R v Borg

Agreed facts

1. At the time of the offences the appellant was a Senior Constable attached to the Central Metropolitan Region Enforcement Squad. The victim was KM who was 16 years of age at the time of the offences.
2. On 13 September 2022 the appellant and several other police officers were conducting a surveillance operation in Prospect in circumstances where a stolen Audi Q5 had been sighted parked and unattended on the street. The appellant and other police were wearing plain clothes. At 10:32 pm police observed the blinkers of the stolen Audi flash as though it was being unlocked. Simultaneously police observed three males, including the victim, approach the vehicle. The three males ran from the scene having detected the police presence.
3. Police caught the victim, being one of the three males, and he was placed under arrest. The victim was handcuffed behind his back and was escorted back to the stolen vehicle. The victim, seated in the gutter, and whilst fully compliant, was kicked to his face with force by the appellant. The force of the kick caused the victim to be propelled backwards onto the ground behind. The appellant then walked away before returning a short time later to spit on the victim who remained compliant and in the same position.
4. The assaults were captured on an optical surveillance device as well as being observed by another officer. On 4 October 2022 the appellant was charged with the offences, and he declined to participate in a record of interview.

Dr Olav Nielssen

1. The appellant was interviewed by Dr Nielssen for the specific purpose of preparing a psychiatric report at the request of his solicitors. Dr Nielssen was aware of the agreed facts leading to the two charges, had available various clinical records for which leave had been granted to rely on as fresh evidence, and a history elicited from the appellant.
2. The appellant told Dr Nielssen that at the time of the offences he was working in a covert surveillance unit which was highly unpredictable and was becoming increasingly more so, involving young offenders with weapons. He spoke of a long period of surveillance, and had been working for a period of 15 hours when the incident occurred. He considered the arrest was "a debacle". He did not know why he assaulted the victim although he observed that he had "been losing control for a little while" and it was not the only incident that happened "violence wise". He acknowledged that the victim had done nothing to provoke the attack.
3. The appellant told Dr Nielssen that in the weeks before the assault he had a significant argument with members of his family over the gaining of weight. In a further incident he punched a close friend during an argument at a social gathering. He claimed that at the time of the offences he had been "treading water" for some months and felt he was on "automatic mode". The appellant claimed that he was normally professional in his attitude to his role as a policeman. Whilst not condoning the sort of behaviour in which he engaged, he attributed it to his underlying emotional state, fatigue, stress of the day and annoyance at the way the arrests had been mishandled.
4. Dr Nielssen noted a psychiatric history involving an initial contact with mental health services in 2020 following a complex investigation involving a large surveillance operation. He was referred to a psychiatrist and a psychologist by his general practitioner, and saw the latter every few weeks, and then at fortnightly/monthly intervals. The appellant told Dr Nielssen in October 2020 that he was stood down due to his emotional state and was on leave for eight months. He was assessed as fit to return to work in August 2021 and considered he was doing well until the months before the assaults.
5. Following a review of the various documents, Dr Nielssen diagnosed the appellant as suffering from an adjustment disorder with anxiety and depression. The adjustment disorder seemed to arise from a relationship between the emergence of symptoms and the circumstances of his work, and the subsequent return of symptoms having returned to a similar work environment. Dr Nielssen was satisfied that the depressive illness was a mental impairment within the meaning of s 4 of the MHCIFP Act. Dr Nielson further concluded: "The link between the manifestation of his mental illness and his behaviour would appear to be a marked irritability and reduced frustration tolerance associated with his underlying mental illness, which manifested in arguments and altercations with family and friends in the weeks prior to the offences, as well as the effect of fatigue and frustration with the events of that day."
6. A treatment plan was recommended.

