Director of Public Prosecutions v Sami El Mawas

(c) enter building/land with intent to commit indictable offence (s 114, Crimes Act 1900);

(d) maliciously destroy or damage property (s 195, Crimes Act 1900); and

(e) enter enclosed lands without lawful excuse (s 4, Enclosed Lands Protection Act 1901). 17 The charges arose from incidents involving the respondent and his neighbour, Hai Tong Pham, on Sunday, 8 February 2004. The allegations against the respondents are set out in the appellant's summary of argument as follows. It is alleged that in the early hours of 8 February, the respondent and Pham had an altercation, after which the respondent was taken to Liverpool Hospital for treatment (and for which Pham was charged with malicious wounding and released on bail). It is alleged that that evening, the respondent and two others, each armed with implements (the respondent with a steel tubular mop handle and the others with a steering lock and a broom handle) broke into the area outside Pham's flat and confronted Pham and his friend Trang, the three men hitting Pham and Trang with their implements. Pham and Trang required treatment in hospital, including stiches to cuts on the head and neck, and each suffered swelling and bruising. 18 The respondent was arrested and taken to Bankstown police station, where it is alleged he said to police that "I told the doctor at Liverpool I would send him two Asians tonight … he called me a loser, so I said I will send them to him. I am a winner".

The proceedings before the Magistrate 19 When the respondent's matter came before Mottley LCM at Burwood Local Court on 30 June 2004 his solicitor sought an order that he be dealt with pursuant to s 32 of the Act. 20 The Police Prosecutor tendered the Police Facts which were, in substance, as I have outlined. The respondent's solicitor tendered a report of Natasha Langovski, a Consultant Psychologist who had assessed the respondent on 29 March 2004. In addition to her meeting with the respondent, Ms Langovski had access to the Police Facts and a number of medical reports, including two from neurosurgeons and two from psychiatrists which dealt with the sequelae for the respondent of a "severe traumatic head injury" he had suffered whilst at work in October 1999. 21 The medical reports to which Ms Langovski had access apparently stated that the respondent would be "permanently impaired". In Ms Langovski's opinion, the behavioural, affective and cognitive difficulties described to her by the respondent were consistent with traumatic brain injury. She described him as having "problems in emotional control", "executive dysfunction" (meaning impaired capacity for self-control and regulation), irritability, demonstrated disinhibition and impulsivity in his behaviour, leading to him behaving inappropriately and without self-modulation, inflexibility and depression. She opined that the respondent would require assistance "to generate strategies to manage his emotionality and executive dysfunction, thereby reducing the likelihood of him re-offending in future". She suggested it might be useful for the respondent to return to the Brain Injury Rehabilitation team at Liverpool Hospital where it appears he had been treated previously. In a supplementary section, she suggested counselling and rehabilitation were methods by which the respondent could be treated.

22 There was no dispute before the Magistrate that the respondent had an injury as detailed in the psychologist's report, nor that the dysfunction from which he suffered was a "mental condition" as defined in s 3 of the Act. 23 The Police Prosecutor did not address the Magistrate in respect of the s 32 application. After hearing from the respondent's solicitor, the Magistrate said: "This is a very serious allegation. Two counts of malicious wounding and as I read the facts it is the position where Mr El Mawas had been assaulted and the person Sam had been charged with a malicious wounding of Mr El Mawas that had occurred the day before the incident subject to the section 32 application. Mr El Mawas is a person who satisfies the Court in relation to the first consideration under section 32. He is clearly a person who's suffering from a mental condition. He's suffering from a brain injury that has been acquired as a result of an accident and the report that's been prepared by Natasha Langovski has set out the difficulties under which Mr El Mawas labours on a day to day basis and the changes that appear to have occurred in relation to his personality and his life since the acquiring of that brain injury. She has, in her report, set out a suggested treatment plan. I note that throughout Ms Langovski's report she's made a number of comments that have been made by Mr El Mawas to her as to the changes that he has experienced in himself and as Mr Hopper pointed out, in page 4 of the report, Mr El Mawas said 'After the accident I am a different Sami. I am like a monster, like King Kong'. He made an account that he gets angry very easily and sometimes for no reason. Mr El Mawas went on to observe he's aware of his lack of self-control and thereby engaged in arguments arising and as a consequence he says that he has no friends and his social visitors have dwindled. Ms Langovski commented that the symptoms described by Mr El Mawas during his assessment are more likely to be creating tension and stress within his family unit and as I've indicated she notes that these injuries are of a permanent nature. She goes on to say that Mr El Mawas has an impaired capacity for self-control and regulation. He demonstrates disinhibition and impulsivity in his behaviour and he often finds himself behaving inappropriately and without self-modulation. She further makes the observation that literature confirms that impaired self-control accounts for why many individuals with severe brain damage engage in aggressive behaviour. There is an inability to plan, recognise and choose alternatives in relation to any inappropriate behaviour.

