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, I found him not guilty on the grounds of mental illness.

3. It is a very sad case where a person who is mentally ill has been taken advantage of by those involved in the drug trade in Canada to bring drugs into Australia. Very little provision was made for him when he arrived, nothing was provided for his accommodation, he was in effect just cast loose with a direction to ring someone at a particular hotel. He is the first person to come before me as a drug courier who is mentally ill.

4. The people in the drug trade have used all sorts of people. In my experience the youngest was I think a sixteen year old girl, the oldest was a seventy one year old man.

5. They have come from a variety of countries and in a variety of circumstances. This is the first time somebody who is mentally ill has been used as such a courier. He clearly had very little understanding of what he was doing here, he did know that he was carrying something it was illegal but he somehow had this delusional belief that this would assist him in pursuing his interest as a world famous disc jockey. Medical evidence establishes that he suffers from a variety of mental disorders the most serious of which is bipolar disorder. His mother has given evidence before me and it is clear that from shortly after his birth it was noticed that he had various mental disorders, they became more and more pronounced as he went on in life. Apart from bipolar disorder he suffers from autism and a variety of other personality problems.

6. He has been found not guilty on the ground of mental illness. Consequently, to have regard to the seriousness of the offence is not as relevant in this case as it might be in others. A person who is not guilty on the grounds of mental illness is not guilty. Special provisions apply under the Commonwealth Crimes Act for persons who are found not guilty on the grounds of mental illness.

7. Section 20BJ(1) of the Crimes Act 1914 (Cth) provides that where a person has been charged with a federal offence on indictment and is acquitted because of mental illness the court must order that he be detained in safe custody in prison or in a hospital for a period specified in an order not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged. To some extent this parallels provisions under State law although the provisions under State law are now somewhat different because there is under State law a Mental Health Review Tribunal which is charged with the task of managing such people.

8. Under Commonwealth law the Attorney-General may vary prison or hospital and may make orders under s 20BK and 20BL reviewing his custody and indeed releasing him from custody. Notwithstanding provisions of s 20BJ(1), s 20BJ (4) provides that despite subs (1) the court may if in the court’s opinion that it is more appropriate to do so, then to make an order under subs (1) order the person’s release from custody either absolutely or subject to conditions to apply for such period as the court specifies and an order not exceeding three years.

9. The conditions may include a condition that he remain in the care of a responsible person nominated in the order, a condition that the person attend upon a person nominated or at a place specified in the order for assessment of the person’s mental illness, mental condition or intellectual disability, and where appropriate for treatment. Subs (6) provides that where a person has been released from custody subject to conditions the person or the Director of Public Prosecutions may at any time apply to the court to vary those conditions.

10. Mr MacPherson came to Australia originally on a Canadian passport presumably as a tourist. That passport has now expired and he is held in Australia pursuant to a Criminal Justice visa. Because his passport has expired he cannot return instantly to Canada when I release him unless he obtains some travel document of some kind enabling him to go there. What is proposed on his behalf is that he should be released and go with his mother forthwith to the Australian Department of Immigration, apply to them for a bridging visa E and with that the Canadian Consul-General would be prepared to make available to him a document enabling him to go to Canada. I am satisfied that if he goes to Canada he would be met at the airport by a person associated with a psychiatric facility, he would be assessed, placed in the control of a nominated psychiatrist and given appropriate treatment. In my opinion that is what should be done in this case. I have carefully considered the Commonwealth’s submission. That very carefully prepared submission argues fully and with some force for me to exercise my discretion and make an order under s 20B(j)(1), that would mean that he would be held in Australia subject to the direction of the Commonwealth Attorney-General.

11. The submission points to the seriousness of the offence as one of the important factors in making this order. I agree that bringing into Australia large quantities of prohibited drugs is a serious offence. However as I have said if the person who brings them in is mentally ill and therefore not guilty the significance of that is not as great as it would otherwise be. Certainly the order which I make would be not something which could ever be argued would in some way encourage others to be involved in the same sorts of activities. The principles of general deterrence and specific deterrence really have no consequence in a case such as this because he is mentally ill.

12. In my opinion it is far more important for him to be back in Canada and getting appropriate treatment than it is for him to remain in Australia in a prison perhaps getting some treatment and perhaps not. I can see no value to the people of Australia for him to remain in Australia. Of course in normal circumstances if a person commits a crime, particularly a very serious one, it is important that that be registered by the imposition of an appropriate sentence so that any others who might be minded to engage in such activities are deterred from doing so. And the person himself is appropriately punished for what he has done. I have already indicated I do not see there is any basis for such considerations in the present case.

13. I have decided therefore that I will make an order under s 20BJ (4) of the Crimes Act, a draft order has been provided to the counsel for the Commonwealth. It has been made available to me. The order is in terms which I agree with and I make the order.

14. The order that I make is as follows that the offender or the person, Brett Adam MacPherson is to be released forthwith from custody into the supervision of his mother, Linda Duck. He is to obey all directions from Linda Duck 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 Linda Duck. 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, two page document headed Interior Health dated 29/1/10 from Randy Murray addressed to Mrs Linda Duck supplemented by a two page email dated 1/4/10 from Randy Murray to Greg James. 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.

**********

19/08/2010 - typographical error - Paragraph(s) legislation cited