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District Court 5 September 2022

R v Laxale

[2022] NSWDC 398

Sexual offences
MENTAL HEALTH FITNESS INQUIRY FEDERAL OFFENCE NO ISSUE OF PRINCIPLE

Citation: R v Laxale [2022] NSWDC 398
Court: District Court of New South Wales
Date: 5 September 2022
Judge(s): Abadee DCJ

Background

The accused was charged with a federal offence under s 474.26(1) of the Criminal Code 1995 (Cth): using a carriage service to transmit communications to a child under 16 years of age with the intent to procure sexual activity. The alleged conduct occurred between April and September 2021, when the accused communicated with the complainant via text messages and Snapchat in an overtly sexual manner.

Before committal, the accused's legal representative raised a question about his client's fitness to stand trial. A Magistrate referred the proceeding to the District Court under s 20B(1) of the Crimes Act 1914 (Cth) on 17 May 2022.

The Court was required to work through a multi-staged sequential process: determining fitness to be tried, assessing whether a prima facie case existed, considering whether it would be inappropriate to impose punishment, and deciding on disposition. The parties agreed on most steps but deferred final disposition questions to a later date.

Legal Issues

  • Which law governs the test for fitness to be tried when the charge is a federal offence?
  • Was the accused presently unfit to stand trial on the balance of probabilities?
  • Was a prima facie case established for the underlying federal offence?
  • Was it inappropriate to dismiss the charge and inflict only nominal punishment?

Decision

Issue 1: Applicable law for fitness to be tried

The Crimes Act 1914 (Cth) is silent on how fitness is determined; it addresses only the consequences of an unfitness finding. The Court held that s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) supplies the applicable test, picked up by ss 68 and/or 79 of the Judiciary Act 1903 (Cth) as the relevant state law for federal proceedings, with no inconsistent Commonwealth law displacing it (at [6]). Section 36 replicates the longstanding "Presser criteria" from R v Presser [1958] VR 45, which ask whether a mental health or cognitive impairment prevents the accused from performing specified functions essential to participation in a trial (at [6]).

Issue 2: Fitness to be tried

The Crown conceded unfitness on the basis of a joint report by forensic psychiatrists Drs Ibrahim and McGregor (at [8]-[9]). Those psychiatrists found the accused scored negatively on each of the Presser criteria. They diagnosed schizophrenia characterised by severe thought disorder, delusions, and perceptual disturbance, noting a history of hospitalisation, psychotropic medication, and treatment complicated by comorbid substance abuse (at [10]-[12]). Evidence from a further psychiatrist and a social worker was consistent with those findings (at [13]-[14]). The Court was satisfied on the balance of probabilities that the accused was presently unfit to be tried (at [16]).

Issue 3: Prima facie case

The accused's counsel conceded that a prima facie case was established for the purposes of s 20B(3) of the Act. The Court confirmed this independently, finding evidence that the accused communicated with the complainant through text messages and Snapchat during the relevant period, that the contact was overtly sexual, and that there was evidence of the accused's awareness that the complainant was under 16 years of age (at [19]).

Issue 4: Dismissal of the charge

Under s 20BA(2), the Court must consider the character, antecedents, age, health and mental condition of the accused, the triviality of the offence, and whether extenuating circumstances existed. The Crown submitted that the seriousness of the offending, the accused's antecedents, and his problematic drug use (which had compromised mental health treatment) meant the Court could not be satisfied it was inappropriate to impose punishment (at [21]). The accused's counsel did not contest that submission. The Court accepted it and declined to dismiss the charge (at [22]).

Orders Made

  • The Court found the accused presently unfit to be tried on the balance of probabilities.
  • The Court found a prima facie case established for the charged offence.
  • The Court found it was not inappropriate to impose punishment other than nominal punishment; the charge was not dismissed.
  • The proceeding was adjourned to 4 November 2022 for determination of the question under s 20BA(4) and disposition under s 20BC of the Crimes Act 1914 (Cth).
  • The accused's legal representatives were directed to provide a report of any Mental Health Review Tribunal action on or about 25 October 2022, and to obtain a report from the treating team at Concord Centre for Mental Health (co-signed by two psychiatrists) addressing: likelihood of fitness within 12 months; the accused's views on hospital detention; treatment arrangements; release plans and proposed timetable; and any other conditions appropriate under s 20BC(6).
  • The parties were directed to provide supplementary or joint written submissions on ss 20BA(4) and 20BC by 2 November 2022.

Key Takeaways

  • For federal offences, the procedural test for fitness to stand trial is supplied by state law, specifically s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), picked up through ss 68 and/or 79 of the Judiciary Act 1903 (Cth), where no inconsistent Commonwealth law applies (at [6]).

  • Section 36 of the NSW Act replicates the Presser criteria, requiring the court to assess whether a mental health or cognitive impairment prevents the accused from performing functions essential to participation in a trial (at [6]).

  • A diagnosis of schizophrenia with severe thought disorder, persistent delusions, and poor insight, confirmed by multiple expert reports, was sufficient to satisfy the court on the balance of probabilities that the accused was unfit (at [9]-[16]).

  • Where the Crown does not establish that dismissal of the charge is appropriate, and the offence is serious in nature, a court may decline to dismiss under s 20BA even where the accused has significant mental health impairment (at [21]-[22]).

  • Under the Crimes Act 1914 (Cth) framework for unfit federal offenders, the court follows a sequential process: fitness determination, prima facie case assessment, consideration of punishment, and finally disposition, with the latter steps capable of being deferred for further evidence and submissions (at [4], [23]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth) ss 20B, 20BA, 20BC
- Criminal Code 1995 (Cth) s 474.26
- Judiciary Act 1903 (Cth) ss 68, 79
- Mental Health Act 2007 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 36

Cases
- Kesavarajah v The Queen (1994) 181 CLR 230
- R v Presser [1958] VR 45