I look at the facts in relation to the charge before the Court. This is not an unplanned operation. Mr El Mawas has gained access to the premises occupied by Fam* in the company of two others persons. He's gone to those premises on the basis of these facts armed with a mop handle and he's gone there with two other friends who, on premeditation and planning, not an Act of impulsivity. I note that the facts that have been presented suggest that the person Fam and Tran suffered significant injuries. Fam required four stitches to close wounds in his neck and scalp. Tran required stitches to close wounds sustained in his forehead and scalp. It's noteworthy that Mr El Mawas was armed with a mop handle. One of the persons accompanying him was armed with a broom handle and the other with a silver coloured steering wheel lock. In determining whether to deal with the matter under section 32 firstly the Court has to address whether the applicant is suffering from a mental condition and clearly Mr El Mawas does. The second condition that the Court has to be satisfied of is that the proceedings are such that it is appropriate to apply the provision of section 32. Undoubtedly Mr El Mawas is labouring under some difficulties and they relate to lack of self-control, they relate to impulsivity and aggressive behaviour. The facts that have been described certainly suggest that Mr El Mawas has engaged in aggressive behaviour but there's no suggestion that his behaviour on this particular occasion lacked any thought and was an act of passion or impulse. in relation to the matter I'm of the view that the application of the provisions of section 32 to these proceedings is not appropriate and the application is refused." (emphasis added)

*The references to "Fam" were a phonetic transcription of the name of one of the alleged victims of the offences with which the respondent was charged, Hai Tong Pham. 24 The respondent sought leave to appeal from the Magistrate's decision. The Director of Public Prosecutions then took over the proceedings on behalf of the prosecution pursuant to s 9 and s 10 of the Director of Public Prosecutions Act 1986.

The primary judge 25 On 15 March 2005, the primary judge heard and determined in an ex tempore judgment, the respondent's summons for leave to appeal under Pt 5 of the Crimes (Local Courts Appeal and Review) Act 2001. 26 Section 53(3)(b) of that Act provides that "[a]ny person against whom … an interlocutory order has been made by a Local Court in relation to the person in summary proceedings, may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court". The respondent's summons proceeded on the basis that the Magistrate's dismissal of the s 32 application constituted an interlocutory order within the meaning of s 53(3)(b). The appellant has not challenged that premise. In Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159 (at [2]), Howie J opined, without deciding, that an order refusing to apply s 32 appeared to be an interlocutory order open to challenge pursuant to s 53(3)(b). I, too, will proceed on that basis. 27 The sole question before the primary judge, was whether the respondent had established that the Magistrate had erred on a basis involving "a question of law alone". 28 His Honour held that the Magistrate's ruling was tainted by the following errors which he characterised (at [53]) as errors of construction of s 32: (a) failure to have regard "not only to the existence of the mental condition, but also to the prospect of treatment for it": (at [46]); (b) failure to consider (apparently by way of comparison) the appropriateness of proceeding by way of the usual criminal procedure and the appropriateness of proceeding by way of an order for treatment ([47]); (c) erroneously considering that unless the features of the particular mental condition had a substantial causal relationship with the commission of the offence alleged, the application of the section would not be appropriate whether or not treatment might be afforded for the mental condition from which [the respondent] suffered…" (at [49]);

(d) erroneously holding "that either the offence was too serious or that it was characterised by a degree of planning where the condition to which she had been referred was a condition itself mitigating against planning, so that the condition should not be seen to be causative of the crime, and that that rendered the matter inappropriate for the application of s 32" (at [52]); and /or

(e) finding, in the absence of evidence, that the respondent's offences were not related to his mental condition (at [59]). 29 The primary judge then considered the nature of the exercise a Magistrate undertakes when dealing with a s 32 application. He first extracted paras [16] - [18] in Howie J's decision in Confos (the only decision in relation to s 32 to which the parties referred him) which state: "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 f act 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." (emphasis added). 30 The primary judge then said: "54 I am not sure that, even with the greatest respect, I agree entirely with Howie J. I do not see that a discretionary judgment, in the strict sense, is made by the Magistrate. To my mind it is rather a value judgment concerning the appropriateness of dealing with the matter under one regime or another. The Magistrate does perform a balancing exercise, weighing up, on one hand, the purpose of the criminal process and sentencing, which now are defined by the Crimes (Sentencing Procedure) Act 1999 and, in particular, s 32 of that Act and the purpose of the new procedure under s 32.

