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District Court 18 December 2019

R v Nguyen

[2019] NSWDC 970

Drugs
CRIMES ACT 1914 (CTH) S 20BC UNFIT TO BE TRIED CONDITIONAL RELEASE.

Citation: R v Nguyen [2019] NSWDC 970
Court: District Court of New South Wales
Date: 18 December 2019
Judge: Neilson DCJ

Background

The accused faced a federal charge arising from an attempted drug importation. An earlier finding by Syme J on 16 July 2019 determined that the accused was unfit to be tried. The accused had been in custody since 6 March 2017, a period of approximately two years and nine months at the time of this decision.

The accused suffers from a severe intellectual disability, assessed as placing him below 99.5% of same-aged peers. Expert evidence described him as highly suggestible, with poor critical thinking and reasoning, and characterised him as a vulnerable person who had likely been taken advantage of by others in connection with the alleged offence.

On 18 December 2019, Neilson DCJ made a further determination under s 20BA(4) of the Crimes Act 1914 (Cth) that the accused would not become fit to stand trial within 12 months. The court was then required to decide what orders to make under s 20BC of the same Act.

  • Whether the accused's intellectual disability constituted a "mental condition for which treatment is available in a hospital" under s 20BC(1), triggering the hospital detention pathway.
  • Whether the statutory phrase "not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted" refers to the maximum statutory penalty for the offence or to the head sentence that would actually have been imposed.
  • Whether the court should order detention under s 20BC(2)(b) (in a place including prison) or instead order conditional release under s 20BC(5).

Decision

The court found that the accused's intellectual disability, while capable of being described as a "mental condition," was permanent and lifelong and could not be "treated" in any hospital or institution. This placed the matter outside s 20BC(1) and the associated hospital detention pathway under s 20BC(2)(a). The court had to choose between ordering further detention under s 20BC(2)(b) or conditional release under s 20BC(5).

On the proper construction of the phrase "not exceeding the maximum period of imprisonment that could have been imposed," the court considered whether this referred to the statutory maximum penalty or to the notional head sentence. Drawing on the second reading speech for the Crimes Legislation Amendment Bill (2) 1989, Neilson DCJ concluded the phrase refers to the maximum statutory penalty for the offence. The use of the auxiliary verb "could" (rather than "would") supported this reading, and the Minister's speech expressly referred to "the maximum penalty for the offence." This meant the court had power under s 20BC(2)(b) to order detention for a period up to the accused's natural life.

Despite that power, the court exercised its discretion under s 20BC(5) to order conditional release rather than continued detention. The court noted several factors: the accused's markedly attenuated moral culpability, his vulnerability and likely exploitation by others, the absence of any indication he posed a continuing threat or would re-offend, the fact that his physical needs had been adequately managed in the community prior to custody, and the humanitarian foundation of the legislation itself. Neilson DCJ also observed that, unlike equivalent New South Wales legislation, there is no statutory presumption of guilt under the Commonwealth scheme, and the accused had never been found to have committed the offence.

The court noted the absence of any decided authority or guidance on how to calibrate the period specified in an order under s 20BC(5). Having regard to the accused's circumstances and rejecting an analogy with the sentences imposed on co-offenders (roughly eight-year head sentences with five-year non-parole periods), the court determined that a three-year conditional release order was appropriate. Combined with the approximately two years and nine months already served, the court considered this outcome proportionate and consistent with the humanitarian aims of the legislation.

Orders Made

  • The accused was released from custody subject to conditions for a period of three years under s 20BC(5) of the Crimes Act 1914 (Cth).
  • Conditions imposed:
  • Reside at a specified address in Bankstown with his parents.
  • Remain under the care of his mother.
  • Be of good behaviour.
  • Be subject to supervision by Community Corrections.
  • Comply with all reasonable requests of his Community Corrections officer regarding alcohol, drugs, rehabilitation, counselling, and testing.
  • Report to the Community Corrections office at Bankstown within five working days of release.

Key Takeaways

  • An intellectual disability that is permanent and untreatable does not constitute a "mental condition for which treatment is available in a hospital" under s 20BC(1) of the Crimes Act 1914 (Cth), and accordingly the hospital detention pathway in s 20BC(2)(a) is not available in such cases.
  • The statutory phrase "not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted" refers to the statutory maximum penalty for the offence, not the head sentence that a court would otherwise have imposed on the particular offender.
  • Under s 20BC of the Crimes Act 1914 (Cth), a court retains a discretion to order conditional release rather than detention, even where the statutory maximum penalty is life imprisonment.
  • The District Court treated the humanitarian purpose of the Commonwealth unfitness regime as a material consideration when weighing detention against conditional release, particularly where an accused's moral culpability was substantially diminished by their intellectual disability.
  • No decided authority existed at the time of this decision on how a court should calibrate the period specified in a conditional release order under s 20BC(5), leaving Neilson DCJ to reason from first principles and the second reading speech.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 20BA, 20BC
- Crimes Legislation Amendment Bill (2) 1989 (Cth) (second reading speech, Hansard, 5 October 1989)

Cases cited: None.