R v Nguyen [2019] NSWDC 970

District Court New South Wales

Medium Neutral Citation: R v Nguyen [2019] NSWDC 970 Hearing dates: 18 December 2019 Date of orders: 18 December 2019 Decision date: 18 December 2019 Jurisdiction: Criminal Before: Neilson DCJ Decision: See pars [47] - [53]. Catchwords: Crimes Act 1914 (Cth) s 20BC – Unfit to be tried – Conditional release. Legislation Cited: Crimes Act 1914 (Cth) Cases Cited: Nil. Texts Cited: Nil. Category: Sentence Parties: Crown – R (NSW) Charles Nguyen Representation: Counsel: Crown – Williams, A.N. Accused – Shaw, M. File Number(s): 2017/00070528 Publication restriction: Nil.

Judgment

Background 1. HIS HONOUR: Earlier today I made a finding pursuant to s 20BA(4) of the Crimes Act 1914 that the accused will not become fit to stand trial within a period of 12 months since either the initial finding of unfitness for trial was made by Syme J on 16 July 2019 or from today. 2. I am now required to make orders pursuant to s 20BC of the same Act. 3. The relevant provisions of that Act are these: "(1) Where a court determines, under section 20BA, that a person who was found unfit to be tried will not become fit to be tried within 12 months after that finding, the court must, at the time of making that determination, also determine: (a) whether the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital; and (b) if so—whether the person objects to being detained in a hospital. (2) Where a court has made a determination under subsection (1), the court must: (a) if the court has determined that the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital and that the person does not object to being detained in a hospital—order that the person be taken to and detained in a hospital, or continue to be detained in a hospital, as the case requires; or (b) otherwise—order that the person be detained in a place other than a hospital, including a prison; for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged. (3) The Attorney‑General may, at any time, by order in writing, vary the hospital or other place of detention at which a person is detained under this section. (4) Where, for urgent medical or security reasons, it becomes necessary to do so, an officer of the State or Territory in which a person is detained under this section may vary the hospital or other place of detention of that person but, where the officer does so, the officer must forthwith notify the Attorney‑General, in writing, of the variation and of the reasons for the variation. (5) Despite subsection (2), the court may, if in the court's opinion it is more appropriate to do so than to make an order under subsection (2), order the person's release from custody either absolutely or subject to conditions to apply for such period as the court specifies in the order, not exceeding 3 years. (6) The conditions may include: (a) a condition that the person remain in the care of a responsible person nominated in the order; and (b) a condition that the person attend upon a person nominated, or at a place specified, in the order for assessment of the person's mental illness, mental condition or intellectual disability and, where appropriate, for treatment; and (c) any other condition that the court thinks fit." 1. There are further subsections but they are not currently relevant. 2. Here the accused does not suffer from a mental illness, but he suffers from an intellectual disability, that intellectual disability could be categorised as a "mental condition" but there is no suggestion that that can be "treated" in any institution. The disability is permanent, and is lifelong. Therefore the Court cannot deal with the matter under subsection (1). The question then arises whether I should make an order under subsection (2)(b) or whether I should make an order under subsection (5). 3. In the course of argument I inquired of the parties whether the words "not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted" at the end of subsection (2) referred to the maximum penalty for the offence or what would otherwise be referred to as the head sentence. Initially the learned Crown Prosecutor submitted that it referred to the appropriate "sentence" but learned counsel for the offender said it referred to the maximum penalty for the offence. 4. After considering the matter for a short while it appeared to me that the submission made by learned counsel for the accused was correct. But to interpret the words in question as referring to the head sentence one would have to replace the auxiliary verb "could" with the auxiliary verb "would". 5. In the meantime, learned counsel for the Crown was able to provide me with the second reading speech for the Crimes Legislation Amendment Bill (2) 1989. 6. The Bill was presented to the House of Representatives on 5 October 1989 by Mr Robert Brown who was acting for the then Attorney General Mr Lionel Bowen. The speech commences at page 1550 of Hansard on 5 October 1989 and at page 1551 Mr Brown who was the Minister for Land Transport and Shipping Support said this: "……this bill also provides an innovative and humanitarian regime to deal with the difficult and frequently overlooked problem of mentally ill and intellectually disabled persons who come into contact with the criminal justice system. The existing legislation only provides limited options to deal with a person who has been charged with an indictable federal offence where there is the finding of unfitness to be tried or not guilty on the grounds of mental illness. One of the most serious criticisms of the existing law is that a person may be kept in custody indefinitely, without any statutory requirement that his or her case be reviewed. Moreover, a person found unfit to be tried is kept in custody indefinitely without even a prima facie case being established that he or she committed the alleged offence." 