55 The purposes of sentencing of which s 32 speaks include deterrence, community protection, and rehabilitation as well as the other purposes therein set out, of which punishment is only one. The public interest to which Sec 32 relates, lies in diverting the mentally disordered offender from the criminal justice system into a system of treatment, which system has also as one of its objects, the protection of the community. But the modes of achieving the objects differ according to the precise nature and degree of any mental condition and the available treatment.

56 Howie J points out that the judgment that is made in those circumstances is one upon which reasonable minds may reach different conclusions in a particular case. I agree. I agree that due regard must be paid to the seriousness of the offending conduct, as Howie J has referred to. But one should not exclude from consideration, when considering the seriousness of the offending conduct, the degree to which the defendant is disabled from being able to control that conduct by limiting consideration to the "seriousness of the offence".

57 I do not see that the question of appropriateness is amenable to being decided by some short form test such as referring to "the more serious the offending, the more important will be the public interest in punishment", not only because of the importance of treatment, but also because of the amplitude of s 32 of the Crimes (Sentencing Procedure) Act 1999.

58 I agree with Howie J that it is the protection of the community with which one is concerned. I do not agree that that renders it less likely in more serious cases, that it will be appropriate to deal with the defendant in accordance with the provisions of the Mental Health (Criminal Procedure) Act 1990. To my mind, the provision for treatment there recognises the concept of protection of the community by the provision of treatment. What weight is given to the various factors that touch upon the Magistrate's judgment is a matter for the particular Magistrate.

59 What policy considerations should properly be applied are dictated by the particular circumstances of the individual cases, and the principles to be applied - see Norbis v Norbis (1986) 161 CLR 513, but it does seem to me that, where a Magistrate failed to have regard to the purposes of treatment and concluded, on a factual basis apparently not at all established by the material before the Magistrate, that the offence did not seem to relate to the condition, that the Magistrate has incorrectly construed the ambit and purpose of the section." (emphasis added)

31 His Honour granted the respondent leave to appeal, allowed the appeal and remitted the matter to the Local Court for determination conformably with his reasons.

