

71. [80]

    In Peterson, the circumstances which arose for consideration on sentence were considerably different. There the 26 year old offender was charged with murder, but offered to plead guilty to manslaughter. That offer was accepted by the Crown in circumstances where he had inflicted five wounds with a knife, a stab in the thorax having killed the victim, his stepbrother, who had violently attacked the offender, outside a hotel, where they had both become intoxicated. It was while the offender was fending the victim off, that he produced the knife he was carrying to use when he later bought a meal and caused the fatal injury. It was concluded that the killing was out of character; that the objective factors did not suggest gross culpability on the offender’s part; that the offender’s subjective factors were very strong, the offender having had an extraordinarily unpleasant and brutalising young life, as the result of his stepfather’s acts, from his earliest years, with the result that he was suffering a degree of cognitive impairment associated with organic brain damage, epilepsy, an anxiety disorder, depression, antisocial personality characteristics and that he was a passive and submissive person, who had been involved in considerable alcohol abuse. There was also evidence that at the time of the killing, the offender had acted in fear of his life, to the extent that his judgment was impaired, the victim having repeatedly assaulted him in the past and his state having been worsened by the effects of the alcohol which he had consumed. Sentence being passed was deferred, conditional on the offender entering into a recognisance without securities and sureties, in the sum of $10,000, to be of good behaviour for a period of five years, conditional on him not consuming alcoholic liquor to excess.

72. [81]

    Despite what was advanced for Ms Wilson, I consider that none of these cases, including that of Peterson, establish that consistency in sentencing and a uniform application of principle, would result in the conclusion that the appropriate “yardstick” for the sentence which would have been imposed on Ms Wilson, had this been a normal criminal trial, was a non-custodial sentence, despite her undeniably difficult personal circumstances and her own considerable ill health.

73. [82]

    Those matters are undoubtedly very important to take into account but at a normal criminal trial they could not eclipse the objective seriousness of what Ms Wilson did, which resulted in the taking of Mr Shepstone’s life, which must not be lost sight of, at this stage of these proceedings.

74. [83]

    Having weighed all of the matters I have discussed, I am not satisfied that Ms Wilson’s circumstances, pitiable as they undoubtedly are, are so exceptional, that she could have been dealt with by a non-custodial sentence, had she been sentenced after an ordinary criminal trial.

75. [84]

    In the result, I am satisfied that in Ms Wilson’s case, a limiting term must be nominated, because at a normal trial, a term of imprisonment would have been imposed upon her.

Victim impact statement

1. [85]

   A victim impact statement prepared by Ms Bult, Mr Shepstone’s mother, was tendered, but not read in court. There she spoke movingly of how Mr Shepstone, whose intellectual capacity had been adversely affected by oxygen deprivation during his premature birth, had been involved in family life with his siblings; how his family had been shocked and anguished by his death; and the adverse impact which that had had on her health, mental wellbeing and ability to enjoy her own life.

2. [86]

   As Ms Bult explained, there can be no doubt that Mr Shepstone’s death and the prolonged proceedings which have resulted, have had a devastating effect on his family, especially his mother. His was truly a sad death, resulting from the serious injuries which Ms Wilson inflicted, in the circumstances I have explained, affected as that was by her own undeniably serious problems.

3. [87]

   It is appropriate for me now to acknowledge the sadness and grief which Mr Shepstone’s family will continue to suffer as a result of Ms Wilson’s actions. They all have my very sincere condolences for Mr Shepstone’s death and what it has caused them all to suffer.

4. [88]

   It is to be hoped that with this final judgment will come some small comfort, it providing as it does both an explanation of how the system our society has devised to deal with very difficult situations such as those which resulted in Mr Shepstone’s awful death and how that system has operated in this case, with the conclusions I have reached as to the determination of a limiting term and the making of the orders which I will make.

The length of the limiting term

1. [89]

   As discussed in Bhuyian at [30], the particular difficulties faced by Ms Wilson, which the experts agree contributed to the commission of her offence, will be considered by the Mental Health Review Tribunal, which in appropriate circumstances can release an offender before the limiting term has expired. That possibility, can however, have no impact on the determination of the limiting term: AN v R (No 2) (2006) 66 NSWLR 523; [2006] NSWCCA 218 at [74].

