R v Laxale

District Court of NSW|2022-11-04

Background

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.
These reasons assume familiarity with and incorporate findings made in my earlier judgment [1] .
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)).
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 hospital (or elsewhere) or, rather whether the accused should be released absolutely or conditionally.
At the hearing, the Crown and the accused's Counsel added another issue for the Court's adjudication, being the term for any order for detention made.
Before proceeding any further, I note that on the eve of this resumed hearing, one of the psychiatrists who prepared a recent report (to be considered hereafter) urged that the accused be excused from attending today's hearing, on account of the concern it may damage his mental condition. I raised this issue with the parties. Neither the Crown nor the accused's representative opposed that course; although in the Crown's case, it qualified its position in the event that he might need to take, in effect, pro-active measures. For these reasons, and the order I propose, that will not be necessary.

Constructional question

Section 20BA(4) of the Crimes Act 1914 (Cth) provides: "Where the court determines that there has been established a prima facie case that the person committed the offence, but the court does not dismiss the charge under subsection (2), the court must, as soon as practicable after making that first-mentioned determination, determine whether, on the balance of probabilities, the person will become fit to be tried, within the period of 12 months after the day the person was found to be unfit to be tried".
There is a question about the proper construction of the word "will" under s 20BA(4), insofar as it concerns the person's fitness to be tried within 12 months. The same question has presented itself under a substantially similar provision (s 47(1)(b)) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)). About that provision, in R v Woodham [2022] NSWSC 1154 [2 ] , Hamill J recently observed that s 47(1)(b) does not require a state of "absolute certainty". Even so, it is a very high standard of satisfaction; whether one applies the language of Beech-Jones CJ at CL [3 ] ("real certainty") or the lesser standard of the Court of Criminal Appeal [4 ] ("realistically inevitable"). Ultimately, however, it is unnecessary to resolve this question given the evidence and the joint position of the Crown and the accused.

The evidence

The accused is currently housed as an involuntary patient in the Kirkbride Unit at the Concord Centre for Mental Health. The Crown and the accused indicated a common understanding that at the review proceeding of the accused before the MHRT on 25 October 2022, it was determined that he should continue to be detained as an involuntary patient in a mental health facility. The next review is to be conducted by 24 April 2023.
The Crown and the accused jointly placed before the Court a joint report of Drs Charlotte Rydstrand and Fiona McGregor (Exhibit A), both of whom are psychiatrists. They had examined the accused on 20 September 2022. They also considered a range of other sources of information detailed in the joint report. Both psychiatrists maintain their view that the accused is unfit to stand trial in circumstances where he would not be able to communicate a coherent answer to the charges and to follow the court proceedings. The psychiatrists expressly addressed the Presser criteria: all of the questions going to his capacity in those criteria were answered in the negative.
Given that their assessment of him occurred after the accused had already received assertive treatment in a hospital for a period of 12 months, they did not expect that he will become fit in the next 12 months.

Consideration

I accept the submission jointly made by the Crown and the accused and find that, on the balance of probabilities, he will not become fit to be tried in the 12 month period from 5 September 2022. That is so however one resolves the constructional question I have referred to.

Whether the accused is suffering from a mental illness ... for which treatment is available in a hospital (Crimes Act, s 20BC(1)(a))

Where it is found that that the accused is unfit, the Court must then decide what is to be done with him, in terms of his remaining in custody, his hospitalisation or release on bail. If, as I have found in this case, he will not become fit to be tried, the requirements in s 20BC are to be followed.
In their joint report, the psychiatrists adverted to the circumstance that the accused had received a well-established diagnosis of schizophrenia for which he has had multiple admissions to hospitals from 2016 and onwards. Following the examination of him on 20 September 2022 they affirmed that diagnosis indicating that it was characterised by severe thought disorder, delusions and perceptual disturbance. He displayed grossly disorganised and disinhibited behaviour and poor judgement. This satisfied the definition of a mentally ill person under the Mental Health Act 2007 (NSW), s 14. Treatment for that particular mental illness is available in a hospital or, more specifically, where the accused is currently housed.