Submissions on appeal 32 Mr D Howard SC, who appeared for the appellant on appeal, but not below contended that the primary judge erred in identifying appealable error in the decision of the Magistrate and applied a test that unduly constrains the wide discretion conferred by s 32 of the Act. 33 He submitted that the primary judge erred both as a matter of general principle and, too, in several of his factual conclusions. Dealing first with matters of principle, he argued that Howie J correctly formulated the manner in which s 32 applications should be determined: Confos at [17]. He also submitted that Howie J was not, as the primary judge suggested (at ([57]), stating a "short form test" to answer each s 32 application but, rather, was enunciating a principle which could be taken into account in the exercise of the s 32 discretion. 34 Turning to the matters of fact, the appellant submitted that, contrary to the primary judge's conclusion (at [46]), the Magistrate did have regard to the prospect of treatment of the mental condition from which the respondent was suffering, pointing out that the Magistrate referred to the suggested treatment plan in her reasons. The appellant submitted that the primary judge's identification of error in this respect involved an unduly strict approach to ex tempore reasons, notwithstanding that his Honour said he was permitting the Magistrate a degree of latitude in the circumstances: judgment at [45] - [46]. 35 The appellant submitted that the same strict approach to the Magistrate's reasons infected the primary judge's finding that the Magistrate erred in concluding that unless the mental condition from which the respondent was suffering had a substantial causal relationship with the commission of the offences with which he was charged, it would not be appropriate to apply s 32. The appellant submitted that the passages in the Magistrate's reasons which his Honour criticised were, in fact, no more than an available inference that the respondent's violent conduct on this occasion was not outside his conscious control, but, rather, was a planned retaliation. The appellant submitted that it could not be an error for a Magistrate to examine the facts of the alleged offences and draw rational conclusions about the respondent's state of mind. Nor, the appellant submitted, could it be an error where the respondent's mental condition included "problems" of inappropriate impulsive behaviour for the Magistrate to comment that the facts alleged were not, in her view, of that quality. 36 The appellant next contended that to the extent the primary judge appeared be critical (at [52]) of the Magistrate's consideration of the seriousness of the offence, or her apparent conclusion that there was not a relevant relationship between the mental condition and the offences by reason of the premeditated nature of the offences, it could not be doubted that it was incumbent upon the Magistrate to consider the seriousness of the offence. He also argued, it was legitimate for the Magistrate not to be satisfied that there was a relationship between the respondent's mental condition and the offences. 37 The appellant finally submitted that on a proper reading of the Magistrate's reasons while she properly referred, as a relevant factor, to the conclusion she drew that the respondent's offences were not related to his mental condition, she had not (although she could have) on a proper reading of her reasons, given that consideration determinative weight. 38 Mr A Haesler SC who appeared for the respondent on appeal, but not below, submitted that the primary judge did not err, had proper regard to the relevant legislation and correctly identified and dealt with the errors of law on the part of the Magistrate. 39 He contended that the primary judge was correct not to follow Confos. He submitted that s 32 does not require the exercise of discretion (cf Confos at [16]) but, rather, after the initial preconditions are met, requires a judgment between two alternatives: whether the defendant should be dealt with according to Pt 3 of the Act or in accordance with law. 40 He argued that s 32 should not be constrained by a test which focuses on the seriousness of the offence and that the diversionary regime identified in s 32 should be available to serious offenders as long as it is more appropriate than the alternative. 41 Mr Haesler also contended that s 32 does not require a balancing of the purposes of punishment against the public interest in diversion and submitted that, in this regard, Howie J erred in his approach to the section. Significantly, he contended that adopting the diversionary alternative available in the Act did not mean a defendant escaped "punishment", pointing out that although not characterised as "punishment", an order under either subs 32(2) or 32(3) can substantially limit a person's freedom and curtail their liberty. In this context he also observed that a defendant who is diverted from being dealt with at law pursuant to s 32, loses the opportunity of pleading not guilty and having the prosecution prove their guilt. 42 The respondent next submitted that the fundamental rationale of the Act, like all criminal justice legislation, was the protection of the community. This was recognised by the provision of treatment rather than the engagement of the criminal justice process. While the respondent accepted that the weight to be given to the various factors remained a matter for the particular Magistrate, he contended it was incumbent upon the Magistrate to properly construe and apply the section to the relevant evidence. 43 In this case, the respondent submitted, the primary judge had correctly identified the Magistrate's errors. He argued the Magistrate was plainly in error in forming the view that the respondent's offences were not related to his mental condition. He drew attention to the passage in the psychologist's report which concluded: "An impaired ability to control his behaviour and regulate his emotions seem to have landed him in his current predicament. These impairments are the direct result of his severe acquired brain injury." 44 The respondent submitted that the Magistrate's conclusion that there was no relevant relationship between the offences with which he was charged and his mental condition was an error of law, as I understand this submission, because there was no evidence to that effect and there was clear evidence to the contrary. 45 The respondent accepted that the Act provides only limited guidance as to how that decision is to be made, such guidance as there is coming from the options in subs 32(2) and 32(3) and, apparently, from the Magistrate's presumed knowledge of what might happen if the matter were to be dealt with in accordance with law. He submitted that "obviously if the options available in subs 32(2) and 32 (3) such as conditional release or discharge into care can properly and confidently be applied to the defendant, then that course will often be more appropriate than the alternative." 46 Mr Haesler contended that there are sound public policy reasons why it is preferable that the intellectually disabled, the mentally ill or those suffering mental conditions for which treatment is available not be dealt with in accordance with law. He contended that diversion is more appropriate in many cases because of the public interest in a person with a mental condition, illness or disability obtaining appropriate care and treatment, the recognition that gaols are inappropriate places "to warehouse such people", the difficulties such people have in participating fairly and meaningfully in criminal justice proceedings, that "proceeding in accordance with law" may lead to a result similar to that available under Pt 3 as such people "are not suitable vehicles for condign punishment" and that "at the end of the process their right to a fair trial and to gain an acquittal may be compromised." Legislative framework 47 Characterising the exercise in which the Magistrate was engaged turns on an analysis of the context, general purpose and policy of s 32: Commissioner for Railways (NSW) v Agalianos [1955] HCA 27; (1955) 92 CLR 390 at 397 Dixon CJ; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] - [71]. 48 The long title of the Act is "an Act with respect to criminal proceedings involving persons affected by mental illness and other mental conditions." Part 2 applies to criminal proceedings in the Supreme Court (including criminal proceedings when the summary jurisdiction of the Supreme Court) and in the District Court: s 4. It deals with the question of a person's unfitness to be tried for an offence, how that issue is determined and consequential proceedings that do not require consideration. Part 3 applies to criminal proceedings in respect of summary offences or indictable offences triable summarily, being proceedings before a Magistrate, including any related proceedings under the Bail Act 1978, but not to committal proceedings: s 31(1). 49 Section 32, which appears in Pt 3, 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. (3A) If a Magistrate suspects that a defendant subject to an order under subsection (3) may have failed to comply with a condition under that subsection, the Magistrate may, within 6 months of the order being made, call on the defendant to appear before the Magistrate. (3B) If the defendant fails to appear, the Magistrate may: (a) issue a warrant for the defendant's arrest, or (b) authorise an authorised justice within the meaning of the Search Warrants Act 1985 to issue a warrant for the defendant's arrest. (3C) If, however, at the time the Magistrate proposes to call on a defendant referred to in subsection (3A) to appear before the Magistrate, the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately: (a) issue a warrant for the defendant's arrest, or (b) authorise an authorised justice within the meaning of the Search Warrants Act 1985 to issue a warrant for the defendant's arrest. (3D) If a Magistrate discharges a defendant subject to a condition under subsection (3), and the defendant fails to comply with the condition within 6 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged. (4) 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. (5) The regulations may prescribe the form of an order under this section."

