R v Edmund Thomas Leong

[2010] ACTSC 22

R v EDMUND THOMAS LEONG [2010] ACTSC 22 (23 March 2010)

CRIMINAL LAW – offence of committing an act of indecency on a child under the age of 10 years – special verdict of not guilty by reason of mental impairment entered – consideration of s 308 Crimes Act 1900 (ACT) criteria – order for detention in custody until ACAT otherwise orders – “best estimate” of sentence if not acquitted.

REASONS FOR DECISION

Crimes Act 1900 (ACT), ss 323, 308, 302

R v Leong [2009] ACTSC 173
R v Steurer [2009] ACTSC 150

No. SCC 404 of 2008

Judge:              Penfold J
Supreme Court of the ACT

Date:               23 March 2010

IN THE SUPREME COURT OF THE     )
   )           No. SCC 404 of 2008
AUSTRALIAN CAPITAL TERRITORY            )          

R

v

EDMUND THOMAS LEONG

REASONS FOR DECISION

Judge:   Penfold J
Date:   23 March 2010
Place:   Canberra

1. On 17 December 2009 I entered a special verdict that Edmund Thomas Leong is not guilty by reason of mental impairment of the offence of committing an act of indecency on a child under the age of 10 years, an offence carrying a penalty of up to 12 years imprisonment.

1. Having entered that verdict I needed to decide on the appropriate order under s 323 of the Crimes Act 1900 (ACT). One possibility was to make an order that Mr Leong be detained in custody until the ACT Civil and Administrative Tribunal (ACAT) otherwise orders, which I shall refer to as a detention order. Before making such an order I had to consider the criteria set out in s 308 of the Crimes Act, including s 308(e) which refers to any recommendation made by ACAT about how the accused should be dealt with. ACAT has now provided such a recommendation, accompanied by several helpful documents including a report dated 26 January 2010 from Dr Daniel Bonner of Forensic Services, ACT Mental Health, and a letter from one of the nurses involved in Mr Leong’s day-to-day care.

1. ACAT’s recommendation is that the Court should make a detention order in respect of Mr Leong.  That recommendation appears to be soundly based in the accompanying reports.  I do not need to refer to those reports in detail, but I note Dr Bonner’s advice:

·that Mr Leong suffers from chronic schizophrenia, paraphilia of the paedophilia type, obsessive compulsive disorder, pervasive developmental disorder in the autism spectrum, and low IQ;

·that his schizophrenia probably accounts for the majority of his cognitive problems;

·that Mr Leong is a gentle and polite, simple man with little or no antisocial tendency;

·that in the remand centre Mr Leong was subject to physical abuse by other prisoners and attempted suicide;

·that he has responded well to treatment of his schizophrenia and in particular that he has benefitted from clozapine;

·that left to himself Mr Leong is unlikely to continue his medication properly, and would be at a high risk of relapsing into the very unwell mental state affecting him when he was first taken into custody in 2008, which in turn would make him likely to offend again.

1. Dr Bonner’s advice as summarised also deals with the matters mentioned in ss 308(a) and (b) of the Crimes Act. The circumstances of the offence with which Mr Leong has been charged (mentioned in s 308(c)) were set out in the published reasons for my decision in his trial (R v Leong [2009] ACTSC 173). As to s 308(d), I note the principle that a person should not be detained in a correctional centre unless no other reasonable option is available. It is not clear that there is another reasonable option available to me, but I understand that the ACAT has a broader range of options open to it in administering a detention order.

1. Accordingly, I propose to make a detention order in respect of Mr Leong. This in turn requires me, under s 302 of the Crimes Act, to indicate whether, if Mr Leong had not been acquitted of the offence, I would have sentenced him to imprisonment, and if so, to nominate my “best estimate” of the period of that prison term.

1. As I explained in my judgment in R v Steurer ([2009] ACTSC 150 at [102] to [105]), determining a notional sentence, absent the mental impairment, for a person who by definition would not have offended but for his mental impairment, is not an easy task.

1. The maximum penalty for this offence includes 12 years imprisonment.  I have considered several ACT cases relating to the same offence; most of the penalties imposed involved prison terms, ranging from around 6 months to 24 months, some of which were suspended.

1. As mentioned, the circumstances of Mr Leong’s offence are set out in an earlier judgment (see [4] above).  There is nothing in the pre-sentence report prepared before the full extent of Mr Leong’s mental disorders were diagnosed that would provide any explanation or mitigation of his offence.  The offence, while a serious and no doubt disturbing one for the victim, does not seem to fall into the worst category of such offences.  As to subjective factors, I note that Mr Leong does not seem to have any criminal record.  Since I am identifying a notional sentence as if Mr Leong did not have a mental illness, there is no basis for considering whether Mr Leong’s mental illness means that he would not be a proper vehicle for general deterrence.  Nor is there scope for taking account of a plea of guilty, since Mr Leong’s plea was not guilty by reason of mental impairment.

1. Mr Leong spent 9 months in custody before he was bailed to Brian Hennessy Rehabilitation Centre on 17 March 2009, and since being released on bail, he has spent nearly a year in semi-secure accommodation, with some restrictions on his liberty.  Having regard to those matters mentioned above that are generally available for my consideration, including the period for which Mr Leong has been under restrictions at the Brian Hennessy Rehabilitation Centre, I would have started with a notional sentence of 2 years imprisonment, from which I would have deducted the period of 9 months in custody, giving a best estimate of 15 months.

1. Accordingly on 17 March 2010, under s 323(3)(a) of the Crimes Act, I ordered Mr Leong to be detained in custody until ACAT otherwise ordered, and for the purposes of s 302 I indicated that if he had been convicted of this offence I would have imposed a sentence of imprisonment, and that the sentence would have been for 15 months. These are my reasons for making that order.

1. I further note that when I made that order, I understood that ACAT would meet later that morning to consider Mr Leong’s case.  The making of my order was delayed because of other matters that also needed to be dealt with in court that morning, and my order could not be made until after the scheduled starting time of the ACAT hearing.  Accordingly, I ordered that Mr Leong could be escorted to the ACAT meeting by Ms Susan Storey and other carers from Brian Hennessy Rehabilitation Centre, rather than returning to Corrective Services custody for that transfer. 

1. Finally, in noting ACAT’s willingness to coordinate its consideration of Mr Leong’s detention with my making of the detention order, I express my gratitude to ACAT for its co-operation in ensuring that there were no significant gaps in the transfer of the supervision of this vulnerable individual from this Court to ACAT.

   I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

   Associate:

   Date:      23 March 2010

Counsel for the Crown:   Mr A Doig
Solicitor for the Crown:   ACT Director of Public Prosecutions
Counsel for the defendant:   Mr R Livingston
Solicitor for the defendant:   Legal Aid Office (ACT)
Date of hearing:   17 December 2009, 17 March 2010
Date of decision:   17 March 2010
Date of reasons:   23 March 2010