Dr Frank Chow

1. Dr Chow examined the appellant at the request of compensation lawyers in February 2023. It is apparent that the report was prepared to support a worker's compensation claim made by the appellant. The appellant provided a background as to his career in the New South Wales Police and his subsequent development of psychological difficulties including panic attacks, shortness of breath, mood swings, social withdrawal, tightness in the chest and inconsolable crying. He was struggling with work. The appellant provided a history of seeking treatment from a psychiatrist and psychologist in mid-2020 and the subsequent certification that he was unfit to work. The appellant returned to work in May 2021 and resumed full-time hours by the middle of that year.
2. However the appellant referred to further psychological difficulties developing in mid 2022 in circumstances where he was working long hours. His emotional well-being deteriorated leading to an argument with members of his family and a subsequent incident involving his friends. It was shortly after these incidences that he then committed the offences the subject of the appeal.
3. At the time of the assessment Dr Chow diagnosed the appellant as suffering a major depressive disorder. He was of the opinion that the appellant's "serious and wilful misconduct" appeared to be the "the product or manifestation of his psychiatric injury and declining psychological state". He was also of the opinion that the appellant's psychiatric injury had led to the misconduct at work leading to the premature ending of his police career.

Other medical material

1. A letter from the appellant's general practitioner Dr McDonald confirmed that the appellant had been under her care for anxiety/depression/PTSD due to work stresses since October 2020 and was referred to a psychologist and psychiatrist for treatment.
2. A bundle of reports/letters from Peter Walker psychologist confirm the appellant's attendance for psychological treatment between February 2021 and November 2022, documenting the appellant's psychological condition over that period and a return to work treatment plan. A report of August 2022 documented an escalation in the appellant's anxiety due to increased work pressures and appeared to be a report in support of a claim for yoga. The report of November 2022 appeared to refer to the particular incident in the context of increased work pressure, hours, and exacerbation of his underlying pre-existing condition. The final report from November 2022 documented the appellant's compliance with previous treatment, however a deterioration in his psychological functioning followed his return to work.
3. An allied health recovery request completed by Dr McDonald in February 2021, apparently in support of treatment for a worker's compensation injury claim, documented the appellant as suffering low mood, anxiety and frustration and intolerance in the context of workplace stressors and that he would meet the criteria for an adjustment disorder.
4. A further document lists the appellant's attendance upon Dr Walker, psychologist commencing in November 2020 through until February 2023.

Sentencing assessment report

1. The appellant was assessed for the purpose of a sentencing assessment report in May 2023. The appellant reported was single and resided with his parents in the MacArthur area. However, at the time of the offences he was living alone in independent accommodation in the eastern suburbs.
2. The appellant's mother confirmed her sons' current circumstances and the nature of their relationship, and the fact that she was the main source of support for him. She confirmed the appellant's report of uncharacteristic conflict with his family prior to the offending.
3. The appellant had been suspended from NSW police and was financially supporting himself from the income from a rental property and accumulated savings.
4. The appellant reported at the time of the offences he was feeling anxious, exhausted and agitated, and had difficulties regulating emotions which contributed to his impulsive and aggressive conduct. Further, the long working hours, excessive workload, and lack of support in his employment contributed to his poor judgement and impulsive behaviour. He otherwise confirmed the subjective matters previously traversed. Further, he confirmed the mental health history provided to the experts. The appellant expressed insight into the impact of his offending, acknowledging that his actions were inappropriate and unprofessional. The appellant indicated his willingness to comply with community service orders.

Anthony Malone

1. A retired police officer with approximately 35 years of service, Mr Malone had known the appellant since he was a newborn. However, he formed a close relationship following the appellant's interest in joining New South Wales Police. He attested to the appellant's personality and demeanour, including that he was not known to be physically aggressive. He also attested to his competence serving as a police officer in the years prior to the incident. The appellant had expressed considerable remorse to Mr Malone in respect to the assault, also noting that he had lost his career as a serving police officer.

David King

1. Mr King was introduced to the appellant in his capacity as the manager of the Coogee Bay Hotel where the appellant was a regular patron. He subsequently shared accommodation with the appellant for a period of approximately five years. He referred to his strong relationship with the appellant to the extent that the appellant was in effect a mentor and support for him during his formative years. He attested to the fact that the appellant had not demonstrated any previous aggressive tendencies and that the aftermath of the assault had impacted him significantly. He referred to the psychological difficulties the appellant was experiencing arising from his work.