"Mental condition" means a condition of disability of mind not including either mental illness or developmental disability of mind: s 3. 50 Section 33 prescribes the steps a Magistrate, or an authorised officer within the meaning of the Criminal Procedure Act 1986, may take if it appears at any time during the course of a hearing that the defendant is a mentally ill person within the meaning of s 3 of the Mental Health Act 1990. It is unnecessary to detail the steps. It is sufficient to note that a wide range of options is available. 51 If a Magistrate has inquired into whether a defendant should be dealt with under either s 32 of s 33 and decided not to do so, the Magistrate must disqualify himself or herself from further hearing the proceedings on the defendant's application: s 34(1). 52 For the purposes of Pt 3, 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: s 36.

53 The Act re-enacted provisions relating to proceedings involving persons affected by mental illness and other mental conditions previously contained in Pts 11A and 11B of the Crimes Act 1900 with appropriate amendments consequential upon the drafting of the Mental Health Act 1990: Second Reading Speech, Minister for Health, the Hon P Collins MLA, NSW Legislative Assembly, Parliamentary Debates (Hansard) 22 March 1990 at 892-893. 54 Parts 11A and 11B were inserted in the Crimes Act 1900 as part of the substantial reforms of the law relating to the mentally disabled effected in 1983: see The Protective Commissioner v "D" & Ors [2004] NSWCA 216; (2004) 60 NSWLR 513 at [90] ff. The Second Reading Speech to the Bills which formed part of the 1983 reforms cast little light on the purpose of s 428W, the substantive precursor of s 32, save that it was described in explanatory notes in the following terms: "428W. Provides the Magistrate with a range of options for dealing with persons who, in proceedings before the Magistrate, appear to the Magistrate to be developmentally disabled or mentally disordered but who are not mentally ill persons within the meaning of the Mental Health Act , 1983."

See New South Wales Legislative Assembly, Parliamentary Debates , (Hansard), 22 November 1983 at 3112. 55 The Act was introduced in 1990 as a cognate bill to the Mental Health Bill which became the Mental Health Act 1990. 56 In R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251 (at [108]) Wood CJ at CL (with whom Spigelman CJ and James J agreed) observed that it was proper to have regard to both the Mental Health Act 1990 and the Act for the purpose of construing expressions used in either of them because they formed part of a scheme of legislation, were introduced together and assented to on the same day. 57 It is appropriate, in that light, to observe that when introducing the legislation, the Minister for Health, the Hon P Collins, MLA said the Mental Health Bill would: "… provide the opportunity for those suffering from a mental illness or a mental disorder to get the care and treatment they need. The primary objective of this treatment will be to ensure that the individual can have as normal and satisfying a life as possible. This should ensure that the community is protected adequately from abnormal or threatening conduct of a mentally ill or mentally disordered person.

At the same time the Bill protects the civil liberties of the mentally ill. Any restriction of personal freedom will be only the minimum necessary for the well-being of the individual or for the protection of others."

See New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 22 March 1990 at 886. 58 After referring to the two cognate bills, the Miscellaneous Act (Mental Health) Repeal and Amendment Bill and the Mental Health (Criminal Procedure) Bill, the Minister continued (New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 22 March 1990 at 893): "This legislation is intended to provide clarification of, and real guidance in solving, the confusing and complex problems that abound in the mental health area. The Bills will ensure ready access to appropriate treatment … this legislation … will improve the treatment of the mentally ill in our community and will assist to remove the stigma that attaches to them."

