Director of Public Prosecutions (NSW) v Saunders

Supreme Court of NSW|2017-06-01|Before: Hulme J, Smart J

Solicitors: Solicitor for Public Prosecutions CBD Criminal Defence Lawyers File Number(s): 2016/377354 Decision under appeal Court or tribunal: Local Court Date of Decision: 30 August 2016 Before: Schurr LCM File Number(s): 2016/66246

Judgment

HIS HONOUR: The issue in these proceedings is whether in discharging a defendant pursuant to s 32(3)(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW) it is necessary for a magistrate to nominate a particular place or a particular person the defendant is to attend for assessment of the defendant's mental condition and/or treatment.
The Director of Public Prosecutions contends that the legislation requires this and that a magistrate was in error in not having done so. The first (and active) defendant, Mr Keith Saunders, contends that the magistrate sufficiently complied with the legislation. (The second defendant, the Local Court of New South Wales, has filed a submitting appearance.)

Background

On 1 March 2016 Mr Saunders was charged with an offence of assault, contrary to s 61 of the Crimes Act 1900 (NSW). (He was also charged with an offence that was contrary to the Road Rules 2014 (NSW) but it is presently irrelevant.)
The charge arose from an incident that was alleged to have occurred in Surry Hills on 27 February 2016. Mr Saunders was alleged to have spat a large amount of phlegm and saliva onto the face of a 3 month old infant who was being pushed in a pram by her grandmother. The incident occurred for no apparent reason. Mr Saunders was walking in the opposite direction past the child and her grandmother.

Friday 26 August 2016

The matter came before Central Local Court on Friday 26 August 2016. At this time Mr Saunders was due to be released on parole for an unrelated matter on Tuesday 30 August 2016.
Mr Saunders' solicitor made an application that the matter be dealt with pursuant to s 32 of the Mental Health (Forensic Provisions) Act. He relied upon a report by a psychologist, Mr Patrick Sheehan, who diagnosed Mr Saunders with substance use disorder and borderline personality disorder. The psychologist concluded that the disorders contributed to the offending and proposed that Mr Saunders satisfied the criteria for a mental health condition under s 32. He also recorded that Mr Saunders is not a "mentally ill person" under the Act.
Mr Sheehan concluded his report as follows: "Given that it remains unclear as to where Mr Saunders will reside after his release from custody on the 30 August 2016 (he has no release address and seeks accommodation in either the A.C.T or Newcastle), a specific mental health plan is not possible. What can be stated is that he requires treatment for affective regulation, borderline personality and substance use disorder. His condition is not in the acute phase, but remain present and relapse is entirely realistic unless he can receive suitable treatment. All of these can be targeted using cognitive behavioural therapy. The affective regulation and personality pathology can be addressed using Dialectical Behaviour Therapy. The RUSH program is an example of this form of treatment. The substance use disorder can be approached with psychoeducation and relapse prevention planning. To commence this process, Mr Saunders can obtain a Mental Health Care Plan from his a GP, providing a referral to a psychologist and up to 10 sessions covered by Medicare. I would recommend session of at least weekly frequency. Realistically, Mr Saunders is unlikely to entirely resolve his entrenched personality-based issues within ten sessions and treatment will need to be ongoing of at least six months duration. The treating psychologist can apply to have treatment extended in cases where this is therapeutically indicated. There may be a role for psychopharmacological adjunct to assist in mood stabilisation. This can be investigated by a referral to a psychiatrist by a GP."
The solicitor told the magistrate that it had not been ascertained where Mr Saunders would be living when he was released from custody. There was a proposal that Mr Saunders would live with his sister in Canberra while on parole and he would attend upon a named general practitioner and seek a referral to a psychologist for therapy in relation to his mental condition and to a psychiatrist for pharmacological assistance. This was in accordance with what was suggested in the report of Mr Sheehan. The proposal to live outside of New South Wales and in the Australian Capital Territory was subject to approval by authorities in both jurisdictions. It was indicated that it was expected that such approval would be forthcoming. If necessary, it was proposed that Mr Saunders would live in Newcastle with his brother in the meantime.
The police prosecutor opposed the application on two bases. First, it was submitted that the nature and seriousness of the offence made it inappropriate to deal with the matter by discharge under s 32. Secondly, it was submitted that there was no effective treatment plan before the court and this rendered a conditional discharge incapable of enforcement.
The magistrate delivered ex tempore reasons, in the course of which she acknowledged the opposition by the prosecutor before continuing: "[H]owever, I am satisfied that Mr Saunders will be supervised by Corrections when he is released on the other matter and it is likely that he will be residing in the ACT because everyone agrees he needs to get away from Redfern and I can it is evidenced [sic] that his sister will accommodate him and ensure that he attends counselling."
Her Honour announced her inclination to make an order pursuant to s 32: "I am satisfied that there is sufficient plan in this report to constitute a plan and given the support that is evidenced by Correctives and his sister, I think it is appropriate to deal [with] the matter under s 32(3)(a), 32 (3)(b), but with unusual conditions because we are not positive that he is going to be going to Canberra immediately. That condition would be to attend the GP within three days of commencing to reside in the ACT."
There was then some discussion about the alternative proposal that Mr Saunders live in Newcastle until there was approval for him to live in Canberra. In the end, the magistrate resolved to defer making an order under s 32. She refused bail and adjourned the matter to the following Tuesday.