2. [90]

   In nominating that limiting term I may take into account any period which Ms Wilson was held in custody, in respect of the murder charge: s 23(4). It was agreed as to this that there are 8 full and partial days to be taken into account.

3. [91]

   That is because Ms Wilson was arrested on 12 February 2013 and charged with recklessly causing grievous bodily harm. She was then released on conditional bail to appear at the Port Kembla Local Court on 5 March 2013. On 21 February she was taken by ambulance to Shoalhaven District Hospital where she was admitted to the Mirrabooka Psychiatric Unit, after making an application for voluntary admission.

4. [92]

   Ms Wilson was discharged from that unit on 22 March 2013, arrested, charged with murder and bail refused. She was then again granted conditional bail at the Port Kembla Local Court on 28 March, bail which has continued as the result of orders made by this Court, there having been no issue between the parties until now, that such bail should continue.

5. [93]

   The limiting term must thus commence on 5 July 2018.

6. [94]

   I have also concluded that had this been a normal criminal trial, given all of the significant mitigating matters which would have to be taken into account, which I have discussed, that a reduced sentence of 2 years, 6 months would have been imposed upon Ms Wilson, with a non-parole period of 12 months for her offence.

7. [95]

   Consequently, I have concluded that a limiting term of 2 years, 6 months must be nominated in Ms Wilson’s case. That is because s 23(1)(b) does not authorise a division of a limiting term into minimum and additional terms, or the reduction of the term because of the absence of a non-parole period: AN v R (No 2) at [83] - [84].

8. [96]

   On nominating such a limiting term, Ms Wilson must now be referred to the Mental Health Review Tribunal and I must also make such order with respect to her custody, as I consider appropriate, under s 24(1)(b). Whether that section permits me to order the continuation of Ms Wilson’s bail, pending the Court making final orders under s 27 after receipt of the Tribunal’s determination under s 24(3), is in issue.

Orders under s 24(1)(b)

1. [97]

   For reasons which I will now explain, I have concluded that the Court does have power to order Ms Wilson’s continued release from custody on conditions, under s 24(1)(b).

2. [98]

   It was common ground between the parties that if I reached that conclusion, that in Ms Wilson’s particular circumstances, it is a power that I would exercise. I agree. The parties also agreed on terms of the order which I would make as to custody, if I reached that conclusion and so the orders which I will make reflects that agreement.

The proper construction of s 24(1)(b) of the Mental Health (Forensic Provisions) Act

1. [99]

   Section 24 has arisen to be considered in a number of earlier cases to which the parties referred.

2. [100]

   In R v Boyle (Supreme Court (NSW), Mathews J, 18 September 1992, unrep), Mathews J took the view that it was within the Court’s power to make no order as to custody, s 24(1)(b) providing that at this point of the statutory process, the Court “may make such order with respect to the custody of the person as the Court considers appropriate”.

3. [101]

   In AN v R (No 2) a question arose as to whether an order could be made under s 24(1)(b), which had earlier been overlooked when the Court had upheld an appeal from the District Court, which had made an order under s 24(1)(b). In resolving that question, account was taken at [26] of the fact that while s 23 requires a limiting term to be nominated, if the Court has found on the limited evidence available that an offence was committed and if it considers that, if the special hearing had been a normal trial of a person fit to be tried, it would have imposed a sentence of imprisonment, s 23 did not require that the accused person then be detained in custody. At that time the definition of “forensic patient” did not include persons in respect of whom orders had been made under s 24(1)(b).

4. [102]

   It was also there concluded that the Court had a discretion as to whether or not later to make an order for detention under s 27: at [57]-[62]. The correctness of this conclusion was doubted in State of NSW v TD (2013) 83 NSWLR 566; [2013] NSWCA 32 and overturned in Director of Public Prosecutions (NSW) v Khoury (2014) 306 ALR 86; [2014] NSWCA 15: at [30] and [47].

5. [103]

   The proper construction of s 24(1)(b) also arose in Khoury, but was not there resolved. The Chief Justice observed at [17], that s 24(1)(b) is “designed to empower the Court to order the form of custody in which the person is to be held pending the determination of the tribunal under s 24(2)”. At [19]-[23], his Honour said:

6. [104]

   Beazley P agreed with the reasons given by Bathurst CJ and the reasons of and orders proposed by Basten JA: at [25]. Macfarlan JA agreed with Basten JA at [76], but Simpson J (as she then was) took a different view.

