Anthony Nicholas Confos v Director of Public Prosecutions

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

12378/2004 ANTHONY NICHOLAS CONFOS v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

JUDGMENT 1 HIS HONOUR: The plaintiff seeks relief from this Court in respect of a refusal of a magistrate to make an order under s 32 of the Mental Health (Criminal Procedure) Act 1990 (the Act). In summary that section permits a magistrate, when hearing proceedings involving a defendant who is suffering from a mental illness, to deal with the defendant in accordance with the provisions under the section rather than in accordance with normal sentencing practice. The plaintiff asks this Court to quash the Magistrate's ruling and, as a consequence, either to make the order that the Magistrate should have made or, alternatively, to require the Magistrate to exercise her jurisdiction afresh. 2 There was no issue raised as to this Court's jurisdiction to entertain the summons nor the nature of that jurisdiction. The summons appears to seek relief under s 69 of the Supreme Court Act. However, it seems to me that the proper basis for the proceedings was as an application for leave to appeal under s 53 of the Crimes (Local Courts Appeal and Review) Act 2001. An order refusing to apply s 32 would appear to me, without hearing argument on the matter, to be an interlocutory order for the purposes of s 53(3)(b). However, it is unnecessary to resolve this question in order to determine these proceedings. 3 The plaintiff was charged with a number of summary offences arising out of an incident that occurred in New South Head Road and William Street, Sydney. The plaintiff appeared before the Magistrate on the following matters:

(a) Menacing driving contrary to s 43(2) of the Road Transport (Safety and Traffic Management) Act ;

(b) Negligent driving contrary to s 42(1)(c) of the Road Transport (Safety and Traffic Management) Act ;

(c) Drive in a manner dangerous contrary to s 42(2) of the Road Transport (Safety and Traffic Management) Act ;

(d) Assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act ;

(e) Not giving particulars to other driver contrary to Rule 287 of the Australian Road Rules . 4 The facts giving rise to the charges can be briefly stated. On 11 October 2003 the Plaintiff was driving his vehicle through the city when he pulled up behind a taxi that had stopped at an intersection. In an effort to indicate to the driver of the taxi to proceed, the plaintiff sounded his horn. When the taxi did not move, the plaintiff drove his vehicle beside it and, while both vehicles were stationary, exchanged abusive words and gestures with the other driver. The plaintiff became angry and opened the door of his vehicle to alight, but the lights controlling the intersection turned green and the taxi driver proceeded on his way. 5 The Plaintiff re-entered his vehicle and pursued the taxi until he was driving beside it along New South Head Road. He then repeatedly swerved his vehicle toward the lane where the taxi was driving almost colliding with the taxi on more than one occasion. At the same time he was sounding his horn and staring belligerently at the taxi driver. The two vehicles continued in this way into William St, Darlinghurst and through the Kings Cross Tunnel until the traffic ahead of them came to a stop because of a red light at the intersection of William Street and Yurong Street, Darlinghurst. The plaintiff then alighted from his vehicle, entered the taxi via the front passenger side door, and repeatedly punched the taxi driver in the face at the same time shouting "you fucking stupid Asian". 6 When a bystander approached the vehicle and yelled at him to stop, the plaintiff returned to his vehicle. Ignoring a request not to leave the scene, he drove into the taxi, then reversed into a mailbox and pot plant, drove over the footpath and back onto the roadway. He then drove away, narrowly avoiding pedestrians and oncoming vehicles. 7 A short time later, police attended the plaintiff's home. Immediately he admitted his involvement in the incident and was later charged with the offences for which he appeared before the Magistrate. 8 When the matter first came before the Magistrate on 29 March 2004, an application was made on behalf of the plaintiff that the matter be dealt with pursuant to the provisions of the Act. Section 32 relevantly provides:

32 Persons suffering from mental illness or condition

(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate: (a) that the defendant is: (i) developmentally disabled, or (ii) suffering from mental illness, or (iii) suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990, and (b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law, the Magistrate may take the action set out in subsection (2) or (3).

(2) The Magistrate may do any one or more of the following: (a) adjourn the proceedings, (b) grant the defendant bail in accordance with the Bail Act 1978, (c) make any other order that the Magistrate considers appropriate.

(3) The Magistrate may make an order dismissing the 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 of the defendant's mental condition or treatment or both, or (c) unconditionally. 9 In order to determine the application the Magistrate received a copy of the police facts sheet and an antecedent report from the prosecutor. The plaintiff's solicitor tendered a psychiatric report of Dr Lee, dated 26 March 2004. The psychiatrist offered the following opinion:

I believe that [the plaintiff] is not a mentally ill person within the meaning of chapter 3 of the Mental Health Act. However he suffers from a mental condition, for which treatment is available, characterised by severe recurrent disturbance of mood characterised by depression as well as intermittent uncontrolled anger. It would also appear compounded by problematic use of drugs.