1. On page 1552 the Minister commenced discussing the contents of the Bill. 2. At page 1553 he said this: "The bill provides a new regime where a person, charged on indictment with a federal offence, is found unfit to plead or be tried, or is found not guilty on the grounds of mental illness. These changes, for persons found unfit to be tried, include procedures for determining whether the prosecution has established a prima facie case, and for establishing the person's likely fitness to stand trial within 12 months. Where a Court finds the person will not become fit to be tried the person may be released on a bond or placed in custody for [a] period not exceeding the maximum penalty for the offence." 1. Accordingly, under subsection (2)(d) I have the power to order the detention of the accused in a place which includes a prison for a period not exceeding the term of the offender's life. 2. However, I can also deal with the matter pursuant to subsection (5) which would appear to be what the Minister was referring to when he referred to a "bond". 3. There is no guidance, either in the second reading speech or from any decided cases as to the approach to be taken to recommend the term that the Court can specify in its order or the continued detention of the accused. 4. Counsel appear to assume that the intention was similar to that of the New South Wales legislation which was to determine a term which would have been imposed as a prison term by the Court assuming that the person was found guilty and that term is a limiting term which limits the period for which the person can be held in custody. 5. That course proceeds on the basis that the accused would be found guilty. Under the Commonwealth Legislation there is no such presumption, the matter is to be dealt with on the basis of the Crown establishing a prima facie case against the accused who cannot be found guilty either on the balance of probabilities or beyond reasonable doubt because he is unfit to be tried. 6. The offender was taken into custody on 6 March 2017. He has been in prison ever since. He has spent a little over two years and nine months in custody. His continuing physical needs appear to have been attended to satisfactorily by Justice Health. He has had at least six hospital admissions either to Royal Prince Alfred Hospital or to the Prince of Wales hospital for treatment during that period of time. He was being successfully treated before being taken into custody. There is no suggestion that his physical needs cannot be attended to if he is out in the community. 7. The evidence before me strongly suggests that the accused is a vulnerable person and that that vulnerability may have led to his participation in the attempted drug importation which lies behind the charge which has been made against him. For example, Ms Flora Truong, a Psychologist who interviewed the offender on 6 December 2018 said this: "Mr Nguyen comes across as a suggestible individual who demonstrated low intellectual functioning and poor critical thinking. More specifically, his intellectual functioning is assessed to be below that of 99.5% of the same-aged peers. This indicates that he is obviously a vulnerable member of the community who is at risk of being taken advantage, due to his intellectual deficits, poor reasoning abilities and apparent gullibility. It is within this context, that has led to Mr Nguyen to naively agree to a situation in which he was unknowingly exposed to illicit substances." 1. When I read the factual background, it appears to me that it may well be that the accused commenced to be involved in the attempt to take possession of illegally imported drugs, unknowingly but after a while when others were searching the imported material he became involved and participated in the enterprise to some extent. 2. There is no suggestion that the offender is a threat to society, there is no suggestion that he is likely to participate in any similar project again. On a humanitarian basis, the basis on which this legislation was enacted it appears to me that keeping the offender in custody for a further protracted period perhaps equivalent to the period for which "co-offenders" were sentenced, roughly a head sentence of eight years with a non-parole period of five year, is quite inappropriate. It is because of his mental condition, his moral culpability for his involvement in the offence is gravely attenuated even if he were fit to be tried it appears to me that the sentence to be passed upon him ought be lower than that of the co-offenders Chau, Han, Khotpanya, Khedr and Song. 3. Because of the accused's intellectual disability, he is hardly a person to be held up to the community as a person whose treatment displays general deterrence. Furthermore, from the references I have read, it appears to me that it is unlikely that the offender would be ensnared in such enterprise again. 4. I have reached the view that in the exercise of the discretion which has clearly been given to me under s 20DC that I should make an order under subsection (5). I intend to make an order under subsection (5) for a period of three years so that it can be seen in the exercise in which I am engaged upon, is thought to be analogous to sentencing, the offender will have a period of two years and a tad over nine months in custody followed by a period of three years in which he will live in the community at conditional liberty. For those reasons, pursuant to s 20BC (5) of the Crimes Act 1914 I order that the accused be released from custody subject to the following conditions for a period of three years. 5. Firstly, the offender is to reside at 5 Sunset Avenue, Bankstown with his parents. 6. Secondly, he is to remain under the care of his mother Ms Kim Le Truong. 7. Thirdly, he is to be of good behaviour. 8. Fourthly, he is to be subject to supervision by Community Corrections. 9. Fifthly, he is to comply with all reasonable requests by his Community Corrections officer, concerning alcohol and other drugs, rehabilitation, counselling, and testing. 10. On his release from custody the accused is to report to the Community Corrections officer at Bankstown within five working days of his release from custody. 11. HIS HONOUR: Any other orders sought Mr Crown? 12. WILLIAMS: No your Honour.