Court Orders Treatment Instead of Conviction for Defendant with Mental Health Issues

The court set aside a conviction and dismissed charges against a defendant with mental health issues, opting for treatment under the Mental Health Act and Cognitive Impairment Forensic Provisions Act 2020.

District Court New South Wales

Medium Neutral Citation: R v [NAME] [2023] NSWDC 650 Hearing dates: 18 May 2023 Date of orders: 18 May 2023 Decision date: 18 May 2023 Jurisdiction: Criminal Before: Neilson DCJ Decision: Conviction on sentence imposed by the [ADDRESS] set aside in lieu of an order under the Mental Health Act and Cognitive Impairment Forensic Provisions Act 2020. Catchwords: CRIME – Appeal from [ADDRESS] – Whether Magistrate ought to have made the order sought by the appellant because of his mental health at the time of offending and at time of sentence. Legislation Cited: Crime (Sentencing Procedure) Act 1999 Crimes (Domestic and Personal Violence) Act 2007 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Mental Health Act 2007 Cases Cited: Nil. Texts Cited: Nil. Category: Principal judgment Parties: [NAME] – R (NSW) Appellant – [NAME]: Counsel: [redacted] Appellant – Bodisco, P.

Solicitors: [redacted] Appellant – [NAME]. File Number(s): 2022/00264013 Publication restriction: Nil. Decision under appeal Court or tribunal: [ADDRESS] of Decision: 2 December 2022 Before: Magistrate Denes

Judgment 1. HIS HONOUR: This is an application by an appellant under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. The appellant made an application for such an order in the [ADDRESS], but it was refused by Magistrate Denes sitting at Manly on 2 December 2022. The appellant pleaded guilty, and Her Honour sentenced him to a [NAME] Order with a condition that he continue treatment with [NAME], a Clinical Psychologist. Much to my surprise, her Honour did not make an order for supervision by [NAME] as her Honour was required to do by s 4A of the Crime (Sentencing Procedure) Act 1999.

2. The appellant was charged that between 4 April 2022 and 25 August 2022 at Forestville, he did stalk [NAME] with the intention of causing her to fear physical or mental harm. That is an offence contrary to the Crimes (Domestic and Personal Violence) Act 2007 s 13(1). The maximum penalty available in this Court for that offence is imprisonment for five years and/or a fine of 50 penalty units. In the [ADDRESS] the maximum penalty was imprisonment for two years and/or a fine of 50 penalty units.

3. The relevant Facts Sheet is Exhibit 7. The appellant and the complainant had been in an intimate domestic relationship for a period of nine years. For five years ending in May 2022, they had lived together at a property in Forestville. The relationship ended on 20 April 2022, but the appellant stayed at their common residence until 12 May 2022. The harassment or stalking commenced on 25 April 2022 when the appellant was intoxicated. The complainant sought refuge in her bedroom and the appellant kept on knocking on her door until he left to obtain another alcoholic beverage. She then locked the appellant out of the house and contacted police due to having fears for her safety. The appellant then calmed down.

4. However, there was further unwanted interaction between the former couple, on 29 May 2022, 17 June 2022, 18 June 2022, 16 July 2022, 17 July 2022, 18 July 2022, 30 July 2022, 1 August 2022, 3 August 2022, 10 August 2022 and finally on 25 August 2022. There was no actual violence threatened but implicit in what the appellant said could be taken by the complainant to be a threat to her personal welfare and safety. No actual violence was, however, perpetrated.

5. For many, many years the offender has been affected by a serious depressive illness. In 2009 he came under the care of [NAME], a General Practitioner at [NAME], Forestville. [NAME] has prescribed Venlafaxine 225 milligrams to be taken daily for depression. It appears that the appellant has been under his care ever since.