The psychiatrist also set out a treatment program for the applicant that included addressing his use of cannabis and a course of anti-depressants and "mood stabilizers". 10 There does not appear to have been any dispute before the Magistrate, and there was none before this Court, that the plaintiff had a mental condition that brought him within s 32 of the Act. 11 It is clear from the transcript of proceedings that from the outset the Magistrate was concerned with what she regarded as the serious nature of the offences charged against the plaintiff. It is also appears, initially at least, that the Magistrate was concerned with the plaintiff's excessive use of marijuana and she expressed views during exchanges with the plaintiff's solicitor that she thought that the plaintiff's behaviour resulted from his use of that drug rather than any mental disability or illness. During the course of these exchanges, her Honour stated:

Well I just have a problem with such serious charges where he has a background at school of being disruptive and being suspended six times, and we all know the side effect of marijuana is the up and down, the depression. But that day, you know, there was nothing there to mark it and what he said about "fucking Asians" sounds like somebody who has a short fuse. 12 However, it is clear that the Magistrate was reading from the report of Dr Lee during these exchanges and commenting upon material in that report. She plainly could not have over-looked the finding set out above. In any event, the Magistrate never suggested that she did not have jurisdiction to deal with the plaintiff under the provisions of s 32 and this was obviously because she accepted that he was suffering from a relevant mental condition at the time of the commission of the offences. 13 Towards the end of the hearing on 29 March the Magistrate expressed her view that the seriousness of the offences stood in the way of the application. However, at the request of the plaintiff's solicitor she adjourned the proceedings in order to provide the plaintiff with an opportunity to place further evidence before the court in support of the application. 14 On 21 June 2004, the matter was again before the Magistrate. The plaintiff called Dr Kohn, a medical practitioner specialising in adolescent paediatrics and who had been treating the plaintiff since 2000. Dr Kohn's evidence was that he believed the plaintiff was suffering from an over medication of Luvox, an antidepressant and mood stabilising drug, at the time of the incident. He expressed the opinion that the plaintiff's conduct was out of character and that he was unlikely to re-offend. The prosecutor did not seek to challenge the doctor's testimony. 15 Notwithstanding this evidence, the learned Magistrate still seemed to have felt some misgivings that the plaintiff's conduct was due to a mental disorder or the over use of medication rather than the effects of cannabis. But it is clear that ultimately she came to the view that, notwithstanding the plaintiff's mental condition, the offences were too serious and rejected the application. In her reasons for dismissing the application, the Magistrate recited the facts giving rise to the offences in detail and then stated:

Now from those facts, they were very serious offences. The evidence before me today is that at the time the accused was obviously suffering from a mental illness and Dr Kohn's evidence is that was due to an over medication of Luvox.

I have great sympathy, but having said that one can understand what's coming next, I have great sympathy for the family and for the young man but I consider the offences are too serious to deal with them pursuant to section 32. 16 It is clear that s 32 requires the magistrate to make a discretionary judgment as to the appropriateness of proceedings under the section rather than under the general criminal law. But the section requires a magistrate to arrive at a positive finding of fact before proceeding to deal with the defendant under the provisions of Part 3 of the Act. The magistrate can only proceed under s 32(3) to dismiss the charge or discharge the defendant where, in accordance with s 32(1)(b), the magistrate has determined that;

"………it would be more appropriate to deal with the defendant in accordance with the Provisions of this Part than otherwise in accordance with law." 17 In order to determine whether it is more appropriate to deal with the applicant under Part 3 the Magistrate has to perform a balancing exercise; weighing up, on one hand, the purposes of punishment and, on the other, the public interest in diverting the mentally disordered offender from the criminal justice system. It is a discretionary judgment upon which reasonable minds may reach different conclusions in any particular case. But it is one that cannot be exercised properly without due regard being paid to the seriousness of the offending conduct for which the defendant is before the court. Clearly the more serious the offending, the more important will be the public interest in punishment being imposed for the protection of the community and the less likely will it be appropriate to deal with the defendant in accordance with the provisions of the Act. It should be emphasised that what is being balanced is two public interests, to some extent pulling in two different directions. It is not a matter of weighing the public interest in punishment as against the private interest of the defendant in rehabilitation. 18 Because the magistrate's jurisdiction under the Act involves a discretionary judgment, what weight is to be given to the various factors that touch upon that judgment will be very much a matter for the particular magistrate. It would be very difficult, if not impossible, for a defendant to convince this Court to intervene in the exercise of that discretion simply on the basis that the magistrate appeared to give more weight to one factor than another. As with any appeal against a discretionary judgment, the basis upon which this Court can intervene in the exercise of the power under s 32 is very limited. The question for this Court is whether the magistrate failed, either actually or constructively, to exercise the discretion conferred on the court by the section. 19 Fully appreciating this difficulty Mr Stanton for the plaintiff argued that the magistrate had been overly concerned with the nature of the charges rather than with the facts of the particular offences with which the plaintiff had been charged. It was submitted that the Magistrate unduly fettered her discretion by effectively limiting the scope of s 32 by determining that it could not apply to a certain category of offences; in this case "road rage" offences. From the transcript of proceedings on 29 March 2004, Mr Stanton relied upon the following exchanges between her Honour and the legal representative of the plaintiff: Bench: You see road rage all the time Mr Gilbert. Gilbert: But your Worship I understand that … Bench: I have been at Penrith, on the way out to Penrith where I was for six months last year, people would tail gate you of a morning. Gilbert: No I know, its terrible. Bench: And coming back, its not - it is behaviour that on the whole one would expect late at night but it does happen, I mean that's why we have the incidents that we have that you read about, they don't always happen late at night, they happen in the middle of the day, all that sort of thing. But my thing is really whether the section 32, whether I can feel … Gilbert: Comfortable in its application. Bench: … comfortable. Can I tell you at this stage I don't, they are such serious offences and he sees Dr Lee after the event ….."