Leanne Borg

1. Ms Borg is the mother of the appellant. She affirmed that they had always had a close relationship, and even more so in the previous two and a half years during which time the appellant was being treated for mental health issues. Ms Borg confirmed that the appellant's conduct was completely out of character and that she has expressed considerable remorse in respect to his conduct. She confirmed that the appellant was under stress due to his job when the incident occurred and had been treated for mental health issues.

The Magistrate's reasons

1. The learned Magistrate was satisfied that the appellant had a mental health impairment as defined in the MHCIFP Act, namely an adjustment disorder, depression, and anxiety. It was then necessary to determine whether the appellant should be dealt with according to law, observing that this was a discretionary judgment and a balancing exercise where no single consideration or combination of considerations was necessarily determinative of the result. Having referred to the authorities and medical evidence, the learned Magistrate accepted the prosecutor's submissions that the facts constituted a serious example of a common assault given the victim was in police custody, was vulnerable by virtue of his age and being indigenous, the victim had been fully compliant and had no ability to defend himself, the assault was to a vulnerable part of the body, and the degree of violence was high and unprovoked. She concluded that in all the circumstances the assaults were a serious matter and unacceptable by community standards.
2. Her Honour noted that there were suitable sentencing options available. It was noted that the appellant had no other criminal history and no previous orders under the relevant legislation. She accepted the submissions on behalf of the appellant that he was unlikely to find himself in a similar situation again and accordingly posed little risk to the safety of the community. However, there was a strong public interest in punishment being imposed, particularly in circumstances where there was a strong public interest in police violence against indigenous adults and children in custody. This weighed heavily against the application being granted. Given the overwhelming public interest in preventing, deterring, and punishing police violence, the application to deal with the matter under the MHCIFP Act was refused.

Appellant's submissions

1. The appellant addressed the relevant considerations provided in s 15 of the MHCIFP Act. It was noted that the diagnosis of the psychiatrist was consistent with the appellant suffering a mental health impairment arising from the various conditions, including an adjustment disorder with anxiety and depression and a major depressive disorder.
2. The appellant accepted that the offences of assault were serious and contrary to community expectations of a police officer performing his duties. Despite this, the appellant relied upon the judgment of the McColl JA in DPP v El Mawas (2006) 66 NSWLR 93 where the exercise of the discretion did not rest entirely upon the seriousness of the offending. Rather it required the exercise of a subjective or valued judgment where no one consideration or combination of considerations was necessarily determinative of the result. Further, it was necessary to consider whether dealing with proceedings under the mental health provisions would produce a better outcome for both the individual and the community.
3. The appellant contended that given he was suffering from a mental impairment at the time of the commission of the offences the objective seriousness was reduced. Further it was submitted that his condition had the effect of reducing the appellant's moral culpability and that matters such as general deterrence, retribution and denunciation carried less weight: Muldrock v R (2011) 244 CLR 120 at [53]; R v Israil [2002] NSWCCA 255 at [23]; R v Henry (1999) 46 NSWLR 346 to 254. This was particularly relevant when the mental condition contributed to the commission of the offence in a material way citing DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 at [177]. It was contended that the factor of the appellant suffering a mental illness at the time of the offence significantly mitigated the seriousness of the appellant's criminality.
4. The appellant conceded that aggravating factors were that the appellant had abused his position of trust and authority and that the victim was vulnerable. However mitigating factors were identified including no substantial emotional harm, was not part of a planned or organised activity, the appellant did not have any previous convictions and was of good character, the appellant was unlikely to offend and there were good prospects of rehabilitation, the appellant had shown remorse and was suffering from a serious mental health impairment. Further, the appellant had entered a guilty plea at the earliest opportunity. It was noted that the appellant was no longer a serving police officer which further demonstrated his contrition and reduced the risk to the community.
5. It was noted that the appellant had undergone significant treatment to address his psychological condition. He had no prior criminal convictions, and was not previously the subject of an order under the mental health legislation. A significant treatment plan had been in place. In all circumstances, the appellant contended that by diverting the appellant under the mental health legislation, the Court would be adequately balancing competing interests of the appellant and the community in circumstances where it would be more appropriate to divert the appellant than to deal with the offences according to law.

