R v Laxale

[2022] NSWDC 398

District Court

New South Wales

Medium Neutral Citation:

R v Laxale [2022] NSWDC 398

Hearing dates:

5 September 2022

Date of orders:

5 September 2022

Decision date:

05 September 2022

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See Paragraph 25

Catchwords:

MENTAL HEALTH – fitness inquiry – federal offence – use of carriage service to procure sexual activity with a child – no issue of principle

Legislation Cited:

Crimes Act 1914 (Cth) ss 20B, 20BA, 20BC

Criminal Code 1995 (Cth) s 474.26

Judiciary Act 1903 (Cth) ss 68, 79

Mental Health Act 2007 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 36

Cases Cited:

Kesavarajah v The Queen (1994) 181 CLR 230

R vPresser [1958] VR 45

Category:

Principal judgment

Parties:

Commonwealth Director of Public Prosecutions (CDPP)
Mr K Laxale (accused)

Representation:

Counsel:
Mr A Brown for the CDPP
Mr B Royce for the accused

Solicitors:
CDPP
Nelson Kurucz Lawyers for the accused

File Number(s):

2021/00284393

Publication restriction:

Name anonymised pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW)

REASONS FOR JUDGMENT

1. The accused is charged with the offence that between 9 April 2021 and 7 September 2021 he used a carriage service to transmit a communication to LP, with the intent of procuring LP to engage with sexual activity with him, LP being under 16 years of age, contrary to s 474.26(1) of the Criminal Code 1995 (Cth).

2. Prior to being committed, the accused’s legal representative raised an issue as to his client’s fitness to be tried. On 17 May 2022, pursuant to s 20B(1) of the Crimes Act 1914 (Cth) (the Act), the Magistrate referred the proceeding to this Court.

3. The Act is silent as to how the question of fitness is determined. By s 20B, the Act sets out the consequences if the Court determines (relevantly) that a person is unfit to be tried.

4. It is common ground that a multi-staged, sequential, process is to be followed:

1. A determination of whether the accused is presently unfit to be tried (s 20B(1) & (2) of the Act);

2. If the accused is found to be so unfit, whether a prima facie case has been established that the accused committed the offence (s 20B(3)(b) of the Act);

3. If a prima facie case is established, whether the charge should be dismissed, having regard to the considerations in s 20BA(2) of the Act;

4. If the charge is not so dismissed, the Court is to determine whether, on the balance of probabilities, the accused will become fit to be tried within 12 months of the finding of unfitness (s 20BA(4) of the Act). In this regard, the Court cannot make such determination unless it is has obtained expert opinion (s 20BA(5));

5. If the Court determines that the accused will not become fit within 12 months, it will follow the procedures set out in s 20BC, dealing with either his remaining in custody, his hospitalisation or release on bail.

5. The parties have commendably reached agreement on most of these questions.

Whether the accused is presently unfit

6. The question of fitness is determined by s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which provision is picked up by ss 68 and/or 79 of the Judiciary Act 1903 (Cth) for federal offences. There was no suggestion of any inconsistent Commonwealth laws. The state law regulates the mode of determining fitness to be tried whereas the Act regulates the consequences that would follow^[1] . Section 36 is a replication of Presser criteria^[2] . They are whether because of a mental health impairment or cognitive impairment, or both, an accused cannot do one or more of the following:

   1. Kesavarajah v The Queen (1994) 181 CLR 230

   2. R v Presser [1958] VR 45

1. understand the offence the subject of the proceedings,

2. plead to the charge,

3. exercise the right to challenge jurors,

4. understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged,

5. follow the course of the proceedings so as to understand what is going on in a general sense,

6. understand the substantial effect of any evidence given against the person,

7. make a defence or answer to the charge,

8. instruct the person’s legal representative so as to mount a defence and provide the person’s version of the facts to that legal representative and to the court if necessary,

9. decide what defence the person will rely on and make that decision known to the person’s legal representative and the court.

7. The accused’s solicitor, Mr Nelson, swore an affidavit (Exhibit 4) in which the solicitor, relevantly, indicated his observations of the accused when he conferred with him on 7 October 2021, and his subsequent inquiries to determine his fitness. This included his communications with Erin Wick, a social worker, and Dr Pusey, a forensic psychologist. Following his communications with Dr Pusey he arranged for the examination of the accused by Drs McGregor and Ibrahim.

8. The Crown accepts that the accused is presently unfit, on the probabilities.

9. This concession followed from the accused’s reliance upon the joint report of two forensic psychiatrists, Drs Ramy Ibrahim and Fiona McGregor which followed their examination of the accused last April (Exhibit 1). Through the course of their interview, they concluded that the Presser criteria suggested that he was unfit to be tried. In particular, he effectively scored a negative on each of the matters set out in s 36.