7. [105]

   Basten JA observed at [53] that the precise scope of orders under s 24(1)(b), once a limiting term had been nominated was unclear, but that it was unnecessary to determine the proper construction of the section, except to the extent that it bore on the proper construction of s 27. At [67] his Honour observed:

8. [106]

   The principal argument against this approach was identified by Basten JA to be “that the need for flexibility should be understood to extend to an order that the person not be detained in custody at all”: at [68].

9. [107]

   Simpson J concluded at [123] that “the nomination of a limiting term does not constitute a sentence. It is, at most, a hypothetical sentence”. That s 23 does not carry a presumption that a person in respect of whom a limiting term has been nominated, must serve all or any part of the term in compulsory detention and that while s 24 grants the Court power to make such an order, it also does not mandate that one be made: at [127]. Her Honour thus concluded that the orders available to the Court under s 24(1)(b), include granting bail (with or without residential or other conditions), remanding in custody, or dispensing with bail: at [129].

10. [108]

    In reaching these conclusions Simpson J called in aid the approach in Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37 at [19]-[20], that Courts do not impute to the legislature an intention to abrogate the right to personal liberty, unless such an intention is clearly manifested by unambiguous language, which indicates that its attention has been directed to the rights and freedoms in question and has consciously decided upon its abrogation or curtailment.

11. [109]

    The Crown contended that the Chief Justice’s approach to the construction of s 24(1)(b) in Khoury was correct. Further, that the statutory scheme contemplates that the Court’s power to make an order as to custody be read in the context of s 23, which provides the Court with the opportunity to impose a noncustodial penalty. If it determines not to do so, it was argued, the statutory scheme contemplates that the person would thereupon be detained, that being supported by s 23(5), which specifies when a limiting term takes effect.

12. [110]

    The case advanced for Ms Wilson was that Simpson J’s approach to the construction of the Act in Khoury was correct, supported as her Honour’s approach was by the necessary regard which had to be paid to the statutory context in which s 24(1)(b) appears: R v Lavender (2005) 22 CLR 67; [2005] HCA 37 at [19].

13. [111]

    While the use of the word “may” in s 24(1)(b) was not determinative, it supported the construction which Simpson J favoured, particularly when the words there used were contrasted with those used in s 27, which left no question that at that stage of the statutory process, the Court must make an order for detention.

14. [112]

    It was also submitted for Ms Wilson that the Crown’s contention that the only discretion for the Court to exercise under s 24(1)(b), was as to whether the person was to be held in a mental health facility or in a prison, was what fell to the Tribunal to consider, in the determination it made under s 24(2). Further, it was relevant that this was the determination on which the Court’s orders under s 27 must be made. Thus, it was argued, to construe s 24(1)(b) as requiring detention of a vulnerable person, before the Tribunal’s determination was received by the Court, while at the same time the person might be independently being dealt with by the Tribunal as a “forensic patient” under Part 5 of the Act, could result in unnecessary detention, contrary to the statutory purpose and the objects specified in s 40.

15. [113]

    It was also submitted that the Court’s orders as to ongoing release from custody under s 24(1)(b), could have regard to the person’s obligation to abide by the Tribunal’s supervision as a forensic patient, under Part 5 of the Act.

16. [114]

    The parties’ cases as to the proper construction of s 24(1)(b) must be approached in the way recently explained in Xiao v R [2018] NSWCCA 4, where it was observed by the Court that:

17. [115]

    The construction of s 24(1)(b), must thus begin with the words actually there used. On their face those words appear to give the Court a broad discretion as to what order it can make as to custody, at this stage of the statutory process. The section provides:

18. [116]

    Given the words used in s 24(1)(b), in approaching its construction account must be taken of s 9 of the Interpretation Act 1987 (NSW), which reflects the common law and relevantly provides:

19. [117]

    As discussed in Cain v New South Wales Land and Housing Corporation (2014) 86 NSWLR 1; [2014] NSWCA 28 at [14], even where a discretionary power is granted, however, it “can, in particular circumstances, be coupled with a duty to exercise the power: Ward v Williams (1955) 92 CLR 496; [1955] HCA 4”. Section 24(1)(b) appears to be such a provision, but it does not necessarily follow that the order as to custody which the Court must then make, is one which provides for detention, that not there being expressly provided.

