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 v Presser [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. 1. The parties have commendably reached agreement on most of these questions.