Consideration 59 There has been little judicial consideration of s 32 or its precursor. 60 In Minister for Corrective Services v Harris & Anor (Supreme Court of New South Wales, unreported, 10 July 1987) Brownie J held that s 428W did not enable a Magistrate to make an order binding the Crown to provide particular services or facilities. At that time s 428W, as amended by the Crimes (Mental Illness) Amendment Act 1986, provided: "428W. (1) Where, 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 developmentally disabled, is suffering from a mental illness or is suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person within the meaning of the Mental Health Act , 1958; 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 Chapter than otherwise in accordance with law, the Magistrate - (c) may dismiss the charge and discharge the defendant - (i) into the care of a responsible person, unconditionally or subject to conditions; (ii) upon the condition that the defendant attend upon a person or at a place specified by the Magistrate for assessment of the defendant's mental condition or treatment, or both; or (iii) unconditionally; or (d) may do any one or more of the following: (i) adjourn the proceedings; (ii) grant the defendant bail in accordance with the Bail Act 1978; (iii) make any other order that the Magistrate considers appropriate. (2) A decision under subsection (1)(c) to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise." 61 Brownie J was of the opinion that s 428W(d) related to orders which might be made at interlocutory stage, whereas s 428W(c) related to orders which might be made upon the final disposition of the proceedings. His Honour thought it was curious in that light that the drafter of the legislation had chosen to put subs (c) and (d) of s 428W in the order in which they appeared but, nevertheless, thought their effect was as I have stated. It will be noted that in s 32, subs (2) and (3) reverse the order of subs (c) and (d). 62 Section 428W was next considered in Mackie v Hunt & Anor (1989) 19 NSWLR 130 in which M Campbell J held (at 134) that it applied to a defendant who satisfied the criteria referred to in subs (1)(a) whether or not that person was unfit to be tried and without first determining that that was the situation. His Honour described s 428W (at 135) as a diversionary measure. 63 Apart from Confos and the instant case, Perry v Forbes & Anor (Supreme Court of New South Wales, unreported, 21 May 1993) appears to be the only other occasion s 32 has been considered. In Perry, Smart J described the Act as endeavouring "to introduce a more flexible scheme which recognises the variety of mental states which may exist and to overcome some of the rigidity which had previously existed" referring, it appears, to the position of persons affected by mental illness and other mental conditions who are the subject of criminal proceedings. His Honour accepted, as correct, a submission in that case by the plaintiff (the defendant in the summary criminal proceedings) that Pt 3 of the Act operated whether or not a plea had been entered and (following Mackie v Hunt & Anor) whether or not a defendant was fit to plead. His Honour also accepted, in a passage upon which the appellant relies, that it was appropriate for a Magistrate to have regard to the seriousness of the offence when considering whether to proceed under s 32. 64 The primary judge was critical of Howie J's characterisation of the s 32 exercise as involving a discretionary judgment. He characterised the s 32 decision as "a value judgment", intending, it appears, to indicate the decision involved a normative judgment: see Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54 at [49] per Gleeson CJ. At one level, with respect, his Honour was not drawing a true distinction for, as Spigelman CJ observed in Perpetual Trustee Co Ltd v Albert and Rose Khoshaba [2006] NSWCA 41 at [35]: "The word 'discretion' is often deployed loosely in legal discourse … it is sometimes suggested that any decisions involving a value judgment on which reasonable minds may differ is a discretionary judgment (e.g. Norbis v Norbis at 518, 540; Russo v Aiello (2003) 215 CLR 643 at [27]. However, the contrary view has also been strongly advanced. (See Buller v Black (2003) 56 NSWLR 425 at [37]-[38], [96]; Blackburn v Allianz Australia Insurance Ltd (2004) 61 NSWLR 632 at 634 [2]-[4]; Figliuzzi v Yonan [2005] NSWCA 290 at [31]-[36], [67]-[68].)" 65 Norbis v Norbis [1966] HCA 17;(1986) 161 CLR 513 concerned the scope of appellate review of a decision made pursuant to s 79 of the Family Law Act 1975 (Cth) concerning the alteration of the interests of parties to a marriage. It was accepted that making orders under s 79 involved the exercise of a judicial discretion (see 517). In the course of discussing the scope of appellate review of such a decision, Mason and Deane JJ explained the distinction between discretionary decisions and those based on normative judgments. Their Honours said (at 518, footnotes omitted): "The sense in which the terms 'discretion' and 'principle' are used in these remarks needs some explanation 'Discretion signifies a number of different legal concepts: see, eg, the discussion in Pattenden, The Judge, Discretion, and the Criminal Trial (1982), pp 3-10. Here the order is discretionary because it depends on the application of a very general standard -- what is 'just and equitable' -- which calls for an overall assessment in the light of the factors mentioned in s 79(4), each of which in turn calls for an assessment of circumstances. Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends. 66 In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 Gleeson CJ, Gaudron and Hayne JJ said (at [19]): " 'Discretion' is a notion that signifies a number of different legal concepts'. ( Norbis v Norbis (1986) 161 CLR 513 at 518; 65 ALR 12 at 14; 10 Fam LR 819 at 821 per Mason and Deane JJ. In general terms, it refers to a decision-making process in which 'no one [consideration] and no combination of [considerations] is necessarily determinative of the result'. ( Jago v District Court (NSW) (1989) 168 CLR 23 at 76; 87 ALR 577 at 615 per Gaudron J). Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. (See Jago; Russo v Russo [1953] VLR 57 at 62 per Sholl J; see also Pattenden, Judicial Discretion and Criminal Litigation , 2nd ed, 1990, pp 5-6). The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. ( Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 504-5 per Dixon J; R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49; 27 ALR 321 at 325). On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment." 67 They held (at [20] - [21], [28]) that a decision under s 170MW of the Workplace Relations Act 1996 (Cth) to terminate a bargaining period made by reference to the facts and circumstances attending industrial action taken in support of claims with respect to a certified agreement and the threat that action posed, as to which a judge had to be satisfied, involved a measure of subjectivity or value judgment and "[i]n a broad sense" could be described as "a discretionary decision." Accordingly, because "a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision [could] only be challenged by showing error in the decision-making process" - the errors being of the nature of those described in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, per Dixon, Evatt and McTiernan JJ. 68 In Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643 at [27], McHugh J described the question whether, pursuant to s 43A(7) of the Motor Accidents Act 1988, an applicant for extension of a limitation period had a "full and satisfactory explanation" for delay as "an intellectual construct involving a value judgment, … on which reasonable persons may have widely differing views … [and is] therefore properly described as a discretionary judgment." Accordingly a primary judge's decision on the issue could only be set aside in accordance with the principles concerning an appeal against a discretionary judgment. Kirby J (at [111]) also appeared to regard the issue as involving the exercise of a discretion. 69 In contrast, as Spigelman CJ observed in Perpetual Trustee Co Ltd v Albert and Rose Khoshaba, in this Court the s 43A(7) exercise has been characterised as involving a normative judgment (see Buller v Black [2003] NSWCA 45; (2003) 56 NSWLR 425 at [39] per Mason P; at [96] per Giles JA (with whom Ipp JA agreed); Blackburn v Allianz Australia Insurance Ltd [2004] NSWCA 385; (2004) 61 NSWLR 632 at [2] - [4] per Mason P, adhering to the view he had expressed in Buller and disagreeing with McHugh J's analysis in Russo v Aiello). 70 As can be seen there is no bright line rule demarcating discretionary and normative judgments. By way of final illustration, in Perpetual Trustee Co Ltd v Albert and Rose Khoshaba (at [34], [40]) Spigelman CJ concluded that the inquiry pursuant to s 7(1) of the Contracts Review Act 1980 as to whether a contract or a provision of a contract was "unjust in the circumstances relating to the contract at the time it was made", involved "a finding of fact, albeit one involving a broadly based value judgment". Decision 71 Part 3 of the Act requires a Magistrate to balance the public interest in those charged with a criminal offence facing the full weight of the law against the public interest in treating, or regulating to the greatest extent practical, the conduct of individuals suffering from any of the mental conditions referred to in s 32(1) or mental illness (s 33) with the object of ensuring that the community is protected from the conduct of such persons. 72 As Spigelman CJ (with whom Simpson J and Blanch AJ agreed) said in R v Israil [2002] NSWCCA 255 at [21], the significance of mental illness of an offender in the sentencing exercise has long been accepted. Pt 3 is clearly intended to permit the Magistrate, if it is appropriate, to divert a defendant from being exposed to sentence, with his or her mental condition being taken into account at that comparatively late stage. I agree with M Campbell J, therefore, that s 32 is a diversionary measure. 73 I accept Mr Haesler's submission that adopting the diversionary route does not mean that a defendant is not exposed to punishment. While an order under s 32(3) is not custodial in the strict sense, it may involve the imposition of conditions restricting a discharged defendant's freedom of movement and actions. Compliance with those conditions is ensured by the Magistrate retaining a supervisory jurisdiction for 6 months after a s 32(3) order is made: subs 32(3A)-(3D). 74 In exercising the Pt 3 jurisdiction, the Magistrate is given powers of an inquisitorial or administrative nature to inform herself or himself as the Magistrate thinks fit: s 36. That power, which would clearly have to be exercised in accordance with procedural fairness requirements, demonstrates the breadth of the inquiry a Magistrate is entitled to undertake in determining whether to send a defendant along the diversionary route, or leave him or her to be dealt with in accordance with law. 75 When one turns to s 32 it can be seen it requires the Magistrate to make at least three decisions. The first is to determine, in accordance with s 32(1)(a), whether the defendant is eligible to be dealt with under that section. That question clearly involves a finding of fact and is properly described as the jurisdictional question: see Singer v Berghouse (No 2) [1994] HCA 40;(1994) 181 CLR 201 at 208-209. 