R v Brett Macpherson - [2010] NSWDC 132

CITATION: R v Brett MACPHERSON [2010] NSWDC 132
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 7/4/2010

JUDGMENT DATE:
7 April 2010

JURISDICTION: CRIMINAL - Commonwealth

JUDGMENT OF: Finnane QC DCJ

DECISION: I will make an order under s 20BJ (4) of the Crimes Act.
Brett Adam MacPherson is to be released forthwith from custody into the supervision of his mother. He is to obey all her directions in relation to travel and medication. He is to attend immediately upon the Commonwealth Department of Immigration and the Consul-General of Canada and do all things necessary to obtain as rapidly as possible a visa to enable him to leave Australia and a passport or interim travel document to enable him to return to and enter Canada. As soon as possible after obtaining an Australian visa and a Canadian passport or interim travel document he is to travel on the first available transport to Kelowna, British Columbia, Canada, that travel to be under the continuous supervision in the escort of his mother. Upon arrival at Kelowna he is to attend upon Fred Kirsche, Central Okanagan Mental Health, Interior Health Authority, 1340 Ellis Street, Kelowna, British Columbia, V1Y9N1, Canada, for psychiatric assistance. He is to submit himself to such mental health care whether involving involuntary attention or otherwise as the Director, Randy Murray or his delegate may determine, and in accordance with the attached care plan. It is noted Mr MacPherson may receive a bridging visa E class or other travel documents provided by the Australian authorities but any such visa or document is to be used solely for the purpose of travelling from Australia to Canada. Parties are at liberty to apply to the court for any variation of this order on twenty four hours notice.

CATCHWORDS: CRIMINAL LAW - SENTENCE - MENTAL HEALTH - sentencing orders - acquittal under s 20BJ Crimes Act 1914 (Cth)-

LEGISLATION CITED: s 20BJ, 20BK, 20BL, Crimes Act 1914 (Cth)

PARTIES: Regina
Brett Adam MACPHERSON

FILE NUMBER(S): 2009/3759

COUNSEL: Mr I McLachlan (Crown)
Ms T Evers (offender)

SOLICITORS: Commonwealth Director of Public Prosecutions
Legal Aid Commission

1. HIS HONOUR: The offender, whom for convenience, I will refer to as Brett Adam MacPherson, appeared before me charged with an offence of importing into Australia 3478.2 grams of methamphetamine. He came by plane from Canada. The material that was drugs was in his suitcase. Sniffer dogs at the airport sniffed the drugs. He told the customs officers at the time on 15 December 2008 that he did not use drugs and he did not like dogs sniffing him. He was subsequently interviewed and told the interviewing police that he had come to Australia for the purpose of being a disc jockey. He was in fact, he said, a world famous disc jockey.

2. He is a man who on all sides, it is agreed, was mentally ill at the time that he came into Australia. Therefore,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Brett Macpherson

Details

AGLC: R v Brett MacPherson [2010] NSWDC 132
Case: [2010] NSWDC 132
Decision Date: 7 April 2010

CaseChat Overview and Summary

The case of R v Brett Macpherson concerns a dispute regarding the sentencing of the defendant, Brett Adam MacPherson, following his acquittal on charges under section 20BJ of the Crimes Act 1914. The matter was brought before the court to determine the appropriate sentencing orders that should be imposed on MacPherson, considering his mental health and the need for specific conditions to be met to ensure his safety and treatment. The court was tasked with crafting a sentencing order that would facilitate his return to Canada while ensuring he received necessary psychiatric care.

The primary legal issues the court had to address were the appropriate conditions for MacPherson's release and supervision, given his acquittal on mental health grounds. The court needed to consider the balance between ensuring MacPherson's immediate release and the necessity for ongoing mental health support and supervision. It was crucial to determine how these conditions would be implemented in practice, including the logistics of travel, the supervision required during his journey, and the provision of mental health services upon his arrival in Canada.