20. [118]

    Whether or not that limitation can be inferred in s 24(1)(b) must be considered in light of the overall purpose of the Mental Health Forensic Provisions Act and the other provisions of the Act which cast light on its meaning. It appears in Part 2 Criminal proceedings in the Supreme Court and District Court relating to persons affected by mental disorders. Other provisions there made, including ss 22, 23, 27 and 28, as well as the definition of “forensic patient” in s 42, which appears in Part 5 Forensic patients and correctional patients, where ss 44, 45, 46, 47; ss 73 and 74 appear, must also be taken into consideration.

21. [119]

    There are, it must be accepted, aspects of the statutory scheme which point both to and against the conclusion that the Court’s discretion under s 24(1)(b) is wide enough to include an order for continuing release from custody, until final orders arise to be made under s 27. That explains the different conclusions as to the proper construction of the section reached in Khoury.

22. [120]

    Despite the conclusions reached by the Chief Justice in Khoury, I have been persuaded that it must be concluded that on the proper construction of s 24(1)(b), the Court’s discretion is wide enough to order that release from custody continue, notwithstanding that a limiting term has been nominated.

23. [121]

    That conclusion is driven not only by the actual words used in s 24, but also by the context in which they appear, considered in light of the overall purpose of the statutory scheme. Important, it seems to me, in this consideration is also the fact that this scheme does not provide for the nomination of a limiting term having the result, either that the person has thereby been convicted of any offence, or that he or she is thereby sentenced to any term of imprisonment, to which I will return.

24. [122]

    The purpose of the Act is to establish a system under which persons suffering mental conditions and mental illness, who are charged with criminal offences are to be dealt with, both by the Court and the Tribunal. Note must thus also be taken of the objects of Part 5, specified in s 40 to be:

25. [123]

    These objects are to be borne in mind when the Tribunal’s functions and their interaction with those given the Court, are considered.

26. [124]

    In determining the nature of the discretion which s 24(1)(b) confers on the Court, it should also be remembered that the system established by Part 2 commences with the Court being granted a wide discretion by s 10(4). That is when the statutory procedure for dealing with questions of a person’s fitness first arises to be implemented, by way of an inquiry. It provides:

27. [125]

    It is also pertinent to bear in mind that the “punishment” with which s 10(4) is concerned, includes orders made after a special hearing: Newman v Regina [2007] NSWCCA 103; 173 A Crim R 1 at [41].

28. [126]

    In construing s 24 it must also be remembered that it applies at a later stage of the statutory process, where the discretion given the Court by s 10(4) has not been exercised. It thus applies to persons who have been found unfit to be tried under s 11 of the Act and after referral to the Mental Health Review Tribunal under s 14, the Tribunal has provided a report to the Court as to the person’s fitness under s 16. It is at this stage, if the Tribunal has determined that the person will, on the balance of probabilities, become fit to be tried during the period of 12 months after the finding of unfitness, that the Court may grant the person bail, or order the person’s detention: s 17(2) and (3).

29. [127]

    In such a case it is after advice from the Director of Public Prosecutions under s 19, that the Court conducts a special hearing in accordance with s 21, at which the person is taken to have pleaded not guilty. It is if there is then a verdict as to guilt arrived at in accordance with s 22, that the Court must nominate a limiting term for the person under s 23 and the statutory consequences of such a nomination arise to be followed. They begin with the steps which s 24 specifies the Court and the Tribunal must then follow.

30. [128]

    At that stage, even after a special hearing, like Ms Wilson the person may be on bail. The Bail Act 2013 (NSW) is concerned with release from custody of persons accused of offences: ss 7 and 8. There is no issue between the parties that until the limiting term has been nominated by the Court, a grant of bail can be continued. Such bail may have initially been granted by police after the person was first charged, or on later application by a court. Or it may have been granted even later by this Court, including under s 17(2).