Mr Stanton submitted in effect that the Magistrate had a closed mind to the application under s 32 because of her attitude to the type of offence with which the plaintiff had been charged. 20 It must be said that the comments made by the Magistrate in this part of the transcript were, with respect, unhelpful and possibly distracting from the real issue raised by the application. Her experience on the public roads was little to the point because it was the criminality of the plaintiff's conduct that had to be assessed not that of other road users. To the extent that the Magistrate might be taken as indicating that general deterrence was an important matter to be considered, it should be borne in mind that general deterrence may have less weight in sentencing persons with mental disorders: see for example R v Fahda [1999] NSWCCA 267. Therefore, the need for general deterrence in respect of a certain class of offence may not be a relevant, or particularly significant, consideration in determining whether to deal with a particular defendant under s 32. 21 However, it is clear that at least on 21 June 2004, her Honour had in her mind the particular facts of the offences with which the plaintiff had been charged rather than the type of offence. For example in one exchange with the plaintiff's legal representative, the Magistrate stated:

…if the facts weren't what they were then I'd be inclined to look at it but because of the seriousness of the alleged facts, I just cant get over that." 22 Furthermore, and more importantly, I have already quoted from a portion of the Magistrate's reasons in dismissing the application that makes it clear that she approached the matter having regard to the particular facts giving rise to the offences for which the plaintiff was before the court. 23 I am not satisfied that there has shown to be any error in the Magistrate's determination of the application to deal with the plaintiff under the Act rather than to sentence him according to law. The summons is to be dismissed with costs. **********

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

12378/2004 ANTHONY NICHOLAS CONFOS v DIRECTOR OF PUBLIC PROSECUTIONS (NSW)

JUDGMENT 24 HIS HONOUR: In this matter I have dismissed the summons, and without hearing the parties as to costs just acted on the normal basis that costs would follow the event. 25 This morning it has been put to me that I ought not to make the normal order as to costs. I understand that the submission is that each party pay their own costs. 26 Two bases are put forward to support that submission. The first was that Mr Confos is, I am told, a young man, a student without means in order to pay the costs of the Director. 27 I assume that part of that submission, although unsaid, was that the Director of Public Prosecution is the defendant and therefore, presumably, more able to meet the costs of the matter than if it were a private person. 28 The other basis upon which I am asked to depart from the normal order in respect of costs is that it is submitted it was not unreasonable to bring the matter to this Court. 29 As I pointed out to counsel, and as I point out in the reasons for judgment in dismissing the summons, one of the difficulties that was faced by the plaintiff was that this was, in effect, an exercise of discretion and the limited basis upon which that exercise would be interfered with would be well known to those persons who advised the plaintiff. 30 In fact, it seems to me that despite the able submissions made on behalf of the plaintiff there was little prospect of this Court interfering with the discretion particularly on the basis initially put forward, and that was that the Magistrate had given too much weight to a particular factor in reaching her assessment as to whether or not it was appropriate to exercise the discretion under section 32. 31 It seems to me that the Director is entitled to the order for costs. 32 I am not satisfied, nor would I be satisfied even if I granted the plaintiff an adjournment to put on evidence, that there are sufficient reasons to depart from the normal order as to costs. 33 I note that the Director has very reasonably, and somewhat generously, indicated that the only costs that will be sought will be costs which the Director would have to pay in relation to counsel appearing in the matter. It seems to me, as I say, to be a very fair result and I will not alter the order as to costs, but I note the concession made by the Director.

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