R v Chanthasaeng, Songsangkong [2008] NSWDC 122

Reported Decision : 7 DCLR (NSW) 158

New South Wales District Court

CITATION: R v Chanthasaeng, Songsangkong [2008] NSWDC 122

HEARING DATE(S): 10/06/2008

JUDGMENT DATE: 11 June 2008

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Application for order declining to conduct enquiry and dismiss charge - refused (para 37); Accused found unfit to be tried - referred to the Mental Health Review Tribunal.

CATCHWORDS: Criminal Law - Fitness Hearing - Supply prohibited drugs - methylamphetamine - 30gms - crown case supply for financial gain - - crown case offence committed whilst on bail - application not to hold hearing and dismiss charge - applicable law - scope and function of s. 10 (4) MHCPA - applying s556A criteria to offence and offender - Presser criteria applied.

LEGISLATION CITED: s.10 Mental Health (Criminal Procedure) Act 1990

R v Newman [2007] NSWCCA 103 DPP v Mills [2000] NSWCCA 326 CASES CITED: Queen v Presser [1958] VR 45 at 48 R v Mailes [2001] NSWCCA 155 R v Dennison NSWCCA 03/03/1988

PARTIES: Regina Songsagkong Chanthasaeng

FILE NUMBER(S): 2008/11/0044

COUNSEL: T Bailey for Crown

SOLICITORS: Mr T. Lynch L.A.C. for Accused

JUDGMENT HIS HONOUR: Application to dismiss charge 1. Songsangkong Chanthasaeng is charged with two counts of supply prohibited drug, namely 30.2 grams of methylamphetamine and 7 grams of heroin. He is also charged in the alternative with being knowingly concerned with the supply of each drug. 2. The offences are said to have occurred on 27 July 2007. He was arrested in respect of these charges on 27 July 2007 and has been in remand custody since that date. When he was presented for arraignment the Court was informed that there was a question as to his unfitness to be tried. However, before that issue was determined I was invited, pursuant to s 10(4) Mental Health (Criminal Proceedings) Act 1990, to determine not to conduct an inquiry, dismiss the charge, and order his release. 3. The facts alleged by the Crown are these; police were patrolling south on Pennant Hills Road, Normanhurst at about 2.50am of 27 July. They were close to an intersection at Dartford Road. They observed an Hyundai Xcel parked in a carpark attached to Kenley Park, on Kenley Road, Normanhurst. As police drove past, the vehicle was seen to reverse quickly from the carpark, drive off in a northerly direction along Pennant Hills Road. Police became suspicious because that area is known to them for drug related offences. In observing the car they saw that there were two people in the car. The passenger was seen to look towards the police and move the back of his seat down so that he was lying down. Police facts allege that that was consistent with him trying to hide from them. It seems to me that jury may so find. Police turned and activated warning devices attempting to pull the vehicle over. At that time they were close behind the vehicle, and, as one can imagine, at ten to three in the morning there were no other vehicles on the road. The driver continued to drive slowly and accelerating erratically. Ultimately the vehicle came to a stop near the intersection of Pennant Hills and Buckingham Roads, Normanhurst. Police received some information via their computer and radio system. They approached the driver and spoke to him. At this time the accused, Mr Chanthasaeng, was lying on the passenger seat with it as flat as one can make it, not looking at the police. His hands were fidgeting, police say he was gaunt in appearance, and appeared to be nervous. 4. The driver's account to police was that they were waiting at the park to meet a friend but he was unable to give any further information about the address or name of the friend, or any directions on how to reach the street. Police then turned their attention to the passenger door of the vehicle. They noticed material in the car, particularly a cut cigarette package, consistent with equipment or being used for snorting illicit drugs. When Police spoke to the accused as to why he was there, his initial answer was that they were just going for a drive, that he was feeling depressed and wanted to go for a drive. Later he gave yet another account. There was a concession given to the police that he had previously been arrested on drug related matters, a fact not likely to go to the jury but nonetheless in these proceedings is not a matter that I need to pay much attention to. 5. He was asked numerous times whether there were any drugs or syringes in the vehicle. He said, "no, not that he could remember, but that friends had used the car and he could not be sure". He did not know whether there were drugs in the car. 6. He was asked if he was currently using drugs and he said that he used to do heroin and that he used to snort it. They conducted a personal search of him. There is no suggestion it was unlawful. Located in his bum-bag was a small aluminium foil and an aluminium tin with marihuana leaves printed on it. They examined again the cut cardboard cigarette box on the floor and came to a view that it could be used to snort drugs. 7. The accused offered that he was the owner of the vehicle and they commenced a search of the vehicle. They saw two cylindrical pieces of cardboard made from cigarette packaging and the accused conceded that those were used for snorting heroin. There was a small bottle, which police recognised as a consequence of their previous work that it was an intravenous drug use. Upon completing the search of the interior of the vehicle, they removed keys and used those keys to open the fuel cap compartment door. Located within that fuel cap area was a large resealable plastic bag folded a number of times and fitted above the fuel cap. Both this accused and the driver were questioned in respect of the resealable bags. 8. The accused indicated that it contained one ounce of ICE, and 7 grams of heroin. Both men were arrested and informed of the reason for their arrest. 