Crown submissions

1. The Crown fairly conceded that on all the evidence the appellant suffered a mental health impairment as defined in s 4 of the MHCIFP Act and accordingly the appellant fell within the ambit of s 12(1) of the MHCIFP Act. However, the Crown contended that it was not appropriate for the appellant to be diverted under the Act. The Crown contended that the learned Magistrate had properly undertaken the balancing exercise demanded of a court when considering such an application. The Crown referred to the objective and subjective factors identified by the learned Magistrate. The Crown contended that the nature of the mental health condition, nature, seriousness and circumstances of the alleged offending, the overwhelming public interest in dealing with the offences according to law, and the suitability of sentencing options available, were of considerable significance and weighed against the court exercising its discretion to make an order under s 14 of the MHCIFP Act.
2. The Crown submitted that the court would have regard to the fact that the appellant knowingly remained working as an operational police officer whilst suffering from the mental health conditions. In any event, it would be inferred that the conditions had not interfered with the appellant's day-to-day duties as a police officer to the extent that it precluded him from working in that capacity.
3. The Crown identified, by reference to the expert reports, that the appellant had acknowledged that his conduct was not only caused by his underlying emotional state but by other unrelated factors. It was contended that the offences were of such a nature that it made it highly unlikely there was a close causal connection between his mental health impairment and his offending conduct.
4. It was submitted by the Crown that the offences, particularly the first assault, was particularly serious, with significant aggravating factors including that it occurred whilst the appellant was performing duties as a police officer and was directed towards a victim who, given his age and background, was particularly vulnerable. It was submitted that general and specific deterrence played a significant role and was to be given its full effect. The Crown contended that general and specific deterrence was still important in the sentencing process although the ultimate sentence may nevertheless be moderated in circumstances where the appellant was suffering from a mental health impairment. Ultimately it was submitted that denunciation, punishment of police violence against vulnerable children and community protection were critical in the sentencing exercise relating to the appellant and should weight in favour of dealing with the appellant according to law.