10. In the joint report, they observed that the accused had a first episode of psychosis in 2016; and noted that he had been admitted numerous times to hospital. They also noted that psychotropic medications had been prescribed for him, but his treatment was complicated by comorbid substance abuse. Further, even whilst undergoing treatment, they noted that he displayed thought form disorder, delusional ideas, disorganised behaviour, with poor insight into his mental illness.

11. On examination in April 2022, Drs Ibrahim and McGregor considered that he displayed thought disorder; expressed delusions of persecution, had shown difficulty in maintaining concentration and attention and generally displayed impaired judgment.

12. They diagnosed the accused with schizophrenia, characterised by severe thought disorder, delusions and perceptual disturbance. He is a mentally ill person as defined by the Mental Health Act 2007 (NSW) and as such is an involuntary patient.

13. The accused also relied upon evidence of another psychiatrist, Dr Rydstrand (Exhibit 2) and a social worker, Erin Wick (Exhibit 3). Dr Rystrand and Ms Wick each opined that the accused did not have the capacity to understand the legal proceeding nor give instruction to his solicitor.

14. Mr Nelson’s observations of the accused are consistent with the opinions of others.

15. The Crown’s concession relieves me of the need to consider whether, reflecting s 44(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act, court procedures could be modified to facilitate the accused’s understanding and participation in the trial, and the likely length and complexity of the trial. Section 44(5) was referred to in the Crown’s submissions without any indication as to how the provision might apply.

16. I am satisfied on the probabilities that the accused is presently unfit to be tried.

Whether prima facie case established

17. The Crown tendered the Brief of Evidence (Exhibit A) and transcripts of text messages (Exhibit B).

18. Consideration of this question was potentially affected by s 20B(7) of the Act. However, in this case, it became unnecessary for the accused to give evidence (or make an unsworn statement) and he did not raise any defence as if the proceeding was for a trial. This was because the accused’s Counsel conceded that, for the purposes of s 20B(3) a prima facie case was established.

19. As indicated by the Crown’s submissions (MFI 1), there are several physical and fault elements to the subject offence. I am satisfied, even without the benefit of the concession of the accused’s Counsel, that a prima facie case is established. In particular, I am satisfied that in the relevant period, the accused had communicated with LP through text messages and ‘SnapChat’; that the contact was of an overtly sexual nature; and that there was evidence to indicate the accused’s awareness that the complainant was under 16 years of age. The accused himself indicated that he was aged between 25 and 26 years during the relevant period.

Whether the charge should be dismissed

20. Section 20BA(2) of the Act sets out relevant considerations for the Court to consider on the question whether it would be inappropriate to inflict any punishment, other than nominal punishment, on the defendant. These are: (a) the character, antecedents, age, health or mental condition of the person; (b) the extent to which the offence is trivial in nature; and (c) the extent to which the offence was committed in extenuating circumstances.

21. The Crown submitted that in view of the seriousness of the offending; the accused’s antecedents and his history of problematic drug use (which has compromised treatment for his mental health condition), the Court could not be satisfied that it was inappropriate to inflict punishment. The accused’s Counsel did not contest that submission. I accept it.

22. It is inappropriate to dismiss the charge.

Will the accused become fit to be tried in the next 12 months?

23. With the benefit of argument, given that the parties agreed that they were not in a position to fully assist the Court with the matters raised under s 20BC of the Act today, the parties agreed that the question under s 20BA(4) of the Act should also be determined at a later date.

Orders

24. The Court makes the following findings:

1. The Court finds that the accused, Kurt Matthew Laxale, is unfit to be tried on the offence charged on the Court Attendance Notice.

2. For the purpose of s 20B(3) of the Crimes Act 1914 (Cth), a prima facie case is established.

3. For the purpose of s 20BA(2) of the Crimes Act 1914 (Cth), the charge should not be dismissed.

25. The Court directs:

1. The proceeding is to be adjourned to 4 November 2022 for determination of the question under s 20BA(4) and disposition under s 20BC of the Crimes Act 1914 (Cth)

2. The accused, through his legal representatives, and with the co-operation of the Crown, is to:

1. provide a report of any action taken by the Mental Health Review Tribunal in connection with the accused on or about 25 October 2022; and

2. obtain a report from the treating team at the Concord Centre for Mental Health (co-signed by 2 psychiatrists, which may include a psychiatric registrar), to address the following matters:

1. whether, on the balance of probabilities, the accused will become fit to be tried within 12 months after today, pursuant to s 20BA(4);

2. whether the accused objects to being detained in a hospital;

3. what arrangements are made for the accused’s attendance upon the responsible person, for assessment of his mental illness and condition and, if appropriate, treatment;

4. what plans, if any, have been made concerning the accused’s release from involuntary detention (including any proposed treatment facility) and what is the proposed timetable;

5. what, if any, other conditions may be appropriate, under s 20BC(6) of the Crimes Act 1914 (Cth).

3. The parties are each to provide supplementary written submissions or, if they are in agreement, a joint written submission (as to ss 20BA(4) and 20BC) by 2 November 2022, by email to my Associate.

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Endnotes

Decision last updated: 05 September 2022