Apprehended Violence Application Det Richard Broome v Tony Liristis; R v Tony Liristis; R v Tony Liristis; Apprehended Violence Application NSW Police for Tares Jahshan v Tony Laristis

JUDGMENT 1The appellant appeals against convictions and the imposition of an apprehended violence order. The matters were heard by two Magistrates in the Local Court. The first series of convictions were those found by her Honour Magistrate Fleming on 18 June 2010. He confronted a number of charges before her Honour but was convicted of the following offences: - (a)An offence of stalking/intimidation contrary to s.13(1) of the Crimes (Domestic and Personal Violence) Act. (b)Publishing an indecent article contrary to s.578C(2) of the Crimes Act. (c)Using a carriage service to menace or harass contrary to s.474.17 of the Criminal Code Act (Commonwealth). (d)Publication of indecent article contrary to s.578C(2) of the Crimes Act; and (e)A further offence contrary to s.13 of the Crimes (Domestic and Personal Violence) Act. 2For the moment I do not propose to delve into the evidence before her Honour, save to say that her Honour was satisfied beyond reasonable doubt in relation to each of them. 3On 8 July 2009 an apprehended violence order was made against the appellant by his Honour Magistrate Heilpern. 4In this Court he contests the making of that order. 5Clearly the most significant of the matters before me are his appeals against convictions by Magistrate Fleming. 6Before the substantive appeal commenced Mr Edwards, on behalf of the appellant, made an application that I ought to deal with the appellant pursuant to the provisions of s.32 of the Mental Health (Forensic Provisions) Act 1990. 7Subsections 1 reads as follows: (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 (or was at the time of the alleged commission of the offence to which the proceedings relate): (i) developmentally disabled, or (ii) suffering from mental illness, or (iii) suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, 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). 8Relevant to this application is also s.32(4) which reads as follows:- A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise. 9The appellant maintains his innocence and wishes to proceed with his appeals against conviction and wishes to maintain his application that I ought set aside the apprehended violence order which was made by Magistrate Heilpern. 10If I accede to his application it is proposed on his behalf that I make orders pursuant to s.32(3). Subsection 3 is as follows:- 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. 11What is anticipated is that I make orders in accordance with the recommendations contained in a report of Dr Allnutt, forensic psychiatrist, whose report is before me as Exhibit 1, which suggests a treatment plan. In other words, an order pursuant to subsection 3(b) of the Act. 12The powers that I have on appeal are the same as those conferred upon the Magistrate at first instance. (See the Crimes (Appeal and Review) Act 2001 (s.28(2)). 13Section 32 vests a discretion in the Court but it is important to note that an order can be made "... at any time during the course of the hearing of proceedings before a Magistrate ..." 14As is clear from s.32(1)(b) I am entitled to take into account the evidence as it unfolded before Magistrate Fleming. Further s.36 reads:- For the purposes of this Part, a Magistrate may inform himself or herself as the Magistrate thinks fit, but not so as to require a defendant to incriminate himself or herself. 15At this stage of the proceedings the convictions are good thus in my opinion I can and do have regard to the findings of fact and on credit made by her Honour. 16In the DPP v El Mawas (2006) NSWLR 93 Justice McColl with whom the other two members of the Court agreed, concluded that it is appropriate to have regard to the seriousness of the offence when considering whether to proceed pursuant to the provisions of s.32. Her Honour agreed with Howie J in Confos v The Director of Public Prosecutions [2004] NSWSC 1159. 17Spigelman CJ in El Mawas said at paragraph 6:- In my opinion, her Honour made no error. In her ex tempore reasons she took into account considerations that made it less appropriate "to deal with" the respondent under the Act: (i) the seriousness of the alleged offences; (ii) the fact that the alleged offences involved premeditation and planning and that the nature of the mental illness, involving lack of self-control, including impulsivity and an inability to plan, was not manifest on the occasion of the alleged offences 18The second of those reasons is of significance in this case. 19Section 32(4) means that an order made pursuant to subsection 3 cannot be construed as meaning that the offences charged against a defendant are deemed to be proved or otherwise. In other words, dismissed. That has no relevance here in that he has in fact been convicted. 20The legislation, strangely in my opinion, does not require any determination as to whether a defendant is guilty of the offence charged. As was observed, obiter, by Adams J in Mantell v Molyneux [2006] NSWSC 955 at 39 in referring to what was said by McColl JA in El Mawas: ... the provision has a diversionary purpose.... It is clear that, in many cases, an alleged offender might well be innocent of any charge. ... But, as I say that is not the case here. 21The evidence as to what, if any, mental illness or condition the applicant endures or suffered either now or at the time he committed these offences is somewhat unsatisfactory. That is no criticism of the medical practitioners or paramedical practitioners whose reports I have. 22Principally, the applicant relies upon the report of the highly respected Dr Stephen Allnutt. 23On page 1 of his report the doctor sets out the material that he had available to him beyond his clinical interview with the applicant. That material is as follows:-