Whether the accused objects to being detained in a hospital (Crimes Act, s 20BC(1)(b))

The joint report of the psychiatrists indicated the accused's desire to be discharged: he preferred to stay with his father in the latter's house in Lane Cove. The accused also was understood to have been disinclined to stay in the hospital but the psychiatrists observed that he remained as an involuntary patient who lacked the capacity to make decisions concerning ongoing admission.
The psychiatrists also referred to the circumstances that the accused's treating multi-disciplinary team ultimately recommended that he be discharged to reside in unspecified "24/7 locked supported accommodation". They pointed out however that the process of obtaining that type of accommodation was both lengthy and complex and could take upwards of two years.
As the parties' joint submission suggests, there is an ambiguity as to whether the accused objects to being detained in a hospital; or, more accurately, objects to being detained per se. Doubtless it may be surmised that he might wish to be at liberty (whether it be absolute or conditional), and living with his father but that preference is not directed to the appropriate question. The structure of s 20BC(1)(b) and s 20BC(2)(a) and (b) emphasises that the focus is the most appropriate place where he can be detained (if it is appropriate for the Court to determine that he should be detained). It is a nice question as to what consequence would follow from a negative answer to the question posed by s 20BC(1)(b). It seems to me difficult to accept that a mentally ill person, who the Court determines should be detained, has an effective right of veto as to where he should be detained. At any rate, the psychiatrists had noted in their report that the accused had declared that "things have been going well and … gotten better". That is hardly surprising since it is there that he is receiving the treatment that he needs, which he appears to believe is working for him. I construe this evidence to amount to an implied endorsement or acceptance by the accused that if he is to be involuntarily detained at all, he does not object to this hospital as the place for such detention.
In other words, I find that if it is appropriate that he be detained, the accused does not object to being detained in the Concord Centre for Mental Health.

Whether the accused should be detained in the hospital (s 20BC(2)) or released (s 20BC(5))

With reference to s 20BC of the Crimes Act, it is common ground that the provision - which has detention as its essence - imports at least an aspect of punishment. The parties also submit that although the Court, when dealing with an accused under a federal offence does not engage in a special hearing followed by the procedure for determining whether to impose a limiting term as occurs for state offences; at least some consideration should be given to the type of sentence that may have been imposed had the accused been found guilty of the index offence: Agoston v R [2008] NSWCCA 116 per James J (Hoeben J and Hall J agreeing) at [67] - [68].
The parties further agree that, ordinarily, offences involving the procurement of children to engage in sexual activity results in the imposition of a sentence of immediate imprisonment. That past sentencing practice has recently been reinforced by the recently enacted s 20(1)(b)(ii) of the Crimes Act (which is applicable to offences occurring after 23 June 2020), which applies to this offence, which occurred between 9 April 2021 and 7 September 2021. That provision provides that where there is a Commonwealth child sex offence, the court must be satisfied that there are "exceptional circumstances" to wholly suspend a sentence imposed under section 20.
The parties jointly submitted that it would have been improbable for such exceptional circumstances to be established in circumstances where: an actual victim was involved; communications included pictures of the genitalia of the accused (and even semen on his leg); communications indicated the accused's wishing to engage in actual sexual activity (oral sex) with the victim; and an apparent lack of insight into his offending.
I agree with the parties, for the reasons they submit, that on the limited information, the Court would have imposed a period of detention, for the purposes of section 20BC(2) of the Act. Implicit in this is my opinion that (for the purposes of s 20BC(5)) it is not more appropriate to order the accused's release from custody; either absolutely or conditionally.

The term of detention

Section 20BC(2) envisages that where the Court makes a detention order it should specify the period "not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged".