Tuesday 30 August 2016

The following Tuesday Mr Saunders' solicitor informed the magistrate that the matter had not progressed; there had not yet been a decision as to whether Mr Saunders could live in Canberra. The solicitor asked that the s 32 discharge be subject to conditions that wherever Mr Saunders was to relocate, within three or five days he would attend upon a general practitioner in that area and seek the medical care that had been outlined the previous Friday. The solicitor also reminded the magistrate that Mr Saunders would be subject to parole supervision for the following five months.
The police prosecutor reiterated opposition to the proposal on the basis that there was no effective treatment plan before the court.
The magistrate again gave ex tempore reasons. She acknowledged the opposition by the prosecutor and the submissions made in support of it. She also noted the fact that Mr Saunders would be subject to parole supervision. Her Honour's reasoning that is presently pertinent was then expressed as follows: "When I consider the mindset of Mr Saunders at the time and that it is in the community's interest that he be directed to attend for counselling and that I consider the nature of the offences, I am satisfied that even if it is not a complex report or plan, that it is a plan that is clear and that it is a plan that requires Mr Saunders to attend [a] mental health facility within three days of release on parole and to obtain a mental health care plan serious [sic -series] of counselling sessions and to attend them and to attend a psychiatrist for medication review, that this is as substantial as any other plan."
Her Honour then made an order in the following terms: "I propose to dismiss the charge, that the assault under s 32(3)(b) on the condition that he attend for counselling and medication and to attend within three days of release to parole, that he obtain and complete a mental health care plan series of counselling sessions and that he attend a psychiatrist for a medication review."
The order entered on the Local Court's computerised record, JusticeLink (which the parties agreed was the form of the order to which I should have regard), is in the following terms: "Dismissed S32(3)(b) - Discharged to attend for assessment of the defendant's mental condition or treatment or both Dismissed with the following conditions: Subject to conditions - 1. Take prescribed medication/attend counselling/treatment in accordance with medical advice/nominated psychiatrist/psychologist and attend within 3 day of release to parole. 2. To obtain and complete a mental health care plan serious [sic] of counselling sessions. 3. Attend a psychiatrist for a medication review."

Proceedings in this Court

By an amended summons, the Director of Public Prosecutions appeals pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) against the order of the magistrate dismissing the charge and discharging Mr Saunders. The Director's contention is that the magistrate erred in law in: "Dismissing, pursuant to s 32(3)(b) of the [Mental Health (Forensic Provisions) Act], the charge against the first defendant of common assault contrary to s 61 of the Crimes Act without discharging the first defendant on the condition that he attend on a person or at a place specified by the Magistrate for the assessment of the first defendant's mental condition or treatment or both."

Statutory provisions

Section 32 appears in Part 3 of the Mental Health (Forensic Provisions) Act and provides, relevantly: "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 (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). (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 2013, (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. … (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. … " (Emphasis added)
Section 32A provides: "32A Reports from treatment providers (1) Despite any law, a person who is to assess another person's mental condition or provide treatment to another person in accordance with an order under section 32 (3) (a treatment provider) may report a failure to comply with a condition of the order by the other person to any of the following: (a) an officer of Community Offender Services, Probation and Parole Service, (b) an officer of the Department of Justice, (c) any other person or body prescribed by the regulations. (2) A treatment provider may include in a report under this section any information that the treatment provider considers is relevant to the making of a decision in relation to the failure to comply concerned. (3) A report provided under this section is to be in the form approved for the time being by the Director-General of the Attorney General's Department."

