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District Court 29 November 2019

R v Weng (No.2)

[2019] NSWDC 730

Drugs
CRIMINAL LAW ACCUSED NOT FIT TO PLEAD SPECIAL HEARING CONSIDERATION OF LIMITING TERM SIGNIFICANCE OF MENTAL ILLNESS.

Citation: R v Weng (No.2) [2019] NSWDC 730
Court: District Court of NSW
Date: 29 November 2019
Judge: Abadee DCJ

Background

The accused was found unfit to be tried and, following a special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW), was found to have committed drug supply offences on 7 May 2015 at Guildford. The offences included knowingly taking part in the supply of commercial quantities of methylamphetamine (ice) and pseudoephedrine, supply of MDMA (ecstasy), and dealing with proceeds of crime in the form of a diamond ring. A back-up charge of unlawfully obtaining alcohol was also before the court.

The accused, then aged 48, suffered from severe chronic treatment-resistant schizophrenia, a substance use disorder involving ice, and a personality disorder. He had been in custody since his arrest on 11 May 2015. During proceedings, the Crown revised the value of the diamond ring from approximately $28,000 down to $40.

Because a special hearing is not a criminal trial and the accused could not be convicted, the court's task at this stage was to determine a "limiting term": a best estimate of the sentence that would have been imposed had the special hearing been an ordinary criminal trial resulting in a guilty finding.

  • Whether imprisonment would have been imposed had the special hearing been an ordinary criminal trial (s 23(1)(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW)).
  • What "limiting term" represented the court's best estimate of the sentence that would have been imposed (s 23(1)(b)).
  • Whether counts 3 and 4, and the back-up charges, should be dismissed under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • How the accused's mental illness bore on the objective seriousness of the offending and his culpability.
  • What role the accused played in the drug supply operation and where that conduct fell on the range of objective seriousness.

Decision

Both parties agreed that imprisonment would have been imposed had the matter proceeded as an ordinary trial. The court therefore moved to nominate a limiting term, noting that this process does not constitute punishment (as the accused was never convicted), but rather establishes the maximum period of detention that could have applied following a proper trial.

On counts 3 and 4, the court accepted the Crown's concession that dismissal under s 10(1)(a) was appropriate. The quantity of ecstasy was small, and the diamond ring turned out to be effectively worthless, reducing both offences to trivial matters. The accused's mental condition reinforced that outcome by providing significant extenuating circumstances.

For the two remaining counts, the court assessed the offending as falling at the low end of objective seriousness. The accused's role was characterised, without serious dispute from the Crown, as that of a storeman for the drugs rather than an organiser or manufacturer. No evidence of drug purity was available. The accused's severe schizophrenia reduced his culpability, though the court applied the principle from Bhuiyan v R that mental illness must not overwhelm all other sentencing considerations. On the question of financial motive, the presence of lavish goods in the accused's home placed his motive closer to greed than need, constituting an aggravating factor.

The court estimated a sentence of four years' imprisonment for count 1 (commercial quantity of ice) and eighteen months for count 2 (supply of pseudoephedrine), to be served concurrently. Applying the mandatory referral under s 24 of the Act, the court nominated a limiting term of four years, referred the accused to the Mental Health Review Tribunal, and made an interim detention order pending the Tribunal's determination.

Orders Made

  • A limiting term of 4 years' imprisonment was nominated, commencing 31 December 2017 and expiring 30 December 2021.
  • The accused was referred to the Mental Health Review Tribunal.
  • The accused was to be detained pending further order.
  • Counts 3 and 4 and the back-up charges (sequences 5 to 19 inclusive) were dismissed.
  • The Crown withdrew sequence 2.

Key Takeaways

  • Under s 23 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a court conducting a special hearing must nominate a "limiting term" representing its best estimate of the sentence that would have been imposed had the accused been fit and found guilty at a normal trial; this is not a punitive exercise.
  • Severe mental illness reduces an offender's culpability and can affect the objective seriousness of the offending, but, following Bhuiyan v R, it cannot displace proper consideration of the circumstances of the offences and all other relevant subjective factors.
  • Where a drug offender's role is limited to that of a storeman, with no evidence of involvement in manufacture or distribution hierarchy, courts may assess objective seriousness at the low end of the range even for commercial-quantity offences.
  • The District Court applied the principle from Hili v The Queen that motive in drug offending sits on a spectrum from need to greed, and found that the presence of lavish goods in the accused's home placed his motive toward the greed end, constituting an aggravating circumstance.
  • Dismissal under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW) remains available at the limiting term stage for counts assessed as trivial, particularly where an accused's mental condition provides significant extenuating circumstances.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 23, 24
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10(1)(a), 10(3), 21A(2)(o)

Cases
- R v Weng [2019] NSWDC 686
- Bhuiyan v R [2009] NSWCCA 221
- DPP v Khoury [2014] NSWCCA 15
- Hili v The Queen (2010) 242 CLR 520
- Licastro v R [2008] NSWCCA 131
- Nguyen [2010] NSWCCA 205
- Parente v R [2017] NSWCCA 284
- R v AB [2015] NSWCCA 57
- R v AN (No.2) (2006) 66 NSWLR 523
- R v Blair (2005) 152 A Crim R 462
- R v Hemsley [2004] NSWCCA 228
- R v MacDonnell (2002) 128 A Crim R 44
- R v Mailes (2004) 62 NSWLR 181
- Robertson v R [2017] NSWCCA 205