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[2012] NSWSC 105
Supreme Court of NSW
2011-11-17
Hislop J
Original judgment source is linked above.
Introduction 1On 17 September 2010 the plaintiff was involved in an altercation with a security officer at a tavern. He was affected by alcohol at the time. He was charged with common assault pursuant to s 61 of the Crimes Act 1900. The maximum sentence for this offence is 12 months imprisonment and/or 20 penalty units. He was also charged with "excluded person remain in vicinity of licensed premises" contrary to s 77(8)(a) of the Liquor Act 2007. The maximum penalty for this offence is 50 penalty units. The plaintiff ultimately pleaded guilty to each offence. 2The police statement of facts was accepted by the plaintiff. The offences were not serious enough, in the opinion of the second defendant, to entail a full time custodial sentence and, of course, such a sentence was not available under s 77(8)(a). 3The plaintiff was born in 1952. He has had a problem with alcohol for much of his life. This is reflected in a lengthy criminal record primarily for alcohol related offences, including a significant number of drink driving and driving whilst disqualified convictions. He was on probation at the time of the subject offences. 4On 19 August 2011 the plaintiff made an application to the second defendant pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990. The application was refused. 5The plaintiff, by amended summons filed in this court on 27 October 2011, sought the following orders: "1. Leave to appeal with regard to an appeal against conviction that involves a question of mixed law and fact, pursuant to s 53(1)(b) of the Crimes (Appeal and Review) Act 2011. 2. An order upholding the appeal against conviction and quashing the conviction. 3. In the alternative to order 1, leave to appeal with regard to an interlocutory order made by a Local Court in relation to the Plaintiff in summary proceedings, pursuant to s 53(3)(b) of the same Act. 4. In the alternative to order 2, an order upholding the appeal against the interlocutory order and quashing that order. 5. An order remitting the matter to Blacktown Local Court to be dealt with according to law. 6. In the alternative to the above orders, an order in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 removing the record of proceedings at Blacktown Local Court into this Court, and quashing the refusal of the magistrate to deal with the Plaintiff under s 32 of the Mental Health (Forensic Provisions) Act 2007." 6The orders were opposed by the first defendant. The second defendant filed an appearance submitting to the orders of the Court save as to costs. 7The orders were sought in the alternative as there was uncertainty as to whether his Honour, the second defendant, had, on rejection of the s 32 application, implicitly convicted the plaintiff, in which event the appeal was pursuant to s 53(1) of the Crimes (Appeal and Review) Act 2001, or whether the determination of the s 32 application was an interlocutory order, in which event the appeal was pursuant to s 53(3)(b), or whether the decision of the s 32 application was merely a ruling, in which event the appropriate means of relief was provided by s 69 of the Supreme Court Act 1970. 8Although the issue was not beyond doubt, counsel for the plaintiff and first defendant agreed, that for the purposes of the appeal, it should be accepted that the plaintiff was appealing pursuant to s 53(1) of the Crimes (Appeal and Review) Act 2001 as on an appeal from conviction and that accordingly the plaintiff required leave to appeal on a question involving mixed law and fact. In light of my determination of the matter it is unnecessary to examine the correctness of the course adopted.