76 The Magistrate must next determine whether, having regard to the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant (including presumably any information the Magistrate has garnered under s 36), "it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law. That decision clearly calls for the exercise of subjectivity or value judgments in which "…'no one [consideration] and no combination of [considerations] is necessarily determinative of the result' ": Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission at [19]. In my view, as Howie J concluded in Confos, it involves a discretionary decision in which the Magistrate is permitted latitude as to the decision which might be made, a latitude confined only by the subject matter and object of the Act: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (at [19]). 77 I do not, with respect to the primary judge, regard Howie J as having circumscribed the discretionary judgment exercised at the second stage of the s 32 inquiry. In Confos the Magistrate had rejected an application to deal with the defendant pursuant to s 32 because she concluded that notwithstanding the defendant's mental condition the offences with which he was charged were too serious: see Confos at [15]. Howie J recognised that the second stage inquiry under s 32 required balancing the purposes of punishment and the public interest in diverting a mentally disordered offender from the criminal justice system. His reference to the fact that the discretionary judgment could not be exercised properly without due regard to the seriousness of the offending conduct was, in my view, a proper reflection of the s 32(1)(b) requirement that the Magistrate have regard to the facts alleged in the proceedings. 78 Unlike the primary judge (at [56]), I do not regard Howie J's observations in Confos (at [17]) as having excluded from consideration "when considering the seriousness of the offending conduct, the degree to which the defendant is disabled from being able to control that conduct by limiting consideration to the 'seriousness of the offence' ". Howie J's references to the role of the seriousness of the offence were made to deal with the complaint in Confos that the Magistrate had fettered her discretion, in part, because of her reference to the seriousness of the offence: see Confos at [19]. 79 I accept the respondent's submission, which I do not believe the appellant gainsaid, that the s 32 diversionary regime is available to serious offenders as long as it is regarded, in the Magistrate's opinion, as more appropriate than the alternative. No doubt a Magistrate considering that question will consider whether proceeding in accordance with s 32 will produce a better outcome both for the individual and the community. 80 Once the Magistrate has determined that it is more appropriate to deal with the defendant in accordance with s 32, the Magistrate must determine which of the actions set out in subs (2) or (3) should be taken. As Brownie J said in Minister for Corrective Services v Harris & Anor subs (2) permits interlocutory orders to be made pending determination of the proceedings pursuant to s 32(3). The subs (3) decision is also a discretionary decision, akin to the discretion exercised by a sentencing judge. 81 Before the primary judge the respondent sought to challenge the discretionary decision the Magistrate made at the second stage of the s 32 inquiry. In the ordinary course appellate review of that decision would be undertaken in accordance with the principles laid down in House v R. In the present case, however, the scope of review was confined to a question of law alone. 82 The primary judge appears to have identified the question of law as being whether the facts fell within the provisions of s 32 properly construed: see Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at pp 8-9 per Mason J (with whom Gibbs, Stephen, Murphy and Aickin JJ agreed). 83 Accepting that is so, it was nevertheless necessary in determining whether the Magistrate erred in conducting the s 32 inquiry, to look at the substance of what she said, rather than to construe her ex tempore remarks strictly: Acuthan v Coates (1986) 6 NSWLR 472 at 478. 84 Approaching the matter on this basis I am of the view that the Magistrate turned her attention appropriately to the questions which arose for determination under s 32. She considered the facts of the offence, the mental condition from which the respondent was suffering as described by the psychologist, recognised a treatment plan had been proposed for the respondent's mental condition, but concluded, having regard to the facts it was not appropriate to take the s 32 route. The Magistrate's observations that the facts charged did not reveal "an unplanned operation" and that the respondent's behaviour was not an act of passion or impulse were open to her on the facts. They did not demonstrate an error of law. In my view the Magistrate exercised her discretion properly. 85 Accordingly leave to appeal should be granted and the appeal allowed. 86 The respondent submitted that, in the event leave was granted and the appeal was allowed that he should not suffer a costs order but, rather, an order should be made under the Suitors' Fund Act 1951. In my view it is not appropriate to make an order against the Suitors' Fund in favour of the Director of Public Prosecutions. I agree, however, that as leave to appeal has been granted because the matter raises questions of law of general significance, the respondent ought not bear the costs of the appeal. The position is otherwise in relation to the proceedings before the primary judge. 87 I propose the following orders: -

2. Appellant to file a Notice of Appeal in the form of the draft in the White Book within seven days.

4. Set aside the decision of Greg James J and in lieu thereof dismiss the Further Amended Summons.

5. Respondent to pay the appellant's costs of the proceedings in the Common Law Division.

6. Each party to pay their own costs of the Summons for Leave to Appeal and the Appeal. 7 Remit the proceedings to the Burwood Local Court.

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