Submissions for the defendant

The essence of the defendant's argument was that it is not incumbent upon a magistrate to name a particular person or place upon whom, or at which, a person was to attend for assessment or treatment because the statute did not say that. The provision was said to permit a broad discretion.
It was submitted that there was compliance with the requirement to order that the defendant "attend on a person … specified by the Magistrate" by virtue of the requirement that he "attend a psychiatrist for a medication review" and that there was compliance with the requirement to order that he "attend at a place specified by the Magistrate" by virtue of the requirement that "he attend for counselling and medication and to attend within three days of release to parole". (DWS [11]-[12])
It was submitted that "the place" Mr Saunders was ordered to attend is, presumably, "such place at which counselling could be provided, and such place where medication could be prescribed (presumably by the counsellor and GP of his choice)". (DWS [13])
It was also submitted that a corollary of the orders of the magistrate is that Mr Saunders would contravene the conditions if he did not attend within three days a place at which counselling could be received, and within three days attend a place at which medication could be prescribed, and within that time attend upon a psychiatrist for a medication review within six months of 30 August 2016. (DWS [15])
Reliance was also placed upon a number of dictionary definitions of "specify" (e.g. "to give a specific character to") and the Latin derivative, "species" (e.g. "a group of individuals having some common characteristics or qualities; distinct sort or kind").
The defendant submitted that the provisions in s 32 and s 32A relating to a magistrate dealing with a failure to comply with a condition imposed under s 32(3) and a treatment provider reporting such a failure did not assist with the interpretation of "specified" in s 32(3)(b). (T11)
It was acknowledged that in a more serious case, the circumstances might warrant the naming of a particular person or place, but in a case such as the present it was not necessarily required. On this reasoning, a case referred to by the plaintiff, Director of Public Prosecutions (NSW) v Albon [2000] NSWSC 896, was said to be distinguishable. Another basis for distinguishing that case was that Mr Saunders would have the benefit of being under parole supervision for a period of five months after his release, whereas Mr Albon was described by Dowd J as being abandoned to the community generally. (T12)
Concluding his oral submissions, counsel for the defendant said that busy magistrates were given a broad discretion in applying the provisions of s 32. In more serious cases it may be appropriate to nominate persons or places for assessment and/or treatment of a defendant's mental condition but in other cases it may be considered sufficient for the magistrate to impose conditions in more general terms such as occurred in this case. After all, he submitted, it was not uncommon for conditions to be placed upon defendants ordered to enter into good behaviour bonds under the Crimes (Sentencing Procedure) Act 1999 (NSW) requiring attendance upon a psychologist or psychiatrist without necessarily naming a particular practitioner. (T14-17)