Consideration 9The Mental Health (Forensic Provisions) Act 1990 provides as follows: " 31 Application (1) This Part applies to criminal proceedings in respect of summary offences or indictable offences triable summarily, being proceedings before a Magistrate, and includes any related proceedings under the Bail Act 1978, but does not apply to committal proceedings. 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). ..." 10In Director of Public Prosecutions v El Mawas [2006] NSWCA 154 at [71] the court held: "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... 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... s 32...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... 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 subjective or value judgments in which "...'no one [consideration] and no combination of [considerations] is necessarily determinative of the result' ... 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... the discretionary judgment could not be exercised properly without due regard to the seriousness of the offending conduct. Once a 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 sub-s 2 or sub-s 3 should be taken. No doubt a Magistrate considering [the availability of the diversionary remedy regime] will consider whether proceeding in accordance with s 32 will produce a better outcome both for the individual and the community..." 11The plaintiff relied upon a report of the psychiatrist, Dr Westmore, dated 2 August 2011. Critical portions of the report were as follows: "He does not have a mental illness as suggested by the psychologist, but he does suffer from a mental condition (alcohol related organic brain damage) and because of that the court, if it felt it were appropriate, could consider him under s 32 of the Mental Health (Forensic Provisions) Act 1990... At the time I saw him, I thought he was reasonably motivated however to seek further assistance for some of his difficulties and if his matter is dealt with under s 32, I would recommend the following treatment plan:
Determination 14The plaintiff submitted his Honour made a factual error in determining that there was a lack of evidence that treatment was available in a mental health facility for the mental condition identified by Dr Westmore. The plaintiff submitted: "The report of Dr Westmore did not explicitly say in so many words that the mental condition described by the doctor was one 'for which treatment is available in a mental health facility'. However, having stated that the court could consider the plaintiff under s 32, Dr Westmore went on to lay out a detailed treatment plan. The overwhelming inference is that Dr Westmore was saying that the plaintiff fell within the preconditions of the exercise of the discretion in s 32. It is inconceivable that he was unfamiliar with the requirements of the section contained in s 32(1) but proceeding to suggest that the option under s 32 was available, and thereafter outlining a detailed treatment plan. It is also an available inference that the treatment plan was referring to treatment in the mental health facility as defined... Taking the report as a whole, and even accepting that the document makes no explicit reference to the precondition under discussion, the magistrate made an error of fact in finding that that precondition had not been made out. The finding of the magistrate that the author of the report was a senior forensic psychiatrist who was choosing his words with care cannot sit with the proposition of the magistrate that the whole report was suggesting that s 32 was available was founded on an enormous misconception. The finding of fact, in all the circumstances, was plainly wrong." 15I do not agree. The plaintiff relies upon s 32(1)(a)(iii) which provides pre-conditions to the enlivening of the s 32(1)(b) discretion. 16The pre-conditions clearly require evidence that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate): (a) suffering from a mental condition; (b) for which treatment is available in a mental health facility; (c) but is not a mentally ill person. 17Dr Westmore expressly provides evidence in his report of facts (a) and (c). He does so in clear terms. However, he ignores the requirement that it be established that treatment is available in a mental health facility for the plaintiff's mental condition. As his Honour observed, this requirement is as much an essential ingredient in enlivening the court's jurisdiction as are any of the other tests. Dr Westmore merely says that because the plaintiff suffers from a mental condition, he could be considered under s 32 if the court felt it were appropriate. 18If, as the parties accepted, Dr Westmore is an experienced practitioner, then the inference to be drawn is that the omission of a reference to the availability of treatment in a mental health facility for the plaintiff's condition was deliberate. Otherwise the appropriate inference is that, through an inadvertent omission, or because he had a fundamental misconception as to the requirements of the section he had not considered whether treatment was available in a mental health facility for that mental condition. 19The absent evidence cannot be supplied by inference from the "treatment plan" suggested by Dr Westmore. The treatment plan provides no basis for any such inference. It consists of a number of components, namely a referral to the general practitioner, Dr Fong, for the plaintiff's various medical problems, a rehabilitation programme to enter into sobriety so as not to aggravate his existing brain damage and a referral to a medical health service for support due to stress, depression and the risk of relapsing back into alcohol abuse. None of these interventions, on its face, involves the provision of treatment for the mental condition of alcohol related organic brain damage. 20In my opinion, it was well open to his Honour to conclude that there was a lack of evidence of an essential pre-condition. The application pursuant to s 32 was correctly dismissed. 21His Honour also rejected the application on the discretionary basis under s 32(1)(b). This conclusion is interlinked with his Honour's finding in respect of the pre-condition. Accordingly, it is unnecessary to separately consider the application of s 32(1)(b). 22I make the following Orders:
Amendments 30 March 2012 - Date of judgment corrected (year) Amended paragraphs: Coversheet 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: 30 March 2012
Edwards
DPP