Consideration

1. Section 14 of the MHCIFP Act empowers the court to dismiss a charge and discharge the offender either conditionally, or unconditionally. In deciding whether it would be appropriate to deal with the offender in accordance with the MHCIFP Act, s 15 provides that the court may consider the following: "(a) the nature of the defendant's apparent mental health impairment or cognitive impairment, (b) the nature, seriousness and circumstances of the alleged offence, (c) the suitability of the sentencing options available if the defendant is found guilty of the offence, (d) relevant changes in the circumstances of the defendant since the alleged commission of the offence, (e) the defendant's criminal history, (f) whether the defendant has previously been the subject of an order under this Act or section 32 of the Mental Health (Forensic Provisions) Act 1990, (g) whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan, (h) whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public, (i) other relevant factors."
2. The Crown has properly conceded that at the time of the offending the appellant was suffering a mental health impairment as defined in s 4 of the MHCIFP Act. Section 15 of the MHCIFP Act provides a non-exhaustive list of the matters the Court may take into account in determining whether it is appropriate to deal with an offender under the Act.
3. Whilst it is beyond doubt that the appellant was suffering a mental health impairment at the time of the commission of the offence, namely an adjustment disorder with anxiety and depression, it is readily apparent that the appellant was able to lead a relatively normal life, and otherwise was capable of performing duties as an operational police officer. The opinion of Dr Chow that he was unfit for work was an assessment made as of February 2023, and the relevant unfitness was certified from the month after the relevant offence. Whilst the appellant had previously experienced a prolonged absence from active police service arising from a mental health impairment, at the time of the offence he had been working full-time as an operational police officer for well over 12 months.
4. The offences, and particularly the first offence, was objectively serious, even taking into account the mental health impairment from which the appellant was suffering. The court has viewed the surveillance recording of the assaults. The appellant walked in a determined fashion directly towards the victim before, without any hesitation, kicking the victim to the face with considerable force. The victim was defenceless in circumstances where he was seated in the gutter with his hands handcuffed behind his back. It was entirely unprovoked. The fact that the appellant did so whilst performing duties as a police officer, and was directed toward a vulnerable indigenous teenager, further increases its objective seriousness. The second assault, whilst less violent, still involved a significant degree of animosity towards the victim. The act of spitting was conduct entirely unbecoming, inappropriate and contrary to community expectations of a police officer in performance of his duties.
5. As to the effect of a mental condition reducing an offender's moral culpability, Yehia J (with whom Rothman and Wilson JJ agreed) in DC v R [2023] NSWCCA 82 observed: "74. A reduction in moral culpability results where an offender's mental health (or impaired intellectual functioning) has contributed to the commission of the offence. The applicant does not need to demonstrate that his actions were beyond his control, or that he had no understanding of what he was doing. Rather, the question is whether the applicant has established, on the balance of probabilities, that his actions are mitigated on the basis that the complex PTSD and/or intellectual impairment played a role of some significance in his offending. 75. The sentencing task should not be approached in "an unduly technical or restrictive way": see Luque v R [2017] NSWCCA 226 at [114]. In determining whether a causal link or nexus exists, a sentencing Judge should not approach the task as though deciding the issue of causation in a civil case. Where the mental illness or intellectual impairment explains or sheds light on the offending conduct in some material way, such a finding may operate to reduce moral culpability and the weight afforded punishment and deterrence. 76. While a sentencing Judge should not become preoccupied with the issue of "causation" as a technical matter, the mental health issue or intellectual impairment should be capable of demonstrating a link, direct or indirect, between the offending and the mental health issues in question: see Ryan v Regina [2017] NSWCCA 209 at [15] per Hamill J (Leeming JA and Button J agreeing)." (Emphasis added).
6. Whilst authorities such as Muldrock and De La Rosa have held that deterrence, retribution, and denunciation carry less weight where an offender was suffering from a mental condition at the time of commission of the offences, they are not authorities for the proposition that such purposes of sentencing have no relevance. Muldrock referred to the fact that in "most cases" mental impairment or disability will substantially lessen the offender's moral culpability for the offence. In Alkanaan v R [2017] NSWCCA 56 Harrison J (with whom Payne JA and Schmidt J agreed) observed at [108]: - "The mere fact of mental illness is not of itself a necessary or sufficient indicator for a more lenient sentence. The principles described by McClellan CJ in De La Rosa are no more than indications of what experience has shown commonly arise in such cases. As Simpson J has said, however, there is no presumption. It remains necessary for the sentencing court to examine the relevant facts in order to determine whether, in the specific case, the mental condition has the consequence contended for."
7. Dr Nielssen observed that the link between the manifestation of the appellant's mental illness and his behaviour "would appear to be in the marked irritability and reduced frustration tolerance associated with his underlying mental illness… as well as the effect of fatigue and frustration with the events of that day".
8. As an operational police officer, the appellant would have been well aware of the prospect that he would deal with stressful situations with a heightened sense of potentially confrontational situations. As much was conceded by the appellant when he told Dr Nielssen that his work was highly unpredictable with an ever-increasing sense of danger and unpredictability. In these circumstances, it was incumbent on the appellant to be conscious of his emotional state and the extent to which that may impact upon his interaction with members of the public, including those under his control or in his custody. In any event, it is apparent on the history provided to Dr Nielssen that the appellant's conduct was attributable in part to his frustration of the events of the day. Again, as an operational police officer, the appellant ought to have been in a position where, conscious of his underlying impairment, he had the capacity to control his emotions, and prevent acting out as he had in his personal interactions.
9. In the event the appellant was dealt with according to law there are a number of sentencing options available to the court which are non-custodial and provide for the appellant's ongoing rehabilitation and treatment of his underlying mental health impairment. The appellant has, to his credit, undergone further treatment to address his underlying mental health impairments. He resigned his employment with New South Wales Police following commission of the offences. It is noted that the appellant is not otherwise criminally known and has not previously been the subject of an order under the mental health provisions. A treatment and support plan has been put in place. The appellant is unlikely to endanger a member of the public given he is no longer a serving police officer and is presently undergoing treatment.
10. As previously noted, s 15 of the MHCIFP Act is a non-exhaustive list of matters the Court may take into account in considering whether to deal with the appellant. The section refers to "other relevant factors".
11. The appellant relies upon sentencing statistics for the offence of common assault. However, such statistics are of limited relevance given the circumstances of the offending. The offence was committed by a police officer in the execution of his duty of arresting and detaining an offender. As the Crown correctly observed, both offences were examples of police brutality against an indigenous child in custody. The significance of this cannot be understated.
12. In the circumstances, I reject the appellants contention that the learned Magistrate erred giving too much weight to the serious nature of the offences and the strong public interest in punishment being imposed in the face of uncontested evidence setting out the nature and symptoms of the mental health impairment. Further, in exercising her discretion, it was not erroneous for the learned Magistrate to give particular weight to deterrence, and denunciation and retribution.
13. Such a finding does not offend statements of principle such as the observations of McColl JA in El Mawas. As her Honour noted the mental health provisions call for 'an exercise of subjectivity or value judgements'.
14. I reject the appellant's submission that the objective seriousness of the offences is significantly reduced due to the appellant's mental health impairment. Further, I reject the appellant's submission that given his offending behaviour is, to an extent, linked to his mental illness, this significantly mitigates the seriousness of the appellant's criminality.
15. I do not accept the appellant's submission that his case is an inappropriate vehicle for general or specific deterrence. To the contrary, unprovoked violence perpetrated by police against persons in their custody and care must be denounced by the court in the strongest terms possible. Whilst specific deterrence is of lesser relevance given the appellant's present circumstances, general deterrence is a very material consideration. As the learned Magistrate appropriately observed in dismissing the appellant's application: "There is a significant and overwhelming public interest in these types of matters and there is a strong and overwhelming public interest not only in these matters but in preventing, deterring, and punishing police violence."
16. In any event, given the appeal is by way of hearing De Novo, I am not satisfied that it would be more appropriate for the appellant to be dealt with in accordance with the MHCIFP Act, and accordingly the conviction appeal is dismissed.