31. [129]

    It is thus relevant to take into account first, that a person for whom a limiting term has been nominated after a special hearing conducted under s 21, may be on bail and second, that even after the special hearing will not have been found guilty of any offence, even if a verdict under s 22(1)(c) or (d) of the Mental Health Forensic Provisions Act is arrived at by the Court. That is because such a verdict is a “qualified finding of guilt”, made in the absence of a conviction: s 22(3)(a).

32. [130]

    As Simpson J observed in Khoury at [129], a person such as Ms Wilson in respect of whom such a qualified verdict has been arrived at, thus remains to be dealt with further under the criminal justice system, even when a limiting term is later nominated in the way prescribed by s 24. That is reflected in s 28(3) which expressly contemplates later criminal proceedings being brought against such a person and s 45, which also contemplates that such a person may later become fit to be tried: s 45(3)(b).

33. [131]

    It follows that even after a limiting term is nominated under s 23, the person remains “an accused” who has not been convicted of an offence. Such a person accordingly still falls within ss 7 and 8 of the Bail Act.

34. [132]

    While s 24(1)(b) itself makes no reference to bail being continued, it thus provides for the making of orders as to “custody”, which the Court then considers “appropriate”. There is no warrant in reading those words, or the Bail Act, as precluding the conclusion that it is appropriate to continue release from custody on conditions, at that stage of the statutory process.

35. [133]

    In this case there is no issue between the parties that if the Court does have power to order that Ms Wilson’s conditional release from custody continue on conditions, that the Court would conclude that it is appropriate to exercise that power, in her peculiar and difficult circumstances.

36. [134]

    Whether the power exists, is what is in issue.

37. [135]

    That must be resolved by a consideration of the details of the provisions made in the other relevant statutory provisions, including s 22, which provides:

38. [136]

    In the case of a person such as Ms Wilson s 22(3) was engaged, the verdict I arrived at after the special hearing being one provided for by s 22(1)(d), namely, that on the limited evidence available, she was guilty of manslaughter, that being an offence available as an alternative to the offence of murder with which she was charged. But that was only a qualified finding of guilt and does not constitute a basis on which she can later be convicted of that offence: s 22(3)(a). Accordingly, Ms Wilson remains an “accused person”.

39. [137]

    In construing s 24(1)(b), s 23 must also be taken into account. It provides:

40. [138]

    As held in R v Mailes (2004) 62 NSWLR 181; [2004] NSWCCA 394 at [32], consistently with a person on whom a limiting term has been imposed not having been convicted of any offence, that 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”.

41. [139]

    That under s 23(5)(a), a limiting term takes effect from the time that it is nominated, unless the Court takes into account a prior period of custody or detention, may not be overlooked. Nor that the Court may only direct that the term commence at some later time, in the circumstances specified in s 23(5)(b).

42. [140]

    These provisions support, it must be accepted, the view that the legislative scheme contemplates that once a limiting term has been nominated, detention must follow. But account must also be taken of the fact that s 23 does not provide that once a limiting term has been nominated, it must be served in detention, as if it were a term of imprisonment, as it could have provided. Further, account must also be taken of the fact that the legislative scheme elsewhere expressly contemplates that a person may not serve a limiting term in detention.

43. [141]

    It is if the Court nominates a limiting term under s 23, that orders under s 24 arise to be made. There is no question that an order referring the person to the Tribunal must then be made, as s 24(1)(a) requires. That s 24(1)(b) does not likewise provide that an order as to detention must then be made, must also be taken into account.

44. [142]

    Instead, s 24(1)(b) provides that the Court “may make such order with respect to the custody of the person as the Court considers appropriate”. On their face those words are wide enough to encompass circumstances where the Court considers it appropriate to permit a person’s ongoing release from custody on conditions, even when the person is referred to the Tribunal under s 24(1)(a).

45. [143]

    Had it been intended to confine the Court’s discretion under s 24(1)(b) to choosing between detention in a mental health facility or prison, as the Crown contends, the legislature could have said so, by use of express language, as was used in s 17. That such language is also used in s 27, supports the conclusion that the Court has a wider discretion under s 24(1)(b), than that provided in s 27, namely, including the discretion to order ongoing release from custody on conditions.