The court reasoned that the most appropriate course of action was to release MacPherson into the care of his mother, with strict conditions governing his travel and supervision. The order specified that MacPherson must travel to Kelowna, British Columbia, Canada, under the supervision of his mother and seek psychiatric assistance upon arrival. The court detailed the steps required for MacPherson to obtain the necessary travel documents and visas, ensuring that he adheres to these conditions to facilitate his return to Canada and access to mental health care. The order also included provisions for any future applications to modify the conditions of his release.

The final orders made by the court mandate that Brett Adam MacPherson be released into the care of his mother, subject to specific conditions related to travel, supervision, and mental health treatment. These conditions are designed to ensure MacPherson's safe return to Canada and his access to psychiatric care, while also allowing for potential future adjustments to the conditions if necessary. The court emphasized the importance of adherence to these terms to safeguard MacPherson's wellbeing and compliance with the law.

Orders

Orders of the court

I will make an order under s 20BJ (4) of the Crimes Act.

Brett Adam MacPherson is to be released forthwith from custody into the supervision of his mother. He is to obey all her directions in relation to travel and medication. He is to attend immediately upon the Commonwealth Department of Immigration and the Consul-General of Canada and do all things necessary to obtain as rapidly as possible a visa to enable him to leave Australia and a passport or interim travel document to enable him to return to and enter Canada. As soon as possible after obtaining an Australian visa and a Canadian passport or interim travel document he is to travel on the first available transport to Kelowna, British Columbia, Canada, that travel to be under the continuous supervision in the escort of his mother. Upon arrival at Kelowna he is to attend upon Fred Kirsche, Central Okanagan Mental Health, Interior Health Authority, 1340 Ellis Street, Kelowna, British Columbia, V1Y9N1, Canada, for psychiatric assistance. He is to submit himself to such mental health care whether involving involuntary attention or otherwise as the Director, Randy Murray or his delegate may determine, and in accordance with the attached care plan. It is noted Mr MacPherson may receive a bridging visa E class or other travel documents provided by the Australian authorities but any such visa or document is to be used solely for the purpose of travelling from Australia to Canada. Parties are at liberty to apply to the court for any variation of this order on twenty four hours notice.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Brett MACPHERSON [2010] NSWDC 132 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	7/4/2010
JUDGMENT DATE:	7 April 2010
JURISDICTION:	CRIMINAL - Commonwealth
JUDGMENT OF:	Finnane QC DCJ
DECISION:	I will make an order under s 20BJ (4) of the Crimes Act. Brett Adam MacPherson is to be released forthwith from custody into the supervision of his mother. He is to obey all her directions in relation to travel and medication. He is to attend immediately upon the Commonwealth Department of Immigration and the Consul-General of Canada and do all things necessary to obtain as rapidly as possible a visa to enable him to leave Australia and a passport or interim travel document to enable him to return to and enter Canada. As soon as possible after obtaining an Australian visa and a Canadian passport or interim travel document he is to travel on the first available transport to Kelowna, British Columbia, Canada, that travel to be under the continuous supervision in the escort of his mother. Upon arrival at Kelowna he is to attend upon Fred Kirsche, Central Okanagan Mental Health, Interior Health Authority, 1340 Ellis Street, Kelowna, British Columbia, V1Y9N1, Canada, for psychiatric assistance. He is to submit himself to such mental health care whether involving involuntary attention or otherwise as the Director, Randy Murray or his delegate may determine, and in accordance with the attached care plan. It is noted Mr MacPherson may receive a bridging visa E class or other travel documents provided by the Australian authorities but any such visa or document is to be used solely for the purpose of travelling from Australia to Canada. Parties are at liberty to apply to the court for any variation of this order on twenty four hours notice.
CATCHWORDS:	CRIMINAL LAW - SENTENCE - MENTAL HEALTH - sentencing orders - acquittal under s 20BJ Crimes Act 1914 (Cth)-
LEGISLATION CITED:	s 20BJ, 20BK, 20BL, Crimes Act 1914 (Cth)
PARTIES:	Regina Brett Adam MACPHERSON
FILE NUMBER(S):	2009/3759
COUNSEL:	Mr I McLachlan (Crown) Ms T Evers (offender)
SOLICITORS:	Commonwealth Director of Public Prosecutions Legal Aid Commission