Severity appeal

1. In respect of the two offences of assault the appellant was sentenced to an aggregate sentence of 10 months imprisonment to be served by way of an ICO. In addition to the standard conditions, the following additional conditions of the ICO were imposed: - 1. 100 hours of community service 2. must comply with the treatment plan contained in the report of Dr Nielsen.
2. Indicative sentences of nine months and three months imprisonment were noted.
3. Given the seriousness of the assaults and the fact that the appellant committed the assaults in the course of exercising duties as a police officer, I am satisfied that the s 5 threshold has been crossed and no sentence other than full-time imprisonment is appropriate. In so finding, I take into account the mental health condition from which the appellant was suffering as traversed in these reasons. As previously observed, whilst moral culpability and deterrence is reduced by reason of his mental impairment, I do not accept that such sentencing considerations should be ignored. There must remain an element of general deterrence for the reasons already traversed.
4. I am satisfied that an aggregate sentence of 10 months imprisonment was an appropriate sentence. I am also satisfied, given the considerations in s 66 of the Crimes (Sentencing Procedure) Act 1999, that the making of an ICO is more likely to address the appellant's risk of reoffending. Serving his sentence in the community will enable the appellant to access the help he requires to address his mental health issues. The conditions of the ICO imposed by the learned Magistrate, including the requirement that the appellant complete community service are entirely appropriate.
5. In respect to the conviction appeal I make the following orders: 1. The conviction appeal is dismissed. 2. The order of the learned Magistrate made on 22 March 2023, dismissing the appellant's application, is confirmed.
6. In respect to the severity appeal I make the following orders: 1. The severity appeal is allowed in part. 2. The aggregate sentence of imprisonment of 10 months is confirmed. 3. The order that the term of imprisonment be served by way of intensive corrections order is confirmed. 4. The conditions of the intensive corrections order are varied as follows: 1. The condition that the appellant perform 100 hours of community service is set aside and in lieu thereof the appellant is to perform 20 hours of community service. 1. The remaining conditions of the community service order are confirmed. 2. The order of the Magistrate that the term of imprisonment is to commence on 12 May 2023 and expire on 11 March 2024 is confirmed. 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 September 2023