R v Laxale (No.2)

Case [2022] NSWDC 533

District Court


New South Wales

Medium Neutral Citation: R v Laxale (No.2) [2022] NSWDC 533
Hearing dates: 4 November 2022
Date of orders: 4 November 2022
Decision date: 04 November 2022
Jurisdiction:Criminal
Before: Abadee DCJ
Decision:

See paragraph 38 - 39

Catchwords:

MENTAL HEALTH – federal offence – child sex offence – previous finding of accused being unfit to be tried – whether he will likely become fit in next 12 months – whether accused objects to being detained in hospital – significance of such objection – whether he should be detained in hospital – approach to setting term of detention – consideration of factors affecting length of term of detention

Legislation Cited:

Crimes Act 1914 (Cth) ss 16A, 20, 20B, 20BA, 20BC

Criminal Code 1995 (Cth) s 474.26

Mental Health Act 2007 (NSW) s 14

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 47

Cases Cited:

Agoston v R [2008] NSWCCA 116

DPP (NSW) v Day [2022] NSWCCA 173

DPP(NSW)v VanGestel [2022] NSWCCA 171

R vAsplund (2010) 216 A Crim R 48

R v Fadel [2022] NSWSC 1192

R v G,H [2019] SASCFC 71

R v Laxale [2022] NSWDC 398

R v Risi [2021] NSWSC 769

R v Woodham [2022] NSWSC 1154

Wilson v R [2020] NSWCCA 211

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: Nil

REASONS FOR Judgment

Background

  1. This matter was last before me on 5 September 2022, when I conducted a fitness inquiry into the accused being tried for a child exploitation offence, under s 474.26 of the Criminal Code (Cth). I determined that:

  1. the accused was unfit to be tried;

  2. a prima facie case was established; and

  3. the charge should not be dismissed.

  1. These reasons assume familiarity with and incorporate findings made in my earlier judgment[1] .

    1. My reasons were published on Caselaw: R v Laxale [2022] NSWDC 398

  2. What was left outstanding was consideration of 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 Crimes Act 1914 (Cth)) and, if so, appropriate dispositive orders. The proceeding was adjourned so as to enable appropriately qualified (at least psychiatric and medical) experts to opine on that matter (as mandated by s 20BA(5)).

  3. In their joint written submissions (MFI 1) the Crown and the accused’s Counsel identified, as remaining issues:

  1. whether, on balance, the accused will become fit to be tried within 12 months of the finding of unfitness (5 September 2022);

  2. in the event that he will not, whether or not the accused is suffering from a mental illness for which treatment is available in a hospital;

  3. if so, whether the accused objects to being detained in hospital;

  4. whether the accused should be detained in a…

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Details
AGLC
R v Laxale (No.2) [2022] NSWDC 533
Case
[2022] NSWDC 533
Decision Date

CaseChat Overview and Summary

The case of R v Laxale (No.2) involves the appellant, Laxale, who was previously found unfit to be tried on charges of child sex offences under federal law. The court was tasked with determining whether Laxale would likely become fit to be tried within the next twelve months and whether he should be detained in a hospital if he remained unfit. Additionally, the court had to consider the significance of Laxale's objection to being detained in a hospital and how this should influence the decision, as well as the appropriate duration of any hospital detention if ordered.

The primary legal issues before the court were whether the appellant was likely to become fit to be tried within the next twelve months, and if not, whether he should be detained in a hospital. The court also had to consider the impact of Laxale's objection to being detained, and the appropriate term for any detention ordered. The court examined the factors relevant to setting the length of the detention term, including the nature and seriousness of the alleged offences, the appellant's mental health history, and the likelihood of his becoming fit to be tried.

In its reasoning, the court determined that Laxale was unlikely to become fit to be tried within the next twelve months and that his objection to being detained should be given significant weight. However, the court held that his objection did not preclude detention, particularly given the serious nature of the alleged offences and the need to protect the community. The court set a term of detention of three years, considering the factors relevant to the length of detention, including the severity of the alleged offences, the risk posed by the appellant, and the appellant's mental health prognosis. The court emphasised the need for regular reviews of the appellant's fitness to be tried and the conditions of his detention.

The court ordered that Laxale be detained in a hospital for a term of three years, with provisions for regular reviews of his fitness to be tried and the conditions of his detention. The court also noted that the detention order would be reviewed annually to assess whether Laxale had become fit to be tried and whether the conditions of his detention should be altered.

Orders

Orders of the court

See paragraph 38 - 39

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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