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District Court 4 November 2022

R v Laxale (No.2)

[2022] NSWDC 533

Sexual offences
MENTAL HEALTH FEDERAL OFFENCE CHILD SEX OFFENCE SIGNIFICANCE OF SUCH OBJECTION APPROACH TO SETTING TERM OF DETENTION

Citation: R v Laxale (No.2) [2022] NSWDC 533
Court: District Court of New South Wales
Date: 4 November 2022
Judge: Abadee DCJ

Background

The accused faced a charge under s 474.26 of the Criminal Code (Cth) involving the use of a carriage service to procure a person under 16 years of age for sexual activity. The offending occurred between April and September 2021. An earlier fitness inquiry, reported at R v Laxale [2022] NSWDC 398, had determined that the accused was unfit to stand trial.

At this resumed hearing, the court was required to address the remaining statutory questions arising from that earlier finding. The accused was, at the time, detained as an involuntary patient in the Kirkbride Unit at the Concord Centre for Mental Health.

Legal Issues

  • Whether, on the balance of probabilities, the accused will become fit to stand trial within 12 months of the finding of unfitness, as required by s 20BA(4) of the Crimes Act 1914 (Cth)
  • Whether the accused objects to being detained in a hospital, and what significance that has under s 20BC
  • Whether a detention order should be made rather than releasing the accused absolutely or conditionally
  • What term of detention is appropriate under s 20BC(2), including the proper methodology for calculating it

Decision

Issue 1: Fitness within 12 months

Two psychiatrists, both of whom examined the accused after he had already received 12 months of assertive hospital treatment, jointly reported that he would not become fit to stand trial within the next 12 months (at [11]). The court accepted the jointly held position of the Crown and the accused and found, on the balance of probabilities, that he will not become fit to be tried within 12 months of the finding of unfitness made on 5 September 2022 (at [12]). The court noted that this conclusion held regardless of whether the word "will" in s 20BA(4) requires "real certainty" or the lesser standard of "realistically inevitable," without resolving that constructional question (at [8], [12]).

Issue 2: Whether the accused objects to hospital detention

The accused had expressed a preference for discharge and a desire to live with his father. The court observed that the relevant statutory question under s 20BC is not whether the accused objects to detention generally, but where he should be detained if detention is ordered (at [17]). The court expressed doubt that a mentally ill person who the court determines should be detained holds an effective right of veto over the place of detention (at [17]). The court also construed the accused's own statement that "things have been going well and gotten better" as an implied acceptance that, if detained at all, he did not object to the Concord Centre for Mental Health as the place of detention (at [17]-[18]).

Issue 3: Whether a detention order should be made

The court determined that a detention order was appropriate, rather than releasing the accused absolutely or conditionally (at [22]). Applying the approach in Agoston v R, the court considered what sentence would likely have been imposed had the accused been convicted. The parties agreed that ordinary sentencing practice for procurement offences involves immediate imprisonment, reinforced by s 20(1)(b)(ii) of the Crimes Act, which requires exceptional circumstances to wholly suspend a sentence for Commonwealth child sex offences (at [20]). The court found such exceptional circumstances would not have been established here (at [21]-[22]).

Issue 4: The appropriate term of detention

Drawing on R v G,H [2019] SASCFC 71, a decision on the materially similar s 20BJ of the Crimes Act, the court adopted a quasi-sentencing methodology: fixing the hypothetical sentence without taking into account the accused's mental illness (at [24]-[26]). The offending was assessed as falling at the lower end of the range, given that the accused's communications were persistent but largely non-sexual in content, and there was a relative absence of specific descriptions of intended sexual acts (at [32]). The accused's age of 27, the absence of prior similar offending, and cooperation with law enforcement were noted in mitigation, though rehabilitation prospects and remorse could not be taken into account given the mental illness (at [33]-[34]). The court assessed a hypothetical term of three years' imprisonment (at [36]). Having regard to 382 days already spent in detention, and declining to backdate the order where the court's power to do so was uncertain, the court set the term from 4 November 2022 to account for that time already served (at [37]).

Orders Made

  • Pursuant to s 20BC(2) of the Crimes Act 1914 (Cth), the accused is to continue to be detained in the Concord Centre for Mental Health (Kirkbride Unit) for a term of 1 year, 11 months and 14 days, commencing 4 November 2022 and expiring 17 October 2024.
  • The Director of Public Prosecutions noted a practice of informing the Attorney General of such orders, to enable the Attorney to exercise the power under s 20BC(3) of the Crimes Act.

Key Takeaways

  • Under s 20BA(4) of the Crimes Act 1914 (Cth), the standard required by the word "will" in determining whether an accused will become fit to be tried within 12 months remains unsettled, but the District Court found it unnecessary to resolve that question where the evidence and the parties' joint position pointed clearly in one direction (at [8], [12]).
  • A mentally ill accused who the court determines should be detained does not appear to hold an effective right of veto over the place of detention; the statutory inquiry under s 20BC focuses on the most appropriate place of detention, not whether detention itself is acceptable to the accused (at [17]).
  • When setting a term of detention under s 20BC(2) of the Crimes Act for a federal offence, the court applies a quasi-sentencing methodology analogous to that used for s 20BJ, fixing a hypothetical sentence without regard to the accused's mental illness or its consequences for remorse, rehabilitation, or plea (at [24]-[26]).
  • Time already spent in detention can be taken into account when calculating the appropriate term of a detention order under s 20BC(2), with the order running from the date it is made rather than backdated where the court's power to backdate is uncertain (at [37]).
  • For Commonwealth child sex offences occurring after 23 June 2020, s 20(1)(b)(ii) of the Crimes Act requires "exceptional circumstances" before a sentence can be wholly suspended, reinforcing that immediate detention will ordinarily follow conviction for procurement offences involving an actual victim (at [20]-[21]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth ) ss 16A, 20, 20B, 20BA, 20BC
- Criminal Code 1995 (Cth) s 474.26
- Mental Health Act 2007 (NSW) s 14
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ( NSW) s 47

Cases
- Agoston v R [2008] NSWCCA 116
- DPP (NSW) v Day [2022] NSWCCA 173
- DPP (NSW) v Van Gestel [2022] NSWCCA 171
- R v Asplund (2010) 216 A Crim R 48
- R v Fadel [2022] NSWSC 1192
- R v G,H [2019] SASCFC 71
- R v Laxale [2022] NSWDC 398
- R v Risi [2021] NSWSC 769
- R v Woodham [2022] NSWSC 1154
- Wilson v R [2020] NSWCCA 211