46. [144]

    Section 27 provides:

47. [145]

    Thus it is that while s 27 also provides that the Court may make orders, it goes on to specify that the orders available to be made are one of only two kinds, namely, detention in a mental facility, or detention in a place other than a mental health facility. That differing language helps explain the construction of s 27 arrived at in Khoury and the divided opinions as to the proper construction of s 24(1)(b), which contains no such limitation.

48. [146]

    Also relevant to consider is that the language of s 27 itself encompasses the possibility that when the Court considers what the Tribunal has determined under s 24(3), the person may not already be detained, as the result of an order under s 24(1)(b). That is because s 27(a) refers to a person “not being in a mental health facility” then being ordered “to be taken to and detained in a mental health facility” and s 27(b), to it being ordered that the person “be detained in a place other than a mental health facility”. Neither s 27(a) or (b) thus necessarily contemplate that the person must already be detained.

49. [147]

    That construction is also supported by the provision made in s 42 which expressly contemplates that under s 24(1)(b) the Court may order the person’s ongoing release from custody, subject to conditions. Section 42 now provides:

50. [148]

    The Crown’s approach to s 24(1)(b), however, necessarily involves the acceptance that the orders which the Court may make under that provision is limited in the same way as is expressly provided in s 27. Such a limitation must be inferred, the wide words actually used thereby being “read down”, because s 24(1)(b) contains no express words which have that effect.

51. [149]

    That process was extensively discussed by Spigelman CJ in R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166. It must be text based and must arrive at a result which can be reasonably deduced from the words actually used in s 24(1)(b), as the result of some recognised technique of construction: at [32].

52. [150]

    In my view, the conclusion that the legislature intended such a limitation, cannot be reasonably deduced from the words used in s 24(1)(b). That conclusion is driven by the words actually used in s 24(1)(b), when compared to those actually used in s 27. Had the limitation for which the Crown contends been intended, it could easily have been conveyed by the use of similar express words, to those which are used in s 27. And yet the legislature chose not to do so.

53. [151]

    That such a limitation was not intended and ought not to be inferred, is also supported by the other provisions made in s 24 and elsewhere in the legislative scheme.

54. [152]

    On the making of orders as to referral and custody, s 24(2) and (3) are then engaged, they imposing obligations on the Tribunal, first to make a determination under s 24(2) as to whether or not:

55. [153]

    The Tribunal must then notify the Court of its determination, which must then be considered under s 27. There is thus no question that under this statutory scheme, it is contemplated that it is the Tribunal’s s 24(3) notification which triggers the Court’s obligation to make orders under s 27 as to the person’s detention, as was held in Khoury. Even then, however, under this statutory scheme, the person’s detention may not result, because of the operation of s 47, to which it will be necessary to return.

56. [154]

    The conclusion that it is only when s 27 orders are made, that the Court must order the person’s detention, is also supported by the fact that when s 24 orders were earlier made, the person became a “forensic patient” under s 42.

57. [155]

    The s 42 definition expressly contemplates that the orders which the Court may have made under s 24(1)(b) include “detention in a mental health facility, correctional centre or other place, or release from custody, subject to conditions”: s 42(a). That supports the conclusion that a person made the subject of a qualified finding of guilt under s 23 is not necessarily, at the time of referral to the Tribunal under s 24(1)(a), to be detained by order of the Court under s 24(1)(b), even though a limiting term has been nominated.

58. [156]

    This is supported by the fact that after the making of orders under s 27, s 28 may be engaged. It provides:

59. [157]

    It is relevant that at this stage, even though orders as to detention have been made under s 27, still the person thus remains “an accused person”. It is in this context that s 45 is relevant. It provides:

60. [158]

    Section 45(4) thus contemplates that since orders were made by the Court for the person’s detention, either under s 24(1)(b), or at the latest under s 27, that the person may have ceased to be a forensic patient. That can have occurred as the result of other reviews conducted by the Tribunal under s 46, after the person became a forensic patient on the making of orders under s 24, in which event s 47 will have been engaged. They provide:

61. [159]

    It follows that on a s 46 review of a person who became a forensic patient when orders were made under s 24, the Tribunal may order the patient’s release from “continued detention, care or treatment in a mental health facility, correctional centre or other place” under s 47(1)(b), unless the person has been remanded in custody pending his or her return to court: s 47(2). In that event, the Bail Act would also apply to the person.