Case law

None of the case law, so far as the researches of counsel could discover, deals with the precise issue raised for consideration in this case. However, the following cases are of some assistance in understanding the purpose and object of the statutory provision (s 33 of the Interpretation Act 1987 (NSW)) as well as the manner in which it should be applied.
Director of Public Prosecutions (NSW) v Albon was said by the Director to be analogous. In that case, the Director sought to quash a s 32 order made in relation to a quite serious charge of malicious wounding. The defendant was under the care of the Public Guardian but there was no evidence of any proposed treatment plan. The magistrate dismissed the proceedings under s 32 on the condition that the defendant kept in touch with the Public Guardian and any case worker. In quashing the order, Dowd J said in an ex tempore judgment: "[23] Under s 32(3), her Worship was obliged, whether there were conditions or not, to ensure that the defendant was placed in the care of a responsible person, not only as a matter of law under the section but particularly in the circumstances of the seriousness of this case, it was inappropriate to abandon the defendant to the community generally. The circumstances were such that Her Worship erred in the nature of the seriousness of what had occurred, and in the light of the development disability of the defendant to allow him to be at large without making someone responsible for him. [24] Her Worship cast on the defendant the obligation to keep in touch with the Public Guardian and did. This does not carry out the intention of the Act which is that some person had to be responsible for the defendant in the circumstances of the charge. … [26] It is my view that before there can be an exercise of discretion under s 32(3)(a), the Court is obliged to arrange for there to be evidence of some sort of plan, or to obtain evidence whereby some appropriate person, be it the Public Guardian, or evidence of some available institution, before an order can be made. … [27] … Her Worship has therefore erred in dismissing, either unconditionally or on a condition that the defendant merely keep in contact with the persons who she specified, and that her Worship should have … ensured that the matter was adjourned if there was not enough evidence before her until that evidence could be placed before her. [28] Alternatively, her Worship should have worked out with the case worker before she made the appropriate conditions, to place the defendant in the care of the Public Guardian, and to enunciate the conditions to ensure that the defendant was not at large, leaving it to his initiative to make contact. [29] The absence of appropriate conditions … placed Her Worship in a difficult position. However, the Act contemplates the placing of conditions on people such as the defendant under someone's responsibility, before a charge can be dismissed."
In Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159, Howie J dismissed an appeal from the refusal of a magistrate to deal with a case under s 32. He noted (at [17]) that a magistrate considering an application under that provision was performing "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". He described this as "a discretionary judgment upon which reasonable minds may reach different conclusions in any particular case". He also observed that the discretion "cannot be exercised properly without due regard being paid to the seriousness of the offending conduct".
The application of s 32 of the Mental Health (Forensic Provisions) Act was discussed in some detail in Director of Public Prosecutions v El Mawas [2006] NSWCA 154; 66 NSWLR 93. McColl JA explained (at 109-110 [75]-[80]) that when an application is made for a defendant to be dealt with under s 32, a magistrate is required to "make at least three decisions": 1 Whether the defendant is eligible to be dealt with under s 32. That is the case if it appears that the defendant is not a mentally ill person but who is (or was at the time of the alleged offending) developmentally disabled, or suffering from a mental illness, or suffering from a mental condition for which treatment is available in a mental health facility: s 32(1)(a). 2 Having regard to the facts alleged, 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 Part 3 than otherwise in accordance with the law: s 32(1)(b). 3 Once it has been determined that it is more appropriate to deal with the defendant under s 32, which of the actions set out in sub-ss (2) or (3) should be taken.
There are two cases which referred to the need for there being "an effective treatment plan". In Perry v Forbes (Supreme Court of New South Wales (Smart J), 21 May 1993, unrep), which was cited by the police prosecutor to the magistrate in the present case, Smart J said that there needed to be "an effective treatment plan and one which was likely to ensure that there would not be a repetition of the incident in question or the occurrence of some other unfavourable incident". This observation does not assist greatly in resolving the present case. His Honour did not elucidate what he considered would comprise "an effective treatment plan", although one may assume he had in mind a plan that is reasonably specific in detail.
In Khalil v His Honour, Magistrate Johnson [2008] NSWSC 1092, Hall J said (at 85): "In formulating the judgment for which s 32(1)(b) calls, a proposed course of treatment, including, in particular, the existence and contents of a treatment plan, may be considered and given such weight as the Magistrate considers appropriate in making that judgment … "
This, again, highlights the significance of there being a "treatment plan" but does not otherwise assist as to its content and whether particular persons or places need to be nominated. Again, however, the concept of there being "a plan" signifies the need for some detail about the proposed assessment and/or treatment of the alleged offender.
Finally, in Quinn v Director of Public Prosecutions [2015] NSWCA 331, Basten JA (at [7]) endorsed what had been said by Adams J in Mantell v Molyneux [2006] NSWSC 955; 68 NSWLR 46 at [47]-[48] to the effect that in deciding whether to proceed by way of diversion under s 32 it was appropriate (if not required) that a magistrate have regard to the consequences of making an order under s 32(2) or (3), including the manner in which any potentially appropriate condition might be formulated and might operate. (Macfarlan JA agreed (at [11]); Adamson J stated as much at [31].) While not stated explicitly in the legislation, I infer that, like in the cases just referred to, it was contemplated that a magistrate would be provided with a plan containing some detail as to what was proposed for assessment of the defendant's mental condition or treatment or both.