The approach to assessing the term

The Crown submitted (and the accused's Counsel agreed) that guidance as to the length of the term was obtained from authorities which had construed a materially similar provision, being s 20BJ of the Crimes Act. In that regard, the Crown referred the Court to a decision of the South Australian Court of Criminal Appeal of R v G,H [2019] SASCFC 71. Section 20BJ applies after the acquittal of an accused because of mental illness. In that case, Doyle J (Peek J agreeing) said (at [22]-[24]) that the correct approach under s 20BJ was to fix the term "by reference to the hypothetical sentence, with that hypothetical sentence determined without taking into account the defendant's mental illness or impairment..". That is, the Court is required to undertake something akin to the ordinary sentencing process before arriving at an appropriate period of detention.
The Court also determined that under s 20BJ the reference to the 'maximum period of punishment that could have been imposed' meant the legislatively prescribed maximum period for the relevant offence.
I respectfully accept and adopt these observations when setting a term under s 20BC(2). The provisions are to be construed harmoniously and serve the same legislative end.
In what follows, I set out the Crown's contentions as to how that quasi-sentencing approach could have played out in the circumstances. Subject to a couple of matters, the accused's Counsel agreed with them. I also adopt them.
The general approach to sentencing involves the Court's consideration of s 16A(2). The Court will particularly have regard to the considerations of adequacy of punishment (measured with reference to the maximum penalty), the legislative purposes of the provision (generally to protect children online: see R v Asplund (2010) 216 A Crim R 48 at [50]) and general deterrence.
The maximum period of imprisonment that could have been imposed here is 15 years' imprisonment.
The nature and circumstances of the offending were touched upon by me at [17]-[19] of my earlier reasons on 5 September 2022. It is not necessary to repeat them.
Relevant factors when assessing the seriousness of the offending for this offence were identified in Wilson v R [2020] NSWCCA 211 per Hoeben CJ at CL (Johnson J and Lonergan J agreeing) at [27], being: the level of persistence in the use of a carriage service for grooming purposes, the nature of the material communicated, the extent to which the intent to engage in future sexual activity with the offender had developed, the nature of the future sexual activity intended, the age and power differential between the victim and the offender and the nature of the relationship between the offender and the victim.
The Crown submitted that when consideration was given to these factors, on balance, the offending fell at the lower end of the range. I emphasise, in particular, that the accused's Counsel agreed with that evaluation. The accused had been persistent in his communications, but much of this did not feature sexual content. There was a relative absence of description of specific sexual acts which the accused had foreshadowed his intention to engage in. There was a disparity of age (the victim being 15, he being 27), but no real other power differential or imbalance. The Crown reprised other matters that I referred to earlier in these (at [21]) in support of its position that an order for detention was appropriate.
In the accused's subjective case, there was no information about the accused's character. The Crown supplied his antecedents (Exhibit C): although there were some prior offences there was nothing resembling the current offending. The accused's Counsel emphasised his client's age, 27, which was relatively young. Counsel also argued that, with reference to s 16A(2)(h), the accused had co-operated with law enforcement authorities, such as by agreeing to participate in an ERISP. The content of that ERISP was not before the Court to enable the Court to ascertain the extent of admissions or anything else that assisted the investigators.
The Crown also supplied a table of comparative sentences (MFI 2), although did not suggest, with any vigour, that the cases referred to had any real resemblance. As explained earlier, the Court cannot take into account his mental illness and other matters affected by it, such as his rehabilitation prospects or capacity to express remorse or contrition or to make a guilty plea.
The Crown noted that this is not a case where any mandatory minimum sentence could be imposed.
In my view, given the limited information before the Court, adopting the hypothetical and truncated approach I am required to engage in I conclude that a term of imprisonment of three years could have been imposed on the accused if he had been convicted of the offence charged.

Taking into account earlier period of detention

In R v G,H, Hughes J (who delivered the leading judgment) (at [85]-[86]) indicated that, for the purposes of s 20BJ of the Crimes Act, the Court could take into account, when assessing the appropriate period of detention, time already spent in detention. The parties commonly argued that the same reasoning would inform assessment of the length of term under s 20BC(2). In this case, the accused had already spent a period of 382 days in detention. The Court was encouraged to take that period into account in framing a term set to commence from today's date, rather than being tempted to backdate the commencement of the period of detention where there was uncertainty as to the question of the Court's power to do so. I adopt that course.

Orders

I propose to make the following order: 1. Pursuant to s 20BC(2) of the Crimes Act 1914 (Cth), Kurt Laxale is to continue to be detained in the Concord Centre for Mental Health (Kirkbride Unit) for a term of 1 year, 11 months and 14 days commencing 4 November 2022 and expiring 17 October 2024.
I note that, for the purpose of s 20BC(3) of the Crimes Act 1914 (Cth), the Director has a practice of informing the Attorney General of orders of this kind to enable the Attorney to exercise his power under that provision.

Endnote

My reasons were published on Caselaw: R v Laxale [2022] NSWDC 398 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2022

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

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Judgment (12 paragraphs)

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