R v Edmund Thomas Leong

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…