Determination

It is clearly discernible from the terms of s 32 that its purpose is to allow, in appropriate cases, for accused persons with a developmental disability, a mental illness, or a mental condition for which treatment is available in a mental health facility, to be diverted from the criminal justice system. Such diversion may or may not be subject to conditions. It may be into the care of a responsible person or subject to a requirement that the person receives assessment of a mental condition and/or treatment.
The decision whether to divert such a person in any of the permissible ways is discretionary and is based upon a consideration of a variety of factors. Those factors include the seriousness of the alleged offence, the purposes of punishment, the public interest in diverting mentally disordered persons from the criminal justice system, and the proposed treatment plan.
One of the options under s 32(3) is to discharge the person "into the care of a responsible person". The provision does not explicitly require that the "responsible person" be named. But it is inescapable that in exercising the discretion to discharge a person in this way under s 32(3)(a) the "responsible person" would have been identified in the evidence and specifically nominated in the magistrate's order.
The defendant's submissions in this case are to the effect that when discharging a person under s 32(3)(b) upon a condition that the defendant attend on a person or at a place specified by the magistrate, there can be compliance by specifying a broad class of such persons or places. Thus, requiring the person to attend upon "a psychiatrist" would comply. Presumably, on this construction, requiring the person to attend "a mental health service" would also comply.
In my view, such a construction of the word "specified" in s 32(3)(b) does not promote the underlying purpose or object of Part 3 of the Mental Health (Forensic Provisions) Act. The Part is primarily concerned with diversion of eligible persons in appropriate cases from the criminal justice system, and thereby from the potential for criminal sanction.
True it is, as the defendant pointed out, that such diversion may be unconditional (s 32(3)(c) for example). But where the discharge is conditional, as under s 32(3)(b), and there are provisions relating to enforcement where there is a perceived failure to comply with conditions, it is tolerably clear that the requirement for nomination of a person or place "specified by the magistrate" requires the person or place to be identified with some precision.
In some cases it might not be possible to name a particular person but in those circumstances, specification of a particular place would avoid doubt: for example, a condition requiring a person to undergo assessment and/or treatment by a psychiatrist at a named mental health facility.
The importance of there being a regime for enforcement of s 32 orders was recognised by the insertion of s 32(3A)-(3D) by the Crimes Legislation Amendment Act 2002 (NSW). The problems of there being hitherto a lack of an enforcement facility included that many defendants failed to comply with conditions of orders where there were no ramifications; a failure to comply could mean that a defendant's behaviour deteriorated to the point where more serious offending occurred; and that as a result there was a reluctance by many magistrates to make orders under s 32: Mary Spiers, "Summary disposal of criminal offences under s 32 Mental Health (Criminal Procedure) Act 1990: Division of cognitively impaired or mentally-ill defendants", (2004) 16(2) Judicial Officers' Bulletin 9. (This explanation of the amendments was quoted with approval by the Judicial Commission of NSW, "Diverting mentally disordered offenders in the NSW Local Court" Monograph 31, March 2008, Tom Gotsis and Hugh Donnelly at p VI, fn vii, and by the New South Wales Law Reform Commission, "People with cognitive and mental health impairments in the criminal justice system - Diversion", Report 135, 2012, Ch 9, "Diversion in the Local Court - s 32" at [9.46].)
Section 32A was inserted by the Mental Health (Criminal Procedure) Amendment Act 2005 (NSW) and may be taken to have been intended to increase the efficacy of the enforcement facility.
A failure to name a particular person or a particular place renders the enforcement provisions in relation to a conditional discharge under s 32 virtually nugatory. In the present case, there is no guarantee that "a psychiatrist" who may be consulted by the defendant "for a medication review" will know that he or she is seeing the defendant pursuant to a court order. In those circumstances, there is a most unlikely prospect of such psychiatrist knowing that he or she may report a failure to comply (s 32A).
If there is any use in having recourse to dictionary definitions of "specified", the most apt for the context in which the word is used in s 32(3)(b) is that which appears in the Macquarie Dictionary Online, namely "to mention or name specifically or definitely; state in detail". The fact that other possible definitions of the term may be found in dictionaries is unsurprising, given that by their nature they provide meanings that might be appropriate in a variety of contexts.

Conclusion

I am satisfied that the learned magistrate erred by failing to identify a particular person upon whom, or a particular place at which, the defendant was required to attend for assessment and/or treatment. Simply nominating a type of person or a type of place does not comply with the provisions of s 32(3)(b) of the Mental Health (Forensic Provisions) Act.
In fact, the entirety of the order as entered in the Court's computerised record is so vague as to render compliance uncertain and enforcement virtually impossible. Who was to be the "nominated psychiatrist/psychologist"? Where was the defendant to "obtain and complete a mental health care plan series of counselling"? Who was the psychiatrist upon whom the defendant should attend for a medication review?
I fully appreciate the heavy workload of magistrates dispensing justice in the court with the highest caseload of any in this country. The defendant alluded to this in his contention that there is a very broad discretion reposing in a magistrate when it came to making orders under s 32. However, in this case the difficulty posed by the lack of sufficient information would likely have been overcome by a relatively short adjournment; a step that would not greatly have increased the magistrate's workload.

Orders

I make the following orders: (1) Appeal allowed. (2) Set aside the order of the magistrate made on 30 August 2016 at Central Local Court dismissing the charge against the first defendant of assault contrary to s 61 of the Crimes Act 1900. (3) Remit the matter to the Local Court to be dealt with according to law. (4) The first defendant is to pay the plaintiff's costs of and incidental to these proceedings. (5) The first defendant to be granted a certificate pursuant to s 6(1) of the Suitors' Fund Act 1951.

Amendments 14 July 2017 - [19] typographical error 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: 14 July 2017

Crimes Legislation Amendment Act 2002(NSW)

Mental Health (Criminal Procedure) Amendment Act 2005(NSW)

Mental Health (Forensic Provisions) Act 1990(NSW)

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