9. They were asked a number of questions. The accused told police that the items that had been seized were drugs. The accused agreed to take part in an interview which was electronically recorded. He told police he owned the drugs and that they were secreted in the fuel cap area of the car. He then said that he was conveying the drugs to the Newcastle area for a drug syndicate in the Cabramatta area who, he believed, would harm him if he did not convey the drugs. 10. That would be of course the third account that police had of what the vehicle was doing when it was arrested - at least it was capable of being construed that way. He claimed that he was to be contacted by a syndicate when on the F3 freeway, and would receive instructions of where to drop off the drugs. He was unable to name, or would not name, identify or supply any contact detail for the persons. 11. The drugs were subsequently analysed. One is commonly known as ICE, and was weighed at 32.4 grams. The foil containing what was believed to be heroin was weighed and found to be 9 grams. He was then charged with the charges currently before me. 12. It is unclear on these facts whether the accused's companion has been charged or not. I have assumed for the purposes of these matters that he has not been charged. Given that the accused readily identified the quantity and identity of the drugs concealed, I am prepared to deal with this application that the Crown could have proved on the limited evidence available, that the accused was intending to supply some or all of those drugs in his possession in the Kenley Park carpark. The quantity of heroin captured by the police amounted to 7 grams when weighed without the foil, that is two times the trafficable quantity. The amount of methylamphetamine captured amounted to ten times the trafficable quantity, and five times the indictable quantity. The significance of that finding is that both drugs were of a sufficient quantity to be supplied to somebody who himself or herself could have been an on supplier. Indeed, if one thinks about the deeming provision it would have been the responsibility of the person being supplied with all of those drugs, to establish the contrary. That is particularly so in respect of the methylamphetamine. 13. For the purposes of this application I am prepared to accept the street value of the drug was approximately $16,000. What flows from this is that it would be difficult to resist an inference that the accused was supplying for financial gain even if he was also supplying to feed his own addiction. 14. Although the antecedents have not been tendered, I am prepared for the purposes of the application to assume the accused had the drugs in his possession for supply in circumstances when he was then on a charge of supply prohibited drugs that was making its way through the Local Courts and that he was on bail in respect of that charge when this conduct was uncovered. I have accepted for the purposes of the application that the accused has other encounters with police in respect of drug related offences. But what I do not have, and have not assumed, is that he has other encounters with the courts for the same matters. 15. I have accepted a Magistrate of the Local Court regarded these charges, as sufficiently serious as to refuse formally, or perhaps by consent, the grant of bail. 16. Section 10(4) of the Mental Health (Criminal Procedure) Act 1990 provides that "The Court may determine not to conduct an inquiry as to the unfitness of an accused in circumstances where it would be inappropriate to inflict any punishment, having regard to the trivial nature of the charge or offence, the nature of the person's disability, or any other matter the Court thinks proper to consider. Where a Court determines not to conduct an inquiry it may dismiss the charge and order the accused person to be released." 17. While the defence urged this is a proper case for such a determination and such orders, the Crown opposes that application. While certainly not determinative of the issue, the JIRS statistics for supply prohibited drug (amphetamines) less than the commercial quantity, for the higher courts provides a broad overview of penalty types for 770 cases. None of those cases received a s 10 dismissal, three received a s 10 bond, none received a s 10A conviction only, none of the cases received a sentence to the rising of the Court, only two were subject to a fine only, and eighteen were given a s 9 bond. Thus, less than three per cent received a sentence disposition less than a s 9 bond with supervision. 18. I accept that a s 10 discharge whether conditional upon entering a bond or outright, can be given in circumstances where the appropriate sentencing range can extend into monetary penalties, perhaps even community service orders and beyond. 19. Section 10(4) of the Mental Health (Criminal Procedure) Act was the subject of close examination as to its purpose, scope and proper interpretation, in a recent Court of Criminal Appeal case , Newman v Regina [2007] NSWCCA 103. The leading judgment was given by Chief Justice Spigelman, with Justices Bell and Price agreeing. His Honour said: " 34 …The purpose of the [ Mental Health (Criminal Procedure) Act 1990 ] is not in my opinion to provide "specific and flexible procedures for the disposal of offences committed by persons who have a cognitive or mental disability. The appellant's reference to the "diversionary/disability" purposes of the legislative scheme, is also in my opinion incorrect. Similarly it is not correct to infer that a focus "on disability" as distinct from a "focus on guilt" is required. I am unable to detect any such purposes in the legislative scheme. Finally the appellant's contention that the discretion is "broad" is likely to lead to error. The section confers a judicial discretion for specific purposes.