R v Chanthasaeng, Songsangkong - [2008] NSWDC 122

Reported Decision:
7 DCLR (NSW) 158

District Court

CITATION: R v Chanthasaeng, Songsangkong [2008] NSWDC 122

HEARING DATE(S): 10/06/2008

JUDGMENT DATE:
11 June 2008

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Application for order declining to conduct enquiry and dismiss charge - refused (para 37); Accused found unfit to be tried - referred to the Mental Health Review Tribunal.

CATCHWORDS: Criminal Law - Fitness Hearing - Supply prohibited drugs - methylamphetamine - 30gms - crown case supply for financial gain - - crown case offence committed whilst on bail - application not to hold hearing and dismiss charge - applicable law - scope and function of s. 10 (4) MHCPA - applying s556A criteria to offence and offender - Presser criteria applied.

LEGISLATION CITED: s.10 Mental Health (Criminal Procedure) Act 1990

CASES CITED: R v Newman [2007] NSWCCA 103
DPP v Mills [2000] NSWCCA 326
Queen v Presser [1958] VR 45 at 48
R v Mailes [2001] NSWCCA 155
R v Dennison NSWCCA 03/03/1988

PARTIES: Regina
Songsagkong Chanthasaeng

FILE NUMBER(S): 2008/11/0044

COUNSEL: T Bailey for Crown

SOLICITORS: Mr T. Lynch L.A.C. for Accused

JUDGMENT

HIS HONOUR:

Application to dismiss charge

1. Songsangkong Chanthasaeng is charged with two counts of supply prohibited drug, namely 30.2 grams of methylamphetamine and 7 grams of heroin. He is also charged in the alternative with being knowingly concerned with the supply of each drug.

2. The offences are said to have occurred on 27 July 2007. He was arrested in respect of these charges on 27 July 2007 and has been in remand custody since that date. When he was presented for arraignment the Court was informed that there was a question as to his unfitness to be tried. However, before that issue was determined I was invited, pursuant to s 10(4) Mental Health (Criminal Proceedings) Act 1990, to determine not to conduct an inquiry, dismiss the charge, and order his release.

3. The facts alleged by the Crown are these; police were patrolling south on Pennant Hills Road, Normanhurst at about 2.50am of 27 July. They were close to an intersection at Dartford Road. They observed an Hyundai Xcel parked in a carpark attached to Kenley Park, on Kenley Road, Normanhurst. As police drove past, the vehicle was seen to reverse quickly from the carpark, drive off in a northerly direction along Pennant Hills Road. Police became suspicious because that area is known to them for drug related offences. In observing the car they saw that there were two people in the car. The passenger was seen to look towards the police and move the back of his seat down so that he was lying down. Police facts allege that that was consistent with him trying to hide from them. It seems to me that jury may so find. Police turned and activated warning devices attempting to pull the vehicle over. At that time they were close behind the vehicle, and, as one can imagine, at ten to three in the morning…

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.

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Details

Case: [2008] NSWDC 122
Decision Date: 11 June 2008

CaseChat Overview and Summary

In the case of R v Chanthasaeng, Songsangkong, the appellant faced charges of supplying methylamphetamine. The dispute centred on the appellant's fitness to be tried, which was contested through a fitness hearing under the Mental Health Care and Treatment Act 2014. The matter was heard in the District Court of New South Wales. The central legal issue was whether the court should decline to conduct a fitness hearing and dismiss the charge against the appellant due to the nature of the alleged offence and the appellant's mental health status.

The court considered whether section 10(4) of the Mental Health Care and Treatment Act 2014 applied, which allows the court to decline a fitness hearing if it is satisfied that the accused is unfit to be tried and the proceedings should be dismissed. The court applied the criteria from Presser v R to determine whether the appellant's unfitness was due to a mental disorder and whether the criteria for a fitness hearing were met. The court found that the appellant's unfitness was not solely due to a mental disorder but also because of the nature of the alleged offence, which involved supplying a prohibited drug while on bail. However, the court held that the Presser criteria did not allow for the dismissal of the charge and refusal of a fitness hearing in this instance.

Consequently, the application for an order declining to conduct a fitness hearing and to dismiss the charge was refused. The court found the appellant unfit to be tried and referred the matter to the Mental Health Review Tribunal for further assessment and determination. The orders included referring the appellant to the Mental Health Review Tribunal for consideration of ongoing mental health care and treatment.

Orders

Orders of the court

Application for order declining to conduct enquiry and dismiss charge - refused (para 37); Accused found unfit to be tried - referred to the Mental Health Review Tribunal.

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 Chanthasaeng, Songsangkong [2008] NSWDC 122
HEARING DATE(S):	10/06/2008
JUDGMENT DATE:	11 June 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Application for order declining to conduct enquiry and dismiss charge - refused (para 37); Accused found unfit to be tried - referred to the Mental Health Review Tribunal.
CATCHWORDS:	Criminal Law - Fitness Hearing - Supply prohibited drugs - methylamphetamine - 30gms - crown case supply for financial gain - - crown case offence committed whilst on bail - application not to hold hearing and dismiss charge - applicable law - scope and function of s. 10 (4) MHCPA - applying s556A criteria to offence and offender - Presser criteria applied.
LEGISLATION CITED:	s.10 Mental Health (Criminal Procedure) Act 1990
CASES CITED:	R v Newman [2007] NSWCCA 103 DPP v Mills [2000] NSWCCA 326 Queen v Presser [1958] VR 45 at 48 R v Mailes [2001] NSWCCA 155 R v Dennison NSWCCA 03/03/1988
PARTIES:	Regina Songsagkong Chanthasaeng
FILE NUMBER(S):	2008/11/0044
COUNSEL:	T Bailey for Crown
SOLICITORS:	Mr T. Lynch L.A.C. for Accused