62. [160]

    Where the Tribunal is considering ordering such a release of a forensic patient, s 43 is also engaged. It provides:

63. [161]

    In exercising its functions, s 74 also applies to the Tribunal. It provides:

64. [162]

    In the case of the proposed release of a forensic patient subject to a limiting term, the Tribunal must thus also take into account whether or not the patient has spent sufficient time in custody: s 74(e). Nevertheless, an order for the patient’s release may be made by the Tribunal despite any other provision of the Act or any order of a court under the Act, including orders made under either s 24(1)(b) or s 27: s 47(3). Further, if such a release order is made, the person then ceases to be a forensic patient: s 51.

65. [163]

    It follows that the Act also contemplates in s 47 that orders made by the Court will not necessarily have resulted in the detention of a person for whom a limiting term has been nominated, before his or her release is ordered. That is consistent with a person becoming a forensic patient as the result of orders made under s 24, even if not then ordered to be held in custody. Such a person may never be held in detention, even if orders are made under s 27, if orders for release have by then already been made by the Tribunal: s 47(3).

66. [164]

    Given that s 47 expressly contemplates release before orders arise to be made under s 27 and that s 28 confirms that a person who has been subject to a limiting term and orders under s 24(1)(b) remains “an accused person”, I consider that the construction of the Court’s powers under that section for which the Crown contended, cannot be accepted.

67. [165]

    In construing s 24(1)(b) consideration may also be given to the consequences of the competing constructions and as discussed in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 321:

68. [166]

    I consider that Ms Wilson’s circumstances themselves illustrate why the legislature left the Court a wider discretion under s 24(1)(b), at this stage of the statutory process, than that for which the Crown contended, which would have potentially serious unintended consequences, if adopted.

69. [167]

    It is not necessary to repeat all of Ms Wilson’s difficult circumstances, given the many physical and mental health problems from which she suffers, their impact on her life expectancy and the difficult practical problems which their management will present, if a detention order is now made. These are precisely the type of matters which will arise for the Tribunal to consider, under the obligations which the Act imposes upon it, which I have discussed.

70. [168]

    It is, however, pertinent to note that Ms Wilson was arrested and charged with murder after she was released following treatment at the Mirrabooka unit at Shellharbour Hospital, where she had been admitted after Mr Shepstone’s death, suffering psychotic symptoms. She was then diagnosed to have been suffering an extreme grief reaction and organic personality disorder, for which she was there treated, in the way Dr Ivers described in her evidence.

71. [169]

    Ms Wilson was later released from custody on conditional bail, a release which the Court has by order continued, with the Crown’s agreement, up until the time that this judgment is delivered. During that time she has received extensive treatment in the community for her many health issues some of them life threatening and has also complied with her conditions of bail. On the evidence, management of all of her conditions will be more difficult, if detention is now ordered.

72. [170]

    That also explains why both parties agreed that in Ms Wilson’s difficult circumstances, if the Court has the discretion to order that her release from custody on those conditions should continue, pending the Tribunal’s review, it would exercise that power.

73. [171]

    For the reasons I have explained, I consider that the Court does have power to make such an order, so that the Tribunal can consider all of Ms Wilson’s circumstances. I also agree that in all of those circumstances, given Ms Wilson’s serious ill health and her continuing compliance with the conditions of her release from custody, the discretion to continue that release on the conditions which the parties agreed, should be exercised.

Orders

1. [172]

   For these reasons, I make the following orders:

   1. (1)

      I nominate, as the limiting term in respect of Ms Pearl Wilson’s offence of manslaughter, to be a period of 2 years, 6 months’ imprisonment commencing on 5 July 2018 and concluding on 4 January 2021.

   2. (2)

      In accordance with s 24(1)(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW) I refer Ms Wilson to the Mental Health Review Tribunal.

   3. (3)

      In accordance with s 24(1)(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW) Ms Wilson’s release from custody on bail is to continue, pending the making of orders in relation to Ms Wilson, under s 27 of that Act, on the following conditions:

   4. (4)

      The Registrar is to give notice of these orders to:

   5. (5)

      The Registrar is also to provide a copy of this decision and R v Wilson (No 4) [2017] NSWSC 1730 to the Chairperson of the Mental Health Review Tribunal.