6. Exhibit 5 before me is a letter sent by a registered nurse/case manager at the [COMPANY], part of the [NAME]. It records this: "Thank you for referring [NAME] to our service for treatment of his depression. He has been seeing the case manager every fortnight to monitor his mental state and provide counselling. Review is with [NAME] is every three months or sooner if required and his most recent appointment was 3/10/12. [NAME] has been suffering from depression in the context of various life stressors including his marriage breakup and the death of his father in Ireland. He's currently prescribed Cymbalta 90 milligrams. However, he had attempted to reduce this to 60 milligrams daily with [NAME] deciding to remain on 90 milligrams. However, we had attempted to reduce this to 90 milligrams daily. I have been providing counselling to [NAME] every 2-3 weeks but unfortunately, I am moving on from my current position in the next few weeks and my position has yet to be filled. He was provided contact details from a number of psychologists for ongoing psychological follow up and he has informed me that he opted to return to a previously visited psychologist, [NAME] in St Leonards. He will require a GP mental healthcare program plan in order to attend the psychologist. His next appointment is with [NAME] on 31 October 2012, we will discuss his ongoing care and referral to private sector. [NAME] may be referred to our service in the future if his situation changes and/or we can be of assistance to him." It would appear that the prescription of the Venlafaxine has been more recent.

1. At some stage the appellant came under the care of a [NAME]. According to her report of 14 November 2022, she counselled him for nine sessions in 2017, for eight sessions in 2020, for five sessions in 2021 and for six sessions in 2022.

2. The appellant entered the witness box in my court and told me that the sessions of counselling with Ms McPherson were between January and March of 2022. He also told me that during the period from April to August 2022 he was not taking his prescribed medication daily, that there were periods when he did not and that may explain his erratic behaviour referred to in the Facts Sheet.

3. On 17 October 2022 the appellant came under the care of [NAME], a clinical psychologist and he remains under his care. According to [NAME]'s report of 16 May 2023 his last consultation with the appellant was on that day. It appears that the appellant has been seeing him monthly.

4. The appellant's childhood was marred by his being assaulted by his soccer coach over a period of some two years when he was aged about eight and nine. He had a difficult upbringing in Dublin. His mother was reclusive and his father had his own problems. His father became unemployed in 1979, the appellant having been born in 1969, that is his father became unemployed when the appellant was about nine or ten years old.

5. His father was not a positive support for him. At the age of 17 he left school to work in a bar and then despite his father's protests went to London at the age of 18. In London he met [NAME] with whom he travelled to Australia in 1994. They married in 2001. Together they had three children, two boys and a girl. The sons are now aged about 20 and 16 and the daughter is now aged about 13. I give those ages as being approximate because they are recorded in the report of [NAME] on 23 November 2022.

6. When their elder son reached the age of eight the appellant's mental health deteriorated. He was gravely concerned that what had happened to him in the past might occur to his elder son. According to the history obtained by [NAME] the appellant became "paranoid about sleepovers for his children" and became super vigilant and distrustful of others. The word "paranoid" was not used in proper medical fashion, and it means merely that the appellant was acutely concerned about his children's welfare.

7. The appellant became increasingly depressed. He began accessing chat rooms and pornography. When his wife found that he is using those services their relationship deteriorated and eventually that relationship came to an end.

8. In the [ADDRESS] there was before the learned Magistrate a reference from [NAME] the appellant's ex-wife which speaks positively about her continuing relationship with the appellant and positively about his continuing relationship with his children. There is no suggestion of any falling out between the couple as a result of anything that might be described as "domestic violence."

9. The Magistrate does not refer to that in any of her reasons. Subsequently the appellant formed the relationship with [NAME] and they started living together after they had known each other for five years. [NAME]'s history about its failure is this: "Their relationship began to break down following the death of his mother in 2020. He became increasingly depressed, withdrawn and disengaged from family life, evident, for example, in coming home from work and going to bed. He was not proactive in participating in family life, was considered to be messy, and also a hoarder. Despite persistent attempts to repair the relationship, in 2022 Ms [NAME] decided to end the relationship, after nine years together. This came as a shock and Mr [NAME] felt profound rejection, sadness and anger. The loss of his mother, in addition to the loss of the connection with Ms [NAME], was exacerbated by knowing she had dated another male soon after their separation."

1. The diagnoses made by [NAME] were major depressive disorder, severe, with anxious distress, as well as dysthymia of early onset, "Other Specified Trauma" and stressor related disorder referrable to the appellant's being assaulted as a child. [NAME] expressed a view that although the appellant could not be described as mentally disordered as defined in the Mental Health Act 2007 or mentally ill as defined in that Act, he was significantly impaired in the following ways: "Clinically impaired thought disturbance with diminished capacity for rational decision-making and judgment; Poor assessment and awareness of anticipated consequences in his actions; Clinically significant mood disturbance with emotional dysregulation and a high degree of reactivity, agitation and distress; Inability to process his thoughts and feelings due to being overwhelmed by feelings of rejection and loss; Impulsivity and recklessness (both of which are out of character)."

1. In his report of 23 November 2022, [NAME] sets out a psychological treatment plan which required treatment by both the appellant's general practitioner and the appellant's clinical psychologist.

2. Her Honour in the [ADDRESS] declined to deal with the matter under s 14 because she thought that the offending was protracted and severe that there might be consequences in the future which would require the Court to record a conviction. However, the recording of a conviction can have many serious consequences for a person.

3. In his letter to me, the appellant pointed out that a conviction might affect his future employment opportunities and basic enjoyments that he has in life such as coaching his children's respective soccer teams and the possibility of not being able to travel to various overseas countries in the future. The appellant intends in the future, as suggested by [NAME], to travel to Ireland to obtain essentially treatment for the condition which he suffered in that country and to meet with other survivors of the same traumata, such that he will be supported.

4. Sections 14 and 15 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 are these: 14 Orders Magistrate may make "(1) A Magistrate may make an order to dismiss a charge and discharge the defendant— (a) into the care of a responsible person, unconditionally or subject to conditions, or (b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment, treatment or the provision of support for the defendant's mental health impairment or cognitive impairment, or (c) unconditionally. (2) An order to dismiss a charge against a defendant does not constitute a finding that the charge against the defendant is proven or otherwise. 15 Considerations of Magistrate when making order In deciding whether it would be more appropriate to deal with a defendant in accordance with this Division, the Magistrate may consider the following— (a) the nature of the defendant's apparent mental health impairment or cognitive impairment, (b) the nature, seriousness and circumstances of the alleged offence, (c) the suitability of the sentencing options available if the defendant is found guilty of the offence, (d) relevant changes in the circumstances of the defendant since the alleged commission of the offence, (e) the defendant's criminal history, (f) whether the defendant has previously been the subject of an order under this Act or section 32 of the Mental Health (Forensic Provisions) Act 1990, (g) whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan, (h) whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public, (i) other relevant factors."

1. I can make a 12 month order that the Magistrate could have made. The appellant consented to the making of an ADVO and does not seek to have that set aside. The ADVO has been in place for a period of two years since it was made. There is no suggestion that since 25 August 2022 there has been any contact between the appellant and [NAME].

2. In his letter to me, Exhibit 6, the appellant said this: "Since August 2022 I have made a conscious effort to clean up my act so that I will never face the courts again for such poor behaviour. I believe the counselling with [NAME] has helped me a lot in this regard. [NAME] has taught me alternate ways to dealing with stressors in life, and in continual sessions that we have had since August 2022, has opened my eyes up to not wanting to be the person that I was back then. [NAME] has become a close friend and inspiration in my life. More than any person before, has taught me that I am better than the person I was in 2022. I want to be a much more productive person in society, and to do so, I intend to continue with psychological treatment under [NAME]'s direction, and to take medication (something that I admit that I previously prolapsed in managing) prescribed by my GP, [NAME], to combat what I do recognise now as is necessary for my mental stability and ongoing rehabilitation."

1. Using the discretion which I have, I believe that the learned Magistrate ought in the circumstances of this case to have made an order under s 14 and I intend to do so.

2. For those reasons I set aside the conviction recorded and penalty imposed by the [ADDRESS] at Manly on 2 December 2022. In lieu thereof, I dismiss the charge and discharge the offender into the care of [NAME], clinical psychologist, on condition that he comply with the psychological treatment plan referred to by [NAME] in his report of 23 November 2022 for a period of one year from today.

3. HIS HONOUR: Any other orders sought? 4. BODISCO: No, your Honour.

5. RAFEEQ: No, your Honour